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.

$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.

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

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

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 

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.

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 2007 Campus Sexual Assault Study (also known as the "CSA");
• the 2010 National Intimate Partner and Sexual Violence Survey (the "NISVS"); and
• the 2014 analysis of the Bureau of Justice Statistics' National Crime Victimization Survey (the "NCVS") published under the title Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013.

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.

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:

• January 2014 — Rape and Sexual Assault: A Renewed Call to Action

• April 2014 — Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault

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 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.

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:

• Jan 19, 2001 — Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties


• July 28, 2003 — Dear Colleague Letter on First Amendment 


• September 2008 — Sexual Harassment: It's Not Academic


• Oct. 26, 2010 — Dear Colleague Letter on Harassment and Bullying


• April 4, 2011 — Dear Colleague Letter on Sexual Harassment and Violence


• Apr. 29, 2014 — Questions and Answers on Title IX and Sexual Violence

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.

Would You Confess to a Crime You Did Not Commit?

The purpose of the legal system is to find out the truth. In the American system of justice, the search for truth is entrusted to competing advocates who argue the opposite side of a question. The assumption is that these dueling advocates are more or less equal in skill, abilities, and resources, so the outcome of their confrontation will be dictated by who has the better case — in other words, the better claim to the truth. Sometimes, however, the scales of justice are not so evenly balanced.

In a justice system that relies so heavily on the skills and abilities of lawyers to argue for their clients and persuade skeptical third-parties of the truth, the story of Michael Philips shouldn’t come as too much of a surprise. The Washington Post reports:

In 1990, Michael Phillips was convicted of raping a 16-year-old girl at a motel in Dallas, Tex., where they both lived. Phillips pleaded guilty because, he said later, his attorney told him that as a black man who had been accused of raping a white teenager, he should try to avoid a jury trial. He went to prison for a dozen years and, after his release, spent another six months in jail after failing to register as a sex offender.

According to the Post’s report, a quarter century after the attack, DNA evidence conclusively has demonstrated that Phillips was not the rapist, too late to save Phillips from serving time for a crime he did not commit, but another sobering reminder that the legal system is not free from mistakes.

What evidence did Philips face that convinced him it was better to confess to a crime he did not commit than to try to prove his innocence in court? The eyewitness identification of the victim. According to the Post:

The woman who was raped partially pulled up the ski mask on her attacker, and she said she recognized Phillips. She also picked a photo of him out of a lineup.

Eyewitness identifications are notoriously unreliable. They are also devastatingly persuasive. Combine that with the charged background of race relations and extremely long sentences for people accused of crimes who exercise their right to test prosecutor’s cases in court, and Michael Phillips’ decision to accept a dozen years in prison over much harsher alternatives if the dice did not fall his way makes chilling sense.

From the safety and security of our homes, it is easy to say that we would never confess to a crime we did not commit, but Michael Phillips’ story should give us pause. It is nice to think that truth prevails, but that is not always how things turn out, and sometimes an innocent man serves someone else’s time while the true perpetrator goes free.

Exonerations in 2013

According the University of Michigan’s National Registry of Exonerations (website), “2013 was a record-breaking year for exonerations,” with 87 people found to be innocent of the crimes for which they were sent to prison.

According to the report, on average, these innocent people spent more than 12 years in prison before they were exonerated.

The most astonishing number is that 15 of the 87 exonerations recorded in the registry last year were in cases where the accused had pleaded guilty. This is worth thinking about. Fifteen people confessed to crimes that they did not commit. They went to prison, served time, and were only released many years later when their own confessions were proven to be false.

In the opinion of the authors of the report, the greater number of exonerations demonstrates that the criminal justice system is becoming increasingly willing to consider the possibility that the system sometimes makes mistakes:

The pattern of exonerations in 2013 suggests that we are increasingly willing to consider and act on the types of innocence claims that are often ignored: those without biological evidence or with no actual perpetrator; cases with comparatively light sentences; judgments based on guilty pleas by defendants who accepted plea bargains to avoid the risk of extreme punishment after trial.

The report is interesting throughout, and you can read the whole thing here.

Peremptory Challenges

Picking a jury is an important moment in a lawsuit. The jurors will decide the outcome of the case, but jurors are not legal professionals, and they come to court with the full array of biases and prejudices that exist in the world.

In most cases, the lawyers for the parties to the lawsuit will be able to ask prospective jurors some brief questions in a process called voir dire. The judge will remove anyone who says that they are biased, but with their fates in the hands of inexperienced strangers, litigants often worry that one or more potential jurors might harbor a bias that is not expressed.

For this, the law allows each side in a lawsuit a fixed number of peremptory challenges. A peremptory challenge is the right of a party to a lawsuit to remove a potential juror without giving a specific reason.

For the parties, peremptory challenges can help them feel more confident that their case will be decided based on the evidence and not bias or prejudice.

But peremptory challenges come with a cost. First, it is not clear that parties can reliably predict who is biased and who is not, and therefore, it may be the litigants who are relying on their own biases and prejudices to exclude fair-minded people from jury service .

Second, to accommodate peremptory challenges, courts must call more potential jurors to make sure that after each side exhausts its challenges, enough people remain to fill out the jury. This wastes the time of people who wouldn’t have to be called to jury service if the courts didn’t need the extra bodies to use up the parties’ the peremptory challenges.

California is now considering reducing the number of peremptory challenges in some criminal cases. Currently, for felony cases, the prosecution and the defense each get 10 peremptory challenges, and for cases involving punishment by death or life in prison, each side gets 20.

For misdemeanors in California (cases where the potential punishment is one year in jail or less), under current law the prosecution and the defense each get 10 peremptory challenges, the same number as for felony cases. The San Francisco Chronicle reports that California is considering reducing the number of challenges for misdemeanor cases from 10 to five.

Potentially, this small change could save a lot of money. According to the San Francisco Chronicle:

The California Judges Association, SB794’s sponsor, says it would save at least $1.2 million a year for the courts and $30 million or more for prospective jurors, their employers and their communities by reducing the number of jurors called for service and the time they spend in court. About 1.5 million Californians report for jury duty each year.

Prosecutors and defense attorneys, however, are united in their opposition to the move. They believe that fewer peremptory challenges would mean more biased juries.

Peremptory challenges are controversial because it is not clear whether they really reduce bias or rather simply waste money and people’s time. If California goes through with the reduction in peremptory challenges, it will be very interesting to see what effect, if any, it has on misdemeanor trial results.