July 15th, 2015

Professorial Malpractice (Updated)

Professor Franks, via LinkedIn

Monday someone blocked me on Twitter. It’s the first time that has happened to me since I started sporadically using the service in 2009.

Me? Blocked? What malicious and impertinent crime had I committed?

Apparently, I committed the vulgar, discourteous and insulting crime of asking a law professor for a citation, and then discussing it. I kid you not.

As I skimmed my Twitter feed upon return back from a delightful vacation, I saw this curious tweet from Professor Mary Anne Franks about the de minimis likelihood of a rape allegation being false:

Now I’m no student of rape statistics or studies for sure — it isn’t what I do, and it isn’t one of the issues I’ve routinely tackled in the 1,300+ pieces I’ve written here since 2006.

But I was curious about the comment, certainly, since it carried a presumption of guilt, which is deeply at odds with our jurisprudence. And it was also at odds with stories in the popular press about rape accusations that turned out to be either questionable or outright false.

This includes such front page stories as the Duke Lacrosse players scandal, the poorly sourced Rolling Stone article from the University of Virginia for which it apologized (A Rape on Campus), Columbia University student Emma Sulkowicz who carried a mattress around campus after claiming she was raped, and the Central Park Jogger case. And, of course, there is the infamous case of the Scottsboro Boys.

But you know what the problem is with all those reports? They are not empirical evidence. While they discuss the facts of those particular cases, this means nothing for the big picture as to whether the incidence of false rape accusations is “infinitesimal,” or common, or somewhere in the vast gray area between.

While I don’t do criminal defense work, I do try civil cases, and I am aware of how stories in the popular press help to shape societal opinions (and, therefore, the jury pool). A classic example from my field is the McDonalds hot coffee case. I can’t remember the last time I picked a jury without discussing it.

The problem is that such stories are, by definition, outliers. If they weren’t outliers, they wouldn’t be on the front page where they then go on to shape public opinion.

Wanting to know the source of Professor Franks’ conclusion, I inquired with a very simple and benign citation request regarding her claim that false accusations of rape were “infinitesimal.” And with that she directed me to a Washington Post article that cited a variety of statistics, from different studies:

While I won’t summarize the entire article — since as you will see in a moment that is not the point of this post, and you can read it if you want — the author wrote about one significant study stating that there is “a profound disagreement on what counts as a false allegation.”

Due to the problem of shifting definitions (as well as unreported rapes), you can see by the article that it’s difficult to get a real handle on the extent of the problem. In fact, the very story that Professor Franks cited to me had studies showing false rape accusations varying between a low of 2% to a high of 45%.

The only thing that seemed to be clear about the statistics is that nothing was clear.

So I noted to Professor Franks that not only wasn’t the word “infinitesimal” part of the story, but that the very citation she gave me seemed to demonstrate otherwise:

And she blocked me. For challenging the conclusion she reached from her very own citation. This is academia?

Now where I come from, a lawyer doesn’t make an assertion that can’t be backed up with proof. Evidence is the heart and soul of any case or argument. I get challenged on my proof all the time, and I challenge defendants on theirs. Over the course of the 30 years since I was graduated from law school, I’ve become pretty confident that this is the way the system works.

The challenging of proof is what, hopefully, assists the finders of fact (be they juries or judges) to become the proverbial fly on the wall that determines what “actually happened” when one bit of evidence contradicts another.

It’s therefore routine in trials for each side to look at the opening statements of the other, and try to find some fact that they claim wasn’t proved at trial, and then pound away at this, calling it an exaggeration or falsity in an attempt to tarnish the entire case of the other side.

And that is why lawyers speak carefully in making assertions of fact, for otherwise we tarnish not only ourselves, but worse, our clients or causes.

I can’t help but wonder: What happens if a legal adversary challenges an assertion that Professor Franks makes in a motion or appeal? What happens if a judge challenges her cite? Will she stand in the well of the courtroom and try to block the judge?

And what happens when a student challenges a citation that Professor Franks gives in class? Does she block the student? Will she cover her ears and sing?

What kind of lesson does she teach her students by saying that, if a person challenges your citation, you just block them?

This post isn’t about rape. It’s about evidence. And teaching. And lawyering.

I’m reminded by this episode of an experience I had as a newbie blogger, with just months under my belt. Walter Olson at Overlawyered had written something and I posted an opposing view. So what did Olson do? He amended his post to read, And for another view, see Turkewitz. With a link.

This was the exact opposite of blocking. And it brought home to me in a heartbeat what the whole blogging thing was about. It’s about an exchange of ideas, some of which may be critical. Olson and I may butt heads on issues from time to time, but I’m indebted to him for that lesson.

And it was the subject of a post I wrote a few years ago celebrating that very fact (Twittering With the Enemy– A Blogospheric Celebration). Professor Franks would do well to take note.

A last thought. When I was a kid, I remember one of my teachers telling me that the best students were the ones that challenged their teachers with questions. This was the pool of students, he told us, from which he hoped would one day emerge a son-in-law.

Good teachers are happy when students’ minds are buzzing with inquisitiveness. Good teachers aren’t afraid of the questions. Or the answers. Or of learning something new.

Update (7.16.15) – In exceptionally stark contrast to Professor Franks, 9th Circuit Judge Alex Kozinski had this to say in an article that deals with his ideas (in part) on how to change the jury system:

If my proposals raise controversy and opposition, leading to a spirited debate, I will have achieved my purpose.

Now ain’t that refreshing?

———

Elsewhere, some on point, some tangential:

Professor Franks and the False Dichotomy (Jay Wolman @ Legal Satyricon, who was also blocked)

The ITIF’s Confusion on Free Speech and Revenge Porn (Scott Greenfield @ Simple Justice)

Professor Twitter and the Problem of the Low False Rape Narrative (Francis Walker @ Data Gone Wild)

July 14th, 2015

Off the Grid

I wasn’t actually fishing, but this captures the spirit.

From July 1st though July 8th I was off the grid. No cell phones, texts, email, no nothing. My July 2nd post was published on auto-pilot.

I can’t remember the last time I went that long without it, though it likely goes back to the day I got my first cell phone.

And I didn’t miss it. The vast majority of vacations we take today are working vacations, meaning that no matter what we do or where we go we pick up the magic iDevice to check work emails and messages.

It felt good to be gone, not just physically, but mentally. No Facebook, Twitter, Instagram, or anything else. Just me, my family, and those in immediate proximity, who were likewise unconnected to our increasingly wired world.

It’s good for the soul.

When I finally hit a hotel with wi-fi, the hundreds of emails that accumulated poured in. I almost got carpal tunnel syndrome hitting the delete button.

But at that point it hit me that while the body was still away, the vacation of the mind had ended.

July 2nd, 2015

Happy July 2nd! (Let us celebrate Independence)

Each year I use July 2nd as a jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.

John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write prior posts about why the day is so important to the jury system. So here they are:

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but do take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

July 1st, 2015

Donald Trump Files Frivolous $500M Defamation Claim (Updated)

Donald Trump

I’ll try to do this post without the usual comments about Donald Trump’s desperate need for attention over the years, or his combover, bluster, birther issues, and paying people to attend his presidential announcement.

Or the shear delight of late night comics. Or comments about every village having its idiot, and since NYC is the biggest village…..

Crap. Couldn’t do it.

Anyway, as many folks know, Trump made a number of exceptionally nasty and derogatory comments about Mexicans during that announcement, calling them as a group rapists and drug dealers:

When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems. They’re bringing drugs. They’re bringing crime. They’re rapists.

If you don’t think that is bad, try substituting Jews, blacks, gays, etc.

Univision, a Spanish language station that carries Trump’s Miss USA and Miss Universe contests, dumped Trump over the comments. Then NBC fired him from a TV show called Celebrity Apprentice.

Trump sued Univision yesterday for breach of contact and defamation. I haven’t see the contract, and have no opinion on it, but I do have an opinion on the defamation.

Having myself been the subject of two frivolous defamation suits for my comments on this blog, it probably doesn’t come as a surprise to regular readers that I have opinions on the subject. (See Rakofsky and Katz)

As best I can glean from this, the defamation claim surrounds the publication of a picture of Trump next to alleged mass murderer Dylann Roof. The publication took place on Instagram by Univision’s President, Alberto Ciurana, and has since been taken down. You’ll find the reference to it in paragraph 29 of the Complaint.Trump Defamation Case

Is the photo nasty? You betcha. I publish it here so that you know what this part of the suit is about. And so you also understand why it represents constitutionally protected free speech under the First Amendment.

Because, ugly as the picture is, it does not represent fact, but opinion. And the First Amendment clearly protects opinion. You can’t bring a lawsuit (successfully) for hurt feelings because people were mean to you on the Internet.

Since Trump brings this case in Manhattan, New York’s First Department, the court will likely quote this type of language, that was used in the dismissal of the Katz case against me:

“‘[s]ince falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false…a libel action cannot be maintained unless it is premised on published assertions of fact,’ rather than on assertions of opinion.” Sandals Resort Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 38 (1st Dept 2011) (quoting Brian v. Richardson, 87

In 1986 New York’s Court of Appeals said in Steinhilber v. Alphonse that expressions of opinion, as opposed to assertions of fact, are privileged and, no matter how offensive, cannot be the subject of an action for defamation. Non-actionable opinion includes “rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression,” as well as “loose, figurative, hyperbolic language.

Trump doesn’t even come close to asserting a false fact. That cause of action is destined to be dismissed.

By filing a $500M defamation claim (paragraph 61), Trump knows he will get headlines. And he is. Despite the fact that the suit is empty.

Trump, of course, freely admits that he is outrageous on purpose to garner press. In his book The Art of the Deal, he writes:

One thing I’ve learned about the press is that they’re always hungry for a good story, and the more sensational the better. It’s in the nature of the job, and I understand that. The point is that if you are a little different, or a little outrageous, or if you do things that are bold or controversial, the press is going to write about you. I’ve always done things a little differently.

But that doesn’t mean a judge should tolerate the abuse of the courts for that purpose. The judicial culture of New York judges is to avoid sanctions for clearly frivolous claims, but that needs to change. We have provisions for sanctions for both a frivolous suit and for frivolous conduct. They should be used.

This is not the first time Trump will lose a defamation case. Trump was dumped back in 2011 when book author Timothy O’Brien questioned his claims of wealth, writing that Trump was worth $150M-$250M, and not the $7 billion he boasted about. Trump had testified, before he was dumped, that his net worth depends in part on his “own feelings.”

Two more quick points: New York prohibits making an ad damnum clause in a personal injury case, and defamation falls into that category. It was outlawed in 2003. Yet Trump does it anyway, for $500M.

I’ve written about this before. There are only two reasons to put the monetary claim in the complaint: The lawyer was ignorant or there was a deliberate attempt to garner headlines.

The usual response by judges is simply to strike the demand, but by then the damage has been done and the headlines written.

A far better avenue for the court is levy sanctions for having done it. And given Trump’s nature as a vexatious litigant, and his admitted conduct of being outrageous to get press, sanctions would be wholly appropriate.

This isn’t just my opinion, but that of the late guru on New York Practice, David Siegel. In his treatise on New York practice he wrote:

“Some cases have held that a violation of the CPLR 3017(c) pleading restriction can be cured with a mere amendment striking the reference to the demand, but the imposition of a money sanction in an appropriate sum might better implement this aspect of CPLR 301(c).”

Finally, the Legislature should finish its work with regard to the anti-SLAPP legislation that has passed the Assembly but stalled in the Senate. Trump is clearly trying to stifle the public discussion of his outrageous conduct, and this should not be permitted.

Update: At a presidential debate on Feb. 25th Trump said the matter had been “settled.” A motion to dismiss had been pending and I assume he didn’t want the wrath of a judge that might give him a YUGE sanction. I’d be stunned if Trump received even one nickel.

The actual statement by Trump:

TRUMP: I’m just telling you, I’m doing very well with Hispanics. And by the way, I settled my suit, as you know, with Univision. It was settled. We’re good friends now. It was all settled up.

June 30th, 2015

NYPD Sending Screeching Amber Alerts By Text?

It came into my phone moments ago, a siren warning screeching in my pocket about an Amber Alert. It sounded like the Emergency Broadcast System that we were trained, as kids, would come in the event of some type of cataclysm. It sounded like this.

And my questions are, how many did this go out to?

How many were driving in their cars, and took there eyes off the road to see what the emergency was?

Has the NYPD never heard of distracted driving?

Did the NYPD just cause accidents because of this? Were any injured? Or killed?

I understand the need to catch bad guys who may have kidnapped kids. But there is a difference between using a system and abusing it.

The NYPD may well have caused more harm than good with this message. Somebody forgot to measure the pros and cons have sending out mass emergency texts.

According to the National Center for Exploited and Missing Children, 800,000 kids are reported missing each year. Can you imagine how many Ambler Alerts that would result in? Broadcasting to radio stations and roadside signs are one thing, but sending all those screeching texts to cell phones?

Whoever made the decision to distract so many drivers by having them take their eyes off the road must have rocks in the head.

This is what the web version looks like for what appeared on my phone: