Author: TSA Press

When indicted for murder, if it’s clear the person charged committed the crime, there are really only a few defenses.  None of them are easy.

One is self-defense, but this can only be used if the defendant used a force equal to the force employed against him and if he had no safe way to escape.

Then there’s the insanity defense where a person experiencing a psychotic break kills someone who he believes, for example, to be an alien.  If the defense is accepted by a jury, the defendant does not go free; instead, he’ll be committed to a psychiatric institution until deemed no longer dangerous — a fate more uncertain then getting a fixed jail term.

The next set of defenses can reduce a case of murder to manslaughter.  Where a defendant never intended to kill anyone, but the victim inadvertently dies, manslaughter can be charged — for example, in a bar-fight case where an intoxicated patron hits someone over the head with a bottle intending to stun him but instead killing him.

There’s also the defense of “extreme emotional disturbance” (EED).  This defense is invoked when a particular event triggers a person’s anger to such an extent that he can no longer control his actions.  According to the jury instructions, “the defendant must have had an emotional disturbance so extreme as to result in and become manifest as a profound loss of self-control.”  These so called “crimes of passion” if believed by a jury, reduce the charge of murder to manslaughter and greatly lower the sentencing numbers.

Examples of an EED defense include situations where a wife, beaten by her husband for years, snaps one night and suffocates him.

EED defenses are not spelled out by statute. A defense attorney can, if backed by psychiatric findings and experts, proffer any explanation supporting why a client suffered a “profound loss of self-control” as long as a jury finds that loss of control to be reasonable from the defendant’s viewpoint.

Recently, the New York legislature banned a particular flavor of EED defense — the “gay panic” defense — and while I understand the rationale behind this move, I’m always disturbed to see any defense fall by the wayside no matter how politically incorrect the defense might be.

The new law affirmatively prohibits a defendant’s EED defense if based on “the discovery, knowledge or disclosure of the victim’s sexual orientation, sex, gender, gender identity, gender expression or sex assigned at birth.”

For example, if an extreme emotional response leading to murder is provoked when a man discovers a person he believed to be female has male genitalia, he can no longer make out an EED defense.

No matter how much I personally agree that having an emotional disturbance due to a person’s sexual orientation is inappropriate, old-fashioned, and not a good excuse for losing control, we, unfortunately, live in a world where this still happens.

Even if the state didn’t legislate the defense out of existence, a jury would in all likelihood reject it anyway as unreasonable.  EED defenses come up only very rarely.  They even more rarely succeed.  That’s because jurors don’t like giving defendants a benefit for losing control and killing someone, no matter the cause.  It’s the exceptional case where the defendant is so sympathetic, that the defense has even a smidgen of a chance of prevailing.  Maybe in a case where a teen had been repeatedly sexually abused by her stepdad then turns around and kills him to protect her younger sister, a jury might find the murder mitigated by her circumstances. But even then, she’s likely to get a hefty jail sentence from the judge for manslaughter.

In this day and age, especially in New York City, any proffered “gay panic” defense (even if it still existed) would likely be rejected whole cloth as out of touch with reality.  It didn’t need to be legislated out of existence.

We now get to Paul Manafort.  Manafort pleaded guilty to financial fraud charges in federal court and has begun serving a 7.5-year prison sentence.  But, in spite of the jail time, critics still fear he might receive a pardon from his former employer, President Donald Trump.

Last week, he was arraigned in New York State criminal court on largely the same charges.  If convicted, no Trump pardon could save him from whatever sentence he’ll receive.  The law that permits prosecution in both state and federal jurisdictions for the same crime was recently upheld by the U.S. Supreme Court and hailed by progressives as a way to make sure Manafort gets his just deserts.

Yet, although the ends-justifying-the-means rationale may be applauded in Manafort’s case, there are thousands of other defendants who suffer unfairly because of this end-run around double-jeopardy prohibitions.

I’ve represented young men who pleaded guilty to small-time, one-bag drug sales in state court for offers of probation.  They call them “paper felonies,” and never expect the convictions to come back to bite them.  However, often these same convictions are used in subsequent federal prosecutions as pieces of the jigsaw to prove larger-scale narcotics trafficking.  This is neither fair, nor necessary.

Lauding changes of the law or interpretations of what already exists to favor a particular agenda — like banning  “gay panic” EED defense or permitting dual prosecution in state and federal court for the same crimes — may be satisfying in the short run, but in the long run will come back to haunt us.

The state and federal governments are powerful entities. They’ve got every resource at their command.  Eliminating defenses or sidestepping double-jeopardy protections because we like the outcome in certain cases will ultimately undermine the rights of all defendants and chip away our system of due process.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Duncan Hunter loves America. The California congressman risked his life in Afghanistan, and he’s still making heroic sacrifices for the American people on the home front. This great patriot is willing to lay down his body all night long next to lobbyists and even legislative assistants, in service of his beloved constituents. And instead of awarding him hazard pay and overtime, Democratic prosecutors are engaged in a witch hunt to put him in jail for the crime of loving Donald Trump too much. 

So sayeth Duncan Hunter’s lawyers, who justified his perennial philandering with lobbyists, arguing, “However unpopular the notion of a married man mixing business with pleasure, the Government cannot simply dismiss the reality that Mr. Hunter’s relationships with Individual’s 14-18 [sic] often served an overtly political purpose that would not have existed irrespective of his occupation.” Which is likely to impress Judge Thomas Whelan almost as much as it impressed the congressman’s wife, Margaret.

In their motion to exclude details of Congressman Horndog’s infidelity as “salacious evidence” which “provides welcomed fodder for the media,” his lawyers argue that “the Government fails to meaningfully consider the fact that, just as with Mr. Hunter’s platonic relationships, his friendships often blur the line between personal and professional, which is a widespread occurrence in modern politics.” Because everyone in the “Bros Caucus” sleeps with lobbyists and, so long as they talk about the people’s business for a few minutes before getting busy, it’s all good?

Understandably, Hunter is loath to see “Individual 14” on the witness stand describing exactly what she and the congressman were doing on the night of June 21, 2011, before she vacated the D..C hotel room so Hunter could spend the next two nights in the same room with his wife.

Another example of Hunter using campaign funds to pursue his personal relationship with I-14 came in June 2011, surrounding a dinner event held at a D.C. hotel. Margaret Hunter had planned a trip to Washington, and reserved a room at a Capitol Hill hotel for June 21 through 24. But she later changed her travel plans, and rebooked her flight from San Diego to arrive the next day, June 22. As it happens, Hunter was scheduled to attend an annual dinner event for a large non-profit advocacy group held on June 21, which I-14 helped to organize— and which was taking place at the same hotel. Hunter kept the June 21 room reservation and spent the night there with I-14. They paid the $455 hotel bill, for all three nights, using campaign funds.

But U.S. Attorneys have argued they need to prove that Hunter was actually engaged in “a series of intimate personal relationships” to establish that he wasn’t just having all-night policy discussions on a “double date” road trip to Virginia Beach with another congressman and their two lady friends. A trip paid for on the campaign credit card, and for which he “mistakenly” claimed a mileage reimbursement despite the fact that Individual 14 was driving her own car.

Because when the feds have you dead to rights (allegedly) and you make them chase you down for years on end, leaving an endless trail of motions in your wake, those prosecutors tend to get a little testy.

We have no idea what Additional Potentially Sensitive Conduct the government is alluding to, but it’s probably not knitting lessons.

Hunter’s lawyers, who appear to be getting paid by the page, filed an avalanche of motions last week. In addition to his embarrassing extramarital adventures, Hunter would also like to exclude evidence that his family operated continually in the red — 1,110 overdrafts resulting in $37,761 in fees over seven years — which may have led them to lean on the campaign credit card to stay afloat. And he’d like to have the trial moved out of San Diego County, where “jurors are just a keystroke away from hundreds of thousands of press articles and blog postings online, most if not all of a very negative nature.” He’d prefer a venue which went for Donald Trump by a minimum of 60 percent, preferably one without internet access.

The government pointed out that the Boston Marathon bomber and Enron’s Jeffrey Skilling couldn’t get a venue change, so the congressman can stand trial in a district he just won handily after the government dropped a 60-count indictment against him.

But it wasn’t all bad news. We did get this candidate for best footnote in a federal filing for June of 2019.

Regarding the rabbit, the response explains, “This is a tale of two rabbits. One rabbit [named Cadbury] was kept in Hunter’s official office and another rabbit was owned by Hunter’s children.” The response acknowledged that the family rabbit—though not the “official office” rabbit—traveled with the Hunter family. But it reported, incorrectly, that the rabbit’s airfare fees were paid using reward miles rather than campaign funds.

What a way for the family bunny Eggburt to find out that Congressman Hunter’s been stepping out with another rabbit from work. Those prosecutors are brutal!

Response in Opposition Government’s Motion to Admit Evidence of Use of Campaign Funds to Pursue Personal Relationships [USA v. Hunter et al, No. 3:18-cr-03677-1 (S.D. Cal. Jun 28, 2019)]
Motion to Admit Evidence of Defendant’s Use of Campaign Funds to Pursue Personal Relationships [USA v. Hunter et al, No. 3:18-cr-03677-1 (S.D. Cal. Jun 25, 2019)]
REResponse in Opposition to Hunter’s Motions (1) to Dismiss Indictment for Violation of Speech or Debate Clause of the Constitution; and (2) for Disclosure and Production of Grand Jury Materials [USA v. Hunter et al, No. 3:18-cr-03677-1 (S.D. Cal. Jun 29, 2019)]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

I’m about to celebrate 10 years as an in-house lawyer.

Approaching my “tin or aluminum” (are they kidding me?) anniversary, I was thinking about the things that we did to improve our in-house litigation function.  All the changes are obvious, but not everyone implements them, so here they are.

Retain the right outside counsel for the case.

When I arrived at the joint, I saw some terrible mismatches — generally big, expensive law firms defending two-bit cases.  Don’t do it.  Some large, dangerous cases may demand fancy outside counsel — that’s a matter of taste — but tiny cases almost never demand fancy outside counsel.  If a case poses no reputational and little financial risk, then retain a smaller, less expensive firm.  There’s no reason to spend more in defense costs than the value of the case.

Always retain competent outside counsel.

Retaining small firms does not mean retaining bad lawyers.  (Frankly, don’t retain incompetent lawyers at big firms either.)  You’ll see a bunch of briefs written by your outside counsel.  You’ll have opportunities to see your counsel in action — arguing motions, if not trying cases.  Don’t cheer along unthinkingly for the person who’s representing you.  If the lawyer’s no good, replace the lawyer.  Eventually, you’ll have a roster of outside counsel you can trust.

Enter alternative fee deals.

If your corporation faces a fair number of lawsuits, then you can save money by bundling.  I don’t necessarily mean bundling 50 similar product liability cases and asking for flat fee bids.  Even if your firm confronts 25 real estate cases, 25 employment cases, 25 malpractice cases, and 25 breach of contract cases, those 100 cases can be bundled (to the right firm), and you can reduce your costs.  Many firms would be delighted to quote you a lower price for the certainty that the firm would be handling 100 cases next year.  Ask for bids.  You’ll be surprised what you’ll hear, and you could save a ton.

Forecast reserve changes.

Reserves sometimes change instantaneously, and there’s nothing you can do about that.  But you can sometimes sense that a reserve may change many months in advance.  Suppose you anticipate that you’re likely to win a case; you’re not allowed to take a reserve under GAAP.  But you could lose, and you know when the case is going to trial.  Predict that, after trial, the reserve may change.  The finance department will appreciate the advance notice.

Remember that jury trials differ from bench trials.  A jury will likely deliver a verdict within a day or two after the evidence closes.  The reserve will thus change, if at all, roughly at the end of trial.

Not so for bench trials.  The judge may not decide a case until many months after the evidence is submitted.  Don’t predict reserve changes that are unlikely to occur:  If a bench trial ends in June, you probably won’t see a reserve change, if at all, until the third or fourth quarter.  Make your predictions intelligent.

Insist that your trial teams look like your juries.

Law firms delight in assigning three white males to trial teams, because law firms often have three white males to spare.  But your jury is not going to be entirely old, white male, and your trial team should resemble your jury.

Your trial team may not be as diverse as your jury, but there’s no reason why you can’t discuss with outside counsel, long in advance, which women or people of color will help try a case.  And remember:  Creating diverse trial teams does not mean “stupid pandering.”  You can’t have a young, African American woman sit at counsel table throughout the trial and not play a speaking role.  Your diverse members of the trial team should play significant roles at trial, so the jury doesn’t perceive you to be pandering.

I suppose that, if it really took me 10 years to learn that, then I’m a slow learner.

But it’s my gift to you.  Please make those change promptly upon going in-house.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

TINASHE MAKICHI

Zimbabwe diamonds have been under the spotlight since commercial production started in 2009 and seemed to have been passing all compliance issues after the formation of the Zimbabwe Consolidated Diamond Company (ZCDC) in 2015. However, reports that ZCDC executives had opened the fields to small scale miners was judged as being tantamount to conflict creation.

Blue Nile, one of the top jewellers in US, said the move to stop diamonds purchases from Marange was to ensure that high ethical standards are observed when sourcing jewellery and diamonds.

“Blue Nile is committed to ensuring that the highest ethical standards are observed when sourcing its diamonds and jewellery. Because of the reported human rights abuses in Zimbabwe’s Marange diamond district, Blue Nile will not purchase or offer diamonds from that area,” it said.

“As a responsible member of the diamond and jewellery industry, we are working with our suppliers to ensure our consumers receive only the finest goods procured from ethical sources.”

The move by Blue Nile comes at a time a coalition of civic organisations is lobbying for the blacklisting of locally produced diamonds citing growing human rights violations on unregistered artisanal miners.

Treasury projects the economy to register a three percent growth driven by strong growth in the mining sector, particularly gold, chrome, coal and diamonds.

Now pressure is mounting on global diamond trade watchdog Kimberley Process to widen the scope of what is termed conflict diamonds. This came after security officials descended on illegal diamond panners in Manicaland resulting in a fatality.

The move by Blue Nile also comes after an illegal diamond miner last month was shot dead by a ZCDC security guard. Terrence Masendeke, from Jori village under Chief Nyashanu, was part of the over 300 illegal diamond panners who invaded Bravo near Muchena in the Marange diamond fields, when he was shot dead on May 15.

No comment could be obtained from Mines and Mining Development minister Winston Chitando as his mobile number went unanswered. He did not respond text messages sent to his number.

Centre for Natural Resources Governance director Farai Maguwu said the move by diamond jeweller was going to have a massive impact on the growth prospects of the local diamond sector.

The United States of America has a huge network of diamond jewellers and just a single negative issue raised by one jewellery company will have a cascading effect on the whole network.

“The human rights abuses are ongoing in the Marange diamond fields and it’s shocking that nothing tangible is being done to address that. Miners are being shot there and what needs to be done to address issues in Marange is not even difficult, ZCDC just needs to arrest people rather than shoot them,” Maguwu said.

“Most diamond jewellers obviously will raise their reservations in the event that issues of conflict diamonds are raised.  As you are aware USA has a network of hundreds of jewellers and when one member raises issues that will definitely cascade to all members in that network.

“As civil society organisations we have raised these issues at several platforms including KPCS [Kimberly Process Certification Scheme].”

In addition, the local diamonds sector also came under spotlight after it emerged that a controversial Lebanese businessman, Robai Hussein, was actively involved in the sorting of the precious stones in violation of global standards.

Hussein, who has since been deported by Zimbabwean immigration authorities, was reportedly using government’s metallurgical facilities for washing of his gems away from the radar of global diamond watchdog, KP.

Hussein, according to sources, was not licensed to buy diamonds in Zimbabwe which was in contravention of the KPCS minimum rules which require exporters to have KP certificates and also emphasises on traceability of origin of the gems.

Zimbabwe struggled to get KP certification until late 2011 due to incidents of violence and gross human rights abuses around diamond mining in Chiadzwa with concerns over transparency in processes and what was termed illicit diamond trade including smuggling.

ZCDC has been hopping from one scandal to another and last month fired seven senior executives, including CEO Moris Mpofu, in a move meant to refocus the business in line with prevailing operating environment and the “need to rebuild public and market confidence”.

Other executives shown the exit door were Charles Gambe (chief finance officer), Newton Demba (supply chain executive), Masciline Chikoore (chief human resources executive), Clemence Munoriyarwa (chief security officer), Andrew Murwisi (engineering executive) and audit executive Cleopatra Mutisi.

Mpofu and Gambe were arrested last on abuse of office charges. Their case is awaiting trial. Last month, Government rescued the ZCDC and stopped a creditor who was circling over the diamond producer with a writ to attach diamond over a US$14m debt.

Post published in: Business

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)

The UNCAT makes it clear that torture is unjustified under any circumstances. In terms of this convention, torture is ‘any act by which severe pain, or suffering, whether physical or mental is intentionally inflicted on a person… by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’ In addition to considering prisons, police custody and allegations of war crimes; UNCAT also looks into how society’s vulnerable groups who are at risk of ill-treatment are treated.

The Zimbabwean status quo

Zimbabwe has not ratified the UNCAT, and at present, there is no specific law that criminalises torture in Zimbabwe. Reprieve is thus found in various clauses of the Constitution of Zimbabwe. The Zimbabwe Human Rights NGO Forum (the Forum) has been litigating for victims of organised violence and torture since 1998 to bring perpetrators of violations to book. On 18 June 2019, the Forum launched its anti- impunity report, highlighting the detrimental effects impunity has on society as a whole. It further posited recommendations to the Government of Zimbabwe on dealing with impunity to promote justice and accountability.

Despite litigation efforts and awards being granted in favour of victims, impunity remains a problem through the total disregard of payment of damages by the State. With the limitations posed by the State Liabilities Act, victims cannot execute against State property and are left in a vulnerable state. Below is a schedule of outstanding judgment debts which the State is yet to honour.

The right to redress

After ill-treatment, torture or any human rights violations, victims should be redressed. It is a fundamental principle that ensures that there is accountability and effectively works towards the fight against impunity. Victims should be placed in a position where they can rebuild their lives at all costs.

Report violations by the Security Services

The Forum encourages citizens to report violations by the security services on our anti-impunity platforms to bring about accountability and fight impunity.

Call – Econet Toll Free: 08080 242
NetOne Toll Free: 08012 020
SMS: – Econet: 0772 411 124 NetOne: 0712 844 954
Ushahidi Whatsapp: 0772 411124

Post published in: Featured

* In case you missed it, Senate Majority Leader Mitch McConnell said he’d be willing to entertain a Democratic president’s Supreme Court nominee in 2021 because it would be “politically unsustainable” to hold open a vacancy for so long — but that doesn’t mean there’d be a confirmation. [POLITICO]

* It’s sick that we need a federal court order to get this done, but… conditions for migrant children must be improved immediately at Border Patrol facilities in Texas because right now, they “could be compared to torture facilities.” [New York Times]

* A judge has permanently enjoined the Trump administration from diverting $2.5 million in military funds to construct a wall on the southern border. We imagine there will be some Twitter rant about “Obama judges” coming soon. [The Hill]

* October Term 2018 was pretty strange and we saw SCOTUS justices making strange bedfellows in their opinions, with Justices Gorsuch and Kavanaugh joining the high court’s liberals in the majority for one of the most FUCT-up cases. [NBC News]

* Hoping to open your own firm or join a small law firm after graduation from law school? If that’s the case, then you might be interested to know that average compensation in this area of the legal profession is down, with women earning incomes 36 percent lower than their male counterparts. [Law.com]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

We are assisting an AmLaw 50 law firm in New York, NY, on a search for a general commercial litigation associate with three (3) to five (5) years of experience.  Federal clerkship preferred, but not required.  This is a great opportunity for a litigation associate interested in working on large litigation matters.  A JD from a nationally recognized law school and admission to the New York bar is required.

To learn more, submit your resume at jobs@kinneyrecruiting.com.

It is just one aspect of the country’s dire economic difficulties as official inflation nears 100 percent and supplies of daily essentials such as bread and petrol regularly run short.

“If you want to work, you have to be here overnight and start when the electricity comes on until it goes off around 4:00 am,” Benhura, 32, told AFP as he made some wooden backrests for chairs.

At the open-air Glen View furniture market in Harare, Benhura welds steel frames for chairs and grinds off rough edges in the darkness, and then returns to do his manual woodwork in the daylight.

Zimbabwe — where the economy has recently lurched into a fresh crisis — introduced rotational power cuts of up to 19 hours a day earlier this year, forcing many to do their ironing or cooking in the dead of night.

For Egenia Chiwashira, a resident of the poor Harare suburb of Mbare, the outages are a grim burden.

The mother of three in her 40s says she can barely afford to feed her family, let alone pay for a generator.

– ‘We are in darkness’ –

“To cook porridge for my children needs electricity, also for me to prepare myself something to eat,” Chiwashira said, while stoking a fire she had made outside her house to prepare supper.

“We are always in darkness. It’s not easy. Life in the city is tough without electricity. You have to buy firewood unlike in rural areas where you can fetch it in forests.

“I can’t afford to buy both wood and candles, so my children cannot do their schoolwork in the evening.”

Zimbabwe last month introduced rolling electricity power cuts known as “load-shedding” due to low water levels at the Kariba hydro-power station, as well as the country’s crumbling power infrastructure and lack of funds to pay for energy imports.

The ZESA power utility said cuts would be imposed between 5:00 am and 10:00 am and 5:00 pm and 10:00 pm, but they often last longer.

“Last week we had no electricity on Friday, Saturday and Sunday,” Chiwashira said. “We only got supplies back on Monday afternoon.”

Energy minister Fortune Chasi has pledged the outages would be reduced, and urged consumers to pay their bills to enable ZESA to buy more power from neighbouring countries.

“We will be turning the corner pretty soon,” Chasi told a post-Cabinet briefing this week, adding that ZESA had just paid a $20-million debt to neighbouring South Africa.

South Africa’s state-owned energy company Eskom on Friday denied the money had been paid.

– No post-Mugabe upturn –

One of few to see an improvement in business is Simba Vuremu, a stationery shop owner who has added solar lighting units to his stock.

“They are selling and selling fast,” he said.

After Robert Mugabe was ousted from power in 2017, many Zimbabweans hoped that their country’s long economic deline would be reversed under his successor President Emmerson Mnangagwa.

Mnangagwa promised to end the country’s international isolation, attract investors and create growth that could fund the country’s shattered public services.

But the economy has declined further, with shop prices rocketing at the fastest rate since hyperinflation wiped out savings and pensions ten years ago.

This week, Zimbabwe in theory ended the use of US dollars and other foreign currencies that have been the official legal tender since the Zimbabwe dollar was rendered worthless in 2009.

The government’s surprise decision fuelled further confusion and uncertainty.

For Caution Kasisi, 45, another furniture-maker in Glen View, the power cuts have only added to his worries.

“We have a small petrol-powered generator which cannot run for a long time,” he said.

“The price of food and other things like school fees are going up and we are not getting much money because we can’t deliver our goods. We have got a problem.”

“We lost all our belongings – including the new clothes we had bought for the baby,” Tatenda Sithole, from Rusitu. © UNFPA Zimbabwe

JOE BIDEN’S ANSWER ON BUSING IS BAD: When your opponent is on the side of Thurgood Marshall, and you’re on the side of Jesse Helms, you’re losing the argument.

WE STILL HAVE TO WORRY ABOUT THE CENSUS: Listen to your friend, Larry Tribe.

HERE’S A KIM KARDASHIAN-ADJACENT STORY: This is a good piece about trademarks that some will read hoping there are Kim Kardashian underwear photos in it, and you will not be disappointed, either way.

DACA IS BACK ON THE TABLE: Conservatives are so red-assed about Roberts right now that they going to punish kids.

BOUTIQUES FOR YOUR STARTUP: Law firm boutiques, that is.