Our attention span is short, and every day brings a new case, a new situation, that calls out for scrutiny.  There is only so much we can follow, except for those who have dedicated themselves to a specific instance.  The problem with that is that the rest of us, those for whom it’s just one data point in a universe of data points, don’t share their obsession with one case.  We move on.

And even when the instance is big, huge, at the time, our limited attention gets diverted to the next big deal long before anything happens, because they utter the magic words, pending an investigation.  No, it’s rarely said when it’s a regular perp, who is caught as quickly as possible, immediately convicted by press conference and smeared with whatever they have available.  But when the perp is a cop, they immediately start screaming about rush to judgment, time to investigate, blah, blah, blah.

There isn’t much to say about this assurance that they will conduct a full and thorough investigation. There is no argument against investigating, as if it’s a bad thing. But the one thing it guarantees is that by the time it’s done, assuming it’s done, all eyes will be elsewhere and interest will have long faded away.  Maybe not always, but it’s a good bet. Continue reading →

A petition for cert has been filed by UC Irvine Dean Erwin Chemerinsky to argue the case against Orleans Parish District Attorney Harry Connick that, if one is to believe the majority in Thompson v. Connick, would satisfy the absurd demand that a defendant who spent years, decades, in prison has no municipal recourse unless he can show a municipal policy or custom of such unconstitutional conduct.  The message of Thompson is that one is not enough.

Here, Earl Truvia and Gregory Bright spent 28 years in prison because of a flagrant Brady violation coming out of the office of, Ta Da, Harry Connick.  They had their violation, Thompson’s violation, and amassed a record of others, including a former prosecutor who flipped on his old office who spilled the beans that no Brady would be disclosed. So?  Summary judgment against them, affirmed by the 5th Circuit.

What would it take to meet the Monell requirements to hold a municipality liable?

The New York Times offers an editorial in support of the Supreme Court taking the case, and more importantly, holding prosecutors’ offices liable. Continue reading →

The New York Times editorial calls for an end to the secrecy laws that keep police misconduct, even crimes, hidden from view.

The deaths of unarmed civilians like Eric Garner in New York City and Michael Brown in Ferguson, Mo., led to demands for greater transparency in the workings of police forces all over the country. The need for more openness is especially pressing in New York, where a uniquely strict disclosure law has shielded from public view the records of individual officers, even those who have committed crimes.

In many states, including New York, it can be difficult for the public to even learn the names of officers involved in fatal shootings.

This is nothing new to criminal defense lawyers, who have been stymied in their efforts to obtain information about the police officers who take the stand to testify against their clients. Continue reading →

The lesson began when I bought my first car, a used 1969 VW Beetle.  The guy I bought it from added what was then the hottest, coolest, most necessary thing a young man could want: an 8 track player.  No longer was I a slave to Allison Steele, the nightbird. I could play whatever I liked, whenever I wanted.

But 8 tracks sucked. Their fidelity was poor, and they broke up songs wherever they had to in order to make them fit the medium. It was some pretty weird stuff, but it was all there was.  Within hours, cassettes were putting 8 tracks to death, but there I was, a Beetle with an 8 track player and a box of 8 tracks to play.  Sure, I wanted to switch over to cassettes. Who wouldn’t? But that meant trashing what I had and buying new, starting over.  That took money, which was a scarce resource then allocated for eating dinner.

In the forty years since, I’ve seen a lot of newest, coolest things ever come and go. On the shelf in my den, there are tapes of movies collected during my children’s youth. They are on VHS, as I was way too smart to go with Sony’s Betamax.  Try as I might, they won’t fit into the DVD slot on my player. Continue reading →

In his parting shot as ombudsman for National Public Radio, Edward Schumacher-Matos raised quite a few eyebrows.

When I joined NPR nearly four years ago, I discovered that many of my fellow ombudsmen refused to say “we” or “us” in referring to their news organization. This show of independence was commendable, but I wondered if it wasn’t also irrelevant, if not destructive—a small example of a fundamentalist mindset about news media ethics and related First Amendment freedoms.

See that word in there, “fundamentalist”? It’s used as a pejorative word, a smear, of those who refuse to recognize that “free speech is not absolute.”   That it is true that the First Amendment is not absolute is obvious and clear, but that’s not what they mean. Not be a long shot.

We must remember this: Ethics change. And they are different in different democracies. Ethics are professional standards, not deeper morals, which can change, too, but far more slowly. Morals come from a society’s soul, for lack of a better word. Ethics come from our more fickle brains, tied to the changing ways of, dare I say it, a business. And yet many in the news media are rushing to man the barricades for certain ethical interpretations of press freedom and independence as if they were absolutes—immutable principles worth dying for. Literally.

Continue reading →

It was likely hard for Flower Mound, Texas, police sergeant Misty Hughes when she realized that professional courtesy wasn’t to be found in Lewisville.

Misty Hughes was arrested just after midnight Sunday in the 200 block of Round Grove Road. According to the arrest affidavit, Hughes’ six-year-old son was in the front seat of the car at the time of her arrest.

A 911 call came in about a car driving 77 miles per hour, hitting a retaining wall, and swerving in and out of its lane.

In an effort to get ahead of a dangerous situation, officers cut their lunch short. While talking to his car, one officer saw the vehicle traveling southbound in the 2200 block of the I-35E service road, according to the affidavit.

Continue reading →

Greg Lukianoff’s group, FIRE, has fought for the free speech rights of students against those who would silence them, whether because the speech is too controversial, hurtful, uncomfortable or disagreeable.  When asked by Michael Yaki, member of the United States Civil Rights Commission, why college students should be entitled to free speech, Greg replied:

And if you’re saying that basically we should—that maybe below-graduate-level study should be ruled the same way high school students should be—I would disagree with you.

One of them is the moral and philosophical underpinnings of the 26th Amendment.  Essentially, we have decided in this country that 18-year-olds… that is considered the age for majority.

We also send our 18-year-olds to war.  Unless you’re actually also willing to make the argument that nobody below the age of, I don’t know, 22 should go to war, and we repealed the 26th Amendment, we’ve got a serious problem.

Continue reading →

In a post at Slate, my buddy Cristian Farias writes about Chief Justice John Roberts’ cute quip during oral argument in Rodriquez v. United States, and its significance in deciding this case questioning how long a traffic stop can be extended to wait for the drug dog to show and do as he’s told:

The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”

When the CJ makes a funny, everyone does the obligatory chuckle. And in fairness, it was cute, so why not?  But Cristian’s point is that, while it was presented as a quip, it may have revealed the fact that Roberts’ experience with traffic stops may not be the same as others. Indeed, he may never have been stopped at all.  Cristian sought confirmation of this question but received no reply.

He asserted that Roberts’ lack of experience, his naïveté when it came to traffic stops, was a problem. Continue reading →

The PBA induced drama around the Bronx Defenders, carefully crafted to deflect attention from the non-indictment of Officer Pantaleo for the killing of Eric Garner, and the subsequent work slowdown to teach Mayor Bill de Blasio and Police Commissioner Bill Bratton which part of the body politic is truly in charge, left two casualties behind.  Cardozo lawprof Jonathan Oberman explains:

When Patrick Lynch chastised Mayor de Blasio that “there was blood on the mayor’s hands” following the tragic killing of officers Rafael Ramon and Wenjian Liu, many reasonable people recognized the comment for what it was, an effort to verbally smear the mayor to secure Lynch’s political base, and deflect attention from the serious questions being raised post-Ferguson, Mo. and Staten Island. . . . As the target of an inflammatory attack, one would not have expected the mayor to engage in similarly inflammatory rhetoric.

Yet that is what he did.

Scapegoats were needed, and Bill de Blasio took the lead: Continue reading →

What’s not to love about a FBI director who knows his Broadway tunes, a time-honored tradition since J. Edgar owned the place.  As the New York Times reports, Jim Comey pulled one out for his speech at Georgetown University.

Citing the song “Everyone’s a Little Bit Racist” from the Broadway show “Avenue Q,” he said police officers of all races viewed black and white men differently. In an address to students at Georgetown University, Mr. Comey said that some officers scrutinize African-Americans more closely using a mental shortcut that “becomes almost irresistible and maybe even rational by some lights” because black men are arrested at much higher rates than white men.

That everyone is a little bit racist, if not a lot racist, is hardly controversial.  Indeed, not realizing this obvious fault would be quite disturbing.  But Jim then goes to dark places where someone who uses Hoover’s old closet shouldn’t go: that racism “becomes almost irresistible.”

The numbers overwhelmingly show that black men are arrested at much higher rates than white men.  But if Jim could think like a freak, he might understand that his facile connection of statistics to the “almost irresistible” rationale for racism defies logic.  Correlation does not prove causation.  Continue reading →