How the EEOC’s Maintenance of an “Alleged Offenders” Log Can Help Prevent the Next Harvey Weinstein

SAMUEL ESTREICHER, JOSEPH SCOPELITIS

NYU law professor Samuel Estreicher and recent graduate Joseph A. Scopelitis argue that the EEOC should maintain a log of “alleged offenders” to help prevent the next Harvey Weinstein. Estreicher and Scopelitis explain why such a log would effectively balance the interests of the alleged offender and victim, the employer, and the public.

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Shaffer v. Lashbrook

Docket: 19-1372

Opinion Date: June 15, 2020

Judge: KANNE

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Shaffer sued corrections officials, alleging that an officer attacked him and that others refused to treat his injuries. The court directed Shaffer to notify the court and the defendants if he were released, stating that it would not independently investigate his whereabouts and that failure to notify the court of any address changes could result in a dismissal. Shaffer conducted discovery and flooded the court with filings until he was released on parole 13 months later. The defendants, having had mail returned as undeliverable, moved for an order to show cause why the case should not be dismissed. The case languished for five months. On the deadline for the close of discovery, a defendant filed another motion. A month passed without any response, so the court dismissed Shaffer's case under FRCP 41(b) for failure to prosecute. Shaffer’s parole was revoked. Shaffer filed a notice of his new address, with requests for appointment of counsel and a status hearing 47 days after the entry of judgment. Shaffer asserted that his notices to opposing counsel and the court about his release must have gotten lost in the mail and that prison officials had not forwarded his mail. The Seventh Circuit affirmed the denial of Shaffer’s motion. Shaffer’s allegation that he tried to notify the court was self-serving and not credible; it was not plausible that the postal service lost multiple, separate mailings. Shaffer had not established that his failure to update the parties stemmed from mistake or excusable neglect.

United States v. Shanks

Docket: 18-3628

Opinion Date: June 15, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

While on supervised release for a drug crime, Shanks was charged in a drug-distribution conspiracy that led to overdoses that resulted in a death and serious bodily injury. At an arraignment, defense counsel reported that Shanks pled not guilty and understood the charges. When the government filed a superseding indictment, Shanks refused to enter a plea; challenged the court’s jurisdiction, denied understanding the charges, and refused to talk with counsel. Shanks did not appear in court again. The judge issued an order for Shanks to appear at trial. Shanks refused to accept service. The judge, counsel, and a court reporter began the trial outside Shanks’s jail cell. Shanks denied understanding whatever was said or refused to answer, despite repeated explanations. The judge found that by “disruptive conduct” Shanks had waived his right to attend. To avoid harm to Shanks or others, the judge did not use force but told Shanks that, if he changed his mind, the marshals would transport him. Outside of the jury’s presence, the judge regularly asked whether Shanks had changed his mind. The judge instructed the jury not to draw any inference from Shanks’s absence. Shanks was sentenced to multiple life terms. The Seventh Circuit affirmed, rejecting arguments that the court did not comply with Federal Rule of Criminal Procedure 43, which (he claimed) requires a defendant’s presence in a courtroom at the start of the trial and that the court clearly erred in finding that he knowingly and voluntarily waived his right to attend.