Seeing Is Believing

Eyewitness testimony is unreliable and leads to wrongful convictions. Why has the judicial system not taken note?

(Flickr/Boston Bill)

On a Saturday night in July 1984, Jennifer Thompson, a 22-year-old, straight-A student at Elon College in Elon, North Carolina, returned to her apartment after attending a party. Thompson wasn’t feeling well and went to sleep. Her boyfriend left around 11 P.M. About four hours later, Thompson awoke with a man on top of her. He held a knife to her neck. He smelled of alcohol and cigarettes. Thompson screamed. “Shut up, or I’ll cut you,” the man threatened.

Before, during, and after the rape, Thompson willed herself to study his features so she could increase the odds of identifying him later. She made mental note of his close-cropped hair, his small almond-shaped eyes, his high, broad cheekbones, his wisp of a mustache.

Good News from the Supreme Court

A stop-and-frisk in New York, recorded by a bystander.

There are a lot of ways that police, prosecutors, and other government officials argue that they can check on you without rising to the level of a "search" that would require a warrant. In recent years, officials at various levels and in various places have held that they can attach a GPS to your car to track your movements, get your cell phone records, or aim a heat-sensing device at your house to see what's going on inside, all without getting a judge's permission. Yet when it comes to you recording them, they have a very different view. But in a rare bit of good news on criminal procedure, the Supreme Court has, by denying an appeal in a case from Illinois, effectively affirmed your right to record police officers in public:

Remember that Provisional Ballot Problem?

(Flickr/Joe Hall)

Ohio has finally begun to tally provisional ballots. This was supposed to be the moment we were all waiting for—back when the presidential election was going to be airtight and everyone was worried about elections administration in the ultimate battleground. Instead, the Obama campaign won a decisive victory, so few kept following the counting in Ohio. But even without an audience, the state's court battles continued well after Election Day. While the presidential race may not hang in the balance, the outcomes of two legislative races will determine a whether Republican lawmakers have a supermajority—which would allow them to easily pass a conservative agenda, including more attempts at voter suppression.

A Scandalous Lack of Privacy

A powerful man sleeping with a younger woman outside the bounds of matrimony may not be uncommon, but when revealed, it inevitably produces a scandal. In the case of the adultery revelations about former CIA Director David Petraeus, however, the banal, tawdry sex scandal is masking a much deeper one. A great deal of intimate personal information has been revealed to the public based on an FBI investigation, despite a rather notable lack of underlying activity that can plausibly be called criminal. There's no particular reason anybody but David Petraeus's wife should care about his sexual improprieties, but we should all care about how easy it is for government officials and employers to invade the privacy of online communications.

The Judicial Bush Doctrine

(AP Photo/J. Scott Applewhite)

President Obama needs to be more like George W. Bush.

Bush understood that a president’s longest-lasting legacy is often the judges who receive a lifetime appointment to the federal bench. He understood that another Republican will occupy the White House someday, and they will need a slate of potential nominees to the Supreme Court. And he understood that the judiciary can quietly implement an unpopular conservative agenda that would never survive contact with the elected branches of government.

Don't Fear the Backlash

(Flickr/David Schumaker)

Many observers have criticized the approach of using litigation to achieve social change ever since a Hawaii court ruled in 1993 that the denial of marriage benefits to same-sex couples was unconstitutional—criticism that only accelerated after Massachusetts's landmark Goodridge decision in 2003 ruling that bans on same-sex marriage are unconstitutional. Much of this criticism takes the form of what I call the "countermobilization myth"—that is, the idea that victories won through the courts produce unique amounts of political backlash that make them counterproductive. The remarkable wave of success for LBGT rights on Election Day, combined with a steady increase in support for same-sex marriage, makes the countermobilization myth even more untenable. Michael Klarman's invaluable new book, From the Closet to the Altar, remains somewhat ambivalent about the use of litigation to advance same-sex marriage. But ultimately, it provides a powerful case that in the right circumstances, litigation can be an effective tool for social reform.

Colorado Voters' Power of the Purse

Current and former lawmakers are taking the Taxpayer Bill of Rights to court for a second opinion.

(AP Photo/Charlie Neibergall)

Many states have provisions designed to limit the amount of taxes their legislatures can raise, but only Colorado has gone so far as to pass the Taxpayer Bill of Rights. Known as TABOR, Colorado’s unique constellation of confusing laws prevents the state legislature from raising taxes without public approval and caps the amount the government can spend in a way that’s designed to shrink it over time. All levels of government—city, county, and state—are limited in what they can spend by a complicated formula, which basically indexes revenue to inflation plus population growth. If the tax revenues the state and local governments collect in any given year are higher than the cap, which happens in good economic times or when there is an influx of new residents, states and cities are required by law to refund taxpayers. Over the years, more than 80 cities have passed local referendums to relieve their governments from some of the burdens of TABOR. Last week, Denver voters passed, by a margin of 74 percent to 26 percent, a referendum that allows the city to keep the surplus money it has already collected and spend it. The referendum they voted for is called “de-Brucing,” named after the law’s anti-tax activist Douglas Bruce. (On the state level, a de-Brucing referendum passed in 2005.) The city argued that without de-Brucing, it would no longer be able to provide basic city services; it hadn’t trained a new firefighter or police officer class in four years.

Who Counts in Arizona?

(AP Photo/Ross D. Franklin)

(AP Photo/Ross D. Franklin)

Arizona Democrats celebrate as President Barack Obama is declared the winner of the presidential race at Democratic Party gathering, Tuesday, November 6, 2012, in Tucson, Arizona. 

Law Enforcement and Decriminalized Marijuana

A happy Seattle police officer. (SPD)

On election day, Colorado and Washington passed initiatives legalizing the recreational use of marijuana. The future of both laws is uncertain, due to the fact that the drug is still illegal under federal law, which makes the creation of a legal market complex, to say the least. Nevertheless, within a few days, prosecutors in Washington dismissed hundreds of misdemeanor marijuana possession cases, even though the new law doesn't officially take effect until December 6. Which is an indication that in the short term, the laws may have a substantial impact on the work of law enforcement, and the relationship of citizens to the police, in those states.

We don't know that for sure, of course. But the Seattle Police Department is already showing how hip it can be. As we learn via Romanesko, the SPD has a blog run by a journalist, who wrote a piece called "Mariwhatnow? A Guide to Legal Marijuana Use in Seattle," that is, to say the least, not the kind of thing you usually expect from an employee of a police department. Here's an excerpt:

Southern States to the Supreme Court: We've Changed

Critics of the Voting Rights Act say its time has passed, but as the recent spate of voter-ID laws shows, that's hardly the case.

(U.S. National Archives)

On March 7, 1965, peaceful protesters advocating for the right to vote were brutally attacked by Alabama authorities. A little more than a week later, President Lyndon Johnson declared in a message to Congress that "experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books ... can ensure the right to vote when local officials are determined to deny it." LBJ subsequently introduced legislation that would provide an effective right to vote, the Voting Rights Act (VRA) of 1965. Less than 50 years later, the Supreme Court appears poised to cut out the heart of one of the greatest triumphs of the civil-rights movement.

The Battle for Voting Rights Isn't Over

(Flickr/Katri Niemi)

Sean Barry showed up at the same polling place in Mount Airy, Pennsylvania, where he cast his ballot for Barack Obama in 2008. But when he got there, the poll workers informed him that his name was nowhere to be found on the voter rolls. They also told him he wasn’t alone; other regular voters had arrived only to find their names missing. All of them had to submit provisional ballots. Allegations of an illegal voter purge were already swirling, and Barry felt uneasy. “I feel unsteady about my vote being counted,” he said. But in the end, with or without Barry’s vote, Obama won Pennsylvania easily.

Ohio Legal Showdown?


If you’re confused by the reports coming out of key battleground state Ohio about last-minute changes to voting rules there, you’re not alone. The state’s current voting regulations have more moving parts than a live Lady Gaga show. On Election Day, speculation abounds about legal battles that could lie ahead come Wednesday morning.

I called up Ned Foley, professor at The Ohio State University’s Moritz College of Law and director of Election Law @ Moritz, a bipartisan center on electoral procedure, to guide me through the wilderness.

Four Things to Look for at the Polls on Election Day


Earlier this year, the outlook for voting rights was downright terrifying. Across the country, Republican legislatures had passed strict voter-ID laws, which reports showed could disenfranchise millions of voters. The political motives were clear: The people most likely to be without ID are poor and of color—groups that tend to vote for Democrats. By the summer, there was another threat to voter participation: purges of voter rolls.

Just When You Started to Relax—More Ohio Voting Problems

(Flickr/kristin wolff)

It's no secret that the presidential race could come down to Ohio. The Buckeye State has loomed large for months, and word is, both Romney and Obama will be in Columbus on Election Night. According to Nate Silver, there’s a nearly 50-percent chance that the state will determine the election outcome. All eyes seem to be there—when WaPo’s The Fix shifted it from “leans Democratic” to “toss up” yesterday on the electoral map, half the internet seemed to respond with either cheers or jeers. 

A Privacy Catch-22

WikiMedia Commons

When the Bush administration decided to wiretap some suspects without a warrant, it was acting contrary to the procedures that had been established by Congress Foreign Intelligence Surveillance Act (FISA). Unfortunately, Congress reacted to this lawlessness by passing the Protect America Act, making warrantless wiretaps of communications involving at least one party not in the United States easier while providing immunity for past instances of illegal wiretapping. However, the new statute does not settle all of the legal questions.