Frankly, I Don't Care How Due Process Makes You Feel

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240 Responses

  1. Ken says:

    I shouldn't have to explain it, but I probably do: BoingBoing is a private site, and they can delete every comment that doesn't suit their flawed narrative if they like.

  2. Michael K. says:

    Ken, you rock. I can't tell you how many arguments I've stupidly gotten myself into about this very issue. It's amazing what people cease to care about when they feel justice has been thwarted by process, and cannot be persuaded that justice without process is imaginary.

    I think that, from now on, instead of arguing, I'll just print out a copy of this post, wrap it around a broom handle, and start hitting people with it.

  3. Efemmeral says:

    The Trickle Down effect explains the moderation. Company culture. The principals are not known for deep or critical thinking. BoingBoing's headlines are often intentionally misleading but I refer to your Oct.2 post, "Confronting Junk Science: Keep Calm and Carry On."

  4. James Pollock says:

    Well, there's the question of WHY double jeopardy applies IF the only reason for dismissal is that the person was charged under the wrong section of the statute, AND this wasn't known until the case reached the state Supreme Court.
    To the average person, it seems that the "prize" for winning that appeal SHOULD be the right to a trial based on the correct charge, rather than receiving a free pass for all variations, both the one(s) that didn't apply as well as the one(s) that do(es).

    It seems to me (and probably a lot of others) that perhaps the order of the court should be to permanently dismiss the charges under the wrong section of the statute, but allow leave to amend the charges and request a new trial, if appropriate, with a requirement for the state to cover the defendant's legal costs IF it wants to amend the charge. That seems to balance the public's interest in having offender's charged properly with the public's interest in not having any of its individual members financially disadvantaged by flawed prosecution. (People getting off on "technicalities" other than "the prosecutor couldn't convince the jury that the defendant did it" contributes a LOT to public distrust of the justice system.)

    Hmmm. Maybe you'll also need an implied waiver of qualified immunity if the second trial results in acquittal, to help keep down the number of times this comes into play, by making the prosecutor be damn sure he's got the goods on the defendant when charging under the proper statute. (Otherwise, you'd get the "Sheriff Joe" effect.)

  5. James Pollock says:

    It should also be pointed out that there are also cases of CONVICTION on a technicality, which don't get nearly the same press as ACQUITTAL by technicality.

    My favorite example is the guy who was helping an acquaintance move. The acquaintance had medical issues that prevented him from driving, but also resulted in his being eligible for a medical marijuana card. Thus, when they got pulled over, the MM patient immediately claimed ownership and possession of the contraband and displayed his card; no arrest. However, since it was in the car and the defendant was driving, constructive possession applies and HE gets arrested, charged, and convicted. For helping someone move.

  6. Agent T says:

    IANAL… and I don't know the most of the details of this case. I am a woman. I guess the thing that troubles me about the ruling is that the supreme court interpreted groaning and kicking as communicating consent. A groan isn't a word. If a woman gives a kicky little flutter is this a kick that communicates consent? Or does it withhold it? Or perhaps a bruising kick on the shin, that is the one that means consent withheld? Perhaps we can turn to the Oxford Kick Dictionary to determine the meaning of the kicks of which she is capable?

    My issue with the CT SC ruling is their assertion that groans and kicks equal communication. I personally like the idea of expressing words with my mouth (such as "Yes" and "No", "More", and "Not there") to communicate.

    It's the sort of ruling the flies in the face of common sense about what "communication" and what "physically unable to communicate" means.

  7. Grifter says:

    I am reminded in debates such as this, where someone pointing out what is essentially a factual truth is called something awful that doesn't at all apply, of a bit from a story:

    Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "
    "But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.
    "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
    "The question is," said Alice, "whether you can make words mean so many different things."
    "The question is," said Humpty Dumpty, "which is to be master–that's all."

    Antinous is quite the character. While I never was notified of the reason for or who performed my banning at that site, I believe from the chain of events that it was Antinous. I had, at one time, a good opinion of Cory Doctorow, but the way the dialogue on that site (which is he's the front man for) is handled leaves a bad taste in my mouth.

    On a side note, as a guy with a screen name that translates to "con man", I'm one to talk, but the choice of Antinous as SN is very odd to me.

  8. Ken says:

    @Agent T: no, that's not what the court said at all. Read one of Gideon's posts.

    @James: it applies because then you've been twice put in jeopardy for the same crime. The remedy you suggest is available before trial, not after.

  9. Grifter says:

    @Agent T:

    The blog post that Ken linked to explains it pretty well, I think (which is why he linked it):

    Quote of a quote in the post:
    "The Appellate Court claimed, in justifying its decision, that because the defendant could “communicate by gesturing and vocalizing … and that witnesses testified that she could indicate her displeasure by means of gestures, physical aggression — including biting, kicking and scratching — and by making screeching and groaning sounds,” then “no reasonable jury could have concluded that she was physically helpless at the time of the assault.”

    Regular quote from the post:
    "The argument, simply, once again, is that if she could have indicated her refusal physically, then she is not physically unable to indicate refusal. "

    It's sort of like if he had been convicted of rape under a subsection that required "tying a person's limbs to restrict movement with a rope or similar restrictive device", and the person was a quadraplegic whom he didn't tie up…yes, the person couldn't move, but they definitely weren't tied up.

    The courts didn't say he wasn't a rapist, just that he clearly didn't commit the very specific crime, with its very specific requirements, that he was charged with. Unfortunately, that means he can't be charged again for the same issue…which is why prosecutors should be careful when charging and prosecuting.

  10. Grifter says:


    Does the inherent hypocrisy of the use/users of the term "mansplaining" incense you as much as it does me?

  11. M. says:

    Maybe I'm way out of line here, but perhaps having so many subsections is a bad idea?

  12. ElSuerte says:

    How come the concept of a lesser included offense didn't come into play?

  13. Jay Z says:

    Can Fourtin be charged in civil court? Wouldn't that be an appropriate way to seek justice without having to deal with double jeopardy?

  14. TimG says:

    Xeni Jardin is, and always has been an idiot and I say that as someone who likes BoingBoing. While I'm not a lawyer, but I am a scientist. And I can honestly say she gets more things astoundingly, stupidly wrong when she writes about science than she ever gets right. I assume her writings on law are the same.

  15. StephenM3 says:

    Seems that the progressives, and everyone who would object to this outcome, shouldn't be angry at the court for applying the rules, but be very angry at the prosecutors for screwing this up so badly. From what you're saying, this seems to be simply a case of an incompetent prosecution, and that is where all the "blame" lies.

  16. Jake says:

    I really appreciated your political comparisons. It has been my opinion for years that the two primary political orientations are merely different expressions of a common human characteristic. When someone tells me I should hate the other side for all the (sometimes genuinely) terrible things they've said and done I cannot help but look at them and marvel that they cannot see these same things reflected in themselves (albeit in slightly different form). Therefore I have difficulty believing that I should despise someone for what amounts to being human.

    It's frankly just not as simple as we make it out to be. Ever. There are always reasons (good and bad), justifications (valid and invalid), and motivations (pure and sinister) behind all the controversial issues that raise so much ire – but when looked at with as little bias as any human is capable of almost everything comes out fairly neutral, or at least well intentioned if a little stupid/shortsighted.

    There is a mindlessness involved in each of your examples – a sort of tunnel vision or short-circuiting of reason – that is both frightening and frighteningly common. It's personal bias unchecked by rational, logical consideration. On one hand I sit here wondering how people can stand to live like that, and on the other I have to acknowledge I probably do it myself in some other way that I'm not even consciously aware of. This thought more than any concern about individual laws and injustices keeps me up at night, as it is symptomatic of our entire species and inherent in so many of our "smaller" problems (bigotry, terrorism, etc). Politics and law are one of the easiest facets to live with, but I'm glad there are people like you to point it out when it shows up.

    Side note: I'm not advocating a third/fourth/whatever party or alternative political theory – picking an unpopular/unusual path doesn't spare you from bias, it only changes where and how it applies. I think the only real safeguard against it is awareness of what your own biases are, so that you can actively keep them in check – but at the same time I'm not convinced it is possible to know yourself well enough to make much of a difference.

  17. @ElSuerte To preface, I'm not a lawyer, but if I read the post right there aren't any lesser included offenses because rather than charging the man with rape (general, top of the pyramid) they charged him with very specific kind of rape (bottom of the pyramid). Looks like the prosecution team should be updating their résumés to me.

  18. Another Woman says:

    Ever since I was on a jury which acquitted a man who we were certain HAD committed a crime against another man, just not the one they charged him with, I have had a much clearer understanding of how this sort of stupid stuff happens.
    What I don't understand, similar to Raving Rambler, is WHY all these little sub-sections must be used as *separate* crimes. Why is a law covering rape not written to say that rape is rape and that CAN include these following situations – and then demonstrate that at least one or more of those situations apply, instead of Pick One and Prove THAT One Only?

  19. Doctorow really needs to get away from that site and the other people that run it. I like his work, both fiction and non. But then he associates his web presence with those clowns…

  20. Brid F says:

    What was the correct charge?

    Is double jeopardy applied to the crime or the specific law? If there are different laws for the same crime should double jeopardy be relevant to the crime or the specific law?

  21. Damon says:

    And people wonder why I shake my head ruefully at humanity. I've nothing but utter contempt for this type of behavior. "feeling" > thinking. Pff. I blame in large part, the crappy public schools for our society's lack of critical thinking skills. And you're right Ken, it's found on both "sides" of the alledged political spectrum. This kind of douchebag behavior reminded me of the whole Lacross Rape fiasco. Facts get in the way of a good outrage/wichhunt.

  22. TJIC says:

    > Over the course of an hour, I saw moderators delete comments pointing out that this frame was wrong.

    Boing Boing is left wing. Fine. I've got good aquaintances who are lefties.

    The problem I have with them is that they are censorious douche-nozzles who ROUTINELY put dissenting opinions down the memory hole.

    After I made a public comment once on my own time, in my own space, I even had one of the four owners of the site violate California civil law by punishing me (via cancelling a contract).

    Yes, they have the RIGHT to memory hole anyone who disagrees with their preferred worldview. But that does not change the fact that they use this power in a very evil, nasty, self-aggrandizing way.

    Scum-bags, all.

  23. Joe Pullen says:

    Recalling outrage and witch hunts, anyone remember the whole Trayvon / Zimmerman fiasco. The mob howling for Zimmerman's head even though they were not present during the incident they still "felt" they had all the facts and he was guilty, etc. etc. etc.

    Emotions be dangerous things when it comes to interpretation and application of the law.

  24. piperTom says:

    This is why I love Popehat — Ken cleared the fog on a topic badly botched in the news reporting. And, while I agree with Ken's points, I see value in James Pollock's point, too. The double jeopardy rule is needed to limit prosecutorial abuse. But if other — hopefully stronger — protections existed against over zealous prosecutors, then the double jeopardy rule would not be needed and some injustices avoided.

    But it ain't gonna happen. Since the double jeopardy rule is in the Constitution, it takes really heavy political support to change. Even to get my support, the "improved" protections would need very strong evidence of being better than the old.

  25. Joe Pullen says:

    Seems a large contingent of our friends across the pond want to let their "feelings" deteremine whether someone should go to jail. Most of the public comments on this article make me sick, I just hope that thought process doesn't spread over here – although I'm already seeing signs of an outbreak.

  26. Mercury says:


    Although in some cases how you *feel* is actually an integral part of the law itself. It is my understanding that in some states if you felt like you were about to be assaulted that is sufficient to result in the other party being charged with (physical) assault even if it is agreed that no actual contact between the two parties was made.

    Obviously if you wave a gun around (but don't actually fire it) for reasons that can't reasonably considered self-defense, that action should probably be legally punished but in cases of heated verbal arguments that don't actually come to blows, there is a lot of wiggle room, feelings-wise available to all involved in terms of deciding what crimes should be considered.

    And what are "hate" crimes but laws that punish feelings and thoughts? It's not like murder, whether arbitrary or instigated by love, hate or anything else isn't already illegal. But with the right feeling/thought evidence such an act can (now) be upgraded to a hate crime as well.

    BTW I've always thought that being tried for the same crime twice = double jeopardy plain and simple and the whole "yeah but the first time was in criminal court and the second time was in civil court" is pure BS but I guess only lawyers can see the true justice shining through something like that.

  27. TJIC says:

    Oh, also: Ken, you rock.

    This post is A++++.

    I sometimes take this sort of thing for granted here and don't comment on it, but every now and then I am reminded of how rare clear sane thinking is on the internet (or anywhere else).

    Keep up the good work.

  28. Ali says:

    I really enjoy being left-wing and reading Popehat, it's good to see when our own brands of fuzzy thinking and hot-button topics get in the way of clear, sane thinking.
    Thanks Ken!

  29. AF says:

    It is things like this that really made me have to stop reading boingboing. When its good, its good but almost everything they post is from somewhere else. And their truly original content isn't all that gripping in my opinion.

    Now, when they are bad, they are awful. The comment section is particularly bad. If they post on a few hot button topics there is a mob mentality goes wild even if the post is wrong or misleading.

    I think you hit the nail right on the head with this post.

  30. Gideon says:

    Thanks for posting this, Ken. Said it far better than I could.

    @ElSuerte: He was also charged with and convicted of a "lesser included offense" of sorts: Sexual Assault in the Fourth Degree. Unfortunately, that subsection also had the same "physical helplessness" requirement.

    There are no other LIOs for this particular allegation.

  31. CourtneyLee says:

    I'm so glad I read Popehat–my feelings (haha) about this case were pretty damn intense and I was pissed that he "got off on a technicality." But now that I know that none of the reports I read presented the legal details of the case, I can direct my anger where it belongs–on the people who report the news not to inform the public, but to increase web traffic/circulation/ratings. And on the prosecutors who botched the charge, the idiots.

    One of the great things about reading blogs that step back from political party hype and apply reason and logic consistently is that I am often confronted with how my own biases make no rational sense. I need that–everyone needs that. I feel like I can't rely on any news media anymore for actual logical analysis of issues. Thank goodness for the blogosphere.

  32. Dawnsblood says:

    Thanks for this Ken. This case is flying around the internet at the moment. If you are not a lawyer able to research it yourself, the Boinger's opinion is the version of fact the story is assigned. I'm glad I was able to read a more objective account of the case.

  33. ShelbyC says:

    The Hartford Courant repeated the error today here.

  34. Rich says:

    Thanks for an excellent post. I have not heard much about it yet, but from what was described, I don't see how the Ct. Supreme Court could not have ruled the way they did. This is sounds like prosecution malpractice.

  35. ShelbyC says:

    @Brid F "What was the correct charge?"

    I'm too lazy to look up the CT statutes, but they could have charged him with having sex with her without her consent (first degree sexual assault in CT I believe) and they could have charged him with having sex with someone who was mentally unable to consent, in addition to what they charged him with, but they didn't.

  36. TheOtherMatt says:

    I think it's time for a musical interlude
    Switchfoot — Selling the News (2011)[3:34]

    Sums up this whole discussion
    Side note Ken Thanks for narrating the screencap saved me five minutes of my life not having to go back and magnify it

  37. Ken says:

    Via Gideon, the statute:

    " (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person; or (2) such other person is mentally defective to the extent that such other person is unable to consent to such sexual intercourse; or (3) such other person is physically helpless; or . . . ."

    They went with (3) instead of (2).

    Or, for that matter, this section:

    " Sec. 53a-70. Sexual assault in the first degree: Class B or A felony. (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person, or (3) commits sexual assault in the second degree as provided in section 53a-71 and in the commission of such offense is aided by two or more other persons actually present, or (4) engages in sexual intercourse with another person and such other person is mentally incapacitated to the extent that such other person is unable to consent to such sexual intercourse.."

  38. Damian P. says:

    Sort of related: the legal aid clinic at Ontario's University of Windsor, a school that prides itself on facilitating "access to justice," will not represent people accused of domestic violence:

  39. JohnM says:

    Ken – I am also very interested in finding out what the answer to the question "Another Woman" posted (shown below). Any thoughts?

    What I don't understand, similar to Raving Rambler, is WHY all these little sub-sections must be used as *separate* crimes. Why is a law covering rape not written to say that rape is rape and that CAN include these following situations – and then demonstrate that at least one or more of those situations apply, instead of Pick One and Prove THAT One Only?

  40. Shane says:

    Ok … law newb here. Can't the prosecutor go back and charge under the correct subsection? I think (<– this is why I hire lawyers) that this is like someone breaks into a house and burglarizes the house kills owner and is caught. Prosecutor is idiot and only charges on murder. Can the prosecutor go back and charge for burglary if he didn't originally? Are these the same … if not what is difference. Am confused.

  41. l8gravely says:

    Thanks for this post Ken. I had read the previous one at Boingboing which is a fun site I like, but at times they don't go very deep and look at the facts. But usually they're good about publishing a retraction or correction. But hey, it's their site and they can do what they want. And I prefer the rule of law, rather than mob rule. So glad I found your site.

  42. C. S. P. Schofield says:

    Part of the problem is that of you dare bring up the Rule of Law, people think you are talking about Lawr 'n' Owda. Both sides have abandoned the notion that for the Law to be fair, it must be applied evenly. Both sides want to tilt the playing field in certain cases of their choosing. Both sides are blind to the fact that if the playing field can be tilted, it is as likely to be used against them as for them.

  43. TheOtherMatt says:

    INAL (yet) Your scenario would not happen in reality, because of the felony murder rule. Which states that if A commits a felony, and B dies in the course of the crime then A is guilty of murdering B. So no matter what he gets murder conviction. I'm still an undergrad, and I may never become a lawyer, so you'd have to be an extremely stupid prosecutor to miss that. But The answer to your question is Nope I think, and Ken please correct my prelaw newbieness.
    Because the two offenses are not separate meaning SA2 is SA2 no matter what subsection its under, and once you've been acquitted of SA2 you cannot be tried again for the same incident.

  44. plutosdad says:

    I got into a similar argument when a few kids killed an old man here. They were playing a "game" that involved knocking people down. So they pushed him down and stole his wallet (brainiacs recorded it on their phones) and the old man died a few hours later because he hit his head when he fell (you could hear it on the video he hit so hard).

    Anyway, to me that is pretty clear felony murder, but the prosecutor decided to charge the kids with 1st degree murder (also trying them as adults). Now you can tell me I'm wrong due to this and that reason and precedent. After all I could be wrong.

    But only one person did that, the rest all told me that I am soft on crime and a liberal. Apparently nowadays even thinking a teen should be charged with murder is still being soft on crime, it's 1st degree or nothing. And everyone needs to be charged as an adult not based on their age or ability to comprehend their actions, but on the heinousness of their crime

  45. Kinsey says:

    One of Glenn Reynolds' hobby horses is getting rid of qualified immunity. Cases like this make you think it's a good idea. I'm not sure if it would cause more problems than it solves, but incompetent prosecutors-like this guy- and stupid/corrupt/biased prosecutors-like Nifong in the Duke lacrosse case-would seem to be poster boys for the idea.

  46. Walter 59 says:

    so in the original proceeding the jury listened to the testimony and viewed the evidence and came to the conclusion that the woman could NOT communicate lack of consent, and thus was "physically helpless" under the statute.

    then along comes the CN Supreme Court which found that the evidence showed that the victim could communicate lack of consent, and thus wasn't "physically helpless" under the statute.

    so the technicality is that the CN Supreme Courts' conclusions differed from the conclusion reached by the jury….am I reading that right?

  47. James Pollock says:

    Actually, Kinsey, the poster boys for dispensing with qualified immunity for prosecutors would the ones who routinely and systematically violate the rules on pretrial disclosures. (I'm not naming names because I have no idea if they're still at it, but a Google search on "Brady violations" should give you an idea who I'm talking about.)

  48. ShelbyC says:

    @JohnM, @Another Woman: IANAL, but I don't think they had to pick just one. If they have evidence to show that he violated more than one section of the statue, as they did here, they can charge him with violating more than one section. Their failure to do so here seems inexcusable.

  49. ShelbyC says:

    This outrage seems to have been stired up by botched reporting from the CT Post, NBC, and the NY Daily news. As we should have learned from the health care decision fiasco, never ever rely on the MSM for information on court decisions, get it from the legal blogs.

    I wonder if there's a way to start a letter-writing campaign to get the major news outlets to just stop covering court decisions. There's plenty of accurate information about them to be had, and spreading inaccurate info doesn't help anybody.

  50. James Pollock says:

    Is the statute in question applicable to cases of rape where the rapist incapacitates the victim with drugs or alcohol, or is there a separate section of the code for that? Because if there isn't, I think the CT court has set a poor precedent. (Drug the victim into unconsciousness before you rape them and get charged, leave them mumbling and incoherent but able to move clumsily and the statute doesn't apply because they aren't totally and completely helpless, just practically so.)

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