Only Professor Bainbridge has the special insight to note that NBA referee Joey Crawford’s suspension-drawing ejection of the Spurs Tim Duncan in a game last week confirms the core of the Professor’s approach to corporate governance — “Whether on the court or in the board room, the power to review is the power to decide.”
Given the well-chronicled problems with the Harris County Crime Lab’s handling of DNA evidence, the proposal made in this Roger Koppl/New York Post op-ed focusing on the misuse of DNA evidence in the Duke lacrosse team case makes a lot of sense:
DNA is no magic bullet of truth when the testers are aligned unambiguously with the prosecution. During the testimony in which it was revealed that [prosecutor Mike] Nifong and [DNA Lab director Brian] Meehan had agreed to hide the DNA evidence, Meehan referred to Nifong as “my client.” Instead of serving the truth, Meehan’s forensics lab was helping its “client,” the prosecutor.
When forensic scientists work exclusively for the prosecution, we should expect errors and abuse. Using post-conviction DNA evidence, the Innocence Project has helped exonerate nearly 200 people wrongly convicted of crimes. A study of the first 86 such cases, published in the journal Science, found faulty forensics played a role in almost two-thirds of those convictions.
The time has come to free forensic science from the pressures of prosecutorial bias. To that end, crime labs should become independent of police and prosecutors, and public defenders should be given greater access to forensic advice and testing. Crime labs should be independent, operating under the supervision of an officer of the court, who would be responsible for assigning forensic evidence to laboratories and ensuring that all crime labs in the system are following proper scientific procedures.
Don’t miss this Chuck Lindell/Austin American Statesman that reports on the bizarre case of Jimmy Lee Page, a man who was acquitted of murder twenty years ago, but was never released from prison:
Now 52, Page is in prison today because state officials revoked his parole ó trumping the juryís verdict with their own finding of guilt. Itís a common practice. Last year, 91 Texas parolees were returned to prison after being charged with a new crime, even though the charges against them were later dropped or they were acquitted in court.
Bound by looser rules than a court of law, parole officials reached their verdict on Page after hearing testimony from only one witness, a police detective who declares Page is ìguilty as homemade sin.î In the years since, he was denied parole a dozen times, most recently in early 2006.
Page is certainly no saint. He was convicted of murder in 1975 and sentenced to life in prison, but he was paroled on that conviction after eleven years. Maybe he still ought to be serving time for that murder. However, he is serving time for a crime for which he was acquitted. That’s wrong.
Lindell goes on to address the lax parole hearing process, noting that the system gives undertrained and unprepared people mere moments to look at a case before making a decision and moving on to the next one. In such an environment, maintaining the status quo becomes the most convenient outcome. Constitutional guarantees such as due process, confrontation of witnesses, and a reasonably competent defense are mere afterthoughts.
This looks to me like a process that is ripe for a Constitutional challenge.
D. Todd Smith of Austin, who runs a terrific new blawg, Texas Appellate Law Blog passes along this post informing that the Texas Supreme Court’s era of webcasting has begun. You can access the webcasts here.
As Todd notes, the feed has a bit of a “Court TV” feel to it, but it’s fascinating nonetheless. The webcast includes a brief summary of the case being argued and the main webcast page includes a schedule of upcoming arguments, along with links to digital briefs involved in the cases. Check it out.
Former NY Times reporter Kurt Eichenwald — best known for his coverage of the Enron scandal for the Times and his book on the scandal, Conspiracy of Fools — penned this Times article (related blog post here) over a year ago that told the sad story of a teen-ager who was seduced by online pedophiles.
Well, fresh from making a mint off of writing about Enron’s alleged non-disclosures, it appears that Eichenwald has his own non-disclosure problem relating to this story, at least according to this NY Times Editor’s Note:
An article by Kurt Eichenwald on Dec. 19, 2005, reported on a teenage boy’s sexual exploitation on the Internet, and an accompanying Reporter’s Essay by Mr. Eichenwald published on nytimes.com explained the details of his initial contact with the subject.
The essay was intended to describe how Mr. Eichenwald persuaded Justin Berry, then 18, to talk about his situation. But Mr. Eichenwald did not disclose to his editors or readers that he had sent Mr. Berry a $2,000 check. Mr. Eichenwald said he was trying to maintain contact out of concern for a young man in danger, and did not consider himself to be acting as a journalist when he sent the check.
Mr. Eichenwald explained in his essay that, at the outset, he did not identify himself to Mr. Berry as a reporter. After they met in person, but before he decided that he wanted to write an article, Mr. Eichenwald said he told the youth that the money would have to be returned. Times policy forbids paying the subjects of articles for information or interviews. A member of Mr. Berry’s family helped repay the $2,000.
The check emerged as part of a criminal proceeding involving Mr. Berry in which a Michigan man is charged with criminal sexual conduct, enticing a minor to commit immoral acts and distributing child pornography. The trial began yesterday.
The check should have been disclosed to editors and readers, like the other actions on the youth’s behalf that Mr. Eichenwald, who left The Times last fall, described in his article and essay.
This New York Magazine article reports on Eichenwald’s testimony as a witness in the criminal proceeding and Eichenwald’s long explanation with related reader comments over at PoynterOnline is also quite interesting. Meanwhile, the Gawker weighs in with a snarky post here. As the story continues to gather steam, MediaWire Daily chimes in earlier this week with this interesting aspect of Eichenwald’s payment to Berry, and this FAIR article reports on a kerfuffle that recently arose between Eichenwald, the Times, Slate and journalist Debbie Nathan over investigating online child porn in violation of child predator laws, which Gawker is reporting will result in a $10 million defamation lawsuit by Eichenwald against Nathan. Finally, Michelle Malkin piles on here.
Longtime University of Texas Law Professor Sandy Levinson has teamed up with Jack Balkin of Balkinization fame to author a new SSRN paper, 13 Ways of Looking at Dred Scott. For a provocative abstract, check the following out:
Dred Scott v. Sanford is a classic case that is relevant to almost every important question of contemporary constitutional theory.
Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who American belongs to still roil our national debates.
Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally held lands overseas. And it asks whether, as Chief Justice Taney famously said of blacks, there are indeed some people who have no rights we Americans are bound to respect.
Dred Scott remains the most salient example in debates over the legitimacy of substantive due process. It subverts our intuitions about the relative merits of originalism and living constitutionalism. It symbolizes the problem of constitutional evil and the question whether responsibility for great injustices lies in the Constitution itself or in the judges who apply it.
Finally, Dred Scott encapsulates the central problems of judicial review in a constitutional democracy. On the one hand, Dred Scott raises perennial questions about the judicial role in cases of profound moral and political disagreement, and about judicial responsibility for the backlash and political upheaval that may result from judicial review. On the other hand, the political context of the Dred Scott decision suggests that the Supreme Court rarely strays far from the wishes of the dominant national political coalition. It raises the unsettling possibility that, given larger social and political forces, what courts do in highly contested cases is far less important than we imagine.
Russ Roberts has a common sense post over at Cafe Hayek explaining why the federal government should not oppose the proposed merger of satellite radio companies XM and Sirius, both of which are enduring blistering competition with each other and a wide variety of other available entertainment options. As usual, even though this isn’t a close call as to whether the merger should be approved, the Federal Communications Commission is already showing some resistance to it.
One thing that Roberts doesn’t mention in his post is that the FCC’s threatened resistance is particularly incongrous because the regulatory agency dictated the playing field in satellite radio by only licensing two companies in the first place. So, instead of allowing a reasonably free market to sort out the winners and losers, the FCC’s regulatory wand made sure that there would only be two companies competing in the market, neither of which is anywhere close to turning a profit. Of course, it didn’t help that XM and Sirius have had to expend considerable funds and management time in opposing attempts by the National Association of Broadcasters and the recording industry to manipulate regulations in their favor and against satellite radio.
Which brings me to my point. Many folks believe that, inasmuch as established businesses generally abhor regulation, that must mean that regulation is good for the consumer. However, the reality is that established businesses typically use a part of their resources to deal with and manipulate regulation to their advantage and against that of new companies that seek to compete against the established businesses. A big, well-established business can absorb the high cost of regulation and pass it along to the consumer. A thinly-leveraged start-up does not have that luxury.
Following up on the sad case of Louis Conradt Jr. (previous posts here and here), this extraordinary Douglas McCollam/Columbia Journalism Review article entitled The Shame Game examines the big game hunting of alleged sexual predators in America and the big money that the entertainment industry is making off of it.
This is a harrowing tale and not one with easy answers, particularly with regard to the difficulty of defending alleged predators in the criminal justice system. But a truly civil society would sort these issues out in a far different manner than what is currently taking place on NBC’s Dateline. Hat tip to Norm Pattis for the link to the article.
As noted previously here and here, it is well known around the U.S. that the Rio Grande Valley and much of the Coastal Plain southwest of the Houston metro area is a plaintiff’s lawyer’s paradise.
It’s just not everyday that a plaintiff’s lawyer — in this case, Friendswood lawyer Anthony Buzbee — brags about it to a roomful of defense lawyers. While being recorded. Which results in a prominent Nathan Koppel/Wall Street Journal ($) article and a blog post in Peter Lattman’s popular WSJ Law Blog.
Not surprisingly, the recording of Buzbee’s talk is being used at the state legislature by lobbyists and legislators wanting to change one of the favorable venue provisions that Buzbee bragged about in his talk.
Longtime Houston plaintiff’s lawyer Ronnie Krist pretty well summed up in the WSJ article how most plaintiff’s lawyers are reacting to Buzbee’s talk:
“Lawyers are always looking for a more favorable venue, but to say in a public forum that notwithstanding the evidence, an Hispanic jury and judge will allow you to win undermines public confidence” in the system, he says. “Those are the sorts of things you shouldn’t whisper to your wife in the middle of the night.”
One of the areas of practice that I have developed over the years is defending parties in contempt of court proceedings. Those are never easy cases (don’t believe me? Read about this one), but some of the ugliest occur in the family courts where judges often will hold an ex-husband in contempt of court and jail him for failure to fulfill a support obligation.
According to this NY Times article, New York is experiencing a similar problem as family court judges in a number of cases there have used this supposedly rare sanction to punish ex-husbands. Although information on the number of these debtor prison-type cases is mostly anecdotal, it’s reasonably clear that the use of the contempt sanction in financial-inability-to-pay cases is a more widespread practice than it should be. As I’ve mentioned to more than a few divorce lawyers and family law court judges over the years, it’s particularly difficult for an ex-husband to generate income to pay his support or alimony obligations while he is cooling his heels in a local jail cell.