Welcome

to “The Criminal Lawyer,” a law blog by Nathaniel Burney.

Here you’ll find essays, rants, and observations about the law.
Mostly criminal law. Mostly dashed off without much revision, if any.
(Trigger Warning: Contains Snark)

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Archives:

October 2016

28: On Jury Nullification (3)

April 2016

14: Why Prison? (2)

March 2016

17: Drunken Double Standard? (9)
03: Extending the Right to Counsel? (2)

February 2016

11: A Tiny Bit More on Qualified Immunity (0)

November 2015

11: A Prosecutor Defends Eyewitness Identification (1)
02: Standing to Sue the NSA? (3)

October 2015

12: Crime and Punishment (5)

September 2015

May 2015

20: A Modest Proposal (2)
01: A Fundamental Disconnect (0)

April 2015

27: Inexpert Testimony (2)

March 2015

31: Undoing overcriminalization (1)

December 2014

16: SCOTUS makes a mistake anybody would have made. So it’s okay, right? (3)
04: Training and Experience (6)

November 2014

25: Ferguson Q&A (2)

November 2013

05: How to be a good lawyer: Keith Lee’s “The Marble and the Sculptor” (2)

October 2013

24: Let’s Make a New Law! (7)

September 2013

06: Q&A Dump (0)

August 2013

19: Is Ray Kelly a Complete Idiot? (3)
19: Too Many Lawyers? (4)
05: On the DEA’s Special Operations Division (1)

July 2013

31: No, that’s not what the Fifth Circuit said. (2)
23: Ray Kelly on Stop-and-Frisk: You saved HOW many lives? (5)
16: Confused about the outcome (7)
16: Hello again (0)

April 2013

22: On this latest Miranda thing… (4)

March 2013

29: Drawing the Line (0)
08: Understanding the law (1)

February 2013

09: Why Are You Here? (6)

January 2013

02: Statistical ranking of defense lawyers? Maybe, but not this way. (6)

December 2012

20: Deterrence has nothing to do with it. (0)
14: Answering Your Most Burning Questions (1)

September 2012

11: Finished! (17)

August 2012

13: On Strict Liability, Regulatory Offenses, and Overcriminalization (3)

July 2012

11: A PhD in Law? (6)

June 2012

11: On Overcriminalization: There’s nothing new under the sun (7)

May 2012

17: 100% (5)

April 2012

March 2012

28: Better Criminal Lawyering through Smart Risk-Taking (11)
13: Not Ready for Prime Time: Brain-Scan Reliability in Question (2)
02: Making Drug Enforcement Work (3)

February 2012

28: Is Open File Discovery a Cure for Brady Violations? (5)
07: Plugging Away (3)

January 2012

24: When Incarceration Shot Up and Crime Plummeted (2)
16: Statistics and the Serial Killer (3)
12: Correct, but Wrong: SCOTUS on Unreliable Eyewitness Identification (0)
11: Still here (0)

December 2011

21: Be Right Back (6)
14: Exceeding Their Authority: When Bureaucrats Create New Crimes, Justice Suffers (4)
09: Worth Watching (1)
02: So apparently we’ve got a Tumblr (5)
01: Thanks! (4)

November 2011

28: “More Law?” – Pure Sociology Gets It Wrong (3)
26: Read These (2)
18: Free Time (2)
18: “Collars for Dollars” Plus “Occupy Wall Street” Equals What? (1)
15: Trying Out a New Comment Thing (7)
14: The Well-Educated Citizen (5)
11: Because Nino Said Yes, the Chief’s Saying No? To What Extent Does a Justice’s Vote Depend on the Others’ Votes? (0)
09: The Science of Ethical Relativism? (1)
07: A Neat Primer on Neuroscience and Criminal Law (2)
01: Dear Whiners: Shut Up. (5)

October 2011

31: When Is It Unfair to Get a Fair Trial? (2)
31: Using Neuroscience to Gauge Mens Rea? (3)
31: Happy Halloween (0)
25: The Legal Profession Needs More Bars to Entry, Not Fewer (4)
20: When All Eyes are On Them (0)
20: Myth #3: “I was Entrapped!” (2)
13: Tarnished Justice: Cops Meet Their Quotas, Even When Crime is Down (1)
06: The Criminal Lawyer Turns 3 (5)
05: Why Should I Have to Pay for a Lawyer When I’m Innocent? (10)
04: Falling Economy, Falling Crime (1)

September 2011

28: Too Many Federal Crimes, Too Many without Mens Rea — Do We Have a Movement Yet? (3)
20: What Would Plato Do? (2)
11: Making the Jury’s Job Easier – and Better (2)
06: Modern Law Ain’t Modern Art (0)

August 2011

30: Straight Talk (1)
19: So You’re a New Lawyer Hanging Out Your Shingle? Here’s Some Advice (7)
18: Who Are the Real Victims of Insider Trading? (9)
16: Top 5 Ways to Increase Your Blog Traffic (2)
12: You’re Smart Enough to Graduate Law School, Are You Stupid Enough to Sue It? (5)
12: On the Usefulness of Law Reviews (0)

July 2011

26: The Ten-Percent Solution (0)
25: Too Many Crimes — Time for Change (4)
16: Answering Your Most Pressing Questions (0)
09: Economics and Rising Crime Rates (4)
02: Manhattan D.A. has problems. This may be why. (1)

June 2011

29: Time to Lose the Guidelines? (2)
29: Even Worse than Eyewitness IDs: The Police Sketch (5)
28: Where will all the extra lawyers go? (3)
14: Prison: A Problem, Not a Paradox. Is It Solvable? (6)
06: No Jobs for Your JD? An Economist Explains What Happened. (17)
02: Can Computers Replace Lawyers? (4)
01: Stop the Presses — Holder Does Something Right (0)

May 2011

25: Is Law School Right for You? Ask Yourself 5 Simple Questions. (118)
19: Why Write? (2)
17: Making a Mockery (3)
17: Hey feds, get off of my cloud (Followup) (0)
16: Supremes Adopt and Define New “Police-Created Emergency” Doctrine (2)
12: Feeling Left Out (7)
09: A Slightly Longer Answer (1)
05: We’re Glad You Asked That (2)

April 2011

29: Rethinking Recidivism (1)
26: Is it a victory if you have to fight the battle all over again? (0)
23: Profiling Doesn’t Work? More Profiling! (6)
21: What’s the remedy for blatant wiretapping violations by the feds? Finger-wagging, sure. But suppression? No way. (1)
16: Gee, thanks (1)
08: Hey, feds, get off of my cloud (3)
07: Watch this space (1)

March 2011

26: An Unnecessary Rule: FBI Memo on Mirandizing Terror Suspects is a Waste of Paper (6)
16: QFT (2)
11: An Endless Trial (0)
03: Upgrade Achieved (0)
02: Insider Trading, Expert Networks, and a Big Honking Due Process Violation (3)

February 2011

14: ABA Tells Courts to Provide Detailed Brady Checklists (4)
10: Online Advice (0)
04: How to Win Friends and Influence People in the Digital Age (3)

January 2011

28: Playing Games with Client’s Lives (3)
21: More Google Mistrials (0)
21: Still here (0)
10: Need Some CLE? (0)
04: Oh, Scalia (0)
03: Registering the Wrong People (39)

December 2010

27: Self Defense Law for Dummies (3)
23: Is New York City’s Gun Law Unconstitutional? (13)
17: White-Collar Wiretaps (0)
17: Right for the Wrong Reasons: Why terrorists and enemy combatants don’t belong in civilian criminal courts (1)
13: Why Become a Lawyer? (9)
13: Excellent Con Law Exam (1)
10: Happy Human Rights Day (0)
08: States Consider Ending Capital Punishment Because It’s Too Damn Expensive (4)
08: Defending Assange (6)
07: Cross-Examining the He-Said/She-Said Witness: 3 Simple Steps (16)
01: Study Finds Rampant Prosecutorial Misconduct in California (3)
01: Grammar Police Fail (2)

November 2010

28: A Tactical Wheel for the Defense? (1)
24: Learning About Lawfare (1)
23: The Feds’ Insider-Trading Gamble (0)
17: They’re Not on Your Side (7)
15: The Law Students’ Lament (6)
12: Something to Consider Before Speaking to Law Enforcement (0)
05: Prison Begets Prison… and the point is? (3)
05: Let’s Take a Show of Hands (2)
03: In Lieu Of… (1)
01: Reading list (0)

October 2010

30: Decent, law-abiding citizen? Go directly to jail. (8)
25: How the Feds Enforce the FCPA (10)
22: On the Manhattan DA’s New Public Integrity Unit (0)
14: Text or Email, Don’t Call (1)
14: Police Allowed Into Home, Shoot Dog and Unarmed Suspect (0)
11: Nullifying Nullification (2)
08: Why Innocent People Confess — Update (0)
08: TCL Turns 2! (0)
04: Temporary Incomprehension (1)
01: Just Around the Corner (0)

September 2010

30: “This offer is only good today.” (0)
29: That Good, Huh? (1)
28: Instead of coming up with an original idea, we prefer to tell you why yours is wrong. (0)
28: Sad (0)
28: Tape Away – Maryland judge rules that cops have no expectation of privacy during traffic stops (3)
23: A Pattern of Misconduct by Federal Prosecutors? (3)
21: On Government (0)
17: The Rules of the Game (3)
14: Why Innocent People Confess (12)
13: By the way… (0)

August 2010

25: Innocence Not Proven (0)
20: Terrorism and the Courts: Kennedy Misses the Point (2)
18: The Holdout (2)
08: All the Wrong Reasons (5)
04: What Nobody’s Mentioning about the New Crack Sentencing Law (1)
04: Taking DNA Samples at Arrest? Not a Problem. (0)
03: More on the NYT’s Absurd Article (0)

July 2010

27: The New York Times Gets It Wrong… Again (1)
23: “Unprecedented” Disrespect for Police is Well-Deserved (8)
15: Will New York Get a New Emergency Exception? (0)
14: Character Matters (3)
14: Don’t Abolish the Bar Exam — Change It (4)
08: How the Jury System Defeats Justice (5)
07: It’s Just Stupid: How the feds screwed up their lawsuit challenging Arizona’s immigration law (3)
02: Where did the week go? (0)

June 2010

25: Unhappy Student or Dissatisfied Lawyer? Sorry to Ask, but Why are You Still Here? (9)
24: Skilling Decision: Good for Justice, Bad for Jurisprudence (2)
22: Another reason to hate NY’s “Hate Crimes” law (2)
18: Myth #2: Cops Can’t Lie (38)
17: Criminal Law Myth #1: You Can Drop the Charges (7)
17: Dammit, Dillon! (0)
17: “Collars for Dollars” (4)
15: Is Dolan a Clue to the Upcoming “Honest Services” Decisions? (1)
15: Can Yoo Be Sued? (1)
14: Deadlines, Schmedlines (1)
13: Justice Souter: Closet Originalist? (2)
10: Defining “Aggression” (4)
07: Prosecutorial Extortion (4)
02: The Suspense is Killing Us (0)
02: Upset by this week’s Miranda decision? Get over it. (1)

May 2010

April 2010

27: Gawker Gets It Wrong (8)
23: Dear HuffPo: Here’s why we have statutes of limitation (15)
21: 7 Criminal Defense Lawyers to Avoid (10)
20: Supreme Court Finds Animal-Cruelty Law to be Unconstitutionally Overbroad (1)
13: It’s the Culture, Not the Caseloads (12)
07: Stop the Music – 3rd Circuit Slams DOJ’s “Musical Chairs” in Securities Fraud Prosecution (3)
01: On Deportation and Duty (0)

March 2010

29: Double Jeopardy Deadlock (5)
17: Bacterial Fingerprinting? Don’t Hold Your Breath (2)
16: Imperial Torture Memo Declassified (9)
15: News Flash: Clients Value Trust More Than Ability (0)
10: What Not to Say at Sentencing (2)
09: Coming Soon: Full-Genome DNA Analysis (0)
08: DNA Evidence: Good Science, Bad Results (3)
01: Criminalizing the Contractual: Have We Finally Seen the End of “Honest Services” Fraud? (1)

February 2010

24: New 14-Day Rule in Miranda-Edwards Cases (3)
22: Beatings & Batson (1)
18: What the…? (0)

January 2010

December 2009

22: Shameless Self-Promotion (0)
15: Writing Tips from the Judge (0)
15: Conviction Rates Matter (3)
09: First Look: “10 Rules for Dealing with Police” (1)
08: Supreme Court Noir (0)
07: Fourth Amendment Screwup: Supremes Get the Law Right, but Flunk the Jurisprudence (1)
03: Is Delay in Capital Appeals an 8th Amendment Issue? (0)

November 2009

30: Stop the Presses: Drug Court Works (0)
25: Steering the Broken Machine (3)
23: More Harm Than Good: Why Capital Punishment Doesn’t Work (5)
20: We’re Back, Did Ya Miss Us? (2)
17: Something to Tide You Over (0)
02: Supremes Punt, but Stevens AND Scalia Agree: It’s Time to Clarify whether Feds Can Still Prosecute Old Civil Rights Crimes (0)

October 2009

30: Why Conservatives and Defense Lawyers Should LOVE the New Hate Crimes Law (2)
24: Feds Could Lose Galleon Case (3)
21: We Missed Our Own Anniversary (1)
19: Shameless Self-Promotion (0)
08: How the Court Should Rule in Shatzer (1)

September 2009

30: Supreme Court to Decide Whether Second Amendment Applies to the States (3)
22: Pre-emptive Self Defense and International Law (2)
15: Rats! (0)
02: Math Students Ace the LSAT, Pre-Law Students Suck (6)
01: Ninth Circuit Bungles Math, Can the Supremes Fix It? (2)

August 2009

27: Check Out This Blog (4)
24: Billable Hours vs. Flat Fees (3)
19: Dersh Being Disingenuous (0)
18: Yet More Prosecutorial Misconduct by the Feds (0)
17: Wow! Supreme Court Puts Actual Innocence in Play (2)
13: 5 Tips for a Killer Appellate Brief (7)
11: Hoist on Their Own Petard — How Forensic Accountants Catch Small-Time Scammers (3)
05: Allegations of Union Corruption in NYC? We’re Shocked… Shocked! (1)

July 2009

28: D.C. Circuit: No Extra Prison Time for Rehabilitation (0)
22: Is the Law “Elitist?” Of Course It Is. So? (1)
20: 7 Criminal Defense Lawyers to Avoid (1)
13: 20 Years Sounds About Right for Dreier (3)
03: MySpace Judge Agrees with Us (1)
02: How Would a “Cultural Relativity” Defense Work? (2)

June 2009

30: Are White Collar Sentences Too Harsh Now? (1)
28: The 7 Most Baffling Criminal Defenses (that sort of worked) (0)
25: Lab Report’s Not Enough — Chemist Must Testify (1)
25: No More Strip Searches in Schools (1)
19: Does Half-Right Count? (0)
17: Defense to Win All Remaining Supreme Court Cases (3)
16: The Prosecutor’s B.S. Meter (2)
08: No Org Chart Required: RICO “Enterprise” Needn’t Be Distinct from its Activities (9)
04: Following the Law = Pro-Prosecution? Since When? (4)
01: Supreme Court Smackdown: Sixth Circuit Gets Lectured on Double Jeopardy (1)

May 2009

April 2009

March 2009

February 2009

January 2009

December 2008

05: OJ Simpson Sentence Confuses Press (2)
04: Stop the Presses! Threat of Punishment Might Work! (2)
03: Upping the Ante in Darfur: ICC Prosecutor Warns of Reprisals (1)
02: MySpace Conviction Probably Exceeded Scope of Law (1)

November 2008

October 2008

28: Milberg Partners Sentenced for Class-Action Kickbacks (0)
23: Child Porn Sentencing At Issue (1)
21: Will SCOTUS Reopen Question of Discriminatory Application of the Death Penalty? (0)
20: Thought Police? (1)
17: Gitmo Prosecutors Trying to Re-Sentence Hamdan (2)
16: Kozlowski Loses Appeal (1)
15: Fractal Weirdness: Pa. Supremes Mis-read Probable Cause, SCOTUS Denies Cert. (1)
15: Opening Statements in KPMG Trial Today (3)
14: SCOTUS Clarifies Cruel & Unusual Execution, Without Saying a Word (0)
13: Shameless Self-Promotion (0)
13: Fractal Weirdness (0)
08: Three US Attorneys Investigating Lehman (0)
06: 2d Circuit Limits Expert Testimony by Officers (2)
06: Welcome to the Criminal Lawyer (0)