Joi Ito was about as odd and quirky a choice for director of the MIT Media Lab as imaginable. He had no college degree, yet held a professor’s rank at the Institute and was a visiting professor at Harvard Law School. His background was like a shotgun blast, with buckshot spread everywhere. And yet, he was director of MIT’s flagship program in innovation.

Then came Jeffrey Epstein, who turned out to be a significant donor to the program, even as no one is entirely clear where Epstein’s money came from. But Ito knew one place it might go, and that was his lab and his personal enterprises. Part of the job is to get donations, and Epstein was one of Ito’s “go-to” guys. Was it wrong to take his money?

I’m writing about Ito, not because I think he ever participated in the heinous acts Epstein was accused of, but because his willful ignorance of Epstein’s record contributed to the harm of the victims. A well-written New Yorker article by Amy Davidson Sorkin details how much of Epstein’s power lay in his powerful network of men, many of whom were in academia. Another article, by Philip Weiss in 2007, says that when asked about his child prostitution charges, Epstein responded, “Have you managed to talk to many of my friends? … Do you understand what an extraordinary group of people they are, what they have accomplished in their fields?”

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An amusing thing recently happened at the Fifth Circuit.[i] It all started with a  qualified immunity (QI) case. Cole v. Carson, No. 14-10228, No. 15-10045 (5th Cir., August 20, 2019) On a petition for rehearing en banc following remand from the Supreme Court, the Fifth Circuit once again affirmed the denial of summary judgment on an excessive force claim. Plaintiff and his parents had filed suit against police officers under 42 U.S.C. § 1983, alleging that the officers violated the Fourth and Fourteenth Amendment during an incident in which the officers shot the kid who was holding a gun near his head as he suddenly emerged from a tree line.

Although the majority decision is patently wrong and, given the remand, appeared to thumb its nose at the Supreme Court, the result of that opinion is not what I care about. Instead, I write about two dissents. Those dissents remind me of an iconic Disney movie and the pertinent question it recalls, “Magic mirror on the wall, who is the fairest one of all?”

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Thought you heard the end of “I know you are but what am I” when you were on the playground in third grade? No, of course you didn’t, because you are no doubt following the smartest and most persuasive people your tribe has to offer, and they’re hurling variations of this infantile reply fast and furious.

Breitbart, that bastion on deep alt-right thought, dug up some old twits from a University of Alabama Dean of Students.

Jamie Riley had dared to criticize the American flag and the police, writing in 2017 that they represent “a systemic history of racism for my people.”

Breitbart decided that this and other tweets of Riley’s merited an article. Reporter Kyle Morris wrote that “a series of resurfaced tweets from Dr. Jamie R. Riley, the University of Alabama’s assistant vice president and dean of students, show he once believed the American flag and police in America are racist.” But the tweets didn’t just resurface on their own—they were publicized by the right-wing news site in order to send a social media mob after Riley.

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This week, dear readers, we’re taking a break from Mud Lick and the usual shenanigans within to share a current events story combining several of my guilty pleasures: absurd humor, law, and professional wrestling.

Chris Irvine, better known as Chris Jericho, is a professional wrestling superstar, frontman for the heavy metal band Fozzy, and spokesperson for cat litter. On August 31, Jericho became the first ever All Elite Wrestling World Champion after beating “Hangman” Adam Page during All Elite’s “All Out” show in Chicago.

Sometime Sunday, the All Elite Championship was stolen. According to the police reports, Jericho flew from Chicago to Tallahassee and took a limo from the airport to a Longhorn Steakhouse, presumably to celebrate his championship win. Once at the Longhorn, Jericho realized he’d inadvertently left his luggage at the airport and asked the limo driver to fetch the correct luggage. Continue reading →

While Theresa Brown’s “inside nursing” op-ed might be seen as limited to the sphere of hospitals, it’s not.

The nurses were hiding drugs above a ceiling tile in the hospital — not because they were secreting away narcotics, but because the hospital pharmacy was slow, and they didn’t want patients to have to wait. I first heard about it from Karen Feinstein, the president and chief executive of the Jewish Healthcare Foundation, who reported it at a board meeting several years ago. I wasn’t surprised: Hiding common medications is a workaround, an example of circumventing onerous rules to make sure patients get even basic care.

Workarounds are legion in the American health care system, to the extent that ECRI (formerly the Emergency Care Research Institute) listed them fourth among its list of top 10 patient safety concerns for health care organizations in 2018. Workarounds, the group writes, are an adaptive response — or perhaps one should say maladaptive response — to “a real or perceived barrier or system flaw.”

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News out of Boston was deeply disconcerting. The progressive district attorney, Rachael Rollings, had decided against prosecuting “counter-protesters” at the ridiculous Straight Pride Parade. The reports showed that Judge Richard Sinnott refused to dismiss the cases.

Even more outrageous, an attorney representing one of the defendants, was held in contempt and taken into custody.

Susan Church, a prominent Cambridge-based immigration lawyer, was in court to represent at least one client who was arrested by Boston police during the controversial so-called “Straight Pride” parade and counter-protests on Saturday. Continue reading →

During my brief but wonderful tenure as the mean-ass editor of Fault Lines, I had a minor epiphany. The concept of FL was to bring together the differing points of view of the players (what might be called “stakeholders” in the moment’s jargon) in the criminal legal system. Defense, prosecution, cops and judges all had their say.

I read every post before it hit the screen, and that’s when it happened. Rather than finding myself seduced by confirmation bias, I found just the opposite. It was far easier for me to be critical of posts arguing the defense perspective than the prosecutorial perspective. By critical, I mean that I could easily see the logical gaps, the legal holes, the facile inferential leaps that allowed arguments with which I agreed to reach their conclusions without facing the hard questions.

But the prosecutor posts? Being a criminal defense lawyer, I was often in natural disagreement with the perspective from the outset, finding myself inclined to argue the merit of the perspective rather than pinpointing particular problems in reaching the conclusion. What I found was that I had to resist the urge to disagree with posts I disagreed with, and in doing so, I was substantially less critical of the reasoning used to reach the conclusion. Continue reading →

My favorite Virginia prosecutor, Ken Lammers, takes me to task for arguing that there is no place for victim impact in the determination to release a prisoner on parole.

Over at Simple Justice, Scott seems to think that the only time for the wife to put in her 2 cents worth is at the sentencing. He’s not happy that the NY Legislature has required the Parole Board to pay even minimal heed to victims such as the wife. If NY sentencing worked as Virginia’s does, I’d agree. Unfortunately, it does not. NY exists in the indeterminate zone (That’s the signpost up ahead.)

If a set sentence was given after the wife testified it would have all been concluded. Assuming the appeals process didn’t turn up a reversible error, the whole thing would have been settled and the wife could have gone on with her life as best she could.

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David Gutierrez wasn’t a sympathetic defendant. Worse yet, there was little doubt that he did what he was accused of doing, shooting and killing Jose Valverde. He even told his wife about it. And his next wife as well. And when he went to trial, they testified against him.

In 2002, Defendant David Gutierrez shot and killed a man. Gutierrez disclosed this fact to his wife and threatened to kill her if she ever told anyone about the murder. They divorced a short time later. Gutierrez remarried and also told his second wife about the murder. By the time of his 2017 murder trial, Gutierrez was estranged from his second wife. At trial, he invoked the spousal communication privilege to preclude both women from testifying about his role in the killing. Gutierrez’s invocation of the spousal communication privilege prompts us to question its continued viability in New Mexico.

The spousal privilege, like attorney/client, priest/penitent, physician/patient, exists to permit communication without fear of compulsion to testify. The privilege predated this nation, and was explained 180 years ago by the United States Supreme Court in Stein v. Bowman. Continue reading →

There was good reason to fear the guy in the gray pickup on Interstate 10 in Texas. After being pulled over for not having a front license plate, the driver fired one round at Trooper Lee Meadow and took off.

As Meadow approached the open window on the truck’s passenger side door a handgun suddenly appeared and a single shot blasted over his right shoulder. Meadow dropped to the ground and the truck sped off. The trooper ran back to his cruiser, radioing he’d been shot at and was in pursuit of a gray Chevy Colorado pickup.

The call went out and police mobilized. Few things get them moving faster than someone trying to kill a cop. Kimble County Sheriff Hilario Cantu and Deputy Jack Noah heard the alert and prepared themselves to do their job. Continue reading →