Candor And Cynicism

Clearly, as far as I am concerned, candor is Judge Kopf’s long suit, with little to nothing else a distant second.

Too much of a good thing sometimes, though?  Iohno.

Candor breeds candor, I guess.  And it’s not pretty.  Discussing the recent Ferguson goings on, not just the judge but a number of lawyers chime in, with one main subject of discussion not lamentations concerning a dead teenager, nor dismay about the civil unrest the whole thing – our “process”, let’s face it – has sparked.

No.  These are secondary concerns at best.

At least one main thing is, how will this affect Eric Holder’s political career and standing?  What’s the right thing for him to do, career-wise?  How does he balance the interests of two warring factions in such a way that he comes out on top?

Think I’m kidding?

From the Judge’s main post, one of two questions he finds interesting:

1.  Is the failure of the Missouri grand jury to indict Mr. Wilson (a) a godsend for Attorney General Holder or (b) a curse for Attorney General Holder?

It’s a profoundly cynical question.  The idea is that it’s a “godsend” if Holder can successfully make political hay out of his own department’s prosecution after the state officials don’t prosecute, solidify his boss’ political base, and so forth.  It’s a curse if it fails at that, while upsetting the other side, of course.  You know, the police, prosecutors, whatnot.

Kind of appalling.  An updated and far more cynical version of fiddling while Rome burns.  At least Nero had the excuse of being crazy.

“Simple lawyer” BDC responds with calculation:

I agree with shg that the answer to the first question is “curse”. If the Missouri grand jury had indicted, then Holder could simply point to the ensuing state prosecution as a reason for not going forward with seeking a federal indictment. Essentially, it would have given Holder an “easy out”, especially if a state court trial had ended with a guilty verdict. Now, no matter what Holder does will subject him to criticism.

Prosecutor-professor Bill Otis, highly credentialed (Stanford!!) and not to be out-cynicaled by anyone:

1. The state grand jury did no favors to Eric Holder because it left him with a lousy choice: Either cater to the President’s political base (which needs goosing, given the last election) by returning an indictment; or go with the facts, which pretty clearly establish that Darren Wilson did what any of us would have done in the same dire circumstances.

I am no fan of Mr. Holder, but I think it likely that he has enough integrity to go with the latter. To make this less painful, however, I suspect that this will get done the same way Bowe Bergdahl is getting dealt with, to wit, keep saying “we’re gathering more facts” until the clock runs out on January 20, 2017.

And former “sex crimes prosecutor” Roger:

For me, the case in Ferguson falls in that category of legally sufficient but likely to result in a defense verdict. I’ve read as much of the transcript as I could get through so far, and it seems clear that (1) there is probable cause and (2) if the jury chose to believe witnesses they would be legally entitled to believe the evidence would be sufficient to sustain the conviction but (3) knowing what I know about St. Louis County juries, the odds of them convicting a nice young officer for shooting a 290-pound dope-smoking strong-arm robber who grabbed the cop’s gun after telling the cop to STFU when nicely asked to get out of the middle of the road are roughly a million to one against. I understand why the prosecutor didn’t want to press charges in a case with a likely twofer of pissing off the cops he relies on for all of his other cases and losing at trial. I think it was BS that he hid behind a faux grand jury proceeding rather than owning the decision himself, and if I were the feds I would be inclined to pursue the case, but I don’t expect that to happen.

I guess dead teenagers and violence in the streets boil down to facile characterizations (“dope-smoking strong arm robber blah blah) and crass political calculation (a “twofer” of “pissing off the cops blah blah) when you’re a “sex crimes prosecutor”.

And Greenfield’s over there – and, mixed bag that he is, first he takes the Judge’s bait:

The first question strikes me as easier to answer. The “no true bill” from the Ferguson grand jury puts the problem squarely on AG Holder’s plate. If he refuses to present, based upon the grand jury outcome, he then ties his integrity to McCulloch’s presentment. If he pursues a civil rights indictment, as in Rodney King, he will be tarred as doing so because of racial affinity, cop hating and/or ignoring the evidence. But either way, it’s a curse to Holder.

Then, with respect to a fairly easy second question – regarding whether a prosecutor should prosecute when he only has “probable cause” or whether he needs enough for a conviction – he’s flat wrong:

The second question is harder for me, as I’ve never been a prosecutor, and I don’t know the “real” evidence available in the case. The best response I can offer is that if, as a “straight up” prosecutor, I believed that there was probable cause to pursue a civil rights violation, I would do so, do so zealously, obtain the indictment in the ordinary course and try the case with the same zeal as any other, within the bounds of the law.

Greenfield likes his “I argue either side, just pay me, wind me up and watch me go” image.  Or self image, at any rate.

Gamso’s a lot better on that question:

If I’m convinced that the evidence is insufficient for a conviction then I can’t try to indict because I would be attempting to obtain a conviction of someone I believed to be legally innocent. That would be mere harassment, a clear violation of the prosecutor’s duty to do justice.

But still not quite.

A prosecutor who prosecutes believing that he doesn’t have sufficient evidence to convict violates the target’s right to due process of law, not just his “duty to do justice”.

Is that distinction important?  Oh yes.  One way the target has a remedy; the other way he doesn’t.

Ugh.  Our profession is in serious trouble.  But I guess we already knew that.

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Death Penalty Musings

I think the death penalty, in some few cases, is the only possible just punishment.  But there’s this guy Jeff Gamso, whom I have known as a fellow blogger for a few years now, and damned if he hasn’t convinced me that the death penalty should be entirely abolished.

At least as of today he’s convinced me of it, anyway.

One thing that had always bothered me about the abolitionist position was that all of the arguments I had ever seen from that side were ultimately invalid.  If you’re an abolitionist, of course, the validity or invalidity of the arguments you’re making are at best of secondary concern.  If you’re actually representing the guy the state is trying to kill, that consideration probably doesn’t even enter your thoughts.

But briefly, the death penalty cannot per se be found to be “cruel and unusual” under the 8th amendment, or indeed under the constitution at all, because it’s implicitly authorized by the due process clause, which says the government can’t deprive you of life, liberty or property without due process of law, meaning that if you are provided with due process of law, well….

Another thing that really troubled me about the abolitionist position was its epistemological degeneracy, denying truth, justice, knowledge, etc.  I’m not going into that subject at length again here (here’s just one example), but suffice it to say that in my opinion if reaching a goal requires epistemological degeneracy it must be the wrong goal.  And in the legal system epistemological degeneracy is a menace that should be stamped out wherever it is found.

“Epistemological degeneracy”.  Apparently that’s a new phrase we have practically coined over here at Lawyers on Strike.

Moving on, though, past that self-congratulatory digression.

The wrongful conviction/innocence movement has finally bubbled up to the public consciousness.  It’s not very strong at this point, and people in the US are still puzzlingly punitive on virtually every level, but it has finally sunk in that the system gets it wrong a lot.

That realization can be built on.  The line of argument is that in the past we have had the death penalty because, like less civilized people we killed, or suffered killing, in contexts where it is not appropriate.  Just as the fight to the death has been banished from more civilized sporting events, so should the sentence of death be removed as an option from a more civilized criminal justice system.

After you build enough public support the constitution can be amended.  Lots of work but it’s the only way.  Trying to get courts to do it is both doomed to failure and grounded in disingenuous argumentation that damages the justice system and not a few unfortunate litigants who become victims of it.

There is no valid legal argument for abolition, and the abolitionists should face that and stop with less than honest argument just because it might convince this or that sympathetic judge to do something in this or that case, heedless of the damage it might cause.

So there it is:  my practically irrelevant opinion on how the death penalty should be abolished.  Why am I even offering my opinion on this subject this Thanksgiving weekend?  Cause I promised Jeff Gamso I would.

Happy thanksgiving, everyone, in case we don’t get another chance to say that before the big event.

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Food For Thought

I’d like to connect a few seemingly unrelated things, and of course I say ‘seemingly unrelated’ because I’m connecting them.

Duh.  Much explanation.

Anyway, on to it.  You might recall a few weeks ago we put a neat graphic into a post which isn’t one of our strong suits and seems really time-consuming to do but we think readers might like graphics.  Because pretty pictures.  So to save readers time instead of ourselves (much sacrifice!) we reproduce that nifty graphic here: qyisEsJ.png This, as is very easy to see (because graphics) is data tending to show that some sort of major economic-wealth-distribution-imbalance shift occurred in the 1980’s.

Were there any shifts in the justice system that might be consistent with the shift in the data represented by the graphic?

Oh, yes.

First we had this famous (or infamous, depending) “trilogy” of cases coming out of the Supreme Court that enhanced the use of “summary judgment”, whereby a judge can basically deny the little guy a jury trial against the big guy in violation of the little guy’s rights under the 7th amendment, which is what they like to do.  And you don’t have to take my word for this because a law professor – a law professor! – agrees with me.  Her name is Suja Thomas and she talks all about it here:

sujathomas

I’m way graphic today.*  Normally I just would have linked to the article but it seems most readers are just not up to the external link/clicking thing so because I want even those lazy pieces of shit to understand the post here I just implanted it.  I hate myself for it, of course.

Moving on.  Wanna know something else that happened in the 1980’s?  The United States Justice Department staked out the position that they could lie and cheat to get an indictment and that wouldn’t violate anyone’s due process rights.  Although they didn’t really approve of this.  At least not openly.  In any case they took the position, somewhat stealthily, that even if they did it, courts had no power to dismiss indictments. Don’t believe me?  Here’s the relevant excerpt from the Anti-trust division’s Grand Jury training manual from 1991:

partialsgdecpdf

The Criminal Division took a very different view of “Grand Jury abuse” in 1983:

1983man

You might have to “view” – “rotate clockwise” to read that one.  This graphic stuff much trouble.

So.

In the 1980’s, a couple of Supreme Court opinions made it easier for preferred litigants (bank government, insurance company) to get any cases against them dismissed without a trial, and another Supreme Court opinion or two, not to mention a stealth campaign by the US Department of Justice,  made it easier for the most preferred litigant (the government) to avoid having cases in its favor dismissed without a trial.  And then we had an explosion of incarceration and wealth inequality.

Coincidence?  What do you think?

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*  This graphics thing isn’t working well at all.  As far as I can tell, all that shows on the post for the pdf files is a link.  Maybe it won’t treat a pdf file as a “graphic”.  Apologize for any confusion.

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Toobin The Clueless

I don’t want to pick on Jeffrey Toobin.

But, OK.

Has there been a decline in the “need” for lawyers?  Sure, if what you mean by “lawyers” are those who work for the large firms or the government.  We went over this about a year ago.

But if what you mean by lawyers are advocates for the screwees, and not the screwers, there has never been more of a need.  Well, that might be hyperbole, but the thought is there.

So Toobin pens this essay in the New Yorker (h/t Judge Kopf) in which he opines:

The rational response to economic developments of this kind would be straightforward: in light of the plunging demand for new lawyers, there should be fewer law students attending fewer law schools.

Or perhaps the “rational response” is that we don’t need any more Ivy League debutantes feeding at the same trough.  But when Toobin thinks of “lawyers”, the world outside of Ivy League debutantes is not worth considering.  So where does he wind up?

As with law firms, the top law schools are doing fine. Graduates of the most highly regarded institutions may not have the cornucopia of options that their predecessors enjoyed a few years ago, but few, if any, will go jobless. These students have large loans, too, but they’ll be able to repay them. As in days past, they will migrate to the big firms, where, by and large, their prospects are bright. And the cycle will continue: the rich (in credentials, at least initially) prospering, and the poor struggling. So it goes for lawyers—and, it seems, for everyone else.

In other words, in a political justice system world in which the losers are already largely dispossessed, the answer is……dispossess them completely.

Brilliant, Jeff.  They teach you that at Harvard?

Of course, we explored this issue far more thoughtfully in February of 2013, among other places:

There is a lot of work that lawyers should be doing.  And it is true that at present it doesn’t pay, so it doesn’t get done.  That doesn’t mean that it will always be that way.

These people need legal help, for example.  Can’t see any money in it for the lawyers, though.  Not in the short term anyway.  But there could be, later on.  It really depends on what judges do.  And a lot of things are like that.

If judges started doing their jobs, which is applying the rules of law even-handedly instead of toadying for the rich and powerful to whom they owe their positions, legal work for the poor would wind up being effective, rewarding and remunerative.  And then there are a lot of lawyers to do the work.

Of course, no one is quoting me in the New Yorker, because I didn’t go to Harvard.  Self-reinforcing loop, doncha know.

Carolyn Elefant is addressing the issue (h/t Greenfield).  Not nearly so well as we have, I think.  But better than Toobin, at least.

It is the pervasive bias of the judiciary that has brought the practice of law to ruins, and we don’t think that’s too strong a term.  It is not an insurmountable problem, although that surely does not make it easy.

Lawyer strikes remain the only viable answer, but the logical subset of the profession to make that idea go is the criminal defense bar.  They are the most obviously and routinely screwed over, the lowest status and the least feared by the judiciary.  All of that going together like peanut butter and jelly, of course.

And there is also this:  the better natures both of most other lawyers and even a good portion of the judiciary, in my opinion, would be sympathetic.  Not their worse natures, but then that’s what the best kind of persuading is about:  getting people to act on their better natures, not their lowest.  I suspect support might come from some unexpected quarters, people who might be influential but can’t – or won’t – take the lead.  Maybe even Toobin.

Well, okay, but maybe someone sort of like him.

There is yet time, obviously.  The United States has not yet devolved into a 3rd world civil unrest plagued backwater.  And what a massive failure of the legal profession and the justice system if it does.

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Chicago Intrigue

Sometimes you have to piece things together a bit.

A few months back we had some contentious exchanges (see here, plus the whole comment thread if you like) with a police officer turned author and, let’s face it, cop party line mouthpiece named Martin Preib, who is in on the ground floor of the budding ‘wrongful exoneration’ movement.

There are powerful interests at stake.  Mostly these interests are law enforcement, and like all powerful interests they have resources and the ability to organize and coordinate.  You could call it a conspiracy, although that’s not my preferred term.

In any case, this whole Anthony Porter-Alstory Simon cluster-fuck is heating up again in the windy city (registration required), generating a little (very little) traffic over here.  If you’re interested in the details it’s outlined in the linked article.

What’s important here, though, is this part of the article:

But to say so — to call this yet another example of law enforcement screwing up — is to contradict the cherished narrative of Simon’s supporters, a narrative that says Simon is a victim of the innocence movement, railroaded into prison by critics of the justice system and their media handmaidens who wanted to erode public confidence in the death penalty by proving Porter was innocent.

And, to be sure, the reason this case is still worth front-page headlines 15 years later is that Porter’s spectacular exoneration sparked the doubts about capital punishment in then-Gov. George Ryan. Those doubts led to a moratorium on executions, to the mass commutation of all death sentences in Illinois and, in 2011, to the abolition of the state’s death penalty.

And the reason that two attorneys known for defending law-enforcement officials took up Simon’s case and that one of the attorneys who defended the legendarily brutal Chicago police Cmdr. Jon Burge is bankrolling an upcoming documentary about Simon is to advance the cherished narrative.

(Emphasis supplied.)

Featuring prominently in all this is an attorney named Terry Ekl.

I don’t know Mr. Ekl personally, but here he is representing Michael McFatridge in the United States Supreme Court.

We talked a little about Mr. McFatridge hereSomeone else talks a little about Mr. Ekl here.

After Fields v. Wharrie and Whitlock v. Brueggemann out of the 7th circuit, it appears that Chicago is ground zero in the wrongful conviction wars.  One side is very active and organized with strong support; the other side apparently has no organization at all and works ad hoc.

But most distressing to us is that lawyers elsewhere should be very aware of what’s going on in Chicago, but as far as we can tell we’re the only ones.

Ugh.

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Death With Dignity

I don’t think there’s anyone or anything to prosecute here.  In other words this isn’t something for the penal law to deal with, in my opinion.

It seems so sad, and unfair, for a young woman to suffer and die.  Far be it from me to second guess Brittany Maynard‘s decision.  Her situation was hopeless.

I don’t have a lot of experience with death, and it’s a difficult subject.  But what little I have doesn’t seem to lend itself to the term “dignity”.  The process by which the body deteriorates and expires doesn’t appear dignified to me, and that’s one of the reasons people dread to die.

Then again, like a lot of things I have little experience with, but which nevertheless strike me as interesting or important, I have indeed devoted considerable thought to death.  Maybe that’s all right.  Some things are better understood through contemplation than with observation.  As far as that goes, I can’t express the thought any better than Soren:

I have disciplined myself and keep myself under discipline, in order that I may be able to execute a sort of nimble dancing in the service of Thought, so far as possible also to the honor of the God, and for my own satisfaction…Do I enjoy any reward? Have I permission, like the priest at the altar, to eat of the sacrifices? . . . That must remain my own affair. My master is good for it, as the bankers say, and good in quite a different sense from theirs. But if anyone were to be so polite as to assume that I have an opinion, and if he were to carry his gallantry to the extreme of adopting this opinion because he believed it to be mine, I should have to be sorry for his politeness, in that it was bestowed upon so unworthy an object, and for his opinion, if he has no other opinion than mine. I stand ready to risk my own life, to play the game of thought with it in all earnest; but another’s life I cannot jeopardize. This service is perhaps the only one I can render to Philosophy, I who have no learning to offer her, “scarcely enough for the course at one drachma, to say nothing of the great course at fifty drachmas” (Cratylus). I have only my life, and the instant a difficulty offers I put it in play. Then the dance goes merrily, for my partner is the thought of Death, and is indeed a nimble dancer; every human being, on the other hand, is too heavy for me. Therefore I pray, per deos obsecro: Let no one invite me, for I will not dance.

No slogan, such as “death with dignity” can capture the enormity of what happened to Brittany Maynard and those who loved her, yet that is the fate of all of us, more or less, sooner or later.  Some people are offended by their own mortality, which is the flip side of the “I don’t want God to be God, I want to be God myself” coin.  If there is any dignity to be found in death it’s not because someone makes a choice about it – for in the end none of us has one – nor in some law passed by the state of Oregon that can’t change that simple reality either.

If I had to find something dignified, it would probably be the dying person submitting to fate and giving the death – and therefore the life that preceded it – meaning.  Much meaning.

I have no basis to say that Brittany Maynard didn’t do exactly that.  And maybe the wider discussion about death and its meaning is her dignity in all this.  But reducing her suffering and death to a political slogan just seems an unnecessary final indignity to me.

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Aquinas Football

I could go on and on about this.  Full disclosure:  I am an AQ alum.  Not that it matters, really, as I imagine you’ll soon see.

Briefly, Aquinas has been dominating local high school football for about a decade, which is an accomplishment but then we, and everyone, tend to make too much of it.  Football is a sport, an often meaningful one, but proper perspective on it, and other sports, and celebrity, and other things, has been thoroughly lost in the last, oh, 50 years.

But I digress.  For further information, if interested, here’s the AQ Football Facebook page.

Anyway, this year, a controversy erupted because a player on the team was, as later determined, arguably ineligible to play in the first “playoff” game, the playoffs in many ways having become little more than a speed bump along the AQ football team’s ultimate triumph over all comers.  And so even though AQ won the playoff game officials declared the game forfeit and disqualified AQ from further participation in the playoffs, ending AQ’s season and winning streak.

That’s one way to end the monopoly.  Probably not the best way.

So the officials were taken to court, as they can be but rarely are, and one reason it’s so rare is that the law is highly deferential to “officials” who make administrative determinations.

And it all went before a judge and he sided with the officials.  Which, normally I’d say this was standard operating procedure (the government wins) but this time I’d have to say Justice J. Scott Odorisi rendered a very thoughtful, and even sensitive opinion reaching a largely unexceptionable result.  The result was basically in the cards, because all the officials really need under the law is a rationale for what they did that isn’t something in the nature of lunacy.  And this they had.

So you can read a little more here, if you’re interested.  And the opinion is here.  And I don’t expect anyone other than a lawyer, and a Rochester New York lawyer at that, to be interested enough to wade through all that.

But there’s one thing that bothers me about the post hoc spin from the newspaper article, to the effect that this was all the fault of the Aquinas staff, that the rules were well known, that there may have been some gamesmanship involved where Aquinas was attempting to take advantage by concealing from opponents whether that particular student would play – which, if true, I myself would find highly objectionable: gamesmanship by the perennial champions is quite unseemly and lacking in graciousness and good sportsmanship, and for that reason alone I would have no issue with the outcome here.

But back to the one thing.  Apparently the whole flap was started by a phone tip, after the forfeited game, to the “officials”.  And unless I have misunderstood, the officials admitted they knew who the phone tip was from but declined to reveal the person’s identity.  And Justice Odorisi apparently went along with that.  And that was the event that started the ball rolling for officials determining that a football game that had already been won had to be forfeited.  Which is, let’s face it, a pretty dramatic thing for officials to do.

Thus the post hoc spin is especially hollow:  the Aquinas coach and athletic director should shut up and “own” their mistake?  Fine.  The caller and the “officials” should own that phone call, too.  And no one’s calling them on that.

Except us over here at Lawyers on Strike, apparently.

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