The UnConviction: Why DPAs Don’t Fit The Rhetoric

At Cato At Liberty, Walter Olson raises a vexing problem that often flies under everyone’s radar. There’s a “legal system” for corporations that’s largely distinct from the one regular folks get to see, or even hear about.  And it usually ends with something called a “DPA,” a deferred prosecution agreement, which is a settlement reached between the government and a corporation.

Deferred prosecution agreements and their close relatives non-prosecution agreements (DPAs/NPAs) have become a major tool of white-collar prosecution in recent years. Typically, a business defendant in exchange for escape from the costs and perils of trial agrees to some combination of cash payment, non-monetary steps such as a shakeup of its board or manager training, and submission to future oversight by DoJ or other monitors. Not unlike plea bargains in more conventional criminal prosecution, these deals dispense with the high cost of a trial; they also dispense with the need for the government to prove its allegations in the first place.

DPAs may also pledge a defendant to future behavior that a court would never have ordered, or conversely fail to include remedies that a court would probably have ordered. And they may be drawn up with the aim of shielding from harm — or, in some other cases, undermining — the interests of third parties, such as customers, employees, or business associates of the targeted defendant, or foreign governments.

The comparison to plea agreements may be unfortunate, as they are really nothing like plea agreements.  Nobody gets indicted. Nobody gets arrested. Nobody spends a night or ten in jail.  And there’s no perp walk.  It starts with a target letter, and ends with nice cup of Earl Grey tea, during which a very well paid lawyer signs the DPA, hands over a check (not really, as it’s all done electronically) and they chuckle over golf course stories while the youngest member of the prosecution team trots over to a courtroom to have a judge sign off on the DPA to make it all official. Continue reading

The Pong of Law

There is a near-religious belief that the vast number of people who fall into the category of legally underserved are not only worthy of legal attention, but offer a huge opportunity for those who want to chase after their pennies.  It’s called A2J, for Access to Justice, because Legally Cheap would make for a lousy brand.

These are not the indigent, of which there are many. and for which a very different sent of concerns apply. If there’s no money for food or clothing, there’s no money for legal doodads and gadgets. The A2J industry wants nothing to do with them. They don’t even have pennies to chase.

Rather, these are the people who have jobs, money and assets, but prefer to allocate their scarce resources elsewhere. Like the newest iPhone, or hip fashions. Lawyers? Not so much. It’s not that they can’t afford a lawyer, but that they just don’t want to squander their hard-earned money on competent counsel. The priests of A2J cry sad tears over their plight, because they lack “access” to the legal services they desperately need but cannot find at the price they want to pay. Which is pretty much nothing. Continue reading

Feelings, Deconstructed

As long-time (or casual) readers of SJ may already be aware, I’m not a big fan of feelings. It’s not that they don’t have their place, but they tend to be used inappropriately, as in lieu of thinking. History prof at UNC, Molly Worthen, sees the problem as well.

IN American politics, few forces are more powerful than a voter’s vague intuition. “I support Donald Trump because I feel like he is a doer,” a senior at the University of South Carolina told Cosmopolitan. “Personally, I feel like Bernie Sanders is too idealistic,” a Yale studentexplained to a reporter in Florida. At a Ted Cruz rally in Wisconsin in April, a Cruz fan declared, “I feel like I can trust that he will keep his promises.”

These people don’t think, believe or reckon. They “feel like.” Listen for this phrase and you’ll hear it everywhere, inside and outside politics. This reflex to hedge every statement as a feeling or a hunch is most common among millennials. But I hear it almost as often among Generation Xers and my own colleagues in academia. As in so many things, the young are early carriers of a broad cultural contagion.

A contagion, indeed, although it might have been worthwhile to leave “believe” out of the mix, since that’s the nature of religion. Priests believe.  Continue reading

Critically Acclaimed Investigative Journalist Steven I. Weiss Clearly Proves Jeff Jarvis

Whom are you going to believe?  Some fat, bald, funny looking lawyer or an award-winning investigative journalist? News anchor/managing editor @tjctv?  Steven I. Weiss, clearly.

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When Empiricism Fails To Produce The Outcome “Everybody Knows”

Stanford University was under the gun.  Its alumni were outraged threatening to withhold donations. What could cause the graduates of an elite school on the wrong coast to feel such anger?  Results that didn’t confirm their bias.

Moreover, Stanford’s chosen methodology and presentation of data produces misleading results. For example, Stanford has made much of the finding that just 1.9% of its students experienced sexual assault, but the 1.9% figure averaged together the experiences of men, women, and gender-diverse students. Similarly, the 1.9% figure — as well as other statistics — is derived from a considerably narrower definition of sexual assault than the definition used by the AAU survey and most of our peer institutions. Under Stanford’s definition, some behavior that would constitute a felony would be classified as “sexual misconduct,” rather than as assault.

These and other problems seriously undermine the value of the survey in addressing sexual assault at Stanford.

Everyone knows there’s an epidemic of rape and sexual assault on campus,  Rape is more prevalent on campus than in prison. Everyone says so. Everyone. Except the damn empirical survey. This cannot stand, say the alums. There must be rape, so there can be rules and procedures to prevent rape. If there’s no rape, than whatever will they do?

It’s not that Stanford’s administration and faculty didn’t understand the problem, and the depth of feelings. And they did the best they could to calm things down. Continue reading

Ray Kelly: Disinvited (But Still Full Of Shit)

It’s absurd that the boneheads at Brown made former New York Police Commissioner Ray Kelly a sympathetic victim. Yet, they did, or more specifically, they drowned out Kelly to prevent him from giving a speech he was invited to give.  As FIRE president Greg Lukianoff calls it, disinvitation.

At the College Fix, they note that Kelly finally got his chance to speak at the William F. Buckley Program’s second annual “Disinvitation Dinner.”

Kelly was honored by Yale’s William F. Buckley, Jr. Program at its second annual “Disinvitation Dinner” at the Plaza Hotel on Thursday night. Last year’s inaugural dinnerhonored columnist George Will, who was disinvited from speaking at Scripps College.

The response to Kelly’s 2013 lecture at [Brown], which was canceled after repeated disruptions by protesters, ended up altering Brown’s entire policy for guest speakers and allowing student activists to create a do-not-invite list going forward.

And like that, Ray Kelly became a hero of free speech.   Continue reading

Mocking The Victim, The Indigent Defendant

In a New York Times op-ed, Fordham prawf John Pfaff shows yet again that he’s good with numbers.

Yet despite this constitutional guarantee, state and county spending on lawyers for the poor amounts to only $2.3 billion — barely 1 percent of the more than $200 billion governments spend annually on criminal justice.

Worse, since 1995, real spending on indigent defense has fallen, by 2 percent, even as the number of felony cases has risen by approximately 40 percent.

When you step back from local indigent defense spending, this is what it looks like. Sure, some want to tell you about the faces of the innocent individuals sitting in cells for months awaiting a lawyer, but those stories only sway the deeply empathetic.* The system has no feelings. The system has balance sheets and ledgers, which ultimately spew out the amount left over that can be used to buy constituent happiness, campaign donations and re-election. Continue reading

The Constitution, Huffington Post Version

It’s not that Justin Curmi doesn’t deserve some sympathy for his struggles. It couldn’t have been easy for him.

Justin Curmi is a graduate from Baruch College in Manhattan, New York. He received his Bachelor’s degree in Philosophy and Political Science. His college career was a battle due to personal battles with dyslexia. These battles have forced him to learn how to teach himself difficult subject matters without help. Through anguish and painful moments, he has overcome major hurdles that dyslexical presented to him. Now, he is looking towards unorthodox thoughts and methods to analyze political matters.

Aside from an excessive use of the word “battle,” there is no apparent reason why he was “forced” to “learn how to teach himself difficult subject matters without help.” One of these battles appears to be writing ability. Another, reasoning ability. The bio would be understandable but for one thing: this is Curmi’s bio at the Huffington Post, where Curmi has been given the opportunity to use this soapbox to explain his understanding of the Constitution.

Thus far, Curmi has written three posts on the subject.  His first deals with the Preamble: Continue reading

Mind The Gap: Outrage For The Wrong Reason Redux

If you didn’t know better, you would scream that this can’t be.  After all, this wasn’t a case of some post hoc regret, or a couple of beers used as an excuse to claim lack of consent when there was consent aplenty, but no personal responsibility. As the Guardian explained, this was the real deal.

An Oklahoma court has stunned local prosecutors with a declaration that state law doesn’t criminalize oral sex with a victim who is completely unconscious.

The ruling, a unanimous decision by the state’s criminal appeals court, is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape.

What sort of insanity can this be?  Does this prove how the courts care nothing about rape and sexual assault? Did the Oklahoma Court of Criminal Appeals blame the victim? Did they care nothing about this unconscious young woman?  Outrageous!

Except it’s a lie. The court did nothing of the sort. Continue reading

Satire And Baekdal’s Sad Feelings For Jeff Jarvis

There was, according to your perspective, a hysterically funny/horribly wrong clash on the internet about somebody named or not named Jeff Jarvis.  One Jeff Jarvis (not the pediatrician, @drjeffjarvis, but the egomaniac who thinks he’s the only Jeff Jarvis in the world).

The fake Jeff Jarvis published a piece about the real Jeff Jarvis in Esquire, and the real Jeff Jarvis, a journalism professor, used his clout to get Esquire to remove it. Which, naturally, caused all hell to break loose, especially when the real Jeff Jarvis made law-noise, because what about his rights?!? For a ‘splainer, see Ken White’s dissection at Popehat.

In defense of his friend’s honor, a fellow named Thomas Baekdal propounded the curious challenge of arguing that satire is only satire if you tell everyone it’s satire.  Otherwise, it’s a lie.

The first thing you think when hearing about this is ‘that it can’t be right’. How can a professor of journalism be instrumental in taking down a satiric article? Doesn’t that go against everything we know as journalists? Aren’t we supposed to protect satire as a form of free speech?

Well, yes. But this wasn’t satire.

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When Felons Vote

Terry McAuliffe did something rare in politics. He did something. He did something that was sure to be unpopular in certain circles. And yet, he did something.

Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing the Republican-run legislature. The action effectively overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans.

Whether McAuliffe’s originalism is accurate or facile historical revisionism, so trendy these days, isn’t particulary important. All but two states restrict voting by felons, so it’s not about Virginia’s particular brand of racism.  Then again, tying a move to racist motives makes it more palatable to supporters and more difficult to oppose, which explains why McAuliffe is a governor (even if it didn’t help Bob McDonnell enough).

Naturally, the New York Times applauded this bold move, showing its love for McAuliffe’s confession: Continue reading

But For Judges, They Wouldn’t Be Dead In The Name Of Science

This isn’t the sort of thing anybody wants to say, but I hope they were guilty. Because the alternative pushes the boundaries of even the hardest hearted bastard.

The Washington Post published a story so horrifying this weekend that it would stop your breath: “The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”

What went wrong? The Post continues:“Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.” The shameful, horrifying errors were uncovered in a massive, three-year review by the National Association of Criminal Defense Lawyers and the Innocence Project.

Chillingly, as the Post continues, “the cases include those of 32 defendants sentenced to death.” Of these defendants, 14 have already been executed or died in prison.

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