Exhaustion in the First Degree

Among academics who tend to toe the social justice warrior line, Denver lawprof Nancy Leong tends to be one of the more reasonable, more thoughtful ones.  It’s not that she doesn’t have her perspective, but she’s open to discussion. And that’s what made her post surprising and, well, disappointing.

Nancy had a bad day.

I was harassed three times in a four block walk to get coffee this morning. For those who think street harassment is no big deal, here’s a transcript of the second-most offensive incident:

“Hey beautiful. Slow down. How about a smile? No smile? Why so unfriendly? Okay, you stuck up bitch. [now yelling at my back] STUCK UP CUNT.”

A few things. First, I don’t actually have the heart to memorialize the most offensive incident on my blog.

Because I trust Nancy wouldn’t fabricate a story to make a point, I’m fully prepared to accept her suggestion that the most offensive incident was really bad.  Her second, duly presented, was pretty terrible. Her take on the loser who stands on the street saying, then yelling, such things: Continue reading

The Right To Go Red

The scenario played out like a bad SNL skit, with an unidentified officer telling her fellow St Louis officers to stop punching, kicking and tasing Cortez Bufford for a moment.

“Hold up, everybody hold up, we are red right now, so if you guys are worried about the cameras just wait.”

While police claim a gun, ammo and weed were found in Bufford’s car, all charges against him were dropped, and he is now suing the cops for excessive force.

Bufford’s attorney said there was no reason for the police to pull over his client, and no reason for officers to kick him.

“You watch the foot go back and the foot go forward, now I think you can go to the police academy for a long time before they say the right move is to kick the guy,” said Bevis Schock.

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A Lone Voice Favoring Jail And More Jail

The New York Times Room for Debate must have had a really tough time finding anyone, or at least anyone with some shred of credibility even if only bestowed by some title from some godforsaken advocacy group, to be the loyal opposition.  You see, the problem was the subject of the debate:

Would We Be Safer if Fewer Were Jailed?

Jails in New York and throughout the country dealing with overcrowding and brutality, are often filled with inmates who might not need to even be incarcerated. Some of them are awaiting trial for nonviolent offenses, others have mental health needs.

Can the use of jails be reformed to reduce the number of inmates without increasing society’s risks?

Without spending too much time on the obvious, being the number 1 jailer in the world is no mean feat.  It’s not easy to find anyone with any knowledge on the subject to do the “we are number 1, Yay!” cheer.  And yet, with five voices in harmony singing the horrors and wastefulness of over-incarceration, who would provide the shrill, off-key note?

Enter our old buddy, Kent Scheidigger, legal director of the Criminal Justice Legal Foundation, which advocates for the pre-emptive incarceration of all non-cops and the imposition of life plus cancer for any offence for which an attempt is possible. Continue reading

Rapist Or Innocent? Pick One, CU

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.

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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 (Update)

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.

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