Category Archives: Uncategorized

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

Without The Video: The Worst Thing Charlotte Could Possibly Do

On October 1, a North Carolina law limiting the release of video of police goes into effect.

Under HB 972, also known as the “Body Cam” bill, recordings from body- or dashboard-mounted cameras can only be released to the public through a court order, instead of via a public records request. Those captured on police audio or video can ask to hear or watch the footage, though authorities can deny that request pending a judge compelling them to comply. Release of recordings to prosecutors would be permitted.

The purported rationale is that it protects the privacy of not only police, but suspects, victims and witnesses. Damn thoughtful of Gov. Pat McCrory to be so concerned with the privacy of defendants. Too bad that nobody’s buying.

But October 1st is more than a week away, and at the moment, Charlotte is burning.  Tulsa figured out how to address the loss of trust and faith in its police. Continue reading

Starting The Federal War Against Cyberharassment

Off the radar of most people is a thrust to create a federal law enforcement presence in making the internet “safe,” and that includes putting the FBI on the job. Rep. Katherine Clark (D-MA) has introduced a bill to require the FBI to track “cybercrimes” and figure out how to win the “war” against them:

Under the new law, the FBI would add “cybercrimes against individuals” – online stalking, harassment, and threats – to its main crime reporting systems. The attorney general would release an annual summary of the cybercrime data, and the Department of Justice would have to come up with a national strategy for reducing these online crimes.

Clark’s rationale is rather unsophisticated:

“If the FBI can provide data on murders and robberies and arson, they should also be able to collect data on the number of cyberstalkings and any other cybercrimes against an individual,” Ms. Clark told Passcode.

There is a rather obvious difference between murders, robberies and arson, and cyberstalking, of course. The former crimes are well-defined. The former crimes don’t implicate constitutional rights. This eludes the good representative, perhaps because of the voices whispering in her ear. Continue reading

Fault Lines’ Holes: Plugs Needed

Our resident prosecutor, Delaware County, Ohio, assistant prosecuting attorney Andrew King gave me an elbow to the ribs the other day.

It is probably no surprise that here, at Fault Lines, there is not a lot of support for civil forfeiture.  It might have something to do with the criminal defense bias.

He’s right, and wrong.  The concept of Fault Lines is to have all legitimate voices in the criminal justice system heard. That means the voices that make you feel all warm and fuzzy, as well as those that infuriate you. Elsewhere, you find validation. At Fault Lines, leave your confirmation bias at the door. This is meant to be real, whether you agree with it or not.

But I added a footnote to Andrew’s post (because I’m the managing editor and have the keys to the backdoor). Continue reading

Known Facts And Three Dead Black Males

The sensibility was captured when Elie Mystal offered his reaction to the inevitable calls for “calm.”

F*ck calm.

What we know with certainty is that three black males, one a 13-year-old, are dead.

But don’t tell me to be calm. Calm is off the table.

When last I asked Elie about such things, he made a point worth repeating. He’s placed himself in the position of the white man’s black friend, writing at Above The Law at a time when bad things are happening. His audience is comprised of white Biglaw wannabes whose primary interest is what their firm’s bonus will be, or insipid SJW whiners seeking comfort from their deep fear of personal inadequacy.  Yet there he is, trying to explain what is happening because he’s the designated black guy, double Harvard notwithstanding. Continue reading

Nature v. Nutjob

In the comments to a post at SJ, a deeply passionate ally did his utmost to “dismantle” my frat bro “Klan circle jerk” to protect the honor of fragile womanhood. It was, to be kind, an interesting exchange.

More breaking news! A frat boy condoning non consensual sex-shocking!! You’re a mysogynist…sure you can have problems with the article, but you condone rape here and need to be called for it by other men. pink panty dropper drink…gee whatever do You mean?? im sure you felt Brock Turner should’ve gotten off too…you are the problem-not the author and not the drinking…you and your beliefs and actions…look back decades later with fondness LOL-tell that to the scores of women being raped by your bros. I’m sure You won’t publish this-bros hate to be challengers or have to think deeply about anything…but at least you should read that other men are ashamed of you and your beliefs

Nothing says “take me seriously” more than “LOL.”  But Jonny had plenty more to explain to this “mysogynist.” Seriously, go read the comments. While it’s easy to enjoy this irrational ranting of a cartoon character who thought himself (sorry, still not sure of his/her/Xir’s preferred pronouns) overwhelmingly persuasive, that’s because we don’t have to endure it. We can x out anytime we want.

Not so for the twin boys of Jody Allard. Continue reading

Running Away Is The Only Reasonable Response

Years ago, the late SDNY District Court Judge Harold Baer damn near got himself impeached by doing the unthinkable. He told the truth.

“Had the men not run when the cops began to stare at them, it would have been unusual,” the judge wrote in late January.

That was January, 1996, and the decision was United States v. Bayless. It caused a shitstorm around Judge Baer, who collapsed like a cheap suit, much to Bayless’ lawyer’s, Ramon Pagon’s, consternation.  It was a huge win, and then, poof, it was gone.

The judge, Harold Baer Jr. of Federal District Court in Manhattan, made no direct reference to the political storm his ruling had whipped up from City Hall to the White House. But he expressed regret for the remarks in his original decision that prompted the greatest outrage, in which he had questioned the credibility of police officers and suggested that it was not necessarily suspicious even for innocent people in Washington Heights to run from the police.

Continue reading

The Pyrrhic Victory For The Disabled (Update)

There are few places on earth more obsessed with social justice, whatever that means for the next ten minutes, than the University of California, Berkeley. But even Berkeley must occasionally confront reality, and as every grown-up knows, reality bites.  So Berkeley had to make its choice, and its choice was to shut down free online content.

The University of California, Berkeley has announced that it may eliminate free online content rather than comply with a U.S. Justice Department order that it make the content accessible to those with disabilities.

The content in question is all free and is for the general public to use. “The department’s findings do not implicate the accessibility of educational opportunities provided to our enrolled students,” said a statement on the situation by Cathy Koshland, vice chancellor for undergraduate education.

Aren’t people with disabilities entitled to the same access to free online education as everyone else? Well yes. Maybe. And not exactly.  This has been a thrust of the DoJ, trying to make the world more socially just for all. Continue reading

Terence Crutcher’s Deadly Breakdown

His SUV was stopped in the middle of a road. Terence Crutcher was a guy who needed a hand, and police, in their public safety function, should have been the nice folks who helped him out. Instead, Tulsa Police Officer Betty Shelby killed him.

There will be intense parsing of the video of Crutcher’s killing. At Fault Lines, former police officer and firearms instructor Greg Prickett takes apart the video and tries to understand what might have given rise to this killing. The upshot is that while there are explanations, to some limited extent, for Shelby’s shooting, they aren’t good explanations. Not good at all.

But it remains to be seen, according to Greg, whether there is anything more, as the alternative of Betty Shelby being a stone-cold killer cop is hard to fathom. And Tulsa has demonstrated its willingness to prosecute a cop, take a cop to trial and convict a cop, if the facts warrant it. They did so with Robert Bates.

But while all eyes are on the moments before the killing, as the apologists at PoliceOne blame Crutcher for not complying with commands, as if that’s a reason to execute a man, and seek out any excuse to explain why one of theirs gets to kill one who isn’t one of theirs, Terence Crutcher’s SUV wasn’t the only breakdown on the road in Tulsa in need of explanation. Continue reading

Teacher Rapes 5 Students, Gets Probation

The facts are indistinct, but clear enough.  A former teacher at Pearl-Cohn Entertainment Magnet High School in Nashville, Tennessee, was charged with raping five students. Some of the rapes occurred at the school. Upon arrest, the teacher was released on $1000 bail.

The Metro Nashville Police Department’s Sex Crimes Unit started investigating Alston on Nov. 24, 2014 after the principal of Pearl-Cohn High School reported information she received about the teacher.

The investigation into Alston lasted several months and involved multiple interviews with students and others.

Detectives say they were told that Alston had sexual contact with several teens. Some of those incidents occurred on the school’s campus, according to officials.

While conducting “multiple” interviews may give the appearance of a great deal of work, it’s hard to imagine why it took “several months.”  Isn’t a teacher raping five students sufficiently horrible to compel the police to work a little more quickly? Continue reading