Dead tree newspapers have been dying for years, but then who touches paper anymore? After all, we now have the internet, and all the news that fits to . . . oh wait. There’s infinite space online, so how can we not have an embarassment of riches in journalism?

There’s a curious thing that happens when some kid gets a job writing for a major soapbox. If some 23-year-old who graduated last year with a degree in humanities stopped you on the street and said, “Hey, do you want to spend ten minutes of your life listening to my opinions about issues in the news,” what are the chances you would? And yet, these are the people whose words you read. At Buzzfeed. At Huff Post. On most online media outlets.

Jimmy Olson is no longer the cub reporter, but your thought leader.  Continue reading →

When news broke of Roger Stone’s arrest, the place went nuts. The “place,” of course, was twitter and the teams braced themselves for war. Caught in the middle were criminal defense lawyers, as here was an FBI takedown of a high profile, and outlandish, Trump guy. Oh, Rachel was gonna be lit that night.

But it created a huge conflict between reality and partisanship, between what experienced criminal defense lawyers saw and what partisans wanted to see. It got bad. Quickly. At one point, Ken White twitted the obvious (at least it was obvious to the rational), albeit in somewhat tepid words.

The “stop questioning law enforcement or you’re pro-Trump” is really, really, really not a good look, and illustrates why criminal defense attorneys believe there is no party or “side” that is reliably in favor of defendants’ rights.

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It was 2016 when the 6th Circuit uttered the magic word that was never to be said. Sex offender registration was “punitive.” To be sure, this came as no epiphany to anyone remotely familiar with SORA, whether because they were on it, dealt with it or read anything modestly thoughtful about it. But that a federal circuit court said it? That was huge.

So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. (Emphasis added.)

Yet, two years after this decision, holding Michigan’s retroactive inclusion on the registry an unconstitutional ex post facto law, the problem is solved? Not quite. Continue reading →

In 1989, when Darcel Clark was a line assistant in the Bronx District Attorney’s working narcotics, 16-year-old Huwe Burton was coerced into falsely confessing he killed his mother.

It was Jan. 3, 1989. Her son, Huwe Burton, then 16, said he found his mother murdered when he came home that evening, after having spent the day at school and then at his girlfriend’s house.

But two days later, after detectives had interrogated him for hours, Mr. Burton confessed to the police that he had stabbed his mother while high on crack during an argument. Police arrested him for murder.

Mr. Burton quickly recanted his statement, which was inconsistent with evidence at the scene. But a jury believed the confession and convicted him of murder. He served nearly 20 years in prison before being paroled in 2009.

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I was taken in by the story in Rolling Stone by Sabrina Erdely about Jackie’s rape at UVA.

I fell prey to confirmation bias, as was made painfully clear in a subsequent post by Richard Bradley, which asked whether Sabrina Rubin Erdely’s story of the gang rape of a University of Virginia freshman, identified only as Jackie, might be a lie.

At Reason, Robby Soave was not, which earned him this classic rejoinder at Jezebel.

‘Is the UVA Rape Story a Gigantic Hoax?’ Asks Idiot

That didn’t turn out well for its author, Anna Merlen, the same person who twitted for a Covington Catholic yearbook so she could dox the kid in the red hat. Lessons. How do they work?

Of course, the Jackie accusation was a hoax, a complete fabrication where Erdely was taken in because she wanted to believe, and Rolling Stone humiliated itself because how could it doubt such a truth? If you want to believe hard enough, you can. But back in 2014, there was still room for doubting voices to speak out, even if they had to endure people like Merlen calling them “idiots.”

And then there was Duke Lacrosse. KC Johnson chronicled that fiasco at Durham-in-Wonderland from start to finish. As with Jackie, there was no doubt whatsoever that these privileged white male lacrosse players raped a black woman. Who had the time to wait for a trial when the Group of 88, academics who not only condemned these students as rapists, but long after there was no doubt they were innocent, that prosecutor Mike Nifong was a lying, conniving dishonest worm, still clung to their narrative without regard to crime or guilt.

But the students were innocent. The charges were dropped. Every remotely rational person recognized the Duke Lacrosse scandal, like the UVA scandal, was a lie.

Of course, both the Duke and UVA hoaxes involved rapes, heinous and inflammatory crimes. It’s not at all surprising that passions would soar, that emotions would seize control, that critical scrutiny would be overcome.

These weren’t stories of equivocal rapes, the trendy sort of post-hoc regret or one-beer-wonders that have become the normal fare of college campus sex tribunals and sad traumatized tears. These were the real deal, hardcore forceful rapes. But for the fact that they never happened, they were awful.

So how is it possible that a kid in a MAGA hat, smirking, became so much more powerful than rape that it not only demanded instantaneous condemnation, but that once it became impossible to deny that the original video failed horribly to provide a serious view of what happened, so many people could not let go, could not admit confirmation bias, could not control their impulse to defend their outrage through any means necessary?

If we can’t manage to control our rush to condemnation, an understandable impulse in these days where nothing speaks worse of a person’s humanity than not being in the forefront of the mob, can we at least back off when the error of our ways becomes patent? Some could. Most couldn’t. Even now, they remain defiant in their contention that they are right, even if for the wrong reasons.

The questions appeared in the twitters from Jesse Singal, Robby Soave and others. There is a long stream of historic errors, going back to such glories as the Satanic Panic and Central Park Five, that have since been debunked despite the absolute certainty they were real. Is this possible now? If we can’t get past a kid who did nothing more than Smirk in the First Degree because he wore a MAGA hat, how will we ever overcome the lies and hoaxes that involve actual crimes, horrific offenses?

Who foretold the future better, Robby Soave or Cassie Delaney? Why bother to try a case if guilt or innocence no longer matters?

Without explanation, the Supreme Court by a 5-4 split lifted two of three stays of Trump’s ban on trangender people serving in any capacity in the military.

The Supreme Court on Tuesday took a dramatic step toward reviving President Donald Trump’s ban on transgender troops.

Previously, lower courts had placed injunctions on the transgender ban, stopping the Trump administration from enforcing it.

On Tuesday, the Supreme Court put a hold on some of those injunctions. But because one lower court injunction was not part of the cases the Supreme Court put a hold on, the ban can’t be enforced just yet. It is likely, though, that soon the remaining injunction will be put on hold as well.

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Trial lawyers tend to make friends with the court reporter. They sit there with us during the down time, with nothing in particular to do. So we chat. And we need them to get the transcript right, so it never hurts to be friendly with the people whose efforts serve your goals. We come to appreciate the difficulties of the job, from lawyers and judges talking over each other, as they can only get one person at a time, to mumbling, to using words with which they’re unfamiliar.

There are times in court when Qawi Abdul-Rahman, a Center City-based defense attorney, gets the sense that folks listening didn’t understand a piece of testimony.

“You get it all the time, truthfully,” Abdul-Rahman said. He’s been concerned that the true meaning of statements like “I don’t fool with them” glide past the ears of listeners who aren’t black. The unaware might think the speaker has a problem with someone. But saying this doesn’t necessarily imply hard feelings — it means the speaker isn’t really in someone’s circle.

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Mainstream media, to the extent such a beast still exists, got caught. Erik Wemple did a side by side comparison of the initial stories on the young, MAGA-hat-wearing, smirking (or not) Nick Sandmann who perpetrated the “facecrime” on Nathan Phillips, whose stories fluctuated with his veteran status. Then the story expanded, not to fill a void but to defend against the exposure of the media as defending its legitimacy in the face of failure.

The expanded video showed the interaction with a group that calls itself the Black Hebrew Israelites, which had nothing or something to do with what happened afterward. Then there was a shirtless kid. One of our new members of Congress saw them “taunting 5 Black men” which was about as bizarrely false as possible.

Then came the series of irrelevant revelations, designed not to address the original incident but to create a secondary means of salvaging the ruined dignity of those who needed to justify their abuse of a child. Continue reading →

I suppose it is because I know something about jurors that I love an old film where jurors are the focus. In 1957, and adapted for the screen from a book of the same name, 12 Angry Men, directed by Sidney Lumet, hit the theaters. The cast was unbelievably talented, and included Henry Fonda, Martin Balsam, Lee J. Cobb, E.G. Marshall and Jack Klugman.

The story of 12 Angry Men takes place inside the jury room, where a group of twelve personalities from different backgrounds gather together to decide the fate of an eighteen-year-old Hispanic man who’s accused of stabbing his father to death. The jury knows that if they convict the man will be given the death penalty. The room is sweltering. There is no air conditioning. With the preliminary vote indicating that most of them have already made up their minds and consider the defendant guilty, one juror sets in motion further discussions regarding the case by voting “not guilty.” The rest of the film follows the jury’s difficulty in reaching a unanimous verdict.

If you are a lawyer who tries criminal cases, you really ought to watch this film if you haven’t already done so. Here is a snippet: Continue reading →

Ask any criminal defense lawyer about the joys of forensic science and you’ll likely get an earful. It’s not just that junk science is junk, but that we’re accutely aware of its use, its misuse and the impact it has on juries. So Edward Humes op-ed in the L.A. Times comes as no surprise.

Forensic science’s shortcomings have left the justice system alternately in a quiet panic or massive denial. The issue was first brought into the spotlight by a highly critical report from the National Academy of Sciences in 2009, which found a dearth of scientific backing for most forensics methods other than DNA. It cited evidence that “faulty forensic science analyses may have contributed to wrongful convictions of innocent people.” That report was followed by an even more blistering presidential commission report in 2016, which found serious errors and junk science in a host of commonly used forensic methods tying suspects to crimes.

Note the dates. The NAS report was 2009. The presidential commission report was 2016. Yet, here we are, still talking about it. And there it is, still being admitted into evidence. Argue over Frye or Daubert all you want. It’s still coming in. Continue reading →