But for the fact that DNA evidence has proven, conclusively, that things too obvious for dispute are false, the testimony of an eyewitness would remain the gold standard. The witness would get misty-eyed, turn to the defense table as the jurors watched with bated breath, point her finger and exclaim, “I can never forget that face. It was him!” There would be gasps. Conviction was certain.

Except we’ve learned from voluminous empirical studies, from post-conviction DNA tests, from sad meeting of putative crime victims and the innocent guy who sat in prison for decades because she was certain he was the one when he wasn’t, that eyewitnesses are so very certain of their beliefs, and so very wrong. There is no evidence more damaging, because of its strength and unreliability, as eyewitness identifications.

And now, in this freakish moment when it serves the cause to rehabilitate eyewitness IDs after years, decades of effort to end our adoration of bad evidence, the evidence responsible for so many wrongful convictions is once again beloved. The New York Times brings us the new darling of evidence, the memories of the sexual assault victim. Continue reading →

Maybe it was taken for granted that appointment to the Supreme Court would be the crowning glory on a distinguished legal career, such that the youthful age of a nominee wouldn’t be gamed to seize control for too many decades. Maybe it was the expectation that these geezers wouldn’t live that long anyway. But regardless, life tenure was the choice made in the Constitution for Supreme Court justices.

Is this the source of our current insanity, doing anything and everything to undermine the integrity of nominees to the Court because they’re there for life?

No other major democracy has lifetime appointments to its highest court. Only the United States does, and it creates all kinds of problems.

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Senator Dianne Feinstein didn’t demand a hearing to air Christine Blasey Ford’s significantly belated accusations. She demanded an F.B.I. investigation instead, which would not only serve to delay the confirmation vote for Brett Kavanaugh, perhaps until after the midterm elections when the Democrats could possibly gain a majority in the Senate and pull off a Merrick Garland of their own, but offered the best possibility of making something real out of claims that were not going to stick.

After all, if the FBI came up empty, then the Dems were no worse off than they are now. And if they managed to find some additional corroboration, some witness, someone willing to leap into the fray and say something to add to the mix, they were ahead of the game. But Senate Judiciary Committee chair Chuck Grassley wasn’t having it, although he did, with pressure from his side, agree to hold a hearing to air Ford’s allegations. And Ford’s attorney said she would testify. Until she didn’t.

The letter from Ford’s lawyer to Grassley calls for a “full” FBI investigation, as if it’s a witnesses place to call for anything from the Committee. It then rolls blithely through the regular litany of excuses and rationalizations that have become de rigueur with the #MeToo crowd, carefully crafted to overcome all normal expectations of witnesses, in general, and purported sexual assault “victims,” in particular. The word “purported,” and the quotes around “victim,” are used very deliberately: claiming victimhood isn’t being victim. Believe the facts, not the “victim.” Continue reading →

Giving University of Michigan associate professor of American culture (whatever that means) John Cheney-Lippold the benefit of the doubt, he is a sincere believer in the BDS movement. He’s allowed, no matter how simplistic the notion may be that the relationship between Israel and the Palestinians can be reduced to good v. evil. Nobody ever said that being an academic precluded a person from being dumb.

But when his belief crossed into the world of his student, was this a fair expression of his academic freedom or a denial of hers?

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Perhaps based on my questionable advice, the Senate Judiciary Committee will reopen the Kavanaugh confirmation hearing to take additional testimony from Christine Blasey Ford and Brett Kavanaugh. Whether they will take the next step and have examination conducted by competent counsel rather than blathering senators is unknown, but if ignored, will likely turn this into an astoundingly absurd and pointless spectacle, worse even than the hearing held thus far.

In advance of the hearing, wacky rumors, arguments and insinuations are flying. Kavanaugh has denied that it happened, without equivocation. Some Republican senators are questioning whether it would matter in any event, which is being taken as a double-edged conspiracy gambit to cover Kavanaugh in the event his denial fails to save the day. And, indeed, it appears that progressive forces are determined to undermine the validity of any denial.

Judge Kavanaugh has flatly denied any wrongdoing. “I did not do this back in high school or at any time,” he said in a statement. Continue reading →

When it was nothing more than the anonymous taint of a 35-year-old claim of sexual abuse, entirely unmentioned until after hearings were concluded and only raised by the beleaguered Senator Dianne Feinstein in a “secret” letter to the FBI unceremoniously leaked to the public, it was a desperation tactic, unworthy of anything more than a blanket denial. After all, if it was real, if there was anything worthy of the Senate’s or public’s attention, Feinstein’s failure to mention it before would have been outrageous.

Would the senator who failed to get the endorsement of her own party neglect to mention that a nominee to the life-tenured post on the Supreme Court tried to rape a woman in high school? Would she say nothing that he lied to the Judiciary Committee?

Feinstein’s claim was that she sought to respect the accuser’s desire for anonymity. After all, isn’t that more important than vetting a Supreme Court nominee, particularly after the efforts to falsely smear him with vapid cries of perjury? The Dems were beyond desperate to find some way to derail this nomination. Desperate people do desperate things. Continue reading →

Which is the more useful skill for a successful life, to be able to speak before an audience or to be able to make excuses to justify failure? The newest discrimination is based upon the latter.

But in the past few years, students have started calling out in-class presentations as discriminatory to those with anxiety, demanding that teachers offer alternative options. This week, a tweet posted by a 15-year-old high-school student declaring “Stop forcing students to present in front of the class and give them a choice not to” garnered more than 130,000 retweets and nearly half a million likes. A similar sentiment tweeted in January also racked up thousands of likes and retweets. And teachers are listening.

Math is hard. Conjugating verbs is hard. Heck, picking words beyond “awesome” and “gross” is too hard for many young people to manage. But public speaking? Continue reading →

Finally, the draft of new Title IX regulations for campus sexual harassment adjudications has become publicly available. They’re unfortunately long, at ~120 pages, which is often confused with comprehensive rather than overdone. The more lengthy the explanation, the more confusing and confused it often becomes. But given the controversial nature of trying to put the genie back in the lamp, equivocation comes as no surprise.

The premise of the changes seems fine.

Ironically, the substance of Title IX,  20 U.S.C. § 1681(a), itself is short and to the point.  Continue reading →

It’s that time again. I’ve handed the keys to the SJ doublewide to wunderkind, David Meyer-Lindenberg and wished him the best, while Dr. SJ and I sip wine and think happy thoughts.

Consider this an open thread, to discuss amongst yourselves whatever is happening in the world, whatever interests you, whatever needs to be discussed, but without me. Have fun. Be kind to each other. Don’t make anyone stupider. I’ll be back. Eventually. Probably. Please don’t wreck the place while I’m away, and nobody touches the Healey. Thank you.

Having watched most of the Brett Kavanaugh confirmation hearings, I deserve a medal. It was a passion play of epic nonsense, designed not to serve any useful constitutional function of “advise and consent,” but to inflame an audience ripe for fury. The Republicans played to their team. The Democrats played to their team. Nobody played to America. Nobody seems to remember that there’s an America out there that still believes there will be a nation after the current ship of fools runs aground.

Watching it with the eyes of a lawyer, knowing that this was a vote on the Supremes that would decide cases that would impact real people’s lives, was infuriating, not because Kavanaugh was the dreaded fifth conservative vote on the Court, but because it revealed so precious little about Kavanaugh. Continue reading →