At Popehat, Ken White tells a story to show the distinction between the cynicism of belief that comes from having been told too many lies and taking defendant’s claims seriously enough to go through the effort of finding out whether they’re true.  It’s a curious point:

Just as prosecutors are captured by the system and its culture, so are defense attorneys. It is currently fashionable for defense attorneys to say “clients lie” and “most clients are guilty.” I wouldn’t agree with either proposition. Everybody lies; I don’t think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It’s just that criminal defense scenarios require a level of precision and accuracy that most human interactions don’t.

In his anecdote, his client swore he was innocent and set up.  Ken’s initial reaction to his client’s claims was disbelief.

Client swore to me the gun and drugs found in his dorm-room dresser weren’t his. He said that someone — perhaps his roommate? — must have planted them. Sure, I thought. A BPU student acquired a gun and hard drugs and decided to use them to frame some rando — a rando who was, perhaps, not completely unfamiliar with drug culture. That makes perfect sense.

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For the simplistic and overly emotional, issues are always easy.  But the person in charge of assigning dorm rooms at the University of Oklahoma is finding out that fortune cookie solutions aren’t nearly as easy to implement as they are to spout.

Amy Buchanan, director of marketing and communications for OU Housing and Food Services, emphasized the university’s commitment to its students.

“The University of Oklahoma is committed to providing a safe and comfortable living environment that enhances the overall learning experience of our students,” Buchanan said. “There may be some circumstances when a student’s success at the University of Oklahoma depends on the ability to live in a specific type of environment. Students who are concerned that they will be housed in a situation that could impact their personal development, ability to sleep and/or study at OU can apply for special consideration.”

That certainly sounds nice. Peace, love, happiness and, of course, accommodation. What could possibly go wrong? Continue reading →

The law loves science. It doesn’t really understand science, and certainly can’t tell valid science from junk, but it loves that it removes the human variable and shifts responsibility off of untrustworthy human sensibilities and onto something irrefutable. We want proof so that nagging sense that we could be wrong will be eliminated, and science gives us that.  All for $2, which is a pretty good deal.

Field testing for narcotics is an improvement over guessing, which was the way it was done before. Not perfect, but certainly better than leaving it up to a cop’s “training and experience.” And so, a test kit was developed that would fall far short of perfect, but better than “it looked like drugs to me.”

The test . . . involves dropping a suspected drug sample into a vial of cobalt thiocyanate, which is supposed to turn blue in the presence of cocaine. But as Gabrielson and Sanders note, “cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners.” That is not the only cause of false positives:

Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question—but if the officer breaks the tubes in the wrong order, that, too, can invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street—flashing police lights, sun glare, street lamps—often prevents officers from making the fine distinctions that could make the difference between an arrest and a release.

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Rookie NYPD cop Nicholas Batka was a drinker, and proud of it.

Batka’s Facebook page features more than a half-dozen photos of him posing with beer and booze. One of them, from 2013, shows him leaning over eight shots of booze, with the quip: “And all for me ;p.” He added: “it deff was a night to celebrate.”

A picture with the profile says: “Just because it’s a bad idea doesn’t mean it’s not going to be a good time.”

It’s all fun until it isn’t. The fun stopped when Batka, totally wasted, drove his SUV onto the sidewalk and hit four people, one of whom was a 21-year-old MIT student, Andrew Esquivel, in New York for a summer job.  Batka killed him.

Andrew Esquivel was walking home when he was fatally struck and three others were injured by Officer Nicholas Batka’s runaway SUV on a Williamsburg sidewalk at shortly after 3 a.m. Sunday.

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While not conclusive, Gavin Long appeared to believe that he was part of a budding revolution. After five cops were murdered in Dallas, Long, a former Marine, took gun in hand and killed three more in Baton Rouge.

On a social media site registered under the name Gavin Long, a young African-American man who refers to himself as “Cosmo” posted videos and podcasts and shared biographical and personal information that aligned with the information that the authorities had released, so far, about the gunman.

“One hundred percent of revolutions, of victims fighting their oppressors,” he said, “have been successful through fighting back, through bloodshed. Zero have been successful just over simply protesting. It doesn’t — it has never worked and it never will. You got to fight back. That’s the only way that a bully knows to quit.”

No one put Long in charge of the lives of other African Americans. No one told Micah Johnson, the Dallas killer, to make the decision for other black people. But they acted nonetheless. Whether it was the product of thoughtful analysis, unfettered emotion or cognitive impairment, or all, or other issues, it still happened. Continue reading →

Advocacy groups can be great. And suck. Even when they’re putatively on the same side of an issue, their “good intentions” may be as harmful as those opposing.  Some groups are well-established, and enjoy credibility among the public. Some were born yesterday and are comprised of three people and a dog. Some have highly qualified lawyers on staff. Some have people with neither skills nor knowledge, but tons of passion. Some have lawyers suffering from deep personal conflicts with the group’s goals.

Point these things out and everybody gets wildly offended. No matter how obvious or accurate, nothing pisses off the passionate advocate more than not validating them. So what? The problem became glaringly apparent with regard to the newly proposed federal revenge porn law. In the many reports on the proposal, the only opposition voice mentioned was that of the ACLU.

But the bill has its detractors.

The ACLU has voiced concerns that revenge porn legislation generally criminalizes “the sharing of nude images that people lawfully own,” and the group believes legislation preventing revenge porn should make it clear that the perpetrator intended to inflict harm on the victim.

On the one hand, at least they didn’t endorse the law outright. On the other hand, a tweak to the mens rea requirement barely scratches the surface of what renders this law flagrantly unconstitutional.  But doesn’t that say “detractors,” plural? Yeah, well, it does, but the only detractor mentioned was the ACLU, and the only “issue” raised was mens rea. Section 230? Nah. First Amendment? Meh. One little fix and we’re good to go, says the ACLU. Continue reading →

The only saving grace of the mistake was that he aimed, fired and missed the two boys.

A man was sleeping in his Palm Coast area home about 1:30 a.m. when a loud noise woke him up. The 37-year-old looked outside and spotted a white car parked in the road outside his Primrose Lane house, said Flagler County Sheriff’s Office Jim Troiano.

He grabbed his handgun and went outside to investigate. As he came up to the car, he overheard one of the two teens say “did you get anything?” Troiano said.

That’s when the man stepped in front of the vehicle, thinking they had possibly broken into his home, raised his gun and ordered them not to move, officials said.

They drove toward him in their “escape,” and thinking they were trying to strike him, he fired. Were they trying to rob his home? No. Were they trying to run him down? No. Then what were they doing? Continue reading →

It was a sheepish response to a mind-numbingly stupid headline:

We must stop killer trucks. We need sensible truck laws to get rid of assault trucks. https://t.co/5M8UbtQKSO

— Scott Greenfield (@ScottGreenfield) July 15, 2016

No, CBS News.* The truck didn’t attack anyone. The driver of the truck attacked.  So why the idiotic headline? It could be that they lacked sufficient information to put out an informed story. It could be that trying to thread the needle of political correctness left the truck as the easiest target to blame.  Every other description would offend someone, and it’s standard operating procedure these days to use the passive voice and euphemisms to describe events, so that no one is angered by accuracy. Think, “police involved shooting.”

And folks on the twitters immediately saw the irony. Continue reading →

Just because someone’s day job is to teach a college course doesn’t mean he isn’t entitled to have a political opinion and express it. Of course he is. This is America, and there is nothing more American than speaking one’s mind.* But what the academic cannot do is conflate their scholarly cred with their politics, and this shameless lie has become a staple of political advocacy.  Stanley Fish calls it out.

PROFESSORS are at it again, demonstrating in public how little they understand the responsibilities and limits of their profession.

On Monday a group calling itself Historians Against Trump published an “Open Letter to the American People.” The purpose of the letter, the historians tell us, is to warn against “Donald J. Trump’s candidacy and the exceptional challenges it poses to civil society.” They suggest that they are uniquely qualified to issue this warning because they “have a professional obligation as historians to share an understanding of the past upon which a better future may be built.”

Whether you love Trump or hate Trump is irrelevant, except to the extent that you willingly turn a blind eye to lies that work in your favor. Are historians singularly knowledgeable by dint of their degrees to raise concerns that non-historians can’t see? is this the moment to throw in George Santayana’s quote? Continue reading →

It’s been a very long time coming, with pronouncements as far back as 2014.

The war against “revenge porn” is about to enter Congress.

Rep. Jackie Speier, D-Calif., is preparing to introduce legislation to criminalize the non-consensual online dissemination of lewd content by jilted lovers and hackers, her office confirms to U.S. News.

Since then, crickets.  Until now. Given that it’s been years in the making, one might suspect that Speier would have come up with something really well-conceived, addressing the rampant unconstitutionality of what’s been proposed up to now. After all, there is only one reason, one, for the creation of a federal revenge porn crime. That is to overcome the safe harbor of Section 230 of the Communications Decency Act, that allowed the world wide web to exist.

Most websites hosting revenge porn, however, cannot be forced to remove the content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn’t violate federal copyright or criminal law. Continue reading →