While last week’s Trump, who always took the pandemic very seriously unlike the Trump of the week before, morphed into this week’s Trump, for whom the cure is worse than the disease as he watched the Dow and his re-election prospects tank, the Senate has been in a fight to the death over its multi-trillion dollar stimulus package. Is it a “slush fund” to corporations, as Chuck Schumer’s talking point goes, or is it the opportunity for Dems to extort a progressive reinvention of business?

What’s most remarkable about this Senate naked mud-wrestling is that coverage has been replete with adjectives and active verbs, but almost entirely devoid of substantive details. Unsurprisingly, the New York Times seizes upon this to blame the Republicans. Continue reading →

In the midst of a pandemic, the Supreme Court, in a 6-3 decision written by Justice Elena Kagan, solved the age-old law school question of how best to frame the insanity defense. The M’Naghten rule? The irresistible impulse test? The Durham rule? Forget about it. Kansas don’t need no stinkin’ rule, and in Kahler v. Kansas, the Supreme Court says that’s just fine.

This case is about Kansas’s treatment of a criminal defendant’s insanity claim. In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of  imprisonment or commitment to a mental health facility. But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong. The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so—otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement.

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There’s no social distance in a courtroom, even if it’s not nearly as much of an incubator as a jail or prison. But far more importantly, the continuation of routine criminal proceedings, mostly a waste of time under the best of circumstances, is beyond a pointless risk under current circumstances. Indeed, the administrative judge ordered hearings be limited to jail cases, because requiring bail cases to show up in court, which often includes getting there and back on mass transit, to be told when the next time they have to show up isn’t worth any risk of illness, no less death.

But Judge Pinky Carr will be there.

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I watched Outbreak. I watched Contagion. Still, I don’t feel qualified to speak to the significance of the pandemic. I hear what far more knowledgeable people are saying, from Dr. Anthony Fauci to a plethora of docs in the trenches, and I accept that their studies were deeper than the two movies I watched.

Yet, there is a niggling question that lingers in the back of my head. If this pandemic began sometimes between last December and January, it has a death rate of 1% and its growth is exponential rather than linear, why have there not been more deaths worldwide? As of this moment, the number of deaths is 14,756.* That’s nothing to sneeze at and every death matters, but it’s not in the hundreds of thousands, the millions. Continue reading →

When schools decided, essentially overnight, to close up their physical shop and move online, it created something of a panic. Few knew how to make this happen at all, and almost no one was prepared to do it. Profs struggled to find their zoom-legs while teaching a course online, and students struggled to figure out how they were going to do it. It wasn’t optimum for anyone, but the alternative was to shut down completely for a semester, which raises many other troubling issues, and so they made the best of bad circumstances.

We’re now scrambling to transition everyone to remote learning on short notice, addressing each obstacle that arises as a problem to be fixed. Yes, taken individually, each student who doesn’t have a laptop or WiFi access off campus, who didn’t bring their textbooks home when they left for spring break, or whose survival depends on a paycheck now lost can be helped. Online learning and conferencing tools may groan under heavy usage, but we can hope they won’t break. We can also hope faculty and staff won’t break under the huge additional workload entailed in moving courses online that weren’t designed to be taught that way: a translation that poses particular challenges for science labs and practical classes in everything from physical therapy and nursing skills to dance and music performance.

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There were plenty of conspiracy theorists before, and being cooped up on their own hasn’t made them any less paranoid. But that doesn’t make them wrong, and the Department of Justice isn’t helping the situation.

The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the coronavirus spreads through the United States.

Documents reviewed by POLITICO detail the department’s requests to lawmakers on a host of topics, including the statute of limitations, asylum and the way court hearings are conducted. POLITICO also reviewed and previously reported on documents seeking the authority to extend deadlines on merger reviews and prosecutions.

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Come 8 o’clock tomorrow evening, all non-essential business in New York will be locked down, upon order of Governor Andrew Cuomo.

“I want to be able to say to the people of New York — I did everything we could do,” Cuomo said. “And if everything we do saves just one life, I’ll be happy.”

The time-tested “save just one life” has long sufficed to justify all manner of government overreach and policy making. This time, it rings hollow. Maybe not as hollow as Trump’s dissembling or “feeling” that a drug that works as a malaria prophylaxis will work even though, as Dr. Anthony Fauci explained immediately afterward, it’s scientifically nonsensical to discuss a “feeling” about a drug’s efficacy, but still hollow. Continue reading →

Maybe it was a gaffe, a long-standing issue for Joe, or maybe it was pandering to a cohort whose support was squishy, but Biden said it out loud, on TV, for everyone to hear.

In his debate with Bernie Sanders, Joe Biden made two pledges to voters and asked his opponent to do the same to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president. Even with identity politics, the pledge to impose a gender and race requirement for the next Supreme Court nominee is as ironic as it is troubling. What Biden was declaring, and what Sanders wisely avoided, would effectively constitute discrimination in admission to the Supreme Court. Indeed, the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.

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Remember when the fear of dying in a pandemic drove America to prepare? No, of course you don’t. If you were old enough to remember the Influenza Pandemic of 1918, then called the “Spanish Flu” even though it started at a military base in Kansas and long before anyone was traumatized by the use an ethnic word, you would likely be quite dead today.

We regulate at the moment because we have a reason at the moment. It’s a priority. It touches our concerns and the syllogism kicks in, so we regulate because how else can we stop or control this thing that absolutely must be addressed?

Among many shocks of the past week—school closures, Tom Hanks, the shuttering of one sports league after another—this rule change registers as major. The liquid restriction has been a key component of air travel ever since 2006. If people are now allowed to bring 12-ounce bottles of hand sanitizer onto planes, won’t the planes blow up? Continue reading →

Ed. Note: Chris Halkides has been kind enough, again, 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.

In 1991, Gregory Taylor was partying with an acquaintance when his Nissan Pathfinder got stuck in the mud in Raleigh, NC. About fifty yards away from his vehicle was the lifeless body of Jacquetta Thomas, which Taylor and his casual friend saw but did not report.  When he returned to retrieve the truck, Taylor and his companion were arrested for her murder.

There were two primary pieces of evidence against him, a prostitute who claimed that she had seen the victim get into his vehicle and a spot in the wheel well of his car, which a report from the NC State Bureau of Investigation’s crime lab said gave “chemical indications for the presence of blood,” In 1993, Taylor was convicted of the murder and sentenced to life in prison. Continue reading →