Category Archives: Legal Analysis

For Andre Johnson of Florida State University: What Nine Seconds Are Worth

JohnsonVideo evidence is rarely this clear, even now that it’s far more ubiquitous then when I was prosecuting violent crime. The relevant part between Johnson, the freshman FSU player charged with misdemeanor battery and the woman he brutalized, plays out in about nine seconds. They should be enough to end his NCAA career forever.

If you have a doubt, and you can stomach it, follow second by second what was released by the 2nd Judicial Circuit State’s Attorney today.

At 1:55, Johnson approaches the bar and the woman he eventually punches. They make contact, and she turns and confronts him. If this is as it appears, namely a guy in a crowded place pushing his way to the bar and a woman becoming annoyed and confronting him over being pushy, it’s a scene I’ve personally witnessed play out hundreds of times, usually to no more than a few choice words and dirty looks. At 1:56, she actually raises her fist, but seems to be smiling or smirking. By 1:58, Johnson has grabbed it and pushed it down, and the two struggle until around 2:01. About a second later, she actually does “throw” a punch at Johnson, but it’s a slow, harmless attempt that he appears to easily avoid.

Then comes 2:04.

At that moment, and with a speed that makes her “punch” seem like something in slow motion, Johnson rears his right arm back and then shatters the entire scene with a blow nearly impossible to follow in real time. It not only connects with her face in a way that leaves her stunned and grasping the bar to steady herself, but it also sends pitchers and cups flying. Her hair flies wildly as her head snaps sideways. Given Johnson’s size and athletic prowess, it’s more than a breathtaking display of anti-female violence. It’s potentially life threatening.

So far I haven’t seen arguments made (as were made richly and stupidly after Ray Rice brutally punched his then-fiance into unconsciousness) that Johnson was provoked somehow or “defending himself.” In any event, they’d be irrelevant also. Call me old fashioned or even sexist; I’ve been hit by women, albeit rarely, and I would never strike one back. But even under as gender-free an analysis as we can make, Johnson met a harmless swat with a vicious, cocked punch, and at a woman a fraction of his size.

To be clear: Legally, he deserves the exact same treatment as anyone else in his position. Given a black eye on the victim that prosecutors could still see days later, in my view he should spend at least a long weekend in jail, bear a criminal conviction, and maybe probation. Academically, he should be able to continue his education at FSU if he can do so appropriately on scholarly merit alone. He should certainly be able to rehabilitate himself, perhaps after serious mediation and reflection. But his NCAA playing career should be over. Not just at Florida State but everywhere. I concede readily I know almost nothing of his athletic career or his character otherwise. I also lack experience with college football itself other than as a casual observer, let alone with disciplining NCAA athletes and determining what standards are most appropriate when meting out punishments for off-the-field conduct.

Regardless, I’ll say confidently that Johnson should be banned from college sports forever, period. This view is not about retribution or disgust with Johnson himself; I find his behavior disgusting, but I have no desire to forever demonize an adolescent for what might well involve lingering impulse control issues. Further, American football, as much as it also exemplifies strict discipline and the plain decency of sportsmanship at its best, also rewards blunt force and quick, violent reaction. It has certainly rewarded Johnson in that regard, and the mixed signals have perhaps proved toxic. Similar to the challenge the military has in developing warriors who can still act morally and with grave restraint whether or not under direct command, football demands line-drawing and a delicate balance between the unleashing of violence and the crucial mettle of self-control.

Still, Andre Johnson’s stunning failure to make these distinctions is exactly why, as unfortunate as it is for him, he must be made an example of and stripped of a privilege he squandered in a pitiless, inexcusable rage. Nothing short of that sends a message sufficient in terms of moral clarity and the rightful demands of a civilized society.

For football, nine seconds is enough.

Cathy Young Wants Feminists to Describe Rape As “Ugly Sexual Encounters.” Don’t Let Her.

It might be irony, the way it’s commonly portrayed. Or it might just be rank hypocrisy. Whatever it is, Cathy Young, in her May 20, 2015, post embodies it.

The caption under the istock photo the Washington Post chose to accompany this vacuous and alarmist piece was the following: “We need to stop prosecuting bad behavior as rape.”

Really? As if a non-stranger rape prosecution tidal wave has formed, blocking all other efforts to seek justice at the courthouse?

No, that’s not happening, but thankfully we have Cathy Young showing us the way to avoid such abominations, what with her two anecdotes about regretted sexual encounters and literally nothing else. What’s funny, though, is that Cathy herself admits fully that she 1) didn’t view the negative sexual encounters she describes as a crime, and 2) she didn’t report them as such.

Welcome, Cathy, to reality. That’s what pretty much all women and men do, and by the way? It’s what the vast majority of victims do when the “encounters” actually are, objectively and by any statutory definition, rape. And this wasn’t just when you were young, Cathy. It’s still true now. And it probably will be for a very long time.

I’m sure Cathy would point out though, that what prompted her breathless piece was the idea that legions of women like her, armed now with 2015-era “feminist” notions of victimhood, are poised to suddenly push open the floodgates of litigation to incorrectly and unjustly imprison men who simply used “seductiveness” to turn a “no” into a “yes.” Ms. Young would have us believe that a few reasonable initiatives regarding consent, and a renewed movement against an age-old scourge have somehow eviscerated fair judgment in the average person and created a monster of inaccurate reports and false victims.

Garbage.

In fact, rapists now, just as rapists when Cathy Young was in her teens or twenties, rely on myths, shame, and fear in order to keep their victims silenced. In terms of what Ms. Young has brought to the issue, this means being 1) silently obedient to Cathy Young’s interpretation of their experiences, and 2) repentantly observant of the Washington Post’s clever istock choice of an obviously whoring slut searching for her pumps under a man’s bed.

The message? If you believe you’ve been raped, you’re probably wrong, and you probably did something to either bring it on or otherwise allow for it to happen.

So blame feminism. Blame the “liberal media.” Blame yourselves, certainly.

Just never blame the rapist. In Cathy Young’s world, there are far fewer of them than there are hysterical and litigious versions of you.

 

 

 

 

 

What Harvard Law Professors can Learn From Stanford Undergrads

Last July, Harvard University adapted both a new policy on sexual harassment and a new set of investigatory procedures to respond to it. Not surprisingly, both policy and procedures are designed to ensure compliance (and general harmony) with Title IX of the U.S. Code. IX prohibits discrimination and ensures access to educational programs that receive federal funding.

Sexual violence and harassment implicates Title IX in that federally-funded schools must preserve educational environments that are as free as humanly possible from these things. That’s the bottom line. Harvard is pursuing that bottom line surely in the interest of doing what’s right as well as in preserving an important funding stream. Good on them.

Regardless, a few months ago, 28 Harvard Law School professors signed a statement published in the Boston Globe expressing “strong objections” to the new policy and procedures. Indeed, the principal author has stated her belief that current federal efforts in this area will be looked back on as a “moment of madness.”

My legal betters seem to have objections in two major areas: First, they bemoan what they see as a lack of due process protections for students accused of violating school policy based on Title IX protections. They see an adjudication system “overwhelmingly stacked” against accused students. Second, they believe Harvard has gone too far in defining offending conduct under their Title IX-based disciplinary policy, apparently believing it threatens things like “individual relationship autonomy.”

I’ve carefully reviewed the new procedures, and while I can’t go point by point in this space as to why they are basically reasonable, suffice to say I don’t see anything that should raise an alarm as if Harvard has decided to do away with anything resembling American legal tradition in favor of a politically-correct mob. Regardless, reasonable minds can differ on whether an adjudication system for student misconduct provides enough procedural safeguards. Fine.

It’s their second area of objection (the new definition of impermissible sexual harassment) that I find somewhere between mystifying and dangerously naïve. They apparently object- at least in some way- to Harvard’s new prohibitions against sexual conduct with a person “so impaired or incapacitated as to be incapable of requesting or inviting the conduct…provided the Respondent knew or should have known about…” such a condition.

That’s right. To a united legal mind of 28 in arguably America’s finest law school, this clear prohibition is somehow problematic because of “complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.”

With due deference to this brilliant group, they seem to know precious little about 1) sexual violence as it plays out when intoxicants are a weapon of offenders, and 2) the reality of how victims perceive their own victimization in most cases.

It’s a fact that intoxicants, particularly but not exclusively alcohol, are often used by sexually predatory people to disable victims, ensure destruction of their credibility, create confusion and doubt due to memory loss, etc., and also because a sad majority of people (like the Harvard Law 28) are blind to this kind of behavior, believing it instead to be some kind of misunderstanding. Predators depend on this naivety when it comes to what they do. They always have.

But it’s a far more crucial fact that the vast majority of women (and men) who are clearly sexually violated- particularly when voluntarily intoxicated themselves- never report sexual assault in the first place, let alone cases of what is likely college-age confusion or awkwardness.

Why? Because in the great majority of cases, the truly victimized do exactly what thinkers like the HL28 want them to do: Blame “confusion.” Blame college inexperience. Respect “relationship autonomy.” But above all, blame yourself.

So might a new (and utterly reasonable) definition of sexual harassment lead to a floodgate of aggrieved people “crying rape?” Will “madness” from the government then subject legions of inoffensive young men to academic ruin?

No. Both notions are silly. Yet I’m amazed at how many otherwise brilliant people believe them.

The HL28 could learn something from a recent and brilliant op-ed by two undergrads at Stanford, describing very similar efforts that will be undertaken at that equally august institution. Contrasted to the hand-wringing of the HL28, it’s genius.

Young White Privilege, a Camera, and an Apparently Good Cop

I teach a sociology class called “Policing and Society” at a state college in Northern New Jersey, not far from where I live in New York City. My class is almost evenly split between white, African-American and Latino students. Some come from the ghettos of Paterson and Camden, some from wealthy Bergen County suburbs. Most want jobs in law enforcement.

Not surprisingly, my students have been sharing with me videos of police interactions captured by bystanders or police-issued body and dash cameras all semester long. Most depict suspected misconduct and abuse, but a few portray police men and women doing the right thing under remarkably stressful circumstances.

There’s one that’s apparently gone viral over Facebook (shown here from Youtube) that was brought to my attention earlier this week. We watched it together, all of us, and it sparked a discussion I was grateful to have; it was was probably the most honest and open one we’ve had all semester around this difficult topic.

Very simply, it captures the eviction of a group of young people (and the eventual, lawful arrest of one of them) from an IHOP by a Fort Wayne, Indiana, policeman. By the opinion of most who have viewed it, attempts by the amateur videographer to capture “police brutality” and improper use of force have backfired. The officer involved instead appears remarkably restrained and professional despite behavior that can only be called reprehensible and most certainly criminal.

The larger point the video made to me, though, and that my class seemed to agree with (across racial and cultural lines) is this: If you don’t believe that young, white kids- from what appear to be at least middle class backgrounds- expect to be treated differently by police and are more emboldened to challenge their authority, you’re not living in the real world.

Of course, what’s depicted is only what was captured in one place on one night. Still, there is the undeniable hint of a microcosm here in terms of what these youth regularly believe is not only survivable, but not even reckless. In some way, in their minds, it’s actually appropriate. Don’t like what a cop is telling you to do? Scream in his face and dare him to arrest you. Have a friend follow along with a phone camera, demanding explanations from him from a couple of feet away as he tries to do his job in the face of despicable, taunting vulgarity and a repeated refusal to cooperate. Why not? What’s the worse that’ll happen?

Then contrast that with the young, African-American men in the same video, at just before the 1:00 mark, who look on silently and are utterly non-confrontational. There’s no evidence they were involved with the offending crowd in any way to begin with, and also none that the responding officer would have treated them any differently. Regardless, whatever their intentions were or their attitudes toward police are, they kept those things to themselves.

Why? Because they’re not stupid.

Neither are my students.

Far More than “He-said, She-said” in Latest NFL Rape Case

The rape charges filed earlier this month in Indianapolis against Colts special teams player Joshua McNary are, sadly, only the latest accusations of violence against women- sexual violence, in this case- against members of the National Football League.

McNary appeared in court for an initial hearing last week and pleaded not guilty, his attorney emphatically denying the charges. This is, of course, appropriate and generally a good defense attorney’s job when the case appears to be one that will likely 1) attract media and public speculation and 2) go to the mats in a jury trial.

Like most, I know only what’s been reported and would take no firm stance about McNary’s guilt or how the case will likely play out. I do know, as I’ve stated repeatedly in this space and many others, that very few rape allegations are false at their core, and that rape is grossly underreported, not something tossed around for vengeance, vanity or money, despite the endless droning of the paranoid and/or finger-wagging set. Regardless, that’s as far as I’d go with any factual speculation.

At least one quoted expert though, former prosecutor and current defense attorney Jack Crawford, grossly oversimplified, by all accounts so far at least, what’s likely to be seen in evidence.

In short, he referred to it as a “he-said, she- said” case, a term I’ve come to despise at the same time I’ve simply gotten used to it. It implies, of course, that the criminal charges rest only on the word of the complainant, the word of whom will be challenged by the defendant, leaving the jury in a position of deciding which one to believe. Although a popular characterization of many sexual assault cases, “he-said, she-said” is literally never accurate. I was taught many things by my mentor and former boss Victor Vieth, and among the most important was that corroboration, in some form, is always possible to find and then translate into evidence if the investigators and prosecution team are diligent and creative enough.

Rarely does corroborating evidence constitute a smoking gun, of course; far more often it’s just a simple fact that can be independently proven, and then offered as evidence when it’s shown to support the prosecution’s theory of the case. In tandem with many others, though, it can help a justice-minded but aggressive prosecutor build and then prove a case that a lesser attorney would probably just avoid. Indeed, prosecutors in my experience are often more likely to falsely tag cases as “he-said, she-said” (and thus un-triable) than many on the defense side.

What’s particularly silly about Crawford’s characterization, though, is how inapposite it appears to be in this particular case. The victim here reported within hours of being assaulted. This allowed physical evidence to be taken and an acute examination to be done, both of which will likely favor the prosecution. The quick report also allowed detectives to find McNary and preserve evidence from both the crime scene and his body before either could be disturbed; this evidence also looks promising for the prosecution. Interestingly, McNary appears to have preserved bedding himself for the responders, telling them when they arrived that he expected them. It’s hard to say how that will be used by either side, but it arguably shows consciousness of guilt on McNary’s part.

Crawford certainly isn’t all wrong. He’s correct that the case will not be an easy one for the prosecution to prove. He’s right that intoxication on the part of both parties will complicate matters and likely cut against the credibility of the complainant. He’s probably also right that consent, ultimately, is what the jury will have to decide, since sexual intercourse between the two will be easily established if not outright admitted by the defense.

But he’s wrong to suggest that this case comes down to nothing but the testimony and credibility of the two people at the center of it. A creative, diligent prosecution team, backed with a good investigation, has a better shot at proving this case than Crawford suggests. I’m willing to bet that’s the case, in Marion County, Indiana.