In response to a question as to the seriousness of the problems with campus rape adjudications, FIRE’s Joe Cohn responded that anything said could be used against the accused in a subsequent criminal prosecution. The 5th Amendment problem, that the defense in campus disciplinary proceedings required the abridgement of the right not to bear witness against oneself.

While true, it was neither a strong point nor remotely sufficient. After all, the natural assumption is only the guilty need to invoke it, and, well, it’s an inchoate problem.  There was no mention of the natural consequences that flow from a wrongful “conviction.”  There was no point made that this is only administrative in name rather than consequence.

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Lawprof Doug Berman immediately saw the problem.

New Justice Department sound and fury about white-collar prosecutions signifying….?

Deputy Attorney General Sally Yates took to the podium to make one of the silliest announcements ever by the Department of Justice, that a memo had issued to instruct their various divisions that it would now hold individuals “accountable” for crime.

No, she didn’t say some United States Attorney indicted anyone. Not someone from a big bank, or a major brokerage house. No one.  Rather, this was to announce that the DoJ has figured out that it need only say that it was going to do something rather than actually doing something. Continue reading →

Having chosen not to write the obligatory 9/11 mush for my own reasons, that opens the door to discussion of what this ancient history means for those who suffer the problematic, traumatic oppression today on college campuses.

After all, when one juxtaposes 9/11 with micro-aggressions, one can certainly understand why the former has faded from memory while the latter is crushing their very soul.

While the video may try to make more of students’ gestalt than it’s due, the fact is that 9/11, like all historical tragedies, has faded from reality to myth in the minds of college students.  This is as it should be.  Continue reading →

We’re past the proof of concept part of the shiny death of the great American pleasure of cruising down the highway, top down, wind in your hair.  Route 66 is closed. Instead, we can sit there like uninvolved blobs, because that’s what shiny-lovers really want out of toys so they can check their text messages instead.

Cool future? Maybe not. As Karl Bode at Techdirt explains:

As Google, Tesla, Volvo, and other companies make great strides with their self-driving car technology, we’ve started moving past questions about whether the technology will work, and started digging into the ethics of how it should work.

Wait, what?  Are you saying it’s not just groovy technology making our life even more tech-tastic? Continue reading →

In the back of fair-minded people’s heads, there’s a bug that whispers that the law should provide a remedy for things that are wrong. It’s only fair. And to a large extent, the law does, but one of the biggest cracks in the system surrounds wrongs committed by federal prosecutors.

Sure, the prosecutors have immunity so they can prosecute criminals without fear of being sued, which does little to stem misconduct, abuse and concealment of exculpatory evidence used to convict the innocent and guilty alike. But the courts have chosen to side with the poor prosecutors and they’re sticking with their narrative.

Yet, there is no rationale to justify why prosecutors should be entitled to issue press releases that are flagrantly false and defamatory. Indeed, issuing press releases alone emits an unpleasant odor, but to be able to lie and defame?

Former InterMune CEO W. Scott Harkonen demanded correction of a press release issued by the FBI and United States Attorney announcing his conviction for wire fraud, that also announced that he lied to the public about the effectiveness of his company’s drug. While the former was true, the latter was entirely false.  So Harkonen sought to have the government correct its release, withdraw its release, unring the bell of their lie. Continue reading →

Third time’s the charm?  Senior United States District Judge Richard G. Kopf has twice quit blogging at Hercules and the umpire, but that doesn’t mean his belief in judicial transparency is over.  Judge Kopf returns today to Fault Lines with his post, Why Do Federal Judges Send Criminals To Prison?

We (Lee Pacchia and I, not the royal “we”) couldn’t be more thrilled than to have the judge back in the saddle.  No one has brought more humanity to the judiciary than Judge Kopf.  No one has offered a more enlightening peek under the robe.  And in keeping with our ideal of providing real insight from people who know what they’re talking about, this is about as real as it gets.

And the good judge takes praise and a punch with equanimity. Not bad for a guy confirmed by the Senate for life. Welcome back, Judge. We missed you.

And as if this wasn’t enough. Fault Lines is thrilled to welcome three new contributors to the cause of keeping it real. Continue reading →

Whether it’s a problem of false equivalencies or just that any “rebel” given an official title quickly becomes co-opted into the machinery of government, another officious cog in the wheel, isn’t clear. But Richard Emory, chair of New York City’s Civilian Complaint Review Board, one-time challenger of police misconduct, is now just another apologist.

The good news is that the pervasive existence of video capturing police encounters with citizens has fundamentally altered the role of the CCRB.

More and more NYPD misconduct is being caught on video — making substantiating complaints a cakewalk for the city’s Civilian Complaint Review Board, the agency’s head said Monday.

“Video is a fundamental revolution when it comes to the accountability of police officers,” CCRB Chairman Richard Emery told the Daily News. “It’s demystifying the whole investigative process. No longer is the lion’s share of the cases ‘he said, she said’ where additional corroboration is almost always required and substantiation is quite difficult.”

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A clarion call is sounded by the New York Times editorial declaring that the banishment of “sex offenders” is pointless.

It’s a chilling image: the sex predator skulking in the shadows of a swing set, waiting to snatch a vulnerable child.

Every call to action begins with a horrifying scenario that just cannot be allowed to continue anymore.

Over the past two decades, that scenario has led to a wave of laws around the country restricting where people convicted of sex offenses may live — in many cases, no closer than 2,500 feet from schools, playgrounds, parks or other areas where children gather. In some places, these “predator-free zones” put an entire town or county off limits, sometimes for life, even for those whose offenses had nothing to do with children.

Why, yes. That’s kinda right, as is this. Continue reading →

And you wonder why people are confused?  New York’s former police commissioner, Ray Kelly, justifying the brilliance of his tenure if not his concern for constitutional rights, blames the Ferguson Effect and Mayor de Blasio for the murder epidemic plaguing New York City and elsewhere.

Former Police Commissioner Raymond W. Kelly said last week that Mayor Bill de Blasio’s constraints on the stop-and-frisk strategy of the Bloomberg administration was to blame for the uptick in murders in New York City. Mr. Kelly also attributed the rise in homicides in other cities to a backlash to the killing last year of an unarmed black teenager by a white police officer in Ferguson, Mo.

“Murders are up,” he said in an interview in conjunction with the release of his memoir. “And if you have a propensity to carry a gun and there’s a policy to de-emphasize stop and question and frisk, it’s only common sense you’ll see more people carrying guns and more crime.”

Well sure, alarms immediately go off when Kelly relies on “common sense” as the basis for his claim. But the appeal to common sense still plays well in Peoria and Staten Island, so why not? Continue reading →

As regular readers of SJ know, I bring up H.L. Mencken a lot around here. His “complex problems” quote is one of my favorites. The law is replete with complex problems, even if you don’t understand why. The less you know, the simpler the problem appears.

One of my roommates in college, a math major, came home from a lecture bursting to tell me what he learned:

A guy buys a barometer from Sears, he explained, and took it home to his house on the ocean. It didn’t work right, so he went back to Sears and complained. The guy at Sears listened intently, asked questions, and nodded his head. He then explained that his field team would fix the problem. When the purchaser returned home, he found his house demolished.  Outraged, he called the guy from Sears, who responded calmly, “well, you had a problem and now it’s fixed.”

Higher math. It’s not always satisfying.  Which gives rise to a common retort when flaws in the system, usually combined with typically simplistic answers, are subject to discussion. Continue reading →