Cop An Attitude (Update)

Whether in Mount Morris, NY or NYC:  in a conflict with power on the line, the police are absolutely shameless.  They know where their bread is buttered.  They know that as a group they are politically unstoppable.  They wield this clout for increasingly trivial and transparently self-serving reasons.  And even when any moron can see that they are in the wrong.

One back story to the Sephora Davis matter we have been discussing (beginning here, with many follow up posts over the next month) is the deep and entrenched corruption of the police in the relevant area, and particularly Mount Morris, NY – where Sephora was raped at knife point by a police informant, and where the subsequent criminal charges against her were developed before they were filed up the road in Geneseo.

Where to begin?  The Mount Morris Police Department has been notorious ever since I started practicing law in 1989.  Every criminal defense lawyer in the region seemed to know about them, including everyone way up in Rochester, some 30-40 miles away.

As it happened, certain things about that police department were coming to a head in that squalid little backwater right at the same time all this Sephora Davis stuff was going on.  The details are a bit murky for me, and remarkably there is almost nothing online about it.  It  received some, but not a lot of news coverage.  The only thing I can find now about it is the remnants of an obscure article here.

Briefly, though, the department had a chief that was implicated in all kinds of ill defined misconduct in 2004.  It’s ill-defined because everything is kept secret by the officials.  The Village Board meets in what is called “executive session” to consider such issues. The police department insists – and they have guns.

Continuing Confusion…

…generated by Albright v. Oliver, in a case scheduled to be argued in the SCOTUS on Tuesday.

The case is Rehberg v. Paulk.  Via the SCOTUS blog:

…Paulk makes an interesting observation via extended footnote:  the Court is determining whether absolute immunity applies to a civil claim that the Court has not recognized.  In Albright v. Oliver (1994), the Court declined to create a Fourteenth Amendment substantive due process claim for malicious prosecution.  Rather, the Court held that to the extent any constitutional claim for malicious prosecution existed, it lay within the confines of a more specific constitutional provision. The Albright majority declined to speculate whether the Fourth Amendment encompasses such a claim, but in a concurring opinion Justice Ginsburg strongly urged that it did.  Having prevailed on absolute immunity in the Eleventh Circuit, Paulk had no reason to challenge the Eleventh Circuit’s determination that a malicious prosecution claim falls within the Fourth Amendment. But his footnote amply makes the point that the question is hardly a clear one for the Court, albeit it one for another day.

The question “is hardly a clear one” because (among other things) the SCOTUS has only confronted it in the context of actions under 42 U.S.C. 1983, where it gets all bound up with immunity issues.  “Conflated”, the Court sometimes actually admits.

Revealing

Since we were just talking about the chattering classes, I thought I’d relate and briefly discuss a few recent comments from the Volokh site, from a post by Professor Kenneth Anderson on… oh… something or other with respect to higher education.

(By the way, that site always seems to take a long time to load, for no discernible reason.)

Now before I get into this I want to say that I think very well of Professor Anderson from what I know of him and don’t want to single him out for harsh criticism.  I am not attacking Professor Anderson; I am using something he said to illustrate a larger point not just about him, but about the class he typifies.

That would be, of course, the chattering classes.  Professor Anderson is a one percenter.  Or at least an adjunct to the one percenters.

In his discussion of the pitfalls for students who might want to broaden their areas of study from the humanities into the sciences, Prof. Anderson relates that some “very bright” students are reluctant to do that not because they don’t need to acquire the knowledge, but because it might give them a down tick on their GPA.  Casting about for a compromise solution, he comes up with “pass/fail” type science courses that humanities students can take without worrying about the impact on the GPA.  He then goes on to state:

This is why I am suggesting workarounds that might be doable at some schools, emphasizing pass-not pass minors, etc. The problem is how to manage both credential and education, in a world in which everyone understands the costs, the fantastic risks, and everyone is leveraging every credential advantage on the margin. I advise students that they have to put the credential first. It’s what I tell my daughter. I don’t like it, but I didn’t create the rules.

Well.

I brought him up on this gently, in a comment to which he did not respond, though it’s clear he’s reading the comments pretty closely.

SCOTUS Denies Relief – Woe Unto The 99%

Not even.  Doesn’t seem like it got by the clerk’s office.

So, what now?

Sephora’s still on parole, until March.  As long as she is on parole, a federal habeas corpus petition is viable.  Having slept on it, I think it’s fair to conclude that the Supreme Court is out, at least as far as any further attempts to go there directly.  I mean, I could just bring another petition down there – see Supreme Court rule 20.4(b) – but the time is too short.  They might take another month or more just to determine that they aren’t going to do anything and of course that is the overwhelmingly likely result, as it always is.

But a petition could still be brought in the US District Court in Rochester.  There are many problems with this, of course.  I’ll just mention a couple, for now.

The first problem is, it can’t be done without me, both in a lawyer capacity and a witness capacity.  Either way, I would have to physically go to Rochester.  If I do that under present circumstances, I think the risk to my personal safety is significant enough that it’s unwise to run the risk.  Unless perhaps there is no alternative.

However, this could change in the near term.  As regular readers of the blog know, I have applied for asylum in Canada, where I am currently residing.  If the application is granted, killing me during a trip to Rochester would become an international incident and expose the perpetrators to a level of scrutiny that they could not be confident of successfully evading.  The refugee hearing was held in Toronto on September 29th and a decision should be rendered within the next month.

That would still leave time to go to the District Court with a petition.

Whistling Past The Graveyard

This is fine, I suppose.  It’s certainly predictable.

Of course, people without jobs can’t pay a mortgage at all.  Being “underwater” is the least of their worries.  Balance sheet concerns come after food, clothing and shelter.

The program hasn’t worked in the last two years, so tweak it and try again.

Maybe “fiddling while Rome burns” is a better phrase.  Since we’re into the Empire thing and all.

 

Summary Execution Is Not A Joke. Hillary Clinton Should Resign.

Before I get into this even a little bit, I agree with Jeff Gamso about all this.

I don’t know quite what to make about OWS, and I don’t know quite what to make about the graphic images all over the place of the death of Muamar Qadaffi, if that’s even how you spell it, and maybe more importantly the reactions of people to the images.

It appears to have been something akin to a summary execution.  But worse, I think.  More like death from mob violence.

Secretary of State Hillary Clinton’s reaction (caught on tape) to seeing the images was grotesque and horrifying:  she channeled Julius Caesar.  The US pretensions to Empire, previously eschewed, are becoming increasingly open and frank.  This is not a Good Thing.

Back when the war in Vietnam was really intense, during what came to be called the “Tet Offensive“, perhaps the most famous summary execution in history was caught by a photographer named Eddie Adams.

The attitude of the world towards this Pulitzer winning image was quite different.  People were shocked and disgusted.  It was one of the images that turned public opinion in the US against the war.

What a difference 43 years makes.

Go back 23 years before that.  It’s a common notion nowadays that the American Army carried out summary executions against German camp guards and officers after liberating concentration camps, especially Dachau, where legend has it there was a “massacre”.  But read the link, it’s pretty well documented.  The likelihood is this never happened.  The legend appears to be a recent popular affectation.

But why?  Why has summary execution gone from being rigidly taboo; to subtly promoted through falsified historical accounts; to finally becoming the subject of official jocularity?

And I’m being kind, because the death of Qadaffi was considerably worse than a  summary execution, which is better illustrated by the Vietnam incident.  A man is captured, handcuffed, brought to the on-scene commander who without warning or fanfare put a gun to his head and fires.

This is a terrible thing, but it does not involve taunting and torture and beating and mockery, followed by a brutal coup de grace.

This is what happened to Qadaffi.

I can’t help thinking that the official descent into barbarism is always like this:  it occurs right in front of you and nobody even says anything, much less does anything.

Objecting at a time like this is important.  I object.  Hillary Clinton’s behavior and commentary was atrocious.  If any diplomat from a disfavored nation did anything comparable we would surely expect their resignation.

Same for Hillary.  She needs to apologize and resign.

The Graphic Image Ritual (Update)(x2)

So Qadaffi is dead and there are graphic photos and videos making their way around the web.

Personally, I find images like that saddening, but stepping back from the phenomenon a bit, I wonder why it has become part of the story when a corrupt leader or “dictator” is offed:  Hussein, bin Laden, now Qadaffi.

I take it it has something to do with the web, and the inability to censor such images as perhaps they used to be.  In any case, it’s now part of the routine.  Whether it’s good or bad or neither strikes me as being a question worth considering, and I haven’t seen anyone else dealing with it.

I’d be interested to know others’ thoughts.

Update:  This seems an appropriate response.  There are certain basic rules of conduct, even in war, designed to hold the line between remaining somwhat civilized even in the midst of horror, and giving over to the horror completely, descending into barbarism.  One such rule is that you don’t kill someone who is in your custody and not resisting or fleeing.  Another is that you let people bury their dead, and don’t kill them or try to kill them when that is what they are doing.

Of course, rules being what they are, maybe their are exceptions.  The UN says that “summary executions” are always illegal.  I’m not sure that there is never a justification for a summary execution.

On the other hand, I certainly agree that this is loathsome.  I don’t know what that woman could possibly be thinking.

Update 2:  Jonathan Turley weighs in, correctly I think.  (h/t John Kindley)

 

A Political Race To Watch – Doorley v. Taylor DA (Update)

In Monroe County, New York.  Forgive me for being a bit parochial, but I do think this merits attention based on themes that are independently discussed around here.

It’s the race for Monroe County District Attorney, and it pits Republican-Conservative Bill Taylor against current first assistant and Democrat Sandra Doorley.

The Monroe County District Attorney’s office has been in Democrat hands now for…well, forever.  In fact, I think the last time a Democrat lost the race for Monroe County District Attorney was 1981.

Sandra Doorley, being the current first assistant, is like the incumbent.  You would think she would have the advantage here, but there’s a lot going on underneath, and good for Gary Craig at the local D&C for coming out with an article where he at least delves into those political nether regions in an oblique way.

It’s okay, Gary.  I’m writing on a blog and I’m in Canada.  I can afford to be more frank.

The political dynamic at work here is illustrative.

Republican candidate Bill Taylor amassed a healthy campaign war chest, raising $301,172, including a $100,000 contribution from the county GOP, according to the most recent campaign disclosure. Democrat Sandra Doorley raised $97,452.

So Taylor’s ahead 3 to 1 in fundraising.  A lot of bets are being made in his favor.  But he’s coming from the outside, right?  Doorley’s a “career prosecutor” who came up through the ranks in the same office and is now first assistant.  She is heir apparent.  Why should Taylor be favored to win by so many “speaking” with their wallets?

You don’t have to look too far or think too much if you’ve been paying attention around this blog:

OWS From The WSJ And Volokh

Awright, so here’s the WSJ take in a nutshell:

Yet the Occupy Wall Street movement reflects values that are dangerously out of touch with the broad mass of the American people…The protesters have a distinct ideology and are bound by a deep commitment to radical left-wing policies…What binds a large majority of the protesters together—regardless of age, socioeconomic status or education—is a deep commitment to left-wing policies: opposition to free-market capitalism and support for radical redistribution of wealth, intense regulation of the private sector, and protectionist policies to keep American jobs from going overseas…

 

Are you scared yet?  They’re a bunch of commies!

But Kenneth Anderson over at Volokh agrees, or seems to.

These guys are out on a limb.  Nobody really knows what to make of it all at this point.  The protesters may be lefties and say lefty things, but lefties have been around the whole time and haven’t been camping out in the US financial center for more than a month.

More than a month.

This blogger seems more connected on the ground – and less sure.

Today Bill Bonner, who we quoted favorably yesterday, is stealing my ideas again and likening the whole thing to the days leading up to the French Revolution, so plaintively captured by Dickens a few decades after the events.

Maybe.  I’m not sure one way or the other.

OWS Roots In The Monetary System

Bill Bonner is a very entertaining writer.  He is also about the only writer in the economics field that occasionally diagnoses the problem the same way I do, not that he has ever been dumb enough to suggest a solution – like I have.  But then he’s not a lawyer, either.

While Bonner can just affect amusement at the whole thing, we lawyers are compelled to make suggestions.  We just do things like that.  It’s our calling.

In any case, this is from his recent e-newsletter in its entirety, called “The Daily Reckoning”:

Favoritism in the Monetary System

Bill Bonner Want to know how the rich got richer? Want to know how Wall Street made so much money? We didn’t think so. But we’ll tell you anyway. The post-1971 US dollar-based monetary system permitted an explosion of credit, which naturally favored the credit industry directly, and the entire financial asset-holding investoriat, indirectly. At the expense of the middle and lower classes. In other words, the expansion of credit, caused by a flexible, expandable money regime, set the whole economy ablaze. The middle and lower classes went deeply into debt to buy things. The “rich” — or at least those who owned stocks and bonds — got richer, as consumer spending lit up the business world, and particularly the financial industry itself. Profits from the financial industry were only about 10% of the total profits on Wall Street in 1970. By the time the credit bubble blew up in 2007 they had grown to 40%. Wages for working stiffs were flat for 40 years. But earnings on Wall Street soared. In 1970, the typical salary in the financial industry was about the same as for equivalent positions in the rest of the economy. But, by the 21st century, Wall Street salaries were nearly twice as high. People who complain about “greedy” executives and rich people miss the point. People — rich and poor — are always greedy. But they don’t always have a monetary system that encourages debt and favors investors over working people. This money system was created in 1971 by the Nixon Administration, which probably didn’t know what it was doing…and it was later perfected by subsequent Federal Reserve chairmen. In addition to stretching the gap between rich and poor, the non- gold monetary system had one other notable consequence. It undermined the working classes’ ability to compete in the modern world. This it did by moving more and more production to the emerging markets. In pre-1971 days, nations had to settle up on their trade balances. That is, when one nation sold more to a neighboring nation than it spent with it, the nation in surplus ended up with an excess of the neighbor’s currency. This surplus currency was then presented to the deficit country. The accounts were settled by transferring gold — the monetary system’s reserve at the time — from the deficit country to the surplus country.

Dust Up In The Virgin Islands

So this judge in the V.I. deals with a lying prosecutor, tries to enforce a plea agreement and gets slapped down by a higher court.  He doesn’t like it, says so in a 31 page opinion and recuses himself from the case.  (H/T John Kindley at People v. State)

The reaction of many attorneys to this story is astonishing to me.

Over at Volokh, which is pretty much an attorney haunt, many commenters weighed in on the story with the idea that the judge was out of line, I guess for speaking his mind in an opinion.

Scott Greenfield’s take is very interesting, though.  He kind of likes what the judge did, but with reservations:

In this instance, some might say that’s a good thing.  But then, if Judge Kendall can do it here, what’s to stop another judge, ordered to dismiss an indictment against some notorious bad guy, from refusing to do so because the judge is certain that the defendant is guilty?

Swimming In A Sea Of Falsehoods

When I first saw the Ashley Baker statement I didn’t immediately jump to the conclusion that it was fabricated evidence, even though I knew that Sephora was not “the driver”, and even though I knew that there had been a lot of perjury to the effect that she was.

I knew, in other words, that the supposed declaration by Theriault that “Sephora was the driver” was false, but that did not make the statement in which that declaration was contained – the Ashley Baker statement itself – a fabrication.  Maybe Theriault did say it.  Maybe Ashley Baker did overhear it.  That’s what the statement says on its face, after all.

Unless and until you become open to the possibility that you are swimming in a sea of falsehoods, the facial declarations of a written document retain a power over your mind that they shouldn’t have in that situation.  The mind recoils at the idea that what it perceives through the written word is not intended to inform or reveal to it, but rather to deceive it.

Thus my first reaction to seeing the Ashley Baker statement was not that it had been fabricated, but I was vaguely troubled by it, beyond just the falsehood of the declaration that “Sephora was the driver”.  It was a gut feeling.  But by the time I saw it for the first time, in the fall of 2006, I was more used to being lied to and it wasn’t as paralyzing.  It was more…interesting.

Still, it gives you pause.  I remember carrying a copy around with me for a few days and looking at it periodically, parsing everything about it to see if I could get a more tangible sense of why it bothered me.

A Little More On Napue – When “Facts” Are Not Facts

There’s even a little more going on in that Napue opinion.

Technically, the SCOTUS didn’t independently find as a fact that the prosecutor’s retreat, when he testified at Napue’s state court hearing, from what he had said in his earlier coram nobis petition for Hamer was simply incredible, as a matter of law.  They didn’t have to:

On appeal, the Illinois Supreme Court affirmed on different grounds over two dissents. 13 Ill. 2d 566, 150 N. E. 2d 613. It found, contrary to the trial court, that the attorney had promised Hamer consideration if he would testify at petitioner’s trial, a finding which the State does not contest here.

 

Emphasis supplied.

Once the State conceded the point there was no basis for the SCOTUS to discuss it.  But the State tried to get the win in the SCOTUS through the back door, so to speak, by arguing that the SCOTUS was bound by the Illinois State Supreme Court’s finding that the now admitted perjury had not affected the outcome in Napue’s trial.

Fair reading:  When the SCOTUS launched into the discussion of how they would independently review the factual record and make their own determinations, it was animated not just by the explicit fact finding they were discussing – that is, the determination that the perjury had not affected the outcome of Napue’s trial – but also by the outrageous lying and dishonesty of the prosecutor in the first place:  suborning perjury, exposing himself in his coram nobis petition, and then having the gall to shade his testimony at Napue’s hearing.

And more than that, it was a shot across the bow to the Illinois courts, that ridiculous “fact findings” were unacceptable.  After all, the Illinois trial court had gone along with the prosecutor’s glaring misconduct.

Napue v. Illinois And SCOTUS “Fact Finding”

I love this case, in some ways.

When prosecuting Napue for the long ago murder of a cop, the prosecuting attorney introduces a cooperating co-defendant witness named Hamer, who gives the whole supposed story.  Hamer is then cross examined about whether he’s been promised a deal by the government in exchange for his testimony and denies it.  The prosecuting attorney on redirect makes quite a show of the emphatic denials that there is any agreement between him or his office and Hamer for Hamer’s testimony.

Napue is convicted and sent to prison for 199 years.  Hamer is returned to prison as well, to serve out his sentence.

Years later this same prosecuting attorney has gone into private practice, something that happened back in the 1940′s and 50′s but never happens now.  But that’s another subject.

In any case, what does the former prosecutor do?  He files…

“…a petition in the nature of a writ of error coram nobis on behalf of Hamer. In the petition he alleged that as prosecuting attorney he had promised Hamer that if he would testify against Napue, “a recommendation for a reduction of his [Hamer's] sentence would be made and, if possible, effectuated.”  The attorney prayed that the court would effect “consummation of the compact entered into between the duly authorized representatives of the State of Illinois and George Hamer.”

What a fucking moron.  Napue gets wind of the coram nobis petition and makes a big fuss:

Proposed SCOTUS Motion

I have alluded to the legal issue several times, such as here and here.

It’s like a “loophole” that certain of the nation’s prosecutors – like Tom Moran – have been using to terrorize our own people with false criminal charges:  you can fabricate a whole case, but as long as you don’t use the fabricated evidence at a trial, you’re okay.  No one’s rights have been violated.

Public prosecutors, of course, are not supposed to use loopholes; it’s a term we associate with criminal defense lawyers and personal injury attorneys.  You know, the supposed dregs of the profession.

Anyway, this is probably quite unexciting except to the lawyers in the crowd, but here goes, and you never know: