While not quite TSA level abusers, the Recording Industry Association of America stands tall among private trade associations for having been handed tin shields by Congress to play music police, beating up on nasty boys and girls across the nation.  Not impressed? Has Congress given you vast powers to play private cop lately?

Lately, we haven’t heard of any egregious sucking the tears of crying children, while copyright schemer Righthaven, trolling the interwebz in search of people using indefinite pronouns to which it claimed ownership, has turned the RIAA’s righteous witch hunt into a travesty. 

Righthaven, you may recall, got slammed with legal fees owed to Marc Randazza, and when it failed to pony up for a bond to stay execution,  the cavalry was called in to seize its assets.  If you happen to notice the excessive use of adjectives at The Legal Satyricon, now you know why.

Who was this upstart, this troll without so much as a tin badge from Congress, making a mockery of fair use litigation, the RIAA demanded to know?  Aarrgghh. They’re going to screw it all up, and now they’re so broke they can’t afford a mocha frappucino.  This will never do, so into the breach rides the Saviors of the Song to defend the right to suck blood from babies on the internet, as Congress meant them to do.

A demure request was sent off to Randazza from an unassuming young lawyer out of the Washington, Matthew Williams, who honed his skills editing the 2006 American University gender journal, where nary a stray masculine word appeared.  In dulcet tones, he politely inquired whether Randazza would have any problem if his client, the RIAA, just happened to slide some papers under the appellate court’s door as a friend of the court.

Not a partisan amicus, mind you. No, no. Nothing so aggressive. Just a neutral amicus. You know, friend to all, just the voice of fairness, of justice.

You see, the RIAA couldn’t care less whether Randazza bankrupted Righthaven and sucked the marrow from its bones. Good riddance, interloper.  But the crushing decision, where the court not only held Righthaven to have no standing, but held the use of its false-claimed copyright to be fair. “Fair use,” two words that sound like fingernails on a chalkboard to the RIAA, like curses of the harshest tone.  Oh no, something so important cannot be left to a troll like Righthaven to screw up.  And so the neutral RIAA has come to clean up the mess, let Randazza get his money but undo the damage left in Righthaven’s wake.

Randazza was not fooled by Williams’ baby face and kindly offer.  In a letter, This entry was posted in Uncategorized on December 5, 2011 by SHG.

Via Carolyn Elefant, who didn’t appear ready to jump, the subtly-named Shit Law Jobs posted an interesting offer:

Law Firm with multiple websites needs an articulate person with strong writing skills to help with high volume blog entries for each of the Firm’s websites. Goal is to reach 700 – 1000 blog entries by the end of December working part time Tuesdays and Thursdays 9am – 5pm. If this goal is reached or exceeded work hours will be increased based on accomplishment. Pay scale is $8.50 per hour. Writing samples will be necessary to interview for this job. If you do not have your own writing samples, please be prapared to bring sample blog entry to interview for one of the following topics: (1) Help With Warrants in Dallas (2) How Can a Traffic Ticket Attorney Help You (3) Caught Speeding in Dallas? Know Your Rights.

http://dallas.craigslist.org/dal/wri/2729285263.html

(1) Help With Warrants in Dallas
(2) How Can a Traffic Ticket Attorney Help You
(3) Caught Speeding in Dallas? Know Your Rights.

Blogging is a pie eating contest in which the prize is: more pie.

In a remarkably strongly-worded decision, Judge A. Howard Matz of the Central District of California tosses FCPA convictions for misconduct.

In this Court’s experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness.

So it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.” 

Second, when a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees. That is what occurred here. This Court was confronted with so many motions challenging the Government’s conduct that it was difficult to step back and look into whether what was going on reflected not isolated acts but a pattern of invidious conduct. Although the Court did issue orders granting various of Defendants’ motions to suppress, motions to exclude evidence, motions to compel further discovery, motions for curative instructions, etc., it did not fully comprehend how the various pieces fit together. And fit together they do. The Government has acknowledged making many “mistakes,” as it characterizes them. “Many” indeed. So many in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry. To paraphrase what former Senator Everett Dirksen supposedly said, “a few mistakes here and a few mistakes there and pretty soon you’re talking misconduct.”

Oh baby.  And this:

When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.1 In this case, for example, the Court denied several previous motions to dismiss and permitted the prosecution to proceed over the heated objections of defense counsel because it was willing to accept the prosecutors’ assurances that their conduct was inadvertent and would not be repeated. The Court even said it was “not anxious to attribute a deliberate, intentional, and devious motive” to the Government.

1  For an example of a court’s reluctance to make those findings, see United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008). There, the apparently ambivalent district judge stated that “the government did not act intentionally” but also said that the government “did not . . . act [ ] . . . unintentionally.” The appellate court characterized this ruling as “somewhat confusing.” Id. at 1080 n.2.

When is the last time a federal judge conceded that prosecutors have to murder babies before any judge will hold them accountable for misconduct?

While I expect to return to this decision, and the underlying conduct, as soon as I can read through the papers, I would be remiss not to share this.  Get out the popcorn, kick back and enjoy. 

H/T   C.D. Cal, FPD Blog and Solomon Wisenberg at White Collar Crime Prof Blog

An age old question in the State of New York is who is really the most powerful guy around.  For a long time, it was tacitly conceded that Bob Morgenthau had the juice.  But Morgy’s gone now, and Cy Vance sits in his chair.  Does that mean the Cy is now the most powerful guy?  Does Cy Vance think he’s got the juice to extort the Supreme Court?

Apparently, Cy thinks so.  From Jeffrey Fisher’s op-ed in the New York Times :

A friend-of-the-court brief by the Manhattan district attorney’s office pushes the state’s argument one step further, warning that a ruling in the defendant’s favor would prove so costly that it would “force prosecutors to forgo forensic DNA analysis” in future cases. Consequently, the brief continues, defendants in rape and murder cases “might well be prosecuted solely on the basis of eyewitness testimony,” which is notoriously unreliable and could lead to convictions of many “innocent individuals.”

You read that right.  The District Attorney of New York County, Cyrus Vance, Jr., has conceded that every conviction ever obtained by that office on the basis of eyewitness testimony is notoriously unreliable.  Now this is what I call a friend of the court.

The  amicus brief was filed in Williams v. Illinois, on for argument before the Supremes next Tuesday. again challenging the Crawford rule that the prosecution has to produce the actual lab tech who produced the damning lab report rather than mailing it in.  So what if there is a laundry list of things that go very, very wrong in forensic labs, from contamination to bias to outright lies. It costs money to produce witnesses, and the constitutional exception for things that cost money weighs heavy on the court.

It is far more efficient, these justices contend, to let analysts simply mail their reports to court. Having to appear at trials pulls them away from their labs, and only occasionally proves more revealing than their written testimony. Hence, these justices maintain, “scarce state resources” are better committed elsewhere.

But Cy isn’t just relying on the high-brow “waste of money” argument that has captured four of nine votes. Rather, he’s prepared to take the fight to its nadir.

But the assertion in the Manhattan district attorney’s brief reflects — in a particularly dramatic way — some prosecutors’ belief that they can bully the court into refusing to enforce a constitutional guarantee simply by arguing that such enforcement would be an administrative and financial burden.

You want us to test the DNA to get actual, viable evidence?  Ha!  Then you’re gonna have to give up live testimony. Take it or leave it, baby.  From page 10 of the brief, here’s the actual language:

In the absence of DNA testing, defendants might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned. See United States v. Wade, 388 U.S. 218, 229 (1967)(“the infl uence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than another other single factor” (internal quotation and citation omitted))… No one concerned for innocent individuals suspected of serious crimes should prefer a world in which DNA testing is needlessly curtailed.

The financial piece of prosecution is always a concern for any governmental entity. They’ve got a budget and if they squander it on bells and whistles, like producing witnesses at trial, how will they ever afford new carts to wheel in the piles of files for quickie pleas?

As Fisher notes, Justice Scalia has called this argument a “bogeyman,” and has been the strongest voice on the Court when it comes to confrontation.  I know, it pains you to have Nino as the voice of reason, but haters gonna hate.  The fact remains that he’s been steadfast in his position that the constitutional mandate of confrontation isn’t trumped by cash and carry jurisprudence.

There’s nothing new here. In the 1963 case of Gideon v. Wainwright, Alabama and several other states filed a brief urging the court to refrain from interpreting the Sixth Amendment’s guarantee of the “assistance of counsel” to require states to provide lawyers to poor defendants accused of felonies. The brief said such a rule would impose on states “an unbearably onerous financial burden to pay the fees of attorneys.”

The court, of course, was not moved. States have adapted. And the Gideon case has become a cornerstone of American jurisprudence. It’s almost impossible now to imagine how a trial could be considered fair without that basic procedural guarantee.

Without question, it can be expensive to maintain a legal system that comports with some, if not most, of the Constitution’s commands.  It would be far cheaper to rush the bums to prison so long as the cops say he’s guilty, or put on a trial without witnesses, cutting down significantly on all that lost forensic time and getting rid of all those annoying cross-examination questions.  With a few tweaks here and there, we could make this system work without a hitch, provided no one gets too caught up with the old “convicting the innocent” saw.

But now that Cy’s put his cards on the table, it would be impolite not to play them.  If it happens that the case against you consists of an eyewitness who takes the stand to identify the defendant as the perpetrator of a crime, no summation should fail to recall the District Attorney’s very thoughtful concession. At the very least, say it as an homage to the most powerful man in New York.

What happened to 17-year-old Vanessa Gibbs gives new meaning to fashionably late.  Via Radley Balko :

Gibbs said she had no problem going through security at Jacksonville International Airport, but rather, when she headed home from Virginia.

“It’s my style, it’s camouflage, it has an old western gun on it,” Gibbs said.

Frankly, it’s not quite my style, but then again, there are very few 17-year-olds who seek my fashion advice.



Once again, in either a mindless excess of caution, or a sly fashion commentary, our dedicated and vigilant TSA found a reason to exist.

Gibbs said she was headed back home to Jacksonville from a holiday trip when an agent flagged her purse as a security risk.

“She was like, ‘This is a federal offense because it’s in the shape of a gun,'” Gibbs said. “I’m like, ‘But it’s a design on a purse. How is it a federal offense?'”

After agents figured out the gun was a fake, Gibbs said, TSA told her to check the bag or turn it over.

One can’t help but wonder how many agents were needed to figure out that the “gun was a fake.”  What gave it away? How could they be sure?  So many crucial questions.

The problem, according to the TSA, is that they believed it to be a “replica gun,”  This is the Nancy Grace vision of criminality, “if it walks like a duck,” etc.  Except the replica gun prohibition makes complete sense when one limits it to its definition, an object that in all respects appears to be the real thing, except it doesn’t operate.  While it might be argued that this is a replica purse, it most assuredly isn’t a replica gun, an object that could reasonably be mistaken for a gun, capable of firing projectiles.

Can we blame the TSA for taking a closer look at Gibbs’ bag?  Probably not, as it’s not a great stretch to imagine that some inventive terrorist might fashion a weapon that would appear to be a decoration on a women’s handbag that could be removed and, in fact, function.  With a bit of ingenuity, almost any object could be created that looked benign but was capable of firing a projectile. 

Of course, a thoughtful terrorist would be more likely to make the decoration appear to be something that would draw less attention, like a beautiful mermaid or a stately swan, rather than a gun.  You know, something that might attract the admiration of TSA agents everywhere for its tastefulness, but not its deadliness, in a WalMart sort of way.

The TSA agents should have been fully capable of determining that the gun decoration on the side of Gibbs’ purse was neither capable of confusing anyone with a real weapon nor firing a projectile (vomit notwithstanding) in a matter of seconds.  The absence of a hole in the barrel, a working trigger, or absolutely anything beneath its garish exterior, was a dead giveaway. 

While the agents pondered this deeply disturbing purse, Gibbs missed her plan to Jacksonville, causing her waiting mother enormous concern. 

By the time security wrapped up the inspection, the pregnant teen missed her flight, and Southwest Airlines sent her to Orlando instead, worrying her mother, who was already waiting for her to arrive at JIA.

“Oh, it’s terrifying. I was so upset,” said Tami Gibbs, the teen’s mom. “I was on the phone all the way to Orlando trying to figure out what was going on with her. It was terrifying. I don’t ever want to go through it again.”

So what if a mother finds herself standing alone as the passengers deplane and your pregnant child isn’t among them?  So what if nobody has the slightest clue why your daughter doesn’t rush to the waiting bosom of her mother in a fashion forward sort of way?  At least the rest of the passengers can rest assured that they weren’t subjected to a terrorist threat. Or a gun and camo purse.

There is a moral to this post, aside from the TSA’s perpetually mining new depths of absurdity.

A TSA official at JIA said it’s not that uncommon for passengers to wear something that could be considered a gun replica, but the official encourages everyone to check the prohibited items list, which can be found online or at the airport before going through security.

If the opportunity arises to purchase a haute couture bag with a decoration in the shape of, oh, a Molotov cocktail, get to the airport early.  This is the price of fashion.

What sort of deep, ponderous, existential thought gets a lawprof’s juices flowing and his tenure committee all excited?  Beats me. But it doesn’t concern crimlaw prof and Marquette dean Michael O’Hear, who readily acknowledges that his  PrawfsBlawg post isn’t likely to make his fellow scholars rip off clothes and dance in the hallways.

At the risk of not being invited back, I’ll start with a post on harmless error — a terminally unsexy topic that nonetheless is much on my mind as I prepare to teach Post-Conviction Remedies next semester.

Here are the (allegedly) competing standards.  On the one hand, there is the standard from  United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  On the other, there is the “overwhelming evidence of guilt” standard from  Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”

Admittedly, it requires some effort to see a difference between the standards, but I think the formulations do indeed suggest two distinct ways of performing the analysis, at least at a conceptual level.  The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were.  The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.

In practice, though, I suspect that the distinction between the two standards collapses in most cases.

Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal.  (The prejudice test from  Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.)  The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury.  To be sure, though, as Vasquez points out, it is not easy to reconcile this approach with the Sixth Amendment guarantee of a jury trial.

I haven’t  always been kind to the ABA Journal.  I’ve written mean words about some of its initiatives, and been particularly leery of its annual beauty pageant.  Eventually, I tired of mentioning it, and didn’t.  And yet, it’s back again.

On the one hand, it’s unfortunate in that it has brought out some of the most unsavory conduct ever seen in the blawgosphere.  Otherwise legitimate blawgers have shown the glaring hole in their self-esteem that can only be filled by votes for greatness.  It’s not enough that people “out there” actually spend some time reading what they write, but that they need the glory of being recognized, or worse still, winning.  Validation is sad.  The need for validation is ugly.

The nomination and selection process for the beauty pageant has always been suspect.  While the powers behind the throne has tried to tune the process sufficiently to avoid the most flagrant abuses, it’s hardly much of a problem to find somebody to nominate you.  And while the actual selection process is cloaked in mystique behind the massive mahogany doors of the ABA Journal Editorial suite, it bears noting that these aren’t necessarily lawyers honoring peers, but writers filling a list.

The point of this beauty pageant isn’t to make raise consciousness about blawgs, or even to honor anybody, but to get backlinks to the ABA Journal.  How else would anybody know (or care) if it exists, given its cursory articles coming a day or two after everyone else in the blawgosphere has already written something about the subject in substantially greater depth.  It’s not easy being relevant in these go-go days of split-second information and gnat-challenged attention.

Oh nuts, here I am again going on and on in the negative about it again.  If there was a curmudgeon category (or, as some suggest, Miss Anthrope), I would be a shoo-in.

There is, as there often is, another side to this silliness.  New names arise in the blawgosphere all the time, and there’s long been a sense that breaking into the mix is hard, maybe even impossible, now that blawgs have been around a while and firmly established themselves.  The old guys have readers.  The new guys hope for crumbs, a chance to show they’ve got something worth sharing. 

Granted, most don’t have much to offer, usually because they’ve been lied to at the inception and consequently molded their blawg to meet their marketer’s schemes.  It’s not that the lawyers are morons or incapable of holding a worthwhile conversation, but that they entered into it with the wrong attitude, being told that if they aren’t using social media to sell themselves (cheap), they’re wasting their time.

But a few, the rare birds who can put together that combination of substance and readability, often laced with humor and charm,  To their surprise, they may find that the old guys welcome them, warmly, to the blawgosphere.  Contrary to the marketing horde, the vitality and fun of the blawgosphere comes from the interaction, whether it’s blowing kisses or trading barbs, it makes us all more alive and vital to engage with each other. 

Neither the marketing sorts nor the Happysphere want anything to do with others in the blawgosphere. For the former, they would die before including a link that might send a potential client to a competitor. For the latter, they fear their odd ideations won’t hold up to scrutiny by their peers, and are either too fragile or “special” to take the chance.  Either way, they contribute nothing. Nothing to thought. Nothing to vitality. Nothing to the blawgosphere.

What this beauty pageant does, much as I hate to admit anything good about it, is raise consciousness about new blawgs, some of which are exceptionally good and worthy of lawyers’ time and attention.  It’s a chance for a blawg to get onto the radar, to make a wave and let the blawgosphere know it’s here.  And if you give the Blawg 100 a little extra credit, making the cut says a blawg has “arrived.”  For the new blawger who is trying to break in, this heightened profile can be huge, and the quality of their content inures to everyone’s benefit.

When the omnipotent hand of the ABA Journal points at you, people notice. So what if it desperately needs a manicure? It’s the ABA, dammit, and it’s the grandest Dame we’ve got. (Notice how I’ve feminized the ABA Journal?  How’s that for gender neutral?)  As much as I’ve taken the time from my busy day in the past to let the ABA Journal know her baby is ugly, the inclusion of so many new blawgs on the list, some of which are terrific, is itself a worthwhile contribution to the blawgosphere, enough so as to warrant sending a few hits her way.

Now that I’ve been all mushy and nice here, maybe I’ll win something this year?  Nah.

As a conservative is a liberal with a mortgage, a liberal is a conservative under indictment.  Is an anarchist a libertarian after conviction? There are few things that can change a mind faster than enlightened self-interest, and few who can tell the story better, not to mention get access to major publications, than Conrad Black.

Given that’s got time to write, and an ax to grind, this post in the  National Review has much to say, ripping the heart out of the American legal system.  Like stats?

There are 48 million people in the United States with a “record,” many of them based on ancient DUIs or disorderly behavior decades ago at a fraternity party and other unstigmatizing offenses, but still a severe inconvenience to them when they travel abroad or their names are fed to almost any information system; and millions have had their lives effectively ruined. The U.S. has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers, who invoice almost 10 percent of U.S. GDP (around $1.4 trillion annually). In the mid-1970s, the U.S. had about 650,000 people in mental institutions; today, it has only 50,000. Prisoners cost $40,000 per year to detain, and some states can no longer afford it. The conditions of hundreds of thousands of prisoners are grossly and shamefully inhumane. (My own are not.)

Note that he excludes criminal defense lawyers from the mix, since most don’t invoice.  I’m not sure that was his intention, though, as his experience may be different from others.

Not a stats-type guy?  How about some constitutional scrutiny:

The Fifth, Sixth, and Eighth Amendment rights of assurance against capricious prosecution, due process, no seizure of property without due compensation, an impartial jury, access to counsel, prompt justice, and reasonable bail, don’t exist. The ubiquitous plea bargain is just the wholesale subornation or extortion of inculpatory perjury in exchange for immunities or reduced sentences (often with people who are threatened, although there is no evidence against them). Assets are routinely frozen on the basis of false affidavits in ex parte proceedings to deny defendants the ability to defend themselves. Those who do exercise their constitutional right to a defense receive three times as severe a sentence as those who plead guilty; 95 percent of cases are won by prosecutors, 90 percent of those without trial. The public defenders have no resources to conduct a serious defense and are usually just Judas goats of the prosecutors conducting the defendants to legal destruction.

It’s not entirely clear how he arrives at the “Judas goat” thing, since it’s unlikely he had any personal experience with public defenders, and third party stories are notoriously unreliable, particularly when colored by the fact of conviction.  Nobody likes to be convicted, and it’s hardly uncommon for the convicted defendant to think his lawyer was less than exceptional.

And he’s not particularly kind to prosecutors either.

I have witnessed in the U.S. much sleazy prosecutorial conduct whose authors would have been disbarred in my native jurisdictions of Canada and Britain, and I cannot imagine how the U.S. justice system could have descended to such infamies. The only person in the Stevens outrage who seems to have had any redemptive qualities was Nicholas Marsh, one of the assistant prosecutors in the Stevens case, who committed suicide when the conduct of the prosecutors came to light. Depending on his exact apparent motives, and the sequel to his tragic action, he could play a role analogous to that of the Tunisian street vendor who set off the Arab spring by immolating himself.

There’s nothing like a good self-immolation to demonstrate redemption.  Of course, it’s a one-trick pony, but it’s one hell of a trick.  The upshot is that Black sees the system as morally bankrupt.

The moral soul of America is rotting away and the only defense an individual American has is numbers: The prosecutocracy cannot send more than 1 percent of the entire adult population to prison at any one time, if only for budgetary reasons.

The post is great reading (you’ve got to love “prosecutocracy”), something to love and hate for everyone, and mostly, a remarkable view into what becomes of an exceptionally erudite billionaire media mogul when he finds out the government isn’t really his friend.  So you’ll know next time you defend one.

H/T Doug Berman

Teaching criminal law at Fordham Law School, John Pfaff posts at  PrawfsBlawg about the Supreme Court’s recent decision in Cavazos v. Shirley Ree Smith, dealing with two critical and troubling issues arising from the case.

The question at the heart of Cavazos is whether a 7-week old boy, Etzel Glass, died one night from SIDS or due to shaken baby syndrome (SBS) at the hands of his grandmother, Shirley Smith. At trial, the jurors heard from dueling pathologists about the likely cause of death, and they ultimately accepted the story of the prosecution’s doctors and convicted Smith.

The evidence in the case was ambiguous. Many (though not all) of the “tell-tale” signs of SBS were missing, and the state’s experts concluded that death resulted from an undetected—and perhaps undetectable—shearing of the brainstem. Smith’s pathologists noted that Etzel was a low birth-weight child born with jaundice and a heart murmur, all of which are risk factors for SIDS. A classic dueling-experts situation.

The forensic diagnosis of Shaken Baby Syndrome, a diagnosis that exists only for the purpose of prosecution and to give an ugly, criminal name to what was previously an otherwise inexplicable cause of death, has come under increasing attack.  At its creation, courts took for granted that such a thing was real and had a basis in medical science. 

As is too frequently the case, its existence failed to bear up to scrutiny, and medicine is coming around to acknowledge that it’s a purely manufactured creature, used to give the impression of proof of a crime for deaths that can’t be otherwise explained or which weren’t the result of any crime or violence. But when a baby dies, someone has to be blamed, and so a crime was created.

Pfaff confronts the problem of fighting the “dueling experts” dilemma:

The [9th] CCA adopts the conventional view on jury fact-finding in complex scientific cases: “The expert opinion evidence … was conflicting. It was for the jury to resolve the conflicts. The evidence was substantial and sufficient to support the jury’s conclusions….” The Ninth Circuit, on the other hand, argues that the scientific uncertainty here bars a beyond-a-reasonable-doubt conclusion about guilt as a matter of law.

This is fascinating stuff, where two witnesses, both accepted as experts and qualified to render opinions, clash, the 9th Circuit held that the prosecution’s expert, as a matter of law, cannot meet the threshold for conviction. Pfaff questions whether this is an example of the 9th Circuit’s “judicial activism,” or conceptual logic in the face of precedent.

But there is a different, broader way to read the Circuit court opinion that in some ways avoids the AEDPA problem (but introduces a host of other problems): what if we have a blanket rule that when both the state and the defense introduce plausible, reliable and contradictory scientific evidence  about an essential element of a crime, the state automatically loses?

Think of it this way: when both sides introduce credible expert testimony on an element of a crime, perhaps there is no uncertain fact for a jury to “find.” What we have is a “known unknown”: we know that we do not know the answer.† And not knowing seems to be reasonable doubt; or, phrased more carefully, in the presence of a “known unknown” it is unreasonable to say that you know one way or the other. And at least in criminal cases, that should tip the balance automatically in favor of the defense.

† It is unfortunate that Donald Rumsfeld has been mocked for using this term, and it is unfortunate that the term now often elicits a snide laugh because of its association with Rumsfeld. The concept is a profoundly important one, and whatever your impression of Rumsfeld he used it completely correctly in his speech.

What comes off as rather obvious given Pfaff”s explanation is, indeed, a profound notion. When experts, by definition acknowledged as they’ve been allowed to offer scientific evidence and opinion, conflict, is there any rational basis for an ultimate determination that one wins and the other loses beyond a reasonable doubt? We can accept that there’s a real question, but that doesn’t mean a real answer follows.

And yet, the analysis doesn’t stop, but goes to the next level, where real world decisions are made.

Even if you’re not convinced by this argument—and I’m still trying to decide if I am—the jurors’ lack of epistemic competence may still play a role: while perhaps in theory there is some fact to be “found” here, the people we are asking to find it are effectively blind. Jury pools are not well-educated: at best about half are college graduates (and this from a study set in Connecticut, the sixth-best educated state in the country), and few college graduates have real math/science training. So if dueling experts do not theoretically demand a non-finding, does the clear inability of the jury pool to make the necessary finding along rational lines do so pragmatically?

Think about it (and think hard, now that the question is staring you in the face), the practical absurdity of asking a jury, a bunch of nice folks with utterly no qualification to determine which of dueling experts is conceivably better, no less correct to the exclusion of the other, reaching a verdict.  There is no rational basis for them to do so; whether they have some magical quality that permits them to decide truth from lies is one thing, but to decide scientific merit when they may not be able to spell “scientific”?  It’s nuts.

Pfaff goes on to proffer a “radical” theory, that given the absence of a rational basis upon which a jury could reach a verdict, the statute could be changed to reduce the prosecution’s burden from proving commission to showing that commission was “plausible.”

Forcing us to rewrite statutes along these lines lays bare the implications of the legal fiction of “jury factfinding” in situations of scientific complexity and “known unknowns.” They are not finding that x caused y; at best they are finding that x perhaps caused y, or that it is not completely impossible that x caused y, or something along those lines. The revised statute may be unpopular—how can we convict someone for possibly causing a death?—but again, stripping away the legal fiction of “jury factfinding” here, that is what we are doing.

While this would be extremely unpopular, essentially eviscerating the standard of proof via the backdoor in criminal convictions, Pfaff’s point is that it would at least be honest, ridding us of the legal fiction that juries find facts rather than reach verdicts.

Whether you agree with Pfaff’s ideas, he’s managed to mix in doctrine and theory with some extremely controversial, and very real-world, issues that we confront regularly in the trenches, providing quite a bit to think about and, more importantly, so great points around which argument can be crafted in the trenches that will inure to the benefit of real people and real cases.  An exceptional post that proves scholarship can, and is, useful to the legal profession, and clarifies and advances thought and argument in the trenches, where real people dwell.

Chances are that more experienced lawprofs would cringe reading the comments to Marc DiGirolami’s post at PrawfsBlawg.  They would never admit it publicly, as no one circles the wagons faster than scholars, who hate the barbarians questioning their utility, but most are pretty smart guys who get it.  Some, sadly, aren’t quite as smart. And some are thick as a brick. 

Meet Marc DiGirolami, a law professor at St. John’s Law School.  After reading a relatively benign post directed toward nipping at the edges of David Segal’s  New York Times article castigating law schools for their failure to do everything from teach students to be lawyers to make a decent cup of joe, it struck me that DiGirolami’s post served to inadvertently bolster one of Segal’s more potent criticisms, that legal scholarship was useless and irrelevant. 

Others in the Academy continue to dispute this allegation.  Duke Law Dean David Levi tried to salvage the sullied reputation by offering a letter to the Times, which it ignored.  Instead, it’s posted at Balkanization.

Just as law practice has changed, so have the law schools. The law school of today is not the law school of The Paper Chase or of Christopher Langdell. But some things have not changed, and we should be glad of it. The faculties of the top schools include leading scholars whose work engages with some of the most important legal problems facing the country and the world, from human rights to regulation of the financial markets, from constitutional interpretation to corporate criminal liability.

I don’t see what’s the big deal with Heidegen. The Appeals Court found that the jury could reasonably have concluded that the defendant knew he was driving the wrong way. If so, it matches perfectly with the classic DIRM situation of riding a horse into a crowd. Even if you think the jury, the trial court and the appeals court all got that issue wrong, it is a highly fact specific question and thus not terribly interesting to the development of the law.

Furthermore, it is very weird to see someone being chastised for *not* attempting to help a killer get out of jail. First do no harm and all that.

Aside from the complete misapprehension about the Hedegen decision, and fundamental ignorance about the depraved indifference standard, enough so that it would make most law students shake their head in disgust, this comment brought a new, and certainly more challenging issue into the mix.  While Brad didn’t see fit to leave a surname or link, it may well be that he’s a lawprof somewhere.  I certainly hope so, as any practicing lawyer who would leave such a comment should be shot.

But the second paragraph of the comment may be worthy of a place of honor on the all-time most outrageously offensive, mind-boggingly stupid things ever said on a law blog.  I did a double take.  Was it possible, at all possible, that someone is so fundamentally ignorant as to say such a thing?  Well, clearly so.

Now it seems pretty obvious that Marc was busy writing his final attempt to salvage his tattered dignity when Brad’s comment posted, so I assume that he didn’t know of it at the time he slammed the comments shut.  While Marc’s practice experience is a bit thin, he did serve as an assistant prosecutor for two whole years, one of which was as a “special prosecutor.”  I’m sure he was quite special.  It was in Massachusetts, so he may not have had much reason to concern himself with New York’s depraved indifference law.

Still, as a prosecutor and a scholar, he should have had some basic familiarity with criminal law that would have compelled him to address the notion that “it is very weird to see someone being chastised for *not* attempting to help a killer get out of jail.”

Not a word. Not an utterance. The comments were closed and they would stay that way. 

While my attempt to help Marc DiGirolami understand the difference between using scholarship for something useful fell on deaf, and overwhelmingly defensive, ears, it came as no surprise given how academics have such a hard time admitting fault.  But that he ignored this flagrantly idiotic and outrageous statement cannot be so easily excused.

Marc DiGirolami teaches criminal law to students at St. John’s Law School.  If he lacks either the brains or balls to challenge the stupidity in Brad’s comment, he has no business teaching anything to anyone.  Our next generation of criminal lawyers, whether prosecution or defense, deserve better.