The Integrity of Prosecutorial Integrity Units

Eugene Volokh continues to serialize the Georgetown law review article by Ninth Circuit Judge Alex Kozinski, with the latest addressing reforms to curb prosecutorial misconduct.  You know, the stuff that never happens, except when it does.

Most of Judge Kozinski’s recommendations are well known, like open file discovery and double blind sequential line-ups.  All good recommendations, though with caveats to address how things that look shiny on the surface can still have festering boils beneath, but Judge Kozinski’s support for these long time proposals doesn’t hurt.

But then, proposal 8 of his listicle is a curious one:

8. Establish independent Prosecutorial Integrity Units. In my experience, the U.S. Justice Department’s Office of Professional Responsibility (OPR) seems to view its mission as cleaning up the reputation of prosecutors who have gotten themselves into trouble. In United States v. Kojayan, we found that Assistant United States Attorney Jeffrey Sinek had misled the district court and the jury. The district judge, who had trusted the AUSA, was so taken aback with the revelation that he barred further re-prosecution of the defendants as a sanction for the government’s misconduct. Continue reading

A Decent Suit

He was home for a week, tops, before he had to get back to Cambridge for work.  That was all I had, and it wasn’t nearly as much as I wanted, so I had to work fast. I steeled myself for the likely rebuff coming, and forged ahead.

It’s time we got you a decent suit.

I know.

“I know”? Didn’t see that coming. I fully expected to be told I was crazy, supported by arguments along the lines of “nobody wears suits anymore,” or “I’m not wearing one of those, I’ll look like you.” But instead, total agreement.  I was stunned into silence for a moment. This hadn’t happened in years. Continue reading

Any Excuse To Kill

A long-form piece of investigative journalism by Brad Schrade at the Atlanta Journal-Constitution details the murder of a young mother, Carolyn Small, whose bad day turned far worse at the hands of Glynn County, Georgia, police officers, Sgt. Robert C. Sasser and Officer Michael T. Simpson.

While the article takes the story from inception through the ultimate machinations used to sanitize the cops from culpability, and each piece of the sordid story is a story within itself, the beginning is a fascinating place to focus on the separation of “us and them,” the dehumanization that allows cops to murder a human being without any apparent twinge of concern.

Not that it makes it worse, but that it removes one aspect from the mix: Carolyn Small was a white, attractive, young mother.  Glynn County cops were called to investigate a “suspicious person.”

The bloodshed began as a simple call to the police of a suspicious person. Continue reading

A Tiny Slice of “Yes”

Judge Joel Pressman ruled that UC San Diego’s actual disciplinary procedures, not to mention their self-assessment that provided the male student with an “abundance of process,” failed to approach anything a rational person would consider due process.  At Minding the Campus, K.C. Johnson provides a thorough recap of the hearing.

But one piece remains somewhat underdeveloped, and is critical as its parameters remain problematic, misunderstood if described kindly, batshit crazy otherwise.  What was the actual allegation, in context, that gave rise to the male student being put through this educational and legal nightmare?  From the petition:

Petitioner, a 20-year-old college student, seeks redress for his de facto expulsion from UC San Diego for an alleged instance of unwanted heavy petting that occurred between two sessions of consensual sexual intercourse with an adult female student on the weekend of January 31, 2014.

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The ITIF’s Confusion on Free Speech and Revenge Porn

A progressive think tank focused on promoting technology, the Information Technology and Innovation Foundation, decided to take a blind leap into the nasty waters of internet speech and revenge porn. It issued a report, written by ITIF Vice President Daniel Castro and research assistant Alan McQuinn, entitled Why and How
Congress Should Outlaw Revenge Porn.

Why and how ITIF and Castro thought themselves qualified to write such a report remains a mystery, but then, when it comes to this particular subject, mysteries abound.  Like why Mary Anne Franks blocked Eric Turkewitz and Jay Wolman on the twitters for asking why she claimed false rape claims were “infinitesimal” when the report she cited to put them at 45%.  Of course, a real discussion can be found at Data Gone Odd, but I digress.

Fusion reported on the ITIF report with a particularly curious title, due to one of the proposals in the report that the FBI create a special group for handling revenge porn claims.

But the Information Technology and Innovation Foundation, a non-partisan think tank, thinks legislators, after passing a federal ban, need to do even more to protect victims of nonconsensual nudes. In a report published Wednesday, the ITIF demanded the creation of a special FBI unit that would help revenge porn victims and put pressure on tech companies to develop best practices for quickly removing law-violating content from their sites. Continue reading

The Second Lesson of Gardena

The first lesson was there for all to see, but not too many people saw it, or at least realized it was a lesson of grave importance at the time.  Brooklyn criminal defense lawyer Ken Womble did, and it compelled him to write about it.

California law enforcement attorneys from across the state banded together to advance the idea that the public should not have access to the three dashcam videos that captured the Gardena shooting.  They claim that releasing the video to the public would violate the privacy of the officers involved in the shooting and could possibly interfere with “investigations.”

And it seems more than slightly hypocritical to claim “privacy interest” for one of your own while you have no problem holding press conferences to announce the alleged crimes of a private citizen, prior to any due process or actual conviction.

There were a few things known at the time. There was one man dead, another wounded, who were helping to find a bike thief for a friend, but had the misfortune to also be Hispanics on bicycles, which made them inherent suspects.  There was an investigation by police and the district attorney who concluded that it was a righteous shoot.  And there was a $4.7 million settlement.  It didn’t add up. Continue reading

Microaggressions Don’t Stifle Free Speech, Asshole Says

While discussion of microaggressions among grownups has yet to make it much farther than jokes and the occasional facepalm — with, of course, the exception of neo-feminists and social justice warriors, who may have attained the age of majority if not maturity — the discussion has been rampant on college campuses.  And they’re not making jokes about it.

In an op-ed at the University of South Florida’s Oracle, senior Isabelle Cavazzos tries to explain:

Hearing someone say America is the land of opportunity or America is a melting pot, attributions the country is prided for, usually doesn’t spark a debate.

However, as reported by the Huffington Post, a seminar on inclusivity at the University of California considers those statements microaggressions, which are snarky, yet subtle comments showing bias against another’s race or identity.

Continue reading

Judge Kozinski’s 13th Trope

When Ninth Circuit Judge Alex Kozinksi’s article in the Georgetown Law Review broke, my inbox was flooded.  Criminal Law 2.0 seemed to be every criminal defense lawyer’s dream, a list of the failed tropes that undermine the legal system, put innocent defendants in prison, and challenges the widespread false assumptions that have permeated public discussion of the criminal justice system.

And here it was, from the hand of a Circuit Judge, no less, and in a law review. Could it get any better?

At Volokh Conspiracy, Judge Kozinski’s former clerk, Eugene Volokh, is serializing the article, beginning with the preface:

Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial.

Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

Continue reading

To Fix Bail, Fix Bail

Since the suicide of Kalief Browder, fixing the system has become all the rage in New York.  There’s the speedy trial piece, but there is also the bail piece, as reflected in this New York Times editorial.

Imagine, for a moment, that you are accused of a misdemeanor or even a nonviolent felony in New York. The judge sets a low bail, maybe $500, but even that is too much for you or your family. So you sweat it out in New York City’s hellhole of a jail on Rikers Island, waiting for a trial months, even years away. Plead guilty and the terrors of Rikers are behind you. But now you have a criminal record, which could damage your future.

Ah, to be an editor at the Times, where one is constrained to “imagine” such things.  It’s much better to picture it in one’s mind than to be one of the thousands of people who live it every year.

New York Mayor Bill de Blasio’s administration this week announced a promising plan to help some low-level offenders escape this Dickensian trap. The plan would allow supervised release without bail for defendants who are not a danger to the community or at risk of flight. This is an important move in the right direction. But eventually, it will take Gov. Andrew Cuomo and the State Legislature to reform a statewide system that is unfair and increasingly at odds with other judicial systems around the country.

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Judge Joel Pressman To UC San Diego: I Got A Digit For You

Ultimately, the claim against a male student, imaginatively called “John Doe” in the proceedings, came down to whether he “digitally penetrated” Jane Roe’s (not necessarily her real name) vagina.  John said no, so he lost at the University of California, San Diego disciplinary hearing. Then he sued.

“While John stated during the hearing that he did not digitally penetrate Jane’s vagina, he abstained from providing additional information regarding the incident and what occurred around the time of the incident and the panel would have liked to hear more information from him,” the hearing panel wrote in its findings.

Can a guy remain silent? Sure. But unlike real court, the Fifth Amendment doesn’t apply to civil and administrative hearings as it would in criminal prosecutions. Silence can be used against you.  But what was John Doe confronting when he made the decision to say no more? Continue reading

An Open Letter To ACLU’s Lee Rowland: Stop Trying To Be Nice

Dear Lee,

Congratulations on kicking the living crap out of Arizona’s anti-revenge porn law.  You did a great job getting it tossed. Like a boss, Lee.  Well done.

But Arizona’s law criminalizing revenge porn was fairly easy pickins.  It was so absurdly over-the-top that there really wasn’t much of a question, except to its advocates for whom no degree of unconstitutionality is enough to make them cringe.  It’s hard to see reason through the tears of advocacy, not that they would care anyway.

That’s not to detract from what you accomplished. The ACLU took up arms against a terrible law and crushed it. One bludgeon beating another.  I applaud you and your accomplishment. Continue reading

Seize It All And Let God Sort It Out Later

Whether it’s a problem for us or them is the tacit heart of Orin Kerr’s fascinating question as to the limitations on seizures of digital evidence under a search warrant.  He does a great job of setting up the problem:

This article considers how the Fourth Amendment should limit the process of executing search warrants for digital evidence. Warrants for digital evidence are normally executed in two stages. First, agents enter the physical place to be searched and seize all computers. Second, agents conduct an electronic search for the responsive data described in the warrant. The two-stage process raises the prospect that warrants for digital evidence will be executed in ways that resemble general warrants. 

In the application for a search warrant, and in the warrant itself, there will be a description of the property to be seized together with a justification for why there is probable cause to do so.  The descriptions tend to be incredibly vague and backward, such as “all evidence of narcotics sales.”  Continue reading