The facile retort to calls for honoring the concept of due process under the series of attacks, whether Title IX, #MeToo and in the Kavanaugh hearings, was that “this isn’t a criminal trial.” Grasping this mantra, advocates sought to distinguish their vilification of due process when it served their purpose, while feigning respect for it otherwise. Of course, this isn’t how life works, as the notion of procedural fairness is either a good thing or a bad thing, but it can’t switch from one to the other based on one’s preferred outcome.

Tyler Lampe, a former cadet at the United States Military Academy at West Point, found that out the hard way.

“In today’s day and age, like it or not, guys are guilty first,” an alternate juror in Lampe’s case reported hearing one member of the panel saying prior to deliberations, according to a motion for dismissal of the charges against Lampe filed last month. Jurors are instructed not to discuss the case in any way before beginning their deliberations.

“Why didn’t they let him take the stand?” another juror was quoted as saying. Criminal defendants are specifically not required to testify, as the burden of proof is on the prosecution.

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The Supreme Court will hear oral argument in Gamble v. United States this morning, which might have been cause for celebration at any other time in history. But not today.

On Thursday, the Supreme Court will hear Gamble’s complaint in Gamble v. United States: If the Constitution protects against “double jeopardy,” what allows both the state of Alabama and the U.S. government to convict and imprison him for the very same crime?

The Fifth Amendment says that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.” At first glance, Gamble’s double sentences seem to violate that rule because the “offences” were the same—possessing the very same gun after the very same state felony conviction. The catch is that under the “separate sovereigns” rule, a defendant can be prosecuted by the feds and a state—or by two different states—for precisely the same crime. And, in Gamble’s case, there were two different sovereigns involved. By breaking Alabama’s “felon-possession” statute, Gamble “offended” the state of Alabama; by breaking the federal statute, he also “offended” the United States.

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Much as I admire Lara Bazelon, she hurt my feelz.

There is an uncomfortable truth in the current system. No one wants to talk about it.

No one? Why do you erase my existence? Okay, that was almost certainly written by the headline guy at the Times as clickbait, so it’s really not Bazelon’s fault. Her op-ed relates the dirty underside of Title IX campus sex adjudications, that they have a huge disparate impact on black males accused of rape and sexual assault.

The Office of Civil Rights does not collect data on race in Title IX cases, but the little we know is disturbing: An analysis of assault accusations at Colgate, for example, found that while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process. Continue reading →

There are only two things I can remember when my co-counsel and I were talking right before jury selection began: he told me only an idiot can’t come up with a viable excuse to beat a Batson challenge, and a few hour later, he lost a reverse Batson challenge. We talked about the jurors we wanted on the jury for the case, but contrary to what people assume, voir dire isn’t about selecting a favorable jury for our side as much as denying a favorable jury for the prosecution.

Based on anecdotal experience, I’ve long argued that voir dire is voodoo. There’s never been much doubt that prosecutors employ their peremptory challenges to toss minorities off the jury, just as defense lawyers use them to get rid of cops’ wives and white people who live in gated communities with perfect lawns. It’s not that we’re certain of how they think, what they’ll do, but that voir dire isn’t magic. We can make assumptions based on extremely limited information, and they almost invariably compel lawyers into making decisions based on stereotypes. We have little more to go on.

Wake Forest crimlaw professor Ronald Wright has done a study of jury selection, and now offers statistical proof that what everyone has always known to be the case is the case. Continue reading →

Unlike Title IX, employment discrimination under Title VII of the Civil Rights Act of 1964 has a far more affirmative reach than merely post-hoc punishment. It provides:

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;

Proof of discrimination can be shown by actual animus or disparate impact, but with limitations. Continue reading →

The problem never arose in New York, as admission to, and regulation of, the bar was handled by the courts. We’ve got bar associations for everything, but they’re all voluntary membership organizations. No lawyer is required to join any bar association in order to be a member of the bar. Over the years, I’ve been a member of a great many bar associations. I’m no longer a member of any.

That option isn’t available to lawyers in North Dakota.

The case began when Arnold Fleck, a North Dakota lawyer, sued his state bar association after he learned it had contributed $50,000 to oppose a state ballot measure. Fleck had contributed $1,000 to support the same measure. He objected to being compelled by state law to pay $380 a year to support the bar association.

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Wall Street Journal drama critic Terry Teachout had his twitter account hacked. When he informed twitter, their response was so very, very twitter.

UPDATE: I received this message from Twitter Support late last night:

We’ve investigated the reported account and have determined that it is not in violation of Twitter’s impersonation policy. In order for an account to be in violation…it must portray another person…in a misleading or deceptive manner.

So that’s how Twitter Support responds when my verified account is hacked, obscene and racist messages are posted on it, and a ransom request is made to me by telephone. Is it any wonder that more and more people are getting fed up with Twitter?

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The announcement itself was shocking, to say the least, that women who went to a hospital after being raped were subsequently charged for their forensic rape examination.

A.G. Underwood Announces Settlements With 7 New York Hospitals To Stop Illegal Billing Of Rape Survivors For Forensic Rape Examinations

Hospitals Will Pay Restitution to Survivors Plus Costs and Revise Billing Procedures; At Least 200 Rape Kits were Illegally Billed to Rape Victims

The nature of a forensic rape examination is the collection of evidence of a crime. There is a palliative care aspect as well, as there should be, but this isn’t the same as when a mugging victim appears at the emergency room for treatment. Continue reading →

Wasn’t it embarrassing enough that Payless shoes pranked social media fashion mavens with its pop up store, Palessi?

But you ain’t seen nothing yet. Meet Alexa. Continue reading →

The opening sentence of the complaint in the United States District Court for the District of Massachusetts is cringeworthy.

Undeniably, private universities like Harvard have the authority (and under Title IX, the obligation) to protect their students from sexual assaults committed by other students.

Not only is it quite “deniable,” but this sentence is deeply misguided. First, there is the distinction between “protect” and “punish,” as if colleges (or is it just private colleges, or just Harvard?) can anticipate complaints of sexual assaults and prevent them from happening. There is no authority for this. There is absolutely no Title IX duty to do this. Yet, the complaint begins with the word “undeniably.” An ignominious start. Continue reading →