All posts by charlie


SAE symbol



would you consider joining together with me in a special module of HarvardX JuryX open only to massgamma to address the challenge we face to our own understandings of core values.

sae - not who we are

If of interest, please let me know.

phi alpha

charlie nesson

berkman center logo


sae jonathan davis

sae okl

sae tear down


Both of the two former SAE members who issued apologies —


Rice has been identified as one of the leaders of the chant by the Oklahoma Daily and other media outlets; his apology was published via the Dallas Morning News.

Here’s an excerpt:

“I am deeply sorry for what I did Saturday night. It was wrong and reckless. I made a horrible mistake by joining into the singing and encouraging others to do the same. On Monday, I withdrew from the university, and sadly, at this moment our family is not able to be in our home because of threatening calls as well as frightening talk on social media.

“I know everyone wants to know why or how this happened. I admit it likely was fueled by alcohol consumed at the house before the bus trip, but that’s not an excuse. Yes, the song was taught to us, but that too doesn’t work as an explanation. It’s more important to acknowledge what I did and what I didn’t do. I didn’t say no, and I clearly dismissed an important value I learned at my beloved high school, Dallas Jesuit. We were taught to be ‘Men for Others.’ I failed in that regard, and in those moments, I also completely ignored the core values and ethics I learned from my parents and others.”

Rice added, “For me, this is a devastating lesson and I am seeking guidance on how I can learn from this and make sure it never happens again. My goal for the long-term is to be a man who has the heart and the courage to reject racism wherever I see or experience it in the future.”


gather round, i will tell you a story. of


sigma alpha epsilon

my fraternity in college

harvard college

a national greek-letter fraternity at harvard now in focus as a cultural core of racism.

i was social chairman of our harvard chapter.

listen to obama’s selma speech with me, the first ten minutes,

read along, my voice over in red.

It is a rare honor in this life to follow one of your heroes. And John Lewis is one of my heroes.

Now, I have to imagine that when a younger John Lewis woke up that morning fifty years ago and made his way to Brown Chapel, heroics were not on his mind. A day like this was not on his mind. Young folks with bedrolls and backpacks were milling about. Veterans of the movement trained newcomers in the tactics of non-violence; the right way to protect yourself when attacked. A doctor described what tear gas does to the body, while marchers scribbled down instructions for contacting their loved ones. The air was thick with doubt, anticipation, and fear. And they comforted themselves with the final verse of the final hymn they sung:

No matter what may be the test, God will take care of you;
Lean, weary one, upon His breast, God will take care of you.

And then, his knapsack stocked with an apple, a toothbrush, and a book on government — all you need for a night behind bars — John Lewis led them out of the church on a mission to change America.

President Bush and Mrs. Bush, Governor Bentley, Mayor Evans, Congresswoman Sewell, Reverend Strong, Members of Congress, elected official, footsoldiers, friends, fellow Americans:

As John noted, there are places and moments in America where this nation’s destiny has been decided. Many are sites of war — Concord and Lexington, Appomattox, Gettysburg. Others are sites that symbolize the daring of America’s character — Independence Hall and Seneca Falls, Kitty Hawk and Cape Canaveral.

Selma is such a place.

In one afternoon fifty years ago, so much of our turbulent history — the stain of slavery and anguish of civil war; the yoke of segregation and tyranny of Jim Crow; the death of four little girls in Birmingham, and the dream of a Baptist preacher — all that history met on this bridge.

It was not a clash of armies, but a clash of wills; a contest to determine the true meaning of America.

And because of men and women like John Lewis, Joseph Lowery, Hosea Williams, Amelia Boynton, Diane Nash, Ralph Abernathy, C.T. Vivian, Andrew Young, Fred Shuttlesworth, Dr. Martin Luther King, Jr., so many others, the idea of a just America, and a fair America, an inclusive America, and a generous America — that idea ultimately triumphed.

Now, as is true across the landscape of American history, we cannot examine this moment in isolation. The march on Selma was part of a broader campaign that spanned generations; the leaders that day, part of a long line of heroes.

We gather here to celebrate them. We gather here to honor the courage of ordinary Americans willing to endure billy clubs and the chastening rod; tear gas and the trampling hoof; men and women who despite the gush of blood and splintered bone would stay true to their North Star and keep marching towards justice.

They did as Scripture instructed: “Rejoice in hope, be patient in tribulation, be constant in prayer.” And in the days to come, they went back again and again. When the trumpet call sounded for more to join, the people came — black and white, young and old, Christian and Jew, waving the American flag and singing the same anthems full of faith and hope. A white newsman, Bill Plante, who covered the marches then and who is with us here today, quipped that the growing number of white people lowered the quality of the singing. To those who marched, though, those old gospel songs must have never sounded so sweet.

In time, their chorus would reach President Johnson. And he would send them protection, and speak to the nation, echoing their call for the nation and the world to hear:

“We shall overcome.”

What enormous faith these men and women had. Faith in God — but also faith in America.

The Americans who crossed this bridge, they were not physically imposing. But they gave courage to millions. They held no elected office. But they led a nation. They marched as Americans who had endured hundreds of years of brutal violence, countless daily indignities — but they didn’t seek special treatment, just the equal treatment promised to them almost a century before.

What they did here will reverberate through the ages. Not because the change they won was preordained; not because their victory was complete; but because they proved that nonviolent change is possible; that love and hope can conquer hate.

As we commemorate their achievement, we are well-served to remember that at the time of the marches, many in power condemned rather than praised them. Back then, they were called Communists, or half-breeds, or outside agitators, sexual and moral degenerates, and worse — they were called everything but the name their parents gave them. Their faith was questioned. Their lives were threatened. Their patriotism, challenged.

And yet, what could be more American than what happened in this place?

What could more profoundly vindicate the idea of America than plain and humble people — the unsung, the downtrodden, the dreamers not of high station, not born to wealth or privilege, not of one religious tradition but many — coming together to shape their country’s course?

What greater expression of faith in the American experiment than this; what greater form of patriotism is there; than the belief that America is not yet finished, that we are strong enough to be self-critical, that each successive generation can look upon our imperfections and decide that it is in our power to remake this nation to more closely align with our highest ideals?

That’s why Selma is not some outlier in the American experience. That’s why it’s not a museum or static monument to behold from a distance. It is instead the manifestation of a creed written into our founding documents:

“We the People…in order to form a more perfect union.”

“We hold these truths to be self-evident, that all men are created equal.”

These are not just words. They are a living thing, a call to action, a roadmap for citizenship and an insistence in the capacity of free men and women to shape our own destiny. For founders like Franklin and Jefferson, for leaders like Lincoln and FDR, the success of our experiment in self-government rested on engaging all of our citizens in this work. And that’s what we celebrate here in Selma. That’s what this movement was all about, one leg in our long journey toward freedom.



i have put out invitation to  my fraternity brothers to join in an iteration of juryx. if there is interest i will seek active support from local and  national to reach and connect all brothers.

the step america has to make to end our civil war is for each one of us to make, which means for me to make and us to make.

htt9 socratic

seed from dakotah, kayleigh, mike, fern

-Classmates. Fooled around 2 times previously and had done everything but sex. Meet after class one day, girl suggests they watch TV at the guy’s room. They go back to the room to watch House of Cards.  He starts to make sexual moves, which they have done before. They came close to having sex before in terms of nakedness and intimacies but she had remained a virgin. Once it becomes clear he was intent on intercourse, she says “I thought we were here to watch a movie.”  Shortly thereafter, he penetrated her..



He thought she was being flirtatious and persisted.  The communication was vague. Based on prior experience, he thought this was permissible. Times previously she said don’t take off my shirt, but then she herself took off the shirt.


She tried to communicate that she was uncomfortable and this was unwelcome. I said it in stern way, and my body language indicated my nonconsent.


-alcohol: both had been drinking.  3 or 4 beers.  She supplied the alcohol.

-intercourse on previous occasions: relationship scenario.

-reports right away, reports next morning, or reports after speaking with women’s vengeance brigade

-power dynamic: change who the people are. Guy is a TA or grad student, and she is an undergraduate.


-loose girl or an athlete scenario

-when does she leave after the interaction?

-girl who has an ulterior motive for alleging rape. She found he slept with her roommate.

-she said yes but then changed her mind.

-she says no, clearly. She had said no previously but in a playful way. This time she says no in a firm way.


let’s set this up as a socratic seminar.

cbs nesson socratic 1982

pick one story and follow it procedurally from the time the complaint comes to the dean.

the dean [mckensie], in private, speaks to the girl.[kaylee], who voices her complaint.

a complaint comes in: the title 9 alarm bell rings; the carefully worked out legal procedure that the dean must follow at risk of losing all our university’s federal funding clicks in:

Should she immediately identify the potential defendant and isolate him from contact with the complainant? For the guy, an extraordinary constraint on freedom triggered by a complaint.

within the legal institutional world complaint warranting restriction of freedom initiates with stop and frisk, which offers the dean a model. reasonable suspicion is the standard for stop and frisk. does the dean have reasonable suspicion that the defendant is guilty of sexual assault on campus to warrant a minimal intrusion on the defendant’s freedom? yes.

what does the dean do? does she empathize? does she offer to mediate?

the dean speaks in private to the guy [mike],

[let’s hear the mediation conversation driven in a way that does not resolve the complaint yet explores possible avenues of resolution to pinpoint failure points.

then the dean says, now what do i do? where does the story go from there? who does she call?

[mckensie. be the dean, who do you call?]

[compared to the settlement choice, let’s hear what the litigation route will entail. who can tell us that?

[then come back, is there any positive thing that could be done to satisfy the complaint alternative to litigation: [ e.g., a deliberation program encompassing the culture. that being the change that kaylee is really fighting for.

welcome to the rawlsian room, in which we decide what is fair without knowing whether ours is the male or the female position, leave aside for the moment gradations of self consciousness in between.





My Cousin Vinny

The Law Lord

vinny formality

This is not the forum to be cavaIier.

The Arraignment

is the first the Law Lord hears about an accusation of breach of the peace that jury trial may be used to resolve. a defendant is brought before the Court. the crime of which the defendant will be accused is articulated to the defendant in open court. the court demands the defendant’s plea, either guilty (which requires no trial) or ‘not guilty’ (which requires trial). if trial is required the court then deals with bail.

vinny arraignment

Now… the next words out of your mouth|are either gonna be ”guiIty” or ”not guiIty”.
I don’t wanna hear commentary,|argument or opinion.
If I hear anything other than|”guiIty” or ”not guiIty”,…’II be in contempt.
I don’t even wanna hear you cIear your throat.
I hope I’ve been cIear.
Now… how do your clients pIead?

I think I get the point.

No. I don’t think you do.
You’re now in contempt of court.
– Will you go for two counts of contempt?

|- Not guiIty.

Thank you.
– Bail will be set at $200,000.|- (strikes gavel)

The Preliminary Hearing
judge hammonds

Why didn’t you ask any questions?
vinny - any questions

The Public Defender
vinny public defender

The Logic of Innocence
vinny- you're innocent

Jury Selection
vinny - she'll do

Opening Statement Prosecution
vinny opening statement prosecution

Opening Statement Defense
vinny bullshit

The Public Defenders Disability
vinny pd disability

Cross Examination: How Not To
vinny eyeglasses

Cross Examination: Vinny does Grits
vinny grits cross

Circumstantial Evidence
What i’m asking you
vinny what i'm asking you

Establishing Expert Qualification
vinny expert voir dire

The Last Doubt
vinny sherriff

Dismiss All Charges
vinny dismiss all charges

Well Done!
vinny well done

Overrule Crawford – Response to Professor Friedman


Ohio v. Clark presents an opportunity for the Supreme Court to survey the confusion its confrontation doctrine has generated, and to set confrontation doctrine right.

Confrontation in its archetypal form––where a victim accuses the defendant of a crime in open court before a judge and jury––is the critical threshold at the core of an American criminal trial. Confusion of confrontation with cross-examination has eviscerated that threshold right. What was meant to be a critical constraint upon the state, ensuring that accusations of crime leveled against a citizen are made live in court under oath  before the jury that will judge him, has instead been construed to permit proof by out-of-court accusations . The Supreme Court should restore the historical and constitutional function of the Confrontation Clause as a check on state prosecutorial power.

The Confrontation Clause should be understood as condemnation of convictions in the total absence of live sworn testimonial proof of guilt before the jury.  Instead, Scalia assumes that the purpose of the Confrontation Clause is to exclude  ex parte examinations from evidence. Reading the Confrontation Clause to exclude reports of such examinations requires Scalia to expand the phrase “the witnesses against” to include all declarants of testimonial hearsay statements. .

Scalia, for the Court in Crawford  assumes from the outset that the Confrontation Clause establishes a constitutional evidentiary rule of admissibility. He starts with the assertion: “the principal evil at which the Confrontation Clause was directed was [ DRUM ROLL, here of Raleigh and fundamental right, but no …]
the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.

Scalia sees the constitutional mission as regulation of hearsay:
“Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless … . Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence.”

This misconception of purpose leads Scalia to misconceive the Confrontation Clause as a constitutional hearsay rule, and to manhandle its language to accommodate his misconception of it.



(1) ‘Dying Declarations’: the ‘exception’ that proves our rule:

Giles v. California exposed the nonsensical conception of confrontation underlying the Scalia/Friedman testimonial approach. Giles was charged with the murder of his girl friend. He claimed self-defense. As proof to negate the defendant’s claim of self-defense, the prosecutor was allowed to introduce statements that the victim had made three weeks before the fatal shooting to a police officer investigating a domestic violence report.

In an amazing display of illogic, the justices (and you, Richie) simply assumed that the defendant had a right to confront the homicide victim. But, a defendant in a homicide prosecution has no constitutional right to be confronted live in court by the homicide victim. The victim of a homicide can never be a witness against the defendant in the homicide trial because the victim of the homicide is dead, by definition. The crime of homicide is not complete until the victim dies. Failing to recognize this, the justices (and commentators in support) debate whether the defendant could be found to have forfeited his right to confront the victim without having first been convicted of her murder, and get utterly lost in the circularity of the question as they have constructed it. The only legal questions posed by the admission of a homicide victim’s statement are, first, whether it is admissible or excludable under state hearsay law, and second, if admitted in evidence, whether it is alone or with other evidence sufficient to support a conviction, again an issue in the first instance of state law. There is no confrontation issue posed simply by the admission of the statement of a homicide victim in the homicide trial because the Confrontation Clause imposes no duty on the prosecution to produce the victim.

The nonsense of trying to make sense of a constitutional right of a defendant to be confronted by the dead homicide victim continued in Michigan v. Bryant. Had the Confrontation question been properly framed as whether the prosecutor was responsible for producing Bryant’s victim live at trial, the issue would have been solved with no fuss. As in Giles, production at trial of the dead victim is not even a theoretical possibility. Whether the victim’s dying accusation against the defendant should have been admitted is a question of hearsay law, not constitutional law. Likewise, the question of whether the evidence, once admitted, is sufficient to allow the jury to convict, is a question of evidentiary sufficiency under state law. A state could decide that the homicide victim’s hearsay, taken together with the other evidence offered by the prosecution, like the physical evidence from Bryant’s screen porch, could support a jury verdict beyond reasonable doubt. The absence of the hearsay declarant did not create a doubt beyond the jury’s capacity to resolve.

Dying declarations are an exception to the hearsay rule because they are out-of-court statements offered for their truth. They are also an exception to the rule that testimony must be sworn because contemplation of immediately impending death was substitute. They are not an exception to the rule of confrontation because the clause imposes no duty on the state to produce the victim of a homicide to confront the defendant. Dying Declarations are statements of persons who cannot be produced. The Confrontation Clause has nothing to say about them. Think of them not as ‘exception’ to confrontation but rather as ‘exclusion’.

(2) Co-conspirators Statements:
Friedman advances Alex Whiting’s question to us about how our approach handles co-conspirator statements. We respond with the agency theory of conspiracy, according to which a statement made by a co-conspirator during the course of and in furtherance of a conspiracy of which the accused is a part is deemed to be a statement of the accused. Richie, you dismiss as spouting fictions. But your concern seems not with the theory of agency but rather with ridiculous extensions of it that prosecutorial judges have foisted upon us. He says, “The fictitious quality of a rule … is augmented by courts’ willingness to perceive very far flung conspiracies and to be creative in imagining how given statements may have advanced the aims of the conspiracy.” True, but this is not reason to misconstrue the Confrontation Clause.

(3) Business records: give us a good example.

Roger Park asked: “Suppose that an essential element of a federal crime is movement in interstate commerce. The only evidence on that point is a business
record. What result? ”

We responded: “Roger, the business record in your hypo proves a jurisdictional element, not an element of guilt. Nexus with interstate commerce is a jurisdictional element of the charged federal offense. It establishes the federal government’s authority to prosecute the charged offense. Whether or not prosecution of a charge falls within federal jurisdiction is a legal question, properly addressed to the judge, not to the jury. If the jurisdictional issue is submitted to a jury, there need be no greater constriction on the evidence the jury is permitted to consider than on the judge, which means that hearsay proof is permissible. Proof by business record in your hypo is fine.”

Friedman complains: “The Nessons shrugged aside the particular illustration presented by Roger on the basis that it involved a jurisdictional issue. But of course that is not always the case.”

Richie: We challenge you:

• Come up with a single specific case in which our view of confrontation would stop a serious prosecution because of inability to prove a substantive element of a serious crime with a business record.

fern & charlie nesson


feb 26, 2015

for those of you that missed it:

dakotah reviewed where we are with creating a dramatic stimulus to ignite further htt9 deliberation

we read this article together
Hoff, Rape Culture is a ‘Panic Where Paranoia, Censorship, and False Accusations Flourish

fern sends this email to all to put the article in context:

This article may be a useful corrective. Of course, we should not “panic” and we should strive to give both he accuser and the accused a fair trial. But we can’t make the problem of assault go away as easily as the author would like. In particular, I believe she is wrong t cast so much doubt upon the statistical surveys. Her unwonted skepticism is shown pretty clearly in the following paragraph:
” The one-in-five number is derived from surveys where biased samples of respondents are asked an artful combination of straightforward and leading questions, reminiscent of the conclusory interviews behind the daycare agitation. A much-cited CDC study, for example, first tells respondents: “Please remember that even if someone uses alcohol or drugs, what happens to them is not their fault.” Then it asks: “When you were drunk, high, drugged, or passed out and unable to consent, how many people ever had vaginal sex with you.” (Emphasis mine.) The CDC counted all such sexual encounters as rapes.”

I agree with the CDC. In a situation in which the alleged victim is “drunk, high, drugged or passed out and unable to consent” and the alleged victimizer has vaginal sex with her (or the equivalent for a male victim), it IS rape. Rape, by definition , is penetration in the absence of consent. A victim who is “unable to consent” has been raped.
Let’s be fair but let’s not deny the gravity of the problem.

without arguing its merits we took as possibility that the current feminist prosecutorial front has a feel to it not unlike the front of the wave of unjust prosecutions that characterized the hysteria of the 1990’s over child abuse in day care centers.

we watched together an episode of 60 Minutes from the 90’s articulating for america the injustice done to Bill and Kathy Swan.

Here is the opinion of the United States Court of Appeals for the Ninth Circuit, Swan v. Washington (Peterson) refusing to consider the confrontation issue.

The Supreme Court denied my petition for certiorari, 1994.

we talked about the confrontation clause of our constitution and our constitutional right not to be put at risk of conviction by a jury of our peers without first having been faced with the accusation we are called upon to defend without first being faced by our accuser, sworn before our jury.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

we reviewed Raleigh’s Case summary, who first articulated the fundamental confrontation right.

you listened to the story of ‘confrontation’ as a constitutional right

and of its demise and possible resurrection.

we reviewed the case of Clark v. Ohio, to be argued in the Supreme Court on monday. fern and i have filed an Nesson’s amicus clark v. ohio.

we spoke about a justiciable issue as an essential element of fair trial.

we demonstrated Ellsberg’s Paradox and distinguished uncertainty from risk.

we spoke about rhetorical poker, the importance of getting agreement on a premise as a starting point, which leads me to this rawls from journal august 2011.

we spoke of the extension school class as a bucking bronco.

we watched rebecca speak of teaching with me in second life

francesca and mike to take charge. please fill out the doodle to find common meeting times with others outside of class. we will start our seminar this week promptly at 5pm (maybe). bring charged laptops.

i will tweet about #clarkvohio and tell you all about the argument upon our return.