June 5 roundup

by Walter Olson on June 5, 2007

  • Everyone’s got an opinion on Dr. Flea’s trial-blogging fiasco [Beldar, Childs, Adler @ Volokh (lively comments including Ted), Turkewitz (who also provides huge link roundups here and here), KevinMD]
  • Sidebar: some other doctor-bloggers have shut down or curtailed posting lately amid pressures from disapproving employers and patient-privacy legal worries [KevinMD first, second posts; Distractible Mind, Blogaholic]
  • Amusement park unwisely allows “extremely large” woman to occupy two seats on the roller coaster, and everyone lands with a thump in court [Morris County, N.J. Daily Record via Childs]
  • Prosecutors all over are trying to live down the “Duke effect” [NLJ]; how to prevent the next such debacle [Cernovich]
  • Bad for their image: trial lawyers’ AAJ (formerly ATLA) files ethics complaint against Judge Roy Pearson Jr., of $65 million lost-pants-suit infamy [Legal Times]
  • More suits assert rights to “virtual property” in Second Life, World of Warcraft online simulations [Parloff]
  • Plea deals and immunity in the Conrad Black affair [Steyn, OC Register]
  • Another round in case of local blog sent nastygram for allegedly defaming the city of Pomona, Calif. [Foothill Cities; earlier]
  • “There once was a guy named Lerach…” — Milberg prosecution has reached the limerick stage [WSJ Law Blog comments]
  • Government of India plans to fight Americans’ claims of intellectual property over yoga postures [Times Online; earlier here and here]
  • After car-deer collision, lawyer goes after local residents who allegedly made accident more likely by feeding the creatures [seven years ago on Overlawyered]

{ 12 comments }

1 jb 06.04.07 at 11:36 pm

The amusement park one: If she’d been refused access, what do you bet she’d have sued for discrimination?

The Duke effect one: This
is an example of the awful fallout of the case. More information here.

2 Jim Collins 06.05.07 at 12:11 pm

I’m not too thrilled about Joshua Marquis’s statement on the Duke case. The only reason that these guys were not tried and convicted was because of the media coverage. How many people are wrongly convicted or plead guilty to lesser charges because of a lack of this coverage. I’d like to see the position of District Attorney eliminated as an elected position.

3 nevins 06.05.07 at 12:33 pm

Jim
I’m thinking it is much more likely that without media coverage and prosecutorial excesses in fanning the flames of community outrage, that the Duke players might have been tried, but would have been acquitted. The alleged victim’s story would have been just as surely picked apart in court as it was in the press.

As far as the Duke effect goes, I would consider it malpractice if an attorney failed to invoke it in the zealous representation of a client.

4 OBQuiet 06.05.07 at 1:20 pm

jb,

It seems to me that the De Anza case point to has little to do with Duke and more to do with the current state of the law in CA.

I’m no lawyer and I find the events as described reprehensible. I will leave it to others to debate how we word a law to punish a deliberate rape and protect against alcohol induced consent and its revocation.

5 James 06.05.07 at 3:20 pm

At least with regards to the Second Life thing, the guy may actually have a case– I’ve been following it somewhat.

6 Mike 06.05.07 at 5:46 pm

I’m thinking it is much more likely that without media coverage and prosecutorial excesses in fanning the flames of community outrage, that the Duke players might have been tried, but would have been acquitted.

It’s not that simple. With weak cases like the Duke players faced, prosecutors usually offer deals that are too good to refuse – probation and the opportunity to have the conviction expunged from one’s record after some short period of time. (This is the same type deal Rush Limbaugh took; it’s usually called deferred adjudication.)

So if you are an innocent defendant facing a rape case, you can either a) take a deal that guarantees you will eventually be able to move on with your life or; b) roll the dice at trial – where a conviction would mean prison time and lifetime registration as a sex offender. More than likely, the same folks who voted for Mike Nifong would have been the jurors in a Duke rape trial.

Can you see why innocent people plead guilty to crimes they did not commit?

7 MF 06.05.07 at 6:36 pm

Excellent point, Mike. That’s exactly how guys like Nifong usually get away with their abuses, too. They don’t get called on it. In your example above, the innocent victim plea bargains, and the DA can claim another “conviction” or “win” because “guilty party” didn’t get away with it.

Another problem is that some defendents simply can’t afford the costs associated with the strong defense needed to get the exoneration. Pay $1000 (or maybe even nothing or very little with a public defendent) and take the plea bargain, with the deferred adjudication (as Mike explained above), or pay $50,000 and go for your 95% chance at being cleared, but also with a 10% chance at being found guilty (in spite of the reality). Use that public defendent and your chance at being cleared drop from 95% to 75% or maybe even less. Doesn’t sound like a very good bet to me.

8 ben tillman 06.06.07 at 2:16 pm

Regarding the De Anza case, I think it makes sense to put the burden of proof on any man who has sex with a woman with the knowledge she has had sex with another man within the past hour (or some other period of time).

The elements of the offense would be (1) sex with a woman, and (2) knowledge that the woman had engaged in sex with another man within the past hour. Consent would be a defense, though as a practical matter where the woman consented there would most likely be no complaint and thus no charges.

9 Deoxy 06.06.07 at 3:35 pm

“though as a practical matter where the woman consented there would most likely be no complaint and thus no charges.”

Unless the woman wanted money. Or was mad at the guy. Or later decided she regretted it. Or she was cheating on someone with him and wanted to appear innocent. Or…

Men rape women. Women falsely accuse men of rape. This is a problem, but shifting the burden of proof to the accused to defend themselves puts our entire system of justice on its head.

Want to see how a system like that works? Go to Mexico – it’s called “Napoleonic law”, and it SUCKS. It’s far more open to abuse than our system (which is frightening to contemplate, I know).

The burden of proof is ALWAYS on the accuser. Prove your case “beyond a reasonable doubt”, and the accused only has to respond once you’ve gotten that far.

10 ben tillman 06.06.07 at 6:46 pm

“The burden of proof is ALWAYS on the accuser.”

You seem to have missed the point. What must be proven is subject to redefinition; the elements of an offense can be changed, or a new offense can be created.

A claim that a woman consented to have sex with eight men is inherently dubious, and it is a good policy to discourage gang rape by instituting a law that eliminates the issue of consent in that context.

11 Deoxy 06.07.07 at 11:26 am

ben tillman,

I assumed you weren’t willing to inherently criminalize a man having voluntary sex with a woman past the age of consent. I guess I was wrong.

Without getting into particulars, let’s just say that the odds of that being done are slim to none, and Slim left town a long time ago.

(Radical feminists actually tried to have this done on college campuses – a woman could chang her mind the day after, and the school would treat the man as though he was guilty of rape. Let’s just say that such BS wasn’t exactly popular with the rest of society.)

12 ben tillman 06.07.07 at 12:37 pm

You don’t have much of a memory. In fact, laws against consensual sex (fornication) are probably still on the books in some states.

My proposal is a common-sense proposal that very few people would oppose (you’re an obvious exception), so I would have to say that most legislatures would pass such a law if brought before them.

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