When It’s Personal, The Virtues Of Due Process Become Clear

What happened in the Dean’s Office at Boalt Hall, the University of California, Berkeley, law school? Enough to get the former dean, Sujit Choudhry, shit-canned as Dean and permanently tarred as a sexual harasser, even though it didn’t go as far as to strip him of tenure and burn a scarlet letter into his forehead. Choudhry is taking his case to federal court, and his friend, Rick Hills, has discovered the virtue of due process.

Five years ago, I criticized my friend Peter Berkowitz for insisting in a Wall Street Journal op-ed that criminal procedures – in particular, the “beyond-a-reasonable-doubt” (BARD) standard — be imported wholesale into university hearings where accusations of sexual misconduct are being adjudicated. Without taking any position on the right standard of proof, I argued that one could not automatically assume that the BARD standard was appropriate for a university’s administrative hearing where the stakes are not personal liberty but rather suspension or expulsion.

The justification for criminal trial procedures favoring the accused is that the social and moral costs of convicting one innocent person vastly outweighs the costs of letting a lot of guilty people go free (the exact ratio of false positives to false negatives being a conundrum in which 1L criminal law professors delight*). The appropriate ratio of false negatives to false positives in the university setting is, to my mind, a closer call. Because the procedural norms for these university adjudications are both hotly contested and reasonably disputed, I urged that the U.S. Department of Education not prematurely centralize them with OCR guidance documents but instead allow universities to experiment with different procedures. (Paragraph broken up because it was too damn long.)

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“Manterrupting” Or Equality: Pick One

During the presidential debate, Donald Trump interrupted Hillary Clinton. A lot. It may be more accurate to call it interjecting, but that’s neither here nor there. What it was not was Trump allowing Clinton to speak without his speaking.  To my ears, it was rude.

Perhaps it’s my experience from the courtroom, from oral argument, but each side gets its time to speak unmolested by the other. When it’s done, then it’s the other side’s opportunity to respond. It’s not merely a matter of courtesy, or an unholy love of order, but effectiveness. Interruptions are negative distractions, reflecting poorly on the person doing the interrupting. Do they lack impulse control? Can they not control themselves long enough to let someone else speak? Are they so narcissistic that other people’s speech is inconsequential in comparison to their need to speak, whenever they feel the urge? YMMV, but that’s mine.

But in satisfaction of its obsessive/compulsive needs, the New York Times published an op-ed explaining that this wasn’t merely interruption, but “manterruption.” Jessica Bennett employs the word she coined:

At the 26-minute mark, the website Vox posted a graphic showing that Mr. Trump had interrupted Mrs. Clinton a whopping 25 times. Shortly thereafter, The Huffington Post proclaimed, “This is what manterrupting looks like.”

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Sex Offenders International

It would have taken enormous courage to say no because it was a shockingly awful idea that played well to the simplistic and ignorant.  President Obama lacked that courage. Perhaps he’s too busy with his lame duck session. Perhaps he feared that a courageous move would have affected the chances of the Democratic candidate for president. Perhaps his talk of reform was just talk, and he’s every bit as good with bad criminal law policy as everyone else.

No matter. He signed it. It’s now law.

After months of hype about the historic bipartisan consensus that we must make the American criminal justice system less harsh, President Obama finally signed a justice reform bill into law Monday. There’s only one problem: Instead of making the justice system more fair and less punitive, the new law will make it more vindictive and petty. Specifically, it will require people who have been convicted of sex crimes against minors to carry special passports in which their status as registered sex offenders will be marked with conspicuous identifying marks.

This is the stuff that’s easy to sell, as it plays into people’s “common sense” fears. Child molesters? Screw them. There is no one more despised than a child molester. There is no harm to be done to them that’s too harsh.  And if it was your child, you would . . . but that’s not the point at all, of course. Continue reading

The Social Justice Inquisition Murdered Harambe (Update)

Some memes make me chuckle. Most remind me that I’m not twelve anymore. The “dicks out for Harambe” meme is squarely in the second category. I fail to find it funny. Not even a little bit. It’s not that I find it offensive, but just, well, stupid. Clearly, whatever it is that turned the phrase into a meme flew over my head. That happens when you’re not twelve.

But then, so too did the outrage that struck University of Massachusetts at Amherst.

Poor Harambe. The gorilla murdered at the Cincinnati Zoo after a child wandered into its enclosure has now essentially suffered a second, equally odious death: this time at the hands of humorless University of Massachusetts residential advisors who told students to stop making Harambe jokes.

These jokes “are not only derogatory but also micro-aggressions,” two RAs wrote in a letter to the UMass-Amherst students who live on their floor. Failure to desist could even be a violation of Title IX, they suggested.

At least there appeared to be a distant, if disconnected, reason for this. Continue reading

The Thin Line Between De-Escalation And Death

The video was recorded by private investigator Ken Sheppard, who was doing his job.

It was just a routine workers’ compensation fraud case for Ken Sheppard.  Show up for a spot check, do some surveillance of the subject and keep it pushing.  But on March 3, 2014, it was anything but routine for the renowned private investigator known for busting reality TV series “Bridezillas” star Anita Maxwell for insurance fraud.

On location in Montrose, California, a city with just under 20,000 residents and less than one percent of them African-American, Mr. Sheppard was conducting regular surveillance of a subject while parked in his black Chevy Tahoe.

Black guy in a car, when LA County Sheriff’s Deputy Tai Plunkett came upon him. Plunkett didn’t know who he was or why he was there. Ignorance was a good enough reason. Continue reading

Dead Men Tell No Tales

For a bright shining moment, it was on everyone’s radar. A nation watched in horror as young black men lay dead on the street. And then it was gone, hijacked by shrieking children who were not only still alive, but amongst the most privileged in America. I try not to express emotional appeals, but this one was hard to take.  No, your hurt feelings about not being made to feel sufficiently loved are not comparable to a guy with a bullet in his heart.

Then there were three more dead black men in a week, and everyone refocused.

And it’s about to slide back into the cesspool of vagaries.

Another set of black men killed by the police — one in Tulsa, Okla., another in Charlotte, N.C.

Curious that Tyre King’s killing failed to make the cut, but this 13-year-old is dead too. Continue reading

Chased Away

The New York Times endorsed Hillary Clinton for president, because she doesn’t suck as bad as Trump of “her intellect, experience and courage.”  Lionel Shriver explains why it falls on deaf ears.*

Midway through my opening address for the Brisbane Writers Festival earlier this month, Yassmin Abdel-Magied, a Sudanese-born Australian engineer and 25-year-old memoirist, walked out. Her indignant comments about the event might have sunk into obscurity, along with my speech, had they not been republished by The Guardian. Twenty minutes in, this audience member apparently turned to her mother: “ ‘Mama, I can’t sit here,’ I said, the corners of my mouth dragging downwards. ‘I cannot legitimize this.’ ”

Stephanie West Allen had sent me a link to the Guardian story at the time, She didn’t like Shriver’s book? That’s fine. She didn’t agree with what Shriver had to say? That’s fine too. But she could not “legitimize this”? What the hell was that supposed to mean?

I defended fiction as a vital vehicle for empathy. If we have permission to write only about our own personal experience, there is no fiction, but only memoir. Honestly, my thesis seemed so self-evident that I’d worried the speech would be bland.

Nope — not in the topsy-turvy universe of identity politics.

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Until The Pepper Spray

It appeared to be an outrageous story. Cops beating a 15-year-old girl who may have been hurt by a car in an accident, but refused treatment. So they beat her, arrested her, pepper sprayed her. Outrageous!

Except the story told wasn’t the story.  The Daily Beast broke the outrage. Boing Boing repeated it.

When a teenage girl riding her bike collided with a car, cops didn’t simply take her to the hospital but instead handcuffed her, pepper sprayed her, and threw her in the back of their squad car.

Certainly sounds outrageous.

Body camera footage released by the Hagerstown Police shows the girl refusing to go with polic before an officer grabs her backpack. Then she is handcuffed and pushed against a brick wall while bystanders gather. “You let that badge go to your head,” one onlooker tells an officer. Continue reading

Argumentum Ad Logicam: Just Don’t

William Barber II, President of the North Carolina NAACP, is certainly positioned well to address what is happening in Charlotte following the killing of Keith Lamont Scott.  It’s no surprise, therefore, that the New York Times has published his op-ed.  It’s also no surprise that Barber has some very thoughtful and thought-provoking thoughts about the protests and riots happening.

Since a police officer shot and killed Keith Lamont Scott in Charlotte, N.C., on Tuesday afternoon, the ensuing protests have dominated national news. Provocateurs who attacked police officers and looted stores made headlines. Gov. Pat McCrory declared a state of emergency, and the National Guard joined police officers in riot gear, making the Queen City look like a war zone.

War zone is an apt description, and one that no one should take lightly. But in his zeal to make his point, Barber indulges in a logical fallacy that has become shockingly commonplace.

Speaking on the campaign trail in Pittsburgh on Thursday, Donald J. Trump offered a grave assessment: “Our country looks bad to the world, especially when we are supposed to be the world’s leader. How can we lead when we can’t even control our own cities?” Mr. Trump seems to want Americans to believe, as Representative Robert Pittenger, a Republican whose district includes areas in Charlotte, told the BBC, that black protesters in the city “hate white people because white people are successful and they’re not.”

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One Drink Isn’t Enough

In contrast to the trend on campus, at the demand of the Department of Education’s Office of Civil Rights, of conflating intoxication with incapacity, the United States Navy-Marine Corps Court of Criminal Appeals, in an opinion by Commander Aaron Rugh, spells it out clearly:

We also emphasize here that the definition of impairment was not nearly as important as informing the members that the impairment must rise to the level of rendering LCpl H “incapable of consenting”—meaning that she was deprived of “the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make [or] to communicate a decision” regarding that conduct to another person. Pease, 74 M.J. at 770.

This is a critical distinction that has been almost entirely lost by those contending that any use of alcohol or drugs vitiates the ability to consent.

Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril. Continue reading

Tenants, Lawyers And Rights

In New York City, a peculiar relationship has long existed between tenants and landlords. There is good and bad on both sides, but they need each other.  There are horror stories about neglectful and abusive landlords, and they’re true. There are horror stories about tenants destroying apartments. As one landlord explained to me, “I don’t take a shit in the hallways of my buildings.” And then there is the most common, most pedestrian of issues, non-payment of rent.

In most places, the payment of rent in exchange for the occupation of an apartment is a pretty acceptable quid pro quo. Not so much in the poorer neighborhoods of New York. When tenants fail to pay rent, often for many months, it raises a new question: what reasons can a tenant offer for their non-payment? New York City has robust protections for tenants, far beyond what a lease provides, as a result of some of the horrific conduct perpetrated by slumlords and disreputable landlords.

The New York Times, in its neo-typically breathless fashion, describes the asymmetry of resolving landlord/tenant disputes. Continue reading

Loretta’s Gambit: Put Lipstick on Forensic Science

In 2009, the National Academy of Science put out a report, “Strengthening Forensic Science in the United States: A Path Forward.”  The TL;dr was trust nothing. It was all bullshit.

Forensic evidence is often offered in criminal prosecutions and civil litigation to support conclusions about individualization — in other words, to “match” a piece of evidence to a particular person, weapon, or other source. But with the exception of nuclear DNA analysis, the report says, no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.

Following this monumental announcement from this most trusted of sources . . . nothing happened.  Why is hard to say, but the upshot is that a few of us got excited, while the bulk of our nation, not to mention the Supreme Court, continued to love the cute doggies.

It wasn’t that there was “the problem” with forensic science, but a laundry list, from untrustworthy labs, dedicated to creating the veneer of looking official as they returned the result prosecutors needed, from grossly misrepresented accuracy (“to a reasonable degree of scientific certainty, the defendant is GUILTY, GUILTY, GUILTY!!!”), to well-intentioned but deeply flawed pseudo-scientific assumptions represented as actual science, to absolute nonsensical snake oil that had no scientific basis whatsoever. Continue reading