The new discovery rules requiring prosecutors to turn over an expanded array of discovery within 15 days of arraignment, with an additional month for the asking, are now the law. Whether it’s doable, given certain systemic limitations such as lab reports, additional investigation and police intransigence, remains a mystery, but now that it’s the law, it’s the law.

And regardless of whether this is the best way in which to reform New York’s discovery law, there has been no question for the past 50 years that the law as it previously existed was bad, ineffective and grossly unfair to the defense. No one seriously argues that the law wasn’t in dire need of reform.

But the Kings County District Attorney, Eric Gonzalez, supported reform and had been held up as an example of how the law was doable. According to public defenders in the trenches, open file discovery was the norm in Brooklyn, and it showed that prosecutors could comply without the pain and undue expense so many claimed would destroy the system. So what happened? Continue reading →

While Title IX advocates decry the soon-to-be-released regulations that are putatively intended to permit colleges to afford the accused minimal due process at campus sex tribunals, they’ve quietly scored a “win” with the Department of Education by convincing it to delve into an area of law for which there’s no authorizing law, no competence and no connection between the problem and the sole purpose of Title IX, affording educational opportunity without discrimination on the basis of sex.

It’s not that it isn’t a problem, but that it isn’t a Title IX problem.

Education Secretary Betsy DeVos’s pending rules on sexual misconduct at the nation’s schools and colleges will include provisions to shore up protections for victims of stalking and dating violence, a response to lethal attacks that have underscored the weakness of current policies. Continue reading →

I admit it. I watched the opening out of curiosity about how they would handle the absence of a host, there being no one pure enough, correct enough, to get the gig. Minor wardrobe malfunction aside, it was auspicious.

On the red carpet, stars did what they could to express themselves. Continue reading →

What if they held an essay contest at the University of Montana in honor of Martin Luther King Day and all the entrants were named Karen?

The contest was seen as an opportunity to engage students of various backgrounds and spur dialogue across the campus about the life and work of the late civil rights leader. But the plans backfired when the university announced, and proudly promoted, the four winning essays — all penned by white students.

There are three ways of looking at this, that it’s wonderful that white students felt strongly enough about MLK to write essays about him. That it’s less than wonderful that black students did not. That whatever happened in real life isn’t what was supposed to happen and therefore something must be done. Guess which way the students at the University of Montana decided to go? Continue reading →

Ed. Note: Chris Halkides has been kind enough to try to make us lawyers smarter by dumbing down science enough that we have a small chance of understanding how it’s being used to wrongfully convict and, in some cases, execute defendants. Chris graduated from the University of Wisconsin-Madison with a Ph.D. in biochemistry, and teaches biochemistry, organic chemistry, and forensic chemistry at the University of North Carolina, Wilmington.

At James Otto Earhart’s trial for the murder of Kandy Kirtland, compositional (comparative) bullet lead analysis (CBLA) was used to conclude that the bullets seized from his home and car were “analytically indistinguishable” from one found with her body. FBI agent John Riley testified that he could determine whether or not bullets are from the same box of ammunition. Continue reading →

When I was a kid, I woke up every morning filled with wonderment. What would happen today? Who would I meet? What would I do? I didn’t know what my future would hold, but I dreamed it would be good. No, great. Why would anyone dream otherwise?

The other day, the American Dream came under attack. I understood why, as many young people believe that no matter what they do, how hard they try, how closely they hew to the “rules,” they will never be able to achieve it. They may have a fancy degree, but they won’t be able to afford a home. They struggle with their relationships, as intimacy crumbles under the weight of demands and expectations they never seem capable of meeting. Continue reading →

My old friend Alan won an Oscar. Not a “big” one, but a technical award. He kept it on a shelf, and the first time I picked it up, I was shocked by how heavy it was. Unfortunately for Alan, his win didn’t translate into fabulous wealth and success. He ended up opening a studio and getting a contract to produce some shows to air on BET.

The shows failed and he got stiffed. He was deep in the hole with some unsavory characters who were not interested in why he couldn’t pay his bills, and since he had a new baby and needed both his arms, I loaned him a not insignificant amount of money and bailed him out.

He never recovered, and every effort he’s made since to regain his faded glory has fallen in the toilet. He told me he always wanted to pay me back, and some day he would. It’s been 30 years and I’ve never seen a dime. Maybe Polonius was right, but we make our choices and live with them. Continue reading →

Sure, it was only a debate among the Democratic Party candidates left standing, and has to be taken with a grain of salt, it being a minute of pandering to the lowest common denominator in the hope of getting that small cohort of hardcore party primary voters to choose one over another. But one by one, they all agreed on one thing: criminal law was racist.

“But…but it IS!” you say?

Slow down, buckaroo. There is no question that black and Hispanic (or Latinx for Warren supporters) defendants are disproportionately represented in people arrested, prosecuted, convicted and imprisoned. Contrary to what some believe that means, it does not mean that white people are not arrested and imprisoned. They are. In large numbers. Just not as disproportionately large as black and Hispanic men. Continue reading →

San Angelo attorney Patricia Stone is no rookie lawyer, even if she’s somewhat new to criminal defense. She served as a Texas assistant attorney general until she retired and went into private practice. One would be very hard pressed to assume that she wasn’t competent, smart and sincere when she argued on appeal the unconstitutionality of plea bargaining.

This case is brought to vindicate that principle. Patricia Stone argued in a criminal appeal that the plea-bargaining system violates the Texas and United States Constitutions because it is inconsistent with the text of the Constitutions and with the understanding of that text at the time the Constitutions were adopted. In response to these arguments, Defendants implemented a policy of refusing to enter a plea bargain with any of Stone’s other clients unless she personally agrees that her argument was wrong. The purpose of this retaliatory campaign is to silence any attorney who attempts to challenge the plea-bargaining system on which Defendants rely so that they will not have to defend against these challenges in Court.

Regardless of whether she’s right on the law or you support the elimination of plea bargaining as a matter of policy, the issue is that after she raised the argument, the Tom Green County District Attorney has created the “Stone Policy,” that they won’t negotiate pleas with any client represented by Patricia Stone.

Inside a Tom Green County, Tex., courtroom in October, a woman facing a misdemeanor forgery charge was about to lose her appointed lawyer.

That afternoon, the woman’s soon-to-be former defense attorney, Patricia Stone, was joined by a judge to explain to the defendant why Stone could no longer represent her: The district attorney in Tom Green County was trying to enforce a policy, pertaining only to Stone, that required her to sign a waiver against her beliefs for prosecutors to discuss plea deals for her clients.“

[The prosecutors] will not talk about trying to work deals or do anything by agreement. That could hurt my clients,” Stone said, according to court transcripts. “Therefore, I have a duty to my clients, since that’s the way they’re going, to not let that hurt you.”

At its most superficial level, this policy destroys Stone’s ability to represent clients by removing one, and for many the most critical one, tool in her bag. If clients represented by Stone won’t be offered pleas, then their choices are limited, they’re compelled to go to trial and denied the full panoply of options that a defendant represented by any other lawyer would be given.

To her enormous credit, Patricia Stone put her client first. While she won’t disavow the argument she raised on appeal, or be coerced into preemptively disclaiming the argument for any other client, she will similarly not let her clients be deprived of the options afforded any other client. Instead, she took the hit, giving up the case rather than allowing any harm to come to her clients.

As she was assigned to represent the defendant, it’s not as if  this implicates the denial of counsel of choice, per se, although clients and lawyers establish relationships of trust, and the client may very well prefer that Stone be the lawyer, particularly given Stone’s dedication to her client’s best interest and, well, the fact that not all lawyers doing indigent representation in Texas are renowned for their diligence. But a new lawyer will be assigned to the client, and Stone will be punished by the loss of the case, of the client, instead.

There’s no doubt that the prosecution’s “policy” is retaliatory for Stone’s having argued that plea bargaining is unconstitutional. There may be some sort of snarky rationale, such as “well, if she thinks it’s unconstitutional, then her clients shouldn’t get a plea. Let’s see how much she likes that!”

“In this case, the DA is saying, ‘we are going to dictate the legal arguments you can make, and if you don’t agree we’re going to make sure that your other clients don’t have the same right to justice as everyone else,’ ” Stone wrote. “They are trying to make me sell out one of my clients to do a good job for the others, and I won’t do that.”

While this shallow tit-for-tat game played by the Tom Green County prosecutor may seem roughly fair, Stone’s point is that the consequence of being forced to choose between her current clients being afforded the same options as any other defendants is to limit her ability to make a good faith, non-frivolous argument otherwise. If the policy directed at Stone for her temerity to challenge plea bargaining is allowed, then the DA would control the arguments she might make in future by the same sort of policy, the same sort of deprivation.

And if they can destroy Patricia Stone’s practice, her ability to represent clients, then what makes you think yours is safe if you make an argument that annoys the prosecutor enough?

To be clear, plea bargaining is a terrible compromise, coercive and manipulative, and the only thing worse than our current system of plea bargaining would be our current system without plea bargaining. But while I disagree with Stone’s contention, both on the law and as a matter of policy, she absolutely has the right to make the argument without suffering retaliation by the district attorney.

As long as plea bargaining remains a lawful mechanism for resolving criminal prosecutions, her clients must be afforded the same options as any other defendant. That doesn’t mean any client is entitled to any particular deal, but that they similarly can’t be denied any deal as a matter of prosecutorial policy.

For those stuck on what might appear to be the inconsistency in Patricia Stone’s position, lawyers argue in the alternative all the time. There is nothing improper about arguing in one case that plea bargaining is unconstitutional while taking a plea in another case. Aside from the fact that different cases demand different arguments, simply making the argument neither means she’ll prevail nor she sacrifice her clients for “the cause.”

Too many are blinded to the best interests of their client by their invocation of “the cause,” but not Patricia Stone. So she’s begging off cases to save her clients from harm, which is what an honorable criminal defense lawyer does. She just shouldn’t have to. No lawyer should fear that making a bold argument should force her to choose between the best interests of her clients and her ability to make any legitimate argument before a court.

Where the liberals once uttered the word “equality,” progressives have since replaced it with another word, “equity.” As with so many words that seem destined to mean whatever Humpty Dumpty feels it should, the word “equity” has largely escaped definition to be used as a catch-all for whatever outcomes are in need of rationalization.

But columnist Nancy Kaffer at the Detroit Free Press has offered a definition of the word “equity” in her quest to explain why Detroit should be “more fair.”

What does equity mean?

If you own a home, you’re familiar with this term as a measure of the value you hold in your property; in other words, the worth of the property after the debt you hold against that property is deducted.

Continue reading →