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.
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.
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.
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. SeeBehemoth 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.
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.
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!
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.
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?
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.
“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.
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.
… ‘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.
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.
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.
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:
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.
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.
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.
So this guy is convicted of “intimidating a victim or witness in the third degree”. He wants to call a witness in his defense, and while she is waiting in the courthouse to testify, the prosecutor arranges to have her arrested.
She never winds up testifying (surprise, surprise) so we don’t know what she would have said. Great. If you’re the government and you terrify some defense witness out of testifying at all, you win. If you’re a private individual doing the same thing – that is, even assuming this guy was guilty of intimidating a victim or witness in the third degree – you get charged and convicted after the government intimidates all your witnesses.
Nice incentives you put in place there, AD. Even the most mediocre intelligence at the police departments and prosecutor’s offices can figure out what to do now when the defense wants to present some pesky witness that might jeopardize a conviction.
The timing and circumstances of the arrest here yield an inference that is all but mandatory. That the AD can disingenuously dance around that with a truly laughable feigned ignorance tells you everything you need to know about how the system in working in New York at present.
Without getting into the merits of that case, the real question is: why wouldn’t a cop do whatever he felt like doing to vindicate his position? It’s only in the rarest of cases he word will ever be second guessed. The cop is just following his training.
And that comes down from the regional appellate court, setting the tone for the whole region. There could not be a clearer statement from the appellate court that witness intimidation, while a crime for everyone else, is a government prerogative.
This case will be little noted elsewhere, but CDL’s should be up in arms about it.
“I’m humbled by your show of support,” said Schiener to the committee in a speech following the vote. “You voted tonight for a clean, honest campaign. You voted for professionalism over politics.”
Please.
Schiener can’t even maintain this facade long enough to avoid contradicting it multiple times in the same news article. For one thing, having just mouthed the most pedestrian of political platitudes he goes on:
“I’m not telling the voters about platitudes and high ideals
Of course not. He’s feeding them platitudes, not “telling about them”. And “high ideals”? He’s from Tom Moran’s DA’s office. What are those?
Then comes the inadvertently revealing admission. Whereas Schiener regards “high ideals” as just so much bullshit, the real question that animates him and his candidacy is: who has the power?
Schiener dismissed the thought that a tied primary should have resulted in a closer committee vote.
“The Republican committee members don’t just represent the people who came out Sept. 13. There are 12,000 Republicans who did not go to the polls in the primary, and the committee represents all of them,” he said. “It’s hard for a committee member who’s been told all summer by the other camp that they don’t mean anything, that they don’t matter — I think you saw that sentiment tonight in the overwhelming margin.”
In other words, it’s a power struggle first, last and always and that’s all that matters. (This, by the way, is the single worst quality of mind that a prosecutor can have. I often wonder, do people like this tell their children that, say, virtue is bullshit?) What Schiener is saying is that by the very fact of challenging the committee’s selection in a primary election contest the challenger alienates the committee members. They respond to the perceived insult with a vote against the challenger. The committee vote has nothing to do with “professionalism”, or “public service”. It certainly has nothing to do with “humility”.
Just what is this “committee” and who are its members? It’s almost too depressing to think about, but maybe this will help so I’ll suffer through it.
Especially in places like Livingston County where government is the only game in town worth playing, the members of political party committees are drawn from the lowest of the low. As detestable as the “public officials” almost invariably are inasmuch as they are grotesque political hacks, the committee members are lower than that: political hack wannabes.
How do I know this? Personal experience. I was a Republican Committee member in Livingston County myself at one time. I can relate an anecdote for you. Hold onto your hats.
Pretty much the main function of a Republican committeeman is to get signatures on nominating petitions to put candidates on the November general election ballot on the party line in compliance with the New York Election “Law”, which I put in quotes because it’s essentially a labyrinthine trap for the unwary designed to ensure advantage to the insiders – like “committee” members – who deal in politics regularly. (You can see an example of a commonly litigated-over statute from the NY Election Law here.)
So, you know, during my brief time on the Republican Committee I carried these petitions around and got signatures from registered Republicans going door to door, which is how it’s done. And you meet a lot of people and that’s swell.
One guy I met lived outside the village on a farm. We exchanged pleasantries and he advised that he used to be a Republican Committee member himself. I asked him why he quit. He advised that the reason he got on the committee was that he wanted to sell part of his land and needed a zoning change, the Town Board wouldn’t give it to him, so he got on the committee, got himself elected to the Board and rammed through the zoning change he wanted.
He told me this without the slightest trace of recognition that this had been wrongful, indeed criminal conduct. Actually he was notably proud of it, thinking himself to have been quite the clever boy.
This is the political culture of Livingston County in a nutshell, especially among the perennially dominant Republican Party whose leader, Lowell Conrad, has been in that position probably 50 years. The mindset has ossified over decades at an extremely low level of moral functioning, the degradation from which is now reflected in the larger community. A few years ago, the County was all atwitter with anticipation that a new “business” was coming to town: a call center for a debt collection agency. And even that embarrassment of a project collapsed in a hail of scandal, corruption and bribery.
The decay proceeds apace but it’s still hard to notice when you’re in the middle of it. Except among the young. They overwhelmingly leave. Those that stay are either agreeable to embark upon the political hack track; or they are fodder for the largest Livingston County industry: state prisons.
There has been a great deal of destruction in that time, not just to infrastructure but to the vitality and integrity of the individual inhabitants, the very character of the place and the people. The road to recovery is difficult and slow, and frankly unlikely to be taken in my lifetime at all. Or even thought about, at least among the kind of people who make up political committees.
And yet there has been this effort by Steve Sessler. A glimmer. A subatomic particle of hope. He’ll have to do it on his own, with a few good people. Or perhaps I should say a few good men, since Steve is, after all, a Marine.
Semper Fi and all that, Steve. I hope you make it. There are people in Livingston County who deserve you, or at least a change in the status quo.
You honor them and yourself. Thanks for running a great campaign, and a great effort.
