Wednesday, February 18, 2015

Murderer Takes Selfie With Victim's Corpse

What's there to say? An early frontrunner for dumbest criminal of the year. TechDirt has the story.

Your Fate in Others' Hands

One of the scariest things about litigation is that your fate is in the hands of people you don't know who may or may not see the world the same way you do. Everyone has their own prejudices, biases, experiences, and understandings of what makes sense to them and what doesn't. Sometimes the mental predispositions of other people line up with your own thinking and sometimes they don't. It's not necessarily that one world view is "right" and another is "wrong." It's just that different people see things in different ways. Often that's a good thing because different viewpoints can be an engine of progress and a fountain of new and interesting ideas.

In a legal setting, however, these differences can be terrifying because what makes perfect sense to you might seem utterly foreign or unbelievable to someone else or vice versa.

Take, for example, a case where a woman reports that she was sexually assaulted. An investigation reveals that the morning after the alleged assault, the woman sent text messages to the alleged assailant saying "I'm ok" or "I'm fine." What is the right way to interpret the significance of those messages? Are the text messages admissions that nothing really happened the night before or are they signals that the woman is still processing the trauma she experienced?

In a recent article in the Chronicle of Higher Education by Andy Thomason and Robin Wilson, here is what one lawyer who specializes in investigating allegations of sexual assaults on college campuses is quoted as saying:
"I’ve seen text messages exchanged very, very soon after an alleged assault, and I put less weight onto those," she says. If a woman is saying things like "It’s OK" or "I’m fine," says Ms. Kurker, "they don’t mean anything except the person just doesn’t want to deal with the situation right now." 
But if, weeks on, the alleged victim is sending friendly texts to the alleged perpetrator, that could mean something different. "It doesn’t make sense," she says, "that they would be exchanging flirty text messages after that time if something had gone wrong."
What's interesting about this statement by the investigator is not whether her view of what different messages at different times might mean for a particular person is right or wrong, because how would you know, especially in an individual case. Rather, the statement is striking because it offers a glimpse into the influence of preconceived notions on interpreting events and forming judgments about them.

And here's the real point: everyone comes to questions of fact with preconceived notions. Sometimes we call these notions experience. Sometimes we call them common sense. Those are the positive descriptors. If we disagree with the predispositions, we call them bias, prejudice, or ignorance.

For people caught up in the legal system, the reality is that winners and losers will in many cases be decided, right or wrong, by what makes sense to other people whether we agree with them or not.

Thursday, February 12, 2015

$60k for One Year of Stanford

The San Jose Mercury News has this report today:
Stanford University will hike its tuition this fall by 3.5 percent, bringing it to $45,729, the campus announced Wednesday.
The new fees will raise the undergraduate tab to $60,427 for next year, a total that includes $14,107 for room and board and $591 for a mandatory health fee.
Because of financial aid, most students don’t pay the full sticker price, but still, that’s a lot of money. Paying full freight for four years at Stanford costs a cool quarter million. And the costs keep going up.

Saturday, February 7, 2015

Tamping Down on Memory Tampering

Andrew Whitman at the American Criminal Law Review has this story about a new Illinois law that tries to solve the problem of police giving subtle or not-so-subtle hints to eyewitnesses trying to pick suspects out of lineups or photo arrays.
The Illinois law counters the problems of cognitive and confirmation bias. The law first requires that photo arrays (in which witnesses are shown pictures of the suspect and “fillers”) and in-person lineups be conducted by officers who do not know which choice is the suspect. Nobody who knows the identity of the suspect is allowed in the room. Next, the law sets standards to ensure that the police’s suspect “does not unduly stand out from the fillers.” For example, it would be against the spirit of the law if all of the fillers wore prison garb, and the suspect wore a shirt and tie.
 Most uniquely, the new law requires that lineups and photo array identification be videotaped by an unbiased police officer. Thus, the State of Illinois hopes to remove the guesswork of identifying bias and see for itself what’s going on.
Read the whole thing: Videotaping Justice: How Illinois Has Dealt With the Problem of Police Suggestion and How it Might be Used at Trial

Friday, January 30, 2015

Dartmouth, Hard Liquor, and Sexual Assault

It is not always fashionable to connect alcohol with sexual assault, although studies show significant percentages of sexual assaults involve alcohol. Dartmouth College, however, seems to see a connection.

According to the Associated Press, Dartmouth will ban hard liquor on its campus and increase training programs to prevent sexual violence:
Dartmouth College banned hard liquor on campus Thursday and said all students will have to take part in a sexual violence prevention program all four years they are at the Ivy League school.
It will be interesting to see if Dartmouth's experiment will be effective.

Source: Dartmouth Bans Hard Liquor, Takes Steps to Prevent Rape

Wednesday, January 28, 2015

Words You Don't Want to Hear

"We find the defendant guilty of aggravated rape." These are words you definitely never want to hear if you're sitting in the defendant's chair in a criminal trial, but two former Vanderbilt football players in a Tennessee courtroom had to listen to just those words as the jury foreperson read out guilty verdicts against them for sexually assaulting a woman who was passed out.

At the trial, the football players apparently tried to argue that they were too drunk to know what they were doing. Bad idea. The Washington Post has the story:
The defense blamed alcohol.
“The testimony was he was crazy drunk and didn’t know what he was doing,” Worrick Robinson, Batey’s attorney, said at trial.
Such arguments that the defendants were not in their right minds — or that their actions should be blamed on a college culture of licentiousness — did not go over with the jury.
This case illustrates that blaming alcohol isn't going to beat a rape charge. In California, as the Attorney General recently explained, voluntary intoxication is no defense to lack of consent. (Pen. Code, § 29.4, CALCRIM No. 3426.)

The drunk defense won't even beat a college campus disciplinary proceeding. As the Attorney General put it, “under SB 967, if the accused believed—due to the accused’s own intoxication or recklessness—that the complainant consented, this belief is not a valid excuse for any lack of affirmative consent. (Ed. Code, § 67386, subd. (a)(2)(A).)”

“I was just drunk out of my mind,” said one of the Vanderbilt defendants. “This is something I would never do in my right state of mind.”

Maybe, maybe not. It doesn't really matter. He did it, and so he is going to jail.

Getting drunk is dangerous. It is dangerous because it makes people more vulnerable to crime. It is dangerous because it makes people more likely to commit crimes. These two Vanderbilt football players learned that lesson the hard way.

California Attorney General Issues Guidance on Sexual Assaults on College Campuses

Yesterday, the Attorney General of California issued guidance on two new California laws that impose new requirements for how colleges and universities in California must respond to reports of sexual misconduct on their campuses.

Broadly speaking, AB 1433 requires California colleges to report to local law enforcement reports of violent crimes, hate crimes, or sexual assaults.

SB 967 is the well publicized "affirmative consent" law that requires California colleges to require "affirmative consent" as the standard for consent on their campuses.
“Affirmative consent” is defined as an affirmative, conscious, and voluntary agreement to engage in sexual activity. Under the law, neither the lack of protest or resistance nor silence constitutes consent, and consent may be withdrawn at any time. Affirmative consent must be given by all parties to sexual activity.
The law also requires campuses to use the preponderance of the evidence standard in evaluating reports, which is codifies into state law the guidance issued by the US Department of Education's Office for Civil Rights.

Many of SB 967's requirements track obligations already in place under the Clery Act, so the Attorney General's description of the California law may offer insights for institutions of higher education outside of California's borders.

As always, read the whole thing for the full story: New and Amended Campus Safety Laws; Points of Collaboration between Campus Personnel and Law Enforcement 

Monday, January 26, 2015

New Survey on Sexual Assault

Sometimes all you have to do is ask. Last week, I posted links to the most prominent studies on the frequency of sexual assault on college and university campuses, but noted that further study would be very helpful in nailing down the best estimates.

It turns out that the American Association of Universities announced that it will be trying to answer this very question be conducting surveys this spring at 28 college and universities that represent over 800,000 students. The AAU's press release describes the study this way:
A team of experts from universities and Westat is developing the survey, based on an instrument developed by the White House Task Force to Protect Students from Sexual Assault. The survey will document the frequency and characteristics of campus sexual assault and sexual harassment, and assess campus climate in a way that allows for comparability of data across institutions and that protects the confidentiality of respondents.
The press release doesn't provide details on the study's methodology, but according to the press release, “the survey is expected to be among the largest ever on sexual assault." Here's hoping for a successful and informative survey.

Friday, January 23, 2015

Frequency of Sexual Assault on College Campuses

Without question, a single sexual assault on a college or university campus (or anywhere else for that matter) is one too many. Nevertheless, the frequency of sexual assaults has taken a central place in political and legal debates over the policies and regulations that should govern colleges and universities.

While numerous studies exist, three in particular are at the epicenter of these debates:

The studies reached radically different conclusions about the frequency of sexual assaults among college students. For example, the CSA study concluded that one in five women (20 percent) experience a sexual assault in college. The NCVS study put the number at six out of a thousand (0.6 percent). That's quite a difference.

Differences in methodology, framing of questions, and definitions might explain some of the discrepancy between the various numbers. The NCVS report has an illuminating discussion of some of these differences for those that are interested.

Like many social science questions, further study will hopefully cast more light on this important question.

Tuesday, January 20, 2015

White House Reports on Sexual Assault on College Campuses

President Obama’s White House is leading the charge on demanding that colleges and universities do more to prevent and respond to sexual assault on their campuses.

In 2014, the White House issued two reports, which, along with the OCR Guidance Documents, should be considered required reading for understanding the current legal climate for colleges and universities and sexual assaults on college campuses:
The April Report was the product of a Presidential Memorandum establishing a White House Task Force to Protect Students from Sexual Assault, signed January 22, 2014. The Presidential Memorandum is also worth reading.

President Barack Obama signs the Campus Sexual Assault Presidential Memorandum
President Barack Obama signs the Campus Sexual Assault Presidential Memorandum during a White House Council on Women and Girls meeting in the East Room of the White House, Jan. 22, 2014. (Official White House Photo by Lawrence Jackson)

Among other interesting bits, the Presidential Memorandum summarizes the legal responsibilities of colleges and universities:
Among other requirements, institutions of higher education participating in Federal student financial assistance programs (institutions), including colleges, universities, community colleges, graduate and professional schools, for-profit schools, trade schools, and career and technical schools, must provide students with information on programs aimed at preventing rape and sexual assault, and on procedures for students to reporting rape and sexual assault.  Institutions must also adopt and publish grievance procedures that provide for the prompt and equitable resolution of rape and sexual assault complaints, and investigate reports of rape and sexual assault and take swift action to prevent their recurrence.  Survivors of rape and sexual assault must also be provided with information on how to access the support and services they need.  Reports show, however, that institutions' compliance with these Federal laws is uneven and, in too many cases, inadequate.
It's good to know what the White House is thinking.

How Much Does It Cost to Litigate a (Heavily) Contested Copyright Case?

How much does it cost to litigate a heavily contested copyright lawsuit? In one recent case in New York involving the Beastie Boys and the Monster Energy Company, the answer was nearly $2.5 million.

The Beastie Boys won their infringement case, and their attorneys broke down their expenses in their motion for fees:
  • Pleadings and discovery: $895,926
  • Trial: $1,288,811 million
  • Post-trial motions: $200,438
  • Costs (e.g., court reporters, deposition and trial transcripts, postage and messengers): $99,261
By the way, how much did the Beastie Boys win in their infringement claim? Just $1.7 million. This is another example of how the costs of litigation can easily surpass the value of what's at stake. 

Interestingly, it appears that the trial court could see this result coming. The motion for fees quotes the judge as telling the parties a year before the trial to think of the bloodbath of World War I:
[A] very large percentage of the area in controversy is about to be chewed up by the lawyers here, particularly if this case finishes trial and goes to appeal. And there will come a time when both parties look back at this and say to themselves, why didn't I read The Guns of August, nobody wanted war but it came anyway and everybody suffered. That's what's about to happen. You're about the fight the Battle of Verdun and slaughter each other somewhere over the middle of France.
Very wise advice for litigants and potential litigants everywhere.

Monday, January 19, 2015

Sexual Harassment and Assault on College Campuses: Essential Reading from the US Office for Civil Rights

Sexual assault on US college campuses has been a big topic in the news recently. The US Department of Education Office for Civil Rights has published extensive guidance on its interpretation of the legal rules that govern how US college and universities respond to allegations of sexual harassment in general and sexual assault in particular.

Any conversation about how colleges and universities should respond to claims of sexual assault must consider OCR’s interpretations of the law governing institutions of higher education. Below are links to the OCR guidance that are essential reading to understand OCR’s perspective:
These documents are a good introduction to OCR’s perspective. Another essential document to read in this area is the US Supreme Court's decision in Davis v. Monroe County Board of Education. How to reconcile Davis and OCR’s statements is worthy of careful consideration, but first things first.

Happy reading.