As has been noted before, the presumption of innocence, both as a legal rule as well as a principle, has been under sustained  attack for a while. It’s now in the direct line of fire following the new Title IX regulations by those who somehow connect it to their contention that it silences victims. This, in itself, is unsurprising, both because the activists have had a tendency to resort to hyperbolic exclamations of disaster with no rational relation to any substantive facts, a fairly normal approach these days, and because they lack a firm grasp of what legal principles mean.

This isn’t a new phenomenon. It’s been a bone of contention for a very long time, Even people who should, one would hope, know better seem at best to be fair-weather friends to the presumption of innocence, picking and choosing where this “technical rule” deserves to be honored and rejecting it whenever one chooses to.

So it should come as no surprise that the attacks on the presumption of innocence have escalated, now that the sacred cow of the “campus rape epidemic,” based on the notion that rape is whatever anyone says it is, before, during or years afterward, is under discussion. Continue reading →

On its surface, it can be dismissed as little more than another performative effort by some overly self-important local politicians to show their neighbors that they won’t tolerate the nastiness, racism, the words that are wrong. After all, they could stir up feelings of anger in others and cause them to act out and harm people. But it’s happening in San Antonio, of all places, and if someone calls the cops, and the cops respond because someone called COVID-19 the Chinese Virus or Kung Fu flu, someone could very easily get hurt.

WHEREAS, COVID-19 is a public health issue, not a racial, religious or ethnic one, and the deliberate use of terms such as “Chinese virus” or “Kung Fu virus” to describe COVID-19 only encourages hate crimes and incidents against Asians and further spreads misinformation at a time when communities should be working together to get through this crisis; and Continue reading →

After the video of the murder of Ahmaud Arbery went viral, the arrests of the two men in the video seemed certain.

The men, Gregory McMichael, 64, and his son Travis McMichael, 34, were each charged with murder and aggravated assault and booked into a jail in coastal Glynn County, Ga., where the killing took place, the Georgia Bureau of Investigation said.

Of course, it’s not that the video wasn’t available to the police, prosecutors and GBI before it went viral, but there was no national outcry for action. While the person in the car who recorded the video cooperated with police, readily gave the video to anyone who wanted it, no one thought to make it public until Brunswick, Georgia, lawyer Alan Tucker. Continue reading →

I’d known my client since he was a little kid, when his father was my client. His father was what cops call a “skell,” running low-rent smarmy scams without any shame, being a small cog in a bigger crime whenever he could make a buck out of it. On a personal level, he was one of those guys who pretended to be your best friend, waiting for the opportunity to shove a knife in your back.

But his son wasn’t a bad kid. He just never had a chance given the way he was raised. So when he got busted for drugs, he was one of the rare clients who just told me what happened without the usual story, the string of obvious lies that would make me the stupidest guy in the room. Instead, he gave me the information that I needed to defend him, so I knew what they knew, less whatever they wrongly thought they knew and what they made up. Not everybody lies, but most people do, at least to some extent.

We should have won the suppression hearing. We had the goods. The hearing went exactly as planned. The agent who testified admitted under cross that he lied in his report. Why? Continue reading →

Teresa Manning, who heads the Title IX Project for the National Association of Scholars, was troubled, and gave me a call to ask if she missed something. What caught her attention was the third prong of the new Title IX regs definition of sexual harassment. To understand its significance, the path by which anything that happens on campus flows into a Title IX violation has to go through sexual harassment.

Despite all the claims otherwise, it’s the only “ill” giving rise to a Title IX violation, and all the other ills, from dirty jokes to rape, have to be funneled through it. Don’t blame me. That’s what the Supreme Court says. Continue reading →

The backchannels of criminal defense lawyers were on fire.

Have you? Never. You? Nope, can’t even imagine it.

The buzz was about the government’s motion to dismiss the information against Michael Flynn. It wasn’t even a defense motion, with the government conceding the point in response. It was the government’s motion. After a plea. After it prevailed against every attack. After General Flynn went through his plea allocution, under oath, admitting to the commission of the crime under 18 U.S.C. § 1001(a)(2). Continue reading →

KC Johnson caught it right away.

While others (like me) were still reading and processing the new Title IX regs, the Washington Post was already up and running with the story and, to its credit, sought comment from presumptive Democratic presidential nominee and target of Tara Reade’s accusations, Joe Biden. And “his campaign did not reply.” Continue reading →

It took 2033 pages to try to create the appearance of acknowledging every cry, claim and demand, real or imagined, considered by the Department of Education before finalizing its new regulations for Title IX sex hearings. If you’ve got a lot of time to kill, and aren’t put off by the prospect of little payback for your investment, there are some nuggets in there worthy of note.

But what is mostly notable is that after three years, thousands of lives and screams of outrage that persist, most of which are false or absurdly hyped, it’s neither as big a deal, nor as much of a change, as anyone would have it. What becomes quickly clear is that the new regs are horse designed by committee, an effort to smooth over ruffled feathers, to provide some facsimile of the accouterments of due process that its predecessor, the 19-page 2011 Dear Colleague Letter, was deliberately crafted to overcome, and otherwise punt the hard problems, such as the impossibility of creating a viable definition of “consent” which was tacitly adopted, to colleges to figure out for themselves. Continue reading →

Of the many potential arguments available in support of the lockdown, self-quarantining, mask wearing and, as will soon become ubiquitous, an army of apps and hireling to “trace” people, linking the means of controlling further outbreaks of COVID-19 to gun control is likely the worst. It’s unsound on a theoretical level. It’s needlessly divisive. It’s destined to further distinguish the deplorables who need to work to keep their businesses alive and feed their families, and who in the minds of urban editorial writers, are the sort of people who love guns.

Yet, the New York Times’ Opinion Writer at Large,* Charlie Warzel can’t control his worst impulses.

I first saw it on Twitter. “Someone poke holes in this scenario,” a tweet from Eric Nelson, the editorial director of Broadside Books, read. “We keep losing 1,000 to 2,000 a day to coronavirus. People get used to it. We get less vigilant as it very slowly spreads. By December we’re close to normal, but still losing 1,500 a day, and as we tick past 300,000 dead, most people aren’t concerned.” Continue reading →

The patron saint of the woke, Senator Elizabeth Warren, has proffered a new rule worthy of consideration.

Elizabeth Warren on the Hill today said Joe Biden gave a “credible and convincing” denial to the Tara Reade allegations, and says she’s proud to have endorsed him.

It’s not that I take issue with her reasoning, per se, as an accused’s denial is tantamount to pleading not guilty. That pretty much covers the accused’s side of the equation until the accuser proves her claim. Some might argue that Warren is being just a wee bit disingenuous, saying this only for the sake of Biden and with utterly no sincerity toward any other man. Oh, you cynical wags. Continue reading →