It’s been less than inspirational to see Mario’s little boy, Andy, trying desperately to keep up with California’s Governor Brown in trying to pander to the tough-on-crime and neo-feminists at the same time.  Why can’t New York be leader on the road to perdition, Andy?  Oh right, because someone has to tip you off as to which progressive concerns are at the top of today’s agenda.

But in his rush to prove Berkeley isn’t the center of the universe of crazy, did New York Governor Andrew Cuomo, in his excess of zeal to win the hurt hearts of neo-feminists, take it a step too far?

A law signed by Governor Andrew Cuomo last month allocates $4.5 million for what officials have said is a first-in-the-nation police unit that will train college officials and local police units to respond better to sexual assaults on campus.

The law, which has been touted as the most progressive in the country, also requires all colleges in the state to implement a uniform definition of affirmative consent, distribute a students’ bill of rights and adopt a policy that grants victims immunity for drug and alcohol violations.

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Who said this?

Likewise, technology can now drive and facilitate business development in a way it previously hasn’t – using data analytics to help firms best position themselves in a hyper-competitive environment.

A.  A Y Combinator alumnus.

B. A successful entrepreneur in the legal space.

C. A person in charge of legal news and commentary.

D. A lawyer.

E.  All of the above.

It was David Perla, the president of Bloomberg BNA Legal. Continue reading →

Before the day was out, the acquittal of the senior at St. Paul’s school of the charge of rape was “explained” by Mark Joseph Stern at the Slate XX Factor. No, Stern is not a lawyer. No, Stern has never tried a case, never debriefed a jury after a verdict. No, Stern is not responsible for having any substantive knowledge of the subject of his post, but that doesn’t preclude him from punditry.

This is America, and anyone with a soapbox is entitled to tell others about things they know nothing about.

I avoided using the name of the male senior, because after the verdict, should he be acquitted, he would remain innocent and should be able to go through the rest of his life without the taint of this charge. It was, of course, silly of me. After all, his name was smeared across the media, and he will forever be known for this charge.  That was under the best of circumstances.

The name of his accuser, on the other hand, is a closely-held secret. Purported victims shouldn’t be tainted. Fair enough. Neither should the innocent accused, which is every accused until they’re convicted, but nobody gives a damn. Continue reading →

There are two surprising bits in this story from the Waco Trib.

A visiting judge ruled Monday that authorities had sufficient probable cause to arrest a pistol-packing chaplain for the Bandidos motorcycle group.

Lawrence Yager, a 65-year-old minister from Buda who said he is chaplain for the Bandidos and two veterans groups, at his Monday examining trial challenged the authority under which he was arrested after the May 17 Twin Peaks shootout.

The first is that the Bandidos motorcycle club has a chaplain.  It’s not so much that the club may indulge, on rare occasion, in activities that could possibly be considered contrary to religious teachings. Motorcycle clubs can do that sometimes.  Especially when the club picked the name “Bandidos” to capture its essence.

It’s that, well, the devotion to the deity of choice is really kinda sweet.  And perhaps, given some of the things they are accused of doing, it’s a wise choice to keep a channel to the Lord as close at hand as possible. Continue reading →

Among the very small world of established and credible legal pundits, three women stood at the pinnacle:  Linda Greenhouse, Dahlia Lithwick and Emily Bazelon. They earned their cred from years of hard work, honest writing and legal acumen. But like any other pundit, regardless of gender, their credibility is at risk when they trade off their politics for their integrity. Today is Bazelon’s turn to fall.

The case is a difficult one, still on trial and hotly contested, dealing with terrible allegations of rape at the private prep school, St. Paul’s.  The alleged victim says she was raped by a senior.  The senior denies they engaged in sex. Bazelon will have none of it.

The dispute is a familiar-enough scenario for a rape case. But the fact that it has gone to court is also relatively unusual for a reason that may seem surprising: Labrie’s guilt or innocence hinges on the question of consent. This is much less common than you might assume — in fact, in many states, Labrie probably would not face felony charges of sexual assault at all. (Emphasis added.)

This premise, upon which the balance of her commentary relies, is not merely wrong, but a deliberate distortion, a lie if you will.  As already noted, consent has nothing whatsoever to do with anything in this trial. He testified that he did not have sex with her, consent or not. Continue reading →

The headline is misleading, but definitely catchy:

Porn-Sniffing Dog Helped Bring Down Subway Star Jared Fogle.

No, dogs cannot smell porn. Not kiddie porn. Not adult porn. Not lawful or unlawful porn. Not porn at all.   A $5 footlong, sure, but pretty much anyone can smell that, not that they necessarily want to unless they’ve made millions off them.

Yet, apparently, dogs (Labradors in particular) can be trained to sniff out data storage devices. Whoda thunk?

A rambunctious black Labrador named Bear — one of only five dogs in the nation trained to sniff out electronic data devices — played a key role in thearrest of former Subway pitchman Jared Fogle on child-porn charges.

The 2-year-old rescue pooch nosed out a thumb drive that humans had failed to find during a search of Fogle’s Indiana house in July, several weeks before he agreed to plead guilty to having X-rated images of minors and paying to have sex with teenage girls.

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The email from a young colleague seemed sufficiently emphatic:

I really need to speak with you now. When are you available for a call?

I made myself available, and responded immediately.

I’m here. Call me now.

As I spent the next ten minutes twiddling my thumbs, one eye on the silent phone, I started to burn. I had things to do, but when there’s an emergency, I do what I have to do to help. I sat there. I sat there some more. Finally the phone rang, and I grabbed it. It was some guy’s robo voice congratulating me for having been selected to get a business loan. Well, that was sure worth my having blown ten minutes of my life.

About an hour later, I got another email from the same colleague: Continue reading →

The first sentence of the article started that twitch that happens when it presages bad things to come.

In response to alarming statistics indicating that sexual violence is widespread at colleges and universities—and growing pressure from activists to do something about it—the Obama administration’s Department of Education has taken aggressive steps to enforce Title IX of the Education Amendments against sexual harassment and violence on campus. 

Oof.  I can’t even, to borrow a phrase.  But as the author, lawprof and former DoJ principal deputy assistant attorney general for civil rights, Sam Bagenstos, pointed out to me on the twitters where I was critical of the post, the article really wasn’t about statistics. He had a point. He accepted the basic premise that there was a rape epidemic happening, as his purpose wasn’t to debate its existence or depth.  That was merely a given in his article.

The point of Bagenstos’ article was that the fiasco that’s manifested in colleges nationwide applying the “suggestions” of the “dear colleague” letter from the Department of Education’s Office of Civil Rights wasn’t the government’s fault, but the outgrowth of a cottage industry of Title IX coordinators determined to milk the system for all its worth. Continue reading →

The judge found the “cover-up worse than the crime,” which would seem to lead to the inexorable conclusion that if one had to be punished to be deterred, she would pick the cover-up.  And that’s where Louisville, Kentucky Judge  Audra Eckerle seemed to be heading.

In a sometimes blistering ruling Tuesday, Jefferson Circuit Court Judge Audra Eckerle accused a prosecutor of intentionally withholding evidence and “secretly” trying to hide his tracks.

In her ruling, Eckerle maintained that the Commonwealth’s Attorney’s office excluded documents from evidence turned over to the defense, “secretly” shelved the subpoena saying how they had obtained the records and prejudiced Sandoval.

And Eckerle said while withholding the documents was bad enough, “the intentional dismantling of evidence and extraction of other documents that would have shown it was hiding other documents is even worse than the concealment of the medical records.”

Not just Brady, but the narrow and rarely used Mooney brand of intentional concealment.  The reason no one uses Mooney is that it’s nearly impossible to prove, and even if you do, judges almost never adopt it. It’s one thing to say that exculpatory evidence has not been disclosed, and another to lay blame on a prosecutor for intentional, malevolent concealment.  That’s a step too far, and the surest way to seize defeat from the jaws of victory. Continue reading →

Shon Hopwood was a freak of nature.  How he was capable of such astounding success as a jailhouse lawyer is a mystery, but he was.  And so to the clueless eye, this means jailhouse lawyers are saviors of the downtrodden prisoner. Yet again, the Marshall Project, the self-proclaimed savior of criminal law because no one else has ever bothered to write about it, dives into the cesspool.

In a post entitled, ‘For $12 of Commissary, He Got 10 Years Off His Sentence,’ itself a silly conflation of unrelated things typically used to create an impression designed to fool the unwary.  Or, had the outcome been different, as it is in 99.9% of the cases, “for $12 of commissary, he got squat.”

The post has two thrusts, an homage to jailhouse lawyers and debunking their “myth.”

What Everyone Gets Wrong

“There’s this story about prisoners constantly using lawsuits to complain about frivolous things,” says Meeropol. The image of the prisoner with too much time on his hands, filing one lawsuit after another, gained currency in the 1990s, and remains potent today. “Rikers Island inmates cost city big $$ with ‘frivolous’ lawsuits,” blared the New York Post(citing anonymous sources) in 2013. A San Diego paper ran a similar story that same year.

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