On To The SCOTUS And Thanks To Norm Pattis

All right.  Welcome to the many readers generated by the link to Radley Balko’s Agitator.

Since I am no longer in a position to be sending motions down to the Supreme Court of the United States, having no office and being a refugee in Canada, I am eternally grateful for the participation in this ongoing saga of Norm Pattis, who has agreed to co-counsel with me on a long shot, last ditch application for the Supreme Court to re-consider the habeas corpus petition I filed there last year.  It is viable to ask for federal habeas corpus relief so long as Sephora is “in custody”.  In federal practice parole – or post release supervision – counts as being in custody; and Sephora, who is on post release supervision, is therefore in custody.  Until March of 2012.

Moving on then.

Like everything with the SCOTUS it’s very complicated.  First question is, can a motion even be brought at this point?

Maybe, maybe not.  I hope so.

It’s not so much the outrage; it’s the issue presented, which is an outrage in and of itself.  The SCOTUS is the only court that can fix it.  Do they want to?  Dunno.

The Petition was an “original” petition for habeas corpus, brought in the SCOTUS directly, and not on appeal from another court.  According to the Court’s rule 20.4, such petitions are “rarely granted” – this coming from a court that rarely grants anything.

And of course it’s an understatement.  The last time the SCOTUS granted one was 1925.

Under the Supreme Court’s rule 17.2:

“The form of pleadings and motions prescribed by the Federal Rules of Civil Procedure is followed.”

Under F.R.Civ.P 60(b)(6), you can ask a court to reconsider a previous order or orders.  Such as the orders denying the petition and the petition for rehearing last year.

But there’s a problem.  Rule 17.1 says that:

“This Rule applies only to an action invoking the Court’s original jurisdiction…”

One would think that an “original” habeas corpus petition would invoke the Court’s “original” jurisdiction, but one would be wrong.  A habeas corpus petition originally brought in the SCOTUS is nevertheless entertained under the court’s appellate jurisdiction.

Don’t ask.

So we have to try to tackle that problem first, and this is how we’re trying to do that:

 

Then, there is the proposed motion itself.  Next post.

 

A Guilty Conscience…

is a tough thing to live with. Even psychopaths feel a twinge of it now and then.

There’s been a lot of activity on this blog – and about the blog – over the last day, owing to a comment or two I made over on the Volokh site.

Then there was this pseudonymous comment about it all on an obscure website called “Diary of Daedalus”, which appears to feature colorful right wing commentary that would be consistent with the prevalent views of many in law enforcement.  The comment is consistent with what has been the Livingston County law enforcement party line about the Sephora Davis matter, which largely consists of smearing your humble author:

ElSuerte:

Long story short:
Troubled teenage girl in upstate NY gets involved in some robberies and burglaries in pursuit of drugs. A lawyer decides to take this one last case before moving away to be with his wife and kids. Teenage girl is accused of driving the robbers around and is indicted…

Letter To The Occupiers

At least someone is trying to put some words to the music, although this is disappointing:

Capitalism is not a static way of life but a dynamic process that consumes everything, transforming the world into profit and wreckage.  Now that everything has been fed into the fire, the system is collapsing, leaving even its former beneficiaries out in the cold.  The answer is not to revert to some earlier stage of capitalism – to go back to the gold standard, for example; not only is that impossible, those earlier stages didn’t benefit the “99%” either.  To get out of this mess, we’ll have to rediscover other ways of relating to each other and the world around us.

 

I don’t even know what “capitalism” is, and I don’t think anyone else does, either.  I have an idea of what the “free market” is.  It is almost nothing like the currently collapsing system.  It isn’t a “system” at all.

It isn’t “impossible” to return to a gold standard.  That assertion is just ridiculous.  And maybe the first “rediscovered” way of “…relating to each other and the world around us…” should not begin with asking who is going to “benefit” over whom, whether it is the 99% or the 1% or anyone in between.  It is very much the wrong question.

But I confess the gold standard doesn’t seem to be going anywhere as an idea, and that I don’t really know how to sell it.  My thought in drafting the 28th amendment was that, if coupled with across the board 100% debt relief, the gold standard would be as appealing as it could possibly be.  At least that was one thought.  And maybe it is, which might mean that no matter what you do it isn’t all that appealing.

People complain about the plutocracy, or the plutonomy, even some of the plutocrats:

 

Bill Moyers is a smart guy, but I still think he has it backwards:  the problem isn’t that money has corrupted politics; it’s that politics has corrupted money.

Maybe a better argument is not to extol the virtues of the gold standard, but to point out the vice of not having it:  politicized money.

(h/t Clark Dever, one of my Facebook friends)

Albright v. Oliver, 510 US 266 (1994) And Prosecutor Perfidy

It’s a plurality opinion, meaning that there was no majority for any particular rationale, only for the result.  But what does that even mean?

It means Albright gets screwed, because he’s not the government or a bank or an insurance company.  Of course it means that – this is the SCOTUS after all!

But let’s pretend, just for fun, that there’s something more to “the law” than:  the government wins; the bank wins; the insurance company wins.  Just for fun.

Well, go ahead and read the whole thing if you like.  There’s an opinion by Rehnquist.  There’s a concurring opinion by Scalia.  There’s a concurring opinion by Ginsburg.  There’s a concurring opinion by Kennedy.  There’s a concurring opinion by Souter.

There’s a dissent by Stevens.

Jeff Gamso and I discussed this case a few months back.  Jeff seemed to think he knew what Albright meant:

In any event, Albright does not say that it’s OK to obtain a conviction (or even to prosecute) based on false evidence. Just that if it’s a problem, it’s a 4th Amendment one subject to the protections of procedural due process.

Well, that’s more or less what Ginsburg’s concurring opinion says.  But that’s not the holding of the case, is it?

Italian Justice

Conrad Black shows once again his blunt familiarity with a broken system:

In practice, in the United States, over 90% of criminal cases are determined in favour of the government without trial, because the prosecutors press-gang witnesses by threatening them with prosecution themselves, granting immunities for prosecution for perjury and frog-marching them into court in great numbers.

 

Unfortunately, this is the essence of it.

Given that, the outcome in the case out of Perugia, Italy is more than a little interesting as a comparative matter, as Black notes.  Whatever its other flaws, the Italian system has shown itself to be far more amenable to self-correction than the US system.

The argument that “correction” should be made difficult rests on the proposition that there’s no better chance you’re going to get it right the second time around than the first.  There is merit to this.  Were they right in Italy the first time, or the second?  I don’t really know, though I strongly suspect the latter.  The tale of “Amanda Knox killed Meredith Kercher” was preposterously lurid; believing it would require a mountain of evidence with little or nothing to contradict it.

What we sometimes have to come to terms with is that juries get it wrong.  It may be difficult to say just when this happens, but the American approach has an impervious and largely dishonest rigidity:  sure, there is a “presumption of innocence” that may not be applied elsewhere, but then it isn’t really applied here either.  It is almost completely illusory.  Nobody really believes in it.

On the other hand, the presumption in favor of a jury verdict of “guilty” in a criminal case when on appeal or in post conviction proceedings could be ranked with death and taxes in terms of certitude.  Appellate courts never second guess jury verdicts per se or explicitly; they must have some extraneous excuse to disturb one.  They almost never find such an excuse.  They almost never want to.

That there is no meaningful review of cases on appeal in the United States is quietly conceded by appellate judges themselves.

We could learn something from Italy, I think.  But I don’t think we will.

 

Scalia Testifies Under Oath

This is a true wtf? moment:

Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

“Federal judges ain’t what they used to be,” he said during a rare appearance before the Senate Judiciary Committee..

The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. “It’s not as elite as it used to be,” he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.

Scalia sees the proliferation of federal drug laws, not as a problem for the many people prosecuted and convicted under them, which of course contributes the the US being the “prison nation” it has become during his tenure.

No, the problem is that such laws and such people are not worth the federal judiciary’s time because federal judges are too “elite” for that kind of thing.  Or should be.  Or used to be.

Does insularity breed this kind of thing, or is he just like this?

I could relate this to the whole Occupy Wall Street thing, but you know, why bother?  It doesn’t need to be said for the people who are reading, and the people who need to hear it aren’t reading.

(H/T Volokh)

Paul Krugman Calls For Debt Relief

You know, the NYT resident economist.  The idea isn’t going viral yet, but when it gets into the NY Times it’s definitely going “mainstream”.

Apparently this is prompted by the OWS phenomenon, which has a lot of people scratching their heads.

But not around here.

It also has some people concerned about “mobs”, which I take it means civil unrest, which is another favorite discussion topic around here.  Predictably, these people are Republicans.  And they are in Congress.

I can hyperlink to my own old stuff on this blog all day on this subject.  Is that narcissistic?  But then if I just repeat myself all the time is that a bad sign in its own way, not to mention tiresome?

What Krugman and whoever else is contemplating the idea have to now realize and wrestle with is:  how do you do “debt relief”?  The answer that you very quickly come to is that once you start down that road, there’s no principled way to stop until you have included everyone, and all debt.  And that has to be done through a constitutional amendment, at least in the US.

But it’s nice to see some people catching up.  God, does the world need more lawyers.

Occupy Wall Street, Judge Larimer and System Failure

I notice that the angry mob hasn’t gone to Silicon Valley to protest.  Somehow, no matter how rich or prominent he got, Steve Jobs inspired widespread admiration.  Maybe it has something to do with the fact that his business involved producing real “instruments” and not murky financial ones.

I’ve talked about civil unrest before, how it is properly understood as a rebuke to lawyers and judges.  Judges especially, I think.  There’s only so much lawyers can do.  But they try.  At least Christina Agola did.

There was a mildly interesting article in Rochester’s Democrat and Chronicle yesterday:

“While the maxim, ‘If at first you don’t succeed, try, try again’ may be sound advice for everyday living, it is not always a good rule to follow where litigation is concerned,” U.S. District Judge David Larimer wrote in dismissing the lawsuit from businessman John Casciani…

From 2003 to 2006 Casciani landed his copter on a helipad behind his Webster home in The Bluffs development. But in 2006 the town passed a law prohibiting private aircraft from taking off or landing in Webster.

Casciani sued, claiming that the law unfairly targeted him. In 2009, Larimer dismissed the lawsuit, saying the legal complaint was rife with hearsay but devoid of factual allegations. Casciani also claimed he was discriminated against because he is Italian-American, an allegation that Larimer determined lacked substance.

Casciani’s attorney, Christina Agola, filed a second lawsuit after the dismissal. In his decision released today, Larimer said that the new complaint generally mirrored the first, with only several new allegations added. Most allegations “are virtual duplicates of the allegations … in Casciani I,” Larimer wrote.

The second lawsuit, Larimer wrote in a stinging opinion, “is so egregious as to be potentially sanctionable.”

There is nothing terribly sympathetic, in political terms, about a guy who insists on operating his private helicopter from his private helipad in his no doubt ample backyard in the middle of an otherwise quiet and tony suburb.  Let’s note that at the outset and then get past it.

Amanda Knox, Casey Anthony, Sephora Davis

Almost any criminal trial is going to involve a lurid tale.  The author is the government, through its prosecutor.  The story is that the defendant killed, or robbed, or assaulted, or conspired.  There was a motive, a back story.  Moral opprobrium is called for.

We have transcended gender, so we think.  But not really.

The government’s tale is almost invariably directed at a man.  On rare occasions it is directed at a woman.  On even rarer occasions, it is directed at a very attractive woman, and on those occasions it takes on a curious quality:  it becomes frenzied, and irresistible.

Why?

The short answer is, I’m not sure.  If I was, it wouldn’t be so frightening, because there might be a way to address it.

So it’s interesting to see the media take up this issue and wrestle with it a bit.  Author Nina Burleigh seems to think that in the Knox case it has something to do with Italy and their “veneration” of the Virgin Mary:

One reason for the focus on “Foxy Knoxy” to the exclusion of the men is the Italian attitude toward women. The story is rooted in a spirituality based in sex and the worship of the female. In Italy, the word “veneration” comes from Venus, goddess of fertility, called in Italian, Venere. The primeval object of “veneration” was the goddess with the power to call forth desire from men, and to make barren women fertile.

So there’s that, then.  How would you address something like this in a criminal trial?  What sort of questions could you ask prospective jurors during jury selection that might root out this primeval perspective and neutralize it?

The “power to call forth desire from men”.  It’s a subtle thing, but I’ve seen it both in life and in the law – the tendency, on a very deep and subconscious level, to find fault with an attractive woman for provoking a man to sin.  We are tempted, so she must be a temptress, and the fault is hers.  And it isn’t just men who engage in this blame-shifting;  in fact it is arguably more prevalent in women.

In reaction to this sub-rational impression, we have witnessed in the last year the advent of the “slut walk“, which makes more sense than it might seem at first blush.  The idea seems to be to get the primitive mindset out into the open where it can be discussed and seen for what it is.

Then again, what is it?  Wikipedia calls the “femme fatale” an “archetype“.

It’s dangerous to tap into the primitive impulses of human beings.  We are rational creatures most of the time, and up to a point.  But when you cross that line it gets dicey.  On an aesthetic level, transcending the rational can result in some of the most beautiful human expression, but also some of the most horrifying.  Mozart, or The Dead Kennedys.  Which will it be?  There is often no way to know beforehand.  So be careful.

Trials are always morality plays, and morality plays embody this danger – the unleashing of primitive man.  It is a step removed from the lynch mob, but there are times this is a difference in degree but not in kind.  The black man sitting silently at the defense table who does not testify is found guilty because he appears guilty on a primitive level.

And the temptress deserves what she gets, so she is found guilty as well.

I’m often surprised, even shocked, at how willfully unaware self-styled criminal defense lawyers often seem to be about the morality play aspect of a criminal trial.  It’s not about morality, or right or wrong, or truth and falsehood, or good and evil, they say.  It’s as if they are in denial that the government is seeking a “verdict” of “guilty”.

I suppose on occasion such a position might effectively change the terms of the debate in your favor, but you would have to overcome the government’s power to frame the issues in a case.  They possess that power both because of their status as the government and their status as the litigant who brings the case and makes the allegations.

Casey Anthony was able to thwart the primitive impulse to destroy her because of the excellent work of her attorney, who did not run away from the morality play aspect of her criminal trial, but rather turned that aspect to her advantage.  Amanda Knox benefited from a better justice system in Italy, at least with regard to its capacity for self-correction.

Sephora Davis?  There’s one last chapter being written, in collaboration with the government of Canada and the United States Supreme Court.

Puff Piece

As the State of New York continues its descent into banana republicanism, whither the watch dog press?

A case in point:  our anti-hero, Tom Moran.

After a “career” punctuated by lying, cheating and naked thuggery, Moran is officially unopposed in his quest for a judgeship on the New York State Supreme Court.  Apparently no one wished to risk life and limb in the effort.

There is a community newspaper in Livingston County called, appropriately enough, the Livingston County News.  They seem quite pleased with the development, though one wonders how much choice they really think they have.  Note that the “news” article features the previously noted photo of his soon-to-be-honor with the American flag tie and the American flag lapel pin, in case anyone was in doubt about Mr. Moran’s patriotic fervor.