As it happened, I was on the phone with Paul Nungesser’s lawyer, Andrew Miltenberg, when the Columbia Spectator got the story. This was a critical condition of the settlement, that Columbia University be the party to break the news in its own way, but once done, it was anybody’s game. For Columbia, the public relations piece was more important than any other, negotiating every vowel and comma of the statement to be publicly released. This is what they finally agreed upon:

Paul Nungesser and Columbia University have agreed to settle the lawsuit he filed in 2015.

While Paul was a student at Columbia, he was accused of sexual misconduct.  In November 2013, after a diligent and thorough investigation, Paul was found not responsible for any misconduct.  Columbia University stands by that finding.

In 2015, Paul graduated from Columbia in good standing as a distinguished John Jay Scholar.  John Jay Scholars, like Paul, are recognized for their remarkable academic and personal achievements, dynamism, intellectual curiosity, and original thinking.  Paul is currently enrolled at an internationally recognized film school and has launched a career as a filmmaker.

Columbia recognizes that after the conclusion of the investigation, Paul’s remaining time at Columbia became very difficult for him and not what Columbia would want any of its students to experience.  Columbia will continue to review and update its policies toward ensuring that every student – accuser and accused, including those like Paul who are found not responsible – is treated respectfully and as a full member of the Columbia community.

Continue reading →

Senior Nebraska District Judge Richard Kopf deconstructed an opinion by Southern District of West Virginia Judge Joseph Goodwin rejecting a plea agreement.

Greatly condensed and summarized, the judge recounted: (1) Walker’s stunning criminal history (although I think it likely because of the age of many of the prior convictions, and the maximum score limitation for certain relatively minor crimes, that Walker’s criminal history score was IV); (2) the fact that Walker warned his customers that other customers of his had overdosed; (3) the fact that the use of heroin and other opiates had risen to epidemic levels in West Virginia with the concomitant reality of a mounting death toll; (4) the fact that federal judges are not overworked so plea bargains are not necessary for the sake of judges; (5) that there is an inverse relationship between the increased number of federal prosecutors and each individual prosecutor’s caseload, thus suggesting that federal prosecutors do not need to plea bargain to handle their docket; (6) that the resolution of criminal charges by plea bargaining has replaced resolution by jury trial and that criminal jury trials in West Virginia (and throughout the nation) are few and far between; and (7) that jury trials provide an important public educational function.

Much of Judge Goodwin’s rationale deals with the quirks of the specific case, meaning that he just really hated the plea in this instance and thought it inappropriate. But the last two points are different. They are systemic issues, and as such, extend beyond the one plea agreement at issue to the broader question of whether pleas should be permitted at all, and who the court should be looking at when deciding whether to approve an agreement.

The first point is one often raised, that guilty pleas have replaced jury trials as the primary means of resolving indictments. This issue has been beaten to death, whether as the trial tax or the plea discount. Continue reading →

At Volokh Conspiracy, there has been a series of posts ripping to shreds a book about libertarianism by historian Nancy MacLean, Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America.

As Ilya Somin explains:

In her badly flawed book Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, historian Nancy MacLean gets many, many things wrong about the history and purposes of libertarianism. Jonathan Adler, David Bernstein (see also here), Phil Magness (also here), Russell Roberts, and Michael Munger, and others, have highlighted some of her most important fallacies and distortions.

Rather than address the accusation that her book was substantively inaccurate, MacLean took to Facebook to attack the motives of her critics and call for social justice warriors to game the system in favor of the cause. Continue reading →

For a brief and shining moment, I thought perhaps the New York Times had paid attention to my pleas and decided not to pursue its quest to rid the nation of toxic masculinity. Such hubris.

This is the first of a weekly column.

Apparently, Roxane Gay didn’t cut the mustard, probably because she was black, intersectional and kinda stupid, so the Times gave a weekly column to Lindy West instead.

A few weeks back, some old friends invited me to appear on their podcast. They are two stand-up comedians in their mid-30s — I know, the podcast comes as a shock — and their show is a kind of micro focus group, investigating how to be better straight white dudes by picking the brains of guests who don’t fit that description.

They want to know what people like me, for instance (fat, female, feminist) need from people like them (plausible extras in a Buffalo Wild Wings commercial). It’s sweet and, I think, encouraging.

See? I wasn’t being mean in the title. West describes herself as fat, and who am I to deny her lived experience? Continue reading →

Judge Joseph R. Goodwin is a highly regarded and long serving United States District Judge in the Southern District of West Virginia.[i] He has written an opinion[ii] rejecting a plea agreement that deserves to be read by federal prosecutors and federal CDLs alike, no matter where they practice. It sets forth a thoughtful schema for rejecting regular plea agreements, not just Rule 11(c)(1)(C) plea agreements. With sincere respect, the good judge is quite wrong.

Charles Walker is a very small-time drug dealer. He was charged in a six count indictment. Four counts related to the distribution of heroin. Two counts related to the distribution of fentanyl and one count charged that Walker was a felon in possession of a firearm.

There were seven controlled buys resulting in small quantities of drugs. According to Judge Goodwin, Walker sold a total of 0.729 grams of heroin, 0.071 grams of fentanyl, and 0.17 grams of a furanyl fentanyl during these buys. After these controlled buys, an arrest warrant and a search warrant were executed. According to the judge, the agents searched the defendant incident to arrest and discovered an additional 9.7 grams of marijuana, 2.081 grams of powder cocaine, and 0.845 grams of a heroin and fentanyl mixture.[iii]

The agents then executed a search warrant and recovered a set of digital scales, one bag of a white substance, one box with a suspected methamphetamine pipe, one bag of suspected marijuana, five boxes of 45 caliber ammunition, two pistols, miscellaneous medical items containing the defendant’s name, and a cell phone used during the controlled buys. Continue reading →

When a defendant walks on criminal charges following a horrendous crime or tragedy, the outrage mob heads to the streets or social media crying foul play and the lack of fairness in the courts. This anger, seething in the Smoky Mountains, conceals a troubling revelation. Someone doctored a prosecution agreement giving Sevier County DA’s the authority to prosecute crimes in federal parks, and no one’s talking about it.

Aggravated arson charges against the boys, ages 17 and 15, were dropped Friday in part because 4th Judicial District Attorney General Jimmy Dunn did not have authority under a 1997 agreement between the state and federal government to prosecute crimes committed in the Great Smoky Mountains National Park.

The park was left out of the 1997 agreement, which granted both state and federal authorities the power to prosecute crimes committed on federal lands within Tennessee. That meant only federal authorities could level charges for crimes committed in the park. That omission was discovered during Dunn’s attempt to prosecute the boys.

 National parks are federal land. That means absent an agreement like the one former Governor Don Sundquist reached with the Feds giving local law enforcement power to prosecute crimes in national parks, the US Attorney’s office is left with the job. Continue reading →

David Brooks has caught no end of flak for what may be one of the most idiot paragraphs to ever appear in the New York Times*:

Recently I took a friend with only a high school degree to lunch. Insensitively, I led her into a gourmet sandwich shop. Suddenly I saw her face freeze up as she was confronted with sandwiches named “Padrino” and “Pomodoro” and ingredients like soppressata, capicollo and a striata baguette. I quickly asked her if she wanted to go somewhere else and she anxiously nodded yes and we ate Mexican.

So mindnumbingly bad was this paragraph that it immediately spawned ridicule. This was one of my personal favs:

Continue reading →

The majority in Turner v. United States, which included all but Justices Kagan and Ginsburg (Gorsuch did not participate, which means Sotomayor was singing soprano to Alito’s bass), pulled a shrewd move.

The Government does not contest petitioners’ claim that they withheld evidence [that] was “favorable to the defense.” Petitioners and the Government, however, do contest the materiality of the undisclosed Brady information. Such “evidence is ‘material’ . . . when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469–470. “A ‘reasonable probability’ of a different result” is one in which the suppressed evidence “ ‘undermines confidence in the outcome of the trial.’ ” Kyles v. Whitley, 514 U. S. 419, 434. To make that determination, this Court “evaluate[s]” the withheld evidence “in the context of the entire record.” United States v. Agurs, 427 U. S. 97, 112. Pp. 9–11.

Held? No Brady violation because the favorable evidence deliberately withheld from the defense at trial would not have had a “reasonable probability” of changing the outcome, and was thus not material. See what they did there?

There is an incentive system underlying the majority’s opinion, that if a prosecutor deliberately conceals exculpatory evidence from the defense and obtains a conviction, and decades later, the defense somehow learned of the existence of this withheld Brady (a very unlikely event, but it happens) the worst that can come of it is that the defendants get a new trial, this time with the exculpatory evidence. Continue reading →

There are two explanations, the first tugging at the heartstrings of every American who hates foreigners, whom they then conveniently include in the morass of “illegals” without the slightest clue of whether they’re undocumented or third-generation Cincinnati. The other are the people with accents and vowels at the end of their name who come to prominence for having committed a crime, apart from their mere existence.

The criminal ones are certainly a far easier sell. Think the murder of Kathryn Steinle by Juan Francisco Lopez-Sanchez, used as the posterboy for the “worst of the worst,” the alien who shouldn’t be here at all and yet not only came, but killed. Horrifying.

Few would argue that someone like Lopez-Sanchez are worthy of any immigrant sympathy, but what of the many who are here unlawfully (note: not illegally, but unlawfully) who commit no crimes, pay taxes (as do we all) and perform services that we need and appreciate? You know, the good illegals.

The official message was that they weren’t to be the priority of Immigration and Customs Enforcement, who had their hands more than full ridding us of the bad ones. Then the stories started emerging of ICE hanging out in front of schools picking up papa dropping off his daughter at school, days before graduation, beloved by his Trump-voting community.  Continue reading →

It must have been painful for the ABA Criminal Justice Section’s Task Force on College Due Process Rights and Victim Protection to have to admit that even accused rapists are entitled to some tiny degree of due process. Weak, conflicted, and bordering on the idiotic as the recommendations might be, it still compelled the ABA Journal to note, “but they are not formal ABA policy.”

Both the accused and the accuser should have due process protections when colleges and universities resolve allegations of campus misconduct, according to a report by an ABA task force.

While this inane failure to grasp how adjudication under the American system, the United States Constitution, works, the ABA still considers this too radically in favor of the patriarchy to note the report without the caveat, which is why the ABA has changed its slogan to, “it’s so exhausting.”

But it’s not alone in its sad tears for the victims of patriarchy. One of the frontrunners for the Democratic nomination for president, alongside such social justice luminaries as Kamala Harris who is doing everything possible to shed her years of supporting prosecutorial misconduct and police killings to pretend to be progressive, is New York’s junior senator, Kirsten Gillibrand, and like the ABA, she is on a crusade for survivors. Continue reading →