For reasons that aren’t entirely clear, a CPA turned marketer, Vin Messina, has taken a shine to the criminal blawgosphere.  He sends me emails asking questions or making observations about how I run this blawg or about criminal law issues. He twits about criminal defense lawyers. He even wrote a post trying to use the Gary Ostrow posts as a lesson for marketing.

I mostly ignore Vin. He can be a bit much, and the relationship is more than a bit one-sided. I get nothing out of it, except the loss of time I’ll never get back.  He uses “lol” a lot. Apparently, I amuse him.

He’s a nice enough guy, but he often doesn’t “get” the posts here. When he emails me a question, I sometimes respond that he’s “dense.” He replies that he’s not dense, but simply lacks the background necessary to appreciate why something (puppycide, most recently) is a problem.  He informs me that I ought to explain it better for guys like him, provide them with the background they need to understand it fully. That’s what I should do. Continue reading →

There were two questions looming in the background that needed answers.  The first one was how long before the insanity and illegality of Title IX as reflected by the Department of Education’s Office of Civil Rights “dear colleague” letters to colleges would filter down to younger students.  The second was whether they would breach the gender divide.

We now have an answer.

Federal education authorities, staking out their firmest position yet on an increasingly contentious issue, found Monday that an Illinois school district violated anti-discrimination laws when it did not allow a transgender student who identifies as a girl and participates on a girls’ sports team to change and shower in the girls’ locker room without restrictions.

It may well be argued that the Township High School District 211 in Palantine, Illinois, should have done something more to accommodate the needs of its transgender student, although it begs the question of what that might be, and at what cost to the public. Continue reading →

At the New York Times’ Room for Debate, the issue of free speech on campus is on the docket.

Free speech and the willingness to discuss uncomfortable ideas is under threat on college campuses where “trigger warnings” and “safe spaces” are becoming increasingly common. Even President Obama has raised concerns about university students being “coddled and protected from different points of view.” And recently, a provocative essay in a Wesleyan University student newspaper nearly led to the demise of the 150-year-old publication.

What does this say about this generation of young people and what they will become as future leaders of this country?

To their credit, the question raises the big issue, that this isn’t merely about what some children have to say today, but how this will affect things when today’s students become tomorrow’s leaders. Continue reading →

The Supreme Court will hear oral argument today in Foster v. Chatman, an egregious case of racial discrimination in jury selection that, pretty much by sheer luck, became known to Timothy Foster’s lawyers nearly 30 years after his conviction.

This one is the blatant kind. In 2006, Foster’s lawyers got lucky when — through an open-records request — they got hold of the notes prosecutors made during jury selection in the case. To their surprise, they discovered that all the names of the potential jurors who were black were highlighted and marked with the letter B.

At the top of each juror list, a key indicated that green highlight meant the potential juror was black. Separate juror questionnaires had the word “black” circled. No black jurors sat in Foster’s trial.

It’s no stretch to say that the prosecution systematically struck blacks from Foster’s jury. Arguments to the contrary don’t pass the smell test. But so what? Continue reading →

As much as it may be outrageous, it’s so outrageous that it kinda brings a weird smile to your face, a shake of the head, and, to the most cynical among us, a sigh. Give former Loudoun County sheriff’s deputy Frank Pearson credit for chutzpah.

The former Loudoun County sheriff’s deputy charged with stealing more than $200,000 from the office’s asset forfeiture program has an unusual reason that federal prosecutors might not be able to put him on trial.

He has a 12- or 14-year gap in his memory.

Oh, come on. If you’re not smiling now, you’re not human. Continue reading →

Nearly 40 years ago, when arbitration was largely used as a means of working out labor relations disputes, its viability as a secondary legal system, a shadow court if one was to couch it in a nefarious allusion, was first being realized.  The civil legal system was expensive and time-consuming. It was no longer capable of serving up justice.

The future of arbitration was bright to youthful students at Cornell’s School of Industrial and Labor Relations, who clung to Elkouri & Elkouri’s “How Arbitration Works” like a bible.  Its model was simple, a small claims court for disputes that could expeditiously and inexpensively be decided. What’s not to love?

The New York Times Dealbook has a major exposé on what’s become of arbitration since then, included in nearly every major corporation’s terms as a contract of adhesion, requiring mandatory binding individual arbitration of all disputes.  They are coupled with a waiver of the right to bring or participate in class actions.

At first, these arbitration clauses existed alongside the right to participate in a class action suit, until the Supreme Court held that the Federal Arbitration Act was pre-emptive in A.T.&T. v. Concepcion, and arbitration clauses were enforceable. Continue reading →

Merrimack County, New Hampshire Judge Larry Smukler imposed sentence on Owen Labrie, the former St. Paul’s student, for the rape he didn’t commit. With cameras in the courtroom to capture his judicialishness, he gratuitously added his own moral scolding.

Judge Smukler also said that Mr. Labrie, in maintaining that he and the girl had not had sex, had stuck to the mantra, “Deny ’til you die,” which is sometimes used by St. Paul’s students. “In some ways, you’re a very good liar,” the judge said.

Judges have magical powers to tell such things as which witness is a very good liar, no matter what the jury found. There’s a little-known red light behind the bench that goes off when a witness is lying, but they’re not allowed to tell the jury. They alone can see it. And, of course, no male student at St. Paul’s tells the truth, because “Deny ’til you die” is something they “sometimes use” there.

And so, Judge Smukler did what judges are empowered to do. Continue reading →

Rani Neutill has the pedigree one would hope for of an elite post-doc, teaching elite students at elite universities, and so would be sensitive to the myriad nuances of social justice.  And indeed, she is. And yet, she can’t win.

About a year ago I was asked to teach a class about the evolution of the representation of sex throughout American Cinema. I started with the silent film (The Cheat) and ended with Spike Jonze’s disembodied sex in Her. Along the way, I showed a number of sexually graphic films that caused a great deal of controversy.

Mind you, students who took the course should have noted its name, perhaps even read the course description, and so they would be reasonably expected to have a clue what the subject matter of the course might be, right?

Midway through the semester, because of my work in sexual assault prevention, I was asked to fill in for the Director of the Office of Sexual Assault Prevention Services at the university.

Continue reading →

What do you expect?  Occasionally (ahem), I take a position here with which someone disagrees. Hard to imagine, I know, but it happens. And contrary to popular opinion, it’s fine by me.  No rational person expects everyone to agree with them, or to agree with every view held.  People I hold in high regard disagree with me at times. People I don’t hold in high regard disagree with me at times as well.

It’s fine. It doesn’t hurt my feelings. It doesn’t make me angry that you disagree.

But what exactly do you think I am going to do about it?  There are times when someone will post a comment disagreeing with me, and I realize they are right and I’m wrong. Not often, but it happens.  Almost invariably, they offer a well-reasoned point and, upon reflection, the merit of their reasoning prevails.

So why not you? Not every argument made here changes my mind. There are often two (or more) valid perspectives to an issue, and just because you have a different view, supported by valid reasons, doesn’t mean that anyone, including me, is compelled to adopt your argument. Yes, you have a point. No, it doesn’t make me abandon mine in favor of yours. Continue reading →

When University of Pennsylvania lawprof David Abrams announced his research, it made news.  After all, it purported to be an empirical study that contradicted not only the accepted wisdom, but the experience of every criminal defense lawyer ever.  The trial tax was a myth.

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed. the data supports the view that in fact there’s a trial discount not a trial penalty.

Surprising isn’t the word for it. Shocking? Stunning? Astounding?  How about wrong?

Last year David Abrams, Penn, stunned the criminal law world with a study concluding that defendants actually receive shorter sentences at trial than they do for pleading guilty. Rather than “penalizing” those who exercise their right to trial, we actually punish those who plead guilty more harshly, turning decades of plea bargaining debates on their head.

Abrams was wrong, and he’s not the only one.

Continue reading →