Monthly Archives: January 2013

The Feds In Philly..

must have better things to do than this.

If not, there’s plenty to do in New York City.  They should move most of the staff up I-95 a ways.

The decision making of the United States Justice Department is perplexing sometimes.  I’d like to think it’s just incompetence and incredibly bad judgment and decision making by those in authority.

But the reality could be a lot worse.

 

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Rolling Jubilee II

It seems like so many other efforts at alleviating the worst aspects of the financial crisis – which is of course at bottom a rule of law crisis – the “Rolling Jubilee” has little or no awareness of how the “law” having been co-opted by banksters and the government, is one of the primary subjects that should be discussed.  And thus one of the primary mechanisms by which the real problems of the financial/rule of law crisis can be effectively addressed.

Anne Larson, author of the linked blog article regarding the Rolling Jubilee and evidently a key member of Strike Debt, should begin pondering a few of the posts over here.  Like for instance this one.  Including the comments.

Evicting people by force from the place they live in is a frightful thing to do.  Particularly when there are children in the home who have no control over the circumstances resulting in an eviction, it is an exceptionally cruel act.  Or rather I would like to say it’s exceptional, but the truth is it is absolutely routine, all over the country.  It is very easy to do, in addition to being virtually the only thing outside of certain criminal processes that the legal system does in a very expeditious fashion.  Very expeditious.  Whereas almost everything else takes years, evictions are adjudicated and executed in a matter of days.

Does this not seem strange when you think about it?  Why should this be so?  Cui bono?

The threat of forcible homelessness is the ultimate tool of the creditor class, and it is being utilized with increasing frequency, and increasing brutality.  Ms. Larson talks about the “system” being “rigged” and how we need to have a “conversation” about it.  I suppose we do, but really what is there to talk about?  Take away the power to evict – which can be done by law – and you will accomplish much more than you will by buying up “debt” and abolishing it, as impressive as that effort has been.  You attack the debt “system” at its weak point, and deprive it of its most important in terrorem enforcement device.

And if you want to talk about class and race, the ease of evictions is obviously a reflection of the status of the evictees:  next to prisoners, they are the lowest status people in our society.  And the reason they are easily and readily evicted (when there is non-payment) is to protect the interests of those at the opposite end of the status hierarchy – the creditor class and their bankster sponsors.

The trick – and I know this is bound to rub a lot of people who want to do something about our debt system the wrong way, but nevertheless – the real trick is to restore property rights, not curtail them.  Specifically, property rights should be seen as more or less sacred; contract rights (and the creditor class has only contract rights over debtors) should be regarded as being far less important.

I know it is frustrating.  There are so many ideas out there about what to do.  But lawyers should be heard from more in all this.

And listened to, I think.

 

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Rolling Jubilee

Read about it here.  I might offer a few thoughts on the whole idea later, but this is a very positive development both practically and in terms of beginning an important social conversation.

 

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Reward Asymmetry II (Updated)

A little dose of reality here.  Jury verdicts are described in reverential terms and almost never “disturbed” – when it’s a guilty verdict in a criminal case.  Or when it is a “no cause for action” in a personal injury case.

Somehow, though, a jury’s verdict loses its sacramental power in the appellate courts when it awards “too much”.  In such cases the appellate courts can pick a number more to their liking by ordering a “remittitur”.

So here’s a case from 1996 in which an individual plaintiff was awarded about $300,000 in a police misconduct case in federal court.

Too much, said the 2nd Circuit.  Half of that is what we think it is worth.

Remittiturs are admittedly rare, though nowhere near so rare as “additurs”, which of course is the reverse.  There are lots of practical reasons for that.  Fights over what the jury awarded are almost always resolved informally.

But the point is that, unlike the reversal of a conviction in a criminal case, the prospect of a remittitur on appeal is a very real risk for a Plaintiff.  This is on top of the risk of trying the case in the first place, where a jury can easily – and often does – find against a Plaintiff entirely, in which case the Plaintiff and the Plaintiff’s lawyer (not that anyone gives a shit about him) come away with nothing for all that time and effort.  And that risk, by the way, is very substantial.  Probably 1 in 4 at a minimum, depending on what part of the country you are talking about.

It’s probably not a coincidence that the linked 1996 case concerned police misconduct.  As many others have documented over and over, courts in general are very protective of the police.  That’s extremely inappropriate, to put it mildly, but it’s the way it is.

On a deeper level this illustrates a profound bias in favor of institutions, as opposed to individuals.  The typical judicial mind instinctively recoils at the government’s agents being called to account by an individual.  If government agents are going to be called to account at all, the thinking goes, it has to be at the hands of other government agents.  To allow mere individuals injured by government agent misconduct to have a remedy against the culpable government agents invites chaos.

This is the true nature of judicial hostility towards claims brought under 42 U.S.C. 1983, reflected over and over in the case law.  It’s visceral, and it’s unalterable.  Judges simply identify very strongly with the institutional defendants and probably, in their heart of hearts, regard the Plaintiffs as troublemakers who created their own problems.

Another rule that is scrupulously observed in other contexts is near absolute deference to acts of congress and the legislatures.  Not so here, though:  42 U.S.C. 1983 has been effectively repealed by the federal judiciary.

And this is another illustration of reward asymmetry:  government actors face almost no risk that they won’t easily out and out prevail in any confrontation with an individual, and of course there is no risk at all they won’t be paid exactly what they expect for their efforts.  And in the extremely unlikely event they lose the money comes from an insurance company, not them.

By contrast, the attorney who takes up the cause of the individual in a confrontation with government actors faces an exceptionally difficult task with an enormous risk of financial loss.  Yet even when these risks are successfully surmounted, the referees of the game – the judges – are very likely to abuse their position to attain an outcome with which they are more comfortable.  And they are comfortable only with an outcome demonstrating that it is extremely difficult, and probably not worth the effort, to challenge the institutional actors.  In other words, they are not bothered by the reward asymmetry – they regard it as a Good Thing.

If you rig the game people won’t play anymore.  And unfortunately we are not talking about a game; we are talking about the rule of law, one of the most important foundations of civilized life.

Update:  Then again, in other contexts even $1 BILLION is not “too much”.  What context is that?  When it’s consonant with the government’s larger purposes, which in this case is demonizing the government of Syria.  It’s entirely symbolic, of course.  The Syrian government is never going to pay up, everyone seems to acknowledge.

In other words, the award has propaganda value only.  I’d call it a cynical propaganda ploy, but then I have no affection for Syria’s government.

The magistrate judge making the award is named John Facciola.  Wonder how many other billion dollar personal injury awards he has signed off on?  I think we can guess the number.

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Casey Anthony. Bankrupt. Reward Asymmetry. (Updated)

Doctors often refer to “sequelae“, meaning attending expected consequences of disease or injury.

The bankruptcy of Casey Anthony illustrates a little discussed sequela of protracted and intensive litigation:  financial ruin.  It’s a real risk in many litigated matters since there’s always the likelihood that you could lose.  What the Casey Anthony saga brings home is that financial disaster can also happen if you win.

The story indicates that she still owes her trial lawyer, Jose Baez, a half million dollars.  And with the bankruptcy filing, that’s half a million dollars he’s never going to see.  Not that he was especially likely to see it anyway.

Easy come, easy go.

Is there any lawyer in the country who has rendered a more valuable service to the justice system and the law in the last few years than Jose Baez?  Arguably no.  To stand up, by yourself, in the face of a nationwide mob whipped into murderous frenzy and tell them “no”.  And then to prevail.

If you don’t think that’s a tough job, try it sometime.  It’s one of the hardest things on earth to do.

One of the hallmarks of a truly unjust society is what you might call “reward asymmetry”:  people who do difficult, important and beneficial things are impoverished; others who do easy, meaningless and even destructive things are enriched.  There is something seriously wrong with a country in which Kim Kardashian is a billionaire and Jose Baez can’t even collect half a million dollars for what he did in the Casey Anthony case.  Very seriously wrong.

Of course, I’ve discussed that a lot on the blog here under the financial crisis heading.  No need to recap all that here.

But a personal anecdote might help make tangible and explain how pervasive reward asymmetry is.

I often tell people how significant my time in the US Navy was in terms of its influence on my adult personality formation.  I spent most of my four years of active duty on sea duty.  On destroyers.

Sea duty is classified as “arduous”, and the description is apt, or at least it was at that time.  But the first time I was told that it came with a smirk, from a shore based bureaucrat who had never had sea duty.  Somehow, for many people it is difficult or impossible to appreciate the plight of others.  It’s a failure of imagination, or empathy.  Or something.

In any case, the shore duty v. sea duty asymmetry was something I noticed more as I gained more experience in the fleet.  Keeping a ship operating required a great deal of effort and dedication from its crew.  When in port, every man worked a minimum of about 80 hour weeks; when at sea, it would be fair to say that every man worked pretty much all the time, often going without adequate sleep.

By contrast, duty at a shore command was little different from a regular civilian job, 9-5 Monday through Friday.

Here’s the catch, though.  Shore commands were typically headed by high ranking officers like Admirals; destroyers are typically headed up by Commanders.  One big difference between those kinds of commanding officers is the ability they have to reward their subordinates by handing out Navy Achievement Medals, or Navy Commendation Medals, and so forth.  Admirals can hand out a lot more than Commanders, and pretty much all CO’s hand out as many as they are allowed to.

So where you wind up is that at shore commands that typically have a small staff virtually everyone gets at least a Navy Achievement Medal at some point or other; but only a couple of people on a destroyer ever get a NAM or a commendation medal.  Yet everyone on the destroyer has rendered far more meritorious service under far more demanding conditions than anyone at the shore command.

Nevertheless, in the Navy this asymmetry was not as destructive as similar asymmetries are in the civilian world, in part because the military has – or at least had – a deeply ingrained culture that especially revered shared hardship and sacrifice when it was unheralded, and especially despised undeserved honors.

It’s a guy thing.

In other words, in the civilian context there is no cultural check that ameliorates the deleterious social impact of reward asymmetry.  In addition, the ongoing consequences are generally more severe, because whereas in the military financial ruin is pretty much off the table, in civilian life it is not.

And financial ruin is very much in play for independent lawyers.  You might say it is a daily companion.

It’s extremely important, then, that when a lawyer – like Jose Baez – has done the most important thing a lawyer can do, he is handsomely rewarded.  And probably even more important than that, he must be seen as having been handsomely rewarded, because if he isn’t there is no incentive for other lawyers to do likewise if and when they are called upon.  And if the situation becomes even worse, such that the lawyer is not only not rewarded, but is in fact financially punished to the point of ruin, even as the representatives of the forces over which he has prevailed continue to accumulate wealth and honors, it would be lunacy to ever expect lawyers to do the most important job they have to do if and when such a job falls to them.

And if lawyers don’t do that, our society is in a lot of trouble.  Maybe not right away, but sooner or later.  And the social results are not pretty.

The Casey Anthony case continues to provide insight into the terrible condition of the American justice system, doesn’t it?

Update:  As an aside, Wikipedia’s treatment of the Casey Anthony fiasco is interesting.  For one thing – and remarkably – there is no Wikipedia entry for Casey Anthony herself.  Isn’t that bizarre?  Of course, it’s a “statement” of sorts to frame the whole take on the story as “the death of Caylee Anthony”.  The lengthy article never seems to consider the possibility that Casey Anthony might actually be innocent of having done anything to bring about the death of her daughter.  Or worse, that Casey Anthony might have been the biggest victim in the whole sordid thing outside of her own daughter, as this article suggests.

Scapegoating has deep religious and anthropological significance.  So it isn’t just our justice system the Casey Anthony matter illuminates for us; it is the darkness in our own hearts.

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Top News…

In Rochester, New York this weekend:

Several men stole $20,000 worth of merchandise and peddled it on Craigslist.  See here.  And here.  And here.  And here.

Two teenagers charged with shoplifting.  Apparently this was a shoplifting “conspiracy”.  Over $200 worth of merchandise was involved.

There was a barn fire and some trucks were damaged.  See here.  And here.  And here.  And here.  One truck reportedly might be a “total loss”.  This could wind up involving an insurance company, not to mention some paperwork.

A vehicle went down an embankment and into a pond.  A woman was injured.  This story has been breathlessly updated and followed closely to make sure we don’t miss any important new developments, such as the vehicle being retrieved from the pond.

A circuit breaker tripped in a school causing a loss of electrical power.  This was learned after an exhaustive investigation of all relevant “on-off” switches and electrical outlets where appliances of various kinds might be connected to a power source.  Once these less dramatic causes of a “power outage” were eliminated, the investigation centered on far more serious potential causes – such as fuses and circuit breakers – and from there the crisis was quickly and favorably ameliorated.  It appears no one was injured in the incident, although several students were sent home early and possibly referred to “grief counselors”.  When asked if janitorial overtime, paperwork, additional training or other costs might be involved in preventing similar future tragedies, school officials had no comment.

As usual, we can thank our heroic “first responders” for the safe resolution of all of these extremely tense situations.

An important observation about “journalism” must be made here.  As you can see, newsworthiness is not just about the amount of money involved.  Not at all.  Sometimes very large amounts of money attend some incident or other, but the story lacks a clearly identifiable villain and/or hero because, for example, everyone involved went to Harvard.

Our editorial judgment in such cases is that such stories “have no legs” and do not maintain the interest of our readers.  We take into account, of course, our government’s decisions not to investigate and/or prosecute further in forming this completely independent editorial judgment, and we “fact check” everything we learn.  For example, if law enforcement sources report a story we run it by the relevant prosecuting attorneys before making our independent judgment as to whether or not the story is “credible”.    It should go without saying that such stories are “newsworthy” by definition, since law enforcement personnel are not only invariably heroic, but they also act on behalf of all of us through our payment of taxes.  They are not only heroes, they are our heroes.

Remember that it is a tough job being vigilant to provide our local population with the information they need every day as they interact with each other to better our communities.

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Inverting Reality And Federal Habeas Corpus

Inverting reality is an ongoing problem in the justice system.  And it’s a serious problem.  Problems don’t get any more serious.

Federal habeas corpus is really a fascinating area of law, loaded with subtle and profound issues of federalism, comity, separation of powers, guilt, innocence, power, truth, evidence.  I could go on.  Maybe I will.

It’s also significantly wide open, for the most mundane and practical of reasons:  there is no money in representing prisoners.  Almost never, anyway.  Lawyers need to make a living, you can’t make a living doing federal habeas corpus cases and in addition to that it’s an exceptionally difficult area to understand, requiring a lot of time, effort and study.

Accordingly, there are really only two groups that are considered well versed in federal habeas corpus law:  the attorneys – usually state’s attorneys general – who represent the jailers of the prisoners; and on the prisoners’ side, lawyers whose real mission is opposition to the death penalty.

You see, in practice federal habeas corpus is regarded primarily as a condemned man’s last chance to avoid execution.  Indeed federal courts, including the Supreme Court, distinguish (improperly, in my opinion, but that’s another subject) “capital case” habeas corpus proceedings from non-capital cases by the very manner in which the proceedings are initially filed and docketed.

Nevertheless, for the last few years I have made it my business to understand federal habeas corpus law such that I can claim, plausibly and without arrogance or exaggeration, that at this point I am one of the most knowledgeable lawyers in the country among those who might represent prisoners, if only because there isn’t any competition.  In the course of so doing, I have encountered attorneys for the state who practice in the area and are recognized as “experts” in the field.  What I have found is that they know or understand little – almost nothing, in fact – about federal habeas corpus law.  One reason is that they don’t need to know or understand anything, because it would be fair to say that federal habeas corpus petitions are never granted.

So the situation is that on the prisoners’ side of federal habeas corpus you have lawyers who aren’t really interested in habeas corpus but are rather interested in abolishing the death penalty, and anything that doesn’t further that objective gets no attention.  And on the jailers’ side you get lawyers who probably don’t know or care much either – because they don’t have to and they’re getting paid either way – but generally oppose any use of the great writ at all, on whatever grounds and making whatever arguments they feel they can get away with, and experience teaches them that they can pretty much get away with anything.  Because like I said, it is fair to say that federal habeas corpus is never granted.

Here’s one of the anomaly resulting from this practical reality:  it’s pretty fundamental to federal habeas corpus law that you have to “exhaust” state remedies before you ask the federal court to intervene.  But is there an exception to the “exhaustion requirement” when the state officials secured their conviction of a state prisoner through the commission of a federal crime?  That question was explicitly left open by the United States Supreme Court in a case called Frisbie v. Collins.  When the SCOTUS explicitly leaves a legal question open, it usually means they intend to take it up as soon as they get the opportunity.

Frisbie v. Collins was decided in 1952.  That habeas-specific legal question has been explicitly open for more than 60 years.  One reason being that it has little relevance to death penalty cases.

All this aside, though, I have to admit that California Assistant State’s Attorney Stephanie Brenan knows what she’s doing, although under the circumstances that is not a Good Thing.  We’re still waiting to see if her arguments carried the day.

You should read the linked transcript if you’re interested in how the justice system can get as fucked up as it is.  It’s almost as if no one is really at fault for it.

Almost.  Judges are at fault, of course.

But the problems become thorny for reasons that in some ways are innocent enough.  Ms. Brenan is arguing, basically, that there has to be a presumption that state court judges do their jobs.  And it might be considered odd under the circumstances, given what I have been through at the hands of state court judges, but I agree with her.  There has to be a presumption to that effect.  If there wasn’t, it would more or less fatally undermine the legitimacy of state court criminal proceedings.

But here’s the big problem with it:  it is completely, overwhelmingly contrary to observable reality.  The rule, almost without exception, is that state court judges do not do their jobs.  At all.  And as I have said many times, the system itself recognizes this implicitly, because we have juries.  If judges could be relied upon to do their jobs you wouldn’t need juries.

This is one of the things that makes federal habeas corpus law so interesting, and so important.  It exists in a kind of legal suspended animation, bridging the gap between an axiom – that state court judges presumptively do their jobs – and the exquisitely uncomfortable reality that everyone remotely familiar with the system understands:  that the axiom is as utterly false as any proposition can be.

Stubbornly clinging to a known falsehood is one of the worst things a human being can do morally, spiritually and intellectually.  Our justice system would virtually compel precisely that result except for two things:  a) juries; and b) federal habeas corpus.

Ms. Brenan did a very good job on her SCOTUS argument.  I hope she loses anyway.  It would be difficult to imagine how more damage could be done to what’s left of our justice system than by her winning.

(h/t Jonathan Kirshbaum at the Habeas Corpus Blog)

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