No reasonable lawyer would argue that discovery in criminal cases in New York wasn’t a disaster before. It was a nightmare. The statutory disclosure was minimal and damn near worthless. It wasn’t until  the eve of trial, if that, that you would get any discovery that mattered, and by then it was far too late to make use of it. More to the point, since most cases were disposed of by plea, it never happened.

You never saw the Brady material before copping a plea. Hell, you rarely saw Brady material if you went to trial. The prosecutor’s response to the defense demand for Brady was invariably “the prosecution is aware of its duty under Brady and will comply should any such material exist.” There was never any Brady, at least as far as the prosecution was concerned. So if they decided it doesn’t exist, there was nothing to turn over. No problem. Continue reading →

Much as the overhyped condemnation of qualified immunity has given rise to a great deal of misunderstanding of why it deserves condemnation, but not what the limits of its condemnation should be, add Monell liability to the mix and the confusion goes wild. In most cases, any award or settlement is paid by the municipality, even though a § 1983 case is brought against the individual who committed the constitutional rights violation. It’s not that the municipality is obliged to pay, as it’s not a party to the action, but that it chooses to indemnify its employees or, it’s feared, it wouldn’t have any employees.

When it comes to a lying prosecutor, that creates a dilemma, as prosecutors enjoy absolute immunity in the performance of their prosecutorial function. When it comes to a lying prosecutor in the office of notorious Williamson County, Texas district attorney Ken Anderson, of Michael Morton notoriety, the situation is bad enough to make your head explode. Continue reading →

Academics have been increasingly diligent in their search for novel problems to “fix” with solutions that create new and potentially worse problems, Doug Berman at Sentencing Law and Policy notes a new law review article by Penn Prawf Kimberly Kessler Ferzan entitled “The Trouble with Time Served.” Who knew there was trouble?

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. Continue reading →

My German son, David Meyer-Lindenberg, whose writings you’ve seen here and at Fault Lines, and who was my editor here for years before Beth, has been busy over the past six weeks doing what he could to save the life of his best friend, Misha. I’ll let David explain.

Let me tell you about my best friend, Mykhailo – Misha – who’s fighting for his life and the freedom of his country, Ukraine. We met in 2018, when we worked together in Washington, D.C. I assumed he’d pursue a career in the States, but he told me he wanted to go back to Ukraine, that his country needed him.

When Russia invaded Ukraine, Misha put down his smartphone and picked up a rifle. Continue reading →

I’m reliably informed that it’s just a tiny little dive, the sort of place that runs out of food when more people show up than expected or where something in the kitchen breaks and  it has to close the doors. If you don’t care for that sort of treatment, then the First Street Restaurant isn’t for you.

Charlene Towe claims management at First Street would not book an event for her friend, Nora Potts, despite hosting a similar event for them the week prior. In a social media post that has gone viral, Potts claims they wanted to make the event a weekly occurrence, but that request was denied due in part to an employee feeling “uncomfortable.” Continue reading →

It’s hard to say whether there was some prior warning that this might happen. Did Georgia State English prof Carissa Gray tell her students that they either got to class on time or shouldn’t bother showing up? Had she warned them that if they came in late, they would be told to leave? Had late arrivals disrupted her classes too many times for her to tolerate?

Or was she just a needlessly mean scold who outrageously over-reacted? Continue reading →

Whether we call it irony or hypocrisy, it’s who “we” are today.

More than half of those surveyed in a new poll said the comedian was in the wrong when he joked about Jada Pinkett Smith’s shaved head at the Oscars — and do not fault actor Will Smith for smacking him on camera.

The Blue Rose Research poll found that 52.3% of people blamed Rock for the incident, compared to 47.7% who said Smith was out of line, according to a report published by Mediaite.com on Tuesday.

Continue reading →

Doing a probation check at Rosa Adriana Araujo’s house was neither fun nor routine. Araujo didn’t take kindly to it and had an extremely bad reaction, whether the probationer was her brother or her. And she let it be known.

Detectives Stewart and Teixeira attempted to put Araujo’s hands behind her back to handcuff and arrest her and she resisted, trying to twist out of their grasp and saying to Stewart, “Fuck you n****r.” She continued to resist after being handcuffed, turning her body from left to right, squeezing the officers’ fingers, spitting on them, stomping on their feet, and at one point grabbing Stewart’s crotch. She called Stewart “n****r” more than 30 times, called him a “porch monkey” several times, and told him he “needed to go back to Africa.” Continue reading →

At Volokh Conspiracy, Will Baude brought up the coming “reforms” to the Multistate Bar Exam of eliminating four of the 12 subjects to be tested, conflict of laws, family law, trusts and estates, and secured transactions. Will asks whether conflicts will exist as a course of study after being excised from the MBE.

Many transactions and incidents involve at least glancing contact with multiple jurisdictions, and the legal principles for what state can govern those transactions are not at all intuitive. (See this earlier post on this year’s Supreme Court conflicts case.) Indeed, my experience is that lawyers who have no knowledge of the field of conflict of laws often do not even know that they have encountered a conflict of laws question.

Continue reading →

Culminating in the report of the National Academy of Sciences in 2009, it was clear that most forensic science had little to do with science. And if this wasn’t sufficient, the results were more vigorously restated in the 2016 President’s Council of Advisers on Science and Technology, or PCAST, report. Not that Garland’s DoJ cares much about it.

So what are the chances that law enforcement, prosecutors, judges, have learned anything about junk science, such as it not being science, not being reliable, not being admissible in court and not using it to convict people because, well, it’s crap? Not much. Continue reading →