Author Archives: SHG

Of Princes and Princesses Who Say “Yes!”

The Wall Street Journal noted that Princeton has hopped aboard the curtailment of due process rights for male college students.  Wesleyan University has announced that it will require its two fraternities to go co-ed. Forbes pulled down a post by MIT’s Chi Phi fraternity alumni house president and contributor, Bill Frezza, and summarily “fired” him, for writing “Drunk Female Guests Are The Gravest Threat To Fraternities.”  An editorial in MIT’s Tech disavowed his “regressive” victim blaming.

California has now enacted a law, previously discussed as SB 967, requiring colleges to establish an affirmative consent standard, colloquially known as “yes means yes,” for sexual contact.  Sexual assault is anything that isn’t approved, and affirmative consent is an ongoing requirement during the course of human contact.

Contrary to reports, the law doesn’t turn sex into rape per se when one or both have been drinking alcohol, but when one is “incapacitated” such that their consent cannot be deemed voluntary.  It’s a hard line to ascertain, but the message is to err on the side of precaution when drinking is involved. Continue reading

Half Baked

Efforts to try to illuminate legal issues and problems that result in catastrophe often feel a lot like pissing into the wind.  Few who aren’t engaged in the effort get it. Many attribute it to bizarre and ridiculous conspiracies or simplistic hatred of perceived enemies easily cured by resort to a firm and resolute insistence on adherence to constitutional rights, or a well-aimed bullet.

Others, often smart people who don’t realize they’re behaving like dilettantes, come up with half-baked ideas that not only fail to offer anything remotely realistic, but tend to make people stupider by reflecting no grasp of the problem. Continue reading

Sometimes, Video Doesn’t Matter

The allegations against University of Maryland student John McKenna would likely have stuck, but for the fact that it was caught on video.  It was infamous at the time, a happy college kid skipping down the  sidewalk after beating Duke in basketball in 2010.  Then beaten.

It was bad enough that he was beaten. It was worse that they lied about why. Worse still that the cops who could be identified, Reginald Baker and James J. Harrison, refused to give up the names of other cops in riot gear who were also doing the beating.  But that’s before it ended up in court, with Baker and Harrison as defendants instead of McKenna.

The upshot was that Harrison was convicted of misdemeanor assault.  Not much of an outcome, but something.  Hope you enjoyed it while it lasted, as it’s now gone.

IN PRINCE George’s County, it is now clear that the police, without provocation, can beat an unarmed young student senseless — with impunity. They can blatantly lie about it — with impunity. They can stonewall and cover it up for months — with impunity. They can express no remorse and offer no apology — with impunity.

The agent of this travesty of justice, and this impunity, is Judge Beverly J. Woodard of the Prince George’s County Circuit Court.

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Rob Graham: The Best of Intentions

My computer literate buddy, Rob Graham, did the sort of thing knowledgeable geeks do.  Computer voodoo.

In order to measure the danger of the bash shellshock vulnerability, I scanned the Internet for it. Many are debating whether this violates the CFAA, the anti-hacking law.

The answer is that everything technically violates that law. The CFAA is vaguely written allowing discriminatory prosecution by the powerful.

The Computer Fraud and Abuse Act is a disaster, though it’s unclear whether the fault is with the law itself or Congress’ failure to update the law, enacted in 1986, when computers existed mostly as stand alone contraptions.  There was no internet, no world wide web.  Heck, even Gopher was still a twinkle in Mark McCahill’s eye. Continue reading

Unblurring The Ethical Lines

A while back, the question arose whether a poor strategic decision in the Crystal Cox case was the product of choice by her lawyer, Eugene Volokh, or a duty imposed on him because his client demanded it.  The issue arose after Eugene won an important victory in the 9th Circuit, despite his client, but the decision included a sentence that perturbed Cox.

So he moved to excise the sentence from the opinion.  That opened a door to not only revisit the sentence, but slam it shut far harder and more conclusively than in the first instance.  As the sentence was inconsequential to the outcome, it was, to be blunt. an incredibly foolish motion.

The point raised by Eugene, that citation to a New York Times article does not prove the point, has some validity.

A judicial assertion of misconduct by a named person, even a judicial assertion modified with the word “apparently,” could be based on the record in a case, or on authoritative findings by another court. But it ought not be based on a newspaper column, which was written without the benefit of cross-examination, sworn testimony, or the other safeguards of the judicial process. The claims in the columnist’s assertion are neither facts found by a factfinder nor facts subject to judicial notice under Fed. R. Evid. 201.

Of course, the motion presents a potential flaw that neither Cox nor Eugene may appreciate.  While Carr’s article may fall short of irrefutable proof, that doesn’t mean there aren’t a ton of other sources to substantiate the point with overwhelming evidence. Continue reading

But For Video: Extreme Compliance Edition

Before anyone gets too worked up, the officer in the video, South Carolina Highway Patrol Officer Sean Groubert, 31, has been fired from his position and is being prosecuted for his actions.

As the video has already gone viral, chances are pretty good you’ve seen it. But in case you live under a rock:

That the stop was for a seatbelt violation, silly as that may be, really isn’t a material aspect of what followed.  As any cop will happily explain, when you make a vehicle stop, you never know what’s happening in the head of the driver. It’s the unknown they fear most. Continue reading

An Unobstructed View

It’s long been a peccadillo of mine, that when I buy a car, it’s not a free advertising opportunity for the dealer. If they want it to be their billboard, they are free to negotiate for the space. If not, then there is no reason for the dealership’s name to adorn my vehicle.  Most people, however, don’t care.

It used to be a metal plaque drilled into the trunk of the car, which later devolved to a sticker and then, now, a tasteless license plate frame.  Dealers can be so compulsive about their free advertising opportunity that I’ve had one switch out my plain frame for theirs when my car was brought in for service.

They’re ubiquitous, though most do something that has surprisingly been ignored. They violate section 402(1)(b) of the New York Vehicle and Traffic Law, which provides:

Number plates shall be kept clean and in a condition so as to be easily readable and shall not be covered by glass or any plastic material, and shall not be knowingly covered or coated with any artificial or synthetic material or substance that conceals or obscures such number plates or that distorts a recorded or photographic image of such number plates, and the view of such number plates shall not be obstructed by any part of the vehicle or by anything carried thereon . . ..

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But For Video: Black Man With Gun In Wal-Mart Edition (Update)

John Crawford III was shopping at Wal-Mart, which may reflect a questionable choice of venues but is not illegal in these United States.  And still, he ended up dead.  While walking through the store, he picked up an unboxed pellet gun and continued down the aisles, chatting on a cellphone all the while.

Another shopper, seeing Crawford carrying what looked like “an automatic rifle” while black, called 911.  The police appeared with both alacrity and passion, having just been trained to be “aggressive” to stop shooters.  Who doesn’t want to try out their new lessons?

According to the officers, they commanded Crawford to drop the weapon a few times.  He didn’t, so they killed him.  But there’s a video tape, because Wal-Mart. Continue reading

Arrested And Forgotten

It seems impossible to a New York criminal defense lawyer that this could happen, as there is a law, CPL §180.80, that requires a defendant arrested for a felony to either be indicted, given a probable cause hearing or released within 120 (which ends up being 144, because the Legislature forgot about weekends) hours of arraignment.  Is there nothing similar in Mississippi?

Octavious Burks has been in the Scott County Jail since Nov. 18, 2013. Joshua Bassett has been there since Jan. 16, 2014.

A grand jury has yet to indict either man.

They are far from alone. In jails across the state, some are held behind bars more than a year without ever being indicted.

“This is another poor man’s curse in Mississippi,” said J. Cliff Johnson, director of the MacArthur Justice Center at the University of Mississippi School of Law. “It sounds like something that happens in a Third World country.”

This bizarre situation is exacerbated by the fact that Mississippi has no statewide public defender system, and lawyers for indigent defendants aren’t appointed until a defendant is arraigned on an indictment. Continue reading

Believing Is Seeing, and Video Can Make It Worse

It’s a curious notion, since we believe with all our heart that when something appears on video, we all see the same thing, and we do so fairly and objectively.  Yet, as experience shows, that’s not necessarily the case.

See? See it? There it is.  How can you not see it?

Apparently, that fragile device we all possess to some greater or lesser extent, our brain, continues to hamper our ability to be neutral and objective, even when watching a video.  From Science Daily:

Where people look when watching video evidence varies wildly and has profound consequences for bias in legal punishment decisions, a team of researchers at New York University and Yale Law School has found. This study raises questions about why people fail to be objective when confronted with video evidence.

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Tough Farmers (Update)

For the first, and hopefully the last, time ever, a story from Modern Farmer graces SJ.  It’s not that farmers, at least family farmers, don’t live a hard and critically important life.  They are tough people, waking early, working hard, so that we can eat.  While I may not speak for everyone, I like to eat. Every day. But I digress.

Apparently, the USDA feels that farmers are tough people too, but for a very different reason.  And that, combined with the First Rule of Farm Policing, gave rise to a request.

“Submachine guns, .40 Cal. S&W, ambidextrous safety, semi-automatic or 2 shot bur[s]t trigger group, Tritium night sights for front and rear, rails for attachment of flashlight (front under fore grip) and scope (top rear), stock-collapsib[l]e or folding, magazine – 30 rd. capacity.”

In May, the USDA’s Office of Inspector General filed a request for these weapons. But why exactly do they need them?

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Arizona’s “Revenge Porn” Law Challenged

Not that any pass constitutional muster, but of the knee-jerk laws passed to criminalize revenge porn, Arizona’s was among the worst.  On behalf of bookstores, libraries, newspapers and other lawful and First Amendment protected people and entities who would prefer not to be imprisoned for the exercise of a constitutional right, the ACLU and the Media Coalition have challenged the law.

Protecting personal privacy is, without doubt, a laudable goal. Indeed, the ACLU works tirelessly to protect your private data. But Arizona’s “nude photo law” is a seriously misguided attempt to achieve that goal. This new crime is broad and confusing. It applies to anyone who shares a nude image, not just to bad actors who intentionally invade another’s privacy. A prosecutor need not demonstrate that a person had an expectation of privacy in an image before charging you with a crime for sharing it. And the law applies equally to a private person’s hacked naked photo and a beautiful nude at a photography exhibit — because the law’s breadth encompasses truly newsworthy, artistic, and historical images.

As a result, the nude photo law creates bizarre and troubling burdens on speech fully protected by the First Amendment.

To drive home the point, Lee Rowland gives a pop quiz: Continue reading