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Articles by James Doyle
The IG’s broken report on a breaking criminal system
Last month, Massachusetts Inspector General Jeffrey Shapiro published his report on the Committee for Public Counsel Services, the agency responsible for providing defense counsel to indigent criminal defendants. In the IG’s telling, he had exposed a serious but essentially very simple problem: a slothful public defender workforce, abetted by furtive CPCS administrators, has slyly failed to execute the Legislature’s command and dispose of 20 percent of criminal cases.
Mind the Channel: The UK Finalises a Path Towards a Stand-Alone Basel 3.1 Regime | JD Supra
This article looks at some of the key responses and policy statements from the Prudential Regulatory Authority ("PRA") to the final part of the consultation process surrounding the restatement of the Capital Requirements Regulation ("CRR") as it relates to securitisation requirements into the PRA Rulebook.
Dear CFO: Liquid Assets? We would like to see receipts. Love, PRA. | JD Supra
The use of back leverage financing The use of leverage by protection sellers to finance participation in SRT tranches has become increasingly common. This approach is particularly attractive for specialist credit funds, which frequently seek financing solutions from investment banks. In such structures, the funded SRT position is often used as collateral for a repo transaction with the financing bank, enabling the investor to monetise the position while retaining economic exposure.
Following the Basel Brick road: Significant risk transfers in 2025 | JD Supra
The evolving landscape of the Basel III implementation and its associated regulatory frameworks in the UK and the EU continue to reshape the securitisation market and SRT markets, with significant implications not just for banks and insurers, but also non-prudentially regulated entities such as asset managers that participate in such structures.
Can We Bet on Trump Sticking Around for Prosecution?
Some things stand out in your memory. Working as a public defender requires a lot of sitting in courtrooms, waiting. The docket lists crawl along. The system does its best to dehumanize the defendants. You know a lot about your own client and his situation, but as you sit there, late on some Friday, everyone else tends to blur—to fade until they are reduced to a number on a list. The prosecutor drones on; the judge sighs and shuffles his papers; a court officer looks significantly at his watch.
Executing Richard Glossip Will Show a Brittle, Unsafe System
Do we want a safe criminal justice system? That question is so fundamental that even when—or maybe especially when—there is a life in the balance our courts try to duck it. Any system that cares about safety recognizes that error is part of the human condition. A safe system seeks resiliency: the ability to recover from the inevitable slips, violations, and surprises, and so to avoid catastrophe. A safe system is “poised to adapt” to anomalies.
Saul Kassin Probes Dangerous Practices in ‘Duped: Why Innocent People Confess—and Why We Believe Their Confessions’ (Book Review) - The Crime Report
Do innocent people really confess to horrific crimes they did not commit? Yes, they do. A masterful recent book from John Jay College of Criminal Justice Professor Saul Kassin, “Duped: Why Innocent People Confess—and Why We Believe Their Confessions,” proves it beyond any doubt. And Dr. Kassin’s book goes further than that. It shows how mobilizing scientific research about interrogations can reduce errors.
Do Appellate Courts Learn from Wrongful Convictions?
Check the list of the ten men most recently exonerated in Massachusetts. All but one was wrongfully convicted in Suffolk County. (Boston and adjacent cities.) All but one is Black. All were sentenced to life in prison. Most were sentenced to life in prison without possibility of parole. Succinct accounts of each of their cases are available through links maintained by the National Registry of Exonerations. You can look them up.
In Thomas Dybdahl’s 'When Innocence Is Not Enough,' A System Hiding Evidence from Itself
Here’s a thought. When prosecutors find evidence that might prove the innocence of the accused or reduce his punishment, they should turn that evidence over to the defense. Maybe this seems obvious—a trite statement of what most Americans would see as elementary fair play. Not so fast.
Even ‘reasonable’ police shootings are not inevitable
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In Shielded, Joanna Schwartz Dissects Policing’s Legal Environment
Did you know that 99.98 percent of the money awarded to victims in police civil rights violation cases is indemnified—paid from the public’s funds, not from those of any cop? Well, now you do know it, and you know it thanks to UCLA law professor Joanna Schwartz, who for over a decade has produced innovative, meticulous scholarship that harvests, then dissects, the details of policing’s legal landscape.
Our focus on prosecutors’ impunity blinds us
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At The Criminal Justice Safety Office
Governments pay compensation to victims of crime from taxpayer funds with broad public support. But we seem to assume that the public abhors any compensation that aids the incidental victims of crime fighting. Why would that be true? After all, each of us is subject to some risk of harm, however marginal, when the state’s monopoly on coercion and violence is exercised through an imperfect criminal justice system.
Continuing or cured? The suspension of swap payments following an event of default may not be unlimited | JD Supra
Background The High Court decision (The joint administrators of Lehman Brothers International (Europe) v FR Acquisitions Corporation (Europe) Ltd and JFB Firth Rixson Inc [2022] EWHC 2532 (Ch)) arose in the context of a dispute between the joint administrators of Lehman Brothers International Europe (LBIE) and swap counterparties FR Acquisitions Corporation (Europe) Ltd and JFB Firth Rixson Inc. (together, Firth Rixson) in relation to certain interest rate swaps.
Don’t Look Back: Why the Innocent Sometimes Stay in Prison
Twenty-five years ago, psychologist James Reason proposed that the image of slices of Swiss cheese in a line could serve as a good way to visualize system failures such as reactor explosions, plane crashes and ship collisions. According to Reason’s metaphor, hazards are prevented from causing losses in any complex system by a series of barriers. Each barrier has unintended weaknesses, or holes—there’s the similarity with Swiss cheese.
Why Homicide Counts Can Be Misleading
Most public combats between criminal justice reformers and law-and-order conservatives are as stylized as Kabuki theater. The champion of law-and-order enters, stage-right, and demands more aggressive enforcement, brandishing a hair-raising news story that stars the latest incarnation of Willie Horton. A reformer steps toward the footlights, deprecates “mere anecdotes,” and unleashes “data-driven” or “evidence-based” findings to argue for de-incarceration or eliminating money bail.
The Unique Challenge of Prosecuting Trump
In Mark Harris’ baseball novel Bang the Drum Slowly— there is an underrated film version starring Michael Moriarty and Robert DeNiro—the ballplayers relieve the tedium of life on the road with a mysterious card game of their own devising, called “TEGWAR.” Stationing themselves in their hotel’s lobby, the players produce a deck. One deals a hand. Before long, a star-struck fan will edge over to watch. Cards are slapped on the table.
Anatomy of a 'Split Second' Police Shooting
On July 14, 2018, a young, white Chicago police officer, Dillan Halley, shot and killed Harith Augustus, a 37-year-old Black barber, on 71st Street in Chicago’s South Shore neighborhood. Augustus was stopped by Chicago Police on suspicion that he was carrying a weapon. He was engaged in conversation by Quincy Jones, a Black veteran patrol officer with the Chicago Police Department (CPD).. Augustus was carrying a gun. He had a license to own it.
Defending The Donald
At some point, on most weekends, your local news carries a horrific crime story. Some creep murdered an elderly nun, or a busload of school children. The police announce that the killer has been arrested at the scene, but not before he strangled to death the beloved police K-9, Buster. (photo always shown.) His bloody clothes have been seized. His boastful confession has been recorded; the security cameras captured the crime in progress. You shudder and move on.
Why Putting Trump on Trial Redeems American Justice
No lawyer likes to lose a jury trial, but if you really don’t like losing jury trials, you can always become a career federal prosecutor. Do that, and you will be equipped with a lavish array of plea-bargaining carrots and sticks that can virtually guarantee that you are never threatened with a trial where the outcome is in doubt. Only about two percent of your cases will ever go before a jury. And even the two percent figure exaggerates your jeopardy.
Decolonizing the Justice System
One of the first jury cases I tried as a young defender, nearly 50 years ago, involved a grumpy middle-aged District of Columbia resident named Edward, who was charged by the United States Attorney’s office with the crime of Possession of Numbers Slips. Edward, who was Black, had been carrying in his pocket the daily “Elmo” page of the defunct Washington Star when he was rousted by the Metropolitan Police for the offense of Displaying A Bad Attitude.
Why We Need a National School Safety Board
Like a fatal airliner crash, a mass shooting of schoolchildren is an event that no one—no one—wants. When a plane crashes, the National Transportation Safety Board conducts a full investigation. Every time. When pilots or passengers witness a “near miss” event they can report it anonymously through a channel administered by NASA. A detailed analysis is triggered. These reviews aim for learning and prevention. Their success in promoting aviation safety has been startling.
The War On Innocence
At first glance, Justice Clarence Thomas’ opinion in Shinn v. Ramirez, issued last week, seems to constitute just another incremental step towards the right—one more incident in the modern Supreme Court’s campaign to dismantle the Warren Court’s protections for criminal defendants. The case has conservatives gloating and liberals complaining. Justice Sonia Sotomayor, in dissent, condemns the holding as “perverse” and “illogical.” It all sounds familiar.
Reporting White Innocence
Daily criminal justice news coverage presents a challenge for its practitioners. Even their best work can be muffled by its genre—by the traditions of the urban travel/adventure tale. That becomes a challenge for readers too. How can we avoid developing the tunnel vision that led European colonialists to hide from themselves the impact of their own decisions on the lives of people in the places they governed? That will be no easy task. The danger that threatens us isn’t presented one story at a time.
The Unfinished Business of Felony Murder
In 2017, the Massachusetts Supreme Judicial Court abolished key aspects of its “felony murder rule,” the common law doctrine that made everyone involved in a felony that resulted in death guilty of first-degree murder—guilty even if they personally inflicted no violence and never intended to hurt anyone. The penalty for first degree felony murder is life in prison, without possibility of parole.
Can the Justice System Stop Burying Its Mistakes?
My grandfather and his cousins were all physicians. They shared a mordant sense of humor—a useful coping mechanism in the pre-penicillin era. My father remembered their persistent teasing of the relative we all called Uncle George about the sheltered existence his specialty afforded him.
Judge Jackson Can ‘Reset’ the Nation’s Conversation About Justice
The Hon. Ketanji Brown Jackson. courtesy US District Court, Wash., DC For over 50 years, discussions of criminal justice in the United States have settled comfortably into the same groove. Sooner or later, every question is treated as a tug of war between the partisans for Herbert Packer’s Crime Control Model and the advocates for his Due Process Model. The Due Process advocates see the Crime Control Model as a conveyor belt:, an efficient machine for oppression.
Why the Bill for Miscarriages of Justice Should be Shared by All of Us
Taxpayers fund the criminal justice system, and when things go badly wrong—an innocent man is imprisoned, or the police recklessly shoot an unarmed mental patient—the taxpayers pay the bill for the errors too. As New York University Law Prof. Joanna Schwartz has shown, 99.98 percent of the money paid out for police misconduct in civil rights cases comes from public funds, not from the wallets of individual cops. This may be surprising, but it isn’t crazy.
The Simple Case for Prosecuting Donald Trump
On Jan. 6, 2021, Donald Trump sat in the White House watching a riot unfold at the Capitol. Throughout the preceding two months, Trump had been engaged in an obsessive campaign to marshal allies, legal theories, and media support behind a false narrative of a stolen election. Earlier on the afternoon of Jan. 6, Trump had urged the rioters to go to the Capitol. “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” he said.
Why are Courts Blind to Systemic Racism?
Denying the influence of racism in deciding a “stop and frisk” case is like denying the existence of “wetness” in a lake because you don’t see “wetness” in any individual molecule of H2O. Last month, the Massachusetts Supreme Judicial Court did just that. Zahkuan Sweeting-Bailey was a passenger in the back seat of a car when it was stopped by the police in New Bedford, MA for an improper lane change.
Make Prosecutors 'Earn' Immunity
When a witness embroiled in a criminal investigation is given a grant of immunity, it always comes with strings attached. The witness gets immunity, but society gets the witness’s information in exchange—all of it. If the information the witness provides isn’t truthful, or isn’t complete, the grant of immunity is withdrawn. The witness (often a potential defendant) pays the price. A witness has to earn the immunity.
Let's Reopen America's Courts, But Send the Pundits Home
Fox News’ Tucker Carlson interviews Kyle Rittenhouse following his acquittal. Photo courtesy Fox News. Looking back over the weeks of coverage of the trials of Kyle Rittenhouse in Minnesota and the killers of Ahmaud Arbery in Georgia, it’s clear that we have a civic emergency on our hands. The American public no longer participates meaningfully in its criminal justice system.
Why Punishing Bad Prosecutors Won’t Fix a Bad System
Photo by Clyde Robinson via Flickr After 50 years of representing indigent defendants in urban criminal courts I have no objection to seeing prosecutors disciplined for their misconduct. As a matter of fact, I find the prospect delectable. But during those same 50 years I have represented a few (thousand) guilty people. Almost all of those clients understood perfectly well that their acts were illegal and that there were authorities eager to punish them for those acts if they were discovered.
The Collaborative Courtroom: A Proposal
Down deep at the taproot of the Anglo-American tradition lies the idea that the state’s monopoly on violence—its power to incarcerate citizens by force—can only be exercised after approval by a diverse jury of ordinary citizens, with each juror convinced beyond a reasonable doubt of a set of facts that justifies the action. Jury trials were a foundational concept for the Founders of the Republic.
Why Criminal Justice Too Often Goes Criminally Wrong
Suppose you run a system that provides some service or produces some product. And suppose your enterprise is dangerous: it could kill innocent people by mistake, and it can wreck lives even when it doesn’t kill. It can destroy families—psychologically maim children, tear the hearts out of parents. It can also leave fatal dangers unaddressed. Suppose your system relies on the performances of lots of humans, and you recognize that error is a permanent element of the human condition.
The Missing Link in Justice Reform: People
The first challenge that faces people entering the “Criminal Justice Reform Space” is deciding how to bring their skills to bear quickly—learning where the “value-added” they contribute can be greatest, finding out how to make a difference. It isn’t surprising that many reformers focus on the yawning gaps in criminal justice data. It is a glaring problem, and it is a problem everywhere. The U.S. has close to 18,000 police departments, and not one of them generates and compiles the data we need.
The Uncomfortable Truth About Wrongful Convictions
A casual reader might see Emily Bazelon’s recent lengthy New York Times Magazine piece “I Write About the Law. But Could I Really Help Free a Prisoner?” as just one more in what by now is a long, long parade of exoneration stories. It’s better-written than most. But although it introduces an intriguing team of siblings that includes Bazelon’s sister, Lara, a law school Innocence Clinic director, it’s essentially a familiar, generic tale. It would be a mistake to see it that way, however.
The Perils of Justice ‘Colonialism’
“Somewhere in the dark streets of the nation’s capital,” Prof. Rosa Brooks tells us near the beginning of her account of service as a reserve officer with the D.C. Metropolitan Police, Tangled Up In Blue, “someone was hurting someone else”. You mean in Georgetown? Adams Morgan? Cleveland Park? Well, no. We’re going to talk about the Seventh Police District, across the river in Anacostia, where the population is 96 percent Black. Prof.
Break-out Shots: Three Concepts That Could Change Justice
Pool players take delight in “break-out shots,” shots that disrupt the table and create—just when things seem hopeless—new opportunities for the shooter. Spend an hour reading the papers or browsing Twitter and you start to feel that the criminal justice reform movement could use a break-out shot. Criminal justice discourse has become a tug-of-war conducted along an axis. Maximum enforcement and punishment are at one pole; the abolition of both is at the other.
Memo to Joe Biden: Add a Civilian Justice Corps to Your ‘New Deal’
President Joe Biden likes big plans, and when a potential big plan evokes Franklin D. Roosevelt, he likes it even better. Roosevelt, the 32nd U.S. president from 1933 to 1945, launched a Civilian Conservation Corps, which put some three million unemployed young men to work building and restoring parks, forests and other parts of America’s natural resource infrastructure during the Great Depression. The program lasted until the U.S. entered World War Two.
Why a Guilty Verdict Against Derek Chauvin Would be a ‘Terrible Place to Stop’
I want to see Derek Chauvin, the former Minneapolis cop who knelt on George Floyd’s neck, punished. But I want—and we need—more than that. Convicting Chauvin would be a good thing. It would also be a terrible place to stop. Chauvin’s trial is a performance review of one individual. Those don’t happen often enough. Prosecutions of violent cops are scarce; departmental discipline is typically toothless. The fact that Chauvin is on trial at all marks a step in the right direction.
The New Pioneers of Conviction Integrity
In 2005, a Detroit jury found that Kenneth Nixon had thrown a Molotov cocktail into his ex-girlfriend’s house, starting a fire in which two children died. Nixon was sentenced to life in prison. Last month, Nixon walked free after the findings of an investigation led by the Wayne County Prosecutor’s office’s Conviction Integrity Unit convinced elected prosecutor Kym Worthy that Nixon did not receive a fair trial.
Why Punishing Bad Prosecutors Won’t Fix the System
It may have been a new story once, but it’s an old story now. Many wrongful convictions were influenced by prosecutorial misconduct. Lying jailhouse snitches are recruited and rewarded; exculpatory evidence is buried; perjured testimony is ignored. The prosecutors pulling these stunts act with impunity. That’s an old story too. They are immune from civil law suits; criminal prosecution and professional discipline are virtually unheard of; they are almost never held accountable.
Biden’s First Justice Duty: Commute All Federal Death Sentences
I hope that President-elect Joe Biden quickly commutes all federal death sentences to life in prison. I hope that he directs every United States Attorney he appoints to seek life sentences rather than executions in future cases. He can do this without Congressional agreement. But if Biden announces these steps as isolated moves in a stand-alone speech, we’ll be in for a round of “soft-on-crime,” ghost-of-Willie-Horton, rhetoric in response.
The Prosecutor as Quiet Revolutionary
If you wanted to remake the fundamentals of the American criminal justice system you might start with something like this. In a joint op ed published this month in The Appeal, newly elected Los Angeles County District Attorney George Gascón and Baltimore City State’s Attorney Marilyn Mosby announced they planned to mobilize Sentencing Review Units in their offices.
New Tools for Measuring Prosecutors
Here, masquerading as a prosaic set of management tools, is a little fuel for a paradigm shift in criminal justice—for a move toward a culture of safety. Early in the current wave of criminal justice reform, activists targeted two under-used levers for change: the power of data and the central role of the elected prosecutor. A recent initiative housed at Florida International University and Loyola University (in Chicago) and supported by the John D. and Catherine T.
Decolonizing Criminal Justice
When I first represented indigent defendants in the D.C. Superior Court in the late 1970s I was equipped with a desultory liberal arts education and lots of time. I spent endless hours in courtrooms waiting for calendar calls, in jails and prisons waiting for prisoners to be brought down, in my office waiting for clients who never showed. The tedium could be agonizing. While you waited, you either watched what was going on or you went crazy.
Launch of the ISDA 2020 IBOR Fallbacks Protocol | JD Supra
The International Swaps and Derivatives Association, Inc. (ISDA) has launched the ISDA 2020 IBOR Fallbacks Protocol Who should read this Client Alert? If you have derivatives contracts that are linked to, or refer to, floating rate indices you should read this client alert because your existing and future contracts may be affected and you will be receiving communications from your dealers to modify your contracts.
ISDA 2020 IBOR Fallbacks Protocol: What you need to know | JD Supra
The International Swaps and Derivatives Association, Inc. (ISDA) has published the ISDA 2020 IBOR Fallbacks Protocol (the IBOR Fallbacks Protocol). This client alert sets out key issues counterparties may wish to consider in relation to the IBOR Fallbacks Protocol. Please see the full Publication below for more information.
ISDA IBOR 2020 Fallbacks Protocol to be launched on 23 October 2020 | JD Supra
The International Swaps and Derivatives Association, Inc. (ISDA) has just announced that the ISDA 2020 IBOR Fallbacks Protocol will be launched on 23 October 2020 Who should read this client alert? If you have derivatives contracts that are linked to, or refer to floating rate indices you should read this client alert because your existing and future contracts may be affected and you will be receiving communications from your dealers to modify your contracts.
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