Unofficial Reporting in the #MeToo Era

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The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts

Every year in this country, hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant’s death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change, yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course. This Article identifies a criminal justice crisis and begins a conversation about its proper resolution. The conceptual implications of the inquiry—for scientific engagement in law’s shadow, for future systemic reform, and for our understanding of innocence in a post-DNA world—should assist in the task of righting past wrongs and averting further injustice

Underenforcement as Unequal Protection

Rape law is largely underenforced. Yet criticism of policing practices has myopically focused on enforcement excesses, thus overlooking the problem of the state withholding protective resources. This neglect is particularly troubling where sexual violence is at issue. Empirical evidence demonstrates the operation of pervasive biases in police officers’ decisions not to pursue an investigation. Over time, law enforcement officers have discriminated against rape victims with immunity. Recently, however, this has changed. This Article is the first to describe a new effort by the United States Department of Justice to hold law enforcement officers accountable for failing to protect victims of sexual assault. In important respects, this turn is unprecedented. But insofar as the latest developments target violence without redress, the assertion of federal power in this domain possesses a venerable historical pedigree. When the Equal Protection Clause was conceived, the framers were chiefly concerned with the states’ failure to provide black citizens with protection from private violence. After passage of the Fourteenth Amendment, the “protection model” of equal protection, along with the federal power to enforce it, lay dormant. Recent events have revived this model and this power, allowing us to glimpse a modern version of what the 39th Congress intended. The Justice Department’s latest deployment of its “pattern or practice” enforcement authority may come as close as any intervention since Reconstruction to addressing the framers’ core concern with underenforcement. Notwithstanding the Supreme Court’s divergent jurisprudential framework, the original meaning of equal protection has begun to resurface

Confrontation and the Re-Privatization of Domestic Violence

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution of domestic violence predictably suffered as a result. But commentators at the time did not anticipate how the Court’s subsequent Confrontation Clause cases would utterly misconceive the nature of domestic violence, producing a flawed understanding of what constitutes a “testimonial” statement. Although the Court’s definition was especially problematic in the domestic violence context, its overly rigid approach finally became intolerable in Michigan v. Bryant, a 2011 case that did not involve domestic violence. In Bryant, the Court resurrected a public–private divide that relegated domestic violence to quasicriminal status, at best. By distinguishing between “domestic” and “nondomestic” disputes and minimizing the harms and dangers associated with the former, the Court revived long-standing hierarchies that were ostensibly repudiated decades ago. In assessing the significance of the Crawford revolution after ten years, I focus here on this largely unremarked jurisprudential move, which raises the distinct possibility that a privatized notion of domestic violence infected the Court’s reasoning even before Bryant