Good For Detroit

After the financial “industry” has gutted real, actual productive industries everywhere, but nowhere so much as the Motor City, Detroit is succeeding in putting the shoe on the other foot:

The loudest grumbling has come from some creditors which stand to lose big money if Rhodes approves the bankruptcy plan. Bond insurer Syncora Guarantee has said its claim is about $400 million and that Detroit has unfairly discriminated against financial creditors.

 

High stakes gambler Bond insurer”.  Please. 

I’m not under any illusions that the public employee pensioners – probably the biggest players in Detroit’s bankruptcy – are paragons of economic virtue, but as between them and bond insurers I have no quarrel with a brush cut for the former and shaved heads for the latter.

Of course after this there will be a flurry of legislative proposals to “reform” municipal bankruptcy law, sponsored by the usual suspects – JP Morgan Chase, Citigroup, etc.

But you take your comfort when whatever small measure of justice happens in this world.

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Wrong

A while back an old lawyer I know was quoting an even older lawyer, to the fanciful effect that obtaining a criminal conviction is a well-nigh impossible task, what with the insuperable burden of proof – beyond a reasonable doubt – and the requirement of convincing 12 people unanimously.  The prosecution, it was concluded, should never win a case.

A sentiment contrary to observable fact, when one considers that prosecutors almost always win convictions.

Is this a problem?  Why, yes indeed it is.  There’s a fairly simple, though not entirely verifiable, statistical reality at the bottom of the criminal justice system in the United States:  the input – that is, what the relevant ‘law enforcement’ agency sends in for ‘processing’ – is correct or substantially correct about 75-80% of the time.  The whole purpose of the processing – that is, all the prosecutors, lawyers, judges, jurors, trials, appeals, post conviction collateral proceedings and so on – is to catch that other 20-25%.  All of it.

The system does a terrible job of this.  Absolutely terrible.  Abysmal.  And as a result, and other than war, this is the most immediately frightening and destructive thing the government does:  prosecuting people for crimes.

Why?  What’s wrong?

Let’s get back to that Department of Justice Grand Jury Manual thing.  You know, the guide book for federal prosecutors presenting cases to Grand Juries, not to obtain convictions but to obtain indictments, which in general must precede a conviction, which in turn are readily obtained by prosecutors, nationwide.  We talked about this before.

In 1983 the manual dealt in a rather cursory way with the “due process” problem of prosecutor misconduct in knowingly presenting perjured testimony to a Grand Jury.  It was a cursory treatment because the mostly unambiguous instruction was that indictments obtained with such testimony would be dismissed, citing the 1974 case of United States v. Basurto, 497 F.2d 781 (9th Cir., 1974):

Importance:  In Basurto, prosecutor did not become aware of perjury until after indictment (but before trial); indictment was still dismissed.

 

By 1991, though, the DOJ Grand Jury Manual said this:

A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

 

What happened between 1983 and 1991?  Well, one thing that happened is that we elected Reagan POTUS and got Ed Meese as Attorney General.  Then we got some very prosecutor-friendly Supreme Court Justices:  O’Connor, Scalia, Kennedy.

But there’s more to it than that.  After all, had the law changed?

No.  Prosecutors don’t get to deliberately use perjury to obtain a conviction.  I suppose you could respond that no one said they couldn’t deliberately use perjury to obtain an indictment, but what are they going to do with the indictment thus obtained?  If they can’t get a conviction with it, the only thing to do is dismiss it, right?

But let’s back up a bit further, to the “due process revolution” of the Warren SCOTUS.   By most accounts the revolution had run its course by 1969, but 45 years later it remains “controversial”.  Wikipedia says so.

Why the controversy?  “Conservatives” complained about “handcuffing the police” with all the procedural rigmarole.  Did they have a point?  Yeah, maybe.

A crumb, a morsel.

Nah.  On to larger issues.  Let me get too abstract for just a moment, because at the moment I can’t think of any entertaining or creative way to express the particular thought I am thinking.

We have procedures, but the procedures are not about themselves, obviously.  They are about the “substance”.  The substance-procedure distinction is one of those large ideas.  You would think it doesn’t come up very much, but you’d be wrong.  Thus one of the most contentious areas of the law is “substantive due process” which you may notice, based on what I just wrote, is something of a contradiction in terms (Justice Scalia specifically called it an “oxymoron”) because substance can’t be procedure and vice versa, but “substantive” = substance and “process” = procedures, so substantive due process ought to prompt nothing but eye rolls, but it doesn’t.  And it shouldn’t.

Why do I say that?

The show trial courts of Stalin’s Russia followed their procedures pretty well, by many accounts.  But there was no “there”, there.  No substance.

I guess one way of putting it is that the purpose of procedures is to make the substance intelligible and orderly, but if the substance can’t be made intelligible in the first place because, say, it’s all phony made up crap then crossing all the procedural ‘t’s and dotting all the procedural ‘i’s doesn’t matter.

Or, put another way, the procedures serve the substance and are subordinate to it.  You can have substance without the procedure, but you can’t have a meaningful procedure without the substance.

So what is the real and more thoughtful objection to the Warren Court “due process revolution” – more thoughtful, that is, than saying it “handcuffed” the police?  Just this:  that it inverted the natural, rational hierarchy and made procedure superior to substance.  As I’ve said before, I’m not the only one who has pointed this out.

I recently came to Justice Scalia’s defense – not really, but it might have seemed that way – in a comment over on Turley’s blog, when another commenter was excoriating the apparent Scalia position that the execution of a factually innocent person who had received all the procedures the Constitution provided was okay with him.  But I summed it up this way:

  1. People are justified in being appalled at the idea because ultimately Scalia is wrong, and wrong in a serious matter. But it’s also a symptom of the larger problem that the justice system has been too good at abdicating its essential functions, one of the most prominent of which is to ensure the innocent are not punished. The reason a meritorious innocence claim winds up in federal court on habeas corpus in the first place is that the state courts have failed in this essential function. The idea that the federal court should just punt it back to the state that has already failed is fatuous. Somebody has to be responsible in the end, and in the end on a matter like this the federal system must act as the failsafe. That’s my opinion, probably not Scalia’s, although he wasn’t directly confronting the question there. As far as it goes, he was merely stating a fact: the SCOTUS has never ruled that the constitution forbids the execution of a ‘legally” guilty, but factually innocent person.

Everybody makes mistakes.  But it’s a special type of mistake when we refuse to recognize it as being mistaken, even when it’s obvious.

I’m bringing all this up because there was a post the other day on SJ to the (also fanciful) effect that what ails the justice system is shitty defense lawyering.  And so presumably this can be fixed by good defense lawyering, which means SHG and his friends and his spawn, if any such there be.

There may be some shitty defense lawyering out there.  That was hardly the point of the article SHG cited – which had more to do with funding indigent defense, not lamenting its poor quality – but it’s SHG’s point all the time.  Too often, really:

That’s where Jeff picks up the story, and why Jeff rightfully puts the blame on the last person standing between the government and the defendant.  Even if every other player in the system fails, the burden remains on the defense lawyer to make up for it.  Sucks, I know, and a very heavy responsibility.  It’s too much for most lawyers, which is why most lawyers have no business standing in the well of a criminal court.

 

“Jeff” didn’t single out defense lawyers for “blame”.  That’s a distortion, and overall SHG’s take on the whole thing seems a bad case of confirmation bias.

But forget the article.  The SJ post is just another variation on a very tired theme:  SHG, or lawyers like him, are the solution to what ails the system.  This is wildly implausible:  the change in the DOJ Grand Jury Manual from the 1983 version to the 1991 version; the explosion of criminal prosecutions and the US prison population; the near certainty of conviction at trial with conviction rates exceeding 95%; the vanishing trial and ‘trial tax'; the futility of appeals and post conviction remedies; the Anti-Terrorism and Effective Death Penalty Act of 1996.

SHG probably started out practicing law right around 1983.  Does he, and more specifically his professional self-concept, bear any responsibility for these deleterious systemic developments, all of which occurred on his watch?  If he doesn’t bear at least some small share, who would?

Beyond that, is performing the same act over and over going to yield a different result?

Innocence does not matter.

Our job is only to defend.

We game the system to ‘win’, every single time.

There is no such thing as justice, or truth.

 

These are essentially a sales pitch (to potential clients), with a kernel of thoroughly impoverished pseudo-philosophy (“everything’s relative”) woven in.  So you posture this way and maybe it gets you a few clients and you do a good job for them – although most of the time that doesn’t make much difference – but the result to the system as a whole is – well, what I just told you.

Has it been worth it?  You have the occasional acquitted client, I’m sure.  How many others have been convicted who otherwise would not have been, though?  The statistics over the last 30 or so years suggest the numbers may be substantial, but ultimately that’s one of those questions we’ll never be able to really answer, but nevertheless deserves a little thought.  Maybe more than a little.

The elevation of procedure over substance leads directly to institutional and systemic incoherence.  Like war and pestilence, institutional incoherence can have short term benefits for some.  But if you’re one of those few, don’t expect admiration and respect from the much larger group of people on the receiving end.

Not that that’s the main point.  I don’t know.  Let’s see if I can drive the point home, starting with  a post from a few years ago on SJ:

True believers usually end up having problems as a criminal defense lawyer.  When people push the “factual innocence” button, they almost always miss the boat.  We don’t defend because our client’s are innocent.  We defend because they are accused.  Our job is to test the government, not to do justice…The prosecution side, including the police, exist to do justice, and justice means both substantive and procedural.  They are equally responsible for keeping innocent people out of jail as putting the guilty in.

 

That’s the familiar little ditty played over and over on SJ.  And elsewhere.  But SHG and the SJ posse are keeping some dubious company:

Investigators believe Witherspoon then raped the girl who was not conscious enough to stop the attack.  Witherspoon has hired well-known defense attorney John Parrinello to defend him.

Thursday, Parrinello revealed a potential line of defense in the case. He said prosecutors will have a hard time proving Witherspoon used Ambien to sedate the girl.

“None was found in her system,” said Parinello, “and if there were any sexual activity between the two, it was purely consensual.”

Livingston County District Attorney Tom Moran said, “Mr. Parrinello and I have totally different ethical responsibilities. Mine are to seek justice; his are to do everything humanly possible to get his client off.”

 

This is from a local Channel 13 news interview (scroll way down, about 7/8th of the way to the end, to see the actual story) dated September 30, 2004.

Notice how Moran – who’s a psychopath, by the way, but that’s another subject – is using the very same ideas – indeed the very same words – expressed by SHG to discredit another defense lawyer, and that lawyer’s case, and his client. 

Multiply 10 thousand fold, since of course Tom Moran and SHG are not the only adherents to the dogma.

It goes without saying – or should – that this whole outlook is a fairly recent affectation in the profession.  Consider this quote, dating from the 1940’s and obtained second-hand from a 1999 Fordham Law Review article:

 

The difference between the true lawyer and those men who consider the law merely a trade is that the latter seek to find ways to…violate the moral standards of society without overstepping the letter of the law, while the former look for principles.. within the limits of the spirit of the law in common moral standards.

 

Maybe that’s going too far in the other direction, but still:  we’re left with the disturbing question of how much the more recent affectation has contributed to the widepread collapse or at least demoralization of criminal defense lawyering, and the cascade of prosecution friendly developments that have characterized the criminal justice system since, oh, about 1980.

Again, probably about the same year Scott Greenfield began his legal career.

It’s a big and important question, methinks.

I won’t be posting for a while.  Busy.

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Filed under Judicial lying/cheating, Media incompetence/bias, Striking lawyers, wrongful convictions

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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