When Wild Bill Douglas wrote the majority opinion in Brady v. Maryland,* he played a cruel trick on the defense. One little detail was omitted from the decision. Just a small thing. Barely worth mentioning, except for the fact that it was the key to any meaningful use of Brady material: When the duty to disclose arose.

That was 1963.

New York’s Chief Judge Janet DiFiore announced via a memo from the Chief Administrative Judge that she will issue a new rule requiring Brady disclosure by the prosecution 30 days before trial.

Judges would be required to issue the order at the first court date where both the prosecutor and defense counsel are present. Judges could choose to issue a model order included in the memo or write their own.

Disclosures are to be made at least 30 days before trial in a felony and 15 days before trial in a misdemeanor case. The model order requires prosecutors to look through files to find information favorable to the defense.

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I write about the Standing Committee on the Federal Judiciary of the ABA.[i] The Standing Committee’s recent “not qualified” rating given by a unanimous vote of the members who voted (one abstained) regarding the nomination of Steve Grasz[ii] to serve as a judge on the United States Court of Appeals for the Eighth Circuit has created a firestorm of criticism.[iii]

According to Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, members of the Standing Committee will appear before the Senate Judiciary Committee on November 15, 2017. I predict a nasty hearing as the Chair and maybe other members from the Standing Committee are grilled about the handling of the Grasz nomination and, perhaps, other nominations.

As a preview, watch this detailed, and maybe even devastating, criticism (nearly 20 minutes) of the Standing Committee by Senator Sasse on the floor of the Senate on November 2, 2017, following the confirmation hearing of Mr. Grasz on November 1, 2017: Continue reading →

There’s a guy. He’s an American citizen, but he’s held in Iraq. He’s alleged to be an “enemy combatant” fighting in Syria, but what evidence exists to support that claim is unknown. And he doesn’t have a lawyer, so the ACLU wants to step up.

For nearly two months, the U.S. military has been detaining an American citizen at a secret jail in Iraq, denying him access to a lawyer and even refusing to release his name. The Trump administration is calling the citizen an “enemy combatant,” claiming he was fighting for ISIS in Syria, but it has not presented any evidence to back up its allegations.

It’s entirely possible, if not likely, that the government’s claims are right, that this guy was fighting for Syria and, despite his citizenship, is an enemy combatant. But he’s still a United States citizen, which means he’s still entitled to his constitutional rights. I know, you don’t think he deserves them, but you don’t get a vote. Continue reading →

The name of its publication may be appealing to the more passionate and myopic, but makes me cringe a bit. It’s called In Justice Today. Who doesn’t like the word “justice”? It’s smug with righteousness, while allowing one side to claim it as if justice was that simple. Whatever, it’s an organization trying to capitalize on a popular word that appeals to supporters of the Fair Punishment Project.

The Fair Punishment Project is helping to create a fair and accountable justice system through legal action, public discourse, and educational initiatives.

These words are vague enough that the organization could easily be pro-defense, pro-prosecution or pro-sound policy. That’s the beauty of fluffy yet empty rhetoric. Anybody can claim it. But their publication makes their purpose clear: Continue reading →

Ed. Note: This is the second, and final, installment of Judge Bennett’s The Art of Opening Statements. The first installment can be found here.

RULE NUMBER FIVE: Lawyers tell stories like lawyers, not storytellers. The “thinking like a lawyer “training in law school harms lawyers in learning how to become spellbinding raconteurs. As Gerry Spence wrote*:

Lawyers are not trained as dramatists or storytellers, nor are they encouraged to become candid, caring and compassionate human beings. Most could not tell the story of Goldilocks and the Three Bears in a compelling way. We would be fast asleep by the time they got to the first bowl of porridge.

Another classic example of lawyers trying to spin a story is the lawyer version of the “Three Little Pigs,” A/K/A The Trio of Diminutive Piglets: Continue reading →

A persistent retort to misconduct by prosecutors is that they suffer no consequences when they’re caught. For chief deputy prosecutor in LaPorte County, Indiana, Robert Neary, getting caught wasn’t the problem. He was honest enough to report himself to the bar for his misconduct.

Count 1. On Friday, March 14, 2014, Brian Taylor was being held in custody at the Michigan City Police Department in connection with a homicide investigation. Attorney David Payne arrived at the station mid-afternoon to meet with Taylor, and Respondent was summoned to the station by the police chief to assist with any issues that might arise. Respondent and detectives escorted Payne to the interview room to meet with Taylor, a detective instructed Payne to flip a toggle switch outside the room “unless you want us listening to your conversation,” and Payne did so. However, the switch merely controlled the recording system and did not disable the audio and video feeds, which were controlled in a separate area in the police station referred to as the “war room.”

As Payne and Taylor spoke, the cops and Neary sat in the war room and listened. They finally heard some good stuff. Continue reading →

In my 400 sum criminal and civil jury trials, I have heard a great many very good closing arguments. Not so much with opening statements. Even among very well-prepared and very good trial lawyers, their opening statements are often not as well crafted as the rest of the trial and do not show-case their considerable skills.

I offer the following observations focusing on criminal jury trials.

RULE NUMBER ONE: All great trial lawyers are great story tellers, but not all great storytelling lawyers are great trial lawyers. It takes more than just being a great story teller to be a great trial lawyer but I am convinced you can’t be a great trial lawyer without being a great story teller.

RULE NUMBER TWO: The most common yet worst way to give an opening statement. Several AUSA’s and many defense lawyers fall into this mode: They simply summarize what each witness will tell the jury. “And next, Mr.Jones will tell you he bought meth on one occasion from Mr. Smith, who claimed his source was the defendant, but that Mr. Jones did not know the defendant.” And then does the same thing with the 18 other witnesses not in any chronological, thoughtful, or helpful order. Just a bunch of mish-mash facts, but no story.   Continue reading →

Their passports will be revoked until new ones are issued that contain the statutorily required notice to the world, ironically called their “unique identifier”:

The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to (U.S. law).

To read the lede, a warm feeling of justice will wash over every well-intended person.

America’s registered child sex offenders will now have to use passports identifying them for their past crimes when traveling overseas.

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When news broke that Memphis victims of alleged domestic violence and sexual assault were wearing GPS monitors, cries of “that is not okay” rang out.

The Memphis Police Department is under fire for an alleged pattern of misconduct towards female victims of crime. The latest incident involves Sexual Assault Kit Taskforce revealing that dozens of sexual assault and domestic violence victims were outfitted with GPS ankle bracelets.

The October 2017 monthly report of the Sexual Assault Kit Taskforce acknowledge that 17 sex crimes victims and 52 domestic violence victims had been fitted with the devices, which are normally used only for those on probation, parole, or out on bail while awaiting trial.

This came on top of earlier furor that 12,000 rape kits remained untested in Memphis, which gave rise to the task force. One of the women whose kit went untested, and whose rapist allegedly attacked six more women after her, was Meaghan Ybos, who went on to form “People for the Enforcement of Rape Laws,” and discovered the use of GPS monitoring. Continue reading →

In a flash of passive-aggressive cogency, Jezebel spanks the “male feminist.”

Even as satire, its existence seemed to feed into the stereotype that men who position themselves as male feminists are overcompensating for their misogyny.

Buried in there is the acknowledgement that the neo-feminist obsession with misogyny permeates their allies. After all, they are male, and therefore must confess and repent their toxic masculinity, even though they can never cleanse themselves of their maleness.

Where does someone learn such things?

It’s a good job no one starts a postgraduate degree in gender studies to meet men: my MPhil class at Cambridge contains precisely zero of them. Apparently, this is anomalous, according to course director Dr Andy Tucker. In the three previous years there have been a quarter to a third men: a better turnout than on many gender programmes. Continue reading →