Author Archives: SHG

Rapist Or Innocent? Pick One, UC

Samantha Harris at FIRE is making administrators at the University of Colorado, Boulder, very sad.

Last week, the University of Colorado Boulder (CU) settled a lawsuit brought by a male student who was accused of sexual misconduct. What we know about the settlement should concern everyone who cares about how colleges handle claims of sexual misconduct, because it illustrates who universities are really looking out for: themselves.

Strong stuff.  After all, isn’t compromise a virtue in itself?

On November 7, 2014, the plaintiff, who went only by the pseudonym “John Doe,” filed a complaint against the university in federal court, alleging that the university discriminated against him on the basis of sex, in violation of Title IX, by denying him basic due process in the course of a university judicial proceeding against him for sexual misconduct. In addition to claiming the university used unfair procedures against him, the student maintains that the sexual encounter in question was consensual.

Continue reading

Penn 3L: Due Process Is For Misogynists

The sun rises in the east and sets in the west. Sixteen University of Pennsylvania law professors issue an open letter challenging the school’s new sexual assault policies for the lack of fundamental fairness.  3…2…1…

The Daily Pennsylvanian publishes an op-ed by a Penn law 3L, Emily Turner, calling out their “sexist policy preferences.”

By conflating the extensive procedural protections rightly afforded to criminal defendants with “fundamental fairness” in the context of a school disciplinary proceeding, your letter perpetuates the harmful myth that survivors of sexual violence should be disbelieved, silenced and denied non-criminal relief unless they seek and obtain criminal conviction of their assailant.

Ah, survivors.  The faculty letter was a relatively tepid challenge to the imposition of the Department of Education’s Office of Civil Rights imposition of its “sexist policy preferences,” imposed by fiat without any cognizable authority for such an administrative command, that girls rule, boys drool.  But any challenge that suggests that the accused be given  fundamental fairness is a smack to the face of survivors. Continue reading

The Black Hole of Chicago

The Guardian posted an extraordinary article revealing that the Chicago police maintained a “black site,” an off-the-books holding facility, where they took people who disappeared upon entering.

The Chicago police department operates an off-the-books interrogation compound, rendering Americans unable to be found by family or attorneys while locked inside what lawyers say is the domestic equivalent of a CIA black site.

The facility, a nondescript warehouse on Chicago’s west side known as Homan Square, has long been the scene of secretive work by special police units. Interviews with local attorneys and one protester who spent the better part of a day shackled in Homan Square describe operations that deny access to basic constitutional rights.

This goes beyond shocking.  Sure, in some warped romantic spy-novel sort of way, we’ve come to expect such places for foreign terrorists to be tortured and held away from prying eyes, but not here, not on American soil, not in Chicago. Continue reading

Conor Friedersdorf’s Very Fair Question

At the Atlantic, Conor Friedersdorf starts with a fair point, that cops see the same scenario we do, but through their peculiar lens.  This isn’t meant to suggest anything bad, but rather that we all see things through our own perspectives and biases.

For example, one anecdote concerns a man in the back of a police car who told his arresting officers that he was having trouble breathing. They ignored him. He died. Many who watched the video saw callous cops who placed no value on a human being’s life. But police officers who watched the same tape saw two cops who thought that their seemingly healthy arrestee was faking, as so many people fabricate medical conditions to avoid being taken to jail.

Horribly, this isn’t an uncommon phenomenon.  But if you view it from the perspective of a thousand complaints, only one of which is real, the reaction of police makes some sense, even if it remains inexcusably callous.

But from there, Conor takes the point to a place not so easily explained. Continue reading

The Magistrates’ Revolt Continues: Search Protocol

When D.C. Magistrate Judge John Facciola announced his retirement, and his bench was to be filled by long-time federal prosecutor G. Michael Harvey, with extensive experience in national security issues, a broad smile swept through Main Justice.  Mag. Facciola was a bit tough on warrants for electronic searches, and perhaps Mag. Harvey would be less, well, difficult.

Was the Magistrates’ Revolt over?  There was still Mag. Paul Grewal out of the Northern District of California, but why rush to the left coast when the stumbling block close to home is gone?  But not all search warrant applications happen on a coast, and not all magistrate judges in flyover land are pushovers.

In the District of Kansas, Magistrate Judge David Waxse joined the revolt by refusing to sign off on a DEA search warrant for a cellphone in In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office.  Orin Kerr at Volokh Conspiracy describes the opinion:

Waxse’s opinion is pretty unusual. It includes a long section titled “Applying Constitutional Protections in the Digital Era” that offers an interesting theoretical account of the role of precedent. According to Waxse, magistrate judges should not be overly beholden to Supreme Court precedent when technology changes: Continue reading

The Sliding Scale

One of the dirty little secrets of those who sit on the far side of the courtroom from the jury is that the Innocence Project makes our efforts harder.*  You see, the idea that an innocent person has been wrongfully convicted is horrific to all good people, Justice Scalia excepted.

The good that comes of it is that the mechanisms giving rise to wrongful convictions are put under scrutiny, shown to all the world as junk in either their application or effectiveness.  The bad is that it focuses public concern on the innocent, as if those are the only people entitled to our concern.  The guilty are throwaways.

The fact is that most defendants are guilty.  Maybe not guilty as charged, as overcharging is a rampant problem given that prosecutors are trained to charge hard and fast, to use charges to coerce outcomes, whether cooperation or plea. But then, most people can’t be bothered parsing the details of a prosecution for such minutiae as how guilty a person is, what did he do and what didn’t he do.  Guilty is guilty, and we have enough on our hands worrying about the innocent that there is little room left to concern ourselves with the guilty. Continue reading

Babes In Toyland (Or How Kid Prosecutors Dictate Outcomes)

At Popehat, former federal prosecutor Ken White writes of the revenge porn slimebag, Hunter Moore, plea that will put him in prison.

For better or worse, Moore’s plea agreement shows that the recommended sentence under the federal sentencing guidelines is quite lenient: the parties stipulate to start at an offense level of 8, which permits probation as a sentence. The government may well argue for multiple enhancements, but the likely range of recommended sentences is low. But the government exercised its power to make Moore plead to one count of aggravated identity theft, putting a mandatory-minimum two year floor on his sentence, on top of which the judge will impose the guideline sentence. Moore’s quite fortunate that the aggravated identity theft statute is relatively lenient about mandatory minimums; it gives the judge discretion whether to make them consecutive when there are multiple counts. In other words, if the feds made Moore plead to five counts of aggravated identity theft, the mandatory minimum sentence would still be only two years.

Regardless of whether you think a mandatory minimum of two years, with the potential for significantly more, is adequate retribution, his sentencing guidelines at level 8 would have otherwise essentially assured him a sentence of probation.  Instead, he’ll get prison.  Continue reading

The Territory

Stephanie West Allen sent a video my way, responding to an op-ed at WaPo about how feminist writers are considering retirement rather than suffer the slings and arrows of outrageous fortune. Michelle Goldberg writes:

This is a strange, contradictory moment for feminism. On one hand, there’s never been so much demand for feminist voices…

On the other hand, while digital media has amplified feminist voices, it has also extracted a steep psychic price. Women, urged to tell their stories, are being ferociously punished when they do…

By “ferociously punished,” Goldberg means two things.  First, that they receive crude, violent or flagrantly offensive responses, devoid of substance and vicious in their threats or rhetoric.  Second, they endure criticism of their positions, arguments and “facts.” Continue reading

Bad Cops, Bad Cops, What You Gonna Do?

Among the many dreams of those of us who keep an eye on police misconduct and abuse is the creation of a database of those police officers who engage in impropriety, a clearinghouse of bad cops.  This has been tried by a number of individuals and organizations, most small and limited in their reach.

While an interesting source of information on occasion, rarely has it served its lofty goal.  The Legal Aid Society in New York City is trying to do better.

The largest organization of public defenders in the country is building a “cop accountability” database, aimed at helping defense attorneys question the credibility of police officers in court. The database was created by the Legal Aid Society, a New York–based nonprofit that represents an average of 230,000 people per year with a staff of more than 650 lawyers.

The database already contains information about accusations of wrongdoing against some 3,000 NYPD officers, and is being used regularly by Legal Aid lawyers. The ambition behind the project is to create a clearinghouse for records of police misconduct—something the NYPD itself does not make public—and to share it with defense lawyers all over the city, including those who do not work for Legal Aid.

Continue reading

The Dangling Conversation

It was a rushed conversation, a reporter from somewhere who needed a quote to go with his story. I was on my way out, but took his call to lend him a hand. I appreciate the problems reporters have in getting hold of someone when they’re on deadline, and he had tried another lawyer who had no clue what to say, so he referred the lawyer to me.

I wanted to help, as I knew the answers to his questions, but there was a problem.  The reporter was calling me from his cellphone.  About every third word was lost. Bad connection? Walking around? Beats me.  I told him that he was breaking up, and so he did whatever he did and asked if it was better. It was, but that only lasted until he started talking again. It went back to bad almost immediately.

Whether he could hear me was unclear.  He didn’t complain, but then, maybe he didn’t care or was so used to bad reception on his cellphone that it was normal for him.  Afterward, I wondered whether he heard what I said, or only two-thirds of it. Or less.

My complaints about cellphone reception are nothing new.  Long ago, I faced the message on my voice mail from that new arrest that was incomprehensible. Continue reading

Like A Rock

The speeches flowed.  The reports damned. Ah, yes, it would all change.  Rikers Island would no longer be the cesspool of violence it had been since, forever. Important people said so. That was August, 2014.

On Sept. 2, four correction officers pulled Jose Guadalupe, an inmate classified in medical records as seriously mentally ill, into his solitary-confinement cell at Rikers Island and beat him unconscious.

Details?  Sure.

Rikers Continue reading

The Right To Disagree (No Matter How Mind-Numbingly Stupid)

In the Age of Disinvitation, it’s to Ohio State’s credit that K.C. Johnson was not only invited to speak, but allowed to speak. Prevailing collegiate wisdom is that no sounds should be uttered that could hurt any students’ feelings, and K.C., if nothing else, was going to say things that would make students sad.

Johnson, who co-wrote the book about the false rape allegation against the Duke lacrosse team, has been trying to bring sanity back to the debate over how college campuses handle sexual assault accusations by explaining repeatedly that accused students should not be convicted based on an allegation, without the ability to defend themselves.

And that’s where the activists disagree.

After all, hearing words that don’t confirm their deeply held feelings has become unacceptable in the world of intellectual growth and freedom.  It’s both the nouvelle view of free speech, redefined to mean only speech with which students agree, combined with the neo-feminist view of rape being conclusively proved by accusation, false or not. Continue reading