The New York Times endorsed Hillary Clinton for president, because she doesn’t suck as bad as Trump of “her intellect, experience and courage.”  Lionel Shriver explains why it falls on deaf ears.*

Midway through my opening address for the Brisbane Writers Festival earlier this month, Yassmin Abdel-Magied, a Sudanese-born Australian engineer and 25-year-old memoirist, walked out. Her indignant comments about the event might have sunk into obscurity, along with my speech, had they not been republished by The Guardian. Twenty minutes in, this audience member apparently turned to her mother: “ ‘Mama, I can’t sit here,’ I said, the corners of my mouth dragging downwards. ‘I cannot legitimize this.’ ”

Stephanie West Allen had sent me a link to the Guardian story at the time, She didn’t like Shriver’s book? That’s fine. She didn’t agree with what Shriver had to say? That’s fine too. But she could not “legitimize this”? What the hell was that supposed to mean?

I defended fiction as a vital vehicle for empathy. If we have permission to write only about our own personal experience, there is no fiction, but only memoir. Honestly, my thesis seemed so self-evident that I’d worried the speech would be bland.

Nope — not in the topsy-turvy universe of identity politics.

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It appeared to be an outrageous story. Cops beating a 15-year-old girl who may have been hurt by a car in an accident, but refused treatment. So they beat her, arrested her, pepper sprayed her. Outrageous!

Except the story told wasn’t the story.  The Daily Beast broke the outrage. Boing Boing repeated it.

When a teenage girl riding her bike collided with a car, cops didn’t simply take her to the hospital but instead handcuffed her, pepper sprayed her, and threw her in the back of their squad car.

Certainly sounds outrageous.

Body camera footage released by the Hagerstown Police shows the girl refusing to go with polic before an officer grabs her backpack. Then she is handcuffed and pushed against a brick wall while bystanders gather. “You let that badge go to your head,” one onlooker tells an officer. Continue reading →

William Barber II, President of the North Carolina NAACP, is certainly positioned well to address what is happening in Charlotte following the killing of Keith Lamont Scott.  It’s no surprise, therefore, that the New York Times has published his op-ed.  It’s also no surprise that Barber has some very thoughtful and thought-provoking thoughts about the protests and riots happening.

Since a police officer shot and killed Keith Lamont Scott in Charlotte, N.C., on Tuesday afternoon, the ensuing protests have dominated national news. Provocateurs who attacked police officers and looted stores made headlines. Gov. Pat McCrory declared a state of emergency, and the National Guard joined police officers in riot gear, making the Queen City look like a war zone.

War zone is an apt description, and one that no one should take lightly. But in his zeal to make his point, Barber indulges in a logical fallacy that has become shockingly commonplace.

Speaking on the campaign trail in Pittsburgh on Thursday, Donald J. Trump offered a grave assessment: “Our country looks bad to the world, especially when we are supposed to be the world’s leader. How can we lead when we can’t even control our own cities?” Mr. Trump seems to want Americans to believe, as Representative Robert Pittenger, a Republican whose district includes areas in Charlotte, told the BBC, that black protesters in the city “hate white people because white people are successful and they’re not.”

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In contrast to the trend on campus, at the demand of the Department of Education’s Office of Civil Rights, of conflating intoxication with incapacity, the United States Navy-Marine Corps Court of Criminal Appeals, in an opinion by Commander Aaron Rugh, spells it out clearly:

We also emphasize here that the definition of impairment was not nearly as important as informing the members that the impairment must rise to the level of rendering LCpl H “incapable of consenting”—meaning that she was deprived of “the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make [or] to communicate a decision” regarding that conduct to another person. Pease, 74 M.J. at 770.

This is a critical distinction that has been almost entirely lost by those contending that any use of alcohol or drugs vitiates the ability to consent.

Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril. Continue reading →

In New York City, a peculiar relationship has long existed between tenants and landlords. There is good and bad on both sides, but they need each other.  There are horror stories about neglectful and abusive landlords, and they’re true. There are horror stories about tenants destroying apartments. As one landlord explained to me, “I don’t take a shit in the hallways of my buildings.” And then there is the most common, most pedestrian of issues, non-payment of rent.

In most places, the payment of rent in exchange for the occupation of an apartment is a pretty acceptable quid pro quo. Not so much in the poorer neighborhoods of New York. When tenants fail to pay rent, often for many months, it raises a new question: what reasons can a tenant offer for their non-payment? New York City has robust protections for tenants, far beyond what a lease provides, as a result of some of the horrific conduct perpetrated by slumlords and disreputable landlords.

The New York Times, in its neo-typically breathless fashion, describes the asymmetry of resolving landlord/tenant disputes. Continue reading →

In 2009, the National Academy of Science put out a report, “Strengthening Forensic Science in the United States: A Path Forward.”  The TL;dr was trust nothing. It was all bullshit.

Forensic evidence is often offered in criminal prosecutions and civil litigation to support conclusions about individualization — in other words, to “match” a piece of evidence to a particular person, weapon, or other source. But with the exception of nuclear DNA analysis, the report says, no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.

Following this monumental announcement from this most trusted of sources . . . nothing happened.  Why is hard to say, but the upshot is that a few of us got excited, while the bulk of our nation, not to mention the Supreme Court, continued to love the cute doggies.

It wasn’t that there was “the problem” with forensic science, but a laundry list, from untrustworthy labs, dedicated to creating the veneer of looking official as they returned the result prosecutors needed, from grossly misrepresented accuracy (“to a reasonable degree of scientific certainty, the defendant is GUILTY, GUILTY, GUILTY!!!”), to well-intentioned but deeply flawed pseudo-scientific assumptions represented as actual science, to absolute nonsensical snake oil that had no scientific basis whatsoever. Continue reading →

On October 1, a North Carolina law limiting the release of video of police goes into effect.

Under HB 972, also known as the “Body Cam” bill, recordings from body- or dashboard-mounted cameras can only be released to the public through a court order, instead of via a public records request. Those captured on police audio or video can ask to hear or watch the footage, though authorities can deny that request pending a judge compelling them to comply. Release of recordings to prosecutors would be permitted.

The purported rationale is that it protects the privacy of not only police, but suspects, victims and witnesses. Damn thoughtful of Gov. Pat McCrory to be so concerned with the privacy of defendants. Too bad that nobody’s buying.

But October 1st is more than a week away, and at the moment, Charlotte is burning.  Tulsa figured out how to address the loss of trust and faith in its police. Continue reading →

Off the radar of most people is a thrust to create a federal law enforcement presence in making the internet “safe,” and that includes putting the FBI on the job. Rep. Katherine Clark (D-MA) has introduced a bill to require the FBI to track “cybercrimes” and figure out how to win the “war” against them:

Under the new law, the FBI would add “cybercrimes against individuals” – online stalking, harassment, and threats – to its main crime reporting systems. The attorney general would release an annual summary of the cybercrime data, and the Department of Justice would have to come up with a national strategy for reducing these online crimes.

Clark’s rationale is rather unsophisticated:

“If the FBI can provide data on murders and robberies and arson, they should also be able to collect data on the number of cyberstalkings and any other cybercrimes against an individual,” Ms. Clark told Passcode.

There is a rather obvious difference between murders, robberies and arson, and cyberstalking, of course. The former crimes are well-defined. The former crimes don’t implicate constitutional rights. This eludes the good representative, perhaps because of the voices whispering in her ear. Continue reading →

Our resident prosecutor, Delaware County, Ohio, assistant prosecuting attorney Andrew King gave me an elbow to the ribs the other day.

It is probably no surprise that here, at Fault Lines, there is not a lot of support for civil forfeiture.  It might have something to do with the criminal defense bias.

He’s right, and wrong.  The concept of Fault Lines is to have all legitimate voices in the criminal justice system heard. That means the voices that make you feel all warm and fuzzy, as well as those that infuriate you. Elsewhere, you find validation. At Fault Lines, leave your confirmation bias at the door. This is meant to be real, whether you agree with it or not.

But I added a footnote to Andrew’s post (because I’m the managing editor and have the keys to the backdoor). Continue reading →

The sensibility was captured when Elie Mystal offered his reaction to the inevitable calls for “calm.”

F*ck calm.

What we know with certainty is that three black males, one a 13-year-old, are dead.

But don’t tell me to be calm. Calm is off the table.

When last I asked Elie about such things, he made a point worth repeating. He’s placed himself in the position of the white man’s black friend, writing at Above The Law at a time when bad things are happening. His audience is comprised of white Biglaw wannabes whose primary interest is what their firm’s bonus will be, or insipid SJW whiners seeking comfort from their deep fear of personal inadequacy.  Yet there he is, trying to explain what is happening because he’s the designated black guy, double Harvard notwithstanding. Continue reading →