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JDN
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« Reply #100 on: December 28, 2010, 10:30:11 AM »

I don't get it; I'm a RACIST if I don't want to hire someone with a bad credit history or who is a convicted criminal?

Reporting from Washington — The federal agency that enforces workplace anti-discrimination laws is warning employers they could be sued if they refuse to hire blacks or Latinos because of a bad credit history or a criminal record.

The Equal Employment Opportunity Commission last week sued Kaplan Higher Education Corp., accusing the company of using "a selection criterion for hiring and discharge

http://www.latimes.com/news/nationworld/nation/la-na-employment-discrimination-20101227,0,3410214.story?track=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+latimes%2Fmostviewed+%28L.A.+Times+-+Most+Viewed+Stories%29

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G M
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« Reply #101 on: December 28, 2010, 10:54:07 AM »

It's almost like a radical leftist got elected president or something.....
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JDN
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« Reply #102 on: December 28, 2010, 11:04:54 AM »

It's almost like a radical leftist got elected president or something.....

"The lawsuit is part of a stepped-up but controversial effort to eliminate "arbitrary barriers" to employment for minorities by the EEOC, which is governed by five commissioners, three appointed by President Obama."
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G M
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« Reply #103 on: December 28, 2010, 11:12:22 AM »

Aren't whites a minority in California?
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JDN
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« Reply #104 on: December 28, 2010, 11:23:17 AM »

We might be; I don't know.  As a minority, maybe whites should be "protected" too, but somehow I don't think it works that way.   smiley

By the way, in case you missed it, I was agreeing with you.  This is a bit too much even for me.
 "five commissioners, three appointed by President Obama"

Next up is housing.  Maybe Doug will not be able to exclude a tenant simply because they have a poor credit history and/or
are an ex con.  That makes good sense....   huh

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Crafty_Dog
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« Reply #105 on: December 29, 2010, 04:16:27 PM »


WSJ:
By FLOYD ABRAMS

In 1971, Daniel Ellsberg decided to make available to the New York Times (and then to other newspapers) 43 volumes of the Pentagon Papers, the top- secret study prepared for the Department of Defense examining how and why the United States had become embroiled in the Vietnam conflict. But he made another critical decision as well. That was to keep confidential the remaining four volumes of the study describing the diplomatic efforts of the United States to resolve the war.

Not at all coincidentally, those were the volumes that the government most feared would be disclosed. In a secret brief filed with the Supreme Court, the U.S. government described the diplomatic volumes as including information about negotiations secretly conducted on its behalf by foreign nations including Canada, Poland, Italy and Norway. Included as well, according to the government, were "derogatory comments about the perfidiousness of specific persons involved, and statements which might be offensive to nations or governments."

The diplomatic volumes were not published, even in part, for another dozen years. Mr. Ellsberg later explained his decision to keep them secret, according to Sanford Ungar's 1972 book "The Papers & The Papers," by saying, "I didn't want to get in the way of the diplomacy."

Julian Assange sure does. Can anyone doubt that he would have made those four volumes public on WikiLeaks regardless of their sensitivity? Or that he would have paid not even the slightest heed to the possibility that they might seriously compromise efforts to bring a speedier end to the war?

Mr. Ellsberg himself has recently denounced the "myth" of the "good" Pentagon Papers as opposed to the "bad" WikiLeaks. But the real myth is that the two disclosures are the same.

The Pentagon Papers revelations dealt with a discrete topic, the ever-increasing level of duplicity of our leaders over a score of years in increasing the nation's involvement in Vietnam while denying it. It revealed official wrongdoing or, at the least, a pervasive lack of candor by the government to its people.

WikiLeaks is different. It revels in the revelation of "secrets" simply because they are secret. It assaults the very notion of diplomacy that is not presented live on C-Span. It has sometimes served the public by its revelations but it also offers, at considerable potential price, a vast amount of material that discloses no abuses of power at all.

View Full Image

Associated Press
 
WikiLeaks founder Julian Assange at a press conference in Geneva Switzerland, Nov. 4.
.The recent release of a torrent of State Department documents is typical. Some, containing unflattering appraisals by American diplomats of foreign leaders of France, Germany, Italy, Libya and elsewhere, contain the very sort of diplomacy-destructive materials that Mr. Ellsberg withheld. Others—the revelation that Syria continued selling missiles to Hezbollah after explicitly promising America it would not do so, for example—provide a revealing glimpse of a world that few ever see. Taken as a whole, however, a leak of this elephantine magnitude, which appears to demonstrate no misconduct by the U.S., is difficult to defend on any basis other than WikiLeaks' general disdain for any secrecy at all.

Mr. Ellsberg understood that some government documents should remain secret, at least for some period of time. Mr. Assange views the very notion of government secrecy as totalitarian in nature. He has referred to his site as "an uncensorable system for untraceable document leaking and analysis."

But WikiLeaks offers no articles of its own, no context of any of the materials it discloses, and no analysis of them other than assertions in press releases or their equivalent. As Princeton historian Sean Wilentz told the Associated Press earlier this month, WikiLeaks seems rooted in a "simpleminded idea of secrecy and transparency," one that is "simply offended by any actions that are cloaked."

Ironically, this view of the world may aid Mr. Assange in avoiding criminal liability for his actions. The Justice Department is well aware that if it can prove that Mr. Assange induced someone in the government to provide him with genuinely secret information, it might be able to obtain an indictment under the Espionage Act based upon that sort of conspiratorial behavior. But the government might not succeed if it can indict based only upon a section of the Espionage Act relating to unauthorized communication or retention of documents.

Section 793 of the Espionage Act was adopted in 1917 before the Supreme Court had ever declared an act of Congress unconstitutional under the First Amendment. The statute has been well-described by former Supreme Court Justice John Marshall Harlan as "singularly oblique." Its language is sweepingly overbroad, allowing prosecution of anyone who "willfully" retains or communicates information "relating to the national defense" he or she is not "authorized" to have with the knowledge that it "could" damage the United States or give "advantage" to a foreign nation.

On the face of the statute, it could not only permit the indictment of Mr. Assange but of journalists who actually report about or analyze diplomatic or defense topics. To this date, no journalist has ever been indicted under these provisions.

The Justice Department took the position that it could enforce the law against journalists in a case it commenced in 2006 (and later dropped) against two former officials of the American Israel Political Action Committee accused of orally telling an Israeli diplomat classified information they were told by a Defense Department employee. In that case, federal Judge T.S. Ellis III ruled that to obtain a conviction of individuals who had not worked for the government but had received information from individuals who had, prosecutors must prove that the defendant actually intended to harm the U.S. or to help an enemy. Judge Ellis intimated that unless the law were read in that defendant-protective manner, it would violate the First Amendment.

Under that reading of the legislation, if Mr. Assange were found to have communicated and retained the secret information with the intent to harm the United States—some of his statements can be so read—a conviction might be obtained. But if Mr. Assange were viewed as simply following his deeply held view that the secrets of government should be bared, notwithstanding the consequences, he might escape legal punishment.

Mr. Assange is no boon to American journalists. His activities have already doomed proposed federal shield-law legislation protecting journalists' use of confidential sources in the just-adjourned Congress. An indictment of him could be followed by the judicial articulation of far more speech-limiting legal principles than currently exist with respect to even the most responsible reporting about both diplomacy and defense. If he is not charged or is acquitted of whatever charges may be made, that may well lead to the adoption of new and dangerously restrictive legislation. In more than one way, Mr. Assange may yet have much to answer for.

Mr. Abrams, a senior partner in the firm of Cahill Gordon & Reindel LLP, represented the New York Times in the Pentagon Papers case.

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ccp
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« Reply #106 on: March 19, 2011, 12:33:15 PM »

With all the white collar crime in this country what the crazy One thinks is important is to hire and maintain a large civil rights staff at the DOJ, "Democrat Party Of Justice" is to troll for bullying at school.   The Prez is a nut.

****DOJ to white male bullying victims: Tough luck

Kerry Picket
Published on March 18, 2011
viral video sensation showing a bullying incident at an Australian school has brought the issue of bullying back into the spotlight. Here in the United States, the Obama administration has made school bullying a federal issue. Last week, President Barack Obama addressed an anti-bullying conference with First Lady Michelle Obama at his side. The administration's anti-bullying campaign has been ongoing since the beginning of Mr. Obama's term.  The Department of Justice announced in December 2010 its intention to hold liable school districts that fail to protect students that are bullied.

DOJ’s website states:

The Civil Rights Division and the entire Justice Department are committed to ending bullying and harassment in schools, and the video highlights the Department’s authority to enforce federal laws that protect students from discrimination and harassment at school because of their race, national origin, disability, religion, and sex, including harassment based on nonconformity with gender stereotypes.

The statement later says:

The enforcement of the Equal Protection Clause, Title IV of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972 in school districts is a top priority of the Justice Department’s Civil Rights Division. Additional information is available at the Civil Rights Division’s Educational Opportunities Section website at www.justice.gov/crt/edo/.

Here is the catch. DOJ will only investigate bullying cases if the victim is considered protected under the 1964 Civil Rights legislation. In essence, only discrimination against a victim’s race, sex, national origin, disability, or religion will be considered by DOJ. The overweight straight white male who is verbally and/or physically harassed because of his size can consider himself invisible to the Justice Department.

Apparently, the Justice Department is going by George Orwell’s famous Animal Farm ending: “All animals are equal, but some are more equal than others.”

 “We can only take action where we have legal authority,” wrote DOJ spokeswoman Xochitl Hinojosa in a December 2010 e-mail to The Washington Times Water Cooler. She continues:

“As stated in the website below, we are statutorily authorized to initiate suits under Title IV of the Civil Rights Act of 1964, the Equal Educational Opportunities Act of 1974, and under Title III of the American with Disabilities Act. More information on the Civil Rights Act, Equal Educational Opportunities Act, and the ADA can be found here:

http://www.justice.gov/crt/edo/faq.php#3 "



 The Justice Department’s anti-bullying initiative is tantamount to bringing hate crime legislation to the public school system. Obviously, not only is the heterosexual white male student out of luck but  inner city minority students lose out in this deal too.

 If a schoolyard bully is a straight black male and his target is another straight black male where does that leave the victim in the eyes of Attorney General Eric Holder? What about two female students of the same sexual orientation and race?  Is the victim in the latter situation considered to be less equal in the eyes of Obama’s Justice Department than a minority student who is picked on by a heterosexual white male student with no disabilities?

 Unfortunately, the Justice Department is politicizing its priorities yet again. One must wonder why the administration believes it should be micro managing local school districts bullying problems. When the Justice Department is more interested in making ideological statements through seemingly sugar coated campaigns, no one should feel protected.****

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Crafty_Dog
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« Reply #107 on: February 08, 2012, 09:32:58 AM »

Last November, Judge Emmet G. Sullivan of the Federal District Court in Washington said that an investigation he ordered into prosecutorial misconduct in the case involving the late Senator Ted Stevens had found “systematic concealment of significant exculpatory evidence.” Judge Sullivan said then that he would make the confidential 500-page report public. It is time to release the report.

Related News
Court-Appointed Investigator Offers Scathing Report on Prosecution of Senator Stevens (November 22, 2011)
Tables Turned on Prosecution in Stevens Case (April 8, 2009) He said in his order that there was a “compelling” public interest in the investigation’s results — which, he noted, Attorney General Eric Holder Jr. acknowledged at a Senate Judiciary Committee hearing in November. He gave the Justice Department and the lawyers representing the prosecutors until Jan. 6 to file any objections to the report. January has come and gone.

The report is expected to show how Justice Department lawyers mishandled their constitutional duty to give defendants all exculpatory evidence that could have made a difference in the outcome of the trial. Judge Sullivan has written that there was “significant, widespread, and at times intentional misconduct.” The full report could provide the details of that illegal concealment. And if the report exonerates any of the prosecutors who were collectively tainted by the judge’s scathing findings, they deserve to have the record corrected.

The Justice Department, which said it does not intend to comment on the report, should be calling for its release. The Stevens debacle stained the department’s reputation and will continue to do so unless there is full disclosure of the investigation. The department issued new guidance for all federal prosecutors on how to handle “criminal discovery” in the wake of the Stevens case. But neither Congress nor the public will be able to tell if those standards are sufficient without a full understanding of what happened in the Stevens prosecution.

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Crafty_Dog
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« Reply #108 on: February 16, 2012, 01:17:24 PM »



The Justice Department's creative prosecutions under the Foreign Corrupt Practices Act (FCPA) continue to disintegrate, with the latest acquittal of two businessmen giving the Department a legal black eye. At a hearing last week, Justice asked federal Judge Richard Leon for a delay while it considers if the case is still viable.

The 1977 FCPA was intended to prevent American companies from joining the Third World's payoff habits. Over the last five years, however, Justice has begun to stretch the law into a far more blunt instrument. Instead of going after clear violations, the vague statute has become a tool to prosecute or threaten legions of companies.

In the case of the Africa "sting" in January 2010, Justice charged 22 individuals with scheming to pay off Gabon's defense minister for the right to outfit the country's national guard. At the time, Justice boasted that the indictments "represent the largest single investigation and prosecution against individuals in the history of DOJ's enforcement of the Foreign Corrupt Practices Act." Nothing like bragging about a case before it's won.

Using a snitch named Richard Bistrong who was a former target of a Justice investigation and who worked for body-armor supplier Armor Holdings (now a subsidiary of British defense company BAE Systems), prosecutors indicted companies and individuals in the military and police products industry. So far, not so good. The jury's acquittals come on the heels of Judge Leon's December decision to throw out a conspiracy charge.

In December, Los Angeles federal district Judge Howard Matz threw out a jury's bribery conviction of Lindsey Manufacturing after describing government misconduct that included allowing false testimony, submitting false affidavits and failing to comply with discovery obligations.

Houston federal judge Lynn Hughes was similarly skeptical last month about the bribery case against an official at Swiss company ABB, saying in a verbal order that the principal witness "knows almost nothing" and gave answers that were "abstract and vague, generally relating gossip." Ouch.

Justice may not mind these embarrassing failures, considering the cash its prosecutions are bringing in. The government saw a $1.8 billion windfall in FCPA-related fines and penalties from Justice and the Securities and Exchange Commission in 2010 and another $508.6 million in 2011.

According to a report last month by the New York City Bar Association, by April 2011 the five biggest FCPA fines were more than $300 million each, up from a single largest fine of $28.5 million in January 2007. In many cases, companies settle for fines even if they dispute the charge to avoid the reputational risk of an indictment.

The numbers have been growing, with 120 investigations pending in 2009 compared to three in 2002. Enforcement actions have been mounting as well, to 76 in 2010 from 45 in 2009. While companies spend millions on FCPA compliance, their efforts are no defense against future prosecutions, including against foreign subsidiaries and affiliates of which a parent company may have little knowledge.

(Disclosure: Attorney General Eric Holder has said his department is investigating News Corp., our parent company, under the bribery law as part of the phone-hacking scandal in Britain. If Justice tries to portray payments made as part of traditional news-gathering as criminal acts, the list of felons won't stop at the tabloids.)

That trend is causing concern in Congress, even among liberals. At a January 2011 hearing, Minnesota Senator Amy Klobuchar told Assistant Attorney General Lanny Breuer she was concerned that companies are unsure how to comply with the new enforcement regime. While an individual can only be prosecuted for a "willfull" FCPA violation under the statute, there is no similar requirement for companies. The difference expands the scope of corporate criminal liability, even if no one knew particular conduct was wrong.

Ditto the vagaries of who qualifies as a foreign official under the law, a definition which is often extended to include not only "any officer or employee of a foreign government" but also anyone working for "instrumentalities" of a foreign government, a term that has been broadly interpreted.

Because of that vagueness, Ms. Klobuchar said, "in today's China, a nurse could be construed as a foreign official because they work for the state." And what kind of conduct crosses the line? Is hosting a banquet an FCPA violation? How about a gift of mooncakes for lunar new year?

Ms. Klobuchar is working with Delaware Senator Chris Coons to clarify the law, but they face opposition from the organized left. George Soros-backed outfits like Crew and the Open Society Foundation have attacked amendments to the FCPA as an invitation to global corruption.

The bribery law has served a useful purpose over the years in shielding U.S. executives from having to follow Europeans and Japanese in a race to the bottom. No doubt it has cost American companies some business, but it has also taught foreign officials not to expect U.S. payoffs. But the Obama Administration's overzealous prosecution is leading to uncertainty and injustice. Congress and the courts need to curtail this latest antibusiness crusade.

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Crafty_Dog
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« Reply #109 on: March 16, 2012, 06:30:07 PM »


http://online.wsj.com/article/SB10001424052702304692804577281852966541834.html?mod=opinion_newsreel

By NANCY GERTNER And BARRY SCHECK
On Thursday, a special prosecutor released his report on the botched prosecution on corruption charges of the late Sen. Ted Stevens. It's worth noting the lessons learned from this investigation. Otherwise, wrongful convictions will continue.

The special prosecutor, Henry Schuelke, found that Justice Department lawyers committed ethics violations by the deliberate and "systematic" withholding of critical evidence pointing to Stevens's innocence, but he declined to go further. The reason: There was no court order expressly directing the government lawyers to turn over the evidence. Criminal charges can only be brought when there is a knowing and intentional violation of an order.

In sharp contrast, on Friday, Feb. 17, the chief judge of the Texas Supreme Court convened a court of inquiry to determine whether the former Williamson County district attorney violated state laws by failing to turn over evidence that could have prevented Michael Morton from spending 25 years in prison after his 1987 conviction for a murder that DNA evidence now proves he didn't commit.

The judge in the Morton case could deal directly with the prosecutor's alleged misconduct while the judge in the Stevens case could not. The Texas prosecutor had been expressly ordered by the trial court to turn over the lead investigator's complete report, an order that made certain all exculpatory evidence would be disclosed. The obligations of the Stevens prosecutors, while based on the Constitution and the disciplinary rules of the profession, were not formally embodied in a court order.

The two cases present a simple solution for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible.

Enlarge Image

CloseAssociated Press
 
The late Sen. Ted Stevens (R., Alaska)
.Issuing this order pretrial, at a time when most prosecutors are re-interviewing witnesses and reviewing their file, would encourage a more careful review of their case and their obligations. If prosecutors had a checklist similar to those the medical profession has used to dramatically reduce errors in intensive care units, they would not only discover more exculpatory evidence but develop valuable data about weaknesses in their evidence-gathering and evaluation processes.

This proposal can be implemented tomorrow by every state and federal judge in the nation without the need for legislation. Ultimately, it will benefit prosecutors, defendants and the courts by eliminating any confusion surrounding the disclosure of exculpatory evidence.

The Supreme Court has long held that a criminal conviction will not be reversed for failure to disclose exculpatory or impeaching evidence unless the appellate court finds that the undisclosed evidence was "material," or so important that it "undermines confidence in the outcome of the trial." It can be difficult for a prosecutor, particularly in the heat of battle, to decide before a trial whether undisclosed evidence that appears favorable to the defense will be considered "material" by appellate courts after a conviction.

With this dilemma in mind, decades ago the American Bar Association promulgated an ethics rule which has been substantially adopted in 49 states, Guam and the District of Columbia: Prosecutors are obligated to make timely pretrial disclosure of any evidence they know about that "tends to negate the guilt of the accused or mitigate the offense."

A direct order by a judge to follow the ethics rule and disclose all evidence that "tends to negate guilt" will act as a deterrent to the overzealous prosecutor. Disobedience of a direct court order is contempt, which is an ongoing offense. So contempt prosecutions of unscrupulous prosecutors whose suppression of exculpatory evidence is discovered many years after the act won't be derailed by statute-of-limitations problems (which have been a significant obstacle to prosecuting prosecutors).

Most failures to disclose exculpatory evidence are the result of inadvertence or negligence, and their eventual discovery would not normally result in disciplinary actions, much less criminal charges. The importance of this order would be to hold prosecutors accountable in the most egregious cases—such as Stevens's, in which the special prosecutor found not one but multiple instances where the prosecution "willfully" withheld information pointing to Stevens's innocence.

This simple proposal is not original or heretical. It has been raised in similar forms by many scholars and follows long-standing ABA policy. It does nothing more than provide a concrete way to enforce an ethics rule that our profession assures the public we follow, an ethical rule that protects our most cherished objective—a fair trial.

Ms. Gertner, a former judge of the United States District Court for the District of Massachusetts, teaches at Harvard Law School. Mr. Scheck is the co-director of the Innocence Project, a national organization dedicated to exonerating wrongfully convicted individuals
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G M
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« Reply #110 on: March 16, 2012, 06:50:10 PM »


http://online.wsj.com/article/SB10001424052702304692804577281852966541834.html?mod=opinion_newsreel

By NANCY GERTNER And BARRY SCHECK
On Thursday, a special prosecutor released his report on the botched prosecution on corruption charges of the late Sen. Ted Stevens. It's worth noting the lessons learned from this investigation. Otherwise, wrongful convictions will continue.

The special prosecutor, Henry Schuelke, found that Justice Department lawyers committed ethics violations by the deliberate and "systematic" withholding of critical evidence pointing to Stevens's innocence, but he declined to go further. The reason: There was no court order expressly directing the government lawyers to turn over the evidence. Criminal charges can only be brought when there is a knowing and intentional violation of an order.

In sharp contrast, on Friday, Feb. 17, the chief judge of the Texas Supreme Court convened a court of inquiry to determine whether the former Williamson County district attorney violated state laws by failing to turn over evidence that could have prevented Michael Morton from spending 25 years in prison after his 1987 conviction for a murder that DNA evidence now proves he didn't commit.

The judge in the Morton case could deal directly with the prosecutor's alleged misconduct while the judge in the Stevens case could not. The Texas prosecutor had been expressly ordered by the trial court to turn over the lead investigator's complete report, an order that made certain all exculpatory evidence would be disclosed. The obligations of the Stevens prosecutors, while based on the Constitution and the disciplinary rules of the profession, were not formally embodied in a court order.

The two cases present a simple solution for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible.

Enlarge Image

CloseAssociated Press
 
The late Sen. Ted Stevens (R., Alaska)
.Issuing this order pretrial, at a time when most prosecutors are re-interviewing witnesses and reviewing their file, would encourage a more careful review of their case and their obligations. If prosecutors had a checklist similar to those the medical profession has used to dramatically reduce errors in intensive care units, they would not only discover more exculpatory evidence but develop valuable data about weaknesses in their evidence-gathering and evaluation processes.

This proposal can be implemented tomorrow by every state and federal judge in the nation without the need for legislation. Ultimately, it will benefit prosecutors, defendants and the courts by eliminating any confusion surrounding the disclosure of exculpatory evidence.

The Supreme Court has long held that a criminal conviction will not be reversed for failure to disclose exculpatory or impeaching evidence unless the appellate court finds that the undisclosed evidence was "material," or so important that it "undermines confidence in the outcome of the trial." It can be difficult for a prosecutor, particularly in the heat of battle, to decide before a trial whether undisclosed evidence that appears favorable to the defense will be considered "material" by appellate courts after a conviction.

With this dilemma in mind, decades ago the American Bar Association promulgated an ethics rule which has been substantially adopted in 49 states, Guam and the District of Columbia: Prosecutors are obligated to make timely pretrial disclosure of any evidence they know about that "tends to negate the guilt of the accused or mitigate the offense."

A direct order by a judge to follow the ethics rule and disclose all evidence that "tends to negate guilt" will act as a deterrent to the overzealous prosecutor. Disobedience of a direct court order is contempt, which is an ongoing offense. So contempt prosecutions of unscrupulous prosecutors whose suppression of exculpatory evidence is discovered many years after the act won't be derailed by statute-of-limitations problems (which have been a significant obstacle to prosecuting prosecutors).

Most failures to disclose exculpatory evidence are the result of inadvertence or negligence, and their eventual discovery would not normally result in disciplinary actions, much less criminal charges. The importance of this order would be to hold prosecutors accountable in the most egregious cases—such as Stevens's, in which the special prosecutor found not one but multiple instances where the prosecution "willfully" withheld information pointing to Stevens's innocence.

This simple proposal is not original or heretical. It has been raised in similar forms by many scholars and follows long-standing ABA policy. It does nothing more than provide a concrete way to enforce an ethics rule that our profession assures the public we follow, an ethical rule that protects our most cherished objective—a fair trial.

Ms. Gertner, a former judge of the United States District Court for the District of Massachusetts, teaches at Harvard Law School. Mr. Scheck is the co-director of the Innocence Project, a national organization dedicated to exonerating wrongfully convicted individuals


I am amazed and horrified that in this day and age we have prosecutors that do such things. Disbarment and prosecution needs to happen in such cases. Prosecutors are ethically required to act in the interest of justice, that means full discovery, including exculpatory evidence.
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Crafty_Dog
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« Reply #111 on: May 06, 2012, 10:21:33 AM »

MORRISTOWN, N.J. – A New Jersey judge will likely soon decide whether a woman who sent a text message to a male friend can be held liable for a car crash he caused while reading the message.
The Daily Record reports the legal question stems from a lawsuit filed by two Dover residents who were seriously injured when a 19-year-old driver crashed into their motorcycle in September 2009. The driver received three motor vehicle citations and pleaded guilty earlier this year.
The victim's lawyer claims the woman aided and abetted the driver's negligence by texting him when she knew or should have known he was driving.
But her lawyer is seeking to have her dismissed as a defendant, saying she had no control over when the driver would read the message.


Read more: http://www.foxnews.com/us/2012/05/05/nj-judge-to-decide-if-text-sender-liable-for-crash/?test=latestnews#ixzz1u5kLb87t
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Crafty_Dog
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« Reply #112 on: July 23, 2012, 11:27:57 AM »

The Tort Bar Burns On
A case study in modern robbery: Targeting the red plastic gas can..Article Comments more in Opinion | Find New $LINKTEXTFIND$ ».smaller Larger 
Like 19th century marauders, the trial bar attacks any business it thinks will cough up money in its raids. The latest victims are the people who make those red plastic gasoline cans.

Until recently, Blitz USA—the nation's No. 1 consumer gasoline-can producer, based in Miami, Oklahoma—was doing fine. It's a commoditized, low-margin business, but it's steady. Sales normally pick up when hurricane season begins and people start storing fuel for back-up generators and the like.

Blitz USA has controlled some 75% of the U.S. market for plastic gas cans, employing 117 people in that business, and had revenues of $60 million in 2011. The Consumer Product Safety Commission has never deemed Blitz's products unsafe.

Then the trial attorneys hit on an idea with trial-lawyer logic: They could sue Blitz when someone poured gas on a fire (for instance, to rekindle the flame) and the can exploded, alleging that the explosion is the result of defects in the can's design as opposed to simple misuse of the product. Plaintiffs were burned, and in some cases people died.

Blitz's insurance company would estimate the cost of years of legal battles and more often than not settle the case, sometimes for millions of dollars. But the lawsuits started flooding in last year after a few big payouts. Blitz paid around $30 million to defend itself, a substantial sum for a small company. Of course, Blitz's product liability insurance costs spiked.

In June, Blitz filed for bankruptcy. All 117 employees will lose their jobs and the company—one of the town's biggest employers—will shutter its doors. Small business owners have been peppering the local chamber of commerce with questions about the secondary impact on their livelihoods.

The tort-lawsuit riders leading the assault on Blitz included attorneys Hank Anderson of Wichita Falls, Texas; Diane Breneman of Kansas City, Missouri; and Terry Richardson of Barnwell, South Carolina. All told, they've been involved in more than 30 lawsuits against Blitz in recent years.

The rest of the plastic-can industry can't be far behind, so long as there's any cash flow available. The American Association for Justice's (formerly the Association of Trial Lawyers of America) annual conference in Chicago this month will feature, with a straight face, a meeting of the "gas cans litigation group."

The Atlantic hurricane season started June 1, and Blitz estimates that demand for plastic gas cans rises 30% about then. If consumers can't find the familiar red plastic can, fuel will have to be carried around in heavy metal containers or ad-hoc in dangerous alternatives, such as coolers.

Trial lawyers remain a primary funding source for the Democratic Party, but stories like this cry out for a bipartisan counter-offensive against these destructive raids that loot law-abiding companies merely because our insane tort laws make them vulnerable.

A version of this article appeared July 23, 2012, on page A12 in the U.S. edition of The Wall Street Journal, with the headline: The Tort Bar Burns On.

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JDN
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« Reply #113 on: September 12, 2012, 09:49:21 AM »

"Financier Bradley Birkenfeld went to prison after helping clients avoid taxes. But he also got $104 million for blowing the whistle."

http://www.latimes.com/business/la-fi-whistleblower-20120912,0,2889365.story
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« Reply #114 on: January 23, 2013, 04:09:57 PM »

Apparently their "footlongs" come up short.   I  wonder why people can't sue government sponsored lotteries.  They advertise you win a million, two million, 100 million.  Then for those who do win most if it is confiscated even before they get the check.  To me this is fraudulent advertising.

http://www.mercurynews.com/business/ci_22433584/subway-sued-over-footlong-sandwiches-that-came-up
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« Reply #115 on: February 06, 2013, 06:01:44 PM »

Payback for a Downgrade?
The feds sue S&P but not Moody's for pre-crisis credit ratings. .
WSJ

 
Now, this is awkward. One agency of the federal government is suing a company for fraud while another agency continues to endorse it.

On Monday in Los Angeles, the Department of Justice sued Standard & Poor's and its parent McGraw-Hill for $5 billion. The claim is that S&P committed civil fraud when it issued high credit ratings on mortgage-related securities prior to the financial crisis of 2008. Sixteen states and the District of Columbia have piled on the suit.

No doubt investors who relied on the opinions of S&P and the other big credit-rating agencies, Moody's and Fitch, suffered terrible losses during the crisis. That was in part because the federal government forced investors to rely on them. Longstanding rules at the Securities and Exchange Commission and other agencies required institutions to hold assets graded highly by these government-approved rating agencies.

And to this day, more than two years after the Dodd-Frank law ordered their repeal, SEC rules still force institutions to follow the advice of these government-anointed credit raters. Therefore the more appropriate defendant for Monday's lawsuit would be the SEC. But as a modest first step before suing a company for $5 billion, shouldn't the government at least stop mandating its products?

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Assistant editorial page editor James Freeman on the Justice Department's suit against ratings agency S&P. Photo: White House
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We've long argued that the government should not endorse any company's opinions about credit risk, which at the end of the day is all a credit rating is—an opinion. And for that reason the government will not have an easy time making a fraud case.

Justice quotes internal emails from S&P personnel suggesting that, in its desire to win rating assignments from the investment banks that created securities, S&P was too generous in handing out high grades. For its part, S&P said in a Tuesday statement, "Claims that we deliberately kept ratings high when we knew they should be lower are simply not true."

If a publisher deliberately misleads, it loses its First Amendment protection. S&P concedes "there was robust internal debate" inside the firm but says it "applied the collective judgment of our committee-based system in good faith."

Some of the emails in the government suit do look bad, at least as presented in the lawsuit and just like a lot of the rating-agency internal emails that the SEC released in a 2008 report. In fact, some of the same internal S&P messages from that five-year-old report are now reprinted in the new lawsuit.

So why wasn't a federal case made in 2008 or 2009 or 2010 or 2011 or 2012? In the United States it has always been difficult to prosecute publishers of financial opinions for securities fraud. Yes, the SEC has sometimes successfully prosecuted the proprietors of sham newsletters that touted stocks with bogus claims while secretly accepting payments from the companies being hyped.

But everyone already knows the big credit raters get paid to issue their opinions. And courts have often looked askance at broadly using the laws on securities fraud to go after people outside of the business of issuing, underwriting and dealing in securities.

This may be why the SEC, which had been investigating the credit raters, is not part of this week's lawsuit. Justice is instead trying to break new ground by using a 1989 statute intended to prevent bank fraud. Since federally insured financial institutions were among those who relied on credit ratings, argues Justice, S&P can be charged with fraud.

The suit names a specific credit union in California as an alleged victim. In other words, the government that keeps blaming the bankers for the crisis is now painting banks as the victims of rating agencies whose opinions the banks were ordered by the government to follow.

There are other disturbing questions related to the timing and the target of this federal civil prosecution. S&P's attorney Floyd Abrams tells us that "things seemed to rev up in terms of the intensity" of the federal investigation after S&P's historic downgrade of United States credit following Washington's debt-limit fight in 2011.

Meanwhile, a McClatchy Newspapers report says that it was around that time that Moody's, which did not downgrade the government, was dropped from the federal investigation. Ask any investor and he'll likely tell you that Moody's was equally awful in forecasting the mortgage debacle.

Speaking of the debt-limit fight, that's also coincidentally when White House Chief of Staff Jack Lew was aggressively promoting the President's campaign to prevent entitlement reform. Mr. Lew had worked in the heart of Citigroup's subprime investment factory, and the President has not only been willing to forgive and forget. He's even nominated Mr. Lew to become Secretary of the Treasury. But the company that put a shot across the Beltway bow over deficit spending is now the only target of a credit-ratings prosecution.

Why not just take away its government-enforced advantage instead? Both regulators and regulated institutions still yearn for the ability to outsource the tough decisions on credit risk to some certified experts. But it's folly to think that some anointed class can ever be counted on to warn of all potential default dangers.

If prosecutors continue to focus on how the rating process works, they may allow Washingtonians to celebrate downgrade payback, but they won't serve investors or taxpayers. Americans will benefit most when few people care how the rating agencies operate, because their judgments won't be that important.
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« Reply #116 on: February 06, 2013, 07:46:32 PM »

Payback for a Downgrade?
The feds sue S&P but not Moody's for pre-crisis credit ratings. .

Almost like some Chicago-style payback.
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« Reply #117 on: February 06, 2013, 09:55:57 PM »

Off the top of my head, I can't say that S&P did not fall well short of a due standard of care, but yes this looks like economic fascist payback.
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« Reply #118 on: February 06, 2013, 10:35:12 PM »

Off the top of my head, I can't say that S&P did not fall well short of a due standard of care, but yes this looks like economic fascist payback.

Agree on both counts.  They went after no one who appraised the homes wrong and no one who fleeced the GSEs but oddly they go after the agency that downgraded Obama's America when, as S&P said in its own defense, the government itself didn't see the collapse coming either.
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« Reply #119 on: February 06, 2013, 10:50:55 PM »

Franklin Raines and others at Fannie and Freddie were ACCELERATING gains so as to increase their bonuses, and their paymentw for these fraudulent acts were some very "golden parachutes" (anyone have the numbers handy?  GM?)

It is very worth noting that SOME people in the government DID see what was coming (NOT Newt Gingrich  angry )  This includes President Bush himself (and others) who warned more than once but lacked the political capital to force the issue.
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« Reply #120 on: February 08, 2013, 12:32:13 PM »

http://hotair.com/archives/2013/02/08/doj-lawsuit-against-sp-even-sillier-than-first-thought/

DoJ lawsuit against S&P even sillier than first thought
posted at 8:41 am on February 8, 2013 by Ed Morrissey

I wrote Tuesday about the hypocrisy and perhaps vindictiveness of the Department of Justice’s lawsuit against ratings agency Standard & Poor’s for rating toxic mortgage-backed securities and their derivatives highly before the housing bubble popped.  Apparently I wasn’t tough enough on … the DoJ.  Bloomberg’s Jonathan Weil explains why the lawsuit isn’t just ill-considered, but downright silly:

Oh, the poor suckers at Citigroup Inc. and Bank of America Corp., fooled about the stench of their own garbage by those sneaky credit raters at Standard & Poor’s.

The U.S. Justice Department made some peculiar allegations in its lawsuit this week against S&P and its parent, McGraw-Hill Cos. According to the government, Citigroup was defrauded by S&P credit ratings on subprime mortgage bonds that Citigroup itself created and sold. Bank of America, too, allegedly was defrauded by S&P in the same way. …

Under the government’s theory, Citigroup and Bank of America paid S&P for ratings that convinced the banks their own CDO offal was rock-solid. And because S&P deceived them into thinking the best of their own rubbish, these banks and other lenders suffered more than $5 billion of investment losses, according to the suit.
No, that’s not a joke.  Weil boils the lawsuit’s raison d’être down to this:

For nine of the CDOs, the government’s complaint listed Citigroup as the harmed investor — without mentioning that Citigroup’s investment-banking division had managed the bonds’ offerings. The complaint identified Bank of America as the defrauded CDO investor in two instances, also without mentioning that its securities unit underwrote those bonds.

It’s a novel concept. If only S&P had given honest opinions to Citigroup and Bank of America — which were paying S&P millions of dollars for ratings — then the banks would have realized they were buying ticking time bombs from themselves. And who knows? Maybe they could have found some other hapless chumps to immolate instead, if S&P had told them in time.
Notably, neither Citi nor BofA are suing S&P over this issue, nor are they talking on the record.  They aren’t the only victims claimed by the DoJ — M&T Bank is also listed, and they didn’t produce any of the products in which they invested.  The fact that none of these entities are pursuing damages from their own bad bets on mortgage-backed securities and their derivatives probably should give a clue as to the validity of the claims being made by the DoJ.

So far, though, it’s just the Obama administration pursuing the rather laughable claim that S&P’s ratings would have made any difference to Citi and BofA on their own products.  Combine that up with the fact that this is the only ratings agency that the DoJ has pursued after the financial collapse in 2008, and it’s the most significant one that downgraded US credit while Obama has been President, and the actual raison d’être seems pretty clear.

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« Reply #121 on: April 03, 2013, 09:52:23 AM »

http://www.washingtontimes.com/news/2013/apr/2/obama-falls-behind-on-key-federal-courtfaltering-n/
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« Reply #122 on: July 25, 2013, 11:16:06 AM »

http://www.dickmorris.com/the-real-battle-dc-circuit-court-confirmations-dick-morris-tv-lunch-alert/?utm_source=dmreports&utm_medium=dmreports&utm_campaign=dmreports
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« Reply #123 on: October 28, 2013, 10:27:17 PM »

http://poorrichardsnews.com/post/65069957264/texas-judge-resigns-after-being-caught-texting
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« Reply #124 on: December 16, 2013, 08:20:24 AM »

Once again, Senate Democrats took advantage of having "gone nuclear" and ending the filibuster for judicial nominees. In the dark of night Thursday, the Senate confirmed Cornelia Pillard to the DC Circuit Court of Appeals by a vote of 51-44. That makes two additional Obama nominees on the court with the lightest workload, and it gives leftists a 6-4 advantage on the court that hears most challenges to executive actions. On top of that, National Review's Patrick Brennan calls Pillard "probably the most extreme of President Obama's judicial nominees this year." Why? Well, for example, Brennan says she opposed a church's right to be exempt from normal employment-discrimination law in order to decide on a minister. The Supreme Court disagreed with her, 9-0. Beware...
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« Reply #125 on: December 30, 2013, 07:41:37 AM »

http://elitedaily.com/news/world/missouri-bar-responds-cease-desist-starbucks-epic-letter-6-check-photos/

From the article:

When one of the largest companies in the United States serves you a “cease and desist” letter, there are various ways to approach it.

One way is to give in to any demands in fear of powerful lawyers and millions or billions of dollars, forgetting whatever you were doing that got you in that predicament in the first place.

The other option is to write a mocking apology letter and send a check for an extremely small amount of cash to prove a point.

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« Reply #126 on: December 30, 2013, 11:14:36 AM »

I love the Missouri, Exit 6 bar letter!  '[Your brand name] heretofore known as "The F-word" '.  'We weren't trying to use a similar name, we are just poor spelers'.  'We never thought alcoholic beverage consumers would confuse beer with coffee'.  Very funny!
« Last Edit: December 30, 2013, 11:21:26 AM by DougMacG » Logged
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« Reply #127 on: May 16, 2014, 08:02:13 PM »

Lawsuit Losers Pay
Animal-rights groups write more checks to Ringling Brothers.


May 16, 2014 6:44 p.m. ET

Animal-rights groups that made phony claims of abused circus elephants continue to pay for their bogus litigation. On Thursday Feld Entertainment, owner of the Ringling Brothers and Barnum & Bailey Circus, announced a legal settlement under which it received $15.75 million from the Humane Society of the United States and other animal-rights groups. This follows a 2012 agreement by the American Society for the Prevention of Cruelty to Animals to surrender $9.3 million to the producer of family-friendly entertainment.

The activist groups aren't settling out of a spirit of generosity. They're paying up because Feld exposed their payments to a former circus employee who offered false testimony. And as Judge Emmet Sullivan of the U.S. District Court for the District of Columbia noted last year, "the plaintiffs were unable to produce any credible evidence that any of them had standing to pursue their claims." He called their lawsuit "frivolous, unreasonable and groundless" and ordered them to pay Feld's attorneys fees. Total settlements of roughly $25 million now cover the costs of a defense that began in 2000 when the activists first lobbed their spurious claims.

On Thursday Feld Chairman and CEO Kenneth Feld said in a statement: "We hope this settlement payment, and the various court decisions that found against these animal rights activists and their attorneys, will deter individuals and organizations from bringing frivolous litigation like this in the future."

We share that hope. The standard business response to harassing litigation is to settle to avoid more costs and bad publicity, rather than trusting the legal system to vindicate the innocent. But the family-run Feld Entertainment shows what companies can do when they have the courage to fight back against abusive litigation.
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« Reply #128 on: January 17, 2015, 12:18:12 PM »

Justice Department Ends Role in Controversial Seizure Practice
New Policy Bars Participating in So-Called Federally Adopted Forfeitures
U.S. Attorney General Eric Holder, shown in December, issued new rules limiting the federal role in controversial asset seizures on Friday. ENLARGE
U.S. Attorney General Eric Holder, shown in December, issued new rules limiting the federal role in controversial asset seizures on Friday. David Goldman/Associated Press
By
Devlin Barrett and
Zusha Elinson
Updated Jan. 16, 2015 7:01 p.m. ET
49 COMMENTS

WASHINGTON—The Justice Department will no longer participate in asset seizures by local police agencies that critics say grab cash and other property from individuals without proving they have done anything wrong.

The new policy marks one of the most significant changes to asset forfeiture in decades and will bar the U.S. from participating in some types of seizures that have proven popular among state and local law-enforcement agencies because they provide a windfall of cash to local police.

Attorney General Eric Holder on Friday called the change “the first step in a comprehensive review that we have launched of the federal asset-forfeiture program.’’

The practice, known as federally adopted forfeitures, allowed local law enforcement to retain a greater portion of any seized assets—such as cash or other valuables—than under many state laws. Under “adoptions,” local police agencies would seize property in accordance with federal law and ask the federal government to “adopt” the forfeiture. The U.S. would then sell the assets and return a large chunk of the proceeds to the state or local agency.

While asset seizures were meant to target drug traffickers and other criminals, they have become increasingly controversial as people complained that their money, cars and other property were seized without evidence they had committed any crime.
More Reading

    Another Program to Track Calls Is Revealed

Sen. Charles Grassley (R., Iowa), who heads the Senate Judiciary Committee, had urged the Justice Department to end the practice. On Friday, he welcomed the shift, though he cautioned “the devil was in the details’’ of how it would be implemented.

“The rule of law ought to be about protecting innocent people. Too often, we’ve seen just the opposite with civil asset-forfeiture laws. The practice up to this point had perverse incentives,’’ Mr. Grassley said.

The asset-seizure practices of some police departments have come under attack from both libertarians, who view them as an example of overreaching government, and liberal groups, who contend the practice disproportionately targets minority drivers and citizens.

The American Civil Liberties Union also cheered the Justice Department’s decision, saying the past forfeiture practice “is a clear violation of due process that is often used to disproportionately target communities of color,’’ and urged state and federal lawmakers to pass laws to further scale back asset seizures.

Ron Brooks, a retired California state narcotics officer and past president of the National Narcotic Officers’ Associations Coalition, criticized the move, saying it would eliminate a valuable weapon in the fight against drug-trafficking organizations.
Previously

    County Sheriff Enjoys Fruits of Forfeitures (8/22/11)
    Federal Asset Seizures Rise, Netting Innocent With Guilty (8/22/11)

“While the money is helpful to us, that’s not the reason forfeiture occurs,” said Mr. Brooks, now a consultant. “It occurs because it removes the most critical component of these criminal organizations: the capital to operate,” he said.

Mr. Brooks said the move would deprive local law enforcement of money that it uses for things like police equipment and overtime pay.

In 2010, forfeiture programs confiscated homes, cars, boats and cash in more than 15,000 cases. The total take topped $2.5 billion, more than double the take five years earlier, Justice Department statistics show.

The rule change doesn’t prevent local authorities from using their own seizure laws to confiscate property.

The new policy also doesn’t apply to seizures resulting from joint operations involving federal and local law-enforcement authorities, or stemming from warrants that are issued by a federal judge.
In 2010, agents seized $392,000 in cash belonging to James Lieto, in the right foreground at Granite Check Cashing Service in Peekskill, N.Y. The money was later returned to the innocent bystander in a fraud inquiry. ENLARGE
In 2010, agents seized $392,000 in cash belonging to James Lieto, in the right foreground at Granite Check Cashing Service in Peekskill, N.Y. The money was later returned to the innocent bystander in a fraud inquiry. Jason Andrew for The Wall Street Journal

The two-page instruction signed by Mr. Holder on Friday also will still allow federal authorities to adopt seizures of weapons, explosives and assets that are linked to child pornography. He said that forfeiture is still a “critical law-enforcement tool when used appropriately.’’

Asset forfeiture by law-enforcement agencies has grown since the 1980s and 1990s, largely as a result of the fight against drug traffickers.

Justice Department officials said that when the laws were first applied, few states had their own seizure laws, so using the federal law was an effective way to strip criminals of their profits. Now, however, every state has either criminal or civil forfeiture laws.

It wasn’t immediately clear how much of an affect the federal change would have on state and local police departments, but the move isn’t expected to have much of an impact on federal accounts, since forfeiture adoptions in the past 6 years added up to just 3% of the value of forfeitures in the Justice Department’s Asset Forfeiture Program.

Write to Devlin Barrett at devlin.barrett@wsj.com and Zusha Elinson at zusha.elinson@wsj.com
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« Reply #129 on: May 04, 2015, 11:39:08 AM »



    94
    51

    Opinion
    Review & Outlook

Another 9-0 Smackdown
Even the liberal Justices conclude the EEOC abused its authority.
ENLARGE
Photo: Getty Images
May 3, 2015 5:34 p.m. ET
89 COMMENTS

Congress in its wisdom often delegates vast powers to the administrative state that stretch to points somewhere beyond the known universe. So congratulations to the Obama Administration’s regulatory cosmonauts for discovering these far-off limits and then managing to exceed even those, earning a unanimous rebuke last week from the Supreme Court.

The 1964 law that created the Equal Employment Opportunity Commission requires this anti-discrimination regulator to use “informal methods of conference, conciliation and persuasion” to resolve disputes with business. After these private negotiations, the commission can either settle or bring litigation. But 50 years later, the EEOC decided to disobey even this vague instruction, sue first, and then dare the courts to stop it.

In 2011 the EEOC rung up the Illinois-based Mach Mining for alleged hiring bias against female coal workers. The commission claimed that the grand total of two letters it sent to Mach a year apart—the first notifying the company of the allegation, the second announcing a lawsuit—had satisfied its “conciliation” obligation. The EEOC then claimed that its dispute-resolution methods, or lack thereof, were not subject to judicial review.

In other words, the commission tried to transform very broad discretion into infinite discretion by its own decree. The goal was to cow accused employers into surrendering behind closed doors and opening their wallets, without any appeal or oversight.

“But no, Congress has not left everything to the Commission,” Justice Elena Kagan dryly wrote for the 9-0 majority (her emphasis). Absent judicial oversight, “the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result.”

The Court held that the EEOC must demonstrate to judges that it “actually, and not just purportedly, tried to conciliate a discrimination charge.” From now on, an EEOC official must submit a “sworn affidavit” testifying to substantive engagement with an employer that a reasonable human could identify as conciliation, rather than nothing.

This standard is more narrow than the intrusion Mach preferred, which was for the courts to fly-speck conciliation procedures much as management-union labor disputes are monitored for good faith. And the EEOC probably does deserve to be put into bureaucratic receivership for its abuses, at least for the duration of this Administration.

But that is not an altogether convincing reading of the overly broad EEOC statute. One solution is for Congress to write better laws. The other is for the Administration to stay within its legal guardrails before it is again humiliated by every member of the High Court.
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« Reply #130 on: July 14, 2015, 08:52:40 PM »

12 reasons to worry about our criminal justice system, from a prominent conservative federal judge

By Eugene Volokh July 14 at 5:50 PM 

Judge Alex Kozinski — for whom I clerked 20 years ago, who is one of our nation’s most prominent appellate judges and who has long been seen as on balance a libertarianish conservative (appointed by President Reagan) — has recently published an article in the Georgetown Law Journal that says some pretty harsh things about our criminal justice system, and offers some (doubtless controversial) proposals for improving it. You can read the whole article, Criminal Law 2.0, but I also asked Judge Kozinski for permission to serialize the article here, and he graciously agreed. Here is the introduction, which gives 12 reasons to worry about our criminal justice system; I’ll post other parts of the article in the days to come. I’ve added some paragraph breaks and removed the footnotes (which are available in the PDF version), but otherwise this is as Judge Kozinski wrote it:

Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial.

Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

The “ten guilty men” aphorism is just one of many tropes we assimilate long before we become lawyers. How many of us, the author included, were inspired to go to law school after watching Juror #8 turn his colleagues around by sheer force of reason and careful dissection of the evidence? “If that’s what the law’s about, then I want to be a lawyer!” I thought to myself.

But is it? We know very little about this because very few judges, lawyers and law professors have spent significant time as jurors. In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense. Here are just a few examples:

1. Eyewitnesses are highly reliable. This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event — which pretty much covers all situations where identity is in dispute at trial. In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

2. Fingerprint evidence is foolproof. Not so. Identifying prints that are taken by police using fingerprinting equipment and proper technique may be a relatively simple process, but latent prints left in the field are often smudged and incomplete, and the identification process becomes more art than science. When tested by rigorous scientific methods, fingerprint examiners turn out to have a significant error rate. Perhaps the best-known example of such an error occurred in 2004 when the FBI announced that a latent print found on a plastic bag near a Madrid terrorist bombing was “a 100 percent match” to Oregon attorney Brandon Mayfield. The FBI eventually conceded error when Spanish investigators linked the print to someone else.

3. Other types of forensic evidence are scientifically proven and therefore infallible. With the exception of DNA evidence (which has its own issues), what goes for fingerprints goes double and triple for other types of forensic evidence: “Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).”

Other fields of forensic expertise, long accepted by the courts as largely infallible, such as bloodstain pattern identification, foot and tire print identification and ballistics have been the subject of considerable doubt. Judge Nancy Gertner, for example, has expressed skepticism about admitting expert testimony on handwriting, canines, ballistics and arson. She has lamented that while “the Daubert-Kumho standard [for admitting expert witness testimony] does not require the illusory perfection of a television show (CSI, this wasn’t), when liberty hangs in the balance — and, in the case of the defendants facing the death penalty, life itself — the standards should be higher . . . than [those that] have been imposed across the country.”

Some fields of forensic expertise are built on nothing but guesswork and false common sense. Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors. Cameron Todd Willingham may have lost his life over it.

4. DNA evidence is infallible. This is true to a point. DNA comparison, when properly conducted by an honest, trained professional will invariably reach the correct result. But the integrity of the result depends on a variety of factors that are, unfortunately, not nearly so foolproof: the evidence must be gathered and preserved so as to avoid contamination; the testing itself must be conducted so that the two samples being compared do not contaminate each other; the examiner must be competent and honest. As numerous scandals involving DNA testing labs have shown, these conditions cannot be taken for granted, and DNA evidence is only as good as the weakest link in the chain.

5. Human memories are reliable. Much of what we do in the courtroom relies on human memory. When a witness is asked to testify about past events, the accuracy of his account depends not only on his initial perception, but on the way the memories are recorded, stored and retrieved. For a very long time, it was believed that stored memories were much like video tape or film — an accurate copy of real-word experience that might fade with the passage of time or other factors, but could not be distorted or embellished.

Science now tells us that this view of human memory is fundamentally flawed. The mind not only distorts and embellishes memories, but a variety of external factors can affect how memories are retrieved and described. In an early study by cognitive psychologist Elizabeth Loftus, people were shown videos of car accidents and then questioned about what they saw. The group asked how fast the cars were going when they “smashed” into each other estimated 6.5 mph faster than the group asked how fast the cars were going when they “hit” each other. A week later, almost a third of those who were asked about the “smash” recalled seeing broken glass, even though there was none.

This finding has troubling implications for criminal trials where witnesses are questioned long and hard by police and prosecutors before the defense gets to do so — if ever. There is thus plenty of opportunity to shape and augment a witness’s memory to bring it into line with the prosecutor’s theory of what happened. Yet with rare exceptions, courts do not permit expert testimony on human memory.

For example, the district judge in the Scooter Libby case denied a defense motion for a memory expert, even though the key issue at trial was whose recollection of a 4-year-old telephone conversation should be believed. At least one member of the jury that convicted Libby lamented the lack of expert testimony on the subject. And a key witness in that case recently suggested in her memoirs that her memory may have been distorted by the prosecutor’s crafty questioning. Given the malleability of human memory, it should come as no surprise that many wrongful convictions have been the result of faulty witness memories, often manipulated by the police or the prosecution.

6. Confessions are infallible because innocent people never confess. We now know that this is not true. Innocent people do confess with surprising regularity. Harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the ordeal, emotional and financial exhaustion, family considerations and the youth or feeble-mindedness of the suspect can result in remarkably detailed confessions that are later shown to be utterly false.

7. Juries follow instructions. This is a presumption — actually more of a guess — that we’ve elevated to a rule of law. It is, of course, necessary that we do so because it links the jury’s fact-finding process to the law. In fact, however, we know very little about what juries actually do when they decide cases. Do they consider the instructions at all? Do they consider all of the instructions or focus on only some? Do they understand the instructions or are they confused?

We don’t really know. We get occasional glimpses into the operations of juries when they send out questions or someone discloses juror misconduct, and even then the information we get is limited. But we have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases. And, because the information we get from inside the jury room is so limited and sporadic, experience does little to improve our knowledge. Looking at 100 black boxes is no more informative than looking at one.

8. Prosecutors play fair. The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely to obtain a conviction. It has also laid down some specific rules about how prosecutors, and the people who work for them, must behave — principal among them that the prosecution turn over to the defense exculpatory evidence in the possession of the prosecution and the police.

There is reason to doubt that prosecutors comply with these obligations fully. The U.S. Justice Department, for example, takes the position that exculpatory evidence must be produced only if it is material. This puts prosecutors in the position of deciding whether tidbits that could be helpful to the defense are significant enough that a reviewing court will find it to be material, which runs contrary to the philosophy of the Brady/Giglio line of cases and increases the risk that highly exculpatory evidence will be suppressed. Beyond that, we have what I have described elsewhere as an “epidemic of Brady violations abroad in the land,” a phrase that has caused much controversy but brought about little change in the way prosecutors operate in the United States.

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt. Juries are routinely instructed that the defendant is presumed innocent and the prosecution must prove guilt beyond a reasonable doubt, but we don’t really know whether either of these instructions has an effect on the average juror. Do jurors understand the concept of a presumption? If so, do they understand how a presumption is supposed to operate? Do they assume that the presumption remains in place until it is overcome by persuasive evidence or do they believe it disappears as soon as any actual evidence is presented? We don’t really know.

Nor do we know whether juries really draw a distinction between proof by a preponderance, proof by clear and convincing evidence and proof beyond a reasonable doubt. These levels of proof, which lawyers and judges assume to be hermetically sealed categories, may mean nothing at all in the jury room. My own experience as a juror certainly did nothing to convince me that my fellow jurors understood and appreciated the difference. The issue, rather, seemed to be quite simply: Am I convinced that the defendant is guilty?

Even more troubling are doubts raised by psychological research showing that “whoever makes the first assertion about something has a large advantage over everyone who denies it later.” The tendency is more pronounced for older people than for younger ones, and increases the longer the time-lapse between assertion and denial. So is it better to stand mute rather than deny an accusation? Apparently not, because “when accusations or assertions are met with silence, they are more likely to feel true.”

To the extent this psychological research is applicable to trials, it tends to refute the notion that the prosecution pulls the heavy oar in criminal cases. We believe that it does because we assume juries go about deciding cases by accurately remembering all the testimony and weighing each piece of evidence in a linear fashion, selecting which to believe based on assessment of its credibility or plausibility. The reality may be quite different. It may be that jurors start forming a mental picture of the events in question as soon as they first hear about them from the prosecution witnesses. Later-introduced evidence, even if pointing in the opposite direction, may not be capable of fundamentally altering that picture and may, in fact, reinforce it.

And the effect may be worse the longer the prosecution’s case lasts and, thus, the longer it takes to bring the contrary evidence before the jury. Trials in general, and longer trials in particular, may be heavily loaded in favor of whichever party gets to present its case first — the prosecution in a criminal case and the plaintiff in a civil case.

If this is so, it substantially undermines the notion that we seldom convict an innocent man because guilt must be proven to a sufficient certainty. It may well be that, contrary to instructions, and contrary to their own best intentions, jurors are persuaded of whatever version of events is first presented to them and change their minds only if they are given very strong reasons to the contrary.

10. Police are objective in their investigations. In many ways, this is the bedrock assumption of our criminal justice process. Police investigators have vast discretion about what leads to pursue, which witnesses to interview, what forensic tests to conduct and countless other aspects of the investigation. Police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted.

And not just small-town police in Podunk or Timbuktu. Just the other day, “[t]he Justice Department and FBI [] formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all [of the 268] trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” Do they offer a class at Quantico called “Fudging Your Results To Get A Conviction” or “Lying On The Stand 101”? How can you trust the professionalism and objectivity of police anywhere after an admission like that?

There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence, but two examples will suffice:

In 2013, Debra Milke was released after 23 years on Arizona’s death row based entirely on a supposed oral confession she had made to one Detective Saldate who was much later shown to be a serial liar. And then there is the case of Ricky Jackson, who spent 39 years behind bars based entirely on the eyewitness identification of a 12-year-old boy who saw the crime from a distance and failed to pick Jackson out of a lineup. At that point, “the officers began to feed him information: the number of assailants, the weapon used, the make and model of the getaway car.” 39 years!

For some victims of police misconduct, exoneration comes too late: Mark Collin Sodersten died in prison while maintaining his innocence. After his death, a California appellate court determined that Sodersten had been denied a fair trial because police had failed to turn over exculpatory witness tapes. It posthumously set aside the conviction, which no doubt reduced Sodersten’s time in purgatory.

11. Guilty pleas are conclusive proof of guilt. Many people, including judges, take comfort in knowing that an overwhelming number of criminal cases are resolved by guilty plea rather than trial. Whatever imperfections there may be in the trial and criminal charging process, they believe, are washed away by the fact that the defendant ultimately consents to a conviction. But this fails to take into account the trend of bringing multiple counts for a single incident — thereby vastly increasing the risk of a life-shattering sentence in case of conviction — as well as the creativity of prosecutors in hatching up criminal cases where no crime exists and the overcriminalization of virtually every aspect of American life.

It also ignores that many defendants cannot, as a practical matter, tell their side of the story at trial because they fear being impeached with prior convictions or other misconduct. And, of course, if the trial process is perceived as highly uncertain, or even stacked in favor of the prosecution, the incentive to plead guilty to some charge that will allow the defendant to salvage a portion of his life, becomes immense. If the prosecution offers a take-it-or-leave-it plea bargain before disclosing exculpatory evidence, the defendant may cave to the pressure, throwing away a good chance of an acquittal.

12. Long sentences deter crime. In the United States, we have over 2.2 million people behind bars. Our rate of approximately 716 prisoners per 100,000 people is the highest in the world, over 5 times higher than that of other industrialized nations like Canada, England, Germany and Australia. Sentences for individual crimes are also far longer than in other developed countries. For example, an individual convicted of burglary in the United States serves an average of 16 months in prison, compared with 5 months in Canada and 7 months in England. And the average prison sentence for assault in the United States is 60 months, compared to under 20 months in England, Australia and Finland.

Incarceration is an immensely expensive enterprise. It is expensive for the taxpayers, as the average cost of housing a single prisoner for one year is approximately $30,000. A 20-year sentence runs into something like $600,000 in prison costs alone. Long sentences are also immensely hard on prisoners and cruel to their families, as it’s usually very difficult for a prisoner to re-integrate into his family and community after very long prison sentences.

We are committed to a system of harsh sentencing because we believe that long sentences deter crime and, in any event, incapacitate criminals from victimizing the general population while they are in prison. And, indeed, the United States is enjoying an all-time low in violent crime rates, which would seem to support this intuition.

But crime rates have been dropping steadily since the 1990s, and not merely in the United States but throughout the industrialized world. Our intuition about harsh sentences deterring crime may thus be misguided. We may be spending scarce taxpayer dollars maintaining the largest prison population in the industrialized world, shattering countless lives and families, for no good reason. As with much else in the law, the connection between punishment and deterrence remains mysterious. We make our decisions based on faith.


Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/14/12-reasons-to-worry-about-our-criminal-justice-system-from-a-prominent-conservative-federal-judge/
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