Maligned as they so often are these days, the duty of a prosecutor is to secure “justice,” whatever that means. Justice Robert Jackson said so, and who am I to disagree? But then, the question isn’t what their duty is, but whether and how they perform that duty. As the Supreme Court famously said in Berger v. United States:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.

On the other hand, the defense lawyer represents one, and only one, party, the defendant, to whom he owes a duty of zealous representation. He works for no cause. He doesn’t serve justice. There is no greater truth in the courtroom for a defense lawyer than the provide the defendant with effective assistance of counsel within the bounds of the law. Continue reading →

There are four general reactions to the Articles of Impeachment against President Trump. The first two come from those who favor Trump.

• He’s innocent and did nothing wrong.
• I don’t care if he did anything wrong, he’s still better than the alternative.

On the other side, there are also two reactions.

• Two articles of impeachment focusing on his clear and certain improprieties narrow the focus and get the job done now.
• Two articles of impeachment are grossly inadequate, and the House should investigate everything he’s ever done, take as long as necessary, and impeach him for each and every wrong.

Continue reading →

If the false accuser were a jailhouse snitch, it’s highly unlikely anyone would come to his defense and manufacture a narrative where he was merely the victim of an oppressive system. It’s not that a credible argument couldn’t be made. It could quite easily, but there is no constituency for “Believe the Snitch” outside of the prosecutors’ office, and only then when the snitch is useful.

The same can’t be said for false rape accusers.

But Tricia Bushnell, director of the Midwest Innocence Project, said very few wrongful convictions come from false reporting. They are more likely to come from inaccurate eyewitness accounts.

“If the concern is that a false report could lead to a false conviction, that’s just wrong,” she said.

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Imagine if you were to start a blog, a media site, dedicated to a cause about which you were deeply passionate, that allowed you to write every day about such critical issues as menstruation without anyone pointing out you were suffering from delusions, wore out any possible interest in the subject or were boring? How cool would that be?

Soon after Anna Holmes took on the job of building the website Jezebel, in 2007, she set it apart from established publications like Vogue and Elle with a post offering $10,000 to anyone who would send in the best unretouched version of a women’s magazine cover photo. And with that, Jezebel had marked its territory: feminist cultural criticism, with an edge.

“It seems quaint now, because there are tons of media outlets influenced by Jezebel,” Ms. Holmes said. “But at the time, there was no proof that it was marketable.”

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As a lawyer, I would line up a thousand law professors to write or sign on to an amicus brief supporting my side in an appeal. I would do the same with cute kittens if it would help me win. You see, unlike the prawfs, my job is to prevail, and I would use whatever support I could muster to do so, and despite everything I’m going to say below, if I can bootstrap their scholarly cred to my advantage, you can bet I will.

But that’s because I’m a lawyer, and my job isn’t to do what’s best for society but what’s best for my client. What’s their job? Georgia State lawprof Eric Segall raises some sobering questions at Mike Dorf’s blog.

As the impetus for his post appeared at the witness table before a House impeachment committee hearing, Eric wasted no time putting the players in their place. Continue reading →

The headline made a promise that E.J. Dionne failed to keep.

Impeachment and the lost art of persuasion

Is persuasion a “lost art”? Is the failure to change minds about the wrongfulness, the impeachability, of Trump’s conduct a “lost are of persuasion” problem? Dionne makes his proffer.

The genius of the civil rights movement of the 1960s is that it really did bring home the nature of racial injustice in our country. The Great Recession and the agitation of Occupy Wall Street and other groups altered the way we discuss economic inequality. The feminist movement transformed the way we think about gender roles, while the movement for LGBTQ rights revolutionized our view of sexual identity. The students of Marjory Stoneman Douglas High School shifted the debate about guns in fundamental ways.

Are you persuaded yet? Wait, there’s more. Continue reading →

Between 2017 and 2018, there were almost 6,000 “sexual assault” “incidents.” Sexual assault?Incidents? How horrifying and exhausting it must have been for Uber drivers to suffer such incidents. But maybe you wonder what the hell are these “incidents”?

The results on sexual assault are disturbing: nearly 6,000 incidents in 2017 and 2018 combined, ranging from “nonconsensual touching” to rape.

The basis for this claim is unclear, as the Uber safety report doesn’t quite say this, not that anyone is supposed to actually look at the report rather than just take Alexandrea J. Ravenelle’s word for it. After all, shouldn’t we believe the women?

But the language, and the peripheral ideas surrounding it, gets increasingly squishy and meaningless as it goes on. Continue reading →

DNA has been both miracle and curse to criminal law. It can prove innocence, and may be useful in proving guilt. But it comes with a great many issues as well, such as the fact that DNA likes to travel and won’t stay where we want it to stay, whether in the lab or the street. Without recognition of the problems, the miracle can prove dangerous and deceptive. Even gold standards tarnish.

What many may not realize is that DNA testing takes time, both to handle it well and avoid contamination and to just perform the analysis. It’s one of the reasons that testing isn’t as quick and easy as people imagine. But what if it could be done quickly, when the trail was still hot? It could mean an innocent didn’t spend needlessly long time in jail, or under threat of prosecution, and the perpetrator of a heinous crime could be arrested before he harmed someone else. Wouldn’t this be great? Continue reading →

The downfall of Alex Kozinski was stunning. From adored Ninth Circuit judge to pariah, even at the hands of the same people who were all too happy to bask in his reflected glory until they turned on him in outrage, Koz deserves no sympathy, as he brought it on himself, even if he might have thought his brilliance as a jurist would excuse his awfulness as a person.

When he resigned from the federal bench, the complaints about his conduct as a federal judge came to their natural end. Its outcome, at worst, would have been the end of his position as a judge, and since he was no longer a judge, there was no purpose to be served in pursuing an investigation. Or was there?

Last year, the first step in the rehabbing his reputation began when he appeared as a co-author on an appellate brief on behalf of the heirs of Pulitzer Prize-winning author Paul Zindel, in their case claiming the Oscar Award-winning movie “The Shape of Water” stole copyrighted parts of Zindel’s “Let Me Hear You Whisper.” Now it’s reported that he’ll be returning to the Ninth Circuit in an oral argument in that case. Continue reading →

Much to the chagrin of the unduly passionate, black women just aren’t always on the right side of history. After all, how is it even possible that the terminally deluded have to do the dirty work of seizing the microphone lest they be complicit?

https://twitter.com/MaxLewisTV/status/1202364112237453313

As Robby Soave explains at Reason, even black women elected to office are subject to being silenced when they just don’t get it. Continue reading →