49 Comments
founding

Looking at the Sentencing Table and Statutory Index, I frankly never realized how well being an old-school D&D nerd prepares you to understand federal sentencing.

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author

I make this analogy ALL THE TIME and I stand by it.

It’s a more complex system than D&D tho. More like Runequest old-school.

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founding

I'm really only disappointed that no one involved gets a dice-based saving throw.

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Clark Neily made the argument the other day that we need to randomly assign some percentage of cases to go to trial without letting the state coerce a plea. I'd mess up his argument if I tried to recite it, but it seemed like a dice throw was part of the strategy to prevent coercive plea agreements. He's written about it. I'll see if I can find it.

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Jul 3, 2023Liked by Ken White

D&D is simple... this feels more like a GURPS or Pathfinder game.

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Jul 3, 2023Liked by Ken White, Sara Fay

Have we reached the point yet where the alternate email address to contact Ken and Josh is ussghotline@serioustrouble.show? The subject seems to rankle Ken in that special "RICO" sort of way.

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I practiced when the guidelines were mandatory. Fun times arguing with AUSAs about how many angels or devils dance on the head of that career criminal pinhead and other aggravating factors so defendants could be 🚀🚀

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I was a Level 12 Dwarf with a Magical Mace of Venue Selection. Almost got hold of the Javelin of RICO Lightning, but every time I got near it turned into a mirage.

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Great episode, but I was disappointed in the lack of a goat scream.

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LegalEagle did a thorough analysis of how the sentencing guidelines are applied. I suggest that people interested in how the guidelines are applied watch it:

https://youtu.be/kr8gSdJ_Ggw

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I came here to say precisely this.

It was a great walk through. And I love how he repeated said he would never do it again, if asked, he would refer to this episode, etc., etc. Really drove home how terrible this is.

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I thought Justice Owl or whatever his nickname is was the one who did the walk through. I know you were referencing the channel, not the guy but I still wanted to write "Justice Owl."

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Did you mean Scowl Owl?

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Yes! That’s it.

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Semi-off-topic question, but still relevant as to legal news: With Lin Wood giving up his law license and essentially retiring instead of facing states' bar disciplinary boards, it seems unfair that all he has to do, now that he's 70 and has enough wealth to (presumably) retire comfortably. Owning 3 plantations in South Carolina and being active in politics would seem more up his alley now. But it's unfair that he's not in the news being prosecuted for his role in scheming to use the courts to attempt to fraudulently undo the 2020 election and throw it to Trump. Is he under any threat of indictment or being investigated in any of these jurisdictions? Or do the entirety of the consequences go poof if he gives up his law license, agreeing never to practice again in the US?

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I would like for Ken to name names. :)

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Question: How do pardons affect the guidelines?

E.g. If someone is pardoned of a crime, are they back to "Roman Numeral I" on the top axis? Suppose their sentence is only commuted?

Wondering because Mr. Trump has pardoned & commuted the sentences of many people who are under investigation or even indicted again.

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Great episode. You warned us about what to look for when listening or reading former prosecutors and defense attorneys. What about your thoughts on the performances of former judges interviewed for their expertise? Also, your thoughts on the obligatory interviews with former Watergate participants? Doesn't this just elevate and/or equate any presidential/executive branch legal issue to a democratic existential crisis?

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The only one I believe any more is Michael Cohen.

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founding

Why can't "we" professionalize journalism and reporting in the same way we have professionalized engineers, lawyers, and doctors? Our society expects these professions to provide honest answers when acting in their role a professionals, but allows them to have all the BS opinions they want outside of their professional duties.

How would a "Professional Journalist" have their free speech impinged if they are allowed to say anything they want as long as they make it clear that it is outside of their role as a journalist? However, when representing themselves as a professional journalist, they can state their opinions, but must be honest with whatever factual statements they present.

This seems to be a simple and straightforward solution to the problem of integrity within journalism today. This system does not seem to cause any legal issues with doctors, lawyers, and engineers, why should it cause one with journalism?

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author

This would be fine except for two and a half centuries of law.

The government should absolutely not be in the business of licensing or regulating journalists.

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founding

Why does it have to be the government? Is the bar a government agency? What is wrong with the a group such as IEEE dealing with its members (engineers) like the bar association? Couldn't you have a fully non-government agency, such as the ISO 9000 quality certification program, dealing with the issuing and certifying of quality journalists? Even a completely voluntary group of journalists that pledge to uphold basic journalism values and submit themselves to peer review processes would be better than what we have now... Which is a system where anyone, with little to no training, can put themselves forward as a journalist.

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Jul 3, 2023·edited Jul 3, 2023

It's not simple and straightforward. It's anything but simple and straightforward. To create professional accountability boards for journalists, you're going to have to codify requirements in state law (and just like doctors, lawyers, and engineers, this is done at the state level, not the federal level) for their conduct, behavior, and basic qualifications. Do you really want to have Alabama's sterling assemblage of state legislators determining what a reporter needs to know, as well as how they need to report it? Do you want an endless parade of Supreme Court cases that gradually pick apart the First amendment the way that the endless parade of abortion law cases resulted in Dobbs? Do you want journalistic standards to be re-written by a revolving door of partisans every four years? Do you want fifty separate standards for journalistic competency? Do you want a reporter working for a regional paper in Baker City, OR, to be sued by a resident of Idaho for violating their rights, even though the reporter was licensed and employed in Oregon?

Journalism has always been an imperfect, loud, messy, and variably accurate profession, mostly practiced by a conglomeration of the over- and under-educated. It needs to be that way. It's not perfect, but as soon as you start codifying how free speech should be practiced, you limit it, and once you start limiting it, it will never come back as freely as it was the day the First amendment was ratified. George Washington was routinely savaged by the press in ways that, despite his fevered protestations, Donald Trump never was.

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A BS opinion in one's own domain is unprofessionally irresponsible. By the same token and further, a BS opinion in a domain that is beyond one's profession, but which may be given even an instant of credence by extension of one's established stature in a different domain, is doubly irresponsible.

Without the constant humility that founds public service and honor, professional institutions are no more than corrupt cartels foisting fraud, and their most honest and earnest applicants are hapless pawns to a tawdry graft that has plagued our species for centuries.

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Tradition, mostly.

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Thank you. As always, interesting, and this episode gave me a chance to evaluate what legal journalism I follow and to assess what inspires me to follow it. It used to be nerdiness and amusement - though I've noticed in the last few years there's a fear component creeping in there - and that, once identified, can be improved. That's what makes the suggestions here useful in curating both sources and inclination. Thanks for the opportunity to make more strategic choices. (Though they will likely continue to include Serious Trouble, I think I got that one right.) A good 4 July to you all.

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On trusting former defense attorneys, like TFG’s attorney Tom Parlatore who go on TV: ‘So that's why I wouldn't trust anything Parlatore has to say, or any attorney who's willing to go on TV and say, "Yeah, my former client sure is terrible and maybe they're not guilty of everything, but it sure looks like they're guilty of some things." ‘

Is this justified when the client doesn’t pay his bill?

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Something not discussed in this episode: is anything said by a defense lawyer newsworthy? They can't tell us that the client admitted to the crime in private. Instead, they say "the prosecutor is on a vendetta", "we promise a vigorous defense", "the defendant denies the charges" and "my client's close associates who have turned state's evidence are disgusting criminals, scumbags and liars."

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Speaking as an attorney the answer to that question is universally 'No.' It doesn't matter that your client was a slimeball and didn't even pay his debts to you - part of the profession is (supposed to be) being the adult in the room and following the ethics rules even when they make you grind your teeth. The only time you're supposed to break client confidentiality without the client's consent is when you're actually suing a client to recover unpaid fees or putting on a defense to claims of malpractice - and even then, it's restricted to only the information needed for a claim or defense.

It's a regrettable fact that a number of attorneys will ignore the ethics rules and go on TV to trash talk their former clients anyway. I wouldn't consider those role-models, and I'd take their statements with a whole spoonful of salt.

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Curious if you have feelings on https://www.sentencing.us/ -- it seems to be a decent tool, and the creator is a DoJ attorney.

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Good point about click-bait titles, like the one you provided as an example:

Arizona Supreme Court Finds The Mormon Church Can Conceal Crimes Against Children Because Of Clergy Privilege

Such click-bait articles present a warped understanding of important issues. In this instance, the question of clergy privilege is a challenging one because of the tension between religious liberty and protecting children. But if you read click-bait crap, you will never learn about that tension and the range of nuanced arguments supporting and opposing exceptions to child abuse reporting laws.

Here is a well-written article with an accurate title:

Arizona Supreme Court upholds Latter-day Saint clergy privilege in child abuse case

https://www.sltrib.com/religion/2023/04/11/arizona-supreme-court-upholds/

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How often are you going to have a podcast?

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author

We come out more than 40 times a year. The next episode has been recorded will come out later this morning.

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