Category Archives: Judicial lying/cheating

Sometimes by commission, usually by omission

A Note On The Profession

Two seemingly unrelated pieces from legal blogs I follow:  this one from Scott Greenfield and this one from The Irreverent Lawyer

Of course I gave it away by writing “seemingly”.  Obviously, I’m now going to tell you how they are related, at least in my mind they are.

Greenfield is critiquing the latest gimmick proposal by Chief Judge Lippman to coerce require pro bono services out of would be lawyers.  That is, people who are not lawyers yet.  Law students, say.

Greenfield, as is so often the case, is both right and wrong:

The provision of legal representation to the poor is not a lawyer problem. It’s not a judge problem. And it’s most assuredly not a law student problem. It’s a societal problem, and each effort to tweak the system to alleviate the building pressure saves society, and its elected representatives, from the nasty duty to deal with it.

But let’s come back to that quote.

Irreverent is pointing out that it’s an absurd devaluation of what remains a fairly vigorous vetting process to behave as if anyone, vetted or no, can basically practice law without consequence.  Yet that is how things are, almost everywhere.  He quotes attorney Karyl Krug:

“Foolishly, I thought I would have to have a license in Arizona to call myself a lawyer in Arizona state court. I paid in excess of $2000 and went through a rigorous criminal and character background investigation lasting 6 months to get my Arizona law license. But it turns out that everybody, including the trial courts in the county with the biggest glut of death penalty cases Arizona has ever seen, can and did call whoever they wanted to a lawyer, with no criminal or other penalty whatsoever.

Now, I suppose there are big problems with enforcing the prohibitions on the unauthorized practice of law.  The libertarian in me abhors the idea of more criminal prosecutions.  I mean, enough already.  On the other hand with  civil litigation (private) enforcement you’re just going to wind up suing the judgment proof which, you know, nobody does.  Ugh. 

Regulatory enforcement?  Take a look at how attorney grievance committees work and let me know what you think.

But let’s not kid ourselves that there isn’t a real problem.  I have found myself on more than one occasion “competing” with “legal advice” from laymen to clients or prospective clients that is utterly bizarre, along the lines of taking the position that outcomes would be different if you just spoke the magic words to the court.  Something to do with the Queen of England and gold fringes on the flag in the courtroom.  Others have had similar experiences.  But I attribute this to too many – far too many – outcomes that make no sense and can’t be explained rationally other than to say that the courts favor the powerful.  People quite understandably will not accept such an explanation, and when they get done with their increasingly bizarre and insane explanations they will turn to violence.  If nothing changes, that is.

And how are things going to change?  Well, the profession has to do it.  There isn’t anyone else.  And it’s only reasonable to expect that those on the receiving end will have to lead the way.  That means criminal defense lawyers.  And personal injury Plaintiff lawyers.  When the judge denies your criminal defendant’s well-reasoned motion to dismiss for no good reason in the face of some garbage form opposition from the DA’s office; or when the judge grants insurance defense counsel’s motion for summary judgment for no good reason other than that he thinks no one will make a fuss…..well, make a fuss.  A big one.

So here’s where Greenfield is wrong.  The gap in legal service to the poor is a lawyer problem and very much a “judge problem”.  A lawyer, almost any lawyer, would be able to make a living or even do quite well if judges actually followed the law and applied it even-handedly.  Because if they did that, the little guy would win with some frequency,* whereas as things stand now a judge might pay lip service to how valuable your services are by tossing off a phrase or two about it when he screws over you and your client (that’s a common practice), but he’s still screwing over you and your client and rendering your knowledge of the law and your skill in using it and arguing it worthless.

And this change in judicial behavior would also have the salutary effect of doing justice, righting wrongs and making adjustments in wealth from those who have cheated or lied or worse, to those who have been victimized by that – and their lawyers, too.

This is what the rule of law is supposed to accomplish.  When you have it.

And then the pro bono thing tends to take care of itself.  And the citizenry is less liable to be taken in by charlatans that claim to be lawyers but aren’t.  And the citizenry recovers at least some modicum of respect for lawyers and the legal profession because things work a little bit more like they are supposed to, because when they don’t people tend to blame lawyers even though judges are the real problem.

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*  There’s a whole legal industry to be made opposing foreclosures and evictions.  Without making the case in this post, it seems to me none of the big banks should be entitled to foreclose on anyone; and that people being evicted for non-payment are being denied equal protection of the laws.  The arguments in support of both propositions are sound and not difficult.  What’s difficult is getting judges to yield to sound arguments when that means they’d have to tell the powers that be:  “You lose.”

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Sea Change (Updated)

Last week, a three judge panel on the 7th Circuit came down with a split decision in the matter of Fields v. Wharrie.  Judge Posner wrote the majority opinion and Judge Sykes dissented.

Like almost all the due process cases that we have been interested in here recently at Lawyers on Strike, Fields is an action under 42 U.S.C. 1983 and primarily deals with issues of prosecutor immunity from suit under that statute.  But when you rule out “absolute” immunity as the 7th Circuit did here, and begin to consider “qualified” immunity, as the 7th Circuit also did here, you reach the question of whether there is a constitutional violation triggering section 1983 at all.  Don’t ask why, it’s not important.

What is important is that in reaching this very big constitutional question at issue in Fields that shouldn’t be a big issue at all – that is, do prosecutors and/or police violate a defendant’s right to due process of law when they deliberately use perjury and fabricated evidence to prosecute him? – you have Judge Posner answering one way – that it is a violation of due process of law – and Judge Sykes answering the opposite.

Now, neither one of them has anywhere near as good a handle on this issue as we do.  See here and here and here and here and here and here and here.  It’s not that I blame them.  I spent two years of the last ten being completely incredulous at the thought that this was a big issue myself.  And I had a case where they had put a knife to my client’s throat and raped her, and by thereafter framing her for prosecution they were trying in effect to murder her (18 year old high school girl, no criminal record) through self-harm, so the issue was staring me right in the face from early on (well, relatively early).  Meaning that I had a great deal at stake in it, whereas these federal judges don’t.

Anyway, I figured once I had shown what happened to her, my job was done.  It took a long time to sink in that there were some warped individuals out there calling themselves judges and lawyers that didn’t believe such official conduct violated anyone’s rights, and that I would have to spend well, pretty much a decade of my life trying to dispel that idea as well.

But let’s move on.  Because something is plainly afoot in the country’s federal appellate courts.

Judge Posner is one of those federal court of appeals judges that are almost like a Supreme Court Justice because he is so well known and respected.  And it appears that he now gets it, in more ways than one.  Because not only has he seen this due process issue and come down on the right side of it, he has gone on from there and thought about the question of how this absurdity could ever have been argued in the first place, and he is treating the formerly highly favored litigants’ attorneys who have made such arguments with a rather harsh skepticism that would have been unthinkable from any federal judge even a year or two ago.

That is the significance of an earlier decision he penned for a different three judge panel just a few months ago, Julian v. Hanna.  Read the opinion.  He excoriates the formerly favored litigants’ attorneys.  He says their omission of citation to a well known case that didn’t support their position was “inexcusable”.  He said they exceeded the boundaries of “responsible advocacy”.  And then he decided squarely against the formerly favored litigants, reversing the District Court in the process with a unanimous opinion.  Then a few months later – that is, last week – he has flushed Judge Sykes out of hiding and made her go on the record with an indefensible opinion in dissent saying, in effect, that deliberately using perjury and fabricated evidence to prosecute someone doesn’t violate their right to due process.

The stage is now set.  All it needed was an explicit disagreement among the appeals judges.  This due process issue is now ripe for Supreme Court review.  That review has almost happened twice within the last year or so, and now it is sure to happen soon, quite possibly on the Fields case itself.

But the broader implications of Fields are equally significant.  Judge Posner’s epiphany has surely not occurred in a vacuum.  A judge on South Carolina’s Supreme Court told a gathering of prosecutors – a gathering of prosecutors! – that they’ve been indulged too much for too long and that it’s over and that if they keep it up there will be consequences.  To them.

Less than two months ago the US Court of Appeals for the 2nd circuit smacked the New York State Attorney General’s office for refusing to see an obvious 8th amendment problem.

Just two weeks ago, the first en banc decision coming out of the 2nd circuit in about two years held that prosecutors might be held liable for horrifying perfidy in obtaining a conviction even where their victim had pleaded guilty.

All of these developments would have been unthinkable even three years ago. 

This is what a sea change looks like when you’re in the middle of it.  No one really notices at first, or at best only a few people.  It’s only in retrospect that the certainty of it all becomes apparent to most people.

But the certainty is there from the beginning.  There is no doubt about what is happening, finally, among some judges in this country. 

It is a very, very good and encouraging development for those who are concerned about the rule of law.  Just my two cents, of course.

And Judge Posner’s.

UpdateScott Greenfield notes another example.  I kid you not, this stuff never used to happen.  Never.  You never heard a judge on the record excoriating prosecutors.  Hell they would only rarely do that to defense lawyers.  It’s like a memo went out somewhere, iohno.

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Ugh.

The depth of the insularity required to pen this little op-ed on the SCOTUS blog is impossible to fathom.  The author seems completely unaware of the world outside of Harvard Law School graduates, the Solicitor General’s Office and the Supreme Court.  The burning question she is addressing is:  should the government’s counsel before the Supreme Court – that is, the Solicitor General’s (SG’s) office – be favored only in those cases in which they have a direct interest, or should the SG be favored in as many cases as possible, even where their interest is much more attenuated?

Thus the title of the article:  “Too Much Of A Good Thing?”  Apparently, some of us just can’t get enough of the SG.

The SG, notes the author, “…has been an enormously successful litigant”.  Put another way, the government most often wins in its own courts. 

Duh. 

But let’s pretend: 

Given the high quality of the SG’s work in general, and the apparent helpfulness of the SG’s amicus briefs, many observers seem to approve of the status quo, and applaud the SG filing numerous amicus briefs, and their influence on the Court.

She couldn’t possibly believe the drivel she’s admiring here.  She went to Harvard herself.  She’s not stupid; she just thinks her audience is. 

But alas, she just echoes it all in her own piece:

…many scholars have lauded the SG’s active role in Supreme Court litigation, noting that the SG is an expert and unbiased source of information for the Court.

That “many scholars” feel that way is a great argument for a complete overhaul of legal education, especially if they also feel that “…the SG is an expert and unbiased source of information.”

I’m sure the SG’s office delivers high quality work.  So do many other litigants’ counsel.  But there’s something else to consider:  they’re also wrong a lot

Once Justice Stevens went on a little bit of a tirade about the favoritism the Supreme Court shows to the government

This Court has a special obligation to administer justice impartially and to set an example of impartiality for other courts to emulate. When the Court appears to favor the Government over the ordinary litigant, it seriously compromises its ability to discharge that important duty…because I am so firmly opposed to the Court’s favored treatment of the Government as a litigator, I would dismiss the writ of certiorari as improvidently granted.

He was writing in dissent, of course.

Isn’t it odd that in our system of justice, it’s an open secret that at least one kind of litigant is heavily favored in the nation’s highest court?  You would think that a candid admission that one litigant is to be favored over all others might generate a little heat out there in flyover country; but then the fact of it is hardly reported at all.

But whether people are aware of it or not, the SCOTUS relationship with the SG’s office is a big problem.  In childish terms that might actually be appropriate in this context, judges on other courts will see the SCOTUS playing favorites, and who they’re playing favorites to, and do the same thing, with the same litigants, or types of litigants.

And that winds up explaining a lot.  Although would that it were otherwise.

 

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Insultingly Short And Remarkable – Another Parable of Prosecutor Perfidy

It’s a Good Thing that every once in a while the New York Times takes up the subject of lying and cheating prosecutors.

Today’s installment is one Ken Anderson.  Curiously, a full news report about Mr. Anderson appears across the pond.

So we can add Anderson’s name to our gallery of “rogue” prosecutors.  He joins such luminaries as Michael McFatridge and Tom Moran.  Like Moran, Anderson went on to become a judge.

Ugh.

Anderson gets 10 days in jail, a $500 fine and 500 hours of community service.  His victim, undoubtedly one of many unknown others, got 25 years behind bars for a crime he did not commit.  Thus the Times’ characterization as “insultingly short”.  According to the Innocence Project, he is the first prosecutor in the nation to be jailed for withholding exculpatory evidence.  Thus the Times’ characterization as “remarkable”.

Are there a lot of prosecutors like Anderson?  I think not.  Are there more than we would like to admit?  Yes.

One thing that should occur is a complete review of every single conviction Mr. Anderson obtained when he was a prosecutor.  And every single conviction occurring while he was a judge – for 11 years, apparently.  But there’s no indication anything like that is going to happen.

The damage from even one wrongful conviction is incalculable.  Because this is so, we have a whole “system” the purpose of which is to prevent them from happening.  That system is failing, and apparently has no clue how to right itself.  In the Navy, a system wide failure so fundamental and of such magnitude would probably result in a service wide “stand-down” to recalibrate and re-assess.

Here’s a little factoid that brings no comfort:  the United States Department of Justice has a Grand Jury Manual that is used to train federal prosecutors.  Here is how that manual addresses the “issue” of the deliberate use of perjury by prosecutors to obtain an indictment:

A few courts have dismissed indictments because of prosecutorial abuse before the grand jury on due process grounds. Dismissal on due process grounds is rare because most courts view grand jury proceedings as outside of the scope of the due process clause, the indictment being a mere technical instrument to bring on the trial.  A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

(citations omitted)

The not so subtle message of the Department of Justice Grand Jury Manual, then, is that the deliberate use of perjury before a Grand Jury by a prosecutor is no big deal, and does not warrant dismissal of the resulting indictment as violating the accused’s right to due process of law.

Two very important observations must be made here.  First, the manual is wrong on the law.  The “weight of authority” – indeed the unanimous authority – was, is and always has been that the deliberate use of perjury by prosecutors at any stage of a criminal prosecution violates the accused’s right to due process of law.

But second, and perhaps more importantly, deliberately presenting perjured testimony is not only unethical conduct for a lawyer, any lawyer; it is also criminal conduct.  For anyone.

Thus one begins to wonder just how many prosecutors are – well, warped.  And how they got to be so warped.  As in, you know, what the hell happened?  Is there a back story to all this?  There has to be.

And there is.  There are some particulars that can be set forth in a blog post, and maybe some day I’ll get around to that.  But what is fairly required to really get to the bottom of it all is a full length treatise.  A book.  People may or may not be interested in such a book.  But they should be.  In any case, that project will have to await further developments already in process.

Sorry to be so cryptic, but prudence dictates a certain amount of discretion here.

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Perplexing

I follow developments in the justice system pretty closely.  At least I think so.  Certainly more than the average person, if only for the reason that it’s my bailiwick.

So how come this is the first first news I’ve heard or seen about this legislative effort?

Too late to do anything about it now, at least until the legislature reconvenes – which ordinarily is not something to look forward to, by the way.  Seems even the Innocence Project only got the memo a few weeks ago.

And so on.  Wrongful convictions, doncha know.

The lobby for the wrongfully convicted isn’t very organized, or effective.  Or funded.  That is, if it even exists.

Take a read about it, though.  This is a “reform” effort, and I don’t doubt that the proposals being considered – things like requiring full recording of suspect interviews and double-blind line-ups – would do some good.  But it’s not really even scratching the surface.  Not by a long shot.

At the risk of being accused of self absorption*, I have to nevertheless point out that if somebody wants to figure out why things too often go so horribly awry in the criminal justice system they need to make a full study of this case.  It had nothing to do with faulty eyewitness identifications or false confessions.  It wasn’t a “mistake”:  no one even remotely familiar with the evidence could possibly have believed in the accused’s guilt.  There is something much deeper – and much worse – that must account for it.

Close as I am to the whole thing, and knowledgeable about both the case and the relevant law as I am, I’m not sure even I could describe it too well to anyone, although I have this feeling I know what it is.  But it’s more like seeing through a glass darkly, I guess.

You have to keep your sense of humor.  In any case, consider this tidbit from Gary Craig’s article:

In response to questions, representatives of the District Attorney’s Association referred to a June 21 letter from Association President Cyrus Vance Jr., the New York County DA, to legislative leaders.

The letter notes that Cuomo’s proposals are the offspring of the New York State Justice Task Force, created by Chief Judge Jonathan Lippman largely to tackle the issue of wrongful convictions. The District Attorney’s Association backed those proposals for double-blind photo arrays and videotaped interrogations, Vance wrote.

However, he noted, neither the task force nor the District Attorney’s Association agree with mandated double-blind physical lineups. There was police opposition to the proposal, especially in New York City, where physical lineups are commonplace.

“There was police opposition.”  Well, there ya go.  Somehow “Innocence Project Support” and “Police Opposition” don’t cancel each other out.

This is a lot closer to the nub of the problem.

Notice, too, that the relevant “officials” involved in the official conversation in officialdom about all this are….District Attorneys and their “association”, cops and their “association”; and judges and their “commissions”.  The criminal defense bar is evidently too irrelevant to even be consulted, or for that matter even quoted in a news story about wrongful convictions.

This, too, is much closer to the nub of the problem.

Then of course you have the governor, yet another profile in political and moral courage:

“The governor would love to have this happen but he also wants all the interested stakeholders to come to an agreement,” he said.

See, if all the “interested stakeholders” come to an agreement the governor doesn’t have to risk anything by signing on.

And this is the official dithering that takes place in officialdom in the face of the otherwise distressing fact that New York is among the top three states in committing wrongful convictions, in a country where wrongful convictions are finally being recognized as a serious problem.  I say “otherwise” distressing because although normal people do find it quite distressing apparently it isn’t distressing enough to legislators and political “leaders” to so much as lift a finger over it.

And this, I think, is getting really close to the nub of the problem.

If you have rulers who would rather preside over a state that frequently and  willfully brands innocent people criminals, incarcerates them and figuratively – and sometimes literally – murders them, than make any effort to correct that behavior because it might cost them the tiniest pittance of political discomfort, then why would anyone be surprised that the state is number three in wrongful convictions?  The only surprise is that the state is not number one.

But don’t worry, we’ll get there.

The wrongful convictions, the systemic corruption in Albany, the radiant and glittering barbarism and lawlessness of Wall Street – it’s all of a piece, isn’t it?

It might help – a little – to tape police interrogations and put a safeguard or two into police lineup procedures.  But without some basic adherence to virtue among those holding the reins of power it will be just so much tinkering.

And that, I feel certain, is really really close to the nub of the problem

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* We here at Lawyers on Strike are convinced of our own nearly perfect objectivity in this and many other matters, but understand that for others, and for various reasons, the idea of objectivity itself is an impossibility and thus all human conduct is at bottom explained only by self-interest (or other pathologies) and of course at that point any seemingly disproportionate conduct or emphasis by any person on anything within that person’s experience becomes susceptible of the accusation that such a person is “self-absorbed”.

Therefore, in this instance the “self-absorbed” accusation is essentially the product of circular reasoning, not to mention that if the denial of objective truth behind the accusation is inaccurate the accusation is also highly unjust and potentially destructive.

We make this point only for the sake of accuracy and truth, of course, which we are able to do because we do not regard such things as myths on the order of unicorns and fairies, though of course we also recognize, being objective, that for many others these are impossibilities and their consequent accusations are always, in the end, unanswerable.

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Re-thinking Jodi Arias (Updated)(x2)

So, passers by might have noticed an unusually large number of comments to my last post.

I post about a lot of things, but of course since this is mostly a legal blog, or “blawg”, cases with notoriety often receive attention.  Two years ago the world was abuzz with the Casey Anthony case, and I certainly did a lot of posting on that.  It took up a lot of time and I figured I probably wouldn’t go down that road again with another case.

So I hadn’t paid much attention to the latest in this line, the Jodi Arias case.  But lots of people were paying attention and it was the usual one sided news coverage and so on.

The people who came over here to comment discussed a lot of the details of the case and it appears that there were very strong evidence supported arguments that maybe Jodi Arias – who is now convicted of first degree murder – didn’t kill her boyfriend Travis Alexander at all, and that some other or others might have while she was present, and wound up not killing her as well.  This in fact was the story she originally told, but apparently no one believed her and by the time of the trial her lawyers were arguing self defense, taking the position that she did kill Travis Alexander.

Now, from a defense lawyer’s perspective, it’s very difficult to envision a scenario where you would opt for a self defense argument if you had a good argument that someone else “did it”.  One reason might be the judge.  Judges, who want to convict the defendant as much as the prosecutor, know how damaging to those prospects it can be if the defense offers another culprit when there is some good evidence to support it, so they will often refuse to allow any evidence of any other perpetrator to be admitted, under the rationale that it’s the defendant on trial, not someone else.

That’s completely illegitimate of course, but it often happens.

In any case, this blog’s format makes it difficult to keep track of comments to one post when there are so many, so here’s another post where people can comment and won’t have to scroll through hundreds of other comments to find the one they’re responding to.

Might post more on this later.

Update:  Actually I’ve been unfair to her lawyers.  The problem is the death penalty.  If you go with the third-party-did-it scenario, well then if the jury goes with it you get an acquittal.  But if they don’t they can only convict on the top count and they sentence your client to death.  But if you go with self defense and put her up there so they get to know her, you can ask for lesser convictions that don’t involve the death penalty and there’s evidence to support that.

That’s a legitimate strategy under the circumstances.   Sheesh.  What a lousy game.

Update 2:  I guess I should have seen this coming.  As if the government didn’t have enough advantages when prosecuting people, now there’s a move afoot to pass “Travis Alexander’s Law” to prevent criminal defendants from “trashing” murder victims.  Ugh.

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Casey Anthony’s Judge Belvin Perry

He reveals himself, once again, and shows why juries are so essential.

He’s playing every establishment card.  The prosecution “proved its case”.  He was “shocked” at the verdict.  The government had “better lawyers”.  How come they lost, then?  Oh, yes.  Baez won because he was like a “used car salesman”.

If he’s being honest, he should be disbarred for incompetence.  His “analysis” of the evidence isn’t just wrong, it’s breathtakingly ridiculous.  The prosecution didn’t prove its case and there was nothing shocking about the verdict, except that the jury managed to overcome Perry’s herculean efforts to browbeat everyone into convicting Casey Anthony.

If he’s not being honest but just playing to the crowd in the hopes of landing one of those lucrative reality TV contracts for tough judges, he should be disbarred for bringing the profession and the judiciary so low in pursuit of personal gain.

Just disgusting.  Ugh.

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Anybody Want To Strike?

So, it’s the Bronx.  And in the courtrooms of the Bronx, unlike almost everywhere else in New York State including Manhattan, regular people – not just celebrities – are acquitted of crimes and awarded substantial damages in personal injury actions with some regularity.  Seems to be something about the jury pool.

But there’s no jury at the Appellate Division, First Department, to which the losing party can appeal.

So this jury in the Bronx awards some guy over $2 million on an excessive force claim because the police tased him when he was having a seizure, and it’s pretty lucky under those circumstances the guy wasn’t killed.  And on the appeal the Appellate Division reverses, throws out the entire jury award and directs that the case be dismissed. (h/t Scott Greenfield)

Their rationale for doing this was, basically, they took exception to the jury’s reasoning.

Now as I have noted many times in earnest (most recently here and here) - and as one of my colleagues has better illustrated through his/her customary satire – when it comes to jury verdicts there appears to be a rather pronounced double standard in the intermediate appellate courts:

In Part I, I trace the origin and history of courts’ purported deference to jury credibility determinations. I say “purported” because, when it comes to important matters like money settlements, courts have no hesitation about setting aside jury verdicts. See Behemoth Leviathan RR Co. vs. The Widow Jukes (1920). It’s only in criminal matters that the jury’s sense impressions become sacrosanct.

To call it a “double standard” is, of course, putting it mildly.  It’s as if when a jury finds a criminal defendant guilty we wax poetic about the sanctity of the jury; but when a jury awards “too much” to some regular schmuck we’re practically delighted to second guess them.

Consider just this one aspect of such a ruling:  even if it is the Bronx, getting a jury exercised enough to award $2 million or more for a regular person takes a lot of doing by the attorney.  A lot.  No one who hasn’t done it could possibly understand what’s involved in any tangible way, and “no one” assuredly includes every member of the Appellate Division’s panel.

So one effect of the ruling is to generate discouragement and even despair among the Plaintiff’s bar.

And here’s another thing.  Just because a jury awarded $2 million doesn’t mean the Plaintiff can collect it, even if the appellate court doesn’t fuck with the verdict.  There might not be insurance available to cover it, for example.  Although in this case there probably was coverage, which is why the AD took such an interest and reversed, whereas in almost every other case where the favored litigant wins and the disfavored litigant loses the AD just mindlessly affirms.

That, too, lends itself to satire.

How does this go on in the appellate courts?  A very big part of the answer to that question is that the power differential between favored litigants (government, bank, insurance company) and disfavored litigant (non-famous, non-wealthy regular individual) is huge and there’s no way to bridge it.  No conventional way, that is.

Anonymous satire is all well and good, and we need to keep our sense of humor, but ultimately this is a classically corrupt court decision – and make no mistake that gross favoritism to the powerful is corruption, whether it’s conscious or not – that calls for a lawyers’ strike by the members of the disfavored litigants’ bar; that is, the criminal defense guys and the PI Plaintiff guys.

Unless and until the judges on the Appellate Divisions and elsewhere pay some price for their outrageous partisanship and toadying for the more powerful against the weaker there is no reason for it to stop.  Surely that decision deserves at least a one-day work stoppage and protest in the First Department.

You – we – have to make them pay.  We have a simple, easily accomplished, traditional and non-violent way to do that.  If we refuse to even try then the “system’s” continuing dysfunction is not just the Appellate Division’s fault.

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SCOTUS’ True Leanings

It is the common thread that ties all of the otherwise seemingly diverse rulings and ideologies together:  contempt for, or maybe fear of, freedom and equality before the law for what might be termed “ordinary” folk.  This was on display in a unanimous ruling issued earlier this week in the case of Kiobel v. Royal Dutch Petroleum.

The statute at issue, 28 U.S.C. 1350 (known as the Alien Torts Statute) is a model of elegant clarity and simplicity from an earlier era, namely the era right around our nation’s founding:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The one line statute gets clubbed to death in 35 pages of “statutory interpretation“, and eventually of course it winds up not meaning what it obviously says at all; indeed it more or less means nothing after the SCOTUS is through with it.  Sort of like 42 U.S.C. 1983, which ostensibly deals with an entirely different sort of wrong but to the SCOTUS it’s the same issue:  how to keep down the rabble in fly-over country and their ilk anywhere else in the world with the temerity to come into a federal court – a federal court! – making outrageous demands.  Remember the scene from the Wizard of Oz when they finally get in to see the Wizard?

Bad Wizard, SCOTUS!

https://www.youtube.com/watch?v=NZR64EF3OpA

Technically, the issue in the Kiobel case is whether the statute can be applied to conduct occurring outside the United States.  The obvious answer to that question is that this is precisely what the statute is for, and indeed it has no other intelligible purpose.  How the SCOTUS winds up deciding the opposite is illustrative.

First, let’s stipulate to the legion of cases dealing with questions of statutory interpretation wherein it is said that if the statute has a plain meaning, no further interpretation should be done.  The “plain meaning” thing is a favorite of conservatives in other contexts, such as when it makes a criminal defendant or a personal injury plaintiff or any other litigant who’s an individual going up against some institution lose; this time, however, the plain meaning of the statute favors the little against the big and so suddenly we don’t like “plain meaning” anymore.  Now we get to “interpret” the statute, which means we can rationalize throwing the little guy out of court, which is what we want to do in the first place because: a) little people are messy and unappealing; and b) if we open the courthouse doors to them they’ll clog up our dockets with their silly little concerns - like in this case, oh, genocide – when we have important criminal cases brought by the government that we have to address.

So how is this “interpreting” done so that it doesn’t seem to be the thought process I just described even though that’s what it really is?

Well, they start with this “presumption” on the first page of the opinion:

“[w]hen a statute gives no clear indication of an extraterritorial application, it has none,”

One might think that it’s a pretty clear indication that a statute has “extraterritorial application” if, without it, it’s unintelligible and without purpose – and of course you are never supposed to interpret a statute out of existence, that’s another rule of “interpretation” -but never mind that for now.

As support for this “presumption” the SCOTUS can go all the way back to 1932 and a case called Blackmer v. United States, but since the linguistic formulation of the presumption in Blackmer isn’t quite good enough for our purposes here – which is to screw the little guy – we’ve changed it in our oh-so-clever SCOTUS fashion.  See, Blackmer in referring to this presumption says: “… the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States…” and if you read that in context it’s not clear that the 1932 SCOTUS is setting up any kind of formal “presumption” at all; it’s probably just stating the obvious matter of factly.

But again, never mind.  We have an agenda - remember?  – screw the little guy.

So we go up to 1949 and now the off handed musings of the 1932 SCOTUS are formalized into a rule of interpretation, but of course intellectual honesty was more common then so they didn’t change the wording:

The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, Blackmer v. United States, supra, at 437, is a valid approach whereby unexpressed congressional intent may be ascertained.

That case is Foley Bros. v. Filardo.

Then we bring ourselves up to 1957 and the case of Benz v. Compania Naviera Hidalgo, and the language of the “canon of construction” has not been altered, but the 1957 SCOTUS adds by way of explaining itself further:

And so here such a “sweeping provision” as to foreign applicability was not specified in the Act.[7] The seamen agreed in Germany to work on the foreign ship under British articles. We cannot read into the Labor Management Relations Act an intent to change the contractual 147*147 provisions made by these parties. For us to run interference in such a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed.

This language was dicta, summarizing the Court’s rationale not modifying the rule, but it sure came in handy as the Rehnquist SCOTUS began to come into its own in the 1990′s, with its barely disguised hostility to any ordinary-individual-initiated litigation, which apparently all belongs in small claims court, or maybe on Judge Judy, where the rabble can go and obtain whatever piddling relief they might deem themselves entitled to.  I mean, who cares, right?  We’ll let them sue each other.  Gives them something to do.

But again, we can’t come right out and say things like that, so we do a little mixing and matching:

In applying this rule of construction, we look to see whether “language in the [relevant Act] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.” Foley Bros., supra, at 285. We assume that Congress legislates against the backdrop of the presumption against extraterritoriality. Therefore, unless there is “the affirmative intention of the Congress clearly expressed,” Benz, supra, at 147, we must presume it “is primarily concerned with domestic conditions.” Foley Bros., supra, at 285.

The dicta of Benz gets combined with the rule of Foley Bros, and presto!  The “presumption” has acquired that draconian strictness pressed mercilessly down upon the rabble for which the Rehnquist court, Lloyd Blankfein and Jamie Dimon have become so widely admired.

It was 1991 and the case was EEOC v. ARAMCO.  That case dealt with the extraterritorial application of Title VII civil rights claims, a claim that would have failed under the older, less draconian formulation of the presumption anyway, but this is the Rehnquist SCOTUS and we’re really getting fond of applying really strict rules even when we don’t have to, as long as it permits us to tell the little guy ‘no’.

So now we’ve gone from 1932 musings, to a “rule of construction” and “presumption” by 1949 providing that “…unless a contrary intention appears…” US statutes do not apply extraterritorially to a tentative “..unless there is the affirmative intention of the Congress clearly expressed…” US statutes do not apply extraterritorially in 1991.  And this becomes how we do things.

And then by 2010 some poor slob is trying to sue an Australian bank in the wake of all that bankster perfidy, and of course we can’t have the rabble suing banks because we have our “policies” doncha know that this will all be handled by some “Troika” or other, and by this time we have our rationale “well settled” even though it’s a pretty major deviation from the original idea in 1932, but anyway it’s really handy and ladies and gentlemen I give you Morrison v. National Autrailian Bank.  And all the verbiage doesn’t really matter because the bottom line is, as it has been for so long now, that the bank wins and the little guy loses.

And so finally – and it had to come to this – the question becomes are we going to extend our illegitimate “presumption” so far that we will toss the rabble out of court even when the issue is human rights abuses under international law, which would seem to be specifically contemplated by the Alien Tort Statute when it mentions the “laws of nations”.  Of course this means, and the Plaintiffs in Kiobel alleged, things like extrajudicial killings, crimes against humanity, torture, arbitrary arrest and detention, and so forth.  The idea is that the international companies doing business (and having copious assets) both in Nigeria, where these things allegedly occurred, and the United States - to which the Plaintiffs fled and were in fact granted asylum – had a hand in these atrocities and by being forced to compensate the victims maybe they would think better of participating in such things and maybe even take some affirmative steps to ameliorate them, what with all the financial pressure of having to compensate victims and all.

In other words, this would be litigation having the salutary effects of compensating victims of human rights abuses and providing economic incentives to human rights abusers to stop being, well, human rights abusers.  And we have lots of lawyers in this country that need good paying work and maybe this would be good paying work for them so you kill two birds with one stone.

But this is the SCOTUS, and so obviously such litigation cannot be permitted.  This kind of thing is all handled by the State Department, just like financial institution corruption and wrongdoing is all handled by the Securities and Exchange Commission.  That way everything truly ‘important’ gets run through Washington, important referring to any sizable amount of money changing hands, or anything coming within arguable range of some DC determined “policy” or other which increasingly means pretty much anything, period.  Because Washington apparatchiks and wonks like Ilya Shapiro are really smart and they should run everything, along with the morons prestigious economists at the Federal Reserve.

And I’ll just throw in that the SCOTUS is obviously wrong here.  The Alien Tort Statute’s only discernible purpose is to authorize just the kind of lawsuit the Petitioners in Kiobel brought, that is, a tort occurring outside the US.  Torts occurring inside the US are obviously cognizable in some state or federal court anyway, so the way they’re reading it the statute is purposeless nonsense.  And, are they going to apply that same “presumption” the same way when the USG wants a criminal statute to have extraterritorial application?

Ugh.

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Required Viewing – The “Central Park Five”

Apparently to be aired on the PBS network tonight.

Maybe they won’t pull any punches here, which would be good because this is an important story.  The degree and extent of our system’s failure here is not, unfortunately, so much shocking as it is instructive.  I don’t know all the details.  It would be interesting to learn how anyone ever got to the bottom of it, after the system achieved its beloved “finality” and the jailhouse doors had been closed, locked and the key long since discarded.

Of course the kids were innocent.  Vulnerable.  And innocent.

I hope it turns out to be a parable.  About them, of course.  But especially about us.  I don’t imagine it’s going to be too flattering.  From everything I know, it shouldn’t be.

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The Essence Of It

The burden of proof on private plaintiffs in civil litigation is actually higher than it is on the government.

Don’t take my word for it.  A New York judge has written it all down.

“We recognize that it might be unexpected that we are dismissing a substantial portion of plaintiffs’ claims, given that several of the defendants here have already paid penalties to government regulatory agencies reaching into the billions of dollars,” Buchwald wrote. “There are many requirements that private plaintiffs must satisfy but which government agencies need not.”

……

Explaining her decision to dismiss the claims after the regulatory settlements, Buchwald said private cases must be“examined closely” to ensure plaintiffs are “properly entitled to recover and that the suit is, in fact, serving the public purposes.”

“The broad public interests behind the statutes invoked here, such as integrity of the markets and competition, are being addressed by ongoing governmental enforcement,” she said.

 

Not that I have any particular fondness for the Plaintiffs in the action, who are largely other shady Wall Street outfits like Schwab.

But to see a judge actually rule in the open that lawsuits will be subject to different standards and more scrutiny depending on who the litigants are?  It’s a gift, I suppose.  The truth seeps out when no one is looking.

 

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Outrageous And Routine

It’s good that Greenfield is on this one.  A lot of lawyer-bloggers should be.

Read more about it here.

A couple of points.  There’s nothing at all unusual about the evidentiary ruling in this case, as wrong and blatantly partisan as it is.  This is what judges do:  they use their position to preserve the status quo.  That means they don’t like acquittals in criminal cases and they try to prevent them, which is to say they try to ensure guilty verdicts.  And they really don’t like “high” jury verdicts in civil cases in favor of lowly individuals and against institutional litigants, so they do what they can to prevent them.

And as the linked story shows, they can do quite a lot.  They can eviscerate your case so that you can’t really present it fairly to a jury if you follow their rulings.  They put you in a position where you either have to comply with their rulings and lose, or defy them and risk contempt findings, mistrials and assorted other consequences that ordinarily will also mean losing.

One commenter to Greenfield’s post suggests an interlocutory appeal.  Probably the optimal thing under the circumstances without going too far afield, but of course an interlocutory appeal is going to delay things beyond what any plaintiff’s lawyer would have reasonably budgeted for the time the case would take; no matter how wrong the ruling appealed from, it is quite unlikely to succeed; the Plaintiff’s lawyer would probably have to finance the appeal out of his own pocket and might not be able to; and even in the unlikely event that an appeal is successful, the trial judge can and will continue to undermine the Plaintiff’s case in other ways, and will probably be able to undermine any appellate court’s directions on remand, too.

This is the reality of the situation.  It has nothing to do with the ‘law’, and despite the judge’s remarks it has nothing to do with conserving judicial resources; it’s about who has power over who.  Any individual Plaintiff’s case going up against an institutional litigant is extremely fragile.  It’s easy for a judge to fuck it up when they want to, and of course they want to, and there is no really effective system-approved remedy for that.  Going to trial hamstrung is no remedy.  Getting held in contempt is no remedy.  And appeals are no remedy either.

The second point is this:  the case has wider social ramifications, especially for the Oakland area.  Indeed, unlike the vast majority of criminal cases brought by the government, this case is actually socially important, and it’s a prime example of why we have courts and permit causes of action for civil wrongs where we compensate wrongfully injured people.  The alternative, in context, is free rein for certain segments of society – police and banks come to mind – to injure others of lesser status with impunity.  This leads eventually to civil unrest and lawlessness.  And Oakland is fertile territory for civil unrest and lawlessness.

So I think the answer to this judge’s malevolent ruling isn’t an interlocutory appeal – it is a lawyer’s strike.

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The Continuing Need For Federal Habeas Corpus…

… ‘testilying’, and the myth of “the new professionalism“.  State courts simply aren’t up to the job, and never will be so long as prosecutors’ and judges’ (or do I repeat myself?) unapologetic devotion to their own political self-interest trumps any devotion to duty.

You should read the whole article, but here are a couple of choice quotes:

“Officers are very rarely if ever investigated or prosecuted for the kind of “testilying” that they do, in part because the whole prosecution machine depends on testilying,” said Gideon Oliver, the former president of the NYC National Lawyers Guild, who has represented many defendants in street protest arrests.

…district attorneys have to work with police in making their cases, so they’re very gun-shy with taking steps that might alienate either individual officers or the NYPD as a whole,” … “There’s also the politics of it. Taking steps to impugn a police officer or the NYPD involves some political risk,” Gangi says. “Every District Attorney in the city is a politician, an elected public official, and is therefore reluctant to be seen as an antagonist of the police.

The latter quote is, of course, a frank endorsement of broader, not narrower, use of federal habeas corpus, where at least some – not all, but some – of the political risk is abated.

The government and its police already have enormous advantages in their courts.  It’s pretty disgusting that on top of that some of them believe they can lie and cheat, too.

Not to mention intolerable.

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Assigned Roles, “Making A Living” And Lawyer Blinders

As a result of the division of labor, among other things, we all have parts to play in the economy.  We’re responsible for some few things.  Certainly not everything.  Not even everything pertaining to some small component of everything.  If we work on an assembly line we might only be called upon to put a few bolts in an exhaust manifold, a tiny component of a car, which is itself a tiny component of the larger transportation industry, which itself is just one component, albeit a major one, of the developed economy that despite its problems we are still lucky to be a part of.  Even if that means we are a bit less self reliant, manly and ruggedly individual than we used to be.

Nevertheless, it would be fair to say that economically the more a person is responsible for, the more important he or she is seen as being, and the more that person is paid.  Leaving aside for a moment how responsible these people in fact are, this is nevertheless the idea.  The CEO of General Motors is highly compensated compared to the line worker because he is responsible for the whole company, not just a few bolts in a few manifolds.

Of course this is all economics.  Economics is an important subject.  But in civilized countries it has never been thought to be the alpha and omega of guiding or evaluating conduct in society.  I’ve dealt with this elsewhere:  on an economics basis alone you cannot quarrel with Al Capone or other criminals.  If advancing yourself unjustly at the expense of others is seen as par for the course, society will come unglued.

Standing above purely economic concerns stand the professions, probably still the most prominent among which are medicine and law.  I say “purely”.  Because nothing of any significance can be done without financial wherewithal, and that includes medicine and the law, but the professions are not solely about economic concerns.  There is bodily health and healing.  And there is justice.  And these are more like preconditions to having a functioning economy of human beings in the first place, sort of like Kant’s idea that space and time are not really “things” themselves, but rather a priori preconditions for perceiving things in the first place.

But there’s this danger that the members of the professions themselves can forget all that.  If they ever knew it, that is, so few of them having read Kant and all.

From an economics perspective the practice of law is not intelligible.  There are very important things to be done that do not pay; there are relatively unimportant things that do.  Historically – but not now – we often paid lawyers handsomely and gratefully when the occasion presented itself, at least in part because of the former.

But of course maybe it all is economics after all, because implicit in that particular trade-off was a social bargain imposed upon the lawyer:  when the very important but non-paying thing that has to be done comes up, the handsomely paid lawyer had better well do it.  And truth be told many small practices – at least the ones I am familiar with – observe all of this, albeit somewhat haphazardly and informally.  They operate as wealth redistribution agencies with regard to legal services, using the well-paying clients to keep afloat and using any leftover time for needy clients and needful work that doesn’t pay.

Now admittedly this discussion is all a bit academic in real life, because the legal profession as a whole is so corrupted and moribund.  But academic discussions are not entirely without value if they tell you why something is awry, because maybe then you can know what to do about it.  If you can do anything, that is.

If anything can be done, might be a better way of putting it.

In any case, now that we’ve reached the question of knowing what to do, let’s look at this, via Scott Greenfield:

Consider this: Nearly half of those who graduated from law school in 2011 did not quickly find full-time, long-term work as lawyers.

The quoted dean has, to put it mildly, a talent for understatement.  And of course Greenfield is all over it in response:

Quickly? How about not at all. Not long-term. Not short-term. Not slowly. As for the ones who did, how about at salaries that can’t carry the debt-load while feeding themselves, no less their families, or terminal positions that run dry when the case is over, or dead-end positions that will never provide a future?

And of course this is the economic aspect of the problem, to which both the dean and Greenfield are acutely attuned.

But this is a profession, remember?  So when the dean, steeped in academic pettifoggery and tin-eared as he is, points out something else:

Yet the need for legal representation has never been greater. In New Jersey, where I teach law, 99 percent of the 172,000 defendants in landlord-tenant disputes last year lacked legal counsel.

…he’s onto something, isn’t he?  It may seem absurdly focused on system wide professional concerns rather than economic ones, with the “trench lawyer” firmly mired in the latter while the academic remains mired in the former, but the end result is just two lost souls talking past each other.

There is a lot of work that lawyers should be doing.  And it is true that at present it doesn’t pay, so it doesn’t get done.  That doesn’t mean that it will always be that way.

These people need legal help, for example.  Can’t see any money in it for the lawyers, though.  Not in the short term anyway.  But there could be, later on.  It really depends on what judges do.  And a lot of things are like that.

If judges started doing their jobs, which is applying the rules of law even-handedly instead of toadying for the rich and powerful to whom they owe their positions, legal work for the poor would wind up being effective, rewarding and remunerative.  And then there are a lot of lawyers to do the work.

But truth be told, and unfortunately, this idea turns the system on its head.  Independent lawyers, being important components of the system at least inasmuch as the system requires them for credibility, could do that if they tried, but they don’t want to.  They’re concerned with making a living for themselves.  As much as they resent the pecking order that is the real law operating in practice – the government wins, the bank wins, the insurance company wins, the big firm wins – they accept their assigned role and fight those they think are beneath them for the crumbs falling off the table of the higher ups.  It makes them fundamentally no different from those higher ups:  they’re players in the same system, just bit players instead of heavy hitters.

Meanwhile the system to which they all belong is collapsing.  It no longer performs even the most rudimentary function of distinguishing between guilt and innocence, its very raison d’etre.  Yet like some warped petty bureaucracy, this catastrophic flaw is seen as just one among many:

Like the statistics for rape, the statistics for drug offenders are suspect. Ask an AUSA and almost every co-conspirator is a major player. Ask a defendant and they’re just a cog in the wheel. But like those whose concerns are limited to the wrongfully convicted innocent, suggesting the guilty can rot in hell, the Times plays up the low-level offenders angle, even as Judge Gleeson knows better.

So, Judge Gleeson and Scott Greenfield know better.  The wrongfully convicted innocent are one problem with the system, the over long sentences of the guilty are another.  It’s just all one big system making its occasional mistakes and we all play our parts, and as the wizened veterans of the trenches our job is to “fight”:

In the meantime, however, we have judges like John Gleeson, and we do better by continuing to fight, to argue, to persuade, others to appreciate and follow his lead. As long as defendants are prosecuted, we don’t have the luxury of feeling defeated and giving up.

Of course it’s just a coincidence that the “system” we preserve by “fighting” inside of it provides our living.  Or at least for some of us it does.

So let’s get this straight:  you have a branch of the government one of whose primary tasks is to identify and exonerate innocent accused persons that renounces that obligation at the highest levels, suggesting that that task can be punted back to the executive branch because of its power to “pardon”. (See part IV of that brief.  Why does that even have to be argued?)  And besides that, and worse, refuses in practice to apply the rules of law even-handedly across the board while of course claiming the opposite, blatantly favoring certain kinds of litigants such as the government, banks, and insurance companies over everyone else.

And the solution to all this is….”legal practitioners“?

The alternatives to “pie in the sky” solutions can’t entirely consist of fiddling while Rome burns.  A lot of lawyers should take off the blinders.

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Lawyer Risk Management And Another Troubling Cop Incident (Updated.)

But not “troubling” for the reason(s) most people think.  If there were a national conversation, outside of a few obscure blogs (blawgs?), about the power imbalance in the criminal justice system this story would be played big all over the country.

As things stand, it will just be another squalid little tale from an upstate New York backwater, where a police officer apparently (allegedly) killed – indeed, allegedly murdered – his own son in the proverbial “isolated incident”.  The incident, while a factually extreme example, is not “isolated”.  Far from it.  It’s part and parcel of the larger problem.

It’s important to get this distinction, which sadly might be too subtle for many people:  the story here is not that the police officer abused his power; rather, the story is that a police officer could ever conceive of abusing his power in this manner to begin with.  The former is the stuff of “isolated incidents”.  The latter is intrinsically related to systemic abuse of power that trickles all the way down to the police department of Perry, New York, where the police officer in question plied his trade.

There aren’t a lot of details in the story, but it appears that the shooting death occurred more than half a year ago and there was no doubt about who had done it.  The inference, then, is that some evidence was procured in the intervening six months that led someone in authority to believe that the shooting was not an accident, as the officer had first claimed.

And without of course prejudging anything, another inference:  the evidence would have to be strong enough to convince whoever decided to prosecute that they could convict a police officer.  This being no mean feat, it’s fair to conclude that the police officer committed a major screw up if such evidence exists.

Perhaps some readers can understand how dangerous this all is:  narcissists and psychopaths with badges and guns and an inner certainty that they are invincible.  Assuming the truth of the charges against this officer, I can point once again to this, the hopefully now infamous Ashley Baker statement.  This statement is the kind of evidence that should get any criminal caught, even if the criminal happens to be a police officer.

Yet after more than 9 years, not only has the police officer/criminal not been caught, but the beloved “system” has backed him entirely and has done to his victim exactly what the cop wanted it to do.

Here’s another fair inference:  every cop in Mount Morris, New York, where this contemptible fraud and atrocity over Sephora Davis occurred, knows exactly what happened.  It’s the stuff of legend within that tiny but still way overstaffed department.  And you know what else?  Perry, where the cop who killed his son has been “working”, is right across the County line from Mount Morris, and the same officers often cross-pollinate both departments, both departments being widely regarded as depositories for cops with questionable backgrounds.

And another thing, directed to certain lawyer-bloggers who have largely acted like dimwitted simpletons in assessing some of the facts and concerns I have written about on this blog in connection with the Sephora Davis matter.  I have in mind in particular the concern over my own personal safety, and to a lesser degree my client’s, arising from the whole affair:  again, assuming the truth of the charges, this cop murdered his own son and was obviously convinced he could get away with it.  We don’t know anything about the motive, but it’s certainly a fair inference that there was one.  We know with certainty that Dana Carson (who is still a police officer) and others more or less known or unknown have and have had for 9 years a strong motive to kill me.  Under the circumstances it is not, of course, comforting that there are some and possibly many having this motive that are unknown to me.

The point being that if this personality type – narcissistic and psychopathic – which is disturbingly common among police officers (and, by most educated estimates, much more common in the Mount Morris and Perry police departments) is capable of such a despicable crime against a fellow officer who also happens to be his own child, how much risk do you think there is to an outsider who has crossed them, is a popularly despised “defense lawyer” and seems to have no friends or supporters of any significance?  How easy would it be to arrange that person’s death with no one suspecting anything?

Maybe it’s my military background, but this strikes me and I think should strike any reasonably prudent person as a real and tangible risk.  Not a probability, for those unfamiliar with the idea of “risk management”, but probability is not the earliest point at which you take steps to mitigate risk.  By the time a serious risk (such as, say, that you will be murdered) is probable you are already behind the curve in preparing to mitigate it.  Of course, there is no certainty unless and until the risk has been realized, but at that point you absolutely know what to do – or in this case you know that nothing can be done.

In other words, anyone in the kind of position I have been in who didn’t take steps to address such a risk would be very foolish indeed.  And it is fair to question the judgment of those who scoff at simple prudence in such a deadly serious context, a professional context with which they claim expertise and hard earned familiarity.  It isn’t just prosecutors that face risks to their safety as a result of their work, and it’s a far more difficult situation for defense lawyers.  Like everything is.  That shouldn’t surprise even the most foolish of the criminal defense bar.

Update:  Only a day since the Perry cop story broke and it has disappeared from most of the local news outlets.  Not here, but it’s buried pretty deep even on YNN.

Part of the reason is that it’s a difficult story to run with because, as the article indicates, the police who are charging their fellow officer are being really tight-lipped about just what evidence they have that has convinced them that it was a murder and not an accidental killing.  It had better be really good evidence:  they concede that the victim was shot only once.  And the defendant in this case is a cop, the one kind of criminal defendant that a jury is likely to acquit.

But I think the real problem is that the story “has no legs” because the narrative that cops can be criminals is highly, highly disfavored in the media, primarily for reasons of self interest, both short term and long term.

Maybe that should change.  After all, the narrative made for a pretty decent and profitable movie 20 years ago:

 

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