In the New York Times, Eric Lander, founding director of the Broad Institute of MIT and Harvard, provides a ringing condemnation of the use of forensic science in the courtroom.

As miscarriages of justice piled up, it became essential to understand precisely how the criminal justice system made such mistakes and how to prevent them. Troublingly, about a quarter of the cases examined by the Innocence Project (on whose board I now serve) involved forensic scientists who had erroneously claimed to identify defendants with near-certainty by matching hair samples, fibers, shoe prints or bite marks.

There were clearly fundamental problems with forensic science. A 2009 report by the National Research Council, an arm of the National Academies, found that apart from DNA testing, no forensic method had been rigorously shown to consistently and reliably demonstrate a connection between evidence and a specific person.

Or to put it more bluntly, we’ve rested our faith in crap, scientifically unproven and unjustifiable, because people dressed in expert suits took the witness stand, offered jargonized mumbo-jumbo in official sounding tones, and promised that they were right, because science. Continue reading →

 Boone County, Kentucky, Deputy Tyler Brockman was called to a party because people were having too much fun and must be stopped.  Brockman did his duty, and upon his arrival, a field party broke up and people began leaving.

Oh no. Not good enough. Brockman decided it was his job to stop the cars as they left to check if the party-goers were drunk.  No probable cause. No checkpoint, Just Brockman, because he is the paragon of sobriety.

Out drove 19-year-old Samantha Ramsey.  Brockman was not about to let that happen.

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Granted, most people aren’t particularly sympathetic to the problem of fabulously profitable multinational institutions being prosecuted. If anything, many demand to know why financial institutions haven’t been brought to their knees following the revelations of the housing meltdown, when it became obvious they were selling repackaged underwater mortgages as prime investments.  Where were the corporate heads that were supposed to roll?

At PrawfsBlawg, an explanation is offered:

To paraphrase, the problem is that many regulated firms are effectively judgment proof.  We may threaten sanctions against accounting firms that commit fraud, or chemical firms that dump waste into the river, or banks that swindle their counter-parties.  The problem is that the typical criminal sanction is too big, since indictment triggers a run on the firm by its employees, trading partners, and (eventually) creditors.  Prosecutors have therefore basically stopped indicting, leading to the rise of deferred-prosecution agreements.

Brings a tear to your eye, right?  This variation on too big to fail, too big to prosecute, reveals a political decision made in the basement of Main Justice that they don’t want another Arthur Andersen, an indictment of a huge firm that leads to its swift demise, the loss of thousand of jobs, huge disruption and loss of confidence in the stability of institutions.  If Arthur Andersen can collapse from an indictment, any big business could. Continue reading →

Shamelessly stolen, in toto, from Marco Randazza.  And New York, when the hell do you plan to enact an anti-SLAPP law?

Nevada Anti-SLAPP Law under attack

TRIGGER WARNING:  There’s something in here to offend everyone.

Q: What do you call 100 lawyers at the bottom of the ocean?

A: A good start.

Does that bother you? Most lawyers will say no, at least to the extent that they aren’t bothered by the fact that they’ve heard the joke a thousand times already. But there will be some who are offended, who believe that this diminishes our worth.  Bullshit. It’s a joke.

What if we replaced “lawyers” in the joke with, say, feminists or, God forbid, lesbians? Does it change from funny to unacceptable, outrageous?  The answer likely turns on your sensibilities.  If you feel deeply about the target of the joke, the joke becomes unfunny.

You can explain your reaction by wrapping it up in rhetoric about historical prejudice, insensitivity, anecdotes of horribles that happened to a suspect class, or just string together empty, meaningless words that convey some vague impression of butthurt, but ultimately it comes down to one undeniable point: you can’t take a joke. Continue reading →

They may be loud and boisterous on the streets, but in the hallways of the courthouse, they speak mostly in hushed tones.  Even tough street kids know better than to get too loud, attract too much attention, in the one place where their bluster won’t pay.  Courthouse hallways tend to be unnaturally calm.

When 22-year-old Anthony Jones was tossed out of a Philly courtroom for wearing a hat, he broke that calm.

The incident started about 11 a.m. last Friday, when a court crier in Courtroom 706 ordered Jones to remove his hat and then booted him out when he became upset, Sen said.

In the hallway, Jones yelled and cursed, and Sen hurried to defuse things, Hoy and Sen said. (Sen didn’t represent Jones, but her employer, the Defender Association of Philadelphia, did.)

Paula Sen was a public defender, who happened to be there as Jones got loud and angry.  Richard Hoy was an old-time lawyer, sitting on a hallway bench, watching the drama unfold.

Of Jones, Hoy said: “There was obviously something [mentally] wrong with him. But [the] PD [public defender] had him 75 percent calmed down.”

Continue reading →

PrawfsBlawg is ten years old.  It was already going strong when SJ was born, led by a law professor named Dan Markel who was murdered last year.  Even though I disagreed with Dan about many things, I respected him, and wrote about Dan’s ideas many times here.  But Prawfs lived on, and now it’s ten.

Most of you don’t read Prawfs.  It’s an academic blog, bogged down by the language, concerns and interests that are unique to the legal academy.  It’s not always thrilling, particularly for the non-lawyers, and it was often disturbing when the prawfs navel gazed in the weird vacuum of ivy towered self-indulgence.  It was especially frustrating when prawfs wrote about the value of their scholarship, or how the education of law students would die a brutal, painful death if law school wasn’t all about their law review articles and brilliant theory.

In the early days of SJ, I sought to bridge the gap between academic blogs and the practical blawgosphere, a phrase coined by Mark Bennett in a post that has apparently been lost to the ages.  At another law prof blog, Concurring Opinions, Dave Hoffman took a stroll on this bridge, but he never quite reached the other side.  Now, years later, we rarely see any cross-over. What once held the promise of synergy is now gone.

At the time, I tried desperately (likely too desperately) to chide the prawfs into engaging with practicing lawyers on real legal issues in real-life terms, rather than the sanitized theories that held the occasional kernel of truth expressed in words that were nearly incomprehensible to the practitioner’s ear.  Conflict erupted.  Lawprofs found it unbearable to have their babies called ugly.  Lawyers were incapable of using the mitigated language of the academy, murdering a thousand words to say nothing, and being far more concerned that no feelings were hurt than any ideas were clearly expressed. Continue reading →

The killing of Timothy Russell and Melissa Williams in a hail of 137 bullets at the end of a car chase gave rise to a generic question, why do car chases so often end with death, even after the chase is over?  But now that Cleveland Police Officer Michael Brelo is on trial for involuntary manslaughter, a new question is raised: why won’t the other cops present testify against him?

A seventh police officer invoked her Fifth Amendment right against self-incrimination Thursday in the voluntary manslaughter trial of fellow Cleveland officer Michael Brelo.

Officer Erin O’Donnell, who participated in the Nov. 29, 2012 police chase and shootings that resulted in charges against Brelo, entered the courtroom with her attorney, Mark Stanton. Prosecutors asked her if she had told investigators the “whole story” of what happened on the night of Nov. 29, 2012, at which point O’Donnell invoked her Fifth Amendment right.

The answer puts the question back in the court of the prosecutors, as it raises the question of why they didn’t indict the other officers as well, or why they won’t confer immunity on the witnesses, thus taking away their right to invoke the Fifth. Continue reading →

Jails have become de facto repositories for people suffering mental illness, both because there is nowhere else to warehouse them and, well, they tend to break laws because they lack the ability to control their conduct.

Sure, their conduct may be harmful, and those who are on the receiving end may well appreciate that there are means to deal with the harm, but most of us would concede they need help rather than punishment if public safety and rationality are the goals. Except in Fairfax County, Virginia, where the Sheriff, Stacey Kincaid, was far more concerned with the rat on her team who revealed how they killed 37-year-old Natasha McKenna.

Natasha McKenna initially cooperated with deputies, placed her hands through her cell door food slot and agreed to be handcuffed, the reports show. But McKenna, whose deteriorating mental state had caused Fairfax to seek help for her, then began trying to fight her way out of the cuffs, repeatedly screaming, “You promised you wouldn’t hurt me!” the reports show.

Then, six members of the Sheriff’s Emergency Response Team, dressed in white full-body biohazard suits and gas masks, arrived and placed a wildly struggling 130-pound McKenna into full restraints, their reports state. But when McKenna wouldn’t bend her knees so she could be placed into a wheeled restraint chair, a lieutenant delivered four 50,000-volt shocks from the Taser, enabling the other deputies to strap her into the chair, the reports show.

Continue reading →

When the New Yorker published the travesty of Kalief Browder, an innocent youth lost to a system that couldn’t have cared less about him, it made an impact on those whose job it’s supposed to be to prevent this from happening.  And after wringing their hands, they put together a scheme to make a rusty, broken machine run again.

The justice system plan announced this week by Mr. de Blasio and Judge Lippmann calls for judges to prioritize the cases of the 1,500 or so people who have been held for more than a year without being convicted. The goal is to resolve half of those cases within six months. Cases that cannot be disposed of by plea bargain will be assigned a fixed trial date.

Well, baby steps at least.  That there are 1500 people in custody for more than a year who are innocent is a problem, though not as much as it would be if they had been detained for three years, like Browder.  And they are innocent, because under our jurisprudence, everyone is innocent until they have been convicted.

And that number doesn’t touch those who are out on bail or their own recognizance, but laboring under the threat of conviction and imprisonment.  Think about applying for a new job with a monthly court appearance hanging over your head, not to mention trial should the day ever finally come, and, worse still, incarceration afterward.  Unsurprisingly, many employers are less than sympathetic to such circumstances. But I digress. Continue reading →