Mens Rea And The Koch Conspiracy

Everybody loves bipartisan crim law initiatives, and one put forth by Republican Congressman Jim Sensenbrenner seemed destined for broad approval.  The bill sought to impose a mens rea requirement on criminal conduct when Congress was too lazy to include it in its initial enactment.

Default state of mind proof requirement in Federal criminal cases

If no state of mind is required by law for a Federal criminal offense—

(1) the state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

The inclusion of a specific mens rea requirement is common in criminal laws. For example, first degree murder usually requires the “intent to kill,” whereas lesser degree murders or manslaughters may only require “recklessness.” Continue reading

The Demands, The Resistance

When black students, armed with rifles, took over Willard Straight Hall in 1969 in reaction to a burning cross outside Wari House, they made their demands known.  There was a stump outside the Straight, and students thereafter stood atop it to announce their purposes. The stump is gone, and black Cornell students now make their demands in secret.

These are the demands issued by Cornell University Black Students United in the secret meeting with President Garrett. They include mandatory for-credit courses for all undergrads, grads, and professors about “privilege” and “white hegemony;” curtailing academic freedom for all professors on social justice issues; hiring Gannett doctors, psychiatrists, and other counselors based on race; renaming the Cornell Plantations; shaking up the “white” Greek system; redirecting funds from other strapped humanities departments to create tenure lines and stipends for majors/PhD programs in minority studies; make Black Students United the official spokespeople for all People of Color on campus with direct access to the president. President Garrett is to reply by Monday. The Cornell community has a right to know and debate, before decisions are made.

The problem with these demands is that they affect every student’s life and education. The demands seek to recreate higher education around the feelings of one identity group, and come at the expense of others. Continue reading

Fault Lines Makes The ABA Beauty Pageant, And Yet…

Every parent knows the sense of pride and joy that comes of a child accomplishing something worthy of praise and recognition, and that’s how I feel about Fault Lines, barely a six-month-old infant, being named to the ABA Journal Blawg 100.  Thank you, ABA Journal guys, for embracing the efforts of the Fault Lines writers and putting this baby on your list.

I haven’t always been kind to the beauty pageant.  It’s not that a little recognition for being in the pie eating contest of blawging isn’t appreciated. Blawgers certainly suffer the indignation of pseudonymous insults for not meeting the tastes, whether by content or tone, of the potential 100 million readers on the internets, and so they could stand a bit of appreciation once in a while.

That said, pitting blawg against blawg has always been unseemly. To their credit, the ABA Journal has finally done away with this nonsensical competition, that served more to reveal the neediness for recognition as to who begged for votes than the worthiness of their efforts. Thankfully, that’s done. It was an embarrassment.

The writers at Fault Lines work pretty damn hard to produce posts that enlighten and illuminate criminal law. For their efforts, they get to enjoy vast wealth and fame the opportunity to write some more, so someone out there can nitpick their work. But that’s the nature of blawging, so it comes with the territory.  Much as I may not have cared much about this for my own sake, I’m thrilled (and I mean that, sincerely) that these exceptional writers received the nod. They deserve it. They earned the tummy rub. Continue reading

Better To Be Lucky Than An Imposter

Mark Bennett wrote about it. Keith Lee did too. Even Mirriam Seddiq had her say. The Imposter Syndrome.

The impostor syndrome, sometimes called impostor phenomenon or fraud syndrome, is a psychological phenomenon in which people are unable to internalize their accomplishments. Despite external evidence of their competence, those with the syndrome remain convinced that they are frauds and do not deserve the success they have achieved. Proof of success is dismissed as luck, timing, or as a result of deceiving others into thinking they are more intelligent and competent than they believe themselves to be.

Ah, how people love to come up with explanations for why they are better than what they feel they are. This is what comes of having too much time on their hands and indulging their inner Sunshine Superman.  As Bennett explained it:

So much of what we criminal-defense lawyers achieve is objectively the result of luck—getting the right case with the right facts at the right time, drawing the right jury panel, finding the right piece of evidence—that much of what is described as “impostor syndrome” is accurate self-assessment. Even beyond that, though, successful men in criminal defense are, I believe, more likely to think of ourselves as lucky undiscovered frauds than as brilliant lawyers receiving our due.

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DEA’s Chuck Rosenberg And Reefer Madness

The 1936 propaganda movie, Reefer Madness, has since morphed into a cult favorite. If you somehow haven’t seen it, get some munchies and prepare to laugh. But acting head of the Drug Enforcement Administration, Chuck Rosenberg, still thinks it’s a documentary.

“What really bothers me is the notion that marijuana is also medicinal — because it’s not,” Rosenberg said in a briefing to reporters. “We can have an intellectually honest debate about whether we should legalize something that is bad and dangerous, but don’t call it medicine — that is a joke.”

The absurdity of Rosenberg’s assertion is striking, particularly in his suggestion that we can have an “intellectually honest debate” provided we ignore all medical evidence proving his head is deeply embedded in his ass. That marijuana has significant medical uses isn’t a matter of debate. Hell, heroin has medical uses as well, it being just another opiate.

But Rosenberg’s comments have given rise to calls for his ouster by medical marijuana patients and even members of Congress. Continue reading

Princeton Without Wilson: To What End?

Princeton University was as tied to Woodrow Wilson as a school could be.  Not only was Wilson the nation’s 28th President, but also the president of Princeton.

As the school’s president in the early 20th century, Wilson initiated its expansion into a full-scale university. He lifted educational standards, created academic majors and introduced the small-group classes, often led by professors, known as precepts.

And so, his name was on the wall there.

To honor him, Princeton created the Woodrow Wilson School of Public and International Affairs — an elite institution within an elite institution — and a residential complex, Wilson College, where quotations from the revered leader have been displayed on a television screen in the dining hall.

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When Rights Become “Incidental” To Death (Update)

Some people find it unbearable to read what “the other side” has to say about the issues we find clear and substantial.  After all, they’re WRONG, WRONG, WRONG!!! But neither hiding from contrary views, nor allowing oneself to indulge in outrage does much to help.  Reading, understanding and addressing views that are “wrong” is far more productive.

The murder of John Livingston was discussed here and at Fault Lines, by Josh Kendrick.  Within this story of a guy killed for doing what the courts tell us he’s entitled to do are two significant problems:

Even more unfortunately, Livingston’s killer was a cop. So now we have a problem. Livingston doesn’t, because he is dead. It will remain to be seen if the killer cop has a problem, because we don’t like to prosecute cops, even for killing innocent civilians.

But in this case, North Carolina law is on the side of the angels. Though its little comfort to Livingston, North Carolina statute § 14-51.2(c)(4) says a North Carolinian can use force against a law enforcement officer who is attempting to enter a home illegally.

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After The Gushing: Sentencing Reform Is Inadequate

A mere month ago, everybody was gushing praise over the “bipartisan” sentencing reform that finally won the blessing of Iowa Senator Chuck Grassley, who holds the keys to change as chair of the Senate Judiciary Committee. Even FAMM got behind the bill, and if FAMM backed it, it must be good.

Not perfect, perhaps, but, as the New York Times proclaimed as they issued their good housekeeping seal of approval, “a crucial first step on the long path toward unwinding the federal government’s decades-long reliance on prisons as the answer to every ill.” Anybody could see that, right?

Except one old, negative curmudgeon who called bullshit.

As the glow of irrational exuberance wore off, and people actually read the bill, thought about what it gave and what it didn’t, not to mention took away, it slowly began to dawn on people that this glorious bipartisan proposal kinda didn’t do muchContinue reading

Fem Faux Failure And The Rape Tape

The judge’s order was understandable.  If the prosecution had the video, the defense was entitled to it as well.  It was, without question, Giglio material, evidence that could be used to challenge the credibility of a prosecution witness.  And it did, without question, “re-victimize” Lara McLeod, assuming she was victimized in the first place.

A Virginia court ruled this week that a four-year-old videotape depicting what a woman says is her rape will be handed over to the defense team in an upcoming capital murder trial, even though the woman says the video was recorded without her consent.

Lara McLeod, now 24, is not a witness and will not testify in the trial, which is slated for January 2016. The video was evidence in a case that was expunged two years ago. Under Virginia law, it’s illegal to record someone having sex without their consent.

But a judge ruled on Wednesday that the defense team had the right to view the video nonetheless.

Joaquin Rams is being prosecuted for the murder of McLeod’s 15-month-old nephew. Rams had earlier been accused by McLeod of raping her, but produced the tape to show he hadn’t, resulting in McLeod’s arrest for falsely reporting. What the tape shows, exactly, isn’t known, but certainly is subject to controversy. Does it prove a rape or disprove a rape? Who knows? Continue reading

Affirmative Action In Execution

Trigger Warning: Facts ahead that will traumatize people who can’t stand facts that don’t comport with their emotional beliefs.

The numbers don’t lie.

The black-white gap is 15 points when measured on the Wechsler tests, 18 on the Stanford-Binet. Both tests are, of course, normed so as to produce an average of 100, but the white average is a bit higher. On the Wechsler metric, whites and blacks average 102 and 87, respectively. On both tests, the gap between the races is almost exactly 1 SD (standard deviation). The gap of 1 SD has been observed since the earliest days of intelligence testing.

IQ Distribution Continue reading

Orleans Parish Public Defender Says “No More” (Update)

The conundrum is one that no public defender wants to admit exists. Not that they don’t know it exists, but they just don’t want to admit it, because it’s contrary to every sense of duty that pulses through their being. They are there to help the indigent, to be their protectors, and the very idea of turning a poor defendant away is anathema.

But, as is clear from a cold, detached perspective, there is no other choice when society doesn’t carry its responsibility, and shifts it onto the public defenders.  When there is no good option, their duty is to select the bad option.

Claiming that its staff is too undermanned and overworked to provide constitutionally adequate legal defense to indigent clients, the Orleans Parish Public Defenders office on Friday (Nov. 20) asked a judge to stop appointing new criminal cases to its lawyers “as soon as possible.”

Deputy District Defender Jee Park made the bombshell request before Judge Arthur Hunter, who convened a hearing to examine the public defenders’ plight.

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Strength In Numbers: The Nassau County LAS Failure

In a series of highly controversial posts at Fault Lines, former Nassau County legal aid lawyer, Ken Womble, has exposed a failure of significant dimension in the representation of the poor in one of the wealthiest counties in the nation. There have been three reactions to these revelations.  For those on the outside, it’s been one of shock and disgust, as the bubble of competent indigent defense unceremoniously burst.

On the inside, however, the reactions have been far more problematic. Some have applauded the effort to bring to an end the “way things were always done” in Nassau County, who were as disgusted as Ken at the selling out of indigent defendants to keep the system grinding. Indeed, the clearest demonstration of this support was shown in the election of union officers, shortly after Ken’s disclosure, where the old-time insiders lost decisively in favor of the new lawyers who supported change.

But then there were the sycophants, the ones dedicated to pulling whatever they could find out of their butts to defend the institution, its management, the perpetuation of doing business the “way things were always done.”  Some did so to support personal friends at the expense of the poor. Some did so to protect their resumé, so as not to diminish the marketing value of their experience. Some did so out of some misguided support for the institution of the Nassau Legal Aid Society.

There is a long-held belief that there is strength in numbers. It’s the notion behind unionism, that one person may be incapable of taking on power, but that the synergy of the group has the ability to move mountains.  And indeed, this is true, as the history of unionism has proven. Continue reading