A Round Tuit (3)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.



In a fit of morning-after regret, Hofstra University freshman Danmell Ndonye filed an accusation of rape against four men with whom she'd had consensual sex. The police and district attorney were quick to charge the men and jail them, publicizing their names and pictures as widely as possible. When it came to light that one of the men had recorded the sexual encounter on his mobile phone and Ndoye was confronted with the evidence, she admitted that her allegations were lies and the prosecution quickly fell apart.

Surveying the smoking ruins of a case which had promised to be a high-profile boost to her re-election campaign, Nassau County (NY) District Attorney Kathleen Rice had to decide whether to prosecute Ndoye for her false accusations. Instead of following the evidence, she chose to test the political winds, delaying her decision until, as Scott Greenfield described it, she could determine "which direction will get her the most votes, and the least criticism." One one side, the evidence of Ndoye's falsehood was incontrovertible; on the other, domestic violence activists argued to Rice and to the local press that prosecution of this false claim would somehow deter truthful accusers from reporting the crimes committed against them.

Rather than prosecute Ndoye with the same publicity and vigor as she had prosecuted — or would that be persecuted — the four young men Ndoye had accused (and thereby implicitly publicize her error and the police's in hastily trying the accused in the court of public opinion), Rice sought to make the whole matter go away quietly. She announced her decision not to prosecute Ndoye, but did so after business hours on a Friday, expecting that the friendly local newspaper would find something else to report or the public would lose interest in the case over the weekend. On Sunday, Greenfield noted the vague criticisms of that decision leveled by Rice's campaign opponent, Joy Watson, in the local press and attempted to keep the issue in the public's consciousness; his efforts prompted Watson to comment at Greenfield's Simple Justice blog and that comment, reproduced by Greenfield the next day, made clear how cooperative the local newspapers had been in watering-down her views for the DA's benefit.

Come Tuesday, the adverse public reaction to Rice's attempt to sweep the matter under the rug had not abated. Rice's explanations for her decision were increasingly hollow — she now claimed that in addition to encouraging reporting of (ideally, true) sexual crimes, the non-prosecution allowed all the facts of the case to be publicly known. Greenfield was rightly dismissive:

While it might be worthwhile to parse Rice's explanation in further detail if it truly bore a connection to her decision to decline to prosecute, there is little to suggest that it's anything more than an effort, in the face of public outrage, to re-spin the move..

"There is no doubt that this is not a politically popular decision," said Rice.

Every once in a while, the public will surprise a politician by recognizing their position as fundamentally irrational. It doesn't happen often. The problem now is that Rice's new strategy, that the courts couldn't be trusted to be as tough on crime as she is, makes no more sense than not prosecuting an admitted false rape accuser because it would dissuade true rape victims from coming forward.

If Greenfield was unequivocal in his criticism of the politically-motivated decision not to prosecute a false rape accusation, Patrick of the Popehat blog was just as clear in condemning the many who leapt to defend the recently-arrested convicted rapist Roman Polanski. Some falsified the facts of Polanski's case and guilty plea; some excused the crime based on the length of time since its occurrence (conveniently ignoring that the delay in sentencing resulted from Polanski's flight following his plea); some seemed to offer no rational basis for their defense of Polanski other than the facts that he is famous, his victim is not, and Polanski has sometimes demonstrated talents apart from drugging and raping thirteen-years-old girls. Patrick put things into proper perspective:

Let me be blunt. Polanski is a child rapist. But these apologists, too, are sick freaks. Given their moral sensibilities, I would no more let Patrick Goldstein or Joan Z. Shore be alone with my kids than I would Polanski. Among the sick or stupid ideas such people are willing to promote to defend Polanski are the following:

1. That it is morally acceptable to gloat over the fact that a rape victim does not want the perpetrator tried, even when she specifically says it is because she can’t bear for her family to be dragged through the mud.
2. That the victim’s mother fed her to Polanski to promote her career — as if this is a morally significant mitigating factor, as if it in any way excuses the conduct.
3. That the victim — who, in her grand jury testimony, referred to the act performing cunnilingus as “performing cuddliness” — was a sophisticated seductress.
4. That it is irrational or vengeful to pursue a child-rapist for 32 years, because moral responsibility for rape has a shelf-life.
5. That it is irrational or vengeful to fail to forgive a child-rapist, and excuse him from legal consequences, when he previously experienced great hardship.
6. That living a life of luxury in France is a great hardship. (For people with normal moral sensibilities, to whom rape is not properly classified as “sexual liberation,” I grant you it might be.)
7. That Great Men of letters exist on a different plane, and that right-thinking people overlook their peccadilloes.
8. That opposition to drugging and having sex with 13-year-olds — let alone raping them — is a sign of Puritanism.
9. That the Fugitive Disentitlement Doctrine, which generally prevents fugitives from litigating their cases in the forum they fled, is somehow unfair.
10. That a trial judge is bound by the deal a defendant cuts with the prosecution.

Politics Daily columnist David Gibson wondered whether those apologists would be so quick to defend "Father Polanski":

There is the obvious parallel to the cases in the Catholic Church, which have rightly scandalized the public and the media. Prosecutors and plaintiffs' attorneys have been dogged in pursuing these cases -- whether out of concern for their careers or for justice -- and the outrage was so widespread that the State of California created a one-year window in 2003 during which the statute of limitations on abuse crimes by Catholic priests (and others) was lifted. That meant the victims of men who were often long dead could finally get their day in court, or find some sense of justice and closure -- and for cases that were no more egregious than Polanski's abuse of Geimer. Polanski is alive, at least.

Comparisons are by their nature invidious. But what if Roman Polanksi were wearing a Roman collar? Would "Monsignor Polanksi" receive the same considerations? As Father Thomas Reese, a Jesuit, writes at the Post's "On Faith" site, "Imagine if the Knights of Columbus decided to give an award to a pedophile priest who had fled the country to avoid prison. The outcry would be universal." And rightly so, as Reese says. But Polanski gets an Oscar in absentia in 2003 and earns sympathy because he can't receive it in person.

When a woman makes a false rape accusation but escapes liability due to the prosecutor's political sensitivities and when a convicted — and admitted — child rapist and international fugitive is loudly defended by his admirers in Hollywood and abroad, one can say with some certainty that the scales of justice needed a bit of rebalancing this past week.



Still in the criminal justice trenches, fighting the good fight, were more than a few legal bloggers. A couple found time to write intensely personal, compelling accounts of their efforts.

Norm Pattis shared his thoughts and fears while awaiting a jury's verdict with his client:

The jury has been out for the better part of two days now. They are considering four charges: murder, attempted murder, assault in the first degree and criminal possession of a firearm.

....

We are hopeful, but scared. The stakes are enormous and everything in my client's life depends today on the decision of twelve strangers now locked for a couple of days in a small room. The jurors will return to this pressure cooker today, and the judge will no doubt turn up the heat by [instructing the jurors to continue deliberating]. I am glad I am not a juror.

The result of those deliberations — to convict on some but not all of the charges — was ambiguous. Pattis wrote:

Yesterday the jury decided that it could not decide what happened as to the murder. It also decided that it could not decide whether there was an attempted murder. No verdict means a mistrial. The state can now bring him to trial all over again, at least as to the murder.

The jury convicted my client of assault in the first degree and the firearms count. It also found facts sufficient to enhance the penalty by five years. We expected to lose the firearms count, and hoped for acquittals in the remaining three counts. It did not happen. Did we lose?

I say we did, and it hurts.

....

Some friends have congratulated me on the outcome. "Great job!" one wrote. Staring down murder and attempted murder charges in a case where apparently unarmed women were shot point-blank by a much larger man is not easy. But it does not feel like a win to me. Those taunting me for failing have found their mark. I am an easy bleed, I am afraid.

Jeff Gamso discussed his thoughts about the self-doubt and brutal introspection in which all good criminal defense attorneys engage, and none more so than those who defend capital cases:

I was in a waiting room across from the death house at the Southern Ohio Correctional Facility. My client had just been executed, killed by the state of Ohio. I hadn't represented him at trial, hadn't been the one, as we say in this business, to put him on the row. But I hadn't gotten him off, either. And now he was dead. I wasn't a witness to the killing, but I'd seen the body in the body bag wheeled out of the death house and into the hearse.

And the family came up to me, not all of them and not together, but one at a time, his mother first. It was like a mantra as one after another said

You did all you could

Meaning it for comfort. Meaning that it was all that could be done. Meaning that some god had chosen and I should know that I'd tried my best and they appreciated that. And I said to each of them, "Thank you." Because what else can you say. But you know, there's no comfort in those words.

It's not that they're empty. They're meant sincerely, the motive is pure and the sentiment is all positive. But that's from the speaker.

At your end, when your client has just been murdered and you've been powerless to prevent it, the only answer is that if this is all I could do, then I'm not good enough. And if it wasn't all I could have done, then I'm neither good enough nor diligent enough.

Stung by an undercover investigation which revealed the... um, seedier side of ACORN, the now-discredited group turned to the courts, filing a claim alleging illegal wiretapping under Maryland law by the investigative filmmakers. The suit seems like a poorly-advised strategy; it's unlikely to repair the political damage which caused the federal government to cut-off the group's taxpayer funding and is unlikely to mitigate the damage ACORN has suffered in the court of public opinion. Exposure of the group's tax-avoidance advice to supposed pimps, prostitutes, and child traffickers, all funded by the taxes paid by more honest folk, tends to raise one's ire (assuming one is of the latter persuasion rather than the former).

As Ken explained in the Popehat blog, the claim makes little legal sense, either. The principal objectives ostensibly sought by ACORN are generally precluded by existing case law, which tends to indicate (as many have observed) that the claim was likely filed to harass the filmmakers and the conservative-leaning website which broadcast their findings. In other states, so-called Anti-SLAPP laws penalize such claims when they are, as appears to be the case here, brought to chill public debate and criticism. In a follow-on post, Ken discussed the somewhat diluted Anti-SLAPP law in Maryland and wasn't optimistic that it would provide much meaningful relief to the defendants:

In short, Maryland’s anti-SLAPP statute sucks. It seems likely that it was rendered substantially useless by the pro-plaintiff-attorney legislative forces that opposed it. It might provide a procedural vehicle for Breitbart et al. to raise First Amendment issues, but it isn’t the killshot that it could be in some states. Too bad. I really love California’s anti-SLAPP statute. Winning one, and watching your opponent realize he will be paying your fees, is one of the great pleasures of First Amendment law.

ACORN and its backers sorely need to be taught a lesson; pop singer Lily Allen just learned a somewhat lesser one.

Allen decided to take to the blogosphere to argue for tougher copyright laws and tougher penalties for those who infringe them in trading digital music. She got off on the wrong foot by copying without attribution comments made by Michael Masnick, a respected authority on copyright issues writing at the Techdirt site. When the plagiarism was called to Allen's attention and Masnick's, he was philosophical; she was defiant. When Masnick noted that at her website Allen had also posted "mixtapes" of music she liked in violation of the very copyright laws she argued should be strengthened to benefit her business interests, she was defensive. Masnick, in a lengthy post, sought to use Allen's copyright transgressions as a "teaching moment" to illustrate the absurdity of current copyright laws and of efforts to enforce draconian penalties for their violation:

If you truly believe that regular uploaders should have their internet access taken away, why not make an example of yourself? Why not take away your own internet access for a year to prove the point? Or do you not think the laws you want to apply to everyone else should apply to you?

Again, the whole point here is that what you did was entirely natural and made plenty of sense. Lots of people do it today. They do it because they love music. There's nothing wrong with that, and you know it (or, apparently, knew it at one point in the past). And, there are many ways to take advantage of that fact. Just as 50 Cent does. Just as you did. Going to war with the fans who made you who you are today, in part because of your own infringing behavior, just doesn't make any sense. You keep saying that file sharing harms artists, but it existed five years ago as well, and didn't harm you. It helped you. So why would you want to take that away from everyone else?

Allen's response was to delete her entire blog, claiming that it had been abused. Masnick chided her, "Lily, it's not abuse if we're just asking you to rethink your positions that appear to not be particularly well thought out."

The Allen-Masnick kerfuffle caught the attention of widely-read Boing Boing blogger and author Cory Doctorow, who made no secret which side had his support:

It's tempting to count coup here and write Allen off as a hypocrite, but there's a more important story here. Allen just hasn't thought this through. Copyright is problematic for everyone: musicians, fans, bloggers. The absence of clear affirmative rights to make personal copies, to share with your friends, to copy for the purposes of discussion and commentary (as opposed to the fuzzy and difficult-to-interpret fair use guidelines, which have been further confused by the entertainment industry's bold attempts to convince us all that they don't matter and can't be relied upon) means that we're all in a state of constant infringement.

A law that no one understands and no one abides by is no law at all. Parts of copyright -- the right to regulate how commercial licenses with industrial entities work -- are really important to me and to all working artists. But if we continue to try to expand copyright to cover everything, every interaction that involves a copy (which is every interaction these days), then the broad consensus that copyright is nonsense will continue to grow, and we'll lose the good stuff as well as the ridiculous stuff.

For his part, Masnick continued demonstrating why his writing concerning copyright is worth plagiarizing in the first place; he noted the entertainment industry's convenient flip-flopping about whether their works are owned (and thus capable of being "stolen" like physical goods) or licensed and explained why the distinction is critical to make. If you've not yet bookmarked Techdirt and started reading Masnick's writing regularly, do this now so that you may speak authoritatively about critical intellectual property issues at your next cocktail party.

There was a passing of the torch this week at Law.com's Legal Blog Watch. Carolyn Elefant stepped down from the blog after (she reckoned) approximately 1,680 posts over the past three-and-a-half years. Her co-blogger, Robert Ambrogi, wrote that "what I didn't fully appreciate when we started out was just how good a writer she is. Through reading her posts, I believe, I learned how to be a better blogger." In introducing himself to Legal Blog Watch's audience, Elefant's successor, Bruce Carton, recognized that he has big shoes to fill: "First off, let me just say that I know this won't be easy." Best of luck, Bruce.

Finally, I want to mention a guest post at Mark Bennett's Defending People blog this week. Bennett's friend, Josh Reiss, wrote that his wife, Anh, has a blood cancer called Myelodysplastic Syndrome and needs a bone marrow stem cell transplant. He and others have established "Team Anh" to promote more widespread registration for bone marrow donation. In reading his post and the information at the Team Anh and DKMS Americas sites, I learned how simple (and painless) both the registration and donation processes are. Bone marrow donation registration is one of those "I know I should do it" things which I somehow have never found the time or will to do. I'm grateful to Mark and Josh for prompting me to finally do it; my registration kit is on its way. Please take a look at Josh's post and get registered. Like me, you probably already understand the need and want to help, but were just waiting for a "round tuit". These folks have them to spare.