Years of research, on top of anecdotal experience, conclusively proved the unreliability of eyewitness identification. Yet, when it served a political end, someone at the New York Times thought it worthwhile to publish an op-ed that the trauma of being a sexual assault victim made their observations, their memory of victimhood, reliable.

It wasn’t merely outrageously false, but a sellout of fact to the cause. It was a lie, and they knew it and didn’t care. In their fight for “survivors,” it was a lie they needed people to believe, and so they conveniently forgot the exonerated on death row who were the victims of false eyewitness identifications and proclaimed it real, but with a hook. This was about victims of sexual assault and rape, as if the same trauma, the same false identification, the same false memories, weren’t the same worst evidence against every accused. With that hook, they could pretend it applied exclusively to rape, even though memories are memories for any crime. Continue reading →

As a general principle, how can one not support the notion of prosecutors reviewing prior convictions for improprieties? After all, if the conviction was improperly obtained, and particularly if there is a meaningful potential that the defendant was wrongfully convicted (meaning that an innocent person is in prison and a guilty person is free to harm others), it would be irresponsible to do otherwise.

But that’s not the rationale behind the call for New York County District Attorney Cy Vance to review thousands of cases this time.

Manhattan’s D.A. is holding fast against calls to reopen thousands of sex crime cases and fire a veteran prosecutor accused of mishandling the 1989 Central Park Five case.

D.A. Cyrus Vance has shot down a request from Public Advocate Jumaane Williams to reopen thousands of cases prosecuted by his office’s sex crime unit between 1976 and 2002.

He also refused Williams’ request to fire Elizabeth Lederer, a veteran assistant D.A. who worked on the Central Park Five case, who Vance described as “an attorney in good standing in this office.”

Continue reading →

There are many reason for the Supreme Court to adhere to its prior decisions, even when, as in Gamble v. United States, there are many reasons to reject the past and leave it behind. We need stability in the law so we know how to conduct ourselves and our affairs. We need humility in the Court, so that a shift of a justice or two doesn’t reverse the opinions of their predecessors, similarly wise, merely because they disagree. We need to accept the integrity of the Court’s decision-making process, that it doesn’t blow in the wind as popular views ebb and flow.

We need stare decisis.

But then, when a decision is wrong, we need change as well. Continue reading →

Orenthal James Simpson decided to join the world of Twitter and, despite amassing more than 600,000 followers, received pretty much the unsupportive reception one would expect. While some remain his fans, the vast majority of people despise him as the murderer of Nicole Brown and Ron Goldman.

He was, of course, acquitted of the murders. He was found liable in a subsequent civil trial for damages, and was later convicted of robbery in Nevada, for which he was sentenced to 33 years  imprisonment with parole eligibility after nine. He was released in 2017. But it’s not the robbery that inflames people against OJ; it’s the murders. The murders for which he was acquitted.

I could hear the dulcet whisper of my muse, Appellate Squawk, as I read comments about the loathsome and murderous OJ: But he was acquitted. He has never been found guilty of the murder of anyone, and yet here are people, lawyers, criminal defense lawyers, condemning him as a murderer. See the problem? Continue reading →

A curious argument posed in reaction to Oberlin College’s smear of the Gibson family in furtherance of its blind social justice agenda is whether calling someone a “racist” is a matter of opinion or fact. If the former, then it cannot be defamatory. If the latter, then it can.

The hybrid argument is that the generic characterization of “racist” is an opinion, while the characterization of “racist” based upon a discrete factual scenario is not. Here, because the actions of Gibson’s Bakery in calling the police on a black Oberlin student for shoplifting directly led to students, with the facilitation and encouragement of faculty and administration, acting in concert, provided the express basis for the accusation of racism, the judge denied summary judgment and the jury found the “racist” accusation defamatory.

As with many other words, such as “rape,” “racist” has become untethered from its definition. It no longer is understood to be limited to racial animus, but has expanded to include lack of sufficient racial empathy. Even more, racism to a certain cohort can be manifested in failure to make it one’s primary concern, suffering consequences (such as theft) as a sacrifice to the marginalized. Continue reading →

The Ohio Public Defender’s office seems unsympathetic to the plight of alcoholism, at least when the sufferer being shamed is .

More than 2,700 cases overseen by a former common pleas judge could be reexamined  and was possibly involved in a local sex trafficking ring in Portsmouth.

One would expect that such conduct would be recognized by someone in his courtroom and addressed by a supervising judge. But then, it’s not entirely unsurprising that no one noticed, as alcoholics can be quite adept at hiding their condition, and judges tend to be given wide latitude to be “odd” without getting taken to the woodshed for impropriety. Or, of course, there is the possibility that Judge Marshall might not have presided drunk and that’s just how he rolls. Continue reading →

There is an incoming talk for new students at Lake Wobegon University, where Dean Keiller welcomes them to campus:

Welcome to Lake Wobegon, where all the women are strong, all the men are good-looking, and all the children are above average.

And why not, Alfie Kohn asks? Continue reading →

A call from a lawyer with whom I was working on a case came in while I was on the phone with another lawyer. I told him I would have to call him back, the other call being about a criminal defense lawyer, a good person and good lawyer, having a breakdown. Later, when I called back, the first lawyer asked me an interesting question: why? Why did a lawyer who was in extremis, questioning whether he could face another day in the trenches, call me.

My answer was off-the-cuff, that people recognize me as an “honest broker,” that I won’t lie to them, give them some platitudinous tummy rubs about how they’re heroes of the cause and doing God’s work by defending the Constitution. We’ve all heard that tripe, even as the law students and baby lawyers repeat it back and forth because they’re young, naive and foolish.

But was that really why people would call an old curmudgeon, a lawyer who isn’t exactly know for being all touchy-feely, filled with empathy and inclined to gently rub their tummy with the soothing words that will make them feel that they haven’t squandered their life on a wasted delusion? Continue reading →

It’s been a while since my “but for video” series graced this screen. It’s all been seen. It’s all been heard. The point has been made, that the conduct complained of forever before video became ubiquitous, the conduct cops and prosecutors argued was impossible and made no sense, the conduct that judges dismissed under the mantra, “why would they do such a thing?” happens.

Judges asked “why,” the question that only the person(s) doing it could answer, but that it happened was never in doubt. We just couldn’t prove it. They just didn’t buy it. And so it happened, again and again. For the pedants who will respond, “but it doesn’t always happen,” of course not. And that’s not what anyone is saying. But it does happen.

So why bring back “but for video”? Because this one strikes home. Unlike most, there is no horrifying death, no terrible beating. In terms of consequences, it’s particularly banal, and that’s very much the point. Video has been around for a while now, and the days of denying cops abusing their authority while maintaining the capacity to deny it happened, to weasel out of the allegations against them by rhetoric rather than reality, are long past. And yet, it still happens. Continue reading →

Sheriff Roy Templeton of Mud Lick, Alabama was not having a good week.

“Of all the stunts he’d try to pull during Pride month,” the Sheriff grumbled at a video playing on his computer screen. Templeton’s surly attitude was interrupted by a voice coming from his phone.

“Sheriff? Deputy Pitts is here like you wanted,” his secretary said through the speaker.

Templeton punched a button on his handset and barked, “Tell Deputy Pitts to get his ass in here.” Continue reading →