The cool new law show last year was Serial.  As season two opened, focusing on the case of Army deserter, Bowe Bergdahl, the anticipation was that Serial would again capture the American psyche.  Ironically, after the breakout success of season one, I got calls from some very big “interested parties” hoping I could feed them the next Serial, the case where they could spin the innocent, wrongly convicted defendant into their own smash hit. I declined.

Of course, Serial fizzled, another one-hit wonder. I cried no tears over it, even though Ken Womble and I took opposite views of its utility in making Americans more knowledgeable.  Ken argued that by providing a vast quantity of information about the criminal justice system, people couldn’t help but benefit from listening to Serial.

My view was that information, without understanding and context, was overrated. People would believe they understood the system, but they would be wrong. Worse, they would believe so strongly that they couldn’t be told otherwise.  They would be both ignorant and certain, a toxic combination.

Ken did have one compelling point, however. Serial was the first viral opportunity in a long time that made people think, long and hard, about the system and its flaws. Continue reading →

It’s one of those head-shaking moments as the question inevitably gets posed: whether Sandra Bland was legally entitled to continue smoking her cigarette, despite Trooper Brian Encinia’s “request” that she put it out.  It’s the sort of monumentally stupid parsing of details in which naïve people indulge. Do you really think it’s worthwhile to argue your rights from the grave?

The problem is on the other side of the equation, in the training, formal and around coffee and donuts, and law, that police officers must seize control of all situations lest they end up harmed.  This gap in compliance, not doing what the officer commands, even when his words are framed politely, can end up badly for the person on the business end of his gun. Yes, we have rights. Yes, those rights can be ignored, wrongly, by a police officer. And yes, the law is deeply, irreconcilably, conflicted when it comes to who wins in a violent clash.

At a new blog by the Virtus Group, Chicago Police Officer Lou Hayes takes a hard look at this gap. He opens with an anecdote, of a confrontation with a bad dude that is going, well, well. Continue reading →

DeKalb County District Attorney Robert D. James Jr. announced that he will seek an indictment for felony murder against Police Officer Robert Olsen for the killing of Air Force veteran Anthony Hill.  Promising?

Officer Olsen’s conduct has been scrutinized since last March, when he was called to an apartment complex in Chamblee, northeast of Atlanta, and Mr. Hill approached and behaved erratically. Witnesses said that Mr. Hill, whose family said he had post-traumatic stress disorder after an Air Force deployment to Afghanistan, had raised his hands or placed them at his sides and that he did not obey Officer Olsen’s instructions to halt.

Hill allegedly lunged at Olsen. Olsen killed him.  There are sympathetic factors at play, that Hill was a veteran, suffered from PTSD, and was clearly unarmed. But no cop, current or former, will concede that it’s wrong to shoot and kill an erratic, non-compliant man who could potentially harm an officer. The First Rule of Policing.

They might agree that a cop could hopefully avoid the killing, but not that it would be wrong to do so.  Olsen chose his path, to kill Hill so he risked no harm.  He was not a therapist with a gun. Just a cop.  Once a threat was presented to his safety, even if disputed by witnesses because they just don’t understand the dangers police officers face, the entitlement to kill kicked in. Boom. One life ended. One life saved. That’s the cop version, and he’s sticking with it. Continue reading →

Once again, Fault Lines is ready to grow its writers.  While we’re looking for writers who bring experience, knowledge and excellent writing, we are also hoping to broaden our perspective of criminal law commentary to include other views than the criminal defense.  We would really appreciate more voices reflecting the cop’s view, the prosecutor’s view, the academic’s view and the judicial view.

Would you really like to write, but fear that you don’t have the bona fides to come aboard Fault Lines?  Toughen up, take a chance and give it a try.  We’ve got some great contributors, brilliant writers, who had no prior experience blogging, but with some mentoring have grown into must-read voices.

If you doubt me, ask any of the Fault Lines writers whether they feel they’ve grown as writers and lawyers.  More importantly, ask them whether they feel that their efforts have been worthwhile, and that they’ve been able to make a difference. If you’ve got the Force in you, I’ll wake it up. You can count on that. Continue reading →

Via Paul Caron at TaxProfBlog, the National Law Journal’s interview of the new American Association of Law Schools president, Kellye Testy, brings us the words so many law students and lawyers longed to hear:

NLJ: It seems that the phrase “law school crisis” has died down a bit, yet enrollments and bar passage rates are still declining. Do you think legal education is still in crisis mode?

KT: I don’t see legal education as being in crisis at all. What I do see is that there are a lot of crisis in our world that legal education can help address. That’s part of why I’m trying to help our academy look outward and talk about the great things our schools and our profession do around what I think of as real crisis: things like incredible inequality and poverty, and violence around our world.

There you go. There’s no crisis. None at all. Continue reading →

President Barack Obama went on the airwaves to explain why he had no choice but to assert executive action to “fix” the gun problem in America. He has added a New York Times op-ed to the mix.  To those who agree with his message, his tears, appeal to his background teaching constitutional law and plea for “common sense” were convincing. To those who did not agree, they were unpersuasive.

As letters poured in following the president’s television appearance, one thing became clear: those who support the Second Amendment’s right to keep and bear arms don’t trust the government, the president.  The government’s history of lying about its motives and ends makes it impossible to believe.

He rejected accusations that he wants to confiscate guns, calling that a ridiculous idea.

“Yes, it is a false notion that I believe is circulated either for political reasons or commercial reasons in order to prevent a coming together of people of good will” to solve the problem of gun violence, Mr. Obama told the audience and Anderson Cooper, who moderated the forum.

Continue reading →

The underlying case, Husain v. Springer, received less than universal support. At Volokh Conspiracy, Eugene wasn’t a fan.

What makes this a strange First Amendment case, of course, is that the newspaper wasn’t ordered to stop speaking. Nor was it threatened with loss of funding or any other tangible loss for not speaking. Rather, it was threatened with frustration of its purpose — “if you keep endorsing candidates, we’ll make sure that your endorsed candidates don’t get elected.”

I’m unaware of any First Amendment case that remotely reaches this sort of “chill[ing of] speech”; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment. This alone, it seems to me, should have led to the conclusion that the president enjoyed qualified immunity (something the Second Circuit did not conclude).

FIRE took a more generous view of the First Amendment rights at stake. Continue reading →

It’s unclear why Linda Greenhouse chose to give a constitutional quiz, but it serves well to remind us why the police owe us nothing.  Often, people will remark disparagingly why cop cars bear the marketing pitch, “To Protect And Serve,” and yet the police appear entitled to do neither.  While nothing precludes them from fulfilling these words, nothing requires them to do so either.  Most people find that shocking.

It stems from a Supreme Court decision from 1989, DeShaney v. Winnebago County Department of Social Services.  By a 6-3 decision, the opinion, written by Chief Justice William Rehnquist, took the most niggardly view of the government’s obligation to the people possible.

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

In DeShaney, a four-year-old boy was left comatose and brain damaged after he was beaten by his father.  The Winnebago County Department of Social Services knew of the alleged abuse, and chose to shrug it off, prompting Justice Harry Blackmun’s “Poor Joshua” dissent: Continue reading →

The head of the public defender’s office got an email with a modest request:

I am a Professor at the University of Pennsylvania Law School and I am writing to see whether you would be interested in collaborating on a research project aimed at improving plea bargain outcomes and reducing disparities.

In previous work, I have found evidence of substantial disparities in public defender outcomes, primarily due to differences in plea bargaining.  With this project, my colleague Megan Stevenson and I want to test a new tool that may improve plea bargain outcomes through the provision of more information to public defenders.

We have built a predictive tool that can estimate the range of potential case outcomes for a client based on certain characteristics (offense, criminal history, etc.).  We believe this tool may augment defender experience in deciding when to take a deal and when to push for a better one.  This could be particularly useful for defenders with less experience.  It could also help a defender demonstrate to a skeptical client that they are getting a good deal. Continue reading →

The days when it was socially acceptable for a male to try to seduce a female into a sexual liaison are long past. It ended with a campaign of “no means no,” such that a woman who responded with a clear “no” had fulfilled her part of the social interaction to communicate, clearly and decisively, that she did not consent to sexual contact.

Before those days, the social expectation was that a woman who wished not to be touched had to act to physically prevent the man from touching her.  He could try, and she could push back.  Even if she uttered words that made clear that she did not want to be touched, a physical manifestation was necessary.

After all, the male could try his damndest to convince her otherwise, even to the point of lying through his teeth.  That was the nature of “seduction” back then. It was an accepted part of the game played between a man who wanted to have sex and a woman who may or may not.  A woman might say no for a variety of reasons, from protecting her reputation to playing “hard to get,” when her “no” wasn’t really final.  Or maybe it was. How else would one know but to test her fortitude? Continue reading →