From CBS Boston :

Last Saturday, one of Wendy Bordeleau’s two cows got loose from her 30-acre farm.

Surprisingly, this problem isn’t as common as it used to be, even in Pelham, New Hampshire.  Even so, it was a cow.  The report doesn’t state whether it was a nice cow or a cow with a prior criminal history.  Just a cow.  Perhaps the cow took the New Hampshire state motto seriously.

About a dozen people were trying to coral 800-pound Houdini across busy Mammoth Road when police showed up with their tasers.

“They said ‘We’re going to tase her, we’re going to taser it,’ and the group was pleading with them. Everyone was kinda yelling, ‘Please don’t taser the cow, it’s only going to make it worse,” she told WBZ NewsRadio 1030.

The cow said nothing, infuriating police, who then “zapped” Houdini four times. 

 
Mugshot: Houdini the cow. 

The tazing had no apparent affect on Houdini, likely because she* was covered in a thick, protective hide, because he was a cow.  Still, local police are bracing for a federal lawsuit for excessive force, fearing claims that the cow will require therapy.  Cow therapy is very expensive.

Sgt. Mike Pickles told WBZ he made the right decision.

“It blew through a wooden fence right next to me. That was the time a decision was made. I have to do something to try and control this animal,” he said.

“As a matter of public safety, that is a better option than just allowing things to happen and people get hurt.”

According to sources close to Pickles, known to Pelham’s cow community as Sgt. Mike, he couldn’t have lived with himself had the cow hurt a child.  Preparing for the worst, calls were made to assemble the Pelham Police SWAT team, but delays in arrival caused by a plague of student loan nonpayments prevented timely deployment.

The cow made it home safely and, at last check, was eating grass.

Fortunately, no child was harmed.  Unfortunately, local residents were constrained to have pizza for dinner rather than steak.  Houdini was satisfied with grass, which was duly noted in the police use of force report.

By all accounts, Wendy Bordeleau was not pleased with the police zapping Houdini and has unfollowed Sgt. Pickles on twitter.  “If it happens again, I’m blocking him,” she said.

H/T Doug “Keyboard Cowboy” Cornelius “If the cow won’t obey, then it must pay.  Oh yes, it must pay.”

* I’m informed by Turk, whose knowledge of bovines far exceeds mine, that gender neutrality is inappropriate in cow posts. My error has been duly corrected.

Jonathan Turley posts about yet another TSA travesty, this time involving a 29-year-old man with the intellect of a two-year-old.  Finally, someone the TSA agents can outreason, right? 

This time the incident occurred in Romulus, Michigan where a family was going to Disneyland and found two denizens waiting from them at the airport from the Unhappiest Place on Earth. Dr. David Mandy was walking his 29-year-old severely mentally disabled son through security when two agents spotted him.

Drew [has] difficulty understanding orders to place his feet on the yellow shoe line and follow the TSA agents’ orders. When Dr. Mandy tried to explain his son was severely mentally disabled the TSA agents told him to back off and that they would handle the matter. They were concerned with his adult diaper and kept instructing him to rub his hand up the front and back of his pants

They then turned their attention to a small plastic toy hammer and ball that Drew carries for comfort. As with children, Drew clings to the toys for a sense of security and has had the toys for years. One agent tapped it on the wall and reportedly said “See, it’s hard. It could be used as a weapon.”

The agents made the family surrender the six-inch hammer despite the trauma to Drew. The agents were convinced that Drew could try to take over the plane with his six-inch toy hammer. Unable to mail the hammer (a common and meaningless suggestion by TSA), they had to allow the agents to throw it out.

So they beat up on a mentally challenged young man.  Apparently, there were no babies or wheel-chair bound women to grope.  Got it. 

Drew Mandy’s life likely wasn’t one that anyone would envy.  Certain aspects, his confusion in a world that made no sense on its best day and his grasp of toys that soothed his world with familiarity.  What cretin would even consider adding to the misery for no better reason than he could?

But another story of TSA monkeys doing pointless harm to a vulnerable person just adds to the long list of reasons why our desire for the appearance of security at the expense of reason isn’t really such a great idea.  Sure, we need to remember that this is still happening, that our government’s enjoyment of control over our personal freedom and integrity continues unabated and just as stupidly as ever.

But there is another part of this story that strikes me as overlooked, and worthy of some scrutiny. From the  Fox News report of the incident.

Dr. Mandy claimed they asked Drew to place his feet on the yellow shoe line, something he didn’t understand. They proceeded to pat his pants down, questioning the padding which was his adult diapers. When the agents asked Drew to take his hand and rub the front and back of his pants so they could swab it for explosives, his dad stepped in and tried to explain that Drew was mentally challenged.

“They said, ‘Please, sir, we know what we’re doing,'” Mandy said.

And Drew Mandy’s father stepped back and let the TSA agents have their way with his son.

It just killed me to have to throw it away because he’s been carrying this like for 20 years,” Mandy said.

It “just killed” the father?  What about the son?  Whether it’s the parent of a mentally challenged young man, or the mother of a baby, at what point does a parent decide not to back away and acquiesce in the abuse of their child?  Apparently, the tipping point is when told to do so by anyone wearing the uniform of a government agent. 

No doubt Dr. Mandy, an osteopath specializing in pediatrics per a quick search, has spent a good part of his life helping his son to enjoy life as best possible.  He likely a wonderful, caring father who has shown love and devotion to Drew, and that’s great.

But some parents would rather take a bullet between their eyes than allow anyone to do harm to their child.  This situation hadn’t escalated to the point where bullets were in the offing, and yet Dr. Mandy complied with the instructions of his TSA handlers.  Was there something about them to suggest they really did know what they were doing?  It’s hard to believe.

So why did he just back off and let the TSA do as they pleased?  Where is the outrage?  Where is the will to tell the blue-shirted monkeys that they don’t have the first clue what they’re doing, that they are doing pointless harm to your child and that you are not going to be compliant sheep?

The TSA conceded afterward that this incident pointed out a failure in the training of their monkeys in dealing with the mentally challenged. 

“Very polite. Very apologetic. He was embarrassed. He (said) we have to review how we deal with special needs individuals. Obviously, he (said), we’re doing a terrible job,” Mandy told us. “It made me feel that there is still hope, that there is still justice and that there’s still somebody who listens to people’s problems (in) the federal government.

Or maybe the response allays Dr. Mandy’s guilt for having abandoned his son to these monkeys without even the pretense of a fight.  Whoever wrote the TSA’s letter in response was far smarter than most, realizing how easy it is to assuage the sheep with promises that it will never happen again.  And if it does, who cares, as it’s not like these sheep-parents will do anything about it.

One of the most fundamental premises of laws prohibiting criminal conduct is that they give fair notice to potential violators of the conduct that’s going to land them in big trouble.  Some laws are fairly good about that, such as intentional murder.  Others not so good, such as depraved indifference murder.

But one law, the Armed Career Criminal Act, is really awful. In its effort to leave no potential bad guy unscathed, the law is so vague and overinclusive as to those people whose compliance with it is demanded clueless as to its terms.  How do I know this?  Because it requires a Supreme Court decision, time and again, to decide what is and what’s not covered, what is and what’s not a “violent felony.”  And so it did again in Sykes v. United States.

And who better to call it what it is then Nino Scalia, via Jonathan Adler at Volokh Conspiracy :

Shameless spin is nothing new when it comes to sentencing, or re-sentencing, as is the case for Lord Conrad Black.  Having served 29 months of his sentence for honest services fraud, only to learn that there is no such crime, and then learning that he’s still screwed and facing resentence for the offenses that remain, the time has arrived to crank up the sentencing spin machine.

The government couldn’t claim that Black was a bad prisoner in the sense that he beat others, maintained a secret cache of contraband caviar or refused to get his GED.  What to do?

Prosecutors are pointing to allegations that onetime media mogul Conrad Black treated inmates like servants and had a supercilious attitude in an effort to send him back to prison.

A unit manager said Black had an entourage of inmates who performed services for him, such as ironing his clothes, the Tribune says. Some inmates saluted Black every time that he taught GED classes. While he was teaching, an education specialist said, Black “projected the attitude that he was better than others in the class, both faculty and students.”

How many points are added for a supercilious attitude, you ask?  I checked the attitude table and came up empty.

Every institution develops its own brand of society, and prisons are no exception.  The government’s effort to use hyperbole and characterize prison society in terms of life on the outside is sheer, unadulterated nonsense, a test of whether anyone, most notably the judge, is so ignorant of prison life as to buy their spin. 

Having never spent more time in a prison than necessary, I’m no expert on prison life.  But Bad Lawyer knows a thing or two about life on the inside, and he explains.

Seriously, having a few months of personal experience with Club Fed, I can assure you that Conrad Black was not treated specially.  They don’t do that.  Everyone is treated like crap.

And when you live with hundreds of inmates, many of them without any access or resources to enable commissary or phone expenditure you encounter every imagineable hustle–including, inmates who do laundry, provide ironing or orderly services for one another in exchange for commissary purchases, i.e. candy bars, vending debit cards, stamps, and as I blawged before “cans.” 

It’s offensive that federal prosecutors would attempt to massage this sort of thing into a claim that a defendant (who to some extent was wrongfully imprisoned) was living the high life and now really deserves punishment. What a crock!

In prison, one does what one has to do to survive as best one can.  For some, that means kissing up to those who might be in a position to help you out.  To others, that means using whatever resources are available to maintain one’s physical and psychological integrity.  So Lord Conrad Black didn’t become a weightlifter to kill the time, or perhaps get a few prison tats to be one of the gang (pun intended), comes as no surprise. 

There’s no infraction associated with surviving prison.  There’s no adjustment for not having an attitude that pleases the boys and girls of the U.S. Attorney’s office, though truth be told they would never have suggested something so ridiculous as a supercilious attitude if they had anything real to latch on to.  They just couldn’t go back into court for resentence conceding that Black was a model prisoner and had to manufacture something to complain about.

It seems that the government has forgotten that Conrad Black wrote a scathing editorial for Canada’s National Post when he was allowed out on bail following the Supreme Court’s Skilling decision about his prison education.  But I haven’t forgotten.

The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.

It had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

For a guy with a supercilious attitude, he seems to have gone awfully far out of his way to stand up for them, to challenge the power, to call out the failure of the system.  If this was a man who played Lord among prisoners, you can’t tell it from the risk he took in angering the government by asserting that the system stinks.  Why would the Lord risk pissing off power if he cared nothing for the little people who ironed his clothes and saluted him?

As Bad Lawyer says, it’s a crock.  There are lots of crocks in the process, from the day of arrest to the denial of bond.  From the allegations during trial, where a completely neutral telephone conversation asking how the weather is miraculously converted into an order for kilos of heroin, as interpreted by some “expert” agent who knows far more about what drug dealers mean than any actual drug dealer I’ve ever met.  And at sentence, an unpleasant glance is turned into a threat of a prosecutor’s life, as if defendants should throw loving looks toward the people who have destroyed their lives with lies.

Every once in a while, rarely more than three or four times a day, the government comes up with a position that’s so facially absurd as to test whether judges, and the public, are so gullible that they will believe any spin proffered.  These claims about Conrad Black are such a position, reflecting not some “bad attitude” on Black’s part worthy of consideration by a court in re-sentencing him to a more severe term of imprisonment, but our willingness to blindly accept the government’s nonsense, no matter how ridiculous.

In prison, everyone is treated like crap.  Anyone who doesn’t make the best of it is either a fool or dead.  There is only one rule that matters in the high society of prison: Do what you have to do to survive.  No one should be punished for surviving.

There was a saying that parents told their daughters back when I was a kid.  Nobody wants to buy the cow if you give the milk away for free.  Whether this is still advice commonly passed down is unclear, although I never told this to my daughter.  Have a good time was always what I said, knowing that she never pushed the envelope despite my admonitions.  Where did I go wrong?

But Seth Godin, of the marketing Godins, offers a troubling observation.  First, history:

How about giving it away to help the idea spread?

The simplest old school examples are radio (songs to hear for free, in in the hope that someone will buy them) and Oprah (give away all the secrets in your book in the hope that many will buy.)

There’s a line out the door of people eager to spread their ideas, because in a crowded marketplace, being ignored is the same as failure.

As the free-only cohort grows, people start to feel foolish when they pay for something when the free substitute is easily available and perhaps more convenient.

There’s a growing disconnect between making something worthwhile and getting paid for it. The digital artifact is heading toward free faster and faster, and the inevitable leap to a paid version of the same item is going to get more difficult.

Creators don’t have to like it, but free culture is here and it’s getting more pervasive. The brutal economics of discovery combined with no marginal cost create a relentless path toward free, which deepens the gap. Going forward, many things that can be free, will be.

There’s an unspoken premise belying the ill-conceived cyber civil rights movement that boys are bad and girls are good.  Boys do bad things online to girls, and by so doing impair the freedom of girls to express themselves without fear of attack.  And then there’s this.



The point, of course, isn’t that one incident, one video, proves anything.  Then again, neither does resort to anecdote prove the opposite, nor the self-assessment of young ladies that they feel threatened by people who disagree with them.

The case of this 11-year-old Fort Myers boy, held down and stripped by some 14-year-old girls, with a third girl who recorded the fun for posting on the internet, raises the full panoply of problems and issues that keep resurfacing in internet bullying cases.  Except that it’s girls doing it to a boy, which isn’t the way advocates want it to happen because it cuts against all their arguments.

Clearly, the image of this boy being stripped naked is humiliating, potentially giving rise to years of therapy or a career in porn based on things unseen.  Hopefully, he won’t dwell on it so that it mars his psyche forever.  The girls, and the police, saw it as a prank.  It certainly seems to be intended that way, whether it went too far being a matter of poor judgment rather than intent.

But it’s the reaction all around that presents the most curious aspect of this video.  The school says it happened off campus, so it’s not involved.  Great idea, although there are a long list of students whose off campus conduct has produced monumental in-school consequences.  Remember Avery Doninger?  It’s wonderful to hear that the school has taken a hands-off approach to conduct outside the schoolhouse gates.  It would be better, however, if that happened for others, whose “offense” was significantly less harmful, as well.

There is, obviously, the question of prosecution.  No zero tolerance policy here, as the police wrote this up as a prank and, later protestations aside, never considered sending in the SWAT team.  Again, the applause wells up for this exercise of sound discretion, except that few believe it would have been the same had this involved a few 14-year-old boys stripping an 11-year-old girl naked.  More to the point, it seems painfully likely that they would have been tried as adults for their indiscretion.  Not an indiscretion, you say?  Perhaps not, but then it’s no more a mere indiscretion when the genders are reversed, right?

And then there’s the 800 pound Gorilla in the room, the sex offender registry.  Can’t have sex offenders in a classroom with other children, can we?  Can’t have them going to college, right? Can’t have them getting jobs, or living down the street, or within a 1000 feet of anywhere a child might be found, no?  So it’s the de facto end of life as any normal person would know it.  Had this been boys stripping a girl, want to bet what their chances of being placed on the sex offender registry might be?  If you can get on their by receiving a sext message, this type of conduct should land one on the first page.

All the horribles that could conceivably stem from this conduct are too well known.  That they haven’t as yet, and  hopefully won’t if the mother of the 11-year-old doesn’t succumb to pressure to press charges, is a very good thing.  These young women engaged in some pretty foolish and harmful conduct, but not because they are criminals, or sex offenders, or the types of girls who grow up to be Lindsey Lohan.  It was a prank.  A bad one. A stupid one. But not one that compels society to destroy their lives.

There should be consequences for this conduct, both for general and specific deterrent purposes.  The girls need to know that they went way, way too far, and did harm to this boy.  Probably, the school would be the most effective agent in imposing consequences, as this goes beyond the parental disapproval level.  Going to bed without dinner doesn’t quite cut it.

That this isn’t right for the criminal justice system, however, because of its gross excesses and permanent damage to lives over conduct that had no criminal intent, is clear.  This is the right message for what happened here, where we can show that such improper conduct is not acceptable or tolerated, without wreaking needless destruction.  Every instance of bad, childish behavior doesn’t mandate dropping the atom bomb.

And the bigger message, the critical message for all, especially the cyber civil rights crowd who wants to convert all bad actions to gender discrimination, is that the same should be true for boys who behave poorly toward girls.  These are all children, doing childish and foolish things.  Stop ruining lives for your political agendas and prejudices.  Don’t ruin girls lives.  Don’t ruin boys lives.  Don’t ruin the lives of children for the transitory stupidity that characterizes what children do.  Don’t ruin lives.

It’s not as if the trial of Casey Anthony for the murder of her 2-year-old daughter, Caylee, isn’t sensational enough, but it will now go down in history as the trial where a piece of forensic evidence was introduced for the first time.  Scent.

Can you smell that smell?  According to the prosecution, they’ve bottled up (canned actually) the smell of decomposing human flesh from the trunk of Anthony’s car, and have offered Arpad Vass from the Oak Ridge National Lab as an expert to testify that it is, indeed, the smell of death.  From the Orlando Sentinel :

[Assistant State Attorney Jeff] Ashton questioned an expert witness in forensic anthropology and introduced the novel science of human-decomposition odor analysis. It was another first for an American courtroom, at least within this specific area of research.

It remains to be seen whether associating specific chemical compounds with dead bodies will emerge as an effective tool in the criminal courts. And it is uncertain how the jurors in this case will value this evidence.

It will certainly be effective to the extent that a witness admitted as an expert says it scientifically proves a point, since that’s the whole purpose of expert testimony, to provide an opinion beyond that which a jury is capable of reaching on its own.

In fairness, it’s really not just about the odor.

Toward that end, prosecutors are introducing testimony by researcher Arpad Vass of Oak Ridge National Laboratory, the story says. Vass took an air sample from the car’s carpet and injected it into a gas chromatography/mass spectrometric to identify substances it contained. Then he compared them to chemicals identified in his research of decomposing bodies at a facility dubbed the Body Farm.

When witnesses testify about cool scientific stuff like gas chromatography and mass spectrometry, it goes a long way toward adding to the scientific panache of the tests.  Jurors are impressed with the use of such devices.  Who wouldn’t be?  But ultimately, Vass’ testimony was about the smell.

Vass backed up prosecutors’ theory, testifying Monday that he smelled an “overwhelmingly strong” odor of human decomposition in the air sample. He told jurors that his machine found high levels of chemical compounds observed when the body breaks down, such as chloroform, in the sample taken from Anthony’s car.

The issue isn’t really whether this is some completely fabricated science, like duct tape analysis, Identifying chemicals in the atmosphere by their color through gas chromatography has been going on for a long time.  It has not, however, been used in this fashion, or to provide information with this degree of specificity.  Nor has it been put through the wringer on various issues related to trials, it’s collection and storage methodology.  No doubt someone with far more knowledge in the science involved would have more astute observations.

In its infancy, almost every forensic science tool has been shown to be wrong to some extent.  Whether greater testing, knowledge, experimentation will prove that it’s viable or a complete fraud has yet to be seen, but the flaws that exist at its initiation eventually come to light.  Later on, we will all laugh and laugh at how silly and simplistic we were in our consideration of some new forensic science when it first emerged on the scene.  Everyone will laugh except the defendant and her lawyer.  Maybe a juror or two will feel badly about buying into a science yet to be adequately vetted for accuracy and all the collateral issues and problems that no one knew about at the time.

Anthony’s attorney, Jose Baez, noted the importance of acceptance to Vass of his work.

During cross-examination Monday, Baez suggested that Vass stood to make money off of his method if it is adopted by police departments.

“You sir, have a financial interest in your testimony here today, do you not sir?” Baez said Monday.

“Not in my opinion,” Vass answered.

Whether that response will add to his credibility or sound facile and disingenuous has yet to be seen, but other scientists, who have no horse in the race without being forced to rely on such a convenient opinion, recognize that this science isn’t, at least not yet, ready for prime time.

But two defense scientists say Vass’ technique is too premature for use in criminal cases.

“To allow the presentation in court of the findings … in this case would lend it an aura of scientific authority not justified by its novel nature,” said Barry Logan, an expert in toxicology.

Florida International University analytical chemist Kenneth Furton said no scientifically valid method of identifying human remains based on chemical residue existed.

“Previously touted techniques for locating human remains have not been demonstrated to be reliable,” Furton said in court documents. He added that Vass’ methods “are still in the experimental stage.”

Despite this, Judge Belvin Perry held that the evidence passed the smell test, and the age of odor science was ushered into the courtroom. 

“His opinions and theories range from the interesting to the bizarre,” Anthony’s attorneys said in court documents. But Circuit Judge Belvin Perry ruled that any decision about the reliability of Vass’ methods should be left to jurors.

An interesting, and dangerous, ruling, given that the qualification of jurors to sit requires no proof of their scientific acumen.  How in the world are they expected to judge and reliability of novel forensic science?  Was this covered in 8th grade science?  Is the world flat if 12 jurors decide so? 

The judge is the gatekeeper of scientific testimony, whether it satisfies the Frye test (to which  Florida adheres so no one will have read needless caselaw like Daubert) by showing “general acceptance” if not scientific reliability.  To shrug and kick it over to the jury to decide is mere abdication of responsibility, the judicial equivalent of a punt.  And so the smell test comes in because a judge failed to do his job.

How long will it be before a panel of distinguished scientists reveal that the courts have once again acted prematurely and improvidently by letting another forensic science skunk into the well?  As anyone who has had the pleasure of sniffing the scent of death will tell you, it’s smells horrible.  But then, so does this new bit of novel forensic evidence.  And yet, it’s now been admitted, almost on a lark, and we’ll spend the next few decades figuring out why it stinks and how we ever let this happen in the first place.

To any parent, the death of a child is an experience that defies description.  There are no words to express the anguish and loss, nor should there be.  It’s not supposed to happen, but it does. 

But for Jason Kirchner, the death of his 7-month-old daughter, Abigail, left him little time to mourn, as he was accused of her murder.  Don’t blame the cops, as they investigated and found no wrongdoing.  Rather, Erie County Chief Medical Examiner Dr. James Woytash pushed for the prosecution.

The prosecution’s case against Kirchner was based on Dr. Woytash’s testimony. He said Abbigail suffered a head injury 4 to 6 hours before her death, that the injury was inflicted and that it caused her death.

Aside from the Supreme Court’s  sheer disdain for the defendant who suffered from prosecutorial misconduct as demonstrated in its  Connick v. Thompson decision, holding that a defendant who was concededly denied Brady information cannot sue for failure to properly train prosecutors in their duty to disclose, it presents a conundrum:  It’s in the prosecution’s best interest not to teach assistants about their duty.  Once again, ignorance prevails.

At PrawfsBlawg, Western New England law school professor Giovanna Shay raised the question that if prosecutors aren’t teaching their minions of their obligations under Brady, what are law schools doing about it?

Justice Thomas reasoned that the D.A. had not been deliberately indifferent to the need to provide line prosecutors with on-the-job training regarding their Brady obligations–in part because prosecutors attend law school.  Although I was dismayed by the result in Connick, I decided to view it as a validation of my decision to spend significant class time on Brady v. Maryland.  And I wonder: how can we in the legal academy more effectively teach Brady?

I cover Brady in my Postconviction Rights course, where the doctrine appears in numerous habeas cases, and also in Professional Responsibility (PR).  In PR, we devote one day to defense ethics and one day to prosecutors’ obligations.

Don’t laugh. So what if the entirety of professional responsibility in criminal law is covered in two days.  We’re lucky it’s covered at all.  The more important question is what is taught.

I put my students in the prosecutor’s role and read them each statement in turn.  We discuss whether they would turn it over.  (We also talk about potential differences between the constitutional Brady doctrine and MRPC 3.8).  This conversation usually surfaces some familiar quandaries (e.g., “But I know he’s guilty!”  or “But I know she’s suffering from battered spouse syndrome!”) 

I like that the problem is set in the DV context.  Some students who typically would sympathize with the defense find themselves more conflicted in a DV situation, thus providing better conversation. 

Is “better conversation” the point?  From an academic perspective, no doubt it is, though the rigors of teaching future lawyers that there is a duty to disclose even when they really don’t want to may well be lost, as students are given the opportunity (in their single class on the subject) to rationalize the failure to disclose.  Teach students that it’s legitimate to conceal evidence if can rationalize away constitutional rights and we end up with the system we now enjoy.  From Patrick S. O’Donnell‘s comment to Shay’s post:

 The fact that Brady is “more honored in the breach…” is testimony to the inordinate power of prosecutors generally and the ongoing failure to sufficiently cabin the discretionary power of prosecutors in particular. By itself, Brady can hardly change the fact that “prosecutors continue to engage in illegal behavior with impunity.” As Angela J. Davis writes in Arbitrary Justice: The Power of the American Prosecutor (2007),

“The Supreme Court has established nearly impossible standards for obtaining the necessary discovery to seek judicial review of some forms of prosecutorial misconduct. Inappropriate or unethical charging decisions, intimidating conversations with witnesses, selective and vindictive prosecutions, and grand jury abuse all occur in the privacy of prosecution offices—away from the public and the parties whose cases are affected by the harmful behavior. As a result of Supreme Court rulings, prosecutors know that it is highly unlikely that any of the behaviors will be discovered by defense attorneys or anyone who might challenge them.”

Aside from the brutal commentary on the failure of Brady as a practical matter, this would seem to argue that lawprofs better cut out the pedagogical crap of a “better conversation” and start banging some heads together to drill into those mushy minds that withholding exculpatory evidence from the defense puts innocent people in prison.  There is no legitimate feeling about “but I know he’s guilty” involved.  The only thing to be taught on the subject is that this is a Brady violation, and this is an outrageous wrong.

Whether characterized as yet another example of the disconnect between law school and the practice of law, or merely scholarly curiosity in lieu of teaching students to adhere to rules that rely solely on the integrity of a prosecutor to comply despite the fact that it’s not in the best interests of winning to do so, it’s nearly impossible to detect when she’s failed to do so, and there are no negative consequences to her for having done so. 

Shay asks whether more time should be put into teaching Brady, given the decision in Connick v. Thompson.   It strikes me as the wrong question.  It’s not about the amount of time, but about what is being taught.  O’Donnell seems to get it, that Brady is a joke if subject to rationalization and wiggly lines based on feelings of right and wrong.

The only time anyone seems to care about Brady violations is when an innocent person, proven extrinsically, ends up in prison or on death row.  Nobody, aside from the defense, gives much consideration to the fact that in the absence of available extrinsic evidence of innocence, the same innocent person would spend the rest of his life, however long that turns out to be in light of the sentence, because some prosecutor decided that there is no reason to reveal exculpatory evidence when “he knows the defendant is guilty.” 

If that’s what you’re teaching law students, then it really doesn’t matter how much time is spent on your “better conversation.”  They may pass, but you fail.

It’s the new confession, and not only does it come from the defendant’s own hand, but in advance as well as afterward.  Texting, from your fingers to cops’ eyes.  It bought Mark Pickens the death penalty.

Mark Pickens was in Noelle Washington’s apartment minutes before she and two children were heartlessly shot in the head and murdered in 2009.

Pickens knew he was being investigated for raping Washington, despite his insistence he knew nothing about the charges.

Those two pieces of information would have been difficult to prove in court. They also wouldn’t have been enough evidence to convict Pickens of three murders and send him to death row. But when Hamilton County jurors combined that information with a mountain of text messages, a clear picture emerged of Pickens’ guilt.

Pickens was 19 and a self-described ladies man in 2009 when he got into an argument with sometime girlfriend Washington and then raped her.

Police went May 31, 2009, to Pickens’ apartment and, because he wasn’t there, put a business card in his door asking him to contact them.

The next day, Washington was shot as was her 9-month-old baby, Anthony Jones, Jr. Three-year-old Sha’Railyn Wright was also shot and killed. Sha’Railyn was the daughter of Washington’s best friend, Crystal Lewis.

“It’s extremely difficult to argue statements on that phone because they are on that phone,” [defense attorney Norm] Aubin said.

It’s especially hard for defense attorneys to beat text messages in court, because you can’t confront them like a human witness.

“This doesn’t lie,” [Assistant Hamilton County Prosecutor Katie] Burroughs said of texts. “This isn’t someone summarizing their memory.”

Jurors, Aubin said, love that.

Text messaging is exploding – there were 5.9 billion text messages each day last year in the United States, said Amy Storey of CTIA-The Wireless Association, an international association for the wireless telecommunications industry.