The majority in Turner v. United States, which included all but Justices Kagan and Ginsburg (Gorsuch did not participate, which means Sotomayor was singing soprano to Alito’s bass), pulled a shrewd move.

The Government does not contest petitioners’ claim that they withheld evidence [that] was “favorable to the defense.” Petitioners and the Government, however, do contest the materiality of the undisclosed Brady information. Such “evidence is ‘material’ . . . when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469–470. “A ‘reasonable probability’ of a different result” is one in which the suppressed evidence “ ‘undermines confidence in the outcome of the trial.’ ” Kyles v. Whitley, 514 U. S. 419, 434. To make that determination, this Court “evaluate[s]” the withheld evidence “in the context of the entire record.” United States v. Agurs, 427 U. S. 97, 112. Pp. 9–11.

Held? No Brady violation because the favorable evidence deliberately withheld from the defense at trial would not have had a “reasonable probability” of changing the outcome, and was thus not material. See what they did there?

There is an incentive system underlying the majority’s opinion, that if a prosecutor deliberately conceals exculpatory evidence from the defense and obtains a conviction, and decades later, the defense somehow learned of the existence of this withheld Brady (a very unlikely event, but it happens) the worst that can come of it is that the defendants get a new trial, this time with the exculpatory evidence. Continue reading →

There are two explanations, the first tugging at the heartstrings of every American who hates foreigners, whom they then conveniently include in the morass of “illegals” without the slightest clue of whether they’re undocumented or third-generation Cincinnati. The other are the people with accents and vowels at the end of their name who come to prominence for having committed a crime, apart from their mere existence.

The criminal ones are certainly a far easier sell. Think the murder of Kathryn Steinle by Juan Francisco Lopez-Sanchez, used as the posterboy for the “worst of the worst,” the alien who shouldn’t be here at all and yet not only came, but killed. Horrifying.

Few would argue that someone like Lopez-Sanchez are worthy of any immigrant sympathy, but what of the many who are here unlawfully (note: not illegally, but unlawfully) who commit no crimes, pay taxes (as do we all) and perform services that we need and appreciate? You know, the good illegals.

The official message was that they weren’t to be the priority of Immigration and Customs Enforcement, who had their hands more than full ridding us of the bad ones. Then the stories started emerging of ICE hanging out in front of schools picking up papa dropping off his daughter at school, days before graduation, beloved by his Trump-voting community.  Continue reading →

It must have been painful for the ABA Criminal Justice Section’s Task Force on College Due Process Rights and Victim Protection to have to admit that even accused rapists are entitled to some tiny degree of due process. Weak, conflicted, and bordering on the idiotic as the recommendations might be, it still compelled the ABA Journal to note, “but they are not formal ABA policy.”

Both the accused and the accuser should have due process protections when colleges and universities resolve allegations of campus misconduct, according to a report by an ABA task force.

While this inane failure to grasp how adjudication under the American system, the United States Constitution, works, the ABA still considers this too radically in favor of the patriarchy to note the report without the caveat, which is why the ABA has changed its slogan to, “it’s so exhausting.”

But it’s not alone in its sad tears for the victims of patriarchy. One of the frontrunners for the Democratic nomination for president, alongside such social justice luminaries as Kamala Harris who is doing everything possible to shed her years of supporting prosecutorial misconduct and police killings to pretend to be progressive, is New York’s junior senator, Kirsten Gillibrand, and like the ABA, she is on a crusade for survivors. Continue reading →

Zachary Randolph loves him some cops. And he’s allowed.

Randolph said he was working a normal shift at his job at the Katy Mills Mall when a police officer who worked at the mall placed an order for a $2.75 cheesecake brownie.

The teenager said he wanted to show his appreciation for the official protecting and serving his community.

A good deed? Well, everyone knows what comes of good deeds.

A Texas teenager was suspended from his cookie store job after a customer became upset when he paid for a police officer’s order.

Zachary Randolph, 18, was suspended from his job at a Great American Cookies mall after he bought a police officer a brownie out of his own wages on Sunday.

Continue reading →

He calls himself “Ol’ Clark,” and at 84 years of age, it’s an apt description. But then, an old fool is worse than a young fool, and Bill Clark is old enough to have no excuse.

The Columbia Daily Tribune has suspended columnist Bill Clark indefinitely after a public dispute arose over a column he wrote claiming his life was threatened when two sheriff’s deputies stopped his car in June.

Clark wanted desperately to “understand” what it was like to be a minority, a victim of police harassment, and so he manufactured a fantasy after he was stopped by two deputies.

I’m lucky I didn’t get shot. Sirens wailed and when I stopped, two officers were out of the sheriff’s vehicle. When I reached over to turn off the radio and then take my wallet out of my pocket to produce the driver’s license and insurance card, I realized my hands were not at the top of my steering wheel. Danger lurked and official arrogance was to follow.

Continue reading →

Reading the comments to David’s post yesterday, something struck me. Some, well-known here from their prior comments, had something to say, whether serious or fun. Others, unknown, did what so often annoys: took orthogonal flight from the point of the post toward whatever popped into their head.

Whether it’s what you think, believe or feel, what makes you feel compelled to express your value system? Why, oh why, do you suppose anyone, anywhere, cares?

This is the perpetual mystery of the internetz, that random people believe they get a vote, that their feelings matter. Some include tidbits of information, of dubious factual basis and even more dubious relative merit, as if this will overcome the core of their comment, that X matters to them more than Y.

If you’re someone whose views should be taken seriously by others, then say so. Perhaps your sensibilities matter. Perhaps not. Without knowing, however, you’re just making random noise online. Your views may be very important to you, but why are they important to anyone else? And when others fail to give you the “respect” you believe due, you get angry. Sometimes, you’re butthurt. Rarely are you satisfied. Continue reading →

Scott’s out of town today – a concert of some kind, old-people music, a trip to Cambridge – and he asked me to look after you guys. Entertain you, maybe.

This is not going to end well.

My usual MO would be to rant about the lack of civil liberties in Europe. And maybe that’s still going to happen. But I couldn’t help but notice you people celebrated Brexit 1.0 a couple days ago, so I thought it’d be a good opportunity for an outsider’s perspective on the United States in the midst of all the doom and gloom on social media.

As Scott puts it, you guys are mourning over the corpse of a great nation. It’s incessant. Either you flagellate yourselves because the United States, despite its egalitarian surface appeal, is racist, sexist and took ninety years to free the slaves, or you flagellate yourselves because the United States, despite its egalitarian surface appeal, is corrupt and elitist, a place where government/immigrants/the media (circle all that apply) have spent the last ninety years selling off the nation’s birthright. Continue reading →

Joel Cohen asked two judges a question. One judge, Jed Rakoff of the Southern District of New York, ended up in a position he likely didn’t anticipate when he agreed to the gig: playing straight man for the other, Seventh Circuit Judge Richard Posner. Then again, Posner is either a master troll, a brilliant pedagogue or completely senile. Of course, these options aren’t mutually exclusive.

The primary question was fairly straightforward, one that is subject to regular discussion with good reason.

Under the Constitution, federal judges, having life tenure, can be removed only by impeachment and only for “high crimes and misdemeanors.” But should it be that way? While we know there are federal judges in their 80s and even 90s who perform admirably, shouldn’t there be mandatory retirement at a certain age?

The problem of old judges, sitting beyond their expiration date, isn’t new, and is always worthy of consideration, both from the functional perspective as well as political. The general answer for federal judges comes with a knock on chambers door from the chief. As Judge Rakoff replied: Continue reading →

How hard can a test question be at Howard Law? Hard enough that it took 504 days to answer it, and they still got it wrong. From the FIRE.

On May 4, law professor Reginald Robinson was deemed responsible for sexual harassment after two students complained about a test question involving a Brazilian wax and an upset client.

The test question was rather lengthy (it can be found in the link in the quote), and involves a procedure about which I know little more than it sounds painful at best. But apparently, one of Robinson’s students was more familiar with the procedure than Robinson (or me).

During a September 2015 class, a female student challenged a test question’s premise that a person could sleep through a Brazilian wax. After a complaint to administrators by two students and a 16-month investigation, Robinson was informed that one of the students allegedly believed the question’s premise somehow required her to reveal to the class whether she’d had a Brazilian wax.

Continue reading →

The education begins early these days.

Some of the lessons in “A Is for Anarchist,”* a popular alphabet book, exemplify the indoctrination.

‘F’ is for feminist, For fairness in our pay.

‘J’ is for Justice! Justicia for all.

L-G-B-T-Q! Love who [sic] you choose.

Don’t laugh. “A Is for Activist” has sold 125,000 print units since its release in 2013.

It’s always been part of parents’ responsibility to teach values to their children. I, for one, read my kids Pat The Bunny. Whether indoctrination works this way is another question, but it’s better than teaching children to hate blacks or gays.

And yet, hate manifests itself on both ends of the spectrum in the effort to indoctrinate people to one’s twisted beliefs. Duke philosophy prof Alex Rosenberg is a hater and wants to make your child hate too. Continue reading →