When the Sixth Circuit decided Doe v. Baum, holding that the accused in a Title IX campus sex hearing was entitled to examination by counsel, it was a breakthrough ruling. There was much to complain about its consequences, and complaints there were. It turned college sex tribunals into adversarial mini-trials, run by people lacking any of the competencies to manage it and creating the potential for an accuser to be subject to serious challenge.

While limited to the jurisdiction of the Sixth Circuit, it was the first time a court seriously challenged the reach of the squishy Matthews v. Eldridge due process test for quasi-judicial administrative proceedings. If you want to run a criminal-ish court, and impose extreme sanctions that have life-altering impacts, then suck it up and give the accused the chance to defend himself. It’s not an inquisition, no matter how strongly you believe Torquemada was right. Continue reading →

It was only days after the slaughter in an El Paso Walmart. In the scheme of constitutional rights, it can be argued all day and all night that this undeniable fact is irrelevant, and it is. Yet, getting along in society includes some recognition of not being the worst person you can be even though you have a right to do so.

Dmitriy Andreychenko is an asshole. To call him a jerk is inadequate. What he did went far beyond being a jerk, reflecting such a deep lack of judgment that you have to wonder how he survived long enough to walk into a Walmart in Springfield, Missouri.

Prosecutors on Friday filed a terrorist threat charge against a 20-year-old man who said he walked into a Missouri store wearing body armor and carrying a loaded rifle and handgun to test whether Walmart would honor his constitutional right to bear arms.

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Mud Lick, Alabama Sheriff Roy Templeton finally had a moment of peace. He’d managed to catch up on all of his paperwork, the department’s bullpen was silent, and he was lost in his dog-eared copy of Ayn Rand’s Atlas Shrugged.

Then the phone rang.

“Hey Sheriff, it’s Buford MacElroy from Garage 66,” the voice said over the phone. “We’ve got one of your cruisers in the shop and a bullet hole’s in the windshield.” Continue reading →

Have you fallen and you can’t get up? There’s an app for that, and maybe it will alert police to come to your home to help even if it turns out that you haven’t fallen, you’re up and don’t need their help. Too bad.

The alarm from the residence ended up being a medical-assist alarm that originated from someone’s cellphone inside the home, according to the Sheriff’s Office.

The home belonged to 62-year-old Dick Tench, described as “fiercely patriotic.” When Trench saw a flashlight through his window, he did what any fiercely patriotic owner of his own castle would do. He got his gun, because he was on the good guy curve and assumed, for lack of reason to think anything else, that someone was about to burglarize his home. Continue reading →

It was story that could either evoke tears or sneers, according to which way it was framed. There was the poor Jimmy version:

Life was already a struggle for Jimmy Aldaoud. He had bipolar disorder and schizophrenia, and battled depression and diabetes. He got into trouble, frequently landing in jail or on the street in and around Detroit, where he grew up.

Then, in June, he was deported to Iraq, and life got even more difficult. He had never set foot there before, his family said. He did not understand Arabic. He did not have enough medicine.

Then there was the bad Jimmy version: Continue reading →

Vengeance is not justice. You would think career prosecutors would know this, since Justice Robert Jackson famously admonished them to seek the latter. Unfortunately, prosecutors in my backyard are currently pursuing a case of nothing less than full-blown country vengeance, ripping open a twelve-year-old community wound in the process.

Eric Boyd’s murder trial started this week. Boyd is accused of horrifically raping, torturing, and murdering two UT College students, Channon Christian and Christopher Newsom, twelve years ago. Three other defendants accused of participating in the nightmarish crime are currently serving sentences amounting to life plus cancer. One is on death row.

Boyd, however, is currently on year ten of an eighteen year federal bit for harboring the alleged ringleader of this crime, Lemaricus Davidson. Continue reading →

It’s worse than shocking that the Wall Street Journal would publish the op-ed, not because of its author, but because its core message is well known to be utterly false. Yet, there it was.

Congress gave Google and other social media an exemption from such lawsuits in 1996, with the Communications Decency Act. Section 230 of that bill provided these companies with immunity against defamation and some other legal claims. The clear intent of Section 230—the bargain Congress made with the tech companies—was to promote free speech while allowing companies to moderate indecent content without being classified as publishers.

Like too many lies built on putatively logical claims, the arguments makes some sense. The only problem is it’s false. Completely, utterly, untrue. It never happened. It was never meant to happen. It’s just a basic lie wrapped in a bow of seriousness that’s being repeated, as the lesson of propaganda is to repeat lies enough and people who want to believe them will. But it’s still a lie. Continue reading →

It is no secret that I am Guidelines-centric. Why then do I strongly support a “second look” option similar, if not identical, to the one proposed by Professor Shon Hopwood? See Shon Hopwood, Second Looks & Second Chances, Cardozo Law Review (forthcoming), available at the Social Science Research Network (last revised June 30, 2019) at SSRN pp. 21-22 (Part III) (proposing, at a minimum, that Congress enact legislation allowing federal judges to take a “second look” at sentences after the offender has served 10 years in prison and every 5 years thereafter without the offender having to show extraordinary and compelling circumstances).[i]

The following courtroom sketches are of Tom Brady during “DeflateGate.” The artist, Jane Rosenberg, a 35-year veteran of courtroom sketching, received condemnation for the first one and much better reviews for the second one.[ii]  See where I’m going?

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Among the messages of the King Solomon “split the baby” parable is that his compromise would have left the real mother with half her baby. The problem with half a baby is that half a baby is a dead baby. It’s not that compromise is inherently death, but that it’s not necessarily life either. Not everything can be split down the middle and survive.

Yet, in Haidak v. UMass-Amherst, the First Circuit Court of Appeals tries its hand at compromising cross-examination. It begins, oddly enough, by questioning the merit of cross at all.

We are aware of no data proving which form of inquiry produces the more accurate result in the school disciplinary setting. Considerable anecdotal experience suggests that  cross examination in the hands of an experienced trial lawyer is an effective tool. See California v. Green, 399 U.S. 149, 158 (1970) (noting that cross-examination is “the greatest legal engine ever invented for the discovery of truth” (internal quotation marks omitted)). One must keep in mind, however, that courts generally find that an accused student has no right to legal counsel in school disciplinary proceedings.

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The billboard went up. It reflected the views of the owner of a North Carolina gunshop, which means it started with two strikes against it. The targets of its message reacted. The billboard came down.

And a member of Congress, the representative of Michigan’s 13th district, conclusively proved that Trump isn’t the only person in government utterly ignorant of our Constitution. Continue reading →