When they came up with the idea for a sex offender registry, tapping into the mythic fear of stranger danger to give the appearance of doing something to protect the public, at least legislators had what appeared to be a rational basis. Sure, it was nonsensical and played upon baseless fears that some guy was about to snatch, rape and murder your kid, when the truth was that Uncle Sam was far more likely a culprit.

But it made us feel safer, so we applauded.

And we immediately started the inevitable slide down the slippery slope of calling any offense remotely related to a sex organ a sex offense, requiring that people be put on the registry for the neighbors to see. If there were neighbors, since we enhanced the laws to limit their ability to live anywhere except under a bridge far from the rest of humanity. Continue reading →

Mayor Bill de Blasio’s Vision Zero initiative is a salve to the heartrending stories of tragedy on the streets of the City.  After all, any time someone gets hurt, there must be a criminal to pay.  Well, maybe not “any time,” as the New York Times explains:

The new law, which makes failure to yield a misdemeanor instead of a violation, has led to several arrests since it took effect last August. One was of a bus driver who struck a 15-year-old girl in Williamsburg, Brooklyn, last month, pinning her and severely injuring her leg.

The bus drivers’ union, taking the wrong message from the arrests, has angrily defended its members and thrown its support behind a misguided City Council bill that would exempt bus drivers from the law. It says drivers are being scapegoated as criminals and unfairly pressured to be both safe and on time — which is hard to do on streets choked with pedestrians jaywalking and flouting red lights.

Much as I lack a deep love for public sector unions, the bus drivers’ union has a really good point here.  And if they had a union, so would the cab drivers. And the uber drivers, if there were any. And every driver, for that matter. Continue reading →

Twitter is suffering from growing pains.  Sure, it seemed like a ridiculous idea when it first launched, but as it turned out, it wasn’t. Not by a long shot.  Why remains something of a mystery to me, but then, who cares what I think. Old guys are certainly not the barometer of new technology.

But then, we’re not entirely out of the loop either.  That Twitter had complaints coming in about the tone and content of some users has long been a known issue.  Per that bastion of deep thought, The Verge, it appears that Twitter’s CEO now admits the error of his ways and will take up arms to end it.

Twitter CEO Dick Costolo is taking personal responsibility for his platform’s chronic problems with harassment and abuse, telling employees that he is embarrassed for the company’s failures and would soon be taking stronger action to eliminate trolls. He said problems with trolls are driving away the company’s users. “We suck at dealing with abuse and trolls on the platform and we’ve sucked at it for years,” Costolo wrote in an internal memo obtained by The Verge. “It’s no secret and the rest of the world talks about it every day. We lose core user after core user by not addressing simple trolling issues that they face every day.”

Trolls are easy to spot. They’re the people who annoy us. Then again, we’re the people who annoy them.  But Costolo’s concern is for his “core users,” and he’s kind enough to tell us who they are: Continue reading →

You might think there is no way to rationalize a cop beating (not to mention poking a thumb into the eyeball of) a handcuffed suspect in an interrogation room. On video.  But, as Tim Cushing explains, you would be wrong.

A video which apparently shows a detective beating an unarmed, restrained man becomes a horrific incident in which a detective bravely survives a potential beating at the hands of an unarmed, restrained man.

A juror from the trial said a defense expert’s frame-by-frame examination of the incident’s key moments put things in a different light and convinced jurors that Gomez reasonably believed he was in danger and used only the force necessary to establish control over Deron Love, a suspect in the death of his infant son.

“We were able to convince the last juror, reluctantly, that still frame by still frame Gomez’s last three closed fist windups became open palm motions to control Love’s arms, and his final leg strike misses the mark.”

Gardner said the expert’s explanation, while moving single frames from the video back and forth in a slide show, helped convince jurors that Love was resisting Gomez’s commands to sit down or relax his body, even if Love didn’t actively fight back.

Continue reading →

When the ACLU prevailed in National Socialist Party of America v. Village of Skokie in 1977, it was to make a point that the protection of the First Amendment was for unpopular speech. After all, popular speech needed no protection. It was not to say that the speech was worthwhile, or acceptable, or even okay with them. But it was speech, and that was reason enough for it to be protected.

Now, some frat boys from SAE at the University of Oklahoma have disgraced themselves.  It was caught on video and published, and the President of the University, David Boren, has expelled two students and threatened to shutter the fraternity, condemning the speech as creating a hostile educational environment.  More sanctions may be coming.

On the one hand, this couldn’t have happened to a nicer bunch of guys.  Post hoc explanations that they didn’t really mean it, aren’t really racists, don’t make it okay.  There are lines one doesn’t cross, even in jest, and “only kidding” is so utterly inadequate as to offend again. There are no jokes to be had here.

And that’s what’s making people’s heads explode, because what happened here was so offensive, so unbearable, that there must be a way to punish it.  And, indeed there is.  Let the students who engaged in this speech be held accountable for it.  The video is there for all to see who at the University of Oklahoma would do such a thing.  Continue reading →

Much confusion surrounds the killing of 19-year-old Tony Robinson in Madison, Wisconsin. Two things appear certain: he was shot and killed by Police Officer Matt Kenny, and he was unarmed. Beyond that, the narrative is vague.

According to the Twin Cities Pioneer Press, the officer, Matt Kenny, radioed in that he was going to check on the upstairs apartment just 20 seconds before the shooting.  Police say they received a call about a man, identified to them by dispatchers as Robinson, who had allegedly hit one of his friends and tried to strangle another person. Dispatchers reportedly told police no weapons were reported. Robinson was alone in the upstairs apartment, and police acknowledge he was unarmed when he was fatally shot. 

The specific justification for the shooting offered by Kenny was that Robinson “assaulted” him. The word “assaulted” is conclusory; we don’t know what Robinson actually did, but just that Kenny claims that he was assaulted. It fails to tell us enough to begin to comprehend what an unarmed Robinson did to cause Kenny to fire. Continue reading →

Following the egregious misconduct of Kern County prosecutor Robert Murray, where he inserted a fabricated two-line confession in an interrogation transcript, resulting in the dismissal of charges against the defendant and not much else, Glenn Reynolds raised the age-old question of what to do about prosecutorial misconduct in USA Today.

Our criminal justice system depends on honesty. It’s also based on the principle that people who do wrong should be punished. Prosecutors, however, often avoid any consequences for their misbehavior, even when it is repeated.

Worse yet, prosecutors are also immune from civil suit, under a Supreme Court-created doctrine called “absolute immunity” that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won’t punish prosecutors, and victims of prosecutors’ wrongdoing can’t even sue them for damages.

That leaves courts without much else to do besides throwing out charges in cases of outrageous misconduct. But if we care about seeing the law enforced fairly and honestly, we need more accountability.

Well, yeah, sure. We need more accountability. And rainbows. And unicorns. And people giving a damn. And rainbows. This is well-worn turf, and Reynolds is, of course, right, but pointing toward government to fix the problem moves us no closer to accountability, largely because the incentives that move government are strongly against fixing the problem, and government has already made the choice not to fix the problem.

Nearly 35 years ago, the U.S. Supreme Court ruled that prosecutors cannot face civil lawsuits over how they handle criminal cases in court, no matter how serious or obvious the abuses. Since then, courts have further limited the circumstances under which prosecutors — or their bosses — can be sued for civil rights violations.

Prosecutors have absolute immunity for whatever they do, no matter how wrong, in their prosecutorial function. As Reynolds correctly notes, this was judicial activism at its best, a policy decision that it was better that prosecutors not be “gun-shy” for fear of being sued than that there be accountability for misconduct.

The alternative option, according to the Supremes, was that judges sanction prosecutors for misconduct and/or they be subject to attorney discipline.  The problem, of course, was that neither of these things happen, and there is no way to make them happen. It’s neither the defense lawyer’s nor the “people’s” call to make, except to the extent of electing judges who would do so. Instead, we elect judges who are endorsed by the local police union.

At A Public Defender, Gideon runs through the “viable options” available to deal with prosecutorial misconduct. While viewed from the Connecticut-centric perspective, they’re pretty much the same as always, with the same problems as always.  Mostly, they just don’t happen and we can’t make them happen. The options rely on other people providing the solution.

Yet, Gid raises one point that is within our grasp.

Defense attorneys proffer the same reasons – “I have to work with this prosecutor; I have a private practice; I have to think about my clients”. They are, to some extent, legitimate. Private attorneys do have a business to run and they have to make their income somehow. They certainly don’t want to be alienating prosecutors who they have to deal with regularly.

That he couches this option in terms of private lawyers having to “make this income somehow” reflects a bit of public defender snark. Private lawyers, like public defenders, have to go back to the same prosecutor’s office on the next case, and the next, and hope that the exercise of prosecutorial discretion won’t be used as pay-back for animosity generated by the last case. File a grievance against a prosecutor and, even if proven right, the fear is that other prosecutors in the office will exact a price for the hubris.

As noble as it may be to grieve a prosecutor in the case of defendant A, it’s ignoble to put defendant B’s plea offer at risk in return, as we don’t trade off the life of one person for the life of another. Given the breadth of prosecutorial discretion, there is no way to account for payback or to challenge it.

Yet, this is the only piece within the control of defense counsel.  One solution was tried by the NYSACDL when it created a prosecutorial misconduct grievance committee, to whom members could go with their grievances and, if the committee agreed, would assume the role of grieving against the prosecutor and raise the grievance with the disciplinary committee.

In its first outing, against then-Westchester District Attorney Jeanine Pirro, whose only prosecutorial skill was getting elected and giving press conferences replete with outrageous representations against defendants, the committee’s complaint received a huge yawn. The disciplinary committee responded, “nah,” and that was that.

While Reynolds and Gideon are obviously right in saying that the system lacks accountability, and that a system lacking in accountability of its prosecutors is a system without any assurance of integrity, we’re no further down the road of achieving accountability than we’ve ever been.

In the case of Robert Murray, dismissal of charges against the defendant resolves one side of the equation. The defendant was the direct victim of his fabrication of a confession, and the need for deterrence of prosecutorial misconduct trumps the concern that he was guilty and will walk.  Mind you, this isn’t exactly good for society, as the potential criminal goes unpunished because the prosecutor was outrageously dishonest.

And yet, it’s also not good for society as the outrageously dishonest prosecutor remains a prosecutor, remains a lawyer, remains in his job, so he can do it again. The most obvious, and likely effective, means of addressing this would be the judge treating prosecutors with the same expectation of integrity and honesty as the defense lawyer, but that doesn’t happen.

It’s unsatisfying to say, because we can’t force a judge to do his job even when it’s unpleasant and may require him to take harsh action against a prosecutor pal or (former) team member, but of all the bad options available, this seems to be the one most amenable to change. Plus, to the extent judges are elected, the one most easily subject to the will of the people.

So what are the chances it will happen?  As the Second Department Disciplinary Committee said to the NYSACDL prosecutorial grievance committee, “nah.”

One of the saddest realizations that comes of spending time online is that there are a lot of really sick, disgusting people out there.  I mean, a lot more than I ever suspected before the internet.

Sure, we always knew there were sick people out there, but they weren’t in our faces. And they weren’t able to find each other easily, which meant they didn’t have the support and comfort of knowing that they weren’t alone in their embrace of whatever warped thing turned them on.

But then, what protects the rest of us from suffering their pleasure?  Adrian Chen at Wired gives us a view into the perverse world of content moderation.

As social media connects more people more intimately than ever before, companies have been confronted with the Grandma Problem: Now that grandparents routinely use services like Facebook to connect with their kids and grandkids, they are potentially exposed to the Internet’s panoply of jerks, racists, creeps, criminals, and bullies. They won’t continue to log on if they find their family photos sandwiched between a gruesome Russian highway accident and a hardcore porn video.

Continue reading →

A third-party op-ed made it to the surface at the Times of Israel, written by a woman named Dinah Goldstein.*  Meet Dinah:

The op-ed was quite special, as the Advice Goddess, Amy Alkon, noted:

What Idiot Thinks We’re Safer And Better Off Having No Idea What Other People Think? 

Somebody said this at a recent dinner for FIRE that I went to. And they’re right. As I put the same idea, “Why would anyone think we’re safer if ugly views are shoved underground? They’re still there. We just can’t see or debate them.”

Amy includes a quote from the op-ed, though in fairness, pretty much any quote from the op-ed would have done the trick: Continue reading →

The BBC headline is a laugh riot:

Finland: Speeding millionaire gets 54,000-euro fine

For those of you who aren’t up on your euro to dollars conversion, that would be a fine of $58,554.90.  Nuts?

Finland’s speeding fines are linked to income, with penalties calculated on daily earnings, meaning high earners get hit with bigger penalties for breaking the law. So, when businessman Reima Kuisla was caught doing 103km/h (64mph) in an area where the speed limit is 80km/h (50mph), authorities turned to his 2013 tax return.

The real issue here is whether penalties, like taxes, should be progressive or regressive, and the question takes on particular significance following the disclosures of punitive fines in Ferguson.  A fine of a few hundred dollars is chump change to a guy who can whip out his wallet and pay it, but it’s a king’s ransom to someone living hand to mouth. Or worse. Continue reading →