Brady and the Bargained Plea

It’s nothing new, though whenever a non-lawyer writer discovers prosecutorial misconduct, they’re sure it’s an epiphany. And for criminal defense lawyers, it’s always nice to put the issue of prosecutors playing “hide the Brady” on the table for others to see, whether just to remind them or, if we get really lucky, motivate people to give a damn.

Jordan Smith has a post at The Intercept revisiting the problem of Brady concealment, putatively stemming from testimony at a hearing before the Texas lege.

She told the committee that while cases involving prosecutorial misconduct have “dominated discussions about the integrity of our criminal justice system in recent years,” she was “pleased to report that those cases have become less prevalent.” She’d done the research and found that over the last 12 months, the Court of Criminal Appeals had only granted relief four times based on a claim that prosecutors had committed misconduct by withholding evidence.

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Tuesday Talk*: Do What For The Children?

It started with a question by Radley Balko about the accuracy of claims that “catch & release” put children in the hands of abusers. Like Radley, I was skeptical of the claims, but also considered what would happen when the sad story of some child enslaved came out. Much as it was unlikely this would be a huge problem, it was quite likely that it would happen, even if only to a few. How many is a few here? Beats me.

But since it only takes an anecdote for a deep dive into inductive reasoning to confirm the unwavering bias that this is all because we are suddenly horrified and exhausted, would we be capable as a nation of accepting an imperfect solution, or would we just ping pong between hatred for one policy or hatred for another, because there was no option but to assign blame?

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Short Take: Co-Opting “Social Justice” Into The Rule of Law?

Trying as hard as I could, it was still difficult to make sense of this:

As for social justice, it’s a wonderful thing. But remember that people have very different versions of what social justice looks like.

Many people in this room probably have a vision of social justice that includes less inequality, less racism, less Islamophobia, less homophobia, less transphobia, and better lives for indigenous people. But if you are a Trump supporter, social justice might also include, say, fewer refugees, and less affirmative action.

In life, you have to be careful what you wish for. If you decide that social justice trumps the rule of law, you may be horrified to see how that principle is applied by those whose views you find to be regressive.

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A Gun Alone

As state courts have proven extremely reluctant to give any slack to the right to keep and bear arms under the Second Amendment, exercising the right without being arrested first has often been honored primarily in the breach. Possess a gun, get arrested and, only afterward, get cut loose provided the person possesses the requisite permits.

But an Illinois appellate court’s analysis in an opinion by Justice P. Scott Neville, Jr. challenges the “outdated” assumption.

The State argues that the discovery of the gun gave Whitlock probable cause to arrest Penister, reasoning that “the police were not required to *** determine whether he had a valid FOID card or a Conceal Carry Permit prior to effectuating his arrest.” According to the State’s reasoning, an officer has probable cause to arrest anyone engaged in an activity that requires a license, and the officer can wait until after the arrest to determine whether the arrested person has the required license. So any officer can wait outside any courtroom, arrest all persons who acted as attorneys, and find out after the arrests whether the persons had the requisite licenses to practice law. See 705 ILCS 205/1 (West 2016) (unlicensed practice of law punishable as contempt); People v. Flinn, 47 Ill. App. 3d 357, 361 (1977) (“arrest and imprisonment may be imposed for civil contempt of court”). If any officer sees a person driving a car, the officer has probable cause to arrest the driver, and the officer can find out later whether the arrested person has a license to drive.

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Short Take: Literal But Nonsensical? There’s An App For That

How cool is it that Google has this app called “Translate,” and anybody can get it right on, wait for it, their smartphone? Even a cop in Kansas.

Imagine you’re driving in a foreign country and a police officer stops you on the road. You don’t speak the cop’s language and they don’t speak yours, so a halting exchange ensues using a laptop and Google Translate. You’re not always sure what the officer is asking, and you end up agreeing to something you didn’t quite understand, and are arrested.

That’s what happened to Omar Cruz-Zamora, a Mexican native in the US on a legal visa, in Kansas last September.

Cruz-Zamora spoke Spanish. Kansas Highway Patrol Trooper Ryan Wolting did not. But Wolting had a smartphone and, boom, technology! Continue reading

Tolerable Cruelties (Update)

When the Obama administration placed the young children separated from their immigrant parents for unlawfully crossing the border outside “concentration camp” walls, it swiftly turned into an opportunity for human traffickers to get free slaves. That was certainly terrible and unacceptable, and something had to be done.

Children of a very tender age need to be held, comforted and cared for. But if adults in a facility provide them with the human contact they desperately need, they expose themselves to allegations of sexual molestation. At the very least, they commit nonconsensual touching, and America is better than that. Molesting the children of incarcerated immigrant parents is outrageous and unacceptable, and something must be done.

When the Obama administration created a path to citizenship, people from other nations saw the opportunity to get here, any way they could, to give their children a better life. Certainly one can’t blame them for loving their children, for wanting to provide for their future, and America offered them a future they would never find in their home nations. Despite the horrifying and exhausting microaggressions felt by those already here, America is the land of opportunity to immigrants. Continue reading

Sometimes The “Victim” Is A Killer

When Mark Ossenheimer founded New York City’s Urban Assembly School for Wildlife Conservation, he ran a tight ship. The Dean, Hector Diaz, took a stern position on discipline, and the students took him seriously. And the school thrived.

But fashions change, particularly in education where movements based on Utopian theories of behavior come into favor. And UA Wildlife was not immune.

New York was in the vanguard of a nationwide movement, spurred largely through federal coercion, to undo traditional discipline in favor of a progressive or “restorative” approach.

At UA Wildlife, meaningful consequences for misbehavior were eliminated, alternative approaches failed, and the administration responded to a rising tide of disorder and violence by sweeping evidence of it under the rug.

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Even Cartoonists Serve

Rob Rogers was brilliant at his job. But what was his job?

I should’ve seen it coming. When I had lunch with my new boss a few months ago, he informed me that the paper’s publisher believed that the editorial cartoonist was akin to an editorial writer, and that his views should reflect the philosophy of the newspaper.

That was a new one to me.

I was trained in a tradition in which editorial cartoonists are the live wires of a publication — as one former colleague put it, the “constant irritant.” Our job is to provoke readers in a way words alone can’t. Cartoonists are not illustrators for a publisher’s politics.

Rogers had been the editorial cartoonist at the The Pittsburgh Post-Gazette since 1993. Back then, it was a liberal newspaper. Over time, it became less so, until it endorsed a Republican in 2011. Rogers just kept doing his job, and doing it well, provided “well” means that the stinging political satire was acceptable to the people signing his paycheck. It wasn’t. Continue reading

Short Take: The Malleability of “Due”

A survey conducted for FIRE, the Foundation for Individual Rights in Education, would appear, on its face, to be pretty good news.

new survey from the Foundation for Individual Rights in Education finds that a vast majority of college students support fundamental due process protections in campus disciplinary hearings in order to ensure they are fair.

By “vast majority,” it might appear they mean “vast majority.”

Ninety-eight percent of students said they believe the right to due process in college was “very important” or “important.”

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The Unbearable Wrongness of Bazelon

Having long since lost Linda Greenhouse and Dahlia Lithwick to their private hysteria played out in public, the lone remaining female pundit of law was Emily Bazelon. I regret to inform you that Bazelon is gone, self-immolated in a blaze of whiteness.

Being white in America has long been treated, at least by white people, as too familiar to be of much interest. It’s been the default identity, the cultural wallpaper — something described, when described at all, using bland metaphors like milk and vanilla and codes like “cornfed” and “all-American.” Grass is green, the sky is blue and, until very recently, a product described as “nude” or “flesh-colored” probably looked like white people’s skin.

How often do white people talk about being white? Not often! So long as we aren’t hanging out with white nationalists, marrying into a family of color or chuckling over jokes about our dancing, we have endless opportunities to avoid thinking much about our own race.

When she puts it that way, it seems almost mind-numbingly ridiculous that white people don’t obsess about their racial identity by self-flagellating and rending their sack cloths. But Bazelon informs us that it’s over.  Continue reading