The DA’s Disingenuous Lament

The op-ed was signed by a passel of prosecutors, all holding themselves out to some greater or lesser extent to be “progressive” in their view.

By Darcel D. ClarkEric GonzalezMelinda KatzMichael E. McMahonAnthony A. Scarpino Jr.Madeline Singas and 

Of course, signing onto an op-ed isn’t the same as writing one, and so one should take these names with the same equanimity as the op-ed that follows. Continue reading

No Bivens Across The Border

It opened with those dreaded words:

Yet when a good doctrine is combined with those dreaded words, the majority opinion written by Justice Alito, it’s enough to send chills down one’s spine.

There they were, at the start of the 5-4 decision in Hernandez v. Mesa.

JUSTICE ALITO delivered the opinion of the Court.

The case was a hard one, not because there wasn’t overwhelming belief that the Border Patrol agent, Jesus Mesa, Jr., who fired from El Paso, Texas into Ciudad Juarez, Mexico, and killed 15-year-old Sergio Adrián Hernández Güereca, took a life wrongfully and needlessly, but because it was such a bizarre and peculiar fact pattern. As the old adage goes, bad facts make bad law. Continue reading

Tuesday Talk*: Is Weinstein A Watershed?

It’s almost as if America’s Dad, Bill Cosby, was never convicted, and yet the conviction of Harvey Weinstein for two of the five counts with which he was charged, Rape in the Third Degree (a Class E non-violent felony) and Criminal Sexual Act in the First Degree (a Class B violent felony), is held out as the case where everything changed.

What does the hard-won, long-overdue conviction of Harvey Weinstein demonstrate?

It shows how difficult it can be to bring abusers to justice, particularly when they are wealthy and powerful. It shows how much the #MeToo movement has changed American life. And it shows how far society still has to go.

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Technically Free To Leave in South Carolina

There’s a dirty little secret lurking behind the otherwise neutral rule of a Terry stop having to do with the ugliest part of the body. When stopped, surrounded by guys with shields and guns who you seriously doubt are there to be your pal and asking you questions just because they’re deeply interested in your personal welfare, what exactly is your status? Can you say, “hey, this was fun but I really have to go now. Bye,” and walk away?

The majority of the South Carolina Supreme Court held that Eric Spears had the right to do so, which would appear, on its surface, to be a positive ruling. As it turned out, this wasn’t a good thing for Spears. Continue reading

The Pieties Of The Moment

For some years now, Stephanie West Allen and I have marveled at how “presentism” has undermined the basic comprehension of history in context. It doesn’t make things any more, or less, right or wrong, but it gives rise to a false and distorted understanding of how and why things happened.

Was Christopher Columbus just a horrifying colonial genocidal rapist? If viewed through today’s lens, perhaps. But he didn’t exist in today’s culture, and so should his actions be judged by the woke perspective? Just to add an additional wrinkle, does it occur to those who believe that they are have reached the absolute pinnacle of propriety, righteousness, morality and decency, that their views will be judged down the road by people who will shake their heads in horror at how terrible they were? Continue reading

When Judges Get Goaded

To absolutely no one’s surprise, Roger Stone’s counsel moved long-suffering D.C. District Court Judge Amy Berman Jackson to recuse herself. To absolutely no one’s surprise, she denied the motion.

The defense does not argue that the jurors did not “serve[] . . . under difficult circumstances,” but it complains that the Court’s use of the words “with integrity” are disqualifying because there is a pending motion for new trial with respect to a single juror, and the hearing has not yet taken place.

This is just about the thinnest reed possible to argue that a judge should disqualify herself. The basis for recusal under 28 U.S.C. § 455(a) is that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” For those hellbent on believing any negativity will do, there’s nothing to be said that will change their minds. But then, the standard isn’t whatever the craziest supporter believes. Continue reading

Genderless Google AI Meets “Free The Nipple”

Google’s gone woke, at least a little bit.

In an email to developers on Thursday morning, seen by Business Insider, Google said it would no longer use “gendered labels” for its image tags. Instead, it will tag any images of people with “non-gendered” labels such as “person.”

Google said it had made the change because it was not possible to infer someone’s gender solely from their appearance. It also cited its own ethical rules on AI, stating that gendering photos could exacerbate unfair bias.

To say that it’s “not possible” seems an absurd exaggeration. In most cases, it’s not only possible but obvious. That there may be some cases where it’s too close to call doesn’t compel the claim of impossibility; that’s entirely Google’s choice, and one that’s better explained by “exacerbate unfair bias,” which sounds nice if one has a fine-tuned sense of jargon, but doesn’t do much to explain what sort of unfair bias might be exacerbated by stating the obvious. Continue reading

Your Car, Their Black Box

Imagine you’re in the parking lot of Los Pollos Hermanos after a chicken dinner that couldn’t be beat, and spot an odd looking box attached to your car. You’re reasonably familiar with your car, and know that it didn’t come with any such box. You move closer, take a harder look, and have no clue how or why that box is attached to your car. So you grab it, pull it off, and put it in the barn. Did you steal it?

Law enforcement secured a warrant to plant a small, inconspicuous GPS tracking device on Derek Heuring’s Ford Expedition. The device gave officers regular location readings for about a week—until it abruptly stopped providing updates. Over the next ten days, the officers could not determine what happened. But then, after discovering that the tracker was no longer attached to Heuring’s car, an officer obtained warrants to search Heuring’s home and his father’s barn for evidence of the device’s theft.

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I’ve Reached My Limit

A story, an op-ed attached, came across my radar and I clicked because it looked interesting. And a screen popped up: You’ve reached your limit of free stories. You can subscribe for a mere (whatever). So I tried again, this time in incognito mode which often skirts the problem. Same screen, noting that I was in incognito mode and they were not going to let me beat their system. Fair enough.

I completely understand the need for a publication to make money. They have expenses. I get it. Oh boy, do I get it. But at the same time, they want and need eyeballs, without which they cease to exist. And they’re not shy about asking people like me to send eyeballs their way. I get emails, press releases, pitches all the time from a surprisingly wide variety of publications, seeking to entice me to write about them and thereby send them new eyeballs. Most of the pitches aren’t right for me, but that’s the nature of the beast. Continue reading

Seaton: The SFL Index

I learned yesterday of a resolution in the Tennessee House of Representatives that, if passed, would condemn CNN and the Washington Post as “fake news.”

Micah Van Huss, representative for an area with two main roads and one stoplight, penned this poorly-worded series of “Whereas” clauses. The two-page screed takes issue with references to those who support our current president as “cultists,” praises President Trump for taking on the establishment for the working man, and if passed, officially declares CNN and WaPo as “the media wing of the Democratic Party.”

It’s all a political stunt designed to garner favor with certain voters. Van Huss is up for reelection this year and faces a primary challenge, in addition to the November general election. Continue reading