Short-Term Pain, Long-Term Wonder Foreclosure.com Scholarship Program Winning Essay 2017, (Grand Prize)


You know, I just read the following article, and see that the “Millennials” are being brain washed. Goldman Sachs said back around 2008 “Only the rich should own houses, everyone else should be renting”. Sorry, I am still looking for the article wherein I quoted from. I will find it, I used that in a brief.

I knew that meant trouble. Even with foreclosure hell in the middle of its heyday, it still meant something. Not long after that, people being foreclosed upon, began being offered the chance to rent the house that they just lost.

Now, these third party entities popped up almost over night, and instead of the properties at foreclosure, reverting back to the lenders, these third parties now purchase at foreclosure auctions. Then they offer to rent you your house, or take you to magistrate court and have your thrown out, instead of the banks having to do that.

Funny thing, if you research most of these third parties, back far enough, the banks own them too, so still the same thing, just different names. Nevertheless, I could not help but post the article. It is obvious that “they” want us all in little apartments in and around the cities, easier to control “us”. I just had not realized that they were in the progress of brain-washing the Millennials into not even wanting to own a house.

Read the article:

Short-Term Pain, Long-Term Wonder
Foreclosure.com Scholarship Program Winning Essay 2017, (Grand Prize)
https://article.foreclosure.com/short-term-pain-long-term-wonder-82f82b90ff52
Go to the profile of Foreclosure.com Staff
Foreclosure.com Staff
Feb 28, 2018
By Jack Duffley | University of Illinois At Urbana-Champaign

foreclosure-kid
(photo from https://article.foreclosure.com/short-term-pain-long-term-wonder-82f82b90ff52)

In the gleeful times of 2005, my parents decided, like so many others, that it was time to “upgrade.” They sold our smaller home on the other side of town, which had appreciated nicely, and bought a 3700 square foot behemoth in a town with already exorbitant property taxes. My younger brother and I were thrilled to finally have a basement, our own rooms, and even a concrete basketball court in our backyard! All eight-year-old me knew was that things were going to be a whole lot more comfortable from there, and my optimistic parents seemed to think the same.

Jack Duffley | University of Illinois At Urbana-Champaign
The year is 2017, and my parents have only just now reached the equity levels in the house that they started with over a decade ago, nearly one-hundred-fifty mortgage payments later. However, after being bombarded by extremely high taxes for that entire time, they are essentially underwater on the property, but see little choice but to hang on for dear life until equity recovers just a bit more before they abandon ship. A thin retirement plan, mostly resting on the house, has forced their hand.

My parents’ story is in no way unique; millions of Americans who purchased homes before the 2008 recession have faced similar dilemmas, often worse than theirs. Many had no choice but to foreclose during the worst of it. After all, the homeownership rate has declined almost 5 points nationwide since the recession.[1] If anything, they can be considered lucky, yet they are still stuck in the mud. Their children, on the other hand, are now at their own fork in the road: to be [a homeowner] or not to be.

And, all things considered, they are often choosing not to be. The census shows a stark dip in homeownership among those under the age of 35 of almost 10 percent, lowering significantly from its peak pre-recessionary levels of 43 percent to a dismal 34 percent. At the same time, rental vacancy rates nationwide fell from over 10 percent to less than 7 percent as more people turned to renting, millennials especially.[2] Why is this happening?

Aside from the obvious fear of the failure that their parents faced, millennials are renting more as they define their own unique lifestyle. Millennials, in ever increasing numbers, are focusing on “living now.” They are choosing to move into urban areas in particular. As a predominantly liberal group, and with large cities tending to lean left, this is partially due to political forces. The majority, however, is due to lifestyle conveniences that come with a city: multiple options for transportation and not needing to own a car, proximity to cultural events and nightlife, and, especially with the decline of the suburbs as retail simultaneously sinks, a more positive future economic outlook. They more readily take the loss in living space for these benefits than their previous generations did.

At the same time, a growing number of millennials are facing burdensome student loan debt. Rather than come out of college with pristine back-end ratios primed for a hefty mortgage, they are handcuffed by the debt that they have amassed in their early twenties. As the Pew Research Center has noted, 37 percent of people under the age of thirty have student loan debt. They contribute to the $1.3 trillion in student debt, leverage that could presumably be used for a mortgage or some other useful credit if it were not locked up already.[3] Millennials are trying to increase their earning power by going to school so that they have the opportunity to advance economically, but it is simultaneously holding many of them back via years of extra debt — debt that is notably not going to a physical asset.

What does this mean for real estate? For the single family home market, it spells disaster, at least in the short term. Grant Cardone, one of the premier real estate investors in the world, calls homeownership a “scam,” and emphasizes that renting over homeownership among young people is becoming more and more popular. He notes that there is a huge need for affordable rentals as millennials deviate away from single family homes. Cardone is always one to advocate renting as a more advantageous and flexible lifestyle choice, and, as it has been mentioned, millennials increasingly value the flexibility that comes with renting instead of buying a home. Many, like Cardone, now see homeownership as a solely negative ordeal.

While it may not be up to the level of a “scam,” there are significant drawbacks with owning a home. For one, it locks up a significant amount of capital, money that could be used for a number of different projects or investments. In sum, homeownership is very expensive, at least in the short term when people make their initial down payment and any potential renovations. This makes it very hard to own a home for people of all ages. Additionally, owning a home can financially lock someone to a particular location, one which they might not want to be in after a while. Finally, for those hoping for appreciation when they purchase their home, as with any investment, there is a chance that it does not pan out. A poorly timed crash can wipe out an owner’s equity in seconds just as it did to my parents and so many others.

While there are drawbacks, the Great Recession and its subsequent lifestyle shift suggest the lack of education about the benefits of owning real estate. Even my parents are constantly warning me of the dangers of homeownership; the shift is not totally driven by millennials themselves. They too are still shaken by their mistakes and the sledgehammer that was the crash. They ignore the value of building equity over the long term, the typical tax benefits that come with a primary residence, and the relative stability of the real estate market because they mistakenly overpaid for a house that, in hindsight, they cannot comfortably afford in a downturn. They just hope that I do not do the same, and rightfully so. However, what millennials should have learned from the recession is not that real estate is bad, but that they simply must be careful and reasonable with what they assume when purchasing it.
3310-Harrison-Rd-east-point
Unfortunately, the average consumer purchases on emotion. With the tremendous amounts of emotional trauma from the recession, millennials are increasingly refusing to buy a home as their parents might have desired at the same age. But what are they purchasing in its place? Many take on higher rents, consistent with the “living now” mentality. Many more use their money to buy a wealth of products online. Some are even speculating on cryptocurrency, something far more unknown than real estate, expecting to make a lot of money. Why do they do that? Because the average consumer purchases on emotion, not on something systematic. Real estate has already been proven to be a relatively safe and a potentially very powerful asset. Instead, the negatives have been, and continue to be, emphasized. This masks the positives of owning a home, or even a simple condo. Millennials in some cases are mistakenly ignoring all real estate and not just the kind of overleveraging or speculating that got their parents into trouble.

Does this spell the end to America? Will the country burst into flames as millennials move to urban areas? Of course not. It must be noted that the current trend does not own the future; millennials could very well begin to purchase homes in huge numbers, especially as prices drop over the next few years. While it is likely that this will not be the case, it is impossible for anyone but millennials themselves to determine that.

What is certain is that, in the short run, there will be pain. The single family housing market is going to suffer as millennials make lifestyle choices contrary to their parents. The market will be oversupplied with single family homes. However, millennials will still need a place to live, just like anyone else. Their increasing demand for urban locations and conveniences will push rent up in cities, as it already has in places like San Francisco and Seattle. This will open a new, and huge, opportunity for real estate investors and developers alike to profit in the cities as millennials develop their own American Dream. After all, a dream is only what a person makes of it, not what someone else defines it as.

References:
[1] U.S. Census Bureau, Annual Homeownership Rates for the United States and Regions: 1968–2016, (accessed Dec 10, 2010), https://www.census.gov/housing/hvs/data/charts/fig05.pdf

[2] U.S. Census Bureau, Annual Rental Vacancy Rates for the United States and Regions: 1968–2016, (accessed Dec 10, 2010), https://www.census.gov/housing/hvs/data/charts/fig03.pdf

[3] Anthony Cilluffo, “5 facts about U.S. student loans,” Pew Research Center, last modified August 24, 2017. http://www.pewresearch.org/fact-tank/2017/08/24/5-facts-about-student-loans/

The winning essay above was submitted to Foreclosure.com’s scholarship program.

The 2017 essay topic:
IS THE “AMERICAN DREAM” OF ONE DAY OWNING A HOME ALIVE AND WELL AMONG MILLENNIALS?
Millennials having experienced the “Great Recession,” which was the traumatic housing crisis that triggered the financial crisis a decade ago. As a result, data suggests that Millennials (those born between 1981 to 1997) have been slow to adopt homeownership. Discuss the pros and cons of homeownership for Millennials, as well as which factors could increase or decrease homeownership among the generation. Will their collective hesitation and apprehension hurt them in the long run or are Millennials simply in the process of re-defining the “American Dream?”

2nd Circuit Upholds Insider Trading Conviction of Ex-Goldman Sachs Director The panel’s decision represented the latest retreat from the appellate court’s holding in 2014’s “U.S. v. Newman,” which narrowed prosecutors’ ability to prove insider trading.


Gupta-m1114755-web2
Rajat Gupta, right, with his attorney Gary Naftalis, following his sentencing in 2012. Photo: Louis Lanzano/ Bloomberg
https://www.law.com/newyorklawjournal/2019/01/07/2nd-circuit-upholds-insider-trading-conviction-of-ex-goldman-sachs-director/
By Colby Hamilton | January 07, 2019 at 04:12 PM

For the second time in as many months the U.S. Court of Appeals for the Second Circuit has declined to reverse an insider trading secured by federal prosecutors before the circuit court’s ruling in United States v. Newman and the sequence of decisions it spawned.

On Monday, the panel, composed of Circuit Judges Amalya Kearse, Richard Wesley and Christopher Droney, denied former Goldman Sachs director Rajat Gupta’s second attempt to have his insider trading conviction overturned. The Second Circuit had previously in 2014 denied Gupta’s argument that the trial court erred in admitting some evidence, while excluding other evidence offered by the defense ahead of his 2012 conviction. He ultimately served 19 months in prison, and was released in 2016.

The current appeal came after U.S. District Judge Jed Rakoff of the Southern District of New York denied Gupta’s motion to vacate his conviction in the wake of the Second Circuit’s 2014 decision in Newman, which substantially narrowed the “personal benefit” requirements of an insider trading relationship. Gupta argued before Rakoff that the jury instructions in his case were legally invalid under Newman.

On appeal, the panel reviewed Gupta’s challenge based on a cause-and-prejudice standard. It agreed with Rakoff’s argument that nothing stopped Gupta from arguing that the jury instructions were faulty on direct appeal from his conviction, since they were made during trial.

The panel observed that its November 2018 decision in Whitman v. United States tracks closely with the dynamics of Gupta’s case, as jury instructions were objected to at trial but weren’t pursued on appeal. Other insider trading cases pursued the line on appeal before Newman, the panel noted, making the claims in Whitman—and therefore Gupta’s case—insufficient to show cause.

Defendants in other insider trading prosecutions were contending that juries should be given narrower definitions of the personal benefit needed to find culpable insider trading,” the panel wrote. “We conclude that [Gupta] presents no viable claim that the personal benefit challenge was unavailable to his counsel on appeal.”

While the panel, having found Gupta failing the cause standard, could arguably have ended its findings there, it proceeded to address the issue of prejudice, and, in doing so, waded directly back in to the circuit’s muddied law on insider trading.

The panel first found that Gupta failed to show the personal benefit instructions were so flawed as to deny him due process, noting that the actual language provided to the jury in question spoke of “maintaining a good relationship with a frequent business partner.”

That last clause proved critical for the panel, who argued it squared with requirements under precedent, but not the Second Circuit’s most recent double take in United States v. Martoma, which is mentioned briefly later. Instead, the panel opted to return to the insider trading Ur-precedent from the Supreme Court’s 1983 decision in Dirks v. SEC.

The Dirks court set out a “varying sets of circumstances…which would warrant a finding of the tipper’s illegal purpose,” the panel noted. Despite the fact the specific language required by Newman for a tangible or pecuniary benefit was not present in Gupta’s jury instructions, the language was satisfactory under Dirks’ seemingly broader “circumstances.”

In fact, the panel’s acknowledgment that Dirks highlighting the ability for a quid pro quo relationship despite “the lack of need for proof of the tipper’s financial or tangible gain” appeared to potentially undercut a portion of the court’s holding in Newman, continuing the erosion that began with the Supreme Court’s findings in Salman v. United States and continued through the two versions of the Second Circuit’s Martoma decision.

The fact that Newman‘s requirement for proof of a tipper’s pecuniary or other tangible gain has been rejected by the Supreme Court disposes of Gupta’s contention that Newman meant the trial court’s instruction that proof of pecuniary or tangible benefit was not necessary caused him to be convicted of a crime for ‘conduct that is not criminal,’” the panel said, quoting from Gupta’s brief on appeal.

A spokesman for the U.S. Attorney’s Office for the Southern District of New York, which secured Gupta’s original conviction and handled the appeal, declined to comment.

Kramer Levin Naftalis & Frankel name attorney Gary Naftalis handled Gupta’s appeal. He did not respond to a request for comment.

Related:

The Whole Country is Running Amok!



You know that just thinking bad things about Obama landed people in jail, and I don’t know anyone who liked or voted for him. In fact, he should be in jail for numerous items he did.


Trump on the other hand I voted for and like, and know many, that if they did not like him in the beginning, saw he was not full of shit, and came his way.

Yet, people are always threatening, and in fact, trying to kill Trump, and even saying it publicly does not cause them to land in jail.

Personally, the likes of Madonna saying that she had been thinking “a lot lately about blowing up the white house”, the bitch should have been locked up.

Maxine Waters and Nancy Pelosi should be there with the bitch, and Clinton should have been there back before the elections.

Since when, do people trying to get people to murder anyone not go to jail?  Dumb question, how many are on the Clinton’s list of dead bodies?


Especially when it is the US President they are trying to get murdered?

Same thing with riots? 

Since when does attempting to incite riots not an arrest-able offense?

The whole country is running amok with would be communists, at one time people like that were taken care of one way or another.

Yet, today, we have fewer rights than we have ever had.

We have a news media that all of them should be fired and put on public display handcuffed and shackled. Can’t believe a word out of their mouths.

We have alternative news sites being yanked off the internet, and social media idiots going from one side to other, scared they are going to lose their riches.

Then there are these ANTIFA screwballs.

They hide who they are, go out and commit crimes, and the cops stand there with their sticks in their hands jerking off.

Hell, I remember the riots of the 60s when the cops came, they told you to leave.

If the kids did not leave they would go to clubbing the whole lot of them.
Sometimes, they were shot at. They did not care race or gender, they would bat you down.

Then there are these idiots that are trying to tell kids that there are many different genders, and if they want to be a different sex, that is ok.

If they want to be an animal that’s ok too. They are teaching kids about sex in school, and that transgender men can go to the same bathroom as our little girls.

WTF is wrong with this picture?

And since when do our kids not belong to us, and they do belong to the whole community? I guess that was about the same time, that the vaccines started giving the kids autism.

Is the whole community stepping in to help pay for these kids riddled with autism? Hell no.


The courts will rule against all known law, and in fact make up some laws as they go along.

Foreclosure hell awakened judges making laws. Seen it in a bunch of different states.

And just try going into the court as pro se. What a fucking joke.

No matter how well versed a person is in the law. No matter how well a person follows the rules to a “t”, no matter if the persona has a cut and dry case in their favor, if they don’t have an attorney, they might as well go jerk off in the bushes, because that is about how much it is going to matter.


And that’s not even mentioning the child sex rings stealing, selling, and killing children in this country.

I am so sick of the shit that I could go on, and on, and on…

I guess all I can say is damn, the whole country is running amok.

When I read this article, I kept hearing that song “Take It To The Limit One More Time”! They’ve changed the words “Sub-Prime” to “Non-Prime” and we re going to take it to the limit one more time…


Subprime mortgages make a comeback—with a new name and soaring demand
The subprime mortgage industry vanished after the Great Recession but is now being reinvented as the nonprime market.
Carrington Mortgage is now offering mortgages to borrowers with “less-than-perfect credit.”
Demand from both borrowers and investors is exceeding expectations.
Diana Olick | @DianaOlick
Published 10:45 AM ET Thu, 12 April 2018 Updated 1:54 PM ET Thu, 12 April 2018
CNBC.com
https://www.cnbc.com/2018/04/12/sub-prime-mortgages-morph-into-non-prime-loans-and-demand-soars.html
Subprime stages comeback as ‘non-prime’ loans Subprime stages comeback as ‘non-prime’ loans
1:41 PM ET Thu, 12 April 2018 | 01:28

They were blamed for the biggest financial disaster in a century. Subprime mortgages – home loans to borrowers with sketchy credit who put little to no skin in the game. Following the epic housing crash, they disappeared, due to strong, new regulation, and zero demand from investors who were badly burned. Barely a decade later, they’re coming back with a new name — nonprime — and, so far, some new standards.

California-based Carrington Mortgage Services, a midsized lender, just announced an expansion into the space, offering loans to borrowers, “with less-than-perfect credit.” Carrington will originate and service the loans, but it will also securitize them for sale to investors.

“We believe there is actually a market today in the secondary market for people who want to buy nonprime loans that have been properly underwritten,” said Rick Sharga, executive vice president of Carrington Mortgage Holdings. “We’re not going back to the bad old days of ninja lending, when people with no jobs, no income, and no assets were getting loans.”

A home improvement contractor works on a house in Cambridge, Massachusetts. Here’s how much homeowners could cash out in home equity
2:32 PM ET Mon, 2 April 2018 | 01:14
All loans will not be the same


Sharga said Carrington will manually underwrite each loan, assessing the individual risks. But it will allow its borrowers to have FICO credit scores as low as 500. The current average for agency-backed mortgages is in the mid-700s. Borrowers can take out loans of up to $1.5 million on single-family homes, townhomes and condominiums. They can also do cash-out refinances, where borrowers tap extra equity in their homes, up to $500,000. Recent credit events, like a foreclosure, bankruptcy or a history of late payments are acceptable.

All loans, however, will not be the same for all borrowers. If a borrower is higher risk, a higher down payment will be required, and the interest rate will likely be higher.

“What we’re talking about is underwriting that goes back to common sense sort of practices. If you have risk, you offset risk somewhere else,” added Sharga, while touting, “We probably are going to have the widest range of products for people with challenging credit in the marketplace.”

Carrington is not alone in the space. Angel Oak began offering and securitizing nonprime mortgages two years ago and has done six nonprime securitizations so far. It recently finalized its biggest securitization yet — $329 million, comprising 905 mortgages with an average amount of about $363,000. Just more than 80 percent of the loans are nonprime.

A ‘who’s who of Wall Street’
Investors in Angel Oak’s nonprime securitizations are, “a who’s who of Wall Street,” according to company representatives, citing hedge funds and insurance companies. Angel Oak’s securitizations now total $1.3 billion in mortgage debt.

Angel Oak, along with Caliber Home Loans, have been the main players in the space, securitizing relatively few loans. That is clearly about to change in a big way, as demand is rising.

“We believe that more competition is positive for the marketplace because there is strong enough demand for the product to support multiple originators,” said Lauren Hedvat, managing director, capital markets at Angel Oak. “Additionally, the more competitors there are, the wider the footprint becomes, which should open the door for more potential borrowers.”

Big banks are also getting in the game, both investing in the securities and funding the lenders, according to Sharga.

“It’s large financial institutions. A lot of people with private capital sitting on the sidelines, who are very interested in this market and believe that as long as the risks are managed well, and companies like ours are particularly good at managing credit risk, that it’s a good investment opportunity,” he said.

As the economy improves, and rents continue to rise, more Americans are trying to become homeowners, but the scars of the Great Recession still stand in the way. One-fifth of consumers today still have very low credit scores, often disqualifying them from obtaining a mortgage in today’s tight lending market.

Relaxed lending standards
Last summer, Fannie Mae announced it would relax its lending standards for prime loans, allowing borrowers with higher debt and lower credit scores to obtain loans without additional risk overlays, such as large down payments and a year’s worth of cash reserves.

Fannie Mae raised its debt-to-income (DTI) limit from 45 percent to 50 percent. DTI is the amount of total debt a borrower can have compared to his or her income. As a result, demand from buyers with higher debt exceeded all expectations. The share of high DTI loans jumped from 6 percent in January 2017 to nearly 20 percent by the end of February 2018, according to a study by the Urban Institute.

“From January to July 2017, Fannie purchased 80,467 loans with DTI ratios between 45 and 50 percent. But from August 2017 to February 2018, Fannie purchased 181,911 loans in the same DTI bucket. This increase of more than 100,000 loans in just seven months exceeded our estimate (85,000 additional Fannie loans annually) and Fannie’s expectations.” – Urban Institute

The mortgage industry expectation was that Fannie Mae would mitigate the additional risk with other factors, like a higher necessary credit score, but that was not added. The mortgage insurers balked, since they would be on the hook for the risk, so last month Fannie Mae “recalibrated” its risk assessment criteria again.

“We got a bigger response than we thought we were going to, so we dialed back to make sure we were in the right spot where our governance kicks in to make sure we’re not taking excessive risk,” said Doug Duncan, Fannie Mae’s chief economist.

Millennials carry more debt
The outsized demand from borrowers with more debt as well as demand for nonprime mortgages in the private sector show just how many borrowers today would like to become homeowners but are frozen out of the mortgage market.

Millennials, the largest homebuying cohort today, have much higher levels of student debt than previous generations. Members of older generations who went through foreclosures during the housing crisis or other hits to their credit are still struggling with lower FICO scores.

In addition, credit tightened up dramatically. In fact, between 2009 and 2015, tighter credit accounted for just more than 6 million “missing” loans, according to research by Laurie Goodman at the Urban Institute. These are mortgages that would have been granted under more normal historical underwriting standards.

The rebirth of the nonprime market is focused on these missing mortgages. The hope is that the industry will also focus on better standards of underwriting and not take risk to the levels it once did, levels that resulted in disaster.

In first, U.S. judge throws out cell phone ‘stingray’ evidence


7/13/16 REUTERS 12:19:26

July 13, 2016
In first, U.S. judge throws out cell phone ‘stingray’ evidence
Nate Raymond
https://1.next.westlaw.com/Document/I14f31320488a11e6a72ad77936ae8042/View/FullText.html?transitionType=CategoryPageItem&contextData=(sc.Default)
NEW YORK (Reuters) – For the first time, a federal judge has suppressed evidence obtained without a warrant by U.S. law enforcement using a stingray, a surveillance device that can trick suspects’ cell phones into revealing their locations.U.S. District Judge William Pauley in Manhattan on Tuesday ruled that defendant Raymond Lambis’ rights were violated when the U.S. Drug Enforcement Administration used such a device without a warrant to find his Washington Heights apartment.The DEA had used a stingray to identify Lambis’ apartment as the most likely location of a cell phone identified during a drug-trafficking probe. Pauley said doing so constituted an unreasonable search.”Absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device,” Pauley wrote.The ruling marked the first time a federal judge had suppressed evidence obtained using a stingray, according to the American Civil Liberties Union, which like other privacy advocacy groups has criticized law enforcement’s use of such devices.”This opinion strongly reinforces the strength of our constitutional privacy rights in the digital age,” ACLU attorney Nathan Freed Wessler said in a statement.It was unclear whether prosecutors would seek to appeal. A spokeswoman for Manhattan U.S. Attorney Preet Bharara, whose office was prosecuting the case, declined to comment.Stingrays, also known as “cell site simulators,” mimic cell phone towers in order to force cell phones in the area to transmit “pings” back to the devices, enabling law enforcement to track a suspect’s phone and pinpoint its location.Critics of the technology call it invasive and say it has been regularly used in secret to catch suspect in violation of their rights under the U.S. Constitution.The ACLU has counted 66 agencies in 24 states and the District of Columbia that own stingrays but said that figure underrepresents the actual number of devices in use given what it called secrecy surrounding their purchases.A Maryland appeals court in March became what the ACLU said was the first state appellate court to order evidence obtained using a stingray suppressed. Pauley’s decision was the first at the federal level.The U.S. Justice Department in September changed its internal policies and required government agents to obtain a warrant before using a cell site simulator.Bernard Seidler, Lambis’ lawyer, noted that occurred a week after his client was charged. He said it was unclear if the drug case against Lambis would now be dismissed.Note: Corrects location of apartment in second paragraph to Washington Heights from the Bronx, rephrases paragraph 10 to make clear ACLU said its figure underrepresents number of devices—- Index References —-News Subject: (Civil Rights Law (1CI34); Intellectual Freedoms & Civil Liberties (1IN08); Judicial Cases & Rulings (1JU36); Legal (1LE33))Industry: (Consumer Electronics (1CO61); Consumer Products & Services (1CO62); Electronics (1EL16); Global Positioning Systems (1GL40); Mobile Phones & Pagers (1WI07); Telecom Consumer Equipment (1TE03))Region: (Americas (1AM92); Maryland (1MA47); New York (1NE72); North America (1NO39); U.S. Mid-Atlantic Region (1MI18); USA (1US73))Language: ENOther Indexing: (Bernard Seidler; Raymond Lambis; William Pauley; Mark Blinch; Nathan Freed Wessler; Mark BlinchCell)Keywords: dataprivacy (MCC:f); (N2:US); (N2:USANY); (N2:AMERS); (N2:NAMER); (N2:USA); (MCCL:OVR)Word Count: 487

In first, U.S. judge throws out cell phone ‘stingray’ evidence

Antonin Scalia’s Rightful Revolution by Stephen L. Carter



Law
Antonin Scalia’s Rightful Revolution
http://www.bloombergview.com/articles/2016-04-21/antonin-scalia-s-rightful-revolution
April 21, 2016 2:11 PM EST
By
Stephen L. Carter
Annie Dookhan’s recent release from a Massachusetts prison has been an occasion for considerable comment, but little has been focused on how her case suggests why liberals might come to miss Justice Antonin Scalia. Not because Dookhan was innocent — she wasn’t — but because she was guilty.
Let me explain.
Dookhan, a former lab technician for the Massachusetts Department of Public Health, pleaded guilty in 2013 to charges stemming from an investigation that found she had tampered with crime-scene evidence. She confessed to, among other things, adding cocaine to samples so that they would test positive and forging reports to make it seem that she had performed tests that she had not. Estimates of the number of cases that might be affected run as high as 40,000. (More accurate numbers should be available next month.) Struggling to clean up the mess caused by what it called Dookhan’s “egregious misconduct,” the Massachusetts Supreme Judicial Court ruled last year that if defendants who have pleaded guilty seek to reopen their cases because of her actions, prosecutors cannot try them on more serious charges or, if a second conviction results, ask for stiffer sentences.
Okay, so Dookhan did a terrible thing, and because of it, a lot of people probably went to prison who shouldn’t have. What does any of this have to do with Justice Scalia?
As it turns out, a great deal. Over his final decade on the U.S. Supreme Court, Scalia led a movement to restore significance and force to the Confrontation Clause of the Sixth Amendment. The revolution began in 2004 with Crawford v. Washington, and the battle is raging still. And for those who buy into the neat media image in which the justices vote in unshakable left-right blocs, it’s worth noting that Scalia’s chief ally in the fight has been Ruth Bader Ginsburg, and his principal antagonists have lately been Samuel Alito and Sonia Sotomayor.
What’s the fight about? The Confrontation Clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” If you’re charged with robbing a bank, the clause is the reason that you have the opportunity to cross-examine whoever is testifying against you. You have the chance to show the jury that the witness who claims to have seen you holding the gun was mistaken, or remembering wrong.
Much of the recent controversy over the Confrontation Clause is rather technical, but the dispute has largely involved the question of who counts as a witness. Everybody had always understood that the woman who swears you drove the getaway car has to tell her story in open court. So does the man who claims he sold you the gun. The prosecutor can’t simply put the lead detective on the stand and let him tell the jury what other people said you did.
But what about a laboratory technician who determined that the substance found in your trunk was cocaine? For a long time, it was generally assumed that a forensic chemist’s performance of a routine test did not implicate the Sixth Amendment. In 2008, the Scalia-Ginsburg faction astonished pretty much everybody by cobbling together a majority of the court for the proposition that, yes, the technician who did the test and signed the report has to show up and testify. Another analyst from the same laboratory who can explain how the test works isn’t good enough. In other words, there is no “forensic evidence” exception to the rule. Chemists are treated just like every other witness.
Prosecutors were aghast. Defense attorneys were elated.
Imagine: Every time a crime lab does a test and a technician certifies the result, the technician has to appear in court if the defendant so demands. Dissenters warned that chaos would result. To have the technicians sitting around for half a day waiting to testify would involve undue expense. Scalia replied that the assumptions underlying that worry are “wildly unrealistic.” Only rarely would defense lawyers actually call the forensic technicians to testify. But on those rare occasions, the technicians are no different from any other witness.
Why does this matter? Let’s get back to Dookhan. She began work some years before the Supreme Court decided that lab technicians who perform forensic tests must testify if called, but her arrest and conviction help show why the Scalia faction is right.
Had Dookhan been required to take the stand, defense attorneys might have asked how she was able to clear 500 samples a month when the average chemist analyzes between 50 and 150. They might have asked about discrepancies in her log book that would likely only have come to light had she been a witness.
The knowledge that one will have to testify about one’s actions creates a certain discipline. Either the problems in her work would have come to light much sooner, or, knowing that she would face possible cross-examination about every test she performed, Dookhan would have cleaned up her act. Either way, a lot fewer results would have been falsified.
The great majority of forensic chemists, like the great majority of people in every line of work, do their jobs with professionalism and integrity. Unfortunately, Dookhan is far from the only bad apple. And when technicians fudge their results, people can lose their liberty.
Most court-watchers, whether they admired Scalia or despised him, will remember his positions on same-sex marriage or abortion or some other hotly contested issue. But I will remember him best for the revolution he sparked in Sixth Amendment jurisprudence. I earnestly hope that it survives him.
I didn’t believe this when I began teaching the Crawford line of cases some years ago. But real-world events have changed my mind.
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Stephen L Carter at scarter01@bloomberg.net
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