The Unserious Approach To Ferguson – And A Serious Solution

I’m sure Eric Holder has good intentions, as far as they go. 

We’ve seen this before:  civil unrest followed by the National Guard followed by a sop from Washington, usually in the form of some high profile visit or other.  Maybe by the President.  More often the Attorney General.

On his day-long swing through the area, the attorney general was welcomed warmly at every stop.  At Drake’s Place, a soul food restaurant located a few blocks from the scene of overnight clashes, Holder went table to table offering words of encouragement to some stung by the fatal shooting and days of unrest. 

“We don’t want the world to know that’s all that’s going on here,” said Viola Murphy, mayor of the nearby Cool Valley community.

“We can make it better,” Holder told her.

 

How are you going to “make it better”, Eric?  You’ve got some kind of magic wand you wave?

We’ve said this many times:  civil unrest is an indictment of our courts and our legal profession.  Another program or edict emanating from Washington, punctuated by a media saturated visit from a high ranking official, isn’t going to accomplish jack other than maybe quelling the immediate disorder.  For now.

The serious solution, or at least one serious solution, is very simple.  Norm Pattis alluded to it the other day:

What is not written in the Constitution is the legal doctrine the courts have fallen in love with and rely upon to keep police misconduct cases from going to trial — qualified immunity. This doctrine sprung from the fertile imagination of a judiciary sick and tired of presiding over civil rights cases. It is a product of a judicial revolution no one noticed, a revolution that has effectively closed the courts to ordinary people seeking justice.

 

We at Lawyers on Strike suggested this kind of serious solution more than two years ago:

Statutes can be amended by a simple act of Congress.

So if the people of the US ever recover their gumption, they might want to browbeat their federal legislators/congress-critters into amending 42 U.S.C. 1983 to provide a few things to counteract the execrable rulings of the SCOTUS.  Such as:

1) no immunities for public officials, including judges;

2) no statute of limitations;

3) no summary judgment permitted (F.R.Civ.P Rule 56 won’t apply)

4) Make it all retroactive.

 

It bears repeating:  we have a lot of lawyers who need work.  For a long time – too long – lawyer “work” with any cache or prospect of a prosperous living has meant to become a toady and tool of the powerful against the weak:  represent the bank, the insurance company, the government.

Even so, all the unemployed and underemployed lawyers are a great untapped resource out there, and Ferguson demonstrates once again – just like the Occupy movement did – that there’s an increasingly desperate need.  What’s not to like? 

A “litigation explosion”?  Meh.  The only litigation explosion that ever actually happened was a stupefying increase in criminal prosecutions and imprisonments.  All the rest was insurance company propaganda.  We should be ashamed of ourselves for being so thoroughly duped. 

Nevertheless, however simple this serious solution is, it’s not easy.  There are a lot of conflicting and powerful interests – police unions, for example.  And as a people we don’t do difficult too well anymore.  Or at all, it sometimes seems.

There is a basic lack of discipline, I think.  Mental discipline in the first instance is required to understand what a serious solution might be.  And then personal and behavioral discipline is required to implement the serious solution.

So in the meantime there are emotionally cathartic visits by the Attorney General to the trouble spot of the day, and then when we tire of that there is Kim Kardashian.  Until the next unarmed black teenager is shot to death by a police officer at one of those odd moments that makes it a triggering event. 

The undisciplined lurch from crisis to crisis, in between long periods of indifference and indolence.  If that’s what we have become then what happened in Ferguson is just random, episodic noise, fodder for a news cycle and little else.

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Follow Up

I thought it might be a good idea, it being a recurring disagreement with SHG and there now being a judge involved, to flesh out this “role of the criminal defense lawyer” thing a bit more. 

None of us is writing on a blank slate.  Indeed, a fairly recent law review article deals specifically with differing ideas about the role of lawyers representing clients.  The article is entitled “Lawyering at the Extremes:  the Representation of Tom Mooney”, the author is Rebecca Roiphe, and it can be found at 77 Fordham L. Rev. 1731 (2009)

Briefly, according to the article “scholars” have described a few categories of thought:  the “libertarians” or “neutral partisans”, who argue that a lawyer must do whatever is legally permissible to help the client (this is the SHG position); the “moral activists”, who argue that a lawyer must work with the client to define and pursue his goals in a moral way; and a middle ground, staked out by the Model Rules of Professional Conduct (of course) where a lawyer must serve his clients zealously but also guard the integrity of the courts.

For what it’s worth, the author doesn’t seem to come down on the side of any particular view, just notes the shortcomings of all of them.  Nevertheless, reading the article I get the impression that the “libertarian” or “neutral partisan” approach – that is, SHG’s approach – is the most defensible. 

But where he and I part company is at the margins, I guess.  I think in the majority of cases you don’t have to overthink the neutral partisan position; it just works and that’s what you do.  But there are unusual situations where it doesn’t work, and it seems to me you can’t evade responsibility for your representation of a client by blaming everything you do on your duty to the client.  There are tactics and strategies that are objectionable and you shouldn’t pursue them.  You shouldn’t make arguments you think are invalid or unwarranted.  You shouldn’t mislead, ever.  I short, there are limits to the “neutral partisan” approach that vary from lawyer to lawyer and that are probably the product of, well, too many factors to delineate in a blog post.  The judgment and temperament of the lawyer, and/or the client; the nature of the case; the qualities of the forum; the strength of proof for and against.  I mean there are just too many things to consider.

I suspect that despite the bluster, SHG is largely – not entirely, but largely – on the same page.  But there is still room for big and serious disagreement, especially in a given case.  And in that sense disagree we do.  More than that, though, the bluster itself is harmful, to him and other lawyers.  I wish he’d cut it out.  Judge Kopf (and other judges) should not be led to believe that criminal defense lawyers would knowingly mislead them, or that they’ll argue anything they think they can get away with if it benefits their client.  It isn’t so.

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The Arizona Felony Murder Bootstrap

Felony murder.  Not just murder, but felony murder.  Sounds serious, doesn’t it? 

In fact, however, “felony murder” isn’t really murder at all.  The idea is that the perpetrator has agreed to participate in some felony or other –  a robbery, a grand theft auto, a sex offense – and in the course of carrying it out someone is killed.  The perpetrator who neither killed nor meant to kill is liable under the felony murder rule for murder.

One would think that this harsh rule would at least be limited to a lesser category of murder, though.  It’s criminal behavior for sure, but not remotely like intentionally offing someone.  And felony murder is an old rule.  It’s been abolished in a lot of places.  But not in the US.  And not in Arizona, where felony murder is murder in the first degree.

Indeed, in Arizona it is a death penalty eligible offense.  Of course ostensibly that’s only if “aggravating factors” are present.  But the aggravating factors requirement is a joke, a flagrant example of bootstrapping:

bootstrap, v., trans:  to make use of existing resources or capabilities … to modify … by making use of what is already present.

 

Why do I say this?

If you look at the lengthy list of “aggravating factors” provided by Arizona statute, there’s this one:

2. The defendant has been or was previously convicted of a serious offense, whether preparatory or completed. Convictions for serious offenses committed on the same occasion as the homicide, or not committed on the same occasion but consolidated for trial with the homicide, shall be treated as a serious offense under this paragraph.

(Emphasis supplied.)

 

So, when you fall under the felony murder rule in Arizona – a rule where you can be liable for a murder without killing anyone or even intending to kill anyone – the same offense(s) that bring you under the rule in the first place will also provide an “aggravating factor” that makes you eligible for the death penalty.

I think this stautory scheme is disingenuous, dishonest and violates a defendant’s right to due process of law.  Not that it matters what I think, of course.

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Ferguson, MO – Smearing And Pandering

I suppose a little should be said about this.

First, the killing of Michael Brown is a triggering event, not the real reason for the rioting and looting.  So the relative merits of justifying Michael Brown’s shooting death by a police officer are largely beside the point.  Even if you could call the shooting justified there are problems in Ferguson that transcend Brown’s killing, as Professor Turley makes abundantly clear in this post.

Second, Greenfield is quite right about the effort to smear the deceased, and I think it’s just more fuel on the fire for the police to release the video.  Bad judgment, even if you think the video supports the view that the police claim.  Releasing it has had the predictable result of provoking further rioting in response.  Moreover, this is a revealing series of events about the mindset of the police:  even their style of “argumentation” tends towards efforts to overpower.  The lack of subtlety in a situation like this is….disturbing.  And counter-productive.

And I appreciate SHG’s link to Judge Kopf’s blog post, not least because of the truly frightening anomaly that I agree with a federal judge on both counts. 

Beyond that. however, two observations about SHG here:  first, for whatever reason he’s gone a bit off the rails on this one.  Despite the stupidity of releasing that video, it is certainly relevant to the claim that the police officer shot after being attacked.  Arguing otherwise is untenable.

Second, there’s this table-pounding, unequivocal – and one can therefore conclude questionable – assertion:

I would throw whatever I could at the case if I was repping Wilson [that is, the police officer who shot and killed the kid - ed.]. Not because it was relevant, or that its prejudice didn’t outweigh its probative value, but because my sole duty is defend my client, reason be damned.

But that’s because I’m a defense lawyer. My duty isn’t to the public, or truth, justice and the American way. If pandering to stupidity and emotion serves my client’s interest, I’m obliged to do so.

I’m not saying Greenfield is wrong here, exactly.  Maybe all I’ll say for now is that first, it sets forth a false dilemma:  how can you know for sure in advance that “pandering to stupidity and emotion” serves a client’s interest?  It’s not impossible that it could, but more importantly can’t SHG understand that even if it’s true, stating this openly – and to a judge no less – is virtually destroys his credibility?  Is he now going to appear in front of juries and argue stuff, when a juror has probably looked up his blog, read that quote, and not unfairly concluded based upon it that he can’t trust anything SHG says?

And when he says that all defense lawyers believe that, isn’t he potentially hurting them and their clients also, by discrediting them in advance?

This is a big problem, and not just for SHG.  SHG should address it, methinks.

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Was Robin Williams Brain Injured?

I don’t want to dwell on this, but there’s been so much noise about this latest celebrity suicide I thought there should at least be some discussion, somewhere, that might be worthwhile.  At least for some people.

It’s just my opinion, of course – although it is perhaps a bit more informed than most – but I believe that any person who exhibits symptoms of  psychological or psychiatric disturbance should be neurologically evaluated for brain injury.

Brain injuries, as we are learning from things like former NFL players who commit suicide for no apparent reason, are extremely common.  Extremely.  Very extremely.  In fact, in my opinion a significant percentage of the people reading this post have at least some limited form of brain injury.  I may have a brain injury without knowing it, and so might you.  These are scary thoughts in a way, but it’s the truth.

What happens to people with brain injuries?  Well, read a pretty good summary here.  Compare the kinds of problems brain injured people have with problems associated with various kinds of mental illness.  There’s a good deal of overlap that can be discerned immediately, but things like depression, mania, lack of impulse control, Parkinson’s should jump right out at you.

Greenfield put up a good post about mental illness in relation to the Robin Williams suicide.  But nobody that I know of has mentioned the possibile role of an undiagnosed and unknown brain injury in many aspects of Robin Williams’ personality, including his suicide.

One reason I think it’s important to mention this is that in recent years some promising treatments for brain disorders have been developed, in particular neurofeedback therapy, where it’s possible that the brain can be re-trained to function better essentially through playing a kind of video game.   This is, of course, non-invasive and non-pharmacological. 

People might not be so tempted to make harsh moral judgments, as has apparently happened surrounding Robin Williams’ death, if they realized not just that there might have been psychological or psychiatric issues, but physical brain issues over which no one has any control.

 

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Shepard’s Off The Wall ‘Warning’ Re: Mooney v. Holohan, 294 US 103 (1935)

With apologies, probably only lawyers will really understand this post.  Nevertheless, on to it.

Shepard’s is this service that’s been around for a log time helping lawyers to find cases (usually published opinions from appellate courts) dealing with a specific subject, where those cases have been cited by other cases, whether the citations are favorable or unfavorable – and very importantly, whether a case has been overruled and is no longer good law.

In recent years of course all these functions have been computerized and data-based and Shepard’s is primarily an online tool.

So recently I was checking Shepard’s for any recent developments relating to a case that’s been pretty important fodder for discussion around here for quite some time:  Mooney v. Holohan, 294 US 103 (1935).  That’s a US Supreme Court case.

And Shepards contains a warning that Mooney has been “abrogated”.  The warning then directs the reader by hyperlink to an unpublished opinion from a case in an intermediate state appeals court in Arizona – State v. Branch, decided April 17th of this year.

This unpublished opinion maintains that while under Mooney the prosecution’s knowing use of perjured or false testimony in a criminal case is a denial of due process, Mooney has been qualified to include a “materiality standard”:  that is, there is only a denial of due process of law when the perjury or false testimony affected the outcome of a criminal trial.

Two things about this.  First, it’s not true.  Mooney has never been limited or qualified, and we can hope never will be. 

But second, how can Shepard’s issue a “warning”, complete with the red stop sign symbol, that a US Supreme Court case has been “abrogated” by an unpublished opinion from an intermediate appellate court in Arizona?  State intermediate appellate courts don’t have the authority to limit or abrogate US Supreme Court precedents. 

Who is running things over there at Shepard’s?

 

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Rich Man, Poor Man

This article is actually more than a little disturbing.

The author appears to be advancing the thesis that manning up and taking responsibility for your situation in life is the key to success, while the unsuccessful are inclined towards superstition and voodoo.

But there’s an unpleasant reality hiding underneath the condescending pep-talk:  you might just as easily, or more easily, come to the conclusion from reading the article that the rich are self-satisfied, oblivious to how fortunate they have been, and prone to blaming the poor for their poverty.

Are there people who are entirely self-made millionaires, who have made their fortunes with no breaks, no help along the way from anyone?

No.  A little humility is called for, not that you’d glean that from the article.

Are there, on the other hand, people who are impoverished entirely without error in either act or omission?  A pure victim of circumstance, as Curly used to say?

This one is a little easier for me to believe in this or that case, just based on anecdotal observation.  But for the most part, I’d say the answer to this question is “no” as well.

The disturbing thing is that on the moral, and maybe psychological level, the rich and the poor are exactly the same:  both are entirely ego driven.  The rich indulge their egos by imagining they have arrived at prosperity solely because of merit; the poor spare their egos by ascribing their poverty to the cruelty of fate, or the fates if you prefer.

Neither is anywhere near to being correct.

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