New  York Supreme Court Justice Mark Dwyer tried. His decision in People v. Collins wasn’t merely one of the most thorough, not to mention metacognitive, efforts one will ever find coming from a judge trying desperately to honor the rigors of the Frye test for admission of expert testimony, but an effort to elevate a group of the least qualified arbiters of science, judges, above being patsies to the black box industry of forensic evidence.

So they put up a bronze statue of Justice Dwyer out front of the courthouse as a token of esteem? Not quite.

For this case, this court assessed whether developments in the community of forensic scientists since the Collins decision of July 2, 2015, should change that conclusion. For the reasons noted below, this court decided on October 16, 2017 that it should again exclude the challenged FST evidence. The court has continued reviewing developments as best it can in the period since, seeing no basis to re-think the conclusion that nothing has changed. Continue reading →

The concept was established by the Supreme Court in Bakke, that the value of a diverse student population was a legitimate interest of colleges, and that using race as a consideration atop the other considerations of student qualifications was not unlawful discrimination. And, indeed, while one can question what a diverse background brings to the study of physics, it’s hard to seriously argue that diverse backgrounds, experiences and views don’t contribute to a richer, fuller learning environment.

But the ghost of Bakke floats throughout District of Massachusetts Judge Allison D. Burroughs’ opinion in Students For Fair Admissions v. Harvard. The law never provided that colleges can simply discriminate based on race to achieve the racially diverse student body they desire, an argument that had the support of a disparate impact approach for Asian applicants. It wasn’t that being Asian took away points, for that would have been wrong.

The plaintiffs had argued that Asian-American applicants scored consistently lower than other races on their so-called personal ratings, a subjective measure that takes into account a student’s background and character. The judge recognized that there was a disparity, but said that it was “small” and reflected neither intentional discrimination nor a process that failed to take unintended discrimination seriously.

Continue reading →

There is, apparently, a new thing called Wrongful Conviction Day, as if any day someone is wrongfully convicted isn’t enough. But activists seem to believe such things as proclaiming a day as theirs helps to promote their movement.

Wrongful Conviction Day began as an effort of the Innocence Network, an affiliation of organizations dedicated to providing pro bono legal and investigative services to individuals seeking to prove innocence of crimes for which they have been convicted, working to redress the causes of wrongful convictions, and supporting the exonerated after they are freed.  This is the sixth annual day.

Somehow I missed the last five. Oh well. I learned of it this year from a press release from the Center for Prosecutor Integrity, which offered a list of the most prominent causes of wrongful conviction. Continue reading →

The jury returned its verdict against former Dallas police officer Amber Guyger. Guilty. Not of manslaughter, but murder. This strikes many as troubling, as there was nothing to suggest that Guyger had some personal beef with Botham Jean, a good man enjoying some ice cream on the couch in his own apartment. Murder seemed wrong, as it wasn’t him, personally, she wanted to kill.

So why couldn’t it be manslaughter, a lesser offense to cover a reckless killing. After all, the entire scenario leading to the death of Botham Jean stunk of recklessness, as the distracted Guyger was tired, focused on porn on her phone, made the grievous mistake of going to the wrong floor, the wrong apartment and leaping to the wrong assumption that Jean was a burglar in her place. Continue reading →

The FBI released its crime statistics for 2018, an eagerly awaited metric to determine what to do about the panoply of interests involved in dealing with crime, law and punishment. And the news was, as anticipated, pretty darn good.

FBI data released Monday suggests that the violent crime rate in the U.S. remains on a decades-long downward trend, falling by 3.9 percent in 2018. Overall, the violent crime rate has plunged by more than 50 percent since the highwater mark of the early 1990s.

The drops came across categories of violent offenses, including murder, non-negligent manslaughter and robbery, and property crimes like burglary, larceny and vehicle thefts, while aggravated assault numbers remained about flat.

But then there was one crime that just wouldn’t behave. Continue reading →

After Osita Nwanevu argued in The New Republic that “cancel culture” was a con, a scam being perpetrated by the right to tether bad ideas, bad words, bad comedy, to the greats like Lenny Bruce, when it was just a product of society progressing and people choosing not to waste their time on people who weren’t worth it.  There was no such thing as “cancel culture,” whatever that meant, but merely people who wanted better than they were getting. How could that be wrong?

Jesse Singal took him to task line by line, not so much to argue that anybody should go see Dave Chappelle if that’s not their thing, but that the thrust of cancel culture, whatever that means, is to try to shut Chappelle down so that no one gets to see him, and by doing so, eradicate his awful humor from the society.

Nwanevu’s pre-emptive argument was that comedians like Chappelle were too big to fail, so it was absurd to complain that people were trying to cancel someone who would still be wealthy, successful and performing no matter what the little people tried to do about him. While that’s likely true for Dave Chappelle, it’s also true that he won’t be invited to many college campuses to ply his trade. But if that’s because college students don’t find him funny, is that wrong? Continue reading →

In a twit of astounding narcissism and hubris, the president of the United State suggested that if he’s impeached, there could be a problem.

A “Civil War like [sic] fracture”? As in brother against brother, father against son, mother against daughter? There are people in this country who support Trump, which is hard to explain. It’s not that the Dems offer a better vision of the future. It’s not Trump has managed to accomplish anything particularly helpful to anyone, beyond the appointment of more conservative judges, and few of the groundlings have a serious grasp of what that means. Continue reading →

Greta Thunberg speaks of impending climate disaster. David Hogg speaks of the mass shootings of students. What distinguishes them, and others, isn’t the subject of their activism. Many people speak to these issues. But that they are children, using the “purity” of their youth to play upon the emotions of others. Neither possesses any expertise to justify anyone heeding their cries, and yet their passion can move people, and so they’re put front and center as useful pawns for the cause.

And it works. It works exceptionally well, because we are a nation that loves our children, that wants to make them feel happy and safe, that cares about them.

But Greta is no climate scientist. Hogg only got into Harvard by affirmative activist action. Being close to tragedy may enable a person to speak to his feelings, but provides no legal and policy insight whatsoever. Still, it’s hard to challenge children who are used to promote causes about which they know nothing more than empty platitudes and simplistic answers. Continue reading →

Ed. Note: Our intrepid TV and Movie Critic, Harris County Public Defender Alex Bunin, reviews the new show “all rise” in the new “wokelaw” genre.

A new CBS legal show debuted this week called “all rise.” The lack of capitalization is a metaphor for the main character’s ascension to a Los Angeles Superior Court judgeship from modest origins. The lowercase bailiff’s call to order is meant to imply she is humble, different, and a “first” for the job, albeit not the first African-American, not the first woman, and not the first former prosecutor. She is allegedly “first” because she cares about criminal defendants. Her otherness is emphasized by her face-plant climbing onto the bench the first time.

The show’s presentation of defendants as complicated persons, even victims themselves, is a refreshing change from Law & Order’s parade of evil. However, like most fictional legal shows, “all rise” skims past serious issues in favor of tidy outcomes. This includes a number of “that does not really happen” moments. Continue reading →

Many words and phrases that are deemed offensive, if not actionably discriminatory today, were at one time in common use, and were the preferred, kind, word. There was a time when the polite word for black people was Negros. Even “colored people” was once a favored phrase. The N-word, notably, was never anything but a slur, what has been called the nuclear bomb of words.

Preferences change, which is fine, but during the time when they wind their way into our speech, our law, our culture, they are adopted as the proper terminology. In reviewing a brief recently, I caught the phrase “sexual preference,” which had been the common descriptor of the inclinations of gay people. That phrase is unacceptable now, as the suggestion that it is a choice, rather than an innate state, is contrary to the notion that people are born that way. So I changed it to sexual orientation, which is acceptable language now. Continue reading →