Federal Judge Didn't Know Handcuffing Crying Children Was Frowned Upon

Hello. Hey, how are you? I'm great. How are you? I'm thinking like a lawyer today. You know why that's great? Why is that great? Because this is the proper forum for that because you are on thinking like a lawyer, the weekly podcast where but a lot. It's really convenient that it worked out like that. Yeah, it's almost like you planned it. Almost. But I know you didn't because then it would show me that somebody had opened my planning memo for the week. Oh, stop. There is no memo. At best, it's a quick chat. My name is Joe Patrice. I work at Above the Law. That is Katherine Rabino. She's also, you know, ostensibly working at Above the Law with me. Whoa, shots fired. I, oh, well, no. Oh, is that not a synonym for currently? Maybe I just, maybe it's my vocabulary is suffering. Wow. Maybe that's. Wow. Yeah. This is okay. Okay. It's going to be like that. Cool. Exactly. Well, so, yeah, so we're here to talk about some of the big stories of the week in the legal world, the week that was, we can't predict the future yet. Well, AI is probably can do that. Well, yeah, we can talk during our little small time. Small talk session. I'm sure that will come up. Yeah. So I have been at the ABA Tech show as usual. How is that? Great. I mean, as per you, I mean, like yearly. Yeah, it's an annual show. Well, maybe the sound was like, you know, you're always at a legal tech conference. In a sense. In a sense, I am. Yeah. So, yeah. So that was the tech show that happened this last week, not to be confused with the one that I went to two weeks before or the one that I'm going to in two weeks. So it's largely the same group of players at each of these conference. You know, it's interesting. It's not because because that's a no, it isn't. And that's a thing that people, I think, don't necessarily understand about the legal tech world. There are a lot of similar players, but they aren't all the same because not just because different practice areas need different things. And some man, there's some specialization there. There's different sectors of the market that need different things. A giant law firm doesn't need the same software solutions as a tiny one. And, you know, so the ABA tech show. But like there are multiple conferences that deal with big law tech needs. There are multiple conferences that deal with small law tech needs. Sort of. So obviously there are different conferences that do different things and there are some overlap. ABA tech show is not, for instance, run by one company. So there may be another show like say, Clio Cloud Conference, which is run by Clio and they serve largely small law firms, but that's their customer conference, which is different than the ABA tech show, which is run by the ABA and is therefore more agnostic on that front. But the ABA tech show does largely, and it doesn't claim to be exclusive, but it does largely serve the smaller law firm market. And so yeah, so we were there. It was actually, I thought it was more active than it had been in a while. I thought it was a really successful iteration of this show. They run a nice startup alley of all the little startups. What makes a successful iteration of a tech show? Is it the good folks's participation, their engagement? How does that change from one to another? That's a great question. I think it depends on how you're coming at it. Now I am very much coming at it from the perspective of being a journalist. So I might not, it may not be fair, but no, I thought attendance seemed up, engagement seemed up. People were very interested to be there. It wasn't just, you know, folks showing up and then I never see them again. A lot of conversations happening, especially because there's been a lot of development in legal tech over the last little bit here. You know, we all these AI stories. A lot of chat, GPT talk. A lot of chat, a chat, yeah, exactly. So there's been a lot of that. And that does increase things too, but you know, we had a very robust startup, group of startups there. And I've mentioned before that as much as the show is based around small law, I also feel like the show has a very strong horizontal sales movement as opposed to law firms coming in trying to find the solution for their firm. There's a lot of small startups coming in and bigger companies finding a way to integrate those into their product. So, but there was a big alley with some really cool stuff there. Some companies that already known, some that I learned for the first time. The startup competition usually has held the opening night in a tiny side room with maybe 20, 30 people in it. I think there were around 300 or so in that room this year. So it was much more robust. There you go. So we're back. It's where the legal tech conference circuit has rebounded. Yes, I have. Go for COVID lows. Well, certainly that. And you know, a lot of congratulations go to the people who ran ABA Tech show this year. The, you know, the leadership did a good job of building out a show that was going to draw people in and it was exciting. There you go. How was your time? I went to my family's annual St. Patrick's Day party this best he can. Yeah. My mom is proud of her Irish heritage and every year throws a fairly large party in her home complete with Irish flag shots, lots of beer, corn beef, cabbage. I got some Irish soda bread to take home with me, which is kind of making my week. But yeah, it was a good time. That is exciting. Yeah. So I think we're done with talking small. Ready to talk big. Is there a big law story you want to talk about Joe? Not really. Yeah. The big story though. Yeah, the biggest story I feel I want to talk about and this happened. It's a very big story. And I will say one that you uniquely broke amongst journalists a lot. You may have heard about this story from other publications, not just legal publications, but kind of has crossed into like a bigger media story. But it was broken by our own joke Patrice. Aw, thanks. Yeah, no, we received some anonymous tips about this as it was developing. Shout out to the ATL tipsters. Yes, tipster network. You need to, you know, we tell you all the time, but you really are the most important folks out there because otherwise there's no way we would know what's going on in random court houses on the other side of the country. You know, it's you all who let us know these things. Earlier in the month, I guess this is technically last month, earlier in February there was a hearing in the courtroom of Judge Roger Benitez in the Southern District of California down in San Diego. It was a revocation hearing for a guy who, you know, was facing the, you know, revocation of his parole. He had done something that was going to trigger that. He was at his sentencing for that hearing and told the judge that he wanted to move. He actually wanted to not be, you know, not be put back in jail and indeed. Yeah, as lots of folks, I'm sure, make similar requests. Okay. Makes sense, but also wanted to be in a position to move out of San Diego. He blamed that the people he grew up with are contacts that he can't really avoid in the city. And because of that, he wanted to remove himself from the negative influences in his life. Exactly. One of the citations for the one of the things he cited for that is he had a 13 year old daughter and he was concerned about how she was going to grow up and he wanted to give her a better life. She actually attended the hearing for the first time she'd never been to any of her father's hearings. Yeah. You know, she's a little bit older and so it could be a little less traumatizing to watch something like that. So she, she came to support him. Unfortunately, this is where it takes a turn and the hearing becomes way more traumatizing than otherwise. Upon hearing that she existed, the judge decided to order the marshal to grab her and arrest and put her in handcuffs and then put her in the jury box. She disturbing the court proceeding in any way at all. No. She was there. You know, she was just there. Yeah, no, the judge decided to make this an impromptu scared straight episode with no indication she'd done anything that required being scared, particularly other than potentially having a father that was arrested. Yeah, who was saying I want to, I want to move so that she doesn't go down the same path. I guess, I guess because the judge didn't didn't intend to allow that he decided he was going to do his own way of keeping her from doing that and, you know, decided to put her involuntarily detain her without any legal authority to do so. Seems super problematic. Yeah, that's, that's, that's in most situations, false imprisonment. Well now obviously judges live in something of a weird lawlessness zone where we let them get away with a lot of stuff. Obviously they have a lot of. I do what I want. Yeah, they have a lot of power to deal with contempt and stuff like that. But, you know, when somebody's not doing anything contemptuous, who knows? Anyway, she was sobbing as one might if they're being held like that. Ultimately, he let her go and told her she was an awfully cute little girl, a young lady, and that seemed, you know, a little bit more serial, killery to have somebody cuffed up and sobbing and tell them they're, and tell a child that she's cute. So yeah, that all happened. Yeah, that doesn't sound great. Yeah, so the way this actually got to our attention was that the, the Federal Defender's Office is involved, I believe it was the Federal Defender's, it was the defense attorneys made an issue of this. They asked for a new judge, which they got, obviously. Seems fair. Seems like the bare minimum actually. Put in the new sentencing memo. So, so the original judge, Judge Vanita's sentenced this guy to 10 months in jail and another couple of years of supervised release, the, upon getting a new judge, the defense lawyers said, hey, you know, based upon what he just had to witness of his daughter's traumatization, perhaps we can call it time serve. Yeah. Peace out. Yeah. So within an hour or two of that coming in, the new judge said, obviously, and made it time served. And so, all's moderately well with that ends well as far as the family goes. A complaint has now been filed. It has been pushed up to the ninth circuit to review the ninth circuit had this, you know, it's interesting. They actually had this complaint for a bit apparently and weren't going to tell any of us about it, it seems, but because the, you know, transparency not being apparently that important. Yeah. So, but because this had been as, as the memo notes, because this has now been reported in the media, they go, they mean us because it was reported in media, they felt that they had to announce that there was an inquiry going in to this to maintain public trust in the judiciary. Don't know why. Yes. Yeah. Yeah. I don't know why it's not an issue of public trust in the judiciary beforehand. The mere fact that it happened, even if people don't know about it. More people are distrustful when they hear about it. I guess that's the issue. The larger the story becomes, the more the distrust grows. Yeah. But again, thanks to all the tipster side of things for letting us know about this, because again, you've done, you've done a service because you, we may never have known and punishment could have been nonexistent, could have been swept completely under the rug, but for us being able to report it. Obviously, this is the Ninth Circuit and that's not something that's, you know. The Ninth Circuit doesn't have the best record when it comes to judicial ethics and making sure that their judges don't do bad things. Yeah. No, because, yeah, I mean, you've covered, you covered extensively the Judge Kaczynski issues, which there were a lot of complaints there. They were ignored, shunted off to the Third Circuit. Three years. The Third Circuit ignored those. Yeah. And ultimately that ended with him resigning and- Which ended the inquiry into any misconduct as happens too frequently in the Federal Judiciary. Right. But yeah, so this is an issue in the Ninth Circuit that is not going to go away immediately, it sounds like. So, we got that going for us. Workers' Comp Matters is a podcast dedicated to exploring the laws, the landmark cases, and the true stories that define our Workers' Compensation System. I'm Judd Pearson, together with Alan Pierce. We host a different guest each month as we bring to life this diverse area of the law. Join us on Workers' Comp Matters on the Legal Talk Network. They say the best things in life are free, which either means the legal toolkit podcast is pretty awesome or we're totally committed to the wrong business model. You'll just have to tune in to find out which it is. I'm Jared Korea and each episode I run the risk of making a total ass of myself so that you can have a laugh, learn something new, and why not, maybe even improve your law practice. Stop believing podcasts can't be both fun and helpful. Subscribe now to the Legal Toolkit. Go ahead. I'll wait. So, we also had another story where misbehavior features prominently in it, and not nearly as severe as more of a joke than anything else, but really shows you how important it is to have a professional-facing persona at all times when you're dealing with big law firms. It was a Reddit story of someone who had applied to a US firm's London office and has applied, had gotten an interview, missed a call from them, and he has a voicemail that makes a Bofa D's nuts bitch joke. Oh my God. You know, not really professional at all. So this call went to voicemail. The folks from the firm heard this, you know, unquestionable taste voicemail. And by voicemail, like this is the greeting message. Correct. Correct, right, right. Hey, I'm sure you're calling me with a question, but I have a question for you. I was just wondering what Bofa D's is. Never mind. I just remember it's Bofa D's nuts bitch. Get troll-ed nerd. Nice. Yeah. That was the message. The weirdest thing is if you call the general number for Kirkland Nellis, it's about the same thing. It's very similar. The results, however, of this phone call and this message was that the firm reached out, back out to the candidate and said, thanks, but no thanks. We have rescinded it our offer for an interview. You do not have the level of maturity to be, to work at the firm. And we don't think you're particularly funny. Okay. I mean, if they don't think he's funny. Well, I mean, listen, we all know that the legal industry is not in its growth moment right now. They're not inclined to overlook any red flags, big ones, small ones, anything in between. They have lots of folks applying to them. Right? The most recent Nell numbers reveal that the size of our summer associate classes aren't getting bigger. They're going the opposite direction, right? They have more than, but it's going, but the size of classes of incoming lawyers are getting bigger. So there's more people applying for fewer jobs. They can do what they want. They have that latitude. They're not desperate for bodies the way they may have been in 2021. I will. So I have a lot of thoughts on this. First of all, put aside, this may all be made up. This is one of those Reddit stories that could easily be. Of course, but it still provides an interesting point of reference. It does. And I have a bunch of questions. First of all, figure out what your away message is. I'm not altogether sure a lot of people know what it is anymore because a lot of us live in the 21st century where you don't leave phone messages anymore. I mean, this is one of those classic. Yeah, but this is one that you actively had to record at some point. Like some point. Well, you have to actively record all of them at some point. Well, no, but no, I mean, if you just set it up there can be like an automated, like you have reached a follow-in phone number, you know, like, which I think is what a lot of people do have as their message, right? Just the automated comes with the phone kind of default. I don't know. Like I think a lot of people, and probably this person set this up in high school or something when they first got a phone and have no idea what it says anymore because who does that? Who leaves messages anymore? I actually read somebody on Twitter made this point that they had given their daughter who's like 13 or something like that, a phone and she was recording her message. Her message was, hi, you've reached so and so at the beep, hang up and text me, which is the way, you know, the society actually works these days. Sure. Other than telemarketers. I just think that at some point you made that message and you have to think about what happens when you don't answer the phone. Right. And that's the thing. I think people don't even know what their message is anymore. Right. But like, I know, I don't know exactly what mine says, but I know I don't make a D's nuts joke on it, right? I mean, I have called you recently. So yes, I can confirm it to you. It's a yo mama joke. Oh, there you go. Much funnier. Much funnier. Yeah. Anyway, so yeah, anything else on that? Yes, that's it. Well, all right then. The Digital Edge Podcast, where the Law and Technology intersect. I'm Sharon Nelson and together with Jim Callaway, we invite professionals from all fields to discuss the latest trends, tips and tools within the legal industry. Stay up to date on the rapidly changing legal tech landscape with the Digital Edge on the Legal Talk Network. As a lawyer, keeping up with developments in information security, cyber threats and e-discovery is a never-ending process. Fortunately, the Digital Detectives Podcast does the hard work for you. I'm Sharon Nelson and together with John Simick, we bring on industry experts to discuss the latest tech developments that help keep your data secure. Only on the Digital Detectives Podcast. All right, who else is up? Do we want to talk about James Ho? Never. Okay, then we can move on. Yeah, so that brings us to the end of the screen. There we go. Yeah, no. All right, so what's up with it? Regular listeners, readers of the book of the Law are well familiar with James Ho. You've written quite a bit about him throughout the years. He's a frequent punching bag, I think, above the law. Yeah, so all right, so while I don't know if he's a frequent punching bag, he's a hip circuit judge who, in a world of judges who are potentially less professionally serious these days, who are much more there to be bomb-throwing hacks than to express that they actually have deep judicial thought. He is the bomb-throwing hackiest, arguably. Appointed by Donald Trump, shockingly no people. He was. Yeah, yeah, but I mean, he often writes bombastic dissents to blame the other, you know, blame the people who didn't agree with him, you know, and it's all kind of set up as part of this breakdown in civility that some other circuit judges have been lamenting. But they're very good for earning yourself a nice little audience of fellow trolls and those people tend to end up working on the staffs that figure out who hired office in the judicial world nominations are going to be handed out. And, you know, he seems very interested in that. And we've written mostly about him because he made a big deal out of Yale Law School and trying and complaining about the free speech crisis there, which if you've read up on any of the actual details of it, there was no real crisis other than the one that these people all manufactured in their heads. But he was very big about that so that he could find himself as the star of a bunch of right-wing media. Yeah, I think it's completely fair to say that he's sort of made it his goal to become one of the most talked about conservative legal jurists, right? I think that that's pretty clear. But Mark Joseph Stern in Slate had actually had an article that we wrote about James O'Binn right. So there you go. Well, I mean, clocks can be broken at all. Yeah. All that good stuff. But he actually has come out in two cases that are rose from Texas, coming out saying that local police forces and politicians can't jail their political opponents. Well, I mean, this is probably news to Florida's current leadership. But yeah, okay. So help me out here. Yeah. What does it mean to be jailing political opponents in this context? Sure. Obviously, the facts are a little different in the two cases, but there are certainly enough similarities that you can sort of make a case. These are a little known or rarely or if ever enforced regulation or laws. And instead of just having a fine or some sort of a court appearance, they take these political opponents into jail. In one instance, I think took pictures of them and posted them and ridiculed this person while they were in jail. One of them was a city council member that was in sort of a tiff with the city manager and the mayor was on the side of the city manager. And so the mayor appointed somebody to look into her. And at one point at a meeting, there had been a petition to recall the city manager and this individual had had it put it in her binder for a minute. Somebody had asked for it later. She like pulled it out. I was like, oh, here it is. And that moment of putting it in her binder, which everyone, I think on both sides admits, did not appear to be a deliberate action. It was in the middle of the meeting, whatever, was painted as a hiding city information. So she was arrested when they put in jail, when the district attorney found out about it immediately released her from jail. And then she filed a first amendment lawsuit, right? Because that's what happens. But when it made its way to the Fifth Circuit, it went to an on-bank hearing and Judge Ho was on the bottom of a 10-6 decision and the only dissenter who wrote an opinion saying, no, you can't do this. This can't be all right. Yeah, it does seem like this sets a really problematic incident here. Yeah, I think it's incredibly problematic. It's that they said that the plaintiff in the case, though, failed to prove that similarly situated individuals engaged in the same criminal conduct avoided repercussions. Of course, this is this concealing of government property. It's not something that happens very often. And again, at all times, everyone admits when asked, she immediately handed it over. But apparently she can be arrested for that. The other one is a case that's still kind of coming up. This instance, James Ho, was on the top of a decision where it was a citizen journalist who did not make a lot of friends in her local town because she reports on things like the identities of crime victims' names. She reports from accidents on her Facebook page. And in two instances, she called the police department to confirm that so-and-so was involved in this incident or that kind of a thing. And she was arrested because she solicited non-public information from a public servant with the intent to gain a benefit, which is a law that has never been enforced in this particular town, the radio, Texas, because she called to confirm with the police department, as opposed to filing some sort of a public records request that it's a longer process. Query what the benefit is to put this on Facebook. Well, they said to get more followers was the benefit that they've identified. So she also sued for First Amendment rights. James Ho was like, this is wild. Surely, citizen journalists can ask questions of their public officials. This is ridiculous. And you would think that would be the end of it, but the Fifth Circuit now has agreed to hear the case on bank. So it'll go to the full panel, which again, James Ho just lost that similar case on a 10-6 decision. So it doesn't look great for the First Amendment in Texas and the Fifth Circuit generally. Yeah, that is all not great. It is interesting, though. I am a little intrigued by his take on this, given the things he has said about what his vision of free and open discourse should look like. Obviously, some of the stuff he said about the Yale situation leans very heavily toward the idea that citizen journalism is not great. So it is nice, I guess, to know that outside of a school context, he seems to think it might have a role. So that's, you know... It's not just, you know, this is my reading of the cases, kind of a bland decision, as is James Ho's writing style. He's writing it as a very broad language. This is totalitarianism, he says. It's beyond the pale when law enforcement officials weaponize the justice system to punish their political opponents. Oh, that's where this is. This is... Okay, so there's no really like a deep-seated philosophical thing. This is just the current right-wing bugaboo is weaponizing the justice system. So he's gonna make some decisions where he can whap. These are right, though, right? I mean, sure, but he's gonna wax on, wax off about the judicial system. He took, he said that, you know, this view of this Texas law would condemn countless journalists who arrest an incarceration, and that cannot be squared with the First Amendment. Okay, I mean, that's fair, that's fair. Well, all right. Well, that is... Those are three stories. So anything else of note that you want to toss in here? I don't think so. Awesome. I don't know. You were mostly busy at tech shows. I wrote a lot of things. I couldn't even remember which stories I wrote last week. Oh, wow. It was a whole scene. Fair enough. And I'm about to write a bunch more about the things that came out of tech shows. So everyone should keep an eye out for those. With that all said, I guess if followers are a benefit, I wouldn't have thought. But if they are, follow us on various things. Obviously Twitter appears to be weirdly broken. It's not weird. Nation-wise, not weird. Yeah, it's almost like firing everybody who makes the engine run. It doesn't work. I mean, but yeah, so the Tesla fire that is Twitter is currently not working, but eventually it will be. And you could then follow us at a TL blog individually. I'm at Joseph Tries. She's at Catherine one. You could be reading above the law as always to see these stories before we talk about them. You should be subscribed to the show so that you get these new episodes when they come out. Seriously, if you haven't ever done it, just go ahead and give it some stars. Go in, give us that those stars, write something. That sort of engagement helps. It means more people will read. Oh, well, not read. We'll listen to the show. And that's a good thing. You can also listen to the Jibot, Catherine's other programming, listen to the other programs on the Legal Talk Network that we aren't actually hosting. Is that everything? I did them slightly out of order. So I think I might have lost it. Yeah. All right. So great. We will be back next week to chat about more stuff. Peace. Bye. ♪♪♪