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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A peculiar foible of criminal defense lawyers is habitual contrariness, at times mindlessly practiced even when the contrariness is irrational.  Or worse.

Is law school largely a scam?  Probably.  A worse scam than the rest of “higher education”, or Congress, or mortgage lending, or for that matter lending of any kind through the banking system, or maybe even the legal profession as a whole or the justice system itself?  Doubtful.

We live in the fallen world, not paradise.

The question is:  What is to be done?  This involves more than critiquing and complaining that no one is really doing anything.  Or really wants to.  Although that is pretty much where Scott Greenfield leaves it:

And they’re coming up with schemes to cure their ills…All these hungry little buggers they’re sending into the profession need to find a way to pay off their loans and keep their mommies from crying, and if you read their blogs and websites, they’re smarter, more aggressive, more caring and, yes, more experienced than you. Baloney, you say? Yeah. So what? They’re doing what they’ve got to do to survive, and niceties like integrity are for old guys. They’re fighting for their lives and, frankly, have completely rationalized ethics out of the picture. And since they are all brilliant (ask them, they’ll tell you), they see no net harm from a bit of puffery…Are any of these schemes going to make a better legal profession? For a bunch of smart people, these schemes strike me as pretty darned inadequate, both for law students, for the profession or, most importantly, for clients.  But then, if we leave it up to the lawprofs, what should we expect?


I don’t think it’s fair to characterize younger, “hungry” lawyers as insufficiently ethical or integrity challenged, whereas the old wizened sea dogs like Greenfield are increasingly lonely but integrity-filled paragons.  That’s absurdly self-serving under the circumstances.

For lawyers there’s a lot of work to do.  I mean, the system is seriously fucked up and people are getting seriously screwed over.  The problem is getting paid for it, which is to say paid for what is actually needed:  helping the people getting screwed over.  The screwees, not the screwers.  Practically by definition, the latter can pay you but the former cannot, or at least not very well.  So the profession has gravitated inexorably towards representing the latter.

Well, that’s one problem anyway.

Scholarship is so not the problem, which is why law schools aren’t so much an obstacle to improving the profession as they are irrelevant.  The law is not, and should not be, an imposingly intellectual endeavor.  Not that long ago many lawyers went to law school right out of high school.  In fact, many lawyers didn’t go to law school at all.

So really we are looking at an economics problem.  And like all economics problems in the modern world, it is really – underneath it all – a political problem.  In other words, a power distribution problem.

So I thought this little anecdote (via Mark Bennett) was interesting:

And then there was the ham-handed attempt to bully me out of filing the Judicial Misconduct Complaint against Campbell… I was having an innocuous back hall conversation with Judge George Godwin, the former presiding judge of the 174th Criminal District Court. I always liked George Godwin.  We were having a friendly chat when Judge Godwin, suddenly brought up the topic of judges sticking together. In the middle of a friendly conversation, without any segue, Judge Godwin  said to me, that any attack by the defense bar on his brethren or “sistren” of the judiciary, would be viewed as an attack  on all of them. As there was no segue, I was admittedly caught of guard by Judge Godwin’s comment. The  conversation came to a screeching halt and  I left… After hearing Godwin’s “Judicial Nato Speech”, I thought, if the judges think that I will be bullied out of filling a legitimate Judicial Misconduct Complaint, they do not know me and they do not know HCCLA.  If anything, Godwin’s comments confirmed my deeply felt belief, that as lawyers we must be willing to stand up to judge’s who engage in unethical or illegal actions. So, as was my duty as then President of HCCLA, I filed the Judicial  Misconduct Complaint against Campbell.


Of course the Judicial Misconduct Complaint went nowhere.  You see, the “Judicial NATO” is bound to include those who decide Judicial Misconduct Complaints.

What this illustrates is that the judicial powers-that-be feel they can walk all over the criminal defense bar and suffer no consequences whatever.  And they’re quite right about that, and indeed it isn’t just the criminal defense bar, it’s independent lawyers generally.  The power differential has become so lopsided that judges will not only behave this way, they will openly threaten to behave this way.  It was better when at least they would be ashamed of it.

And this explains a lot.  Represent an individual litigant against an influential or institutional one, and what do you find?  Probably more than half the time you will never get the case to a jury.  When you do, the judge will try to undermine you from winning the trial at all, but certainly from winning convincingly, the result being that half of the remaining cases that actually make it to a jury will wind up losers.  And even if you beat the odds and win “too much” – in the sole opinion of the judge, of course – it can all be taken away.

Put the shoe on the other foot, where the institutional litigant is bringing a criminal case, and what do you see?  90% plus resulting convictions.

The civil plaintiff and criminal defendant are flip sides of the same individual litigant coin.  It’s not the facts and it’s certainly not “the law” determining outcomes; it is who has power over whom.

Since this is not a question of better arguments or innovative programs, then, but rather the far more primitive issue of raw power – like war, really – you have to think in terms of what damage you can inflict on your adversary from the relatively powerless position you occupy.

This blog came up with an idea at its inception:  strikes by independent lawyers.  These would work better than anything else I have seen suggested to shake up our increasingly corrupted profession, because it attacks the Achilles heel at the foundation of the “adversarial” system:  its pretense of a fair fight.  It can’t be a fair fight if the little guys call foul by not showing up in the first place.  It’s really as simple as that.

With a more level playing field, there is room for more lawyers, at a time when – and to be sure this goes against conventional wisdom but it couldn’t be more true – more lawyers are desperately needed.  Independent lawyers.  Real lawyers, in other words.

By and by, with a more level playing field and the system behaving more like it is supposed to, the money will follow because it always does, flowing from the biglaw firms and government agencies to the individual litigants and their independent lawyers.  And this addresses a lot of problems at once – law school expenses, serving needy clients, preventing wrongful convictions.  Money can do that.  Money is a form of justice, or at least a measure of it.  Sometimes.  When things are working more or less correctly.

Alas the whole strike idea, while it has a lot of merit, not to mention precedent in other places, and there don’t seem to be any good arguments against it, was not well received by Greenfield, who has yet to offer any solutions of his own other than to carp at young lawyers, or often even mock them.

I wish he’d cut that out.  It’s a bore, but more than that it’s myopic, and to the extent he has any influence in framing this debate he’s not doing anyone – or the profession – any favors.







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Aaron Swartz

The tragic story has been everywhere over the last week.  I don’t have anything interesting to add, but I thought Lawrence Lessig did:

Why was he being charged with 13 felonies?

His motive was political — obviously. His harm was exactly none — as JSTOR effectively acknowledged. But he deserved, your “career prosecutors” believed, to be deprived of his rights as a citizen (aka, a “felon,” no longer entitled to the political rights he fought to perfect) because of what he did.

Yet here’s the thing to remember on MLK weekend (even though my saying this violates a rule I believe in firmly, a kind of inverse to Godwin’s law, because though I believe these two great souls were motivated by exactly the same kind of justice, King’s cause was greater): How many felonies was Martin Luther King, Jr., convicted of? King, whose motives were political too, but who, unlike Aaron, triggered actions which caused real harm. What’s that number?


And how many was he even charged with in the whole of his career?

Two. Two bogus charges (perjury and tax evasion) from Alabama, which an all-white jury acquitted him of.

This is a measure of who we have become. And we don’t even notice it. We can’t even see the extremism that we have allowed to creep into our law. And we treat as decent a government official who invokes her family while defending behavior which in part at least drove this boy to his death.


Emphasis supplied.

I’ve dealt with this aspect of the Aaron Swartz episode numerous times – at least once in official court filings no less – but it seems to have always fallen upon deaf ears.  Yet the coarsening of our humanity in the past few decades is as unmistakable as it is disturbing.

In 1952 the US Supreme Court was outraged that in order to secure evidence some cops in California took their suspect to a hospital to have his stomach involuntarily pumped.  So outraged they overturned the suspect’s conviction.  But almost 50 years later in 2003, the SCOTUS (other than Justice Stevens in dissent) didn’t bat an eye at police ignoring repeated pleas – from a man they themselves had shot and seriously wounded – to stop questioning him and give him medical treatment.

I suppose it has something to do with the immediate aftermath of WWII.  We were more sensitive to tyranny and official cruelty then, and not blind to the potential that we might be guilty of it just as others had been.  As our collective memory of those events has receded, though, so has our awareness of the hidden dangers of power, prominent among them being the glib indifference to conduct that plainly constitutes official torture.

Torture is as torture does, you know.


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Lance Armstrong and Tom Moran

It isn’t that mysterious.  They’re both pathological narcissists.

The most revealing thing is the bullying behavior, specifically in response to being found out.  Normal people do not behave this way, but it’s the first resort of pathological narcissists.  Yet it only applies when the person or persons who discover them are amenable to being bullied.  In the mind of the narcissist this is anyone who is below them in the pecking order.

For Armstrong this was very easy to do.  As a world famous athlete, legend  and folk hero his status was almost unimaginably high, thus he could shout down, sue, intimidate and otherwise smear almost any of his detractors, branding them as liars even as he knows that he is the liar and not them.  As his story shows, high status alone will enable someone to succeed at this faux bold tactic for a surprisingly long time.  People are invested in their heroes, and reluctant to believe the emperor has no clothes.

But, you know, facts are stubborn things.

One distinction between Moran and Armstrong that should be noted:  Armstrong’s pathology, while on a much grander scale in terms of notoriety, is so much less destructive.  He’s not imprisoning people and branding them criminals, for example.  His pathological behavior is defensive, not offensive.

By virtue of his office Tom Moran, on the other hand, unleashed the power of the state to harm others in his quest for narcissistic supply.  Being incredibly self-interested and self-absorbed (as pathological narcissists are), of course, these “others” do not really exist for him in any meaningful way.  Oddly, it really doesn’t matter to him how much harm he has caused others, and will not matter unless and until there is some consequence to him.  Just as Armstrong would have gone on forever unless or until higher ups began denting his armor and revoking his awards, so Moran will continue until some consequence is visited upon him.  At that point there may be faux lamentations or faux contrition just as Armstrong has demonstrated in his Oprah confessional.  But what’s driving it is not a genuine appreciation for the wrong done, but rather an increasingly desperate effort to preserve the narcissistic self image.

A lot of criminals are like this.  It’s all about them.

By the time I appeared before the Livingston County grand jury on October 13, 2004 Moran had been peddling the mendacious narrative that “Sephora was the driver”, unchallenged, for nine months, and had just gone out on the limb of presenting it to the grand jury a week earlier.  Although he had not been found out personally at that point, his lie had been.

But only by me.  So far.

So he reacted the way a narcissist does when unexpectedly confronted by an adversary perceived as lesser status:  he began verbally bullying me, and when that didn’t work because I forcefully brushed him off, he threatened to beat me up.

In a way that should be astonishing but unfortunately is not, the powers that be ratified Moran’s pathological behavior and attacked me, mimicking Moran’s narcissism perfectly.  This is one of the reasons it became necessary for me to persist the way I have.  A lawyer cannot permit the whole system to become a pathological menace on his watch:  rewarding lying, cheating and criminal behavior while it punishes true accomplishment, personal integrity and innocence.  Inversions of reality of that magnitude must be opposed.  To the death, if necessary.

If the trend to pathological narcissism isn’t checked in the justice system how can it be checked in the wider society?  See the problem?

Lawyers have a lot of responsibility, don’t they?

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Zombie Titles

Long read, but if you’re interested in what’s really happening and of course being under-reported (no coincidence the article is from Canada, not a major US news outlet) I’d certainly recommend taking the time.


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When Innocence Matters

It mostly doesn’t.  Or so we say.  Or at least some of us say that.

But that’s not the law, or at least it isn’t the law when it comes to federal habeas corpus.  Under Schlup v. Delo and other cases, innocence does matter.  Not in and of itself, mind you.  But you can clear a procedural hurdle or two with it.

And there’s the rub, or maybe – just maybe – a real opportunity to help the law conform to reality more than it currently does, which in too many cases it doesn’t.  We can’t have that.

So I was talking to a colleague the other day about this ongoing problem of mine, wherein you have a case where an accused’s innocence is established before trial, upon the ground that the criminal charges were willfully and maliciously made up by the police and prosecutors.  And the concomitant problems attending that problem, such as intimidation and coercion – or, on the other hand, bribery – of witnesses, which is a government habit in lots of cases so the judiciary is loathe to call a foul ball on that score.  They shouldn’t be so loathe, of course, but we take the world we live in, not the one we would have if our preferences always prevailed.

See, there’s an inside joke that’s relevant here:  “There they go, framing the guilty again.”  We don’t like police and prosecutors manufacturing evidence so they can convict someone, but we dislike it less than letting the guilty go free.

Which brings us back to the main point:  what if that’s not an issue, because the accused is innocent?  That is, this time they weren’t framing the guilty, like in the joke, but they went further and framed the innocent?  Does that matter?

To sane people of course it does.  But the system has an internal logical imperative that is impervious to sanity:  if the accused is innocent, he will be acquitted at trial.  This is axiomatic, like a tautology.

Yet federal habeas corpus stands outside the system to correct its extreme  malfunctions and there’s this innocence thing, and everyone is really uncomfortable with it but, you know, there it is.

So my colleague is grilling me:  if the trial isn’t the remedy, what is?  And of course I say that we give civil defendants “summary judgment” because for them a trial is just too, too much risk and work, so can we never give a criminal defendant summary judgment or its equivalent, even when they are being maliciously prosecuted by police and prosecutors who are, for that reason, the real criminals in the whole thing?

But then back to the world we live in, not the one we would have.  Sure, you could have such a remedy in theory.  But in practice it wouldn’t exist, just like suppression of evidence, just like the government turning over Brady material, just like dismissals in furtherance of justice, just like relief on appeal.  Just like pretty much every other damn thing that is promised to lowly criminal defendants and their lawyers but never delivered.

In other words, it won’t happen.  You can have your innocent defendant, you can have your evidence proving it, you can catch the police and prosecutors red-handed having made the whole thing up and coercing/bribing all the witnesses and so distorting the hallowed process that it’s become a farce.  And what will the process do?  We already know, if we’ve been paying attention.  It will grind mindlessly on to a criminal conviction of an innocent person, because it’s easier to do that than confront what has really occurred.  And because determining innocence is the job of juries, whose livelihoods are not so vulnerable when they declare the police and prosecutors wrong, as a judge’s livelihood is.

And so that is why federal habeas corpus exists, or at any rate it is one very, very good reason it exists.  But then like anything else, if it is going to remain meaningful it must be reserved for the exceptional case.  And of course it is fraught with systemic concerns about federalism and one system (federal) interfering with another (state) and blah blah.

Years ago these guys thought they were being wrongfully prosecuted because the law being used to prosecute them was plainly unconstitutional, so they went over to federal court not on habeas corpus but on a 42 U.S.C. 1983 action and sought to enjoin the prosecution – that is, stop it with an order, an injunction, from the federal court.

Nothing doing, said the Supremes, and so “Younger abstention” was born.  Absent some ill defined something or other, we federal courts are going to abstain until we see just what exactly the state system is going to do first.

But look here:

The Court confines itself to deciding the policy considerations that, in our federal system, must prevail when federal courts are asked to interfere with pending state prosecutions. Within this area, we hold that a federal court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution. [Footnote 2/3] Such circumstances exist only when there is a threat of irreparable injury “both great and immediate.” A threat of this nature might be shown if the state criminal statute in question were patently and flagrantly unconstitutional on its face, ante at 401 U. S. 53-54; cf. Evers v. Dwyer, 358 U. S. 202, or if there has been bad faith and harassment — official lawlessness — in a statute’s enforcement, ante at 401 U. S. 47-49. In such circumstances, the reasons of policy for deferring to state adjudication are outweighed by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindication, and by the need for speedy and effective action to protect federal rights. Cf. Georgia v. Rachel, 384 U. S. 780.


Emphasis supplied.

The jurisprudential landscape has certainly changed since Younger was decided in 1971.  It is now hard to imagine any federal court interfering with an ongoing state criminal prosecution no matter how terrible it is, no matter how innocent the defendant.  Somebody could argue that someday, of course.

But in the meantime there is this federal habeas thing.

Now the state court criminal proceedings are not in progress, as in Younger, but have concluded.  Federal courts still don’t like to second guess, but that is the very essence of federal habeas corpus, so they can’t very well say they won’t do anything ever on that basis, writing federal habeas corpus out of the law entirely.

And here’s a neat thing:  in federal habeas corpus innocence matters.  In federal habeas corpus a federal court can distinguish between the accused who is framed and is demonstrably innocent and the accused who is framed but is not demonstrably innocent.  It can clear away the procedural hurdles for the former – even the fairly fundamental requirement to exhaust state remedies –  but not for the latter.

So here is how that would work.  The state system can mindlessly grind on to its conviction of an innocent person who has been maliciously and deliberately framed by police and prosecutors, because that’s what state systems will too often do, being largely captured by and in thrall to police and prosecutors.

But their victim will be entitled to immediate relief in federal court on habeas corpus

This may be the best the system can do.  Should an innocent person who has been framed by police and prosecutors be entitled to a writ of prohibition in the state courts?  Well, yes, but according to state courts such “extraordinary” writs are issued only as a matter of discretion.  No one is ever entitled to them.  So if you don’t get that, your client is innocent and indeed no one is even disputing that because it is indisputable, what do you do then?  Go to trial?  That simply rewards the police and prosecutors for the criminal conduct they have already committed and indeed invites more of the same.

At your client’s expense and risk.

You can go over to federal court on a 42 U.S.C. 1983 and cite that language from Younger, seeking an injunction.  After the state courts have denied you a writ of prohibition, of course.  Lots of luck.  And to boot, even from my own point of view I can see the problems that might ensue from making that remedy available, and although I find those problems less serious than the problems of not having the remedy, I am not going to say there aren’t good arguments from the other side.

This is a question of balance.

So it seems to me that the right balance to strike is that an actually innocent person who has been convicted in a state court by the malicious and deliberate use of perjury and fabricated evidence should have immediate resort to federal habeas corpus and none of the many procedural bars to relief should apply.  The constitutional principle is that it is a violation of due process for the state to “obtain a conviction” – whether at trial or by plea – with evidence known to be perjured and fabricated, although this principle is lamentably confused at present (see footnote 2 to link).  And the habeas corpus principle is that the conviction of an innocent person is a “fundamental miscarriage of justice” that must be remedied.  By convicting a demonstrably innocent person in the first place, the state courts would have already shown that they are not up to the task of remedying that problem.  We abstain from interfering while the process goes on because of Younger.  Why should state courts be indulged further?

For me these are not abstract questions.  But it’s important to get the law right when it’s as completely messed up as it is right now.  A case that presents the relevant issues is an enormously important and rare opportunity to do so.


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Inherently Unbelievable

Lawyers have a problem with the idea that something is inherently unbelievable.  At least some lawyers do.  And it’s a shame.

The reason is partly innocent.  Trial lawyers become very habituated in, inured to, ensconced in (I think that about exhausts the thought there) a “process” for finding the truth, and the idea that there is some other means of identifying the truth that does not involve that process is thus a bit alien to them.  The truth is found by examining and cross examining and arguing the points.  That’s how we do it, and we lawyers are society’s truth finders.  We are the high priests of truth finding.  We work at the altar of the bench and bar.

But it’s also partly not-so-innocent.  Any other mechanism for truth finding is a threat to the lawyer’s high priest status, and income and wealth and power and all that.  This is particularly true if the “other mechanism” might be better at determining the truth than the one lawyers regularly wield.

Inherently unbelievable is just such a threat.

I bring you once again to the Ashley Baker statement.  It is inherently unbelievable.  No one has to cross-examine her or otherwise test anything that isn’t already known to such a high degree of certainty that it qualifies as Truth with the capital ‘T’.

The context is important, as I have said before.  But in this instance context only drives the point home, the point being that the Ashley Baker statement is a deliberate fabrication.  But before we even get to that, we should understand that the statement reveals itself on its face.  At least, lawyers should understand this.

Consider the story the statement actually relates.  Shaun Theriault and Todd Gaddy are talking in Mark’s pizzeria in Mt. Morris, NY.  Ashley Baker overhears just one thing from this conversation:  Shaun Theriault saying “Sephora was the driver.”  That’s all there is until later that evening when she mentions what she overheard to Todd, who then provides the context:  Sephora was the driver for the Geneseo robbery.

Now of course theoretically such a thing is possible.  Let’s get that out of the way.  But as a practical matter, in light of experience it is not possible [see People v. Galbo, 218 NY 283 (1916)].  People do not remember isolated, disembodied statements that mean nothing to them, that are the equivalent of a random group of words.  But that is precisely the story that the Ashley Baker statement tells:  at the time she supposedly overhears this sentence out of the mouth of Shaun Theriault she would have no idea what it meant.  Sephora was “the driver” of what?  For whom?  When?

In other words, the story the Ashley Baker statement tells never happened.  Even if such a sentence had been uttered by Shaun Theriaut – which, in context, is itself so unlikely that the idea is not worth considering – Ashley Baker simply could not have remembered it.

And there is another thing to consider, this too being inherent in the Ashley Baker statement itself:  how could Ashley Baker have been in a position anywhere in a pizza shop where that one, isolated and disembodied sentence from Shaun Theriault was all that she would overhear, without hearing something else that would provide some context for it?  Shaun Theriault did not (this should be obvious) walk into the pizza shop, go up to Todd Gaddy and say “Sephora was the driver” and walk out.  This, too, is impossible – not in theory, but in practice.  But then how can Ashley Baker overhear and  remember only that one thing?  Other things would have to have been said, at roughly the same time, that would have provided a context and thus made the sentence “Sephora was the driver” intelligible to Ashley Baker; yet the statement itself says otherwise.

But the rudimentary laws of physics that everyone knows come into play.  In other words, a person could not be physically positioned such that only the one sentence would be overheard.  Yet the statement purports to represent that only that one sentence was overheard, a sentence that would moreover have had no meaning whatever to the person who supposedly overheard it.

The story of the Ashley Baker statement is thus so unlikely from both the lay-physics and the lay-neurology involved that it isn’t worth serious consideration.  It is inherently unbelievable.  No context is even necessary to reach this conclusion.

But then, when we actually do consider the context it is obvious that this inherently unbelievable statement is not a random and incoherent event; rather, it has an obvious – if criminal – purpose:  to falsely implicate Sephora Davis as “the driver” for the Geneseo robbery, meaning in turn that whoever generated the inherently unbelievable statement must have had information tending to indicate that she was not “the driver”.  Then we consider that the statement’s scribe – Dana Carson – was in fact, precisely, the only public official absolutely known to be in a position to have such information on the date the Ashley Baker statement was generated, based on the records of the police themselves.

This means, with a degree of certainty that is not attained even by DNA tests, that Dana Carson was there and then engaged in a conspiracy with at least Ashley Baker and Eric Harder (the rapist) to generate false evidence and perjury to the effect that Sephora Davis had been “the driver” for the Geneseo robbery.  Put another way, it is a 100% certainty, based upon unimpeachable evidence generated by the culprits themselves, that there was a conspiracy to falsely implicate Sephora Davis and that the conspirators included at least one police officer.

This was a potentially capital federal offense by the conspirators.  See 18 U.S.C. 241, 242.

Under the circumstances one would think that Sephora Davis would be entitled to some kind of relief.  But because the system is truly, truly broken in so many ways, this has for some reason become a difficult question.  Although a seriously criminal conspiracy is shown and it involves at least one public official acting under color of state law, the law of the United States – that is, federal law – is not even certain that this constitutes a violation of Sephora Davis’ rights.  Not even when it resulted in the deprivation of her liberty, which is supposed to be a constitutional value of some weight.

Or maybe it is certain.  But somehow, somewhere some confusion has set in.  Or we have forgotten, much as we have forgotten that some things are simply true and others are simply false and some evidence is inherently unbelievable.

We need to recover these memories.  We are floundering, and leaving our beloved truth finding process at the mercy of morons who commit easily perceived fraud – at least when those morons are police and prosecutors.

That is intolerable.  And that is what the Sephora Davis matter has always been about.

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