Saturday, November 25, 2017

Calif. High Court Signs Off On Prosecutor Ethics Rule

By Melissa Daniels

Law360, Los Angeles (November 3, 2017, 9:05 PM EDT) -- California prosecutors have new ethical guidelines to abide by after the California Supreme Court signed off on state bar rules requiring them to inform defense counsel of discovery and exculpatory evidence in more cases as an attempt to address prosecutorial misconduct.
The California Supreme Court signed an order Thursday that approves an amendment to the State Bar of California’s Rules of Professional Conduct Rule 5-110.

The new language says prosecutors must "make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense or mitigate the sentence," except when the court grants them a protective order when the prosecutor thinks the disclosure of the evidence could result in substantial harm to an individual or to the public interest. The rules are effective immediately.

“Prosecutors must be held to a high standard to ensure public trust in the justice system and to protect defendants and their rights,” Leah Wilson, executive director of the State Bar of California, said in a statement.

The amendment to Rule 5-110 was made as part of a broader overhaul to the California State Bar’s Rules of Professional Conduct, the first of its kind since the 1980s. The California Supreme Court had allowed the state bar to send in updates to the prosecutorial ethics rules on an expedited basis compared to the rest of its rule updates.

Prior updates were approved to Rule 5-110 in May, but the court sent back the provision about the ethical disclosure obligations for further revision. The state bar’s board of trustees returned a revised version in August.

Michael Ogul, a board member and past president of the California Public Defenders Association, wrote a letter to members Thursday to announce the Supreme Court’s acceptance of the amendment. The group had supported the change and actively pushed for it by writing letters and testifying before the Rules Revision Commission and state bar’s board of trustees, publishing columns in legal newspapers and having members submit public comments.

“Prosecutors will no longer be able to shirk their disclosure obligations by rationalizing that the exculpatory information doesn’t matter,” Ogul said in the letter. “Instead, they will now be subject to discipline any time they fail to disclose exculpatory information.”

Ogul, who is a deputy public defender in Santa Clara County, told Law360 that the net effect of the new rule will be that California prosecutors must abide by the laws of disclosure or else face professional discipline. Prior to this change, some prosecutors could have withheld evidence that they didn’t think would make a material difference to the case, he said.

“I’m not saying they don’t all the time, I’m not saying they don’t a majority of the time, but I am saying that scores, if not hundreds of prosecutors, at least on occasion, fail to turn over exculpatory information that they are required to turn over under California law,” Ogul said. “And this rule is designed to put that to a stop.”

The new prosecutorial ethics rules are in sync with the American Bar Association Model Rule 3.8. Ogul said this rule is already in play in 49 others states and California was the last to adopt a version of it.

A representative for the California District Attorneys Association didn’t immediately return a request for comment Friday.


I found this interesting

I was reading about the death of Thomas Doheny and I found this comment from a poster with the screen name "nomoremaxistsinDC"who claims to seen the inside of the family court racket and he posted the following:

Did you know that the more monies awarded, collected and enforced by the courts, is rewarded by the federal government with child support enforcement funding of 66 cents-$3.00 for every dollar awarded, collected and enforced? See Title 42 USC Sections 651-669 (Federal Child Support Enforcement Act), specifically 42 USC Section 666 showing how its done. Read specifically 42 USC Section 658a which is called the Federal Reimbursement Incentive to the States. It shows that the states receive billions from the Feds for support collections and enforcement. The more money they can extort from parents, the more money the state makes. If a state like Illinois collects $1 BILLION in child support (including enforcement and collection costs) they stand to receive $3 BILLION from the Feds (US TAXPAYERS!!!!!!). The federal statutes say that the states can use the money any way they see fit. It doesn't go to the children, but to help try and balance the state employee pensions. And, who are the first people paid out of state employee pensions???? Judges, child support workers, law enforcement, politicians!!!!!!

The US Supreme Court in Tumey v. Ohio, Ward v. Monroeville, Caperton vs. Massey, etc. have said that judges sitting on cases where they have a financial interest in the outcome of those cases, must disqualify/recuse themselves for unconstitutional conflicts of interest, otherwise it is fraud and extortion and their orders are nullified.

Thursday, November 23, 2017

Comments policy

Do me a favor. Do everyone a favor and stop spamming my blog. If you want to comment on a particular post that is fine but don't spam my blog. Whoever is doing it just know this: your bullshit is not going to be published so you are wasting your time. If you have a serious comment to make fine. If you disagree with me fine but don't spam my blog.

Saturday, November 11, 2017

'No stained garment, no smoking gun, nothing,': Cosby juror explains why he wasn't convinced by the plaintiff

One of the jurors in Bill Cosby's trial said that he did not find the accusation of rape convincing because the accuser had worn a bare midriff and had no "stained garment" to show.

Last December, famed comedian Bill Cosby was charged with three counts of aggravated indecent assault in relation to allegations that he drugged and molested Canadian basketball player Andrea Constand in 2004.

On June 17, the judge in Cosby's case declared a mistrial after the 12-person jury spent six days and more than 50 hours trying to decide whether Cosby was guilty or innocent of sexual assault. Once the case went public, more than 60 women have come forward with similar accusations of sexual assault against the comedian.

"She was well-coached," the juror, who spoke on condition of anonymity, told The Inquirer and The Daily News. "Let’s face it: She went up to his house with a bare midriff and incense and bath salts. What the heck?"

The juror then added that Cosby had already "paid dearly" with his ruined reputation and should not be made to go through another trial. That said, he still refused to say whether he wanted to find Cosby guilty or innocent.

The juror also said that, at one point, 10 out of the 12 jurors believed Cosby was guilty before three jurors changed their minds and the judge had to announce a mistrial. Throughout the deliberations, jurors had difficulty with legal terms such as "reckless" and "severely impaired," with the juror adding that the language describing the counts of assault was "too legal."

Even though Cosby's defense lawyer spent just six minutes to say that the relationship was consensual, the juror still said that he found Cosby more convincing than the prosecution, which spent five days laying out extensive evidence from the police, legal experts and Constand herself.

He said that Constand should have only seen Cosby at his home if "she was dressed properly and left the incense in the store" and was influenced to go to push forward on the trial years later by her mother.

"No stained garment, no smoking gun, nothing," he said, adding that you could draw little from evidence from decades ago.

He further added that the accusations of 60 women who have since come forward with similar accusations had played no role in his deliberations — he thought many of them made up their claims to get attention.

“This is ridiculous, unbelievable,” he said. “I think more than half jumped on the bandwagon."

While the courthouse said that he was proud of having done his civic duty, he does not plan on paying attention if there is a second trial.

"They should’ve left it closed," he said.


Friday, September 29, 2017

Campuses Cautious As They Adjust To New Sexual Assault Guidelines

New federal guidelines for handling allegations of sexual assault are prompting a range of reactions from school administrators. While many are expressing concerns and vowing to maintain current policy, others are breathing a sigh of relief or scratching their heads in confusion.

Education Secretary Betsy DeVos officially rescinded Obama-era rules last week, replacing them with interim guidelines, until new permanent rules can be implemented. The Department of Education's new "Q&A on Campus Sexual Misconduct" may change everything from how much evidence should be required to prove allegations to how accused students can cross-examine witnesses.

Universities are "scrambling right now" to figure out what it all means, says Kristi Branham, associate professor and director of gender and women's studies at Western Kentucky University, who serves on a committee that works on education, training and awareness around sexual assault. "This is a tricky area."

"We're reading the new guidance carefully," says Kathleen Salvaty, systemwide Title IX coordinator for the University of California. "I definitely have some questions."

For example, Salvaty says that according to the new guidance, applying "special procedures" in sexual misconduct cases "suggests a discriminatory purpose, and should be avoided."

"I'm not sure what that means," Salvaty says. Schools have lots of special procedures for sexual misconduct cases, she says, precisely because they are different from cases of plagiarism, for example. And many of those are required by federal regulations. Schools are also unclear whether new language in the new guidance means that Title IX rules would no longer apply off campus — at a fraternity, for example.

"That is causing some concern and confusion," Salvaty says. "We're just not sure what to do."

Others have raised concerns that the new interim guidance contradicts a 2001 directive that was not among those rescinded by DeVos. John Clune, an attorney with Hutchinson Black and Cook LLC, says "the whole purpose of the 2001 guidance is that grievance procedures be prompt and equitable." But, he says, the new guidance removes time limits on investigations, allows schools to offer an appeal option exclusively to accused students, and permits schools to raise the evidentiary bar from "preponderance of the evidence" to a "clear and convincing" standard, making allegations harder to prove.

"That discriminates against complainants," Clune says. "It certainly undermines the concept ... that the proceedings be prompt and equitable."

Many schools say they are also confused by mixed signals on whether schools can try informal resolution methods, like mediation; the new guidance allows it, but the 2001 guidance bars it.

Skidmore College sociology professor David Karp says he hopes it signals a new opportunity for an alternative process he has been promoting known as restorative justice, a nonadversarial model that focuses on a victim's healing, and how offenders can contribute to that. Schools have refrained from trying the idea for fear it would be seen as a form of mediation.

"I do think this is a green light that hasn't existed before," Karp says. He cautions that more guidance and training is needed, because "if badly implemented, [RJ] can backfire and cause further harm." But "I think schools will feel like they have more latitude to explore this as an additional option," he says.

Oklahoma Wesleyan University is one school feeling freed up by DeVos' decision to rescind the Obama-era guidance, which OKWU President Everett Piper calls "nothing short of a disaster."

Last year, the university sued the Department of Education, arguing that those guidelines resulted in a "growing number of innocent students being trampled [by the] 'shoot first, ask questions later' approach."

Piper says he is relieved now that OKWU will no longer feel pressure to "compromise ... students' rights" and can now "operate ... without threat of government intrusion and overreach." But OKWU has not yet announced any specific change in policies or practices.

Indeed, most schools appear to be holding off on any immediate action. Officials from schools including Harvard, Cornell, the University of Missouri and the University of Michigan say they are still reviewing the new guidance to see what, if any, changes need to be made. And many more have announced they are simply staying the course.

"All of us are continuing as usual," says Sarah Berg, deputy Title IX coordinator of prevention, training and outreach at the University of Colorado, Denver and the Anschutz Medical Campus.

A letter to the Yale University community says the school has "no plans to deviate" from current Obama-era policies. California State University, Northridge says "Regardless of this new DOE action ... we will not waver in our commitment to Title IX and its protections." Similarly, Washington University in St. Louis says "regardless of decisions at the federal level, we have no intention of turning back on our commitment or resolve."

While that kind of resolve is reassuring to some, it's frustrating to others.

"It is disappointing, but not surprising," says Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, a group that has criticized previous policies as unfair to the accused. Many schools see the new guidance as "designed to go back to the Stone Age," he says. "But really this is about an adjustment to make sure that both sides' needs are met, because that wasn't happening before."

Attorney Andrew Miltenberg of Nesenoff & Miltenberg LLP, who represents dozens of accused students, says the "pushback" from universities is unfortunate. "It's a stubborn 'we're still going to do it our way,' " he says.

While the interim guidance is technically just a recommendation, not a binding rule, Miltenberg says schools that stick to old policies do so at their own peril. He says DeVos' recent comments, and her decision to rescind the old guidance, will be a big boost to accused students' lawsuits.

"It's a significant acknowledgement that there is a problem in [that] process," says Miltenberg. "It's a great thing to say to a judge that 'before last week, you didn't have to believe that there might be inherent bias throughout the process, but now those arguments carry much more weight. The secretary of the Department of Education publicly announced those very things.' "

Miltenberg rejects the notion that the new guidance causes chaos or confusion, or even what he calls the "false hysteria" that the new guidance represents a setback for rape victims.

"This constant refrain is an attempt to create a ... big lie," he says. "It's like if you say it loud enough and often enough, people will believe it."

Ultimately, Miltenberg says, real change will require not only new policies but also a shift in who is administering them on campuses.

"The reality is that most of the people that I've come in contact with as part of any school's Title IX apparatus have some sort of victimcentric view, or previous work history, or something in their lives that I think makes them unable to be as impartial and objective as someone should be," Miltenberg says.

Title IX administrators deny any bias in their work, but they don't dispute how fervently they want to maintain current policies. "Everyone I know who does this work ... wants to hold on to this process, because we've really put our careers into this," says Berg. "We're really proud of where we've gotten. So to have someone essentially gut that policy would be really painful."


This is great news. Let's thank Betsy DeVos for rescinding Dear Colleague. The more of us she hears from the better. Contact her:

Friday, September 8, 2017

Betsy Devos rescinds the Dear Colleague suggestion

Education Secretary Betsy DeVos today criticized the previous administration's approach to campus sexual assault, accusing it of imposing a "broken system" that mistreats both accused students and rape survivors.

The Obama-era Office for Civil Rights compelled universities to design sexual assault adjudication policies that have deprived students of due process rights and weakened protections for freedom of expression. In a speech this afternoon, DeVos said her department would revise its existing guidance for complying with Title IX, the federal statute at the center of the effort.

DeVos cited several examples of colleges putting students through Kafkaesque quasi-judicial procedures. I promise you they are real. We've written about them at Reason.

Here's a list of some of DeVos's examples, with links to our articles about them.

1. Stony Brook University

"The current failed system left one student to fend for herself at a university disciplinary hearing," said Devos. "She told her university that another student sexually assaulted her in her dorm room. In turn, her university told her she would have to prosecute the case herself. Without any legal training whatsoever, she had to prepare an opening statement, fix exhibits and find witnesses."

I covered that case here: "College Rape Trials Are Unfair to Men and Women. Here's Why."

2. The University of Southern California

"You may have recently read about a disturbing case in California," said DeVos. "It's the story of an athlete, his girlfriend, and the failed system. The couple was described as 'playfully roughhousing,' but a witness thought otherwise and the incident was reported to the university's Title IX coordinator. The young woman repeatedly assured campus officials she had not been abused nor had any misconduct occurred. But because of the failed system, university administrators told her they knew better. They dismissed the young man, her boyfriend, from the football team and expelled him from school. 'When I told the truth,' the young woman said, 'I was stereotyped and was told I must be a 'battered' woman, and that made me feel demeaned and absurdly profiled.'"

Elizabeth Nolan Brown wrote about that one here: "Star-Crossed Student Athletes Torn Apart By Title IX Witchhunt at USC."

3. George Mason University

"Another student at a different school saw her rapist go free," said Devos. "He was found responsible by the school, but in doing so, the failed system denied him due process. He sued the school, and after several appeals in civil court, he walked free."

There are a few different cases that arguably meet this description; I wrote about one of them here: "Students Had BDSM Sex. Male Says He Obeyed Safe Word. GMU Agreed, Expelled Him Anyway."

4. The University of Tennessee

"A student on another campus is under a Title IX investigation for a wrong answer on a quiz," said DeVos. "The question asked the name of the class Lab instructor. The student didn't know the instructor's name, so he made one up—Sarah Jackson—which unbeknownst to him turned out to be the name of a model. He was given a zero and told that his answer was 'inappropriate' because it allegedly objectified the female instructor. He was informed that his answer 'meets the Title IX definition of sexual harassment.' His university opened an investigation without any complainants."

That can't be true. It's just too crazy, right? Wrong. It happened, and I wrote about it here: "Tennessee Student Accused of Sexual Harassment Because He Wrote Instructor's Name Wrong." And I posted a follow-up here: "UT Student Now Being Investigated for Sexual Harassment After Writing His Instructor's Name Wrong."

5. various colleges

"Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes," said DeVos.

Consider the case of Northwestern University's Laura Kipnis, whose skepticism about rules forbidding sexual relationships between students and professors led to her being investigated under Title IX: "This Prof Dared to Challenge Her Students' Views on Sex. Here's How They Retaliated."

Or the case of Louisiana State University's Teresa Buchanan: "LSU Professor Fired for Telling Jokes Is Latest Victim of College Anti-Sex Hysteria."

Or a case at the University of Massachusetts-Amherst, where residence advisors claimed that making jokes about Harambe, the dead gorilla and internet meme, could constitute a violation of Title IX: "UMass-Amherst: Harambe Jokes Are Racist Microaggressions, Violate Title IX."

Then there are some Title IX cases DeVos neither mentioned nor implied, but could have easily served as examples of the sort of mania that has taken hold on campuses:

6. Amherst College

A male student was expelled for sexual assault, even though he had credible evidence that his accuser had assaulted him: "Amherst Student Was Expelled for Rape. But He Was Raped, Evidence Shows."

7. Brandeis University

A gay male student accused his ex-boyfriend of sexual assault. Even though the alleged infractions—a stolen glance in the shower, a wake-up kiss—were incredibly silly, the investigator found the accused responsible for sexual misconduct: "Judge Sides with Gay Brandeis Student Guilty of 'Serious Sexual Transgression' for Kissing Sleeping Boyfriend."

8. Colorado State University-Pueblo

An athlete of color, Grant Neal, was accused of sexually assaulting a female trainer—but not by her. When questioned, the trainer said, "I'm fine and I wasn't raped." University officials pointed out that according to Title IX, they got to be the judge of that, not her. Neal was deemed guilty and expelled: "Female Student Said, 'I'm Fine and I Wasn't Raped.' University Investigated, Expelled Boyfriend Anyway."

9. University of Texas-Arlington

A gay male student claimed a classmate, Thomas Klocke, told him to "consider killing himself." The classmate denied ever saying such a thing; according to his version of events, the accuser came on to him and didn't appreciate being rejected. The gay student filed a Title IX sexual harassment complaint against Klocke, who was found responsible. He then committed suicide: "Lawsuit: Male Student Accused of Sexual Harassment for Rejecting Gay Advances Commits Suicide After Title IX Verdict."

Critics of DeVos will say that her plan to reform Title IX is some kind of giveaway to rapists. But it's not. Today, DeVos recognized a basic and obvious truth that every objective chronicler of the college rape crisis already knows: The Obama-era modifications to Title IX utterly failed to bring justice to campuses.


This is great. Let's contact her at and thank her for rescinding the Dear Colleague suggestion. The more of us she hears from the better so let her know today.