The Last Itty Bitty Slice of Prosecutorial Liability

Everything that touches Kareem Bellamy’s world seems to turn ugly. His trial was ugly. The 14 years he spent in prison for murder was, naturally, horribly ugly. The vacating of his conviction and release, ugly, ugly, ugly. Four months after Judge Joel Blumenfeld vacated Bellamy’s murder conviction based on a taped confession by another guy to the murder, it turned out the tape was a phony. Ugly.

And now on appeal before the Second Circuit, challenging the dismissal on summary judgment of his suit for damages for a cool prosecution trick performed by the Queens County District Attorneys office of maintaining a Chinese wall between the handling of snitches and the prosecutors trying cases, it’s ugly yet again.

Prosecutors have absolute immunity from liability for their actions in their prosecutorial function, because the Supreme Court fears the floodgate will open and they will flee the courtroom, and the DA’s office, in tears if they were ever held accountable, even for the most intentional and egregious wrongdoing. If that were to happen, they might be hesitant in their zeal to shoot fish in barrels and society would devolve to anarchy. So prosecutors must be protected at all costs.

But there remained one tiny crack where prosecutors could be liable, based on their actions in an investigative capacity rather than the performance of their prosecutorial function.* Bellamy argued, inter alia, that the concealment of Brady material, of benefits conferred on witnesses against him at trial, was an administrative policy rather than a prosecutorial policy. EDNY Judge Ann Donnelly said “nope, ain’t happening.” Continue reading

Tuesday Talk*: Marshall Project Phone Home

Despite my having little good to say about the Marshall Project, a point raised by criminal defense lawyer, activist and producer, David Menschel, evoked a response by lawprof Carissa Hessick that piqued my interest.

Both have a point. While the Pulitzer hook isn’t at all what one might suspect, it coming by dint of a MP writer riding the coattails of ProPublica, and the vast majority of the content at the Marshall Project being of the tear-jerker, legally vapid, sort that’s become so popular with the homebound and terminally unemployed, during the hours General Hospital isn’t on the air, are they an organ of the #Resistance, are they legitimate journalism or are they . . . something else? Continue reading

Short Take: Nuclear Deterrence, How Does It Work?

She may not be Roxane Gay, but the newest New York Times Columnist, Michelle Goldberg, is on a roll.

Credit Senator Bob Corker, Republican of Tennessee, for momentarily snapping us out of it. On Sunday evening, after a Twitter feud with Trump, Corker gave an interview to The New York Times in which he said publicly what Republican officeholders usually say only privately. Trump, Corker told the reporters Jonathan Martin and Mark Landler, is treating the presidency like “a reality show” and could be setting the nation “on the path to World War III.”

Corker has come out publicly and said what most sentient people already knew. But by raising the “path to World War III,” he raised the specter of Donald Trump with his finger on the nukes. Much as I hesitate to use the word that’s been reduced to a level of triteness challenged only by “rape,” this is horrifying. But then, Trump is the president. We elected an incompetent, irrational, probably mentally-unstable narcissist president, and the nuclear code comes with the job.

This is, of course, a problem of monumental proportions. And as with all such problems, there is a solution that is simple, clear and totally wrong. Goldberg cries that Corker’s admissions aren’t good enough, and that he and the Republicans in Congress must now act upon his statements by neutering Trump. Continue reading

Thurgood Marshall Law School Tests Newton’s Third Law (Update)

It would seem unremarkable that a state legislator would be asked to give a presentation at a law school. But for Texas Representative Briscoe Cain, his invitation by the Federalist Society to speak at Texas Southern was quite remarkable.

“Today I attended an event scheduled by the TSU chapter of the Federalist Society a few months ago. I was greeted by campus officials, given a guest parking voucher, and brought into a room in which the administration had specifically requested the talk occur. Then Black Lives Matter came in and bullied the administration into ending the event. It’s a sad day for universities across Texas whenever speech and a variety of views are prevented from being presented due to bullies.”

But it gets worse.

Rep. Cain was invited to the Thurgood Marshall School of Law by the Federalist Society to talk to the students about the recent legislative special session. Instead, the event was shut down before it even started. Continue reading

Bennett: The Art of Submitting Letters of Support

It is the exceedingly rare sentencing where I do not receive and read letters of support. I roughly estimate that I have read between 30,000 and 40,000 letters over the past twenty-three years. In one case alone, I read 107 letters.

For some very odd and unknown reason in our district, the Northern District of Iowa, these letters have always been referred to by everyone but me as “unsolicited letters.” That always makes me chuckle, because I, and my colleagues nation-wide, do receive unsolicited letters, but they start very differently than the letters on behalf of offenders. My favorite was years ago and received just before Christmas. Here is how it started:

Dear Judge Bennett,

I hope you nigger loving anti-American communist Jew lover have a nice Christmas.

It went downhill from there.* Continue reading

Penn State’s Contemptible Do-Over

In obtaining an injunction from United States District Judge for the Middle District of Pennsylvania, Matthew Brann, on behalf of a Penn State pre-med student found responsible for sexual assault, lawyers for John Doe, the male student burned by Penn State, learned that he should anticipate a positive determination going forward. There was a “likelihood” that he would prevail on the merits.

Penn State understood that part of the decision too.

A three-member Title IX panel in June found Doe violated the Student Code of Conduct by engaging in nonconsensual sex with a coed in the same seven-year pre-med program that is affiliated with Thomas Jefferson University in Philadelphia. He denies the allegations.

Brann, in granting the preliminary injunction , found Penn State had violated its procedures in adjudicating Doe and he had the likelihood of success in his due process claims.

If you’re the attorney for John Doe, having raised the full panoply of due process failures, from the investigation carefully designed to burn the accused to the denial of due process at the hearing, this relief is huge. If you’re the federal judge before whom the case is pending, you’ve foreshadowed the outcome and told the defendants that they blew it. Just how badly has yet to be determined, but it won’t be pretty. Continue reading

Chemerinsky and the Meaning of “Why?”

The dean of Berkeley Law School has long been acknowledged as an “expert” on the First Amendment. Then again, Harvard’s Larry Tribe has long been acknowledged as a constitutional scholar. But while most eyes are on Trump, if only because people have chosen to divert their eyes from Harvey Weinstein interviews involving potted plants, an old issue continues to get flogged in Congress. Revenge porn.

The symposium also featured Professor Erwin Chemerinsky, dean of the University of California Berkeley School of Law and nationally distinguished scholar of constitutional law, who spoke at length on the topic of “revenge porn” and the First Amendment. Describing himself as a “staunch advocate of freedom of speech,” Chemerinsky provided a comprehensive explanation of why laws prohibiting nonconsensual pornography do not violate free speech. (Emphasis added.)

The “symposium” consisted of the usual same four gals who have been pushing this all along, putting on a show within their echo chamber where they repeat the same cool stories over and over, nodding their heads in the righteousness of their lies. And Chemerinsky is hardly new to the cause, having been the one academic with any credentials who hasn’t made that face one makes when one smells something truly awful. But this comes up again because they’re still hoping to sneak a law past Congress while everybody is watching Darth Cheeto twit something crazy. Continue reading

The California Cut Rate: How Low Should It Go?

The Los Angeles Times has chimed in on the big problem with the California Bar Exam’s cut rate.

California’s bar exam is notoriously difficult. Or, more to the point, it’s notoriously difficult to pass, which is not quite the same thing. The questions that prospective lawyers must answer aren’t necessarily harder here than those on other states’ exams, but the grading is tougher. It’s as if you only have to get a C+ to be an attorney in Illinois, but you need an A- in California. Fewer than half the would-be lawyers who took the test here in the last three years passed it.

That might be OK if it meant that California’s attorneys were more competent, and the public better protected against poor lawyering, than in other states. But there is no evidence to support any such contention. The pass rate, as set by the state, is relatively arbitrary.

The word “relatively” does a lot of heavy lifting here. As Pepperdine lawprof Derek Muller responded on the twitters, there is a claim buried in there that’s simply false, that there is no evidence that higher bar scores correlate to protecting the public from bad lawyers.  Continue reading

Short Take: Mass Murder And Opportunities

In the absence of any other hook to hang your hat on, there was no doubt that the slaughter in Vegas would immediately become a “we need to have a discussion” about gun control by people who knew nothing about guns. This was a given. But what about people who made their bones on other issues? Were they to be left out of the discussion?

There was Harvard’s newest darling, Shaun King, connecting dots that no rational person could see.

Bet you didn’t know that, because you looked to the killer’s motive, his goals, to figure out whether this was an act of terrorism. But look at those sweet numbers, the retwits and likes (and those were from yesterday, so there’s a good chance a few more geniuses have embraced this deep thinking), and you can easily see why Shaun King has morphed from Daily News pundit to Harvard scholar. Continue reading

Will The ACLU Make “Dr. DRE” A Precedent In Georgia?

Ed. Note: This is a guest post by Roswell, Georgia, lawyer Charles Landrum, who has contributed some seriously good thoughts in his comments here and, as the post shows, has some serious thoughts about the potential damage from an ill-advised suit that could well end up establishing a seriously bad precedent.

DRE: a “drug recognition expert.” A name-drop giving cops magical powers to detect drugs that don’t exist and drug use that didn’t happen, like when the arrestee is impaired…because he is having an ischemic stroke. See, e.g., Love v. Tift County, Georgia. Unfortunately, there is a strong appeal to refer to cops as “experts.”

In Steed v. State, the Court of Appeals pointed out the cop’s training despite it being irrelevant to the run-of-the-mill lay observations giving rise to probable cause:

Miller, who, in addition to his regular training, had taken extensive additional training to be recognized as a drug recognition expert and traffic accident reconstruction expert, recognized the odor of alcohol coming from Steed and noticed that his eyes were watery and bloodshot.

Continue reading