Monday, October 27, 2014

PA Supreme Court Justice Seamus MCcaffery to resign in scandal.

A Pennsylvania Supreme Court justice caught up in a government porn email scandal stepped down Monday after nearly eight years on the state’s highest court, and a judicial ethics board said it would drop its investigation of him as a result.
Justice Seamus McCaffery also agreed not to seek senior judge status or seek elective judicial office again, the Judicial Conduct Board said.
The panel said it would end its investigation of McCaffery on a number of matters because the most serious sanctions possible were his removal from office and a prohibition against him holding future judicial office.

I would suggest it is poetic justice, but that would be insensitive.

Tuesday, October 21, 2014

The poor science of Rape Trauma Syndrome

42 Pa.C.S.A. is a relatively new law which allows the Commonwealth to introduce expert testimony related to so called "victim response experts" to testify as to rape trauma syndrome and responses to sexual violence. The testimony is supposed to be general and not specific to the particular case (although it rarely is, more on that later). The law was intended as a way for the Commonwealth to "educate" regular citizens about how someone might respond to sexual violence.

The problem with this law is that the field of rape trauma syndrome (RTS) is junk science. It is qualitative, not quantitative, meaning that is does not rely on actual statistics or numbers. It is not useful as a prediction tool and cannot be used to determine the truth or falsity of an allegation of sexual violence.

An excellent recent article on this is Examining the Scientific Validity of Rape Trauma Syndrome, published this past July in Psychiatry, Psychology and Law. The authors there tear apart the studies used by the RTS field and show how unscientific the field really is.

An additional issue with the law is that it was passed by the Legislature to attempt to create a new rule of criminal procedure. The Pennsylvania Constitution's Separation of Powers doctrine forbids exactly that - the rules of procedure of the Courts are the Courts' exclusive domain. The law is therefore also unconstitutional in addition to being based on bad science.

A court out of Berks County recently held the law unconstitutional. That decision has been challenged and the matter is currently before the PA Supreme Court. I am hopeful that the law will be ruled unconstitutional and overridden. However, even if it is ruled unconstitutional that would not necessarily prevent the Court from promulgating such a rule on its own. The Court should review the scientific literature which holds rape trauma syndrome to be politically correct nonsense and disallow the use of such testimony.

In doing so the Court would be upholding decades of precedent which held exactly that and prohibited this kind of grandstanding and back door credibility boosting by the Commonwealth.

Tuesday, October 7, 2014

Exercise of religious freedom in prison - Holt v. Hobbs has an excellent rundown on the case of Holt v. Hobbs and how it impacts religious liberty in correctional facilities.
The U.S. Supreme Court will hear oral argument today in the case of Holt v. Hobbs. At issue is the Arkansas Department of Corrections' refusal to allow a Muslim inmate named Gregory Houston Holt (also known as Abdul Maalik Muhammed) to grow a one-half inch beard in accordance with his religious beliefs. According to state officials, the no-beard policy is essential to maintaining safety and security. It prevents inmates from hiding contraband on their persons, those officials claim, and also prevents inmates from changing their appearance by shaving.
But the mere assertion of such rationales is not sufficient by itself to justify this restriction. In order to pass muster, the prison's no-beard policy must satisfy the terms of a federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA), which holds: "No government shall impose a substantial burden on the religious exercise" of prisoners residing in institutions that receive federal funding, unless the government can demonstrate that the burden furthers "a compelling government interest" and "is the least restrictive means" of doing so. If that language sounds familiar, it's because the RLUIPA largely borrowed it from the Religious Freedom Restoration Act, the federal law recently invoked by the Supreme Court in the Obamacare case Burwell v. Hobby Lobby Stores Inc.

Full article at -

Certainly it is important to maintain security in correctional facilities, but even prisoners deserve basic religious freedoms. If that includes growing a beard, and it is a legitimate religious claim as appears in this case, then every effort to allow that freedom should be extended.

The probable apocryphal quote from Dostoevsky -

“You can judge a society by how well it treats its prisoners”

Monday, October 6, 2014

The Hunt for Eric Frein - week three

The Pennsylvania State Police's manhunt for accused shooter Eric Frein is in it's third week. Areas of northeastern Pennsylvania has been in perpetual lockdown since the shooting which took the life of one State Trooper and seriously injured another.

I do not choose to speculate on the motives of the accused, as some other legal bloggers have. I am sure that any details which the shooter used to justify his actions in his own mind will come out at trial.

The actions of the Police and other agencies in their search for Frein has been somewhat troubling, as they have set up unannounced checkpoints and begun house-to-house searches in their pursuit of the accused. The prevention of residents from returning to their homes in the search area is also troubling. As is the unilateral delay of hunting season and denial of entry to state parks and forests.

If you are stopped by the police in their search for Eric Frein you should be respectful, understanding that they are highly charged and motivated to find him, but do not allow them to violate your constitutional rights. You have the right to refuse a vehicle search. You have the right to remain silent. You do not have to make any statements to them if you do not wish to. Should the police knock on your door you have the right to refuse them entry.

Understand the police are very emotional right now about this shooting, so be respectful, but do not be afraid to employ your constitutional rights.

As an aside, I dealt with Trooper Dickson on numerous previous occasions when he worked out of the  Fern Ridge barracks. He was a professional and courteous police officer who lived up the standards of the best of the Pennsylvania State Troopers.