Coyote Blog

In the continuing battle to give males in college roughly the same due process rights as possessed by a black man in 1930's Alabama, my alma mater was one of the last holdouts fighting the trend.  No longer:

Earlier this week, the U.S. Department of Education wrapped up its investigation of Princeton University's sexual harassment and assault policies. The findings were unsurprising, though still striking: the government essentially accused the university of violating federal anti-discrimination law by extending too much due process to accused students.

Princeton had been one of the last hold-outs on the standard of proof in college rape trials. The university required adjudicators to obtain "clear and convincing" proof that a student was guilty of sexual assault before convicting him. That's too tough, said DOE. As part of its settlement, Princeton is required to lower its evidence standard to "a preponderance of the evidence," which means adjudicators must convict if they are 50.1 percent persuaded by the accuser.

Princeton's old policy was also criticized by DOE for allowing accused students to appeal decisions, but not accusers. Both this practice and the evidence standard were revised under Princeton's new, DOE-compliant policy.

Note that Princeton's former policies on burden of proof and restrictions on double jeopardy roughly mirror the due process rights Americans have in every other context except when they are males accused of sexual assault on a college campus.

I wish Princeton had held out and forced the Administration to test this in court.  I certainly would have donated to support the legal fund.

One of my theories I have mentioned before on this blog is that the worst abuses of freedom occur when the Left and Right in this country agree.  Here is another great example -- combine the Right's law-and-order drive to hand more power to,  and remove accountability from, police and prosecutors with the Left's need to string up some executives after the Enron collapse -- and you get this:

The DOJ has inexplicably teed up another trial of Brown, who was the only one of the Merrill defendants who was convicted on additional charges of perjury and obstruction of justice for having the temerity of protesting his innocence to the grand jury that originally investigated the Nigerian Barge deal. Brown's new trial is currently scheduled to begin on September 20.

But in the meantime, Brown's legal team has been leafing through enormous amounts of exculpatory evidence that the Enron Task Force withheld from the Merrill defendants in connection with the first trial back in 2005, but which the DOJ has recently been forced to disclose.

The result of the Brown team's effort is set forth below in the Supplemental Memorandum in support of a motion for a new trial for Brown on the perjury and obstruction charges (the downloaded version of the memo is bookmarked in Adobe Acrobat to facilitate ease of review). The memorandum details the appalling length that the Enron Task Force went during the first trial in suppressing exculpatory evidence in favor of Brown and his co-defendants and generally disregarding the rule of law in order to obtain convictions. As the memorandum concludes:

The conclusion is now inescapable that the ETF engaged in a calculated, multi-step process to deprive Brown of his constitutional right to Due Process. (1) They repeatedly denied the existence of Brady material, told this court they had met their Brady obligations and fought vehemently against producing anything [exhibit reference and footnote omitted]. They highlighted only selected material in a veritable garden of Brady evidence "“ much of their selections being vague, tangential or marginal"“while working around clear, declarative, relevant exculpatory material even in the same page, paragraph or document. (3) When ordered by the Court to produce summaries to the defense, they further redacted even the Brady material they had themselves highlighted and withheld the crucial facts that they had highlighted as Brady. (4) They egregiously capitalized on their misconduct at trial by making assertions that were directly belied by the exculpatory evidence they withheld.  .  .  .

The memorandum goes on to set out dozens of Brady violations, including charts that compare the exculpatory statements that the Enron Task Force withheld prior to the first trial with the incriminating statements that the Enron Task Force extracted from witnesses during that trial.

Folks, this is really bad stuff. But as bad as it is, I have not seen any mention of it in the mainstream media.

Reason has been on top of the LA crackdown on bacon-dog sales from mobile carts for some time.  Recently, the police stormed in and confiscated a number of vendors' inventory and push carts.  OK, its bad enough that bacon product sales have been deemed a threat to the Republic.  But what freaked me out is that the police did not impound the carts but rather junked them (pictures here).  So where is the due process?  If the police are found to have acted precipitously in arresting these folks, if they are found to be not guilty for whatever reason, their property is still gone forever.  This is roughly equivilant to having your car crushed in a mobile hydraulic press within minutes of being given a speeding ticket.  I wonder how many of these carts, which likely represent a huge investment relative to the investment capital these small business people possess, are collateral for loans?

One of the worst violations of due process on the books today is law enforcement's ability to seize cash and assets from people only suspected to be drug dealers, with no due process whatsoever.  In fact, the only process involved is that, once seized, the private citizen from which the assets were taken must prove beyond a reasonable doubt that the money or assets are legitimately theirs, rather than the other way around.  This was a great case in point.

Along the same lines, the city of Washington DC has decided that all that due process stuff is getting in the way of their harvesting the maximum amount of cash from drivers:

In an attempt to stem the loss of revenue from motorists contesting
parking tickets, cities are effectively eliminating the traditional due
process rights of motorists to defend themselves at an impartial
hearing. By the end of next year, Washington, DC's Department of Motor
Vehicles (DMV) will not allow anyone who believes he unfairly received
a citation to have his day in an administrative hearing.

"DMV
will complete the phase-out of in-person adjudication of parking
tickets in favor of mail-in and e-mail adjudication by December 2008,"
the Fiscal Year 2008 DMV plan states.

The move is intended to allow automated street sweeper parking ticket machines
to boost the number of infractions cited well beyond the 1.6 million
currently handed out by meter maids. As one-third of those who contest
citations in the city are successful, the hearings cut significantly into the $100 million in revenue tickets generate each year.

Under
the DMV's plan, motorists will only be able to object to a ticket by
email or letter where city employees can ignore or reject letters in
bulk without affected motorists having any realistic recourse.

Thanks to Radley Balko, who also found this little gem:

In Boston and other cities in Massachusetts,
motorists cannot challenge a $100 parking ticket in court without first
paying a $275 court fee. If found innocent, the motorist does not
receive a refund of the $275.

I know that no one seems to really give a crap about due process for accountants nowadays, perhaps an over-swing of the pendulum from the days when no one really cared much about prosecuting white collar crime, but some of the Justice Departments prosecutorial abuses are finally coming back to haunt them.

The Justice Department's case against 16 former KPMG partners for tax
evasion continues to unravel, with prosecutors themselves conceding
late last week that federal Judge Lewis Kaplan has little choice but to
dismiss the charges against most of the defendants.

Judge Kaplan ruled
last year that Justice had violated the defendants' Constitutional
rights by pressuring KPMG not to pay their legal fees. He is now
considering a defense motion to dismiss. Prosecutors continue to
protest the judge's ruling but on Friday they admitted in a court
filing that dismissal is the only remedy for the rights violations. The
more honorable route would have been for prosecutors to acknowledge
their mistakes and dismiss the charges themselves.

The truth is that
this tax shelter case should never have been brought. Both KPMG and its
partners believed the shelters they marketed were legal, and no tax
court had ruled against the shelters before Justice brought its
criminal charges. Then prosecutors used the threat of criminal
indictment against all of KPMG to extort an admission of guilt from the
firm and force it to stop paying the legal bills of individual partners.

For several years, I have been wondering why punitive damage awards like this one, that punish a company for various misdeeds, don't create a double jeapardy situation where defendents must pay over and over for the same "crime" (since the next individual suing also gets punitive damages).

Here's the problem:  A jury in Texas already hit Merck with $259
million in punitive damages*.  This number was based on a lot of
testimony about Merck's sales and profits from Vioxx, so it was
presumably aimed at punishing Merck for "errors" in their whole Vioxx
program.  So if that is the case, how can Merck end up facing a jury
again coming up with a separate punitive damage award for the same
"crime"?  Sure, it makes sense that Merck can owe actual damages to
individual claimants in trial after trial.  But how can they owe
punitive damages for the whole Vioxx program over and over again?
Aren't they being punished over and over for the same misdeed,
violating their Constitutional protection against double jeopardy?

In the recent Supreme Court decision involving a judgment against Philip Morris, the SCOTUS didn't really take this issue on, but did take on a related issue, arguing that punitive damage awards that take into account damages against more than just the defendant violate due process, since these other damages were not tried on the facts in that case.

Today, in a decision involving an astonishing $79.5 million punitive
damage award to the widow of an Oregon man who died of lung cancer
after smoking Marlboros for 42 years, the U.S. Supreme Court ruled
that a jury in a civil case may not punish a defendant for harm to
people who are not parties to the case. To do so, the five-justice
majority said,
violates the defendant's right to due process because he cannot defend
against hypothetical damage claims by people who are not involved in
the lawsuit. Furthermore, the Court said, "to permit punishment for
injuring a nonparty victim would add a near standardless dimension to
the punitive damages equation." Although this makes sense to me, the
Court's proposed solution"”that juries may consider harm to nonparties
in judging the "reprehensibility" of a defendant's conduct but not to
"punish a defendant directly" for that harm"”seems untenable.