Hiya, Reddit. I’m Ken White. For about 12 years I’ve been a federal criminal defense attorney. For about six years before that, I was a federal prosecutor here in Los Angeles, where eventually I worked in the office’s Government Fraud and Public Corruption unit. I’m doing this AMA because, with various hacker prosecutions in the news, Redditors are increasingly interested in America’s federal criminal justice system, and I like trying to explain it.

Proof: Imgur, http://www.brownwhitelaw.com/attorneys/kwhite.html (Yes, I’ve been told already that I look like Karl Rove. Thank you very much.)

I’m also a civil litigator, often focusing on cases that involve crime or fraud, but also increasingly devoted to First Amendment litigation.

I also blog on legal, free speech, and geek issues at Popehat. You may know me from my gigantic walls of text covering the FunnyJunk/Charles Carreon v. The Oatmeal saga (http://www.popehat.com/tag/oatmeal-v-funnyjunk/) or more recently the Prenda Law copyright troll saga (http://www.popehat.com/tag/prenda-law/). I also use the blog to call for pro bono help for online folks who get threatened with bogus censorious lawsuits. (http://www.popehat.com/tag/popehat-signal/.)

Ask me anything! Well, not anything. I’m not going to talk about specific clients, or breach any ethical obligations. Plus I have some cray-cray stalkers. Just sayin’.

To prove my suitability to post on Reddit, here is a video of one of our cats eating my son’s homework: http://www.youtube.com/watch?v=bI7sd7ArIj4&feature=youtu.be

First Edit: Holy crap the questions pile up quick! Narrower questions are easier, of course.

Second Edit: Wow this is exhausting. Only one persons has really irritated me so far.

Third Edit: This was really fun. I can't sit and focus only on this any more, but if people are still interested in asking questions and commenting, I will review and reply over the next day or two. Thanks!

Comments: 523 • Responses: 116  • Date: 

eltejano75 karma

I just wanted to say thanks for blogging and also for writing in a way that a non-lawyer can understand.

KenPopehat57 karma

Thanks for the compliment! That's what I am trying to do.

stacksort69 karma

Hi Ken!

I made an account just to say your blog contributed to my somehow ending up in law school.

KenPopehat155 karma

O Christ.

Stacksort. I . . . I'm sorry.


Can I get you some Starbucks Java Chip?

KeithRLee85 karma

Really? Given the state of the legal industry, he's already likely to be working at a Starbuck's anyway. Getting him something from there is just rubbing it in.

KenPopehat98 karma

I know lol

TaoGaming57 karma

With Aaron Swartz (etc) in the news, overrreaching (overzealous) prosecutors are in the news. You were a prosecutor before becoming a defender, so...

How much of this is due to poor incentives (you have to bag someone to advance), how much of this is due to poor individuals (jerk prosecutors), and do you think its on the rise/same ol same ol/getting better?

And how should we fix it?

KenPopehat96 karma

Wow, what a huge question! And an important one.

Short answer -- it's much more complicated than anyone is spinning it to be.

Second part of the answer: I'm working up the courage to write about Aaron Swartz. Not about federal criminal justice. About depression. We'll see if I have the nads for it.

Third part: As a defense attorney, what's frustrating is seeing so many smart people devoted to the idea that Swartz was singled out for unusually harsh or unfair treatment. He wasn't. People get treated just as badly, or worse, by the federal system all the time with zero attention. And the federal system is like the motherfucking Ritz Carlton compared to the state system.

It happens for a wide variety of complex factors. Among them: 1. Personal ambition by line prosecutors and chief prosecutors. 2. Ignorance or hostility about the substantive issues (like hacking). 3. Lack of client control -- where the federal agency is the client. 4. Cultural blindness to issues that might cause prosecutors and agents to see things from a defense perspective. 5. The ignorance or indifference of media and society. 6. Inconsistent quality of the defense bar. 7. Too few judges being aggressive in defense of rights.

And so on. Sorry, but I could write 10,000 words and not start to touch this. A narrower question would be easier.

TaoGaming8 karma

Thanks, and a narrower question:

Roughly what percentage of cases that are prosecuted by the Feds just go "You are charged with X" to "That's a fair cop" and a plea?

And how does that percentage compare to the % of people who are railroaded?

KenPopehat29 karma

I think the federal guilty plea rate is in the 90-95% range, with the remainder being trials and the occasional dismissal or other resolution.

How many of those are actually guilty? I don't know. Many of them did something. But a not-insigificant percentage of them didn't do what the government says they did.

probabilistic45 karma

Do you have any basic guidelines for determining when one should have a lawyer present while interacting with law enforcement? Obviously, I know I should not talk to LEOs without a lawyer if I am a suspect in a criminal investigation. What about if I'm a witness, and the police/feds want me to give a statement? They can decide I'm a suspect at any time without telling me, right? I don't want to be ass, standing at the scene of a crime and holding up the investigation until I can hire a lawyer, but I also want to know how best to protect myself. Reddit gets a lot of posts about innocent people getting railroaded.

PS: Popehat is awesome.

KenPopehat73 karma

Any communication with law enforcement takes the risk that your statement will be used against you -- often in a way that misquotes or misrepresents you.

I help clients talk to law enforcement when I get assurances they are mere witnesses. But I always go with them, and I always prepare them, and I always watch for signs that they are not mere witnesses after all.

Look, there are times when there will be no harm in talking to a cop - like if you witnessed a car crash. But there is always some risk -- and unless you are mortally sure -- bet-your-future sure -- that you can't be accused or anything or maliciously or dishonestly or mistakenly associated with a crime, it's foolish to talk to law enforcement without a lawyer.

If you are not at the scene of a car crash, or something obvious and imminent like that, I'd always talk to a lawyer before returning the call from the cop or federal agent. It's just not worth the risk to do otherwise. These people are not looking out for your best interests.

JCollierDavis10 karma

For me, it's less the fact that LEO's do not have my best interests in mind. As u/mhutson7 mentions below, plenty are honest guys who just want to do a good job.

However, what is the issue is once you give away your rights, it's nearly impossible to get them back.

KenPopehat18 karma

As I replied to mhuston, even honest guys who want to do a good job still don't have your best interest in mind. No cop is going to tell you you ought to shut up and call your lawyer. Sometimes that's in your best interest.

hechoenelinfierno25 karma

So Ken, ARE you libel?

KenPopehat64 karma

In fact I are not libel. However I am quote unquote a "piece of shit."

So I have that going for me, which is nice.

cynumber925 karma

Is the Prennda debacle the craziest thing you've ever seen? If not, what was?

KenPopehat37 karma

Prenda is in the top ten. The whole Oatmeal debacle was up there too, though. It's hard to answer without a better definition of "craziest." There's crazy-unjust and crazy-look-at-the-car-crash and crazy-bad-judgment.

magus42415 karma

Are you waiting on the edge of your seat for the new deadline set by the judge like the rest of us? :D

KenPopehat20 karma

Oh Lord yes.

AblativMeatshld12 karma

Really? You're going to leave out The Wildlife nut?

Are you afraid of, once again, becoming the physical embodiment of libel?

KenPopehat43 karma

That's really not a very appealing superhero origin story.

Thraxbama24 karma

I love you Ken

KenPopehat88 karma

Thanks! I love you too, in a way that is completely appropriate to those people reading who are my wife.

ClarkFromPopehat23 karma

There are all sorts of federal laws that I do not think are legitimate either morally, or under the Constitution (9th and 10th A).

I imagine that you feel similarly.

Were you ever in a position where your job demanded that you try to send someone to jail for an action that you didn't think merited it?

What sort of "just following orders" internal debates - if any - did you have in these cases?

KenPopehat46 karma


I was a callow youth. I started as a federal prosecutor at barely 26, which is too young. (Might have been the youngest in the country briefly -- not sure).

At first I did not reflect too much on it. For instance, I prosecuted drug cases, even marijuana cases, which I now very much regret.

Eventually I became very uncomfortable and unhappy with the mandatory minimum sentences in drug cases. By then I didn't have many -- I was in a fraud unit. By the time I was really reflecting on such things, my cases were generally strong fraud cases that I supported.

I know some people in the office had, and stood on, moral objections. For instance, a foreign country sought assistance in extraditing someone who - it seemed -- had escaped spousal abuse. The AUSA assigned to it said no. DoJ flew someone out to handle it from Main Justice.

FritzMuffknuckle23 karma

I became a fan of yours about the time you decided to go after UST for sending bogus invoices, Anatomy of Scam. (BTW, how's that going?) Since then I've watched you take up many other causes, fighting injustice and organizing help for others in need where the only visible benefit for you seems to be the chance to write about it. For that, I thank you.

So, after doing so much good for those around you, is there anything that stands out that you proudest of? What was the most fun, aside from picking on your associates? And finally, what bothers you most about our justice system?

KenPopehat56 karma

  1. What's going on with the Anatomy of a Scam Investigation case? No comment. Take that as you will.

  2. I get a lot of good feels and karma from helping people. I spend that on raising my kids badly and various really repulsive fetishes.

  3. I'm really proud of helping this guy: http://www.popehat.com/2011/12/19/pro-bono-victory-in-a-junk-science-slapp-suit-against-a-science-blogger/. I'm proud of a few where I did things behind the scenes. I'm proud of a current pro bono case I can't discuss yet.

  4. What bothers me most about our justice system -- out of many things -- is that society largely accepts that official misconduct by police and prosecutors will go on without serious attempts to address it or punish it.

iattorn21 karma

Alan of bigfoot here...

How do you find time to do all this crap? You're a name partner at a law firm. You're clearly busy, skilled, and hardworking. You have (a?) kid(s?). You blog, often multiple thousands of words a day. And here you are doing an AMA on Reddit from 1-4 on Wednesday. Do you only sleep three hours a night?

KenPopehat22 karma


I find writing pretty easy. I jot down ideas at odd times. I write in my head while driving or cooking or showering or walking so that it comes out fairly easily. Evenings I hang out with my wife and write or look for stories while she reads or watches TV. And this is my main hobby. So it works out.

darthgeek21 karma

Big fan. Would you rather fight 1 horse-sized copyright trolls or 100 duck-sized copyright trolls?

Also, you neglected to note that you coined the term "snort my taint"

KenPopehat106 karma

I am a partner at a law firm.

Therefore, convention requires the following:

  1. I would rather fight 100 duck-sized trolls.

  2. At 4:45 PM on the Friday of a holiday weekend I will assign associates to fight 97 of the trolls, telling them I need them to be done by Tuesday morning. Ideally they will have plans for the weekend.

  3. I will roll into the office Tuesday afternoon not having answered any of their emails or calls with questions about fighting the duck-sized trolls.

  4. I will fight the last 3 duck-sized trolls myself, and then take credit for the whole thing.

thatassociate35 karma

(throwaway because hey..it's my boss's AMA) as I would be one of those associates, I would never say that we would lock all of the trolls in your office with the law clerks and just hope for the best.

KenPopehat31 karma

Wow! Look! An ERISA project I need to assign!

KeithRLee19 karma

(As promised) Please explain the difference between executory interest and contingent remainders using lolcats.

Semebay15 karma

Has the "my cat ate my homework" excuse worked on your son's teachers?

Anyway, I follow Popehat closely and love it. You're the best!

KenPopehat21 karma


The excuse work because my wife emailed to confirm it, and because my wife is very credible. And not to be trifled with.

ThrowAwayCharles14 karma

Has Charles Carreon finally given up or have you stopped covering his story?

BTW, I was named John Doe #1 in a lawsuit for impersonating Carreon. I wasn't caught though :) But I do feel bad about the blogger at Censorious Douchebag.

KenPopehat20 karma

He recently subpoenaed me for records. You can read about it on Adam Steinbaugh's blog right now. http://adamsteinbaugh.com/2013/03/19/charles-carreon-invokes-first-amendment-right-to-threaten-first-amendment-rights/

jtdc14 karma

A couple I know don't want to retain a lawyer for their son's upcoming appearance in juvenile court, because of "how it will look."

How would you respond to this?

KenPopehat46 karma

After I counted to ten to stop myself from screaming at them, I'd explain that the consequences of a badly handled appearance would "look" worse than the appearance of hiring an attorney. I'd suggest they hire a reputable and expensive attorney if they are so concerned with appearances. Ultimately I'd find a way to convince them that appearances don't matter next to preventing your kid from getting chewed up by an indifferent system.

dnevill12 karma

1) For computer crime, are the actual logs, etc. often submitted as exhibits? Or do they just have an expert witness state their conclusions about those said logs?

2) If someone is libel, would you recommend we dp that all legal? (Keep in mind, law is the law. Govern your response accordingly.)

KenPopehat14 karma

1) This could happen a couple of ways. You might introduce the logs themselves using appropriate witnesses from the company that can authenticate them - that is, testify knowledgeably that they are correct logs of computer activity. THen you can (1) ask an expert questions about the expert's review of them, and (2) sometimes use demonstrative exhibits summarizing them, if you can lay a foundation (that is, demonstrate the reasoned basis of) the exhibit.

  1. Only from private jets of at least 10k per hour.

ASigIAm21312 karma

First off: everyone read Popehat every day.

Second: a lot of people who think like you do about the criminal justice system have advocated changing the current system to an inquisitorial/non-adversarial justice system. Would you be inclined in that direction?

KenPopehat20 karma

No. I think there has to be an adversarial element -- that the system doesn't protect people unless there is someone with the sole job of protecting the defendant, at least in criminal cases. The accused needs a champion to question and challenge the state.

I could see giving judges more inquisitorial power. But my suspicion is that in the context of American culture that would just make the judges de-facto co-prosecutors. Even more than some are already, I mean.

Joberama12 karma

Is "John Steele" a pseudonym? How can a guy with that name be a porn lawyer rather than a porn actor? Or - oh wow - could he be both?!

KenPopehat21 karma

I understand it is a real name. I have no information about any acting experience.

NeverAsTired11 karma

I have to know - have any of your pony-related inquiries ever been answered seriously?

timcushing10 karma

I know this has been discussed many times at your fine blog but no clear answer has ever been given: what's your preferred brand of blogging bathrobe?

KenPopehat36 karma

I wear a starched dress shirt, Windsor-knotted tie, and coat, even seated at my desk. Below that, I invoke my Fifth Amendment privilege against self-incrimination.

shirebrew10 karma

So I've been educating myself on how to handle police confrontations.

So when you ask a cop "Am I being detained?" I know that if he says "no", then I'm basically free to go. However, what happens if he says "yes". Is that the same as being arrested? If I get pulled over for speeding, I assume that I'm being detained, yes?, but not arrested. So what happens to the "legal environment" when I'm being detained. And how should I protect my rights when in fact I'm being detained, such as a DUI checkpoint (whether I've been drinking or not is not the point here). I'm just trying to enforce my constitutional rights, which have been erroding so much over the last few years that I take every small opportunity to ensure whatever rights are left don't get pissed away.

KenPopehat31 karma

The first question -- am I free to go -- is the right one. If the answer is no, the next question is "why am I being detained." No matter what the answer to that question, next you (1) refuse to consent to any search, (2) decline to answer any questions, and (3) say you'd like to speak with a lawyer. You need to be ready to keep hitting on those three points until they let you go.

Occasionally this stance may have negative short-term consequences -- like being taken to the police station. But the long-term downside is minimal compared to the gigantic long-term downside of talking and consenting.

Joberama10 karma

I love reading Popehat, and I always appreciate your insights on legal news.

One thing I've always wondered about though is how disparate the various Popehat contributors are, and whether that causes any friction. I mean, it just seems like your fellow bloggers there are not (as) likely to be attracting any cray-cray stalkers. So how did this situation come about - did you all know each other prior to setting up Popehat? And is there ever any tension or friction regarding some of the more attention-grabbing posts that you make, or do you ever feel you ought to run something by the rest of the crew as a heads-up before you post it? I'm guessing that I already know the answer to this, but I'm curious about how it works on the other side of the curtain.


KenPopehat14 karma

A number of us posted on a gaming forum before Popehat.

Occasionally people suggest that I not poke a particular beehive. But for the most part everyone is very supportive. They have no control over what I do, so it's not like they are on the hook for it. I very much enjoy and appreciate the banter and back-and-forth with my cobloggers and am always happy to see a post from one of them. David's posts on artistic subjects are just not to be missed. Patrick has some heart-stopping posts on injustice in America, and is able to keep a straight face during satire in a way that I can't. Clark posts things that stretch the way I think about libertarian issues. Charles pops up with great subjects. Derrick's politics-as-Starcraft make me laugh. The others are always welcome to post. Except Via Angus. I'm sick of his CIA-driven Illuminati stuff.

Kweefy10 karma

3.5 questions:

1) Do you have any pictures from your #HipsterFight?

2) You're stuck in an elevator with one of the following: Scott Greenfield, Brian Tannebaum and Mark W. Bennett, who would it be and why?

3) One last meal (5 Courses), what would it be?

KenPopehat29 karma

1) The #Hipsterfight is a hashtag joke that Iowahawk fought. If I were in one it would be #ClumsyFatGuyFight.

  1. Not Scott, because he would nag me for the way I was pushing the buttons wrong. Not Brian, because he'd still be carping about the time I was too stressed and busy to meet him for drinks. So congrats, Mark, you win by default!

  2. A full-blow Korean BBQ with galbi, bulgogi, shrimp, jaepchae, and a ridiculous variety of banchan. With lots of beer. (KOREAN. Not Koran.)

the_criminal_lawyer22 karma

Whoa, I'm just as big on the 1st Amendment as the next guy. But barbecuing a Koran?

There's a time and a place, dude...

KenPopehat55 karma

My people have no tradition of proofreading.

MoebiusStreet9 karma

Ken, I'm a big fan of Popehat, and I've got two questions I'd like to ask you.

1. After reading Popehat for some time, I still don't get where that name comes from. Can you tell us the story?

2. Having served on both tables, how do you feel about jury nullification? Does it bother you that judges instruct jurors that they're not allowed to do this (i.e., that they must decide only in accordance with the law as it's written)?

KenPopehat21 karma

  1. It's an inside joke. The short version: a member could make a Pope hat out of a dollar bill and wear it playing poker. When wearing it, he was infallible, like a Pope. Or like a blogger. Because being a blogger means thinking you are infallible. Because you can delete comments form anyone who says you aren't.

KenPopehat11 karma

Second part: jury nullification is troubling. I like it as a barrier between the state and the individual, between unjust laws and citizens. On the other hand, the rule of law separates us from mobs. During the civil rights era, jurors nullified in cases where mobs killed people (both black people and white civil rights workers) because they supported the racist views of the defendant. There was nothing just about that.

There's no easy answer. I like it when I like it.

ALeapAtTheWheel9 karma

You've never clarified, are you trying to get your hands on a pony for equestrian, or gastronomical, reasons. Care to do so now?

KenPopehat18 karma

I am building a great army of the Republic. We'll have cookies.

Yuri_Gagarins_Ghost9 karma

Hi Ken. I was convicted of a federal offense (what it was isn't relevant) based on alleged misconduct that occurred in 2007. Under the guidelines in effect at the time, I was looking at a sentence of 37 to 46 months. However, my lawyer tells me that under the new guidelines that came into effect in 2009, I'm now looking at a sentence of 67 to 88 months.

My question is, doesn't enhancing the sentence based on guidelines not in effect at the time of the alleged crime violate the Constitution's prohibition on Ex Post Facto punishment? If you could answer, I'd really appreciate it, as I'm out on bail but have a sentencing hearing coming up this Friday.

KenPopehat20 karma

Yuri, I can't give legal advice in specific cases. Speaking only very generally, the guidelines in effect at the time of sentencing apply. In the past, there has been an ex post facto rule that made the older guidelines apply to the extent the guidelines had increased since the time of the offense. What I don't know, because I haven't researched it, is this: whether post-Booker, now that the guidelines are merely a recommendation, whether that ex-post-facto rule still applies. You'd have to have your lawyer research Booker's impact on the guideline ex post facto rule. I haven't had a client where that is an issue.

deathbyxmaslight9 karma

Do you have any advice for those wanting to go into the legal field (lawyers, paralegals, etc)?

KenPopehat26 karma

First, think about it very carefully before you do. I say that more to lawyers than paralegals. A good paralegal can keep a good job, though it may not be one they enjoy. But the lawyer job market sucks, and every field of practice has ups and downs.

If you think you want to be a lawyer, I'd suggest taking every intern/extern opportunity to see the practical side of the work. I'd suggest trying a wide variety of subjects to see what interests you, rather than just heading towards graduation with no clear idea what you want to do. Specialized interests are fine, so long as you have a reasonable view to where jobs are. (There are only so many astronaut law jobs out there, etc.) Consider working for the government for a few years to get courtroom skills or high-volume-practice skills or other good experience. And make sure you believe in SOMETHING in connection with what you do. Believe your clients are being wronged. Believe you are prosecuting the bad guys. Believe you are an essential part of the system making sure everyone is represented adequately. If you don't believe somehow in what you are doing, it will suck.

demiknute9 karma

How has being "outed" affected your day job? If you had it to do over again, would you be more careful about concealing your identity? Or do you feel that having your identity known contributes to your credibility?

KenPopehat22 karma

The biggest way it has impacted me is that my colleagues mock me regularly about the Regretsy users who posted lustful things about me after I wrote that response to the threat letter. I get ladyboner jokes. Past that, I've developed some online relationships with lawyers only to become cocounsel with them later, which has been very rewarding. On one occasion, an attorney has tried to use my blog against me by quoting a blog post for the exact opposite of what it actually said (and deliberately or stupidly missing a joke). Also, some clients like it. Other than that, it doesn't have too much impact.

xswqaz9 karma

What would you do if Prenda, Paul Duffy, or John Steele approached you to have you represent them as a defense attorney for, say, the upcoming Order to Show Cause or (assuming there is hypothetically) a criminal trial?

KenPopehat39 karma

I would say, hypothetically, that my coverage to date probably made it unreasonably difficult for me to be an effective and credible advocate for them. Then I'd refer them to a number of excellent lawyers. Because allegations -- even ones that make me very angry -- are best adjudicated with effective representation.

jennybean429 karma

I follow Popehat and love it as well! My children are both adopted, and many of your posts on adoption are things that I have definitely been able to relate with!

Have you ever communicated with Charles Carreon after he received the picture of the money from Inman?

KenPopehat15 karma

I have communicated with Charles Carreon when he subpoenaed me for documents. He wanted my communications with the plaintiff in the Doe v. Carreon case, and with the attorneys now representing that plaintiff. Other than that, no.

Thanks for following!

jtdc5 karma

So.. did you send him the privileged attorney-client communications he asked for?

NeverAsTired9 karma

Okay, more serious question now: as a Canadian I am somewhat dismayed by our court's interpretation of freedom of speech such as this. Any thoughts as to why, even though we have a charter/constitution that was written later, we seem to lag behind on our defence of freedom of expression?

KenPopehat14 karma

I'm not sure I'd say Canada lags. I'd say that Canada has chosen a different path -- one that "balances" free expression with a right to be free of some types of expression. I don't think it's a path that works, or a principled one, and I think Canadians will regret it. But Canada is a sovereign nation and gets to make its own choices.

malderi9 karma

You write a lot of (very funny and insightful) rants on your blog. Sometimes they have specific suggestions for fixing problems with the legal system, but not always. I'm especially interested in your civil free speech work - if you were a Congressman or Senator, what would you try to do to change the laws?

KenPopehat19 karma

If you are just talking about speech issues -- I would lobby for a federal anti-SLAPP law. I would work towards achieving across the board, if not a loser-pays system, a system that substantively addresses frivolous lawsuits and the coercive and unfair impact of the legal system. I would work towards more uniform privileges for speech -- like the litigation privilege. I'd strengthen laws like the SPEECH ACT that help deter libel tourism.


This may get lost, but undoubtedly you have been placed in a position where a client has confessed a crime to you. For the sake of the question, assuming it's murder or rape, how are you morally capable to present him to the court in an attempt to get his charges dropped? How morally taxing is this when you know this person caused so much harm to others?

KenPopehat21 karma

I'm morally obligated to do the best I can to represent him. If I can't stomach that -- I'm human -- I am morally obligated to get someone else who can. I am not morally obligated to make him confess or concede guilt.

I'm morally obligated not to suborn perjury. But I can still question witnesses and challenge whether the government has proved its case.

I believe in the system that lets me do that. For one thing, I believe that as an element of grace everyone is entitled to one person in their corner. For another, it's easy and knowable when you have the hypothetical guy who confessed to you. But the real world is harder. If you choose a rule that "you have to pull back on your advocacy if you think they did it," you cease to be a real advocate for them, and sometimes you're going to be wrong.

Master-Thief9 karma

Have you ever made a judge laugh (or made a judge angry)? What happened?

KenPopehat15 karma

I've made many judges laugh because I am a snarky asshole. The most recent time was during an appellate argument when I blew a second-grade math problem (converting my client's sentence from months to years) and snapped "that's why I had to go to law school."

Mad? Yes. Many times. One now departed judge yelled at me for ten minutes when I was a prosecutor. He was sentencing a defendant, we were about to charge the guy with doing the same thing again, he wanted us to charge NOW so we could combine the sentences (note the assumption the guy would be convicted on a new charge.). I told him, not explicitly but not particularly diplomatically, that we were the executive branch and we would charge when we damn well got around to it. Oh, that's a paddlin'. More recently, when a judge yelled at me about why I hadn't stated something I'm a brief, I replied, "well, your honor, I thought it was self-evident." Which I do not recommend saying to a federal judge until you have been a lawyer long enough to not mind getting screamed at. It's bracing.

malderi8 karma

If you never went to law school, what what you want to do today instead?

If you never went to law school, what do you think you actually would be doing today?

KenPopehat27 karma

  1. Write.

  2. I don't know. Maybe teaching? Maybe writing? Honestly there are relatively few markets for people whose chief qualification is a facility with phrases like "snort my taint."

Not_So_Bad_Andy8 karma

If you could come up with a fake lawyer name, what would it be, and would you consider it to be a better fake lawyer name than David Blade III?

KenPopehat18 karma

Reginald Fipping Farnsworth Donksmacker IV.

Faeberry8 karma

I found Popehat shortly before the blow up between FunnyJunk and The Oatmeal. Before that, I had heard of you because of another incident concerning (I think) deviantart, or an artist being taken for a spin by art thieves. Since I started following you, I've seen quite a few articles that have gotten pretty big, from Prenda, the Oatmeal, Donna Barstow, etc.

What do you think has gotten the most attention, and/or attracted the most new readers?

KenPopehat17 karma

Probably the Oatmeal incident. You can get linked by multiple serious law and politics sites, and that won't drive a tenth of the traffic of one tweet by The Oatmeal or Wil Wheaton. The readership of comics, game sites, and tech sites is astounding.

But then, in the aggregate, long term bizarre searches are a player. Patrick mentioned naked eunuchs once. That's good for a half-dozen searches a day. It's a funny old world.

Shoemaster7 karma

How much have you seen your readership increase since the Prenda saga?

KenPopehat11 karma

Hard to say. Temporary day-to-day readership fluctuates with issues like this and previously with the Oatmeal v. Charles Carreon thing. The big days have been 2-8 times bigger than typical days. It will probably bring some long-term readers, which I appreciate, and some long-time commenters and tipsters, which I REALLY appreciate.

iminthesafe7 karma


KenPopehat12 karma

Absolutely yes. If you don't, then (1) if it's winnable, you probably won't win it, (2) if it's not winnable you likely won't get as good of a deal as you could get, and (3) you won't know the real consequences of your different options.

Apublicdefender7 karma

Hi Ken, I found this very informative. I will bookmark it for further review.

KenPopehat4 karma

At your leisure.

jamestporter7 karma

Why does Lindsey Lohan keep getting away with it, when a regular person would have been in Jail.?

KenPopehat24 karma

James: I think you may be operating from a false premise. The system routinely gives people -- at least minimally together people -- many chances, with punishments for petty crimes substantially reduced from what they could be. It's not uncommon for petty criminals to rack up multiple charges and probation violations and the like before someone gets fed up and drops the hammer.

The biggest difference, if there is one, is money, not fame. She survives because she can afford aggressive lawyers.

SimplyBumptious6 karma

Have you considered [a career in] politics? I am waiting for SMT to enter the political lexicon.

KenPopehat17 karma

No. I have the ex-prosecutor thing going, which voters love uncritically. But can you imagine my opponents reading stuff from my blog during a debate? That's not going to go well. And that's before you get to my connection with Patrick and Clark.

ExpatJundi6 karma

What's the worst prosecutorial abuse you've personally witnessed? I have first hand knowledge of case where I KNOW, the defendants were guilty and deserved prison, but the prosecution went about it in a very dishonest fashion. It was a very disillusioning experience for me. I mean, I knew innocent people got railroaded occasionally but seeing this kind of thing first hand was kind of shocking.

To be clear, the defendants in this case were guilty as sin, but I'm quite certain the prosecution would have used these tactics either way. It was about winning, not justice.

KenPopehat20 karma

I can't really say without risking bad consequences to a client. So I will deflect and tell the story of the stupidest thing a prosecutor ever said to me.

I represented a guy whose house was searched. Cops, directed by the DA, took all of his legal papers -- his correspondence with his attorneys. That's privileged. It's a big no-no. The DA read the documents. That's also a no-no.

When I filed a motion to retrieve the docs, the DA said, with a straight face, that "any attorney-client privilege was 'burst' when the police officers seized the documents."

In other words, the client's right to the integrity of the documents could be eliminated by the cops choosing to disregard that right.

v3m5 karma


KenPopehat12 karma

Forget it, v3m. It was the Inland empire.

Roxxer6 karma

Ever have criminals come back for revenge against you?

KenPopehat19 karma

No. Never had a threat from someone I prosecuted. In fact, two guys I prosecuted have tried to hire me for subsequent cases. Statistically I am in far greater danger from my own clients.

TiltedPlacitan6 karma

Why do you suppose the US Attorney for the Southern District of New York thinks it is more important to crack down on internet poker than financial fraud on Wall Street?

KenPopehat15 karma

Internet poker is much easier to prosecute. Internet poker people don't have powerful friends and billions of dollars to defend themselves.

surlyadopter6 karma

Hi Ken, thanks for the fantastic and informative blog. I've been following the Brett Kimberlin nonsense, and am glad to see you guys have his number. Do you think there will ever be a resolution to his (and his minions) craziness?

KenPopehat7 karma

I can only hope. But as far as I know, he's not currently using the legal system to silence people, as he did before Aaron Walker prevailed. That's a good thing.

ednil6 karma

Hi Ken - I really enjoy your blog. I find there is a high degree of overlap between what you write, the stands you take, and what I believe - so call it confirmation bias....

I'm curious what factors have contributed most to your political and legal belief systems? Books? Law School classes? Work as a prosecutor? What?

Thanks for doing this AMA.

KenPopehat5 karma

ednil: I started thinking and writing about free speech during college in the late 1980s and early 1990s. I wrote my senior thesis on campus hate speech laws, which were a contentious issue at the time. It remained a hobby subject and was a natural for me to start writing about when I started blogging more seriously -- which read to me practicing it more as a lawyer. As for criminal justice issues, my views on the system began to form as aprosecutor and have solidified over 12 years as a defense attorney.

im-a-whale-biologist6 karma

Why did your wife want your blog login, anyway?

KenPopehat8 karma

She wanted to give me a father's day present that snorked all the text out of the blog and put it into a book. Doesn't work on this blog. Thank God. Better these things not be written down on paper.

nevernotwithoutawig6 karma


KenPopehat11 karma

Answered this below. Copying here:

Second part: jury nullification is troubling. I like it as a barrier between the state and the individual, between unjust laws and citizens. On the other hand, the rule of law separates us from mobs. During the civil rights era, jurors nullified in cases where mobs killed people (both black people and white civil rights workers) because they supported the racist views of the defendant. There was nothing just about that.

There's no easy answer. I like it when I like it.

DitkasMoustache6 karma

Ken, thanks so much for taking on the causes you do. I credit you and Radley Balko exclusively for continually reinforcing my belief that government employees should be sterilized/executed after five years of drawing a .gov paycheck (I'm a former federal employee). What's your opinion on the likelihood of reforming absolute and qualified immunity for judges, prosecutors, and LEOs? And an idea that I am very sympathetic to includes requiring LEOs to secure malpractice insurance (much like doctors and attorneys). Assume that the LEO unions are eventually largely neutered. Do you think a bond/insurance requirement would help weed out the chronic civil rights abusers in law enforcement? What would be the unintended consequences?

KenPopehat8 karma

Jeez, what a complex question.

Requiring insurance might require police departments to impose more consequences on violent cops because insurance would become prohibitively expensive if they don't. Amongst the problems: with the influence of cop unions, the public might wind up footing the bill through taxes, removing the inventive. Who cares how high the insurance is if someone else is paying it?

Also, for what it is worth, there are both valid and bogus complaints against cops. I don't know what the percentage is, but there are plenty of cranks -- and scheming people -- making false claims. You'd have to devise a system that deterred conduct like that or took it into account.

I think the better thing to do would be (1) greater social awareness of law enforcement abuses and less tolerance for it, so that cops couldn't assume that juries will always believe them, (2) more and better training, (3) better independent police commissions, with more independence, investigating misconduct.

jubtrig6 karma

Hey Ken, love the blog, fantastic stuff.

Q. Do you ever see laws/legal frame works in other countries and wish the USA had something like that?

Bonus Steak Knives Q: ref your photo on your companies site. You're smiling. You look pleasant and friendly. eh?!?!? Isn't that illegal for lawyers to look like that? Surely at least some State Bar ethics doohicky is being violated. Please Explain.

KenPopehat5 karma

  1. Yes. I'd like us to move towards a modified loser pays system.

  2. It's to lull you into a false sense of complacency. And because I can't take a good picture.

imageguy236 karma

In light of recent events such as Jerry Sandusky, Steubenville and many others, how do you feel that the general population should hold accountable their law enforcement when they are not doing their job? I live less than two hours away from Steubenville and I can tell you from first hand experience that it is not an isolated incident. Their is no money in making sure that the right thing is done, so finding an attorney to tackle these issues is a shot in the dark. Thanks for doing this!

KenPopehat10 karma

The general public needs to be engaged. That means watching and reading the news but not taking media spin at face value. It means asking questions of politicians. It means exercising critical thinking as voters and jurors and the like. It may mean writing to the newspaper or your political representative, or going to a public meeting. It means teaching kids to exercise critical thinking and an appropriate non-submissive stance towards government actors.

Megatron_McLargeHuge5 karma

How politicized are public corruption investigations? Do politicians and their appointees try to kill investigations into members of their party and accelerate investigations into the opposition? Are wiretaps of politically connected individuals subject to greater than normal scrutiny?

Do you think the two parties are treated equally? Are they equally corrupt?

A notable number of successful corruption prosecutions recently have targeted black politicians. Does this reflect discrimination, greater corruption, or less skillful concealment?

KenPopehat4 karma

Objection, compound question!

How politicized they are depends on who is running them. As an AUSA I never saw politics getting involved in them -- but then I wasn't involved in any high-profile cases. Main Justice is notorious for cloak and dagger intrigue. And DA's offices are much more susceptible to the winds of politics.

I suspect that federal magistrates, at least, review wiretap applications much more carefully on high-profile cases, because any challenge will be high-profile.

Squeezer995 karma

I work for a public defender's office. It's almost sad seeing some BS charges that a prosecutor will charge someone with just to make themselves look good or have something to charge the person with because they don't like them, or so that they can show they are doing their job.

KenPopehat7 karma

Sometimes, no doubt, it's to look good. Sometimes I think it's just inertia, though -- the inevitable bureaucratic and mechanistic approach that grinds out charges because that's what the system does and because it doesn't require initiative or thought.

Renegade81005 karma

you replied to just about everything. upvote for you.

KenPopehat8 karma

Thanks. It's obsessive. I take medication.

nj5005 karma

Do you agree that we dish out some draconian sentences here in the US for federal crimes? I'm talking about financial crimes and drug crimes.

What do you think of bullying tactics used by prosecutors to try to force a plea? For example...threatening to indict family members, etc.

KenPopehat5 karma

Some sentences are definitely draconian. I think it's a stronger argument for drug crimes than for financial crimes, though. Unless you are talking about financial crimes with vast amounts of loss, financial sentences usually aren't "draconian" in federal court, unless you consider a few years to be draconian. Maximum sentences may sound draconian, but those have little if any relation to sentences actually imposed.

(For instance: Jeff Skilling of Enron got sentenced to 24 years. First off, that's an outlier for white collar sentences. Second, given the size and impact of Enron, I think it's hard to argue that it's draconian, particularly compared to other sentences.)

Bullying tactics exist, and they are evil, and ought to be resisted. I didn't practice them and I don't support them.

nevernotwithoutawig5 karma


KenPopehat5 karma

That's kind of an open-ended question. Radley Balko and Reason Magazine are my go-to places on the subject.

huadpe5 karma

In interactions with the police, what should be the line where I STFU and invoke the 5th amendment? I assume declining to answer and asking for a lawyer when stopped at a traffic stop is not a good idea, and that it is a good idea if they show up at my house with a warrant, but where is the line between those two? (Or is it between those two)? Not that I'm expecting any trouble mind you.

KenPopehat9 karma

Any interaction involves risk. You have to weigh the risk. In a traffic stop for running a stop sign the risk is slight, assuming they don't ask to search your car or ask if you have been drinking. Past there, the risk piles up.

If they show up at your work or house, without calling first, say you want to talk to a lawyer. If you are truly only a witness, they can wait. But if they show up cold, they are probably trying to get something out of you against your best judgment or best interests.

stop-sign-scofflaw4 karma

I was pulled over for running a stop sign, and when the cop asked if I was in a hurry, I almost explained that I frequently roll through that particular stop sign turning right because the layout of the intersection makes it safe. However, my mind had a flash of "shut up, shut up, shut up" and I just made an "uhhh" noise. (I got the ticket, didn't fight it, and stopped doing that.) While in reality admitting to a nebulous number of minor past traffic offenses won't get you tickets for them, I can't imagine it actually helps anything.

KenPopehat6 karma

Yeah, that's an example of an answer that would not have helped.

im-a-whale-biologist5 karma

I know you shouldn't talk to the cops without a lawyer present, but how do you find a lawyer if you've been arrested and didn't already have one? You know, hypothetically.

KenPopehat4 karma

Whale-biologist, I wrote a post about selecting, and preparing to talk to, lawyers, which I will (as lawyers say) incorporate by reference.


Short version: you want a referral from someone reliable to someone reliable.

not_x_or_x_not5 karma


KenPopehat9 karma

It sucks. It shows the enormous power prosecutors have to coerce results. It shows that judges lack either the power or the inclination to intervene. And, for the most part, the media and the public don't give a shit, which is tragic.

sofaofthedamned5 karma

OK, here's one. My brother-in-law is a corporate attorney in the UK, and i've never got a satisfactory answer off him.

Here, we distrust lawyers, or solicitors as we call them, or the rest of the legal system. Like bankers, there is the air of money grabbing aloofness about them, as if they live somewhere else and smell different air than we do.

Occasionally you see something that breaks this perception. Popehat is one of them. It reminds you that legal people are human beings, you can engage with them as you would somebody else in the pub. Then you read about countless crazy judges in the news and you sigh again.

My question is - is there a possibility of a grass roots movement in your industry to engage more with the public, such as what you're doing? The public knowing more about the internal machinations of law would be good, as would the legal system being quicker as identifying what pisses the common man off.

I just read a story in my local news about a guy who coughed to over 100 burglaries, who got given a suspended sentence - again. Is the judge mad? Do the solicitors involved think this is nuts? The public doesn't know, surely engaging directly with them would help?

Thanks for the blog Ken!

KenPopehat6 karma


I think the key is for people to follow the news, inform themselves, and express themselves. Interact with others interested in the same topics (we can't all police all topics all the time). Such attention can, in the aggregate, make a difference. But we have to cultivate the cultural attitude that citizens have an obligation to know and understand what is going on around them -- says the guy who probably couldn't explain the Federal Reserve at gunpoint.

Also, more lawyers will blog if more readers read and comment on their blogs and link to them and promote them. Bloggers like attention.

fromThe70s5 karma

Big fan here. What are your personal thoughts on the constitutionality of damages in file sharing cases, such as in Capitol v. Thomas? Do you think that $9250 per song is a constitutional penalty? And lastly, do you think the Supreme Court will ever hear one of these cases? I lost hope after the denial of the Capitol v. Thomas cert.

KenPopehat5 karma

I doubt that SCOTUS will hear the cases unless a split of the Circuits develops. It's not the sort of thing they reach out and take just because it interests them. It's only the sort of thing that they take because, for instance, the Ninth and First circuits announce contradictory legal rules.

I haven't recently researched the 8th Amendment as applied to civil penalties, but my sense is that there isn't much authority out there for the provision that a civil penalty at this level is unconstitutional.

AblativMeatshld4 karma

1) Have you1 ever written a motion or other document (either for court or for opposing council) and then looked at it and thought "I really should not say what I said there."?

2) Same as (1), but instead of realizing how it might go badly, have you thought "Wow, that's a bit harsh, but if it fits, I submits!"?

3) How hard is it to not tell opposing council to snort your taint in open court?

1 For the sake of the question, pretend you write them, and not whatever associate you are flogging that day.

KenPopehat14 karma

  1. Yes. When I am in a bad mood. Sometimes depression manifests through KEN SMASH rather than other ways. Then you might write "the jury instructions are not the appropriate vehicle for counsel for the SEC to work out his self-esteem issues" rather than "the SEC's requested jury instruction is not supported by applicable law."

  2. Sometimes it's harsh but it makes me so happy, or it works so well, I submit it anyway. The benefit of working with a great team of lawyers is that they can read and second-guess for me.

  3. Easy. I think it real loud. It's better to win than to insult.

dcoetzee4 karma

Huge Popehat fan. My question: the Internet is largely owned and controlled by businesses. When critical businesses that operate central Internet infrastructure refuse to transact with a site, as happened e.g. in the Wikileaks saga, is that a threat to online speech? If so, what can be done about it?

KenPopehat10 karma

It's a "threat to online speech," but that's different than saying that it's a "threat to free speech," or a violation of the First Amendment.

I'm torn here between the principle of free expression and the principle of individual action and the distinction between public and private. Ultimately the way I'd like to resolve it is have redundancies for internet infrastructure so that no one private company can block traffic. Alternatively, as shocking as it may be to have a semi-libertarian say it, having a neutral government-sponsored entity to run at least one set of tubes may make sense.

Fucktard4204 karma

Any advice to someone who is potentially facing federal charges for drugs? I am currently charged on the state level, but the feds are threatening to prosecute also. How do the US Attorneys decide whether or not they will charge someone?

KenPopehat8 karma

I can't give legal advice in a specific case. But it's unusual for the feds to charge if there are already state charges, unless the state has undercharged and the feds think you are some kind of big cheese. The feds have much more limited bandwidth.

dariusm54 karma

What are your thoughts on patent trolls and patents being used as legal weapons in the tech industry?

KenPopehat5 karma

It concerns me. But patent law involves technological stuff and you must bear in mind that I am rather dull-witted.

It's one of those areas that strikes me as problematical and that I have made a note to read more about in my copious spare time.

ksolomon4 karma

WRT Prenda Law, how do you see it going down? Any of the principals in lockup, etc?

KenPopehat4 karma

I'm going to post a prediction at some point. But no, I suspect no lockups at the next hearing. The judge will probably take it under submission and issue a written order. I do expect serious sanctions.

boxworth834 karma

Ken, Have you been subject to any lengthy dispositions yet?

KenPopehat12 karma

Funny you should ask. I'm being deposed very briefly tomorrow. I am studying the Jack Nicholson scene from A Few Good Men to prepare.

gabrielhounds4 karma

Hey Ken. Happy you're doing this. Was Charles Carrion ever served? I feel like there hasn't been proper closure to that bizarre saga.

And since I added your RSS feed to Google Reader around the time of his meltdown can you outline a legal strategy (money being no object) preventing Google from killing the service?

KenPopehat6 karma

  1. He was served. pbtpu40 links it below. Adam Steinbaugh has covered it to some extent. http://adamsteinbaugh.com/2013/03/19/charles-carreon-invokes-first-amendment-right-to-threaten-first-amendment-rights/

  2. Nope. First, I can't think of one, and second, I wouldn't support it -- they can offer a product or no as they wish in the free market.

pasc433 karma

Are you following/watching the Jodi Arias trial? Your thoughts? Comments on Mr.Marteniz's style?

KenPopehat4 karma

No. Link?

zhrusk3 karma

Hey Ken,

I've been following your coverage of the Prenda Case for a while now. Do you think that Prenda going down in flames will actually spur any long-term changes to the laws surrounding copyright trolls, or is this more of an isolated case?

KenPopehat4 karma

I think, at least, that it will spur change to the way judges handle copyright troll cases. Defense attorneys will have precedent to cite and coverage will mean that lawyers (and clerks, and judges) will be familiar with it.

Mantan17013 karma

Have you worked with the Ira Rotheken lawfirm up in North California? My dad is one of his main Attorneys and used to fly down to LA for Depositions at LEAST once a month.

KenPopehat5 karma

The name rings a bell, but I haven't worked with him, at least recently.

Allahballah3 karma

I sort of feel sorry for Brett Gibbs, the same way I sort of feel sorry for the guys on NBC's To Catch a Predator.

What do you think is going to happen to him?

Note, I don't feel sorry for the other Prenda guys.

KenPopehat9 karma

I think he's going to face consequences. Those might include sanctions or a bar investigation, given the facts Judge Wright has apparently concluded. But I think it's clear he's less culpable than others.

Tyler1553 karma

Ken, is Mayor Villaraigosa as big of a retard as Adam Carolla makes him out to be? I don't doubt the Ace Man, just want a possible insiders view. Thanks!

KenPopehat4 karma

Honestly, I don't follow LA City politics too closely. But the guy does seem to be a classic stock-character politician.

goncourt3 karma


KenPopehat9 karma

The most rewarding is being able to take any case that (1) we are qualified to take, and (2) that we want to take.

The most challenging thing is the administrative work on top of the legal work.

thebossmant3 karma

Where do you stand on legal recreational use of marijuana

KenPopehat13 karma

I stand outside of contact-high radius. I am not a drug user.

But I fully support its legality.

nevernotwithoutawig3 karma

If your brief uses line numbers, you should make your lines line up with the line numbers.

True or False?

KenPopehat3 karma

To quote James Bond -- do I look like I care?

ivraatiems3 karma

Who's winning the battle for/against free speech? What can the other "side" do to help themselves win?

Can I have one of your ponies?

KenPopehat10 karma

The arc of free speech in America has bent gradually but definitely towards freedom. The trick is not to let whims and fads and agendas disrupt that. I'd say it's generally going very well.

No. All the ponies are belong to us.

Soldhissoulforthis3 karma

Do you know much about an (old-ish) case here in New Zealand? The David Bain case? If so, how do you feel about his want of compensation? Or how do you feel about the case and the outcomes in general?

KenPopehat3 karma

I don't know about it. Link?

Combat_Koala3 karma

I saved this just because of the amount of material to read in the comments. I'm so interested because my career will include having to deal with many different forms of law enforcement. I have a family member who has prosecuted a few big(ish, since I imagine LA's idea of a big case is different) cases, they are the driving force behind my motivation. What would you say your most difficult case was and what was the greatest "this is why I do this" moment as a prosecutor? Lastly, is it difficult at times coming from a prolonged prosecutor's mindset and now defending some of the kinds of people that you used to prosecute?

KenPopehat10 karma

I prosecuted some skinheads terrorizing a mixed-race family in my neighborhood. That was very rewarding. Particularly because I rocked the closing.

The most difficult case? Depends on how you mean. In terms of complexity, an immigration case with an anti-terrorism element was most complex because of the number of agencies and defendants. In terms of legal complexity, it was some of the cases when the court of appeals was still working out the standard of review (that is, the threshhold for what type of error merits reversal) on a type of case, which is an arcane area of law very difficult to write about. In terms of personally difficult, it would have to be a case in which I was (wrongfully) accused of misconduct -- a charge that my office and the judge promptly rejected -- because it came at a difficult personal time for me and I took it unreasonably hard.

dogfox783 karma

Ken: Your take on the Prenda Law saga reads like a Carl Hiaasen book. Doubt Hiaasen could invent a better shitweasel foil than United States District Judge Otis D. Wright II. Have you considered "fiction" writing as a follow-on career?

KenPopehat10 karma

I've talked about how I would like to write. If I had the time.

Funny you should mention Hiassen. I think the sweet spot for what I would like to write would be a caper book with legal overtones. Maybe Hiassen meets Dave Barry meets Michael Connelly meets John Irving.

AtticusFinch873 karma

Hey Ken,

Big fan of Popehat, and glad to see you're on reddit. I'm going to blow by your request for more narrow questions and ask how you feel about the rapidly growing size of the administrative state. Seems like the sub-d.p. processes of U.S. agencies, combined with the deferential judicial review, is a recipe for disaster... seems like Roosevelt's trade associations have been reincarnated, except with even less responsiveness to economic concerns.

KenPopehat6 karma

Sure. The regulatory state represents a slow but steady decrease in individual civil liberties to the extent we give administrative entities power to tell us what to do, give those entities broad discretion, and limit court review of what they do.

The danger of asking the government to give us stuff is that the government becomes more and more entitled to tell us what to do as a consequence. For instance, it's nice to have the government give us healthcare, but a natural and probable consequence of the government paying for our healthcare is the government (and our fellow citizens) feeling they have the right to tell us to get our ass off the couch and maybe push back from the table before we finish all the pudding.

thesquare3 karma

On a less serious note, have you ever considered starting an advice column?

I have a feeling you could give Dan Savage and Slate's Dear Prudence a run for their money.

KenPopehat8 karma

In my copious spare time?

I've occasionally thought of trying to get a column someplace. But the truth is that blogging is fun. I like the medium -- being able to link and control images is a hugely expressive way of adding to words. And I like the interaction with commenters. Well, some commenters.

suburban-dad3 karma

Just wanted to tell you your lawblawg is on my daily list of sites-I-cant-miss-today, and wanted to give you and your team mad props.

Question: Were you ready to be outed when it happened or did it happen to quickly for you to care?

KenPopehat6 karma

For a few years the occasional journalist or law student figured out who I was. I reached the point where I realized that I was a partner in my own firm and my job was secure and I didn't care about the anonymity any more. So yes, I was ready. Sometimes the crazy stalkers make me rethink it, but for the most part I am happy with the decision. I've met interesting people because of it.

sleepyjack23 karma

Hi Ken, I'm a big fan of the blog, keep up the good work. I guess I'll throw a question in too. What doctrine or issue do you see as the biggest threat to free speech?

KenPopehat8 karma

Right now, in the United States, I think that creeping "anti-bullying" sentiment is one axis of censorship that could lead to serious reduction of rights. My greater fear, though, is the ever-looming threat of what another grave terrorist attack could scare us into doing. THe First Amendment has not been the hardest hit post 9/11 compared to the 4th or 5th. It could get much worse.

jkgator112 karma

I am currently working a state public interest job in children's welfare (not going to be more specific.) My dream job is to be an AUSA. Got any advice? I am a fairly recent graduate and am pretty young. Essentially, I took the first job that came my way knowing my student loans needed to be paid. How can I work my way up to the USAO?

KenPopehat4 karma

Depends on what part of the country you are in. Different offices recruit different ways. The smaller and more remote offices can often be harder to break into because people stay longer. I'd try to meet some current or former AUSAs in the market you are targeting and ask them how the office generally recruits. But some of the most promising feeder methods are positions as a DA (especially white collar work), federal clerkships, and (in some markets, even though it's perfectly silly) BigLaw.

Encilawguy2 karma

In your opinion, what are the most difficult ethical issues an attorney faces when posting articles/psuedo-advice/news online?

Any specific examples of something you published publicly and later regretted? Even if it wasn't a breach of any ethical rules?

Not that I face breaching any ethical rules on a regular basis...I'm just asking..for a friend.

KenPopehat6 karma

  1. Making sure you aren't giving legal advice to specific people.
  2. Making sure you aren't sockpuppeting -- improperly trying to influence a case in which you are a participant. An AUSA got in trouble for that in Louisiana. Openly noting the progress of a case is fine.
  3. Not talking out of your ass on issues that could hurt people if they take your bad advice.

I've regretted the tone of things. I've sometimes regretted picking fights with crazy people. I've rethought outing someone who sent me a hostile and stupid email. Otherwise, I don't think so.

crc1282 karma

I hope you're still here! Love your blog, especially the recent in-depth coverage of Prenda.

In that vein, though not as overtly stupid as Prenda, have you in your background dealt with Patent Trolls? I'd love to see your pen applied to those guys. If you look into the Project Paperless case, while they were defeated, they have reformed and are now sending threatening demand letters from a constellation of LLCs that they have formed. They're targeting smaller, mom-and-pop operations, hoping people will just pay up.

KenPopehat3 karma

It's one of those areas where I have read a bit and bookmarked it to read more, with the idea I might want to write about it some day. It's just been such a target rich environment recently, and patent law is outside my wheelhouse. Plus, my sense is that some other writers have been doing a great job on it, and I tend to avoid subjects where I really have nothing to add. (Some may disagree on whether i am successful on that.)

bl1y2 karma

2 questions for you, Ken. The first is in three parts.

(1)(a) What forms of marketing do you use for your firm, (b) how much do you spend on marketing, and (c) does this affect what you charge clients?

(2) Did you have to get a new hat when Benedict resigned?

KenPopehat2 karma

(1)(a) Well, we have a web site, and I think we paid for some marketing service from one of the big providers. But we're in a niche that is powerfully based on word of mouth and referral, not marketing. Our price point -- at least for my practice areas -- is out of the range of most people who choose a lawyer based on marketing. Which is, by the way, a terrible way to choose a lawyer.

(b) No idea. Not a substantial amount.

(c) No.

(2) No. Hey, I should have! Dammit!

dippy_eggs2 karma

Hi Ken,

Easy one for you, will you be attending the next OSC hearing for Prenda?

Thanks for all your coverage on Prenda to date.

KenPopehat4 karma

Yes, I will. If I can get a seat. And write it up afterwards.

l33tb3rt2 karma

How exactly would interstate slander/libel cases work? For example, if two people had a beef but one lived in Hawaii, and the other lived on the mainland, how would that play out? Similarly, how do state borders impact cyberbullying enforcement?

KenPopehat4 karma

"How exactly" is a very open-ended question.

But it would generally work like this: the plaintiff would choose where to sue. If the plaintiff sues in the defendant's home state, where the allegedly defamatory thing was uttered, there's no problem: there's clearly jurisdiction over the defendant, and the law of the defendant's state applies.

The issues arise when a plaintiff tries to sue the defendant in the plaintiff's home state. Whether that state -- Hawaii, in your example -- has jurisdiction over the defendant is based on a number of factors. A court might have GENERAL jurisdiction over the defendant -- jurisdiction for purposes of any case. For instance, a defendant who lives in California but travels to Hawaii monthly, owns property there, and sells goods in Hawaii might be subject to general jurisdiction over any case in Hawaii. A defendant might also be subject to SPECIFIC jurisdiction, meaning the defendant's acts in that particular case subject them to jurisdiction in that case. For instance, if somebody mailed a letter from California into Hawaii making a false statement about a Hawaii resident, a court might hold that it had specific jurisdiction over the case because the California resident deliberately sent a communication into Hawaii.

The tricky issues arise from internet communications. The law is still developing over the extent to which communication like blogging, or commenting on a forum, should be treated as creating specific jurisdiction in every state in which someone can read it. The emerging and better rule requires a showing that the defendant targeted expression to a particular jurisdiction or intended for it to have an impact there.

Allahballah2 karma

If you were on death row and your only choices for lawyers were Brett Gibbs and Joseph Rakofsky, who would you choose?

KenPopehat2 karma

What method of execution am I facing here? Will I bet getting Korean BBQ for my last meal?

Starrion2 karma

Hi Ken

I have been following for a long time.

I applaud your efforts on behalf of bloggers.

Do you see a path forward on fixing the current copywrite mess?

Have you actually met Marian Call?

KenPopehat3 karma

  1. David is the Marian Call fan -- I mean to listen to her based on his recommendation. In my copious spare time.

  2. I'm not primarily a copyright lawyer. I'll only say this: I think applying the Righthaven model to copyright -- selling or acquiring copyright for the sole purpose of empowering litigation -- does not advance any of the interests underlying copyright, and I hope to see judges stamp it out.

thesquare2 karma

Is the Prenda situation a sign that the judicial system needs an overhaul to stop shakedown trolls, or is it a sign that the system (eventually) works, and that bad actors will get called out by an angry judge and a great pro bono attorney?

KenPopehat2 karma

Some of both. I think that the very public blowup over Prenda will lead to national attention that will make it easier to defend against copyright trolls all over. It may even be the hook needed for some legislation (though the RIAA and other forces are too damn powerful). But now, at least, there will be strong judicial opinions to cite.

I think the system has taken too long to catch up with this scheme, though, which is characteristic of the system.

MarijuanaMajority2 karma

Ken, do you agree with the police officers, judges and prosecutors of Law Enforcement Against Prohibition that it's time to begin changing our drug laws?

KenPopehat3 karma

Yes. I favor a serious national debate leading to decriminalization.

It will happen right after my hair grows back.

j_one_k2 karma

Hi Ken,

Point of curiosity I had about the Westboro Baptist Church situation.

Suppose there was convincing proof that the WBC was in fact organized for the profit of the Phelps family through provoking lawsuits. That is, they picket for the purpose of making money through either lawsuits against anyone who assaults or illegally interferes with the picketers, or lawsuits against the WBC that earn legal fees for the Phelps family lawyers under Section 1988. (As far as I can tell, this isn't the case, despite being a popular internet theory, but suppose it were.)

Would any of this push the WBC's actions out of free speech protections?

Thanks for all the informative and entertaining blog posts!

KenPopehat4 karma

I'm not sure it would. Someone writing for fun doesn't have more rights than someone writing for money. Unless the WBC activities veer into advertising, I think they maintain the same rights, just as TV personalities or published authors do.

SwimmingNaked1 karma

How would you have handled the case involving Aaron Schwartz?

What changes to the rules you live under would you put in place to prevent this sort of thing from occurring?

KenPopehat3 karma

I don't know enough about how the case was prosecuted to say definitively. I've been distracted by the attendant issues of depression.

But, as I said in another answer, it's misleading to suggest that the changes should be focused on cases like Aaaron's. If you don't like Aaron's case, you are looking at issues that happen all the time in all sorts of cases. It's not just a matter of amending the federal computer fraud statute.

sofaofthedamned1 karma

Hey Ken - love the blog. However, i'm British and live in England, therefore i'd really like somebody like you over here to do the same. Our legal world is almost as messed-up as yours.

KenPopehat4 karma

I thoroughly enjoyed my six months in Oxford, and miss England. You guys do have some good lawbloggers, though, don't you?

Loweeel1 karma

Planescape: Torment -- Great or Historically Great?

How much did you contribute to the Tides of Numenera Kickstarter?

How sad are you that TJIC's blog is apparently gone for good?

KenPopehat3 karma

Here is where my co-bloggers abandon me and tar and feather me.

I never finished Torment. I'm terrible at finishing games. I'll probably contribute to the kickstarter and never play it.

TJIC's blog was great. I suspect it will return. I look forward to TJIC telling his story.

DickWhiskey1 karma

You are a quite influential blogger (in your sphere, at least). How much influence do you think blogs have on the maintenance and evolution of social mores? For example, do you think that your blogging efforts regarding the First Amendment, censoring, and cyberbullying can have a positive affect on the climate at large, or are you essentially preaching to the choir?

KenPopehat3 karma

On the one hand, my traffic is puny compared to comics, sports, or porn.

On the other hand, a blog like ours can eventually have an impact on other bloggers, and in the aggregate can have an influence on the sort of people sometimes called "the chattering class" or "opinion makers," and can ultimately have an influence.

So, for example, I see more people citing -- directly or indirectly -- what I wrote about that awful "fire in a crowded theater" cliche. It's a powerful and influential cliche in American thought, but if I have some impact in blunting it, I am happy. http://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/

[deleted]1 karma


KenPopehat2 karma

True. The relevant law in America is Section 230 of the Communications Decency Act. Excellent summary here:


TaoGaming1 karma

Off topic, but here goes. You (at least, I think it's Ken, but it may be someone on Popehat) are into board games. (As am I, if you search for my blog you'll see it).

So -- What'cha playing these days?

KenPopehat3 karma

My wife gave me Agricola for Christmas. We played it during a long weekend recently. I liked it a lot. A bit tough to learn, but we're getting into it. She's a huge Catan fan, though, so that's always high on the list.

[deleted]1 karma


KenPopehat2 karma

Nope. There are thankfully few things a client could say or do that I am obligated to reveal. Contemptuous language is not one of them.