Know Precedent; Preserve Issues; Make Precedent

Our hinterlands correspondent, Kathleen Casey, sent over Volume 1, Issue 1, of the Center for Appellate Litigation’s newsletter on Issues to Develop At Trial.  This is the sort of information that serves to teach or remind trial lawyers of the things they must do at trial to win and, in the odd chance they don’t, preserve critical issues for appeal.

Much as preservation is the weasel way of avoiding addressing a conviction where a defendant was not afforded the full protection of law, it is nonetheless the law and thus incumbent on trial lawyers to know the law, make the right objections and arguments, and preserve issues for appeal.  And for those so inclined, you can’t make precedent if you don’t know precedent.

If you didn’t receive their newsletter, you should, and they need to include a place on their website for people to sign up to receive it. And it’s kinda nice that in their first newsletter, they cite one of my cases.

Scorched Earth Defense Burns Government (This Time)

Academics call it “asymmetrical,” which is a needlessly officious way of describing the fact that the government has essentially unlimited resources while you have, well, whatever you have.  And even under the best of circumstances, having a lawyer dedicated to zealously fighting for your cause, money matters, as was made clear in the suit against Oregon State Police Capt. Rob Edwards.

[Plaintiff Justin] Wilkens sued Edwards in 2014. The jury in January awarded Wilkens more than $180,000 in damages and supported his claim that Edwards had used excessive force by kicking him in the upper chest during a traffic stop. The jury also found that Edwards acted with negligence when his unmarked police car rear-ended Wilkens’ motorcycle seconds before the kick. Wilkens fell off the motorcycle after it was rear-ended by Edwards.

Nice guy, Edwards. First hit Wilkens’ motorcycle, then kick him in the chest for, you know, kicks. But that was just the start of Wilkens’ problems. Rather than let discretion be the better part of valor, the Oregon Department of Justice chose to go scorched earth on behalf of their place kicker.  Fortunately for Wilkens, his lawyer, Lauren Regan, wasn’t inclined to back away from the fight. Continue reading

Can Andrew Miltenberg Bring An End To The DoE’s Rape Reign (Update x2)

Aside from hearings and some tough questions, Congress has done nothing to end the reign of terror by the Department of Education’s Office of Civil Rights in its unlawful extension of authority from ending gender discrimination in education to seizing control over sexual relations, and the flagrantly discriminatory manner of adjudicating sex on campus.  So much demagoguery. So little action. So much harm left unresolved.

While there have been successes in individual litigation reviewing the failings of colleges to provide basic due process in its handling of campus sex, there has not been a direct attack on OCR for its pseudo-imposition of its own rules on colleges.  While OCR denies its “Dear Colleague” letter, threatening loss of funding if schools don’t abandon any pretense of fairness, are unlawful rules, but merely “guidance,” schools claim that they have no choice but to condemn the accused to predetermined guilt and punishment because “rules.” Then again, it’s not like any college in America has challenged OCR’s authority to demand that they hang male students out to dry.

The fundamental impropriety of OCR’s “social engineering” has escaped congressional action, but may no longer be able to escape legal scrutiny.  In a press release, it was announced that Andrew Miltenberg, who has been at the forefront of litigating on behalf of students accused of rape and sexual assault, has named the DoE OCR as a defendant.

Grant Neal, a prominent student athlete at Colorado State University Pueblo (CSU Pueblo), has filed a first-of-its-kind lawsuit against the Obama Administration’s Department of Education Office of Civil Rights (OCR) and CSU Pueblo for violation of Title IX in a wrongful sexual assault investigation. Neal is being represented by Andrew T. Miltenberg, one of the nation’s preeminent attorneys specializing in campus assault due process.

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Full of Grit

It’s been expressed in various ways. Moxie. Fortitude. Tenaciousness. Each word touching on a facet of a larger trait that, to those who would rather spend their lives seeking success and happiness than misery and the empathetic tones of victimhood, is something to aspire to: Grit.

For more than a year, social justice activists have been attacking one of education’s latest buzzwords:  grit. They’ve been arguing that it’s wrong, and possibly racist, to blame low-income black and Hispanic students for not having enough of it. And they contend that education reformers should focus on fixing systems that keep families trapped in poverty, instead of trying to “fix” students. (For examples, see here and here).

As buzzwords go, grit is a good one. But more importantly, what makes grit a worthwhile idea, beyond the adoration of buzzwords, is that anybody can have it. Black, white or green. Male, female or fluid. It doesn’t matter. You’re as gritty as you wanna be.

But is this wrong, “possibly racist.” because it shifts responsibility for an individual’s success off of society and onto the person?  Maybe, given the perspective that the value of grit is relative to the offsetting inhibiting factor of racism.  But that doesn’t quite get to the heart of the matter. Continue reading

The Killing Continues, And No One Cares

It’s not like I didn’t warn you.

Most of us remember our first kiss.  Not because it’s better, or even materially different, than our second or twenty-second kiss,  but because it’s our first.  Nobody remembers their twenty-second, however.  It fades into an amorphous mass.  

But we’re not talking about kisses, right? This is entirely different. Except it’s not.

Too many brutal videos of police needlessly beating people and lying about it turn an outrage into the new normal.  The impact of seeing in living color, maybe even hi-def, police officers beat a human being whose “crime” is not jumping as high or as quickly as some pimple-faced cop demands can have a huge impact on those who have muddled through life believing that such things could never happen.  Like judges.

The hope is that by posting about such things, providing the opportunity for people to see the very things that they have spent a career denying to themselves ever happen, will be a first kiss opportunity for those in the system who need to know what we know.  The fear is that the impact will fade when it’s the twenty-second isolated incident, and they can go back to hiding from the ugliness to go about their business as they always have.

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The Letter From Hell

Much as the “scared straight” idea seems as if it really ought to work, but doesn’t, whoever came up with the letter must have thought it was just beyond genius.  After all, if everyone viewed the world through their eyes, with their mindset, it made perfect sense. It doesn’t dawn on them that everyone doesn’t see the world their way.  As with any religious belief, the obviousness of its rightness depends on blind faith.

new ad campaign is targeting college-bound high school seniors, encouraging them to consider their prospective schools’ sexual assault records before accepting admissions offers. The campaign began with a print ad that ran in the Harvard Crimson on Saturday: a fake acceptance letter from a university admissions director who promises “lifelong friends and memories here on campus,” including “being raped by someone you thought you could trust.”

dontacceptrape Continue reading

Innocence, Before and After

Associate Justice William O. Douglas was a bastard.  He knew damn well that Brady would be huge, and that he left out the details that would make it work.  I’ve never forgiven him, not that he cares. Of course, he’s dead, but still.

Ask any criminal defense lawyer about the efficacy of Brady and its progeny (we always include the part about its progeny, like Giglio), and she will tell you what a mess it is. Not because the concept isn’t wonderful. After all, who doesn’t agree that the defense should be informed by the prosecution that they have stuff that tends to show a defendant is innocent, or their witnesses are lying scum?

Nobody wants to convict the innocent, right?  Well, maybe Douglas, since he neglected to include anything about when the duty to disclose had to happen, like more than 12 seconds before the jury returned with its verdict. Like I said, a bastard. Continue reading

The Urinal Wars

If anyone proposed the notion that a man should be entitled to use the ladies’ restroom ten years ago, it would have evoked outrage. Should girls be exposed to such a thing? Shouldn’t women be allowed the sanctity of doing what they do in privacy?  But that was a different time, when we were concerned about things like children and women’s privacy. My, how times change.

Officials in Charlotte, N.C., spent more than a year carefully considering and debating an antidiscrimination ordinance that was passed in February to promote the city’s culture of inclusiveness. State lawmakers quashed it on Wednesday by passing an appalling, unconstitutional bill that bars transgender people from using public restrooms that match their gender identity and prohibits cities from passing antidiscrimination ordinances that protect gay and transgender people.

A culture of inclusiveness is a curious phrase.  One person’s inclusiveness is another’s exclusiveness.  Charlotte decided that the proper thing to do was to make their restrooms amenable to transgender people, which is certainly a fair choice to make if it’s decided that the interests of transgender people take precedence over any other concerns. Continue reading

The Unbearable Whiteness of Knowledge

Funny, right?


Or not so funny.

“Education is not about the mere reproduction of knowledge,” Hackman said. “Education is the practice of freedom. And as a result, we have to have [teaching] students becomes activists as well as teachers.”

Suspend your desire for reason, for a moment, for your own safety, as there is little that follows that will not make you cringe in pain. Continue reading

The Avenging Sword of Safe Space

It’s a phrase commonly used by lawyers, but often confusing to others.  It’s that the thing at issue “can be used as a sword as well as a shield.”  What it means is that the thing not only protects someone or some group, but, if deftly handled, can also be used to attack them or another.  But “safe space,” the land of puppies and Play-Doh?

At The Atlantic, Conor Friedersdorf makes the case.

At Ohio State last week, a sit-in and protest inside a university building was cut short when students were warned that they would be forcibly removed by police, arrested, and possibly expelled if they did not vacate the premises within a few hours, by 5 a.m.

Weird, right? As opposed to protests and sit-ins that once brought pepper spray, today they bring Happy Meals delivered by deans with love.  But not this time. After the requisite Gertruding, Conor highlights what makes this unusual. Continue reading

Scrutiny Lost: Eric Garner Prosecutor Gets A Pass

The Supreme Court, in Imbler v. Pachtman, rationalized its imposition of prosecutorial immunity with a little tummy rub for those who suffered the indignity of impropriety:

Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.

Somehow, this message didn’t get across.  That prosecutors are rarely subject to professional discipline is well-documented, and even the mention of their name by a court when impropriety is found results in howls of anger and protest.  Nothing new here. Nothing surprising.

But the fact that courts don’t refer prosecutorial misconduct to lawyer discipline, because it’s unseemly, doesn’t preclude someone else from doing so. In the aftermath of the no true bill on NYPD Police Officer Daniel Pantaleo for the killing of Eric Garner, many (myself included) called out Richmond County District Attorney Daniel Donovan (who has since moved on to Congress) for deliberately sabotaging his presentment. Continue reading