The need isn’t new or novel, as it’s been the focus of efforts for more than four decades. That’s not me saying so, but Justice Mark Dwyer in the opening words of the final report of the NYSBA Task Force on Criminal Discovery, dated December 1, 2014.

For forty years, reports and legislative proposals by experts and practitioners have urged New York State to reform its outdated and unfair criminal discovery rules. This Task Force seeks to break the logjams that have stalled these necessary changes.

Discovery is but one of the major reforms needed and on the table, as New York has historically had a Democratic-majority Assembly and Republican-majority Senate. As the Dems now hold both chambers, and Gov. Andy Cuomo appears to be on board, the possibility now exists. Continue reading →

The question isn’t whether Reserve Officer Sean Dolan was telling the truth or not, or even right or not, but whether his certainty that Zachariah Marshall was speeding is good enough. The appellate court held that this violated the Fourth Amendment.

Hebron police officer Sean Dolan was patrolling the area around State Road 8 and 500 West on October 19, 2016. He observed Defendant’s car speeding and stopped the [D]efendant. Officer Dolan was using a radar, but he could not testify at hearing or at deposition 1) what speed the [D]efendant was traveling and 2) what the radar showed as [D]efendant’s speed. He could only state the following:

Q: How certain were you that the defendant was speeding?

A: Very certain, a hundred percent.

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Bad neighbor stories are ubiquitous in New York. Sometimes it’s because some minor grievance blossoms into thermonuclear war. Other times, it’s because one neighbor is crazy. This time, it was because the neighbor was not just crazy, but racist. This isn’t an unusual combination.

Donahue Francis wanted to quietly enjoy his apartment and do nothing to give rise to Raymond Endres’ enmity. That didn’t stop Endres from screaming racial and religious slurs at Francis. Francis called the cops, who had a stern talk with Endres which accomplished nothing. Inexplicably, the cops didn’t take it any further when the screaming continued.

Poor Francis was caught in racist neighbor hell, so he turned to the landlord for help. The landlord did nothing, not even acknowledge his requests. When Endres’ lease expired, the landlord refused to renew, whereupon he was gone. But until then, Francis suffered his neighbor’s abuse. Continue reading →

A cute twit by a young lawyer crossed my path and struck a chord. As I’m wont to do, I contributed my reminiscence to the mix.

Is it in his eyes?
Oh no! You’ll be deceived
Is it in his sighs?
Oh no! He’ll make believe
If you want to know if he loves you so
It’s in his kiss
(That’s where it is) https://t.co/4vCcp4t2y5

— Scott Greenfield (@ScottGreenfield) March 3, 2019

I expected nothing more than a smile, but what I got was surprising. Continue reading →

The law costs nothing. It doesn’t piss off the police. And it buys the appreciation of that select group of women who fear their selfies won’t self-destruct. The New York Lege has passed a Revenge Porn law and Gov. Andy Cuomo has signed off on it. The deal is done.

§ 245.15 Unlawful dissemination or publication of an intimate image.

1. A person is guilty of unlawful dissemination or publication of an  intimate image when:

(a) with intent to cause harm to the emotional, financial or physical welfare of another person, he or she intentionally disseminates or  publishes a still or video image of such other person, who is identifiable from the still or video image itself or from information displayed  in connection with the still or video image, without such other person’s  consent…

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It’s often necessary to reduce stories of how Title IX investigations go bizarrely awry to their bare bones, as they involve complex and prolix details that in the past would have been dismissed as trivial, nonsensical or incredible that are now built up into serious concerns. In the case of Harvard economist Roland Fryer, defended by maligned Harvard Law professor Ronald Sullivan.

Stuart Taylor meticulously picks apart the case and reveals what has become typical of these investigations. They begin with a woman who, for whatever reason, gets angry with a man, who thereupon either fabricates stories that can’t be disproven or converts matters that were benign before she became disaffected, but then horrific and traumatizing when it serves to avenge her feelings of hostility.

The complainant first told human resources on June 27, 2017 that sex-tinged jokes told by Fryer weeks before had harmed her health and she needed a paid disability leave. The timing, and the details of her June 9 text message exchange with her roommate, suggest that she was indeed becoming anguished, but that Fryer’s sex-tinged jokes weren’t the reason. Continue reading →

When an editorial at Harvard’s newspaper, The Crimson, called for law prof Ronald Sullivan’s head, his resignation or dismissal as “faculty dean,” previously known as housemaster before “master” was excised from the language regardless of its reference, the rationale offered a clear vision of how chaos theory trumped attenuation.

Sullivan has failed to address the incongruity of his two roles — defending Weinstein in his role as defense attorney, while simultaneously working to promote a safe and comfortable environment for victims of sexual misconduct and assault in his capacity as faculty dean. We condemn his choice to represent Weinstein and urge him to address the tension between the two roles more directly than he previously has.

As an aside, is the role of faculty dean to “promote a safe and comfortable environment for victims”? This might be taken for granted now, but it’s the sort of rhetorical twist that slips in unnoticed. The post is to be the grown up, the faculty member, to support all students in his care, in Winthrop House. Sullivan’s job wasn’t dedicated to the service of female victimhood. Continue reading →

No one elected her to office, or gave her their proxy to be the voice of her gender, her generation, or anyone else. So let’s not make more of this than it is, one young woman who suffers from a delusion that smearing her menstrual blood on her face, taking selfies and posting them on Instagram somehow proves that periods are “beautiful and powerful.”

A SEX coach is smearing menstrual blood on her face in a bid to end the stigma and shame around periods. Continue reading →

It’s disturbing enough that the media seems comfortable relying on the Southern Poverty Law Center as the irrefutable font of hate group wisdom. If SPLC says you’re a hate group, that’s as conclusive as it gets, and journalists can smugly call groups out, confident that the conclusive source of what thought is permissible has pointed its finger.

It’s not that SPLC is necessarily wrong, within the confines of a category that has no official definition. It’s a non-profit, and it’s created its own agenda-driven, value-laden definition of what constitutes a hate group. As an NGO, they’re allowed to craft their own definition, and they’re allowed to pick whatever side is hateful for not being the side that aligns with their political views.

And you, like most journalists, are allowed to agree with their views, even if they represent a partisan agenda rather than a legal or factual conclusion. That the media accepts their conclusions as gospel (see what I did there?) is problematic, but then, without fake news, there would be no news at all. It’s as American as Tiramasu. Continue reading →

The status quo is horrible, even if exaggerated to make the point.

New York laws on pretrial process are among the most retrograde in the nation. Prosecutors can withhold evidence until the morning of trial. To keep it that way, the district attorneys’ association has made the fear-mongering claim that early disclosure of evidence would enable defendants to intimidate witnesses and victims.

This isn’t quite false, but wildly imprecise. Prosecutors in New York are required to make disclosures under CPL § 240.20, so to say “withhold evidence” is inaccurate. But it is true that anything outside the statutorily-mandated discovery can be withheld until the eve of trial, including witness statements, which we refer to as Rosario material, and Brady material.

What this means is threefold: we can’t investigate to determine the efficacy of the evidence against the defendant, and we can’t search for contrary evidence to refute the prosecution’s claims and we can’t properly prepare a defense since we don’t know what evidence we will face at trial. So while it’s hyperbolic to claim we’re blind, it’s fair to say we can’t see what we need to see if we’re to mount an adequate defense. Continue reading →