Tuesday, January 17, 2017

DNA laws make the innocent automatic suspects in crimes they didn't commit

Imagine you are falsely arrested for a rape you didn't commit. After a terrible ordeal, you are released and cleared of any wrongdoing. Now imagine if, after that, every time an alleged rape involving a stranger occurs in your locale, you are told to come down to the police station to stand in a police lineup as a possible suspect--even though the police have no evidence whatsoever tying you to the crime.

Sounds like the stuff of third-world dictatorships, doesn't it? So how is that different from what 32 states do with your DNA samples? They allow police to take DNA samples from people as soon as they are arrested on felony charges to be entered into a national database. Even if you are cleared of wrongdoing, unless you take action to expunge it, that information remains in the database.

Well, that's different you say. And, you are right--it is different because it's less intrusive. The police lineup example would require you to show up at the police station whenever a rape occurs and take part in a heart-pounding ordeal that could cause you to be arrested on the spot.

In contrast, you wouldn't even know if they are using your DNA information to tie you to some other crime.

Maybe it's better if you knew. "Once your DNA is the FBI’s database, you’re included in a genetic line-up every time police are looking for a suspect in a crime. And depending on the state that you live in, close family members, whose genetic information is similar to yours and so could be matched through yours, could also be implicated in a search. . . . 'If your DNA is in the database, you’re more likely to be implicated correctly or falsely in a crime,' says ACLU attorney Michael Risher." See here.

True, a police lineup is different because because witness identification is not reliable. But don't fool yourself into thinking that DNA testing is fool-proof.  Read this article--it will send a chill up your spine.

The courts say that taking your DNA sample upon arrest is constitutional. And, yes, in nearly all the states, the accused can expunge their DNA information from databases--but the way this is done varies from state-to-state. In some, it's as simple as sending a letter. But others require a court hearing. It's fair to surmise that most people accused of crimes will not have their DNA information expunged.

Most people would say that no one should worry about having their DNA information included in a national database. First, it helps police catch criminals. (If that were the only concern, we wouldn't bother with the Fourth Amendment--nearly every protection against unlawful search and seizure hinders the police from catching some criminals.) Second, if you're innocent, what do you have to worry about? After all, on television programs, DNA evidence is infallible.  (Again, read that article linked above--it may cause you to rethink some of your favorite programs.)

This isn't an issue many people care about. We've written about it previously (see here), but it's not a topic most people can get excited about. As with so many of the issues affecting the wrongly accused, it only becomes important when you or a loved one experiences it. Let's hope that never happens.

Monday, January 16, 2017

#DearBetsy: Kangaroo courts won’t solve campus sexual assault problem

Read it here.

Betsy DeVos's support for due process is a "red flag" that she's a rape apologist

The feminist hostility to due process for college men accused of sexual assault is on full display. Betsy DeVos, Trump’s nominee for secretary of education, and her husband, donated $10,000 to the Foundation for Individual Rights in Education (FIRE), the nonpartisan organization that defends free speech and due process on college campuses. That isn't sitting well with with the usual suspects, who say it's a "red flag" suggesting she doesn't care about college rape victims. See here and here and here.

And this is how far we've come. Supporting fair processes that insure the accused receives notice of the claims against him and a fair opportunity to defend against them is now a "red flag." Concern for fairness for the accused means having no concern for rape victims. It's all-or-nothing. A nominee for a cabinet position can't possibly be concerned about fairness for both accusers and the men accused. If she cares about the latter, she must be a misogynist and a rape apologist even if she also happens to care about the former. This perfectly mirrors the climate on American college campuses, where the only people who bother to speak out about sexual assault think that due process for men accused of sexual assault is "bullshit." Even mentioning the need for due process in this context sends the far left into a state of apoplexy. If you need more proof, just scroll through some of our posts from the past several years, here.

They bemoan that our politics has become polarized, and they long for the day when a Republican would "reach across the aisle" and find common ground with Democrats. Yet they are happy to imply that donating to FIRE is an act of evil. It is difficult to imagine how serious and constructive dialogue is even possible with these people.

Let's dispel some "fake news" circulated by the purveyors of the belief that concern for due process is tantamount to rape apology. Their principal defense of the current chaos on campus, including the Department of Education's mandate that schools use a "preponderance of the evidence" standard (the lowest of all possible standards), is that this is the standard used in civil cases alleging discrimination under other civil rights laws.

This argument is laughable to anyone who practices civil law, and it is astounding to me that news outlets parrot their argument as if it has legitimacy. In civil cases, the defendant is afforded all manner of evidentiary protections that colleges routinely deny young men accused of sex offenses. If the Dept. of Education would mandate that colleges adopt the evidentiary protections mandated for defendants in civil trials, most of us would be fine with it--it would, in fact, be an improvement over anything most colleges have ever done. But the procedures utilized in college kangaroo sex tribunals cannot be compared to the procedures used civil courts where, generally, only money damages are sought and the preponderance of the evidence standard is employed.

In civil cases, defendants are allowed to be fully represented by counsel at every stage of the proceeding.

Their counsel are permitted to make arguments for them and to vigorously depose prior to trial, and to vigorously cross-examine during trial, the accuser and any other pertinent witnesses. In college sex tribunals, counsel for the accused can rarely do more than sit there--if that.

Aside from depositions, defendants in civil litigation are also permitted to engage in all manner of discovery, including proffering requests for admissions, requests for production of documents, and interrogatories. And if the plaintiff fails to respond to proper discovery requests, s/he is sanctioned by the court, up to and including dismissal of his or her case and requiring him or her to pay the other side's attorney's fees. Nothing remotely similar is allowed in most college sex proceedings.

Hearsay evidence generally is excluded, as is evidence whose probative value is outweighed by its prejudicial effect on the other party. In college sex proceedings, the adjudicators do not have a clue what constitutes hearsay, much less how to assess whether evidence is too prejudicial for admission.

Trial and appellate judges are lawyers bound by centuries of common law precedent. In college sex proceedings, there are no constraints in the decision-making process, and we've seen many examples of decision-making unmoored from any semblance of rationality or fairness.

The college kangaroo sex proceeding has no relation to the orderly administration of justice in civil court--none.

Monday, January 9, 2017

This blog comes back full time on Monday . . . in the meantime, a word about the loonies

The left doesn't know how to debate or to make their case. They'd rather belch snark.

Someone tried to give the left some good advice today. “This Meryl Streep speech is why Trump won. And if people in Hollywood don’t start recognizing why and how — you will help him get reelected." See here.

Exactly right. Yet today they are bragging about how Streep "eviscerated" Trump, and they really believe it. They are blissfully ignorant that their tactics aren't just ineffective but downright hurtful to their cause.

I wonder, did they happen to notice that Streep took a shot at football? Her insult about mixed martial arts was bad enough--but football? Seriously, how out-of-step with middle America is this woman, or her fawning devotees sitting there in their gowns and tuxedos?

The left will never learn. They fact is, they aren't out to convince anyone of anything, they are content to sit around their safe spaces and stew about their election loss with like-minded loonies. But, hey, that's a great business model Hollywood has--demonize your customers. Louis B. Mayer is spinning around in his grave.

Can you say "Whig Party"? The dopes on the left ought to to to Wikipedia and learn what happened to it. They're halfway there.

As a public service to the left, I reference this helpful post.

Thursday, January 5, 2017

The left's hate culture is responsible for the Facebook torture

This is what happens when the people who dominate the public discourse openly manifest hatred and contempt for our duly elected president-elect and, by extension, his supporters (they routinely call Trump supporters "fascists"--and can you say "basket of deplorables"?). They assume that anyone who even voted for Trump buys into every loopy thing he says or writes.

The enlightened, open-minded left--and let's be honest, have we ever seen activists so ill-informed about the issues?--has declared that Trump won't be their president. They say they will resist and obstruct and impeach him. They have no intention of giving him a fair chance--none--they want to destroy his presidency. Why? Because, they insist, he's incompetent and a bad person who hates anyone who isn't a white male.

Let's not kid ourselves that it's Trump they hate. To this day, most of them still hate Ronald Reagan, even after he won the Cold War without firing a shot. They hated the Bushes, John McCain, and Mitt Romney. The fact is, they don't like anyone they consider to be a traditional American--because they've convinced themselves that traditional Americans are racists, sexists, xenophobes, and homophobes even though they aren't. Their hate is irrational. It could aptly be called childish if it weren't downright pathological. Now, finally, they'll have a Republican president with well-known character flaws, which means they don't even have to hide their hate anymore.

And the Facebook torture incident is what happens. The culture of hate they've manufactured has given license to the sociopaths among us to act out. We can be certain we'll see more of this sort of thing.