- If tempted to idealize the U.K. justice system, be aware it was in a London court that Saudi millionaire beat rape charge by arguing that he “tripped” into sexual congress [New York mag]
- Dear Reuters: it would be great if you could report the full story behind a perp walk like Martin Shkreli’s [Ken White, Popehat]
- Better for ten innocents to be imprisoned than one businessperson go free: “The New York Times has come out against the creation of a minimum mens rea element for all federal crimes.” [Scott Greenfield, Scott Shackford] More: Orin Kerr; more Greenfield; Cato podcast on mens rea with Robert Alt.
- Obama Justice Department’s incursions on mens rea dovetail with its efforts on the responsible corporate officer doctrine [Ilya Shapiro and Randal John Meyer, National Review]
- Escalating fines and fees, as well as a probation system under an incentive not to work, drag down poorer residents of Biloxi, Miss. [Radley Balko]
- How federal law came to define “sex trafficking” to include non-coerced adult prostitution [American U. law professor Janie Chuang quoted by Glenn Kessler, Washington Post “Fact Checker”, who also debunks wildly inflated figures from Attorney General Loretta Lynch]
- If only the late Gary Becker, a towering figure in law and economics, could have been persuaded to give up one of his less happy theories… [Alex Tabarrok]
Nearly everyone agrees with prosecuting public officials (as well as, on occasion, lobbyists and other private actors) for bribery and some other instances in which officials trade, or are asked to trade, a quid pro quo of official action for money or gifts. Defendants in such cases, on the other hand, such as former New York Assembly Speaker Sheldon Silver, often object that they are being menaced with criminal sanctions for politics-as-usual doing of favors and constituent service, with the frequent additional suggestion that prosecution is selective and ginned up by opponents for purposes of criminalizing politics and destroying reputations in the media.
A panel discussion at the recent Federalist Society national lawyers’ convention discussed this issue including the episodes of the Wisconsin John Doe proceedings, Texas Gov. Rick Perry, Virginia Gov. Bob McDonnell, Tom DeLay, lobbyist Kevin Ring, and many others. Panelists included private attorneys Todd Graves (Graves Garrett), Edward Kang (Alston & Bird) and Peter Zeidenberg (Arent Fox), Prof. Eugene Volokh, and as moderator the Hon. Raymond Gruender of the Eighth Circuit. David Lat has a good write-up of the panel at Above the Law.
Related: Ilya Shapiro and Randal John Meyer have some questions about recent prosecutions in New Jersey under its official misconduct statute [Cato].
- “Why Morristown officers seized the cars in the first place is unclear.” Maybe because it enabled an officer to pocket $6,000? [Tennessee: Watchdog] Louisiana town getting 87% of its revenue from traffic tickets has 188 people, 5 cop cars [Marshall Project via Balko] For second time, this time in Chicago case, former CEO of red light camera company cops a federal plea [Cyrus Farivar, Ars Technica]
- Opposition from law enforcement shoots down asset forfeiture reform in California [Scott Shackford/Reason, more] Despite talk of being friendlier to forfeiture reform, Department of Justice fed talking points to reform opponents in California battle [TechDirt] “Most Americans don’t realize it’s this easy for police to take your cash” [Christopher Ingraham, Washington Post “WonkBlog”]
- Other side of the ledger: how governments pay for claims against law enforcement [Joanna Schwartz, SSRN via TortsProf]
- Louisville traffic school allows violators to get cases “dismissed without having to pay court costs… and generates revenue to operate the county attorney’s office” [Insurance Journal]
- Lawsuit alleges private probation companies in Tennessee abusing power, free-marketers should be as worried as anyone else about misalignment of private, public incentives [Radley Balko, earlier]
- Odd how feds can prevent someone resisting extradition from contesting asset forfeiture [Trevor Burrus/Cato, Ilya Somin on Kim Dotcom case]
- Insurers often pool funds to support insurance fraud prosecution efforts, but critics say Travis County, Texas prosecutors are needlessly close to a single company [Texas Tribune]
Lawyers for 177 Waco bikers are muzzled, but the McLennan County, Texas district attorney keeps talking, writes Tamara Tabo at Above the Law.
- Sheriff’s group wants Facebook to ax “hate speech against police,” “anti-police rhetoric”: what could go wrong? [WDIV, Daily Caller]
- The “Mr. District Attorney” comic book cover at right is from Jim Dedman at Abnormal Use, who as part of his Friday links roundup for years now has featured great law-related comic book covers related to law, crime, and justice. Check out his archive;
- “Under the Microscope: The FBI Hair Cases,” on a major forensic fiasco [Al-Jazeera America documentary, auto-plays, via Scott Greenfield]
- Knock and announce: in case from Eastern Shore of Maryland, Fourth Amendment got SWATted by militarized police [Ilya Shapiro and Randal John Meyer, Newsweek and Cato]
- Of course the intersection of civil asset forfeiture with sex panic is one big disaster area for liberty [Elizabeth Nolan Brown] “Should Prostitution Be Legalized?” [David Boaz, Cato; Reason panel on “sex trafficking” goes on despite threatened activist disruptions]
- Doctrine of qualified immunity shields police officers (and other public employees) from most civil liability. How does it work? [Nathan Burney at Radley Balko]
- The U.S. Department of Justice regularly settles complaints against local police departments by extracting a promise to abide by future negotiated constraints. Federalism and constitutional concerns aside, how well do these consent decrees actually work in reforming conduct? [Marshall Project]
Did federal prosecutors manipulate Los Angeles Times reporting to help win a case? Even if editors don’t care, readers might [Ken White, Popehat]. Read the whole thing, but here’s one choice quote:
The problem illuminated here isn’t just one of possible government misconduct. It’s the too-cozy too-credulous relationship between law enforcement and the press, and the very questionable decisions the press makes about what is a story. I’ve been writing about this for some time. The press thinks that a picture of a guy being perp-walked is a story, but the willingness of the cops to stage that picture to humiliate the defendant is not a story. The press thinks that juicy evidence against a defendant is a story but law enforcement’s motive in leaking that evidence isn’t. When the people sworn to uphold the law, who are prosecuting someone for violating the law, break the law to damage a defendant, the press thinks that the leaked information is the story, not the lawbreaking by law enforcers. The press does not, as far as I can tell, assess when it is being used as a tool by law enforcement. How could it, if it wants to preserve its source of tasty leaks?
- New York Times suggests Justice Clarence Thomas’s opinions borrow too much language from briefs and lower courts. Orin Kerr on why that’s unfair;
- Prosecutors have too much leeway to request freeze on defendant’s assets pending trial [Ilya Shapiro, Cato]
- Certiorari petition arising from Newman/Chiasson prosecution: “Obama Administration Gambles On Supreme Court Review Of Insider-Trading Case” [Daniel Fisher]
- “Another Chance To Clean Up ‘Trial by Formula’ Class Actions” [Andrew Grossman/Cato, SCOTUSBlog on Tyson Foods v. Bouaphakeo]
- “Bench Memos” to the barricades: National Review builds case for “resistance” to Supreme Court decisions” [my two cents at Cato on rhetoric likening Obergefell to Dred Scott]
- Media firms including Time, Meredith, Advance, NPR jump into Spokeo case before high court, warn of Fair Credit Reporting Act litigation “quagmire” [Media Post]
- After a tainted-food episode, managers convicted without a showing of mens rea? Egg case deserves a closer look [Ilya Shapiro, Cato]
“In the latest issue of Georgetown Law Journal, Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals turns a critical gaze toward America’s criminal justice system. …one of [the essay’s] major themes is prosecutorial advantage, both in federal and state courtrooms.” Among his topics: judges’ and federal authorities’ reluctance to name or charge misbehaving prosecutors. He thinks the U.S. Department of Justice should drop its opposition to “a bill proposed by Republican Sen. Lisa Murkowski of Alaska in 2012 — called the Fairness in Disclosure of Evidence Act — that would require federal prosecutors to disclose any evidence ‘that may reasonably appear to be favorable to the defendant in a criminal prosecution.'” (The Department currently follows a less demanding standard on disclosure of adverse evidence). Kozinski also “favors abolishing state judicial elections, among other recommendations.” [Jacob Gershman, WSJ Law Blog; Alex Kozinski, “Preface,” Georgetown Law Journal Annual Review of Criminal Procedure 2015]
- Consumer Financial Protection Bureau cracks down on “rent-a-D.A.” scheme in which private debt collector acquired right to use prosecutor’s letterhead [Jeff Gelles, Philadelphia Inquirer, earlier here and here]
- What Santa Ana, Calif. cops did “after destroying –- or so they thought –- all the surveillance cameras inside the cannabis shop.” [Orange County Weekly via Radley Balko]
- Maryland reforms mandatory minimums [Scott Shackford/Reason, Sen. Michael Hough/Washington Times]
- Locking up past sex offenders for pre-crime: “Civil Commitment and Civil Liberties” [Cato Unbound with Galen Baughman, David Prescott, Eric Janus, Amanda Pustilnik; Jason Kuznicki, ed.]
- Two strikes and you’re out, Sen. Warren? Or is there some alternative to DPAs/NPAs (deferred prosecution agreements/non-prosecution agreements?) [Scott Greenfield, Simple Justice]
- Covert cellphone tracking: “Baltimore Police Admit Thousands of Stingray Uses” [Adam Bates, Cato, related on Erie County/Buffalo]
- “Citizens face consequences for breaking the law, but those with the power to administer those laws rarely face any.” [Ken White, Popehat] “61% of IRS Employees Who Cheated On Their Taxes Were Allowed To Keep Their Jobs” [Paul Caron, TaxProf]