Eyewitness Testimony Condemned Our Client to 34 Years in Prison. How Could We Show It Was False?

The law, lawyers, and the court.
Dec. 17 2013 7:27 AM

“A Mistake Has Been Made Here, and No One Wants to Correct It”

Without DNA evidence, how could we challenge the eyewitness testimony that sent our client to prison for 34 years?

Lara Bazelon, Laurie Levenson (second row), Kash Register, Adam Grant. Lara, Laurie, and Adam are Kash's lawyers from the Loyola Project for the Innocent.
Lara Bazelon, Laurie Levenson (second row), Kash Register, and Adam Grantin the moment Register learned he'd been exonerated. Bazelon, Levenson, and Grant are Register's lawyers from the Loyola Project for the Innocent.

Photo courtesy Kim Fox/Loyola Law School

In the early afternoon of April 6, 1979, a 78-year-old white man named Jack Sasson was robbed and shot five times at close range as he sat behind the wheel of his blue Chevrolet in the carport outside his home in West Los Angeles. His wife, Renee, testified that when she found him, he was “all blood.” Three weeks later, Sasson died of his injuries.

Brenda Anderson, 19, lived in an apartment on the same street. She told police at the scene that she heard gunshots, looked out of her window, and saw a black man flee the carport, double back, fire more shots, and run off again. Three days later, detectives at the West Los Angeles Police Station showed Anderson a photo array with six pictures of young black men. Anderson, who is African-American, identified the suspect as 18-year-old Kash Register, a former classmate of hers from high school.

A second person also claimed to be an eyewitness: 31-year-old Elliott Singleton. He was shown the same photo array and also identified the suspect as Register. Singleton, who is black, said he’d been painting the house across the street from Sasson’s house when he saw the shooting, and that he chased the armed shooter for blocks, stopping only when the man turned and pointed the gun at him.

The fingerprints on Sasson’s car did not match Register’s. The police never recovered a wallet or a weapon. In a search of Register’s house, they found three brown caps, a pair of black pin-striped pants, and a burgundy shirt, similar to the clothing Singleton said the shooter was wearing. There was a speck of blood on the pants. DNA testing did not exist in 1979, so the blood was simply found to be Type O, matching Sasson, Register, and more than 3 million residents of Los Angeles.

Register, who lived nearby in an apartment with his mother and older brother, said he had spent the morning before the murder at the local unemployment office, where he had finally gotten a lead on a job, and the afternoon having lunch and watching television with his long-time girlfriend, Cheryl Perry. She was pregnant, and he was anxious to start supporting her and their baby. The unemployment office confirmed his account about the time he’d spent there, and his girlfriend backed up his alibi.

Still, Register found himself facing charges of first-degree murder for Sasson’s death—with the possibility of the death penalty. Because the physical evidence was weak, the case against Register turned almost entirely on the eyewitness identifications of Anderson and Singleton.

* * *

At a preliminary hearing held the same month as Register’s arrest, Anderson did not sound sure about the identification she had made. Reminded by the prosecutor that she had picked Register’s picture out of a photo array, she replied, “Well, I identified the picture, what the picture was.” Anderson went on to explain that she had gotten “confused” when the detectives showed her Register’s photograph because she recognized him from high school. She had not seen the suspect “that good,” she added.

“So what you are telling us as you are sitting in the courtroom today is that you are not sure of your identification,” the defense lawyer said. “Is that correct?”

“Yes. That is correct,” Anderson answered.

But her backtracking didn’t deter prosecutors from taking the case to trial. And on the witness stand at that trial, in October 1979, Anderson answered “Yes,” without a trace of doubt, when the prosecutor asked, “are you absolutely sure the man you saw running from the scene April 6, the day of the shooting, is the defendant in court, Kash Register?”

Singleton, too, identified Register at trial as the shooter. He also said he did not know either how tall the suspect was or his own height. And in telling his story of giving chase at full speed for blocks after the murder, he claimed that he never once broke a sweat, lost his breath, or felt any fear.

After three days of deliberations, an all-white jury found Register guilty. When the verdict was read aloud, Register cried out, “I didn’t do nothing.” The judge imposed a sentence of life without the possibility of parole. It was later commuted to 27 years to life, and in 1993, Register became eligible for release. At 11 parole hearings over the next two decades, he proclaimed his innocence. “A mistake has been made here, and no one wants to correct it,” he told the California Parole Board in 2007. And in April of last year: “I have been incarcerated for 33 years of my life for a crime I didn’t commit.”

This last request for parole, like the others, was denied. After all, two eyewitnesses had told the jury they were sure Sasson’s killer was Kash Register, and he was refusing to accept responsibility for his crime. Time and again, the parole board came down on him for his lack of insight and remorse.

And yet, according to Brandon Garrett, a law professor at the University of Virginia and the author of Convicting the Innocent, eyewitness misidentifications have played a leading role in nearly 75 percent of 250 convictions overturned by DNA evidence between 1989 and 2010. In more than one-half of those exonerations, the eyewitnesses start off unsure, a “glaring sign” of potential trouble as Garrett puts it, yet appear to become increasingly certain over time. This often corresponds with police practices like suggestive photo arrays, lineups, and even well-intentioned comments like “Good job!” after a witness makes an identification, however tentative. All of this can cause “contamination” of memory, Garrett says so that “there is no way to know after the fact whether the eyewitness could have actually picked the person with any degree of confidence.”

When DNA exists to prove an eyewitness wrong, it provides an independent scientific basis for assessing the validity of old convictions. But DNA testing did not become routine until the mid-1990s. In most cases predating that time, there is nothing left to test. In the early 1980s, the state destroyed every shred of physical evidence in Register’s case—shell casings, fingerprints, and clothing.

And so, when Register’s case came to the Loyola Project for the Innocent, a law school clinic which I direct, there was no way to use science to challenge Brenda Anderson and Elliott Singleton’s eyewitness testimony, which we became convinced was false. It took enormous human effort to undo human error, from an unlikely cast of characters who came together, through years of persistence and dumb luck, to try to reverse an old and haunting injustice.

* * *

One day in late 2011, Sheila Vanderkam, Brenda Anderson’s older sister, came across a site with information about the location of prison inmates while surfing the Internet. Curious, she typed in Register’s name, because she remembered her sister’s involvement in the case against him. When she saw that Register was still incarcerated for Sasson’s murder, she was horrified.

Vanderkam, who is eight years older than Anderson, had long suspected what Register had always claimed: that her sister was lying. During the evening of the shooting, she’d visited the apartment where Brenda Anderson lived with their mother, Christine Chambers, and younger sister, Sharon Anderson. Brenda told Vanderkam that she had heard shots and seen a man flee, but had not gotten a look at his face.

Sharon was also home that evening. She told Sheila that she and Brenda had been together at the time of the murder—and not in the apartment. They were on the street outside, headed home after stealing a box of several hundred dollars worth of Avon make-up and trinkets, and stashing it at a friend’s house. Sharon told Vanderkam she heard gunshots and then the sound of a horn blaring. When she turned, she saw an elderly man slumped over his steering wheel.  

Vanderkam actually worked as a detective’s assistant at the West Los Angeles Police Station. When she went to work and learned from Detective Richard Zolkowski, who was in charge of investigating the Sasson shooting, that Brenda Anderson had been named as an eyewitness, Vanderkam went back to talk to Anderson, who said once more that she’d seen only the back of the shooter’s head. Vanderkam knew her sister to be unreliable and a drug user. Vanderkam later said in a sworn statement that at the time of Sasson’s murder, Anderson could be so addled by smoking PCP that she became “unable to remember day-to-day conversations, and can barely tie her shoes.” (Anderson denies that she used drugs during this time.)

Shortly after speaking with Anderson, Vanderkam approached Zolkowski at the stationhouse and, she says, told him that her sister was lying. She says he responded by placing his finger over his lips and saying “ssshhh.” (Zolkowski denies this.) Vanderkam was working full-time while trying to raise her 8-year-old daughter alone; her husband had been shot to death by his mentally ill brother. She wanted to become a police officer—a long climb from her assistant post, particularly for a black woman. Going over Zolkowski’s head would have been career suicide. Reluctantly, Vanderkam decided to keep quiet. She lost track of the case, eventually moving to Texas with her third husband, a wealthy lawyer, and falling somewhat out of touch with many of her 11 siblings, especially Anderson, who remained addicted to drugs and had been convicted of a string of assaults, thefts, and narcotics crimes over the years. As a result, Anderson lost all seven of her children to the foster care system—children whom Vanderkam had rescued and helped raise.

Beginning in 2011, when she realized Register was still in prison, Vanderkam went on a mission to re-open his case. She found Steve Sanders, an attorney assigned to represent Register in one of his many parole board hearing appeals. And here, Register finally caught a break: Sanders had employed as his legal assistant an ex-convict named Keith Chandler who’d done time with Register and become friends with him in prison. Chandler had left Sanders’ office, but the receptionist remembered his connection to Register, and passed Vanderkam’s message along to him.

Register had made a powerful impression on Chandler, who had trained himself to be a kind of jailhouse lawyer and tried to help thousands of inmates over the years with their legal problems. Chandler says he can “count on one hand the number of inmates who told me they were innocent.” Register was one of them. Armed with Vanderkam’s account of why she thought Anderson was lying, and how Detective Zolkowski had shushed her, Chandler contacted Register and got the trial transcripts and the police file. He mailed the box of documents to Vanderkam.

When Vanderkam read the initial police report, she was surprised to find her sister Sharon and their mother Christine listed as witnesses along with Anderson. Vanderkam had never heard that Sharon had seen Sasson’s shooter, or that her mother, who had since died, had observed anything at all. The report said cryptically that each had “observed same as Witness #2,” meaning Anderson. There was no other mention of Sharon or Christine in the records, and neither had testified at the trial.

When Vanderkam talked to Sharon about the police report, Sharon told her something new—something crucial. Sharon did not simply suspect that Anderson was lying. She knew it.

Like Anderson, Sharon knew Kash Register by sight. She’d seen him around the neighborhood, taking note because she had an eye for good-looking men, and, of course, because of his unusual name. Now she told Vanderkam, for the first time, that she had seen the suspect who fled the scene standing over Sasson’s car and made eye contact with him. Sharon was positive that the man was not Register. Vanderkam described her reaction like this, “I had been putting together this pile of sticks trying to light a fire, and now I had match.”

And there was more. Sharon also told Vanderkam that when the police took Anderson to the West Los Angeles Police Station to identify the shooter three days later, they took Sharon, too. At the stationhouse, the sisters were separated, and Sharon, then 17, was left in a room with two white detectives, They asked her about the Avon theft, which had been reported to the police by a neighbor. She admitted to stealing the Avon products with her sister. When the detectives also asked her about the shooting and showed her the six-picture photo array, Register’s picture was already circled. Pointing to it, the detectives asked Sharon if Register was the shooter. She told them no. They told her Anderson had identified Register as the shooter; Sharon insisted he wasn’t the man she’d seen. The detectives responded by telling Sharon that she was going to juvenile hall for a long time over the Avon theft.

Instead, though, Sharon and Anderson were driven back to their apartment. Theft charges were never filed. Sharon, who had a criminal record for prostitution at the time, told no one about seeing the suspect or what had happened at the police station. “I was just happy I was going home,” she later testified.

After Chandler got Sharon and Vanderkam to give sworn statements, he asked the court to overturn Register’s conviction, based in large part on the new evidence the sisters had provided. Because Register’s final direct appeal had been denied in the mid-1980s, Chandler had to file a habeas petition, a kind of Hail Mary pass that allows long-convicted prisoners to argue that their convictions violate the Constitution.

The case was assigned to Los Angeles Judge Katherine Mader. In October 2012, she asked the state to respond, and appointed attorney Herb Barish to represent Register. He brought the case to the Loyola Project for the Innocent and asked us to serve as co-counsel. Chandler had done a remarkable job: singlehandedly, and without any formal legal training, he had convinced Judge Mader that Register’s case needed a second look. But now it was up to my colleagues and me and our students, working with Barish, to prove that Sharon Anderson, Sheila Vanderkam, and Kash Register were for real—and that Brenda Anderson and Elliott Singleton had lied.

We started by going to meet Register in prison in Tracy, Calif., an hour east of Oakland. Register sat across from three of us at a desk: a short, soft-spoken middle-aged man in prison blues. “I didn’t do it,” he told us. He spoke calmly, his eyes fixed on ours.

Register was reserved, and it took us several more visits to learn much about him. When we did, the details were excruciating. His girlfriend, Cheryl, had given birth to their daughter the month after he was convicted. But after a few years, they’d broken up. She’d had to move on with her own life, he explained to us, and he’d lost the visits with his daughter, too. Now she had two children of her own—grandchildren he had never met. Register stayed in touch with his mother over the phone and through letters, but he hadn’t seen her since 1993, when he asked her to stop coming to the prison because the visits were too hard on her and too painful for him.

On some level, all criminal defense attorneys are forced to metabolize the agony of their clients. In order to keep fighting for them, we have to. When I became a federal public defender in 2001, a senior lawyer described the job this way, “It’s like your client is tied to the railroad tracks and you are the only thing standing between him and the train. Sometimes, the best you can do is hold his hand when he gets run down.” The trick is to convince yourself that it will never come to that, by working single-mindedly to untie the knots, and blocking out the sound of the train’s whistle screaming. The thrill is addictive, but the pressure is nauseating.

But once I started working on Register’s case, I never stopped hearing the train.

As we interviewed witnesses and built up our side of the case, the prosecutor’s office refused to back down. Deputy district attorney Juan Mejia and his investigator asked Anderson to sign a declaration affirming the truth of her trial testimony. Anderson refused. She told Mejia, “I’m not gonna do that, you know, unless I see some compensation which I well deserved a long time ago.” In a March 2013 interview with her brother Robert, Mejia said of Anderson, “You can’t trust her farther than you can throw her.” Nonetheless, he insisted that Anderson’s account should be credited over Sharon’s, telling the incredulous Robert, “You know, there’s—there’s an old saying that a broken clock is right twice a day.” Mejia and his investigators also showed Sharon’s rap sheet to Robert, suggesting that she should not be believed because she had been a prostitute. When Sharon found out, she felt humiliated about this dredging up of her past. She had not been in trouble in years and was devoted to raising her 11-year-old daughter. She told Vanderkam, “I can’t take this,” and did not speak to my colleagues or me for six months.

We continued to investigate, turning our attention to Elliott Singleton. Mejia turned over part of the prosecution’s old trial file from 1979 (although he also held part of it back). Digging through the file, my colleague Adam Grant, the clinic’s deputy director, found something strange, a document that listed Singleton’s wife, Patty, as an eyewitness who “could ID dft [defendant].” There was no mention of Patty Singleton anywhere in the police reports, and like Sharon and Chambers, she had not testified at trial.

Grant and Laurie Levenson, a Loyola law professor who is the clinic’s founder and driving force, visited Elliott and Patty Singleton at their home. Elliott said he remembered nothing about the shooting or his role in the conviction—not identifying Register, or testifying at the trial. When Grant described the Hollywood-style chase scene he had relayed to the jury, Singleton dismissed it as “crazy,” even signing a declaration saying so. Weeks later, Levenson and Grant went back to the house and found Patty by herself. Outside of her husband’s presence, Patty told them what had actually happened.

On the day of the shooting, she and Elliot were at his mother’s house on the street where Sasson was killed—not at a friend’s, as Elliot had claimed. His mother was sick, and he was inside taking care of her. (Patty, we later learned, was pregnant.) Standing outside, across the street from Sasson’s car, she had seen the shooting, but not, she said, well enough to identify anyone. Her husband, she told Grant and Levenson, did not see anything. In a declaration we later filed with the court, Patty stated, “Someone said my husband ran after the young suspect and chased him through the streets, but he never did.” When Grant later asked Elliot Singleton about Patty’s statements in court, he expressed no surprise or outrage, repeating over and over that he just could not remember anything about the case.

Mejia turned over other important information, too—most crucially, Anderson’s rap sheet. The timing of her criminal record went a long way toward explaining her testimony. In addition to the threat of charges for the Avon theft, Anderson was facing a recent charge for credit-card forgery on the day she identified Register at the police station. She was in real danger of facing criminal prosecution, which gave her every reason to cooperate with the police. After Anderson pointed to Register’s picture, the forgery charges evaporated, just like the threat of an indictment for the Avon theft. Since prosecutors had kept this information from Register’s trial lawyer, the jurors had heard none of it. They also didn’t learn that Anderson was on probation for two other theft-related convictions when she testified.

Last July, based on the evidence we’d amassed, Judge Mader ruled that Register was entitled to an evidentiary hearing—the equivalent of a new trial, without a jury. It was clear from the judge’s written order that she wanted to see everyone for herself—the people who had put Register away, and the people who were trying to get him out. Levenson was in France, but Grant and I were so excited that we woke her up in the middle of the night to give her the news. The hearing was set for Oct. 25.

Then, in August, we had a set back: Patty had a severe stroke. When it came time for the hearing, she was still hospitalized and bedridden. She could not testify, and the judge ruled her declaration inadmissible because Mejia would not be able to cross-examine her.

Nine days before the hearing, our case took another hairpin turn. I came to work to find an email from Mejia explaining that he had taken another look at the still-hidden part of the 1979 trial file, and found a document he now thought he should turn over. Prosecutors are required to turn over any evidence that could show a defendant to be innocent. Mejia wrote only that this document could be “potentially” relevant in light of the new evidence we’d gathered.

Chillingly, the document was a memo about whether to seek the death penalty against Register. It included these sentences: “Mrs. Singleton saw the incident, but thus far has not cooperated due to the fact that her husband is afraid to have her testify,” and “Two other witnesses, Christine Chambers and Sharon Anderson, were with Brenda Anderson and observed the incident. They cannot identify.” Seeing this for the first time, I stared at my computer screen, reading the words “cannot identify” over and over. In my mind, the memo confirmed everything we had argued for months. Sharon had been interviewed by the police and had not picked Register as the shooter. Neither had her mother. And Patty Singleton—blocked by her husband from coming forward—apparently hadn’t made a positive identification either. Which meant that no one had.

Although Mejia disputed our interpretation of the memo, he did the right thing by turning it over once he realized its potential significance. If the DA who had tried the case in 1979 had done the same, it is quite possible that Register would never have been convicted. Register’s defense attorney could have then interviewed Sharon and Patty, knowing that the statement in the initial police report, that Sharon and Christine had “observed same” as Anderson, was wrong. He could have used this information at trial to show that there strong reason to think that Anderson and Singleton’s testimony was false. Combined with Register’s alibi and the lack of any meaningful physical evidence, those brief sentences in the death penalty memo might have made all the difference for Register.        

The students threw themselves into preparing for the hearing. At one point, when we could not find the hospital where Patty was, and Elliott would not answer the door, teams of students took turns waiting outside their apartment beginning at 6 a.m. on a Sunday, hoping that he would eventually come out and tell them where she was.

Sharon and Vanderkam were the first witnesses to testify. They held up well under cross-examination; even Mejia told Vanderkam, “You’re a really good witness.” I was especially proud of Sharon, who dealt with questions about her criminal record without shame or fear. Looking at the picture of the crime scene, she wept on the stand. Over and over, she told the judge that the man she saw standing over Sasson’s car was not Register. When Mejia asked Sharon if her felony convictions made her “untrustworthy,” Sharon answered, “It don’t matter because it’s not going to stop what I seen.”

Singleton made repeated attempts to try to get out of testifying, saying that he was too sick. When we finally got him on the witness stand, he continued to claim he couldn’t remember what happened on the day of the shooting and added that he had suffered from stress-induced epileptic seizures his entire life.

The prosecution called Detective Zolkowski. He denied ever speaking with either Sharon or Vanderkam, and also told the judge that it was his practice not to write reports when eyewitnesses failed to make a positive identification because it was not “relevant.” The law states the opposite: The defense is entitled to precisely that kind of information, because it tends to show the defendant is not guilty.

Wilma Register, Kash's mother, and Keith Chandler, a friend.
Wilma Register, Kash's mother, and Keith Chandler, a friend, after Judge Mader read her ruling aloud.

Photo courtesy Kim Fox/Loyola Law School

When Register took the stand, I asked him about every important life event he had missed: his daughter’s birth, his brother’s funeral, the arrival of his two grandchildren. We went through each of his parole hearings, Register repeating his assertions of innocence and answering, “No,” 11 times, when I asked him if he had been granted parole. When he finished speaking, there was a long silence in the courtroom. Mejia had no questions for him.

The wildcard witness was Brenda Anderson. Given all her conflicting statements, we just had no idea what she would say on the stand. She did not come to court on the day we subpoenaed her. When the students knocked on her door, no one answered. She showed up the next day only after Mejia’s investigators picked her up and drove her to court.

At first, she refused to get on the witness stand, telling the judge, “I’m not really, like, with this.” When she finally took the stand, her pupils fixed and dilated, she refused at first to keep her hand raised to be sworn, or to state and spell her name. When Judge Mader asked her to spit out her gum, Anderson gave her a long stare and put a tissue to her mouth. Then she kept chewing. The judge repeated her request. Anderson leaned forward and bared her teeth.

Not long into the questioning, Anderson testified that she did not know who the shooter was because her eyesight was poor and she had “only seen a flash.” Later, she added, “And like everybody knows, black people all look alike.” At one point, Anderson replied to one of my questions by saying that she was the real “victim.”

Although she was making our case for us, it was hard to take in. I could not believe that someone so damaged had been allowed to steal 34 years of a man’s life. How could the police and prosecutors have prevented the jury from knowing all the reasons to doubt her word?

Now Judge Mader could see all the holes in the case. On the sixth day of the hearing, she ruled from the bench, reading her 18-page order aloud. “There is credible evidence placing Brenda Anderson’s truthfulness in doubt,” she said, declaring, “She was simply not credible.” Mader also made it clear she didn’t believe Elliott Singleton. The people she did believe were Sheila Vanderkam and Sharon Anderson.

When she finished reading, there was a pause, and my heart lurched. Judge Mader looked straight at Register. “The petition is granted,” the she said, “and petitioner’s conviction is vacated.”

When he heard those words, Register began to weep. So did nearly everyone else in the courtroom. I put my head in my hands.

Last Friday, we came back to court one last time. Mejia told the judge that he would not appeal her ruling or try Register again. Register thanked the judge. She told him the case had been “life affirming.”  Thirty-four years after it began, the case of the People of the State of California v. Kash Delano Register was finally laid to rest.

We say we have the best criminal-justice system in the world, and that’s true. But it is also flawed. One giant crack that runs through it is that courts, prosecutors, and juries routinely take eyewitness testimony at face value. Garrett describes as “toothless” the standard the Supreme Court set in 1977 for admitting eyewitness identifications as evidence: “Even in cases with eyewitnesses who were drunk, half blind, observing someone at night, from a distance, it is almost impossible to find examples where appellate judges say it was error” to allow jurors to hear their testimony, he says.

That is starting to change at the state level, but only in fits and starts. In 2011, the New Jersey Supreme Court issued a landmark ruling setting new standards for how judges instruct juries on weighing the credibility of eyewitness identifications. The Oregon Supreme Court has done similarly. These states and a few others have revamped their police practices, trying to weed out the ones that have proven problematic. Still, in most states and the federal system, there are no standardized, evidence-based guidelines for introducing and evaluating eyewitness evidence once a case goes to trial. In fact, common practices are often at odds with empirical research—for example, judges still routinely instruct jurors to take into consideration a witness’s degree of certainty. And in 2012, the U.S. Supreme Court declined to follow New Jersey’s lead, deciding 8–1 not to overhaul its 1977 standard for admitting eyewitness testimony into court. That decision dealt a grave blow to the hope for change on a national scale. The problem of faulty or outright false eyewitness testimony is only compounded when prosecutors and police withhold evidence that a defense lawyer could use to destroy the credibility of these witnesses, as they did in Register’s case.

Kash Delano Register lost 34 years of his life to the lies of two people—and to the systemic failings, including the prosecution’s withholding of key evidence, which made it so hard to show that their testimony was false. There are thousands more like him in prisons across the United States. We have to get them out. Every single one of them.

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