In covering the issue of prosecutorial accountability no issue arises more frequently than the failure by the state to properly disclose exculpatory evidence. These failures, whether proven or merely alleged, are analyzed by courts and discussed by journalists via reference to the Brady line of cases, which establish the constitutional duty of prosecutors to turn over any “material” evidence favorable to the defense.
Brady and its progeny are what set out the legal test in litigating compliance with the rules of criminal discovery, post-conviction. A finding of a “material” Brady violation can lead to new trials for defendants or new sentencing hearings. But even a legal finding of a failure to disclose has no formal impact on the prosecutor him or herself.
Given the Supreme Court’s decisions in Imbler v. Pachtman and Connick v. Thompson,which set a virtually impossible bar for plaintiffs to meet in order to win civil damages against even the most egregious prosecutorial misconduct, one of the few remaining means of formal redress is through the filing of bar complaints against individual prosecutors for the violation of their ethical as opposed to constitutional duties.
For a variety of reasons–the reluctance of defense attorneys, as repeat players in the system, to file complaints against opposing counsel, and the slowness, inefficacy, and prosecutorial capture of many state bar associations–bar complaints against prosecutors have historically been rare, and any resulting punishment rare to the point of vanishing.
It is perhaps because of this very infrequency of bar complaints against prosecutors, much less successful ones, that has allowed a sleeping giant of prosecutorial ethics violations to remain hidden in plain sight.
That hidden giant is the fact that in many states and, as discussed below, arguably in the vast majority of states, a prosecutor’s ethical obligation to disclose favorable evidence is far broader than their legal obligation, and it has no “materiality” requirement attached to it. Meaning, in effect, that what we have come to accept as the standard practice of criminal prosecution in America is itself an ethical violation in much of the country.
Ethical vs. Legal Standards for Disclosure
In May we wrote about a little-noted opinion by the District of Columbia Court of Appeals. In Re Andrew J. Kline held that a prosecutor’s ethical duty to disclose exculpatory evidence was broader than his or her legal duty under the Brady line of cases.
The court specifically found that the prosecutor was required to disclose exculpatory evidence, “regardless of whether that information would meet the materiality requirements of Bagley, Kyles, and their progeny.”
It therefore held that a federal prosecutor, who had failed to turn over a witness statement, had violated the District of Columbia’s Rule 3.8(e), modeled on the ABA’s Rules of Professional Conduct, Rule 3.8(d).
In a “Formal Opinion,” entitled Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense (2009), the American Bar Association’s Standing Committee on Ethics and Professional Responsibility wrote: . . .
The site looks very interesting—check out the home page, which currently includes a link to this post:
“Prosecutor Appears to Threaten Witnesses Claiming Richard Glossip is Innocent.”
The more I use Workflowy, the more I like it. It runs in a pinned tab in my default browser, and I add notes and reminders as needed. If I mark something as “completed” it is grayed out with a strikethrough, and it’s easy to drag items here and there (so I can have a “Completed” item and drag completed things underneath it as sub-items, plus there’s a toggle to hide/unhide completed items.
Altogether worth exploring. And the help system is particularly nice, consisting in large part of brief demo videos.
Sometime last week I said I’d do a side-by-side comparison of RazoRock’s new angel-hair synthetic and the Plisson angel-hair synthetic.
The soap today is Maggard Razors Lilac, which has a wonderful fragrance and makes a fine lather but is sold in containers that are half empty (or, if you’re an optimist, half full). Though some like having empty space in the container, I prefer to get containers that are full (like Martin de Candre’s shaving soaps, to name one example).
Be that as it may, I loaded both brushes easily—the Maggard soaps are quite good and easy to lather—and lathered my beard using the brushes alternately. I don’t think I would notice any significant difference between the two if I used them separately, but when juxtaposed in the same shave, the differences were evident.
As you can see in the photo, the RazoRock knot (the brush on the left) is somewhat larger: the knot a slightly greater diameter than the Plisson’s, though the lofts seem to be the same. I thus expected it to feel larger on my face. However, the brushes felt much the same size and, if anything, the Plisson felt a tad larger—and certainly felt softer. (I think the Plisson’s greater softness is what made it feel larger.)
As I say, I doubt that I would notice the difference had I used the brushes separately, on different days, but using them side by side, the Plisson’s greater softness was obvious. On the whole, the Plisson felt better, but note that the RazoRock will sell for $15 when it is again available and that Plisson costs €34.80 ($39.20), more than twice as much—in fact, more than 2.5 times as much. So it’s no surprise that the quality is somewhat greater.
That said, the RazoRock is quite good, and at $15 is a great bargain. Since I now have both, though, I myself prefer the feel of the Plisson. Both brushes perform admirably in terms of creating lather, so there’s no difference there.
Once lathered, I shaved, using the British equivalent of the Super Speed, the Gillette Rocket, an altogether more skookum razor. Here’s the Super Speed and the Rocket side by side, with the Super Speed in front, and you can see the difference. In terms of weight, the Super Speed shown is 55g and the Rocket is 72g.
Three passes to a BBS result with no problems encountered. Altogether a fine shave. I finished with a final splash of Esbjerg Sensitive aftershave gel, and again I really like the fragrance, feel, and effect of this aftershave. I may have to get a bottle.
I should note that my preference for the feel of the Plisson is just that: a personal preference. I can readily imagine that some will probably prefer the RazoRock’s feel, and talk about how it has more “backbone,” a characteristic not important (or impressive) to me: I like invertebrate brushes because I like a brush that feels soft on my face. That’s part of the YMMV of shaving. And no matter how much we talk about YMMV, some will always believe that their own experience is the “true” experience, and any experience that differs is some sort of error.
From McGraw-Hill’s World Geography textbook:
Yanan Wang reports in the Washington Post:
Mothers of teenagers are used to getting frustrating text messages, but the one that Roni Dean-Burren received from her 15-year-old son last week wasn’t about alcohol, dating or money for the movies.
It was about history.
Her son, Coby, had sent her a photo of a colorful page in his ninth-grade McGraw-Hill World Geography textbook. In a section titled “Patterns of Immigration,” a speech bubble pointing to a U.S. map read: “The Atlantic Slave Trade between the 1500s and 1800s brought millions of workers from Africa to the southern United States to work on agricultural plantations.”
“We was real hard workers wasn’t we,” Coby retorted in a subsequent text.
The image alarmed Dean-Burren, who was an English teacher for 11 years at the Pearland, Tex., public high school that her son attends. Now a doctoral candidate in the University of Houston’s Language Arts program, she has spent much of her life thinking about the power and dangers of nuanced language. The motive behind the textbook’s choice of words seemed clear.
“This is erasure,” Dean-Burren said in an interview with The Washington Post. “This is revisionist history — retelling the story however the winners would like it told.”
In calling slaves “workers” and their move to the United States “immigration,” she noted in viral Facebook posts Wednesday and Thursday, the textbook suggests not only that her African American ancestors arrived on the continent willingly, but also that they were compensated for their labor.
McGraw-Hill Education sought to redress these implied untruths in aFacebook announcement Friday. While the geography program “meets the learning objectives of the course,” the publishing company’s statement said, a close review of the content revealed that “our language in that caption did not adequately convey that Africans were both forced into migration and to labor against their will as slaves.”
“We believe we can do better,” it continues. “To communicate these facts more clearly, we will update this caption to describe the arrival of African slaves in the U.S. as a forced migration and emphasize that their work was done as slave labor.”
The changes will be made in the textbook’s digital version and included in its next run.
While McGraw-Hill’s action came swiftly, it was after tens of thousands of people had already expressed their outrage on social media. By the time Dean-Burren received news of the company’s response, her video contemplating the textbook’s impact had garnered half a million views.
Dean-Burren has mixed feelings about the outcome. “On a surface level, ‘yay,’” she said. “I understand that McGraw-Hill is a textbook giant, so thumbs up for listening.”
On the other hand, few students use the digital version, and as her son’s textbook is brand new (copyright year 2016), another print version likely won’t come out for another ten years, Dean-Burren said.
She called on McGraw-Hill to rise to its own professed standard: “I know they can do better. They can send out a supplement. They can recall those books. Regardless of whether you’re left-leaning or right-leaning, you know that’s not really the story of slavery.”
Referencing her use of #BlackLivesMatter on Facebook, Dean-Burren added, “Minimizing slavery in any way is a way of saying those black lives, those black bodies, that black pain didn’t matter enough to give it a full description.”
The educational publisher has been criticized for its Texas materials before. McGraw-Hill was one of a handful of textbook providers that came under fire after the Texas State Board of Education adopted new standards for its social studies curriculum in 2010 — a policy that educators derided for interfering with accurate history instruction. . .
Anti-vaxxers fund a study to investigate links between vaccinations and autism. Study found that there are no such links.
Jessica Firger reports for Newsweek:
Most experts today agree that the belief that childhood vaccines cause autism is based on bunk science. Even still, some advocacy groups claim immunizations are responsible for raising the risk for this neurodevelopmental condition, despite a growing body of research that shows there isn’t a link. (The study that most anti-vaccination groups point to was retracted after it was found to be based on falsified data.)
Despite the science, organizations involved in the anti-vaccine movement still hope to find some evidence that vaccines threaten children’s health. For example, the autism advocacy organization SafeMinds recently funded research it hoped would prove vaccines cause autism in children. But this effort appears to have backfired for the organization—whose mission is to raise awareness about how certain environmental exposures may be linked to autism—since the study SafeMinds supported showed a link between autism and vaccines does not exist.
Between 2003 and 2013, SafeMinds provided scientists from the University of Texas Southwestern School of Medicine, the University of Washington, the Johnson Center for Child Health & Development and other research institutions with approximately $250,000 to conduct a long-term investigation evaluating behavioral and brain changes of baby rhesus macaques that were administered a standard course of childhood vaccines. (The National Autism Association, another organization that has questioned vaccine safety, also provided financial support for this research.) The latest paper in the multiyear project was published Monday in the Proceedings of the National Academy of Sciences (PNAS). In it, the researchers concluded that vaccines did not cause any brain or behavioral changes in the primates.
The PNAS paper reports findings of the full-size study, conducted between 2008 and 2014 at the Washington National Primate Research Center, that occurred after the completion of an initial pilot program on 17 infant macaques. The full study involved 79 infant male macaques, aged 12 to 18 months, broken into six groups. Two groups received thimerosal-containing vaccines for a child’s complete vaccine schedule; two were given the measles, mumps and rubella (MMR) vaccine without TCVs; and two received saline injections as a control group. In each case, the monkeys were further split into subgroups: Half were on an accelerated vaccination schedule recommended by the U.S. Centers for Disease Control and Prevention in the 1990s, and half were on the recommended schedule from 2008.
Anti-vaccine activists have claimed that both the vaccines with thimerosal—a mercury-based antifungal and antiseptic preservative—and the MMR vaccines are linked to autism. Thimerosal was removed from most vaccines in the late 1990s. But the researchers wanted to study its potential health effects anyway.
The researchers then put the monkeys together in cages to see if they exhibited any new autistic-like social behaviors, such as fear, withdrawal, rocking, self-clasping and stereotypy (repetitive behavior). They reported that the monkeys’ behaviors remained unchanged. (Another paper by some of the same researchers, published in February in Environmental Health Perspectives, assessed the learning and social behaviors of the same group of monkeys and found the vaccines did not affect their development.)
For the PNAS paper, the researchers also conducted postmortem analyses of the primates’ brains after they had been euthanized. The team looked for brain abnormalities, including those in the volume and density of the cerebellum, amygdala and hippocampus regions, all of which have been shown to have some variations in children with autism. They also looked at the numbers and size of certain types of brain cells, known as Purkinje cells; some studies have shown there are fewer Purkinje cells in the brains of children with autism. The researchers say they didn’t find any marked differences in the brains of monkeys in the vaccine groups compared with those in the control group.
SafeMinds, the nonprofit that funded the research, is not happy with the results. . .
Very interesting article in Medium by Steven Levy:
During Carly Fiorina’s triumphant performance in the wretched carnival that was the second Republican debate, she picked the perfect moment to play the Steve Jobs card. The subject had turned to her tenure as the CEO of HP, the single aspect of her resume that vaguely qualifies her as a presidential candidate. Industry observers have contended that she did her job poorly, and, indeed, when the board dismissed her in 2005, HP’s stock price rose by seven percent. Meanwhile, Fiorina fell to earth with the aid of a $40 million golden parachute.
Her comeback to this at the debate? Steve Jobs was on her side! She shared a story — which may well be true — about how Apple’s late CEO had called to remind her that he had been fired as well, and it wasn’t the end of the world. “Been there, done that — twice,” he told her. Unlike Jobs, however, Fiorina did not go on to start a company, buy another small company and sell it for billions, or return to the place that fired her and restore it to glory. But the point of the story was that Steve was on her side, and by aligning herself with the sainted innovator, Fiorina racked up triple-bonus debate points.
Ms. Fiorina’s trainwreck stint at HP has been well documented. But I want to address one tiny but telling aspect of her misbegotten reign: an episode that involved her good friend Steve Jobs. It is the story of the HP iPod.
The iPod, of course, was Apple’s creation, a groundbreaking digital music player that let you have “a music library in your pocket.” Introduced in 2001, it gained steam over the next few years and by the end of 2003, the device was a genuine phenomenon. So it was news that in January 2004, Steve Jobs and Carly Fiorina made a deal where HP could slap its name on Apple’s wildly successful product. Nonetheless, HP still managed to botch things. It could not have been otherwise, really, because Steve Jobs totally outsmarted the woman who now claims she can run the United States of America.
I can talk about this with some authority. Not only have I written a book about the iPod, but I interviewed Fiorina face to face when she introduced the HP iPod at the 2004 Consumer Electronics Show, and then got Steve Jobs’s side of the story.
It was at CES that year that HP announced its version of the iPod. That in itself was pathetic. The company’s motto at the time was Invent! But at the biggest event of the technology world, HP’s big newsmaking announcement was that it was selling someone else’s invention. Nonetheless in our interview on January 8, just off the show floor, Fiorina boasted about cobranding the iPod as if it were an innovative coup for her own company.
Apple chose her company, she told me, “Because HP is a company that’s an innovator. We believe innovation is our lifesblood. It’s why INVENT sits on our logo.” So why sell someone else’s product? She described her strategy as “focused innovation.” Apparently this meant throwing in the towel when a competitor came up with something really good.
It didn’t seem like a recipe for success, and indeed, HP was not successful at it, for a number of reasons. But before I get to that, let’s contemplate what Apple got in return for allowing HP to rebrand iPods and share the loot. HP agreed to pre-load Apple’s iTunes music software and store into its personal computers. This was a hugely valuable concession. Apple had only recently begun to push this key software into the Windows world. Millions of HP/Compaq customers would instantly become part of Apple’s entertainment ecosystem.
If it were a straight deal for HP to include Apple’s software, the fee might have been hundreds of millions of dollars. (Around that time, software companies were paying huge sums to have their products or services preinstalled, since people seldom deleted them and often used the default choices.) Even better, preinstalling iTunes was a way for Apple to stifle Microsoft’s competitor to the iTunes Music Store. As an Apple leader at the time puts it, “This was a highly strategic move to block HP/Compaq from installing Windows Media Store on their PCs. We wanted iTunes Music store to be a definitive winner. Steve only did this deal because of that.”
One might even argue that since Carly Fiorina wasn’t making much profit from selling computers, each machine her company sold under this deal delivered more value to Apple than it did to HP.
In return, HP got the right to sell iPods. But not in a way that could possibly succeed. Fiorina boasted to me that she would be able to sell the devices in thousands of retail outlets; up to that point Apple mostly sold them online and in its own stores. But by the time in mid-2004 that HP actually began selling its branded iPods, Apple was expanding to multiple retail outlets on its own. And soon after HP began selling iPods, Apple came out with new, improved iPods — leaving HP to sell an obsolete device. Fiorina apparently did not secure the right to sell the most current iPods in a timely fashion, and was able to deliver newer models only months after the Apple versions were widely available.
So it was no wonder that even at the program’s peak, it represented no more than about five percent of total iPod sales.
Even with a detail like the color of the iPod, Jobs totally rolled over Fiorina. . .
Continue reading. There’s more.