Category Archives: Media incompetence/bias

Moreland Commission

There’s a pretty major flap going on, considering it’s an election year, over a temporary “independent” commission appointed by Governor Cuomo, supposedly to “root out” corruption in the State’s capital.  The commission was headed up by Onondaga County District Attorney William Fitzpatrick.  The commission was disbanded – some say “abruptly”, others say because it was “mission accomplished” – a month or so ago.

Last week the New York Times published a very detailed piece more or less chronicling gross interference with the independent (not) commission by the governor’s men.  This prompted a ringing defense of the commission and its independence (not) by Chairman Fitzpatrick in the form of a three page letter dated July 28th, which you can find here.

First, I encourage you to read Fitzpatrick’s letter.  Whatever its merits otherwise, it is typical DA bluster, long on rhetoric, short on specifics, and completely devoid of anything resembling reasoning.  It’s a screed from someone who seems to think that all he need do to dispose of accusations of corruption is to call them “absurd”.  Not one fact chronicled in the New York Times piece is even specifically denied, let alone refuted.

There’s a lot to say about all this, but not now.  In the meantime, it’s worth noting that some people whose opinions I respect believe this whole flap is orchestrated by the Clinton camp to damage Cuomo, a political rival for the 2016 presidential nomination.  And that may well be.  Multiple levels of perfidy and skullduggery are standard procedure in the political cesspool known as New York State.

But we’ll comment later on some larger aspects of all this, endeavoring to wed the macro to the micro, one of our favorite tasks over here at Lawyers on Strike.  We sometimes do a good job of that, and we sometimes don’t, but we do make the effort.

To be continued.

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Casey Anthony’s ‘Wrongful Acquittal’

Three years on and she can’t show her face in public:

Anthony now lives in an undisclosed location in Florida and doesn’t go out of the home she is living in because of the public hate and continued threats to her life, Mason said.

“She has to live constantly on guard. She can’t go out in public,” Mason said.

By her own choice, she works inside the home, Mason said, and is living as “a housekeeper, clerk, secretary and stuff like that.”

“I think Casey has a lot of world left to have to deal with. She hasn’t been freed from her incarceration yet ’cause she can’t go out. She can’t go to a beauty parlor, she can’t go shopping to a department store, she can’t go to a restaurant, she can’t even go to McDonald’s. She can’t do anything,” he said.

Maybe the CNN story is a beginning for the media to take responsibility for their role in whipping up a public frenzy for a hanging.  I’m not holding my breath, though.  They still note with barely disguised astonishment that Anthony’s attorney Cheney Mason continues to believe that “…the jury got it right and the rest of the country got it wrong.”  As if that’s impossible.

Bottom line is, she might as well have been in prison for past three years.  She might as well have been convicted. 

I can’t improve upon my previous suggestions regarding the ‘wrongfully acquitted’ in a high profile case.  Give them a pile of money and they leave the country to live in obscurity somewhere else.  Their lives in this country are ruined, and the acquittal – obtained at enormous cost – can’t fix that.

Their lawyers should get a pile of money, too:

After that meeting…Mason decided to join the team pro bono. He said the unpaid time he spent on the case “was well over a million dollars” and cost him tens of thousands of dollars out-of-pocket.

but then who gives a damn about them?

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Top Story

Complete with shame naming of all the persons arrested for selling alcohol to minors in a holiday weekend “sweep”. 

On a slow news day, news outlets turn to the police for a story.  Apparently any story will do.  It is a very unhealthy combination for both.  And for the public.

There are plenty of other ways to find interesting stories, and plenty of interesting stories to tell.  They might require a bit more work than just lifting a press release off of the repeater and cutting and pasting.  But we have to work sometimes.

In any case, this is one of the components of the disproportionate influence law enforcement has with the media.

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Three Related Stories

With connections to problems in the criminal justice system, and specifically wrongful convictions.

First we have the New York Times reporting on Brooklyn’s “Conviction Review Unit”, which now has funding and 10 assistant district attorneys and a Harvard law professor consultant.  They are trying to figure out who that office has wrongfully convicted over the last, oh, 30 years.

Good for them.

Then, in what is really a bombshell news story that should be leading every major outlet, as they used to say, we learn from the very same New York Times that the very same Brooklyn District Attorney’s office was allegedly mired in some pretty heavy corruption reaching right to the top, both to the formerly widely respected and elected DA Charlie Hynes and to widely respected judges like Barry Kamins.

So, let’s get this straight:  the same office that succumbed to high level corruption reaching into the very judiciary it supposedly pleaded before, and that must have secured the wrongful convictions in the first place, is going to lead the effort to police itself and right its wrongs.  What, no one has ever heard of the fox guarding the henhouse?

But what bothers me so much more about the perspective on display in these articles is the vanishing criminal defense bar.  It would seem that the natural people to review criminal convictions to determine whether or not they were wrongful would be criminal defense lawyers, but the task has fallen to prosecuting attorneys and consulting law professors. 

Maybe they’ll do a good job, but I seem to remember the New York Attorney General set up some sort of conviction integrity unit a couple of years back that hasn’t been heard from since.  Although they do “meet regularly” under their “new chief”, who used to be a prosecutor of course.

But then there is this:

And criminal defense lawyers do not “desire justice.” We desire to win our client’s cause. That, and nothing else, is our highest calling. I would have thought you would know this by now.

A familiar refrain from the criminal defense bar.  Not a universally held belief, but widely held enough that no one is going to trust them to distinguish between wrongful convictions and just ones.  The latter being, to them, a theoretical as well as a practical impossibility, like an oxymoron.

Truth is, the criminal defense lawyer’s “calling” is a lot more nuanced than that.  Can a criminal defense lawyer incite or aid and abet prosecutorial misconduct in order to “win” his client’s cause?  There are many scenarios I can think of where this could be done. 

I think the answer is no.  Obviously.

What Greenfield and other CDL’s do is transplant the simple and unambiguous rule at the trial itself – that you do everything within the rules to win – to every aspect of representing a criminal defendant, including plea negotiations with prosecutors.

If a prosecutor can’t trust that a CDL won’t mislead him – or worse – that will affect not just plea negotiations with one CDL but with every CDL, and every CDL’s clients. 

It’s the CDL destructive contribution to systemic dysfunction, and it’s every bit as stubbornly adhered to by some as the exonerations from obviously wrongful convictions are resisted by prosecutors and attorneys general.

There’s something very out of whack when there’s a national awakening about wrongful convictions and independent criminal defense lawyers are conspicuously absent from the discussions.  To some extent it is a self-inflicted wound.  Ugh.

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Greenhouse Follies

An uncharacteristically lively screed from the normally somnambulistic Linda Greenhouse who has done a very good job for a very long time keeping the goings on at the SCOTUS excruciatingly boring to the general public.

Linda is especially exercised about the recent Town of Greece case, which held that prayers before public meetings didn’t offend the constitution’s “establishment of religion” clause:

This is an opinion column, and here is my opinion: the court’s majority is driving it into dangerous territory…setting an agenda that mimics a Republican Party platform…Opening the doors to greater public expression and observance of religion is another central part of the Roberts court’s project…The United States Court of Appeals for the Second Circuit had found the steady diet of Christian prayer at town board meetings to be an unconstitutional establishment of religion…Since it was obvious that the majority’s goal was to overturn the Second Circuit’s decision, it was no great surprise that the 5-to-4 opinion did so…Justice Kennedy’s opinion for the court was startling nonetheless for its obliviousness to the impact that sectarian prayers can have on those citizens for whom prayer before a government meeting is not “a benign acknowledgment of religion’s role in society” (to quote the opinion) but an affront…This from a justice who in his majority opinion in a Florida death penalty case on Tuesday emphasized the right of a convicted murderer to be treated with “dignity” by having his intellectual deficit assessed meaningfully rather than mechanically…I was left to wonder about the dignity of the two women who sued Greece, N.Y., on the claim that the price of conducting their business with the town board should not include having to listen to Christian prayers…The country didn’t need to have the religious culture wars reignited, but thanks to the court, that’s where we now are.

 

Let’s just say to start with that analogizing a couple of old women complaining about some prayer or other at some public meeting or other to someone complaining that he doesn’t want to be literally tortured to death at his execution reveals a strange sense of proportion:  concerns about “dignity” in the one situation are hardly comparable to the other.

But it also strikes me that Greenhouse is so far behind the curve, politically speaking.  She is obsessed with yesterday’s issues, like public prayer.  And it’s ironic that she accuses the Supreme Court of political orientation in supposedly “reigniting” the religious culture wars, inasmuch as to the extent we’ve had any religious culture wars they were almost entirely the product of Supreme Court meddling in the first place.

Honestly, I don’t get the hyper-sensitivity some people have to public prayer.  In many ways I find most public prayers objectionable for all kinds of reasons but I don’t see any constitutional problems with them. And all the Supreme Court jurisprudence to the contrary has always struck me as a product of the usual pseudo-intellectual anti-religious snobbery so common among the American ruling class.

But that’s just me.  I’m no Linda Greenhouse. 

I’m actually glad she got up on her high horse a bit.  As she notes, she can have opinions, too, and I’m glad to know what they are, agree or disagree.  But she’d be doing her job and serving the public a lot better if she used her megaphone about far more important issues, such as whether summary judgment as currently practiced violates the 7th amendment or what in the hell “due process” means for a criminal defendant, because we’ve gotten very confused about those things on her watch.

Well, not us here at Lawyers on Strike, of course.  Just everyone else, it seems.

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Too Cozy

It’s a real problem when the ‘news’ is the product of agreement and an unholy consensus, instead of facts.

And we’re not the only ones noticing and/or complaining.

A consensus doesn’t make anything true.  If it did there would be nothing wrong with lynch mobs.  Beyond that, desiring something to be true doesn’t make it true. 

The biggest temptation of power is to conflate one’s own ego-driven conception of reality with reality itself.  The press is probably the most important antidote to that tendency in a nation’s political leaders. 

How abjectly they are failing.  And much of the torrent of wrongful convictions can be laid at the feet of that failure.

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Establishmentarian

We have established authorities, and we are reluctant deviate from them and embrace alternative views from less established individuals or groups.

Is this good or bad?

Well, both.  It’s good because there’s a reason established authorities are “established”:  it’s an accomplishment to get into Harvard, to earn a position in the federal government, to rise through the ranks of a big company to become it’s CEO.  Accomplishment should be rewarded and one of the rewards might very well be presumptions in your favor in a whole host of contexts.

But it’s bad, too.  The established authority doesn’t have a monopoly on truth, and when it’s wrong it must yield to the truth like everyone and everything else.  By all means have a presumption, but the reluctance to deviate should not become a menace, strangling truth in its crib every time it emerges from a non-established source.

The establishment newspapers in the United States are the New York Times and the Washington Post.  The estaiblishment newspaper in Canada is Toronto’s Globe and Mail.  So their handling of this story on the editorial pages is very interesting.  The essence of the issue is here:

The question is, taking for granted that there is a good faith disagreement between the University and Dr. Buckingham about how programs should be structured, whether he is entitled to break ranks and publicly complain about the process. That isn’t obvious. Reasonable people may disagree about how to arrange and structure academic programs so that they can function effectively and efficiently – not just as discrete, stand-alone units, but as a university. In the end, though, someone needs to make a decision. Assuming that the final decision belongs to the central administration, and not to the individual deans, there is some merit to the claim that Dr. Buckingham and others have an obligation to implement it – and not to foment dissent among the rank and file professoriate.

One would want to be extremely cautious before reaching this conclusion…

 

Exposing itself as terminally establishmentarian, though, the writer goes on to note that the university, in firing the good Dr. Buckingham entirely, went too far because they might have undermined another very important establishmentarian concern:  tenure of university faculty.

Nowhere in the article is any opinion on the relevant merits of the university’s or Dr Buckingham’s substantive disagreement given.  Who is right or who is wrong does not appear to matter.  This article is really about something else:  preserving the status quo.  And the Globe and Mail is firmly in favor of that.

For quite understandable reasons, I’m afraid.

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Editorial Judgment (Updated.)

I wonder sometimes.

There are two items that caught my attention this morning that signify – well – something.  Something about our news media.  Something about us.

The first is an article from the UK tabloid press (WARNING, I’ve had to retract some commentary before based on those kinds of sources) detailing an apparently retaliatory act by the Russian government against the US imposed sanctions over the Ukraine situation.  Seems the Russian government is now going to deny the US access to the International Space Station (ISS), which apparently only Russian Soyuz spacecraft can provide, and which the US has been using at about $70 million per astronaut per trip.

The other interesting thing about this little piece is where it reports that Russia is also going to stop selling the US rocket engines that the US apparently uses to launch military satellites.

I consider myself – perhaps wrongly – a fairly well informed person with a bent for military type news.  I seem to be dimly aware of the fact that only Russian spacecraft can get to the ISS.  I should think the details of this would be common knowledge among Americans generally, but we don’t get much reporting on space activity generally anymore and of course the linked article comes out of the UK, not the US.

Beyond that, I did not know at all that the US uses Russian provided rockets and rocket engines for US military purposes.  This is odd, to say the least, and I should think that would have been big news at some point or another.

What explains this?  Not sure this morning, but the subject is worthy of further inquiry, methinks.

The second item concerns the quite untimely death at age 36 of a Swedish film director named Malik Bendjelloul, who won an Oscar just last year for a documentary film called “Searching for Sugar Man” which concerned an American singer/songwriter named Sixto Rodriguez.  Now, it is not surprising to me that I’ve never, before seeing today’s story, heard of any of that – the film director, his Oscar winning film, or the American singer/songwriter who is the subject of the film.

But what is surprising is that Rodriguez, although it seemed terminally obscure in the United States, was massively famous in….South Africa.  And I guess the documentary film was about that apparent anomaly.

Which connects that story with the first one:  what accounts for the fact that an American can be hugely popular and famous in South Africa when no one in the US knows who he is? 

Fame is a tricky business.  And it’s related to editorial judgment, because it’s probably fair to say that you aren’t famous unless the media report about you, and of course that involves editorial judgment.

Meanwhile, we all know that Alec Baldwin had another altercation with the police, we’re familiar with every “selfie” posted by Kim Kardashian, we know all about Beyonce Knowles’ relationship with her sister, and we’re fully informed about Tom and Gisele’s third haunt, a $14 million apartment in NYC.

Now, up until a couple of years ago I would guess that most people in the US had never heard of the phrase ‘wrongful conviction’.  That’s been changing in the time since, but not by a lot.  CNN runs a series once in a while.  It’s spilled over into a few other places.

Cases about wrongful convictions are litigated all the time, though, and have been for many more years than the very mild, recent up-tick in media interest.

I guess the point is that stories about our relationship with the Russians and our faltering criminal justice system which is now even botching executions are far more relevant and important than stories having anything to do with Tom Brady and Gisele what’s-her-name, but we’re saturated with stories about the latter while there’s a dearth of stories about the former.

Throw in a little factoid that might be related and might be of interest:  50 years ago it was not uncommon for NFL players, even very good ones on championship teams, to have second careers in the off season to make ends meet.  Fifty years ago a novel about a wrongful conviction from an unknown author could get published, do extremely well, and be made into a movie that in turn would earn 10 times its budget.

Fame and wealth are, I guess, highly correlated.  But there should be limits, not by law or anything, just people’s sense of what reality should be.  A while ago I alluded to the social dangers of extreme “reward asymmetry”, here and here.  In this context I think I pretty much coined the term.

I can recite story after story to you from years of private practice starting about 1990 – both civil and criminal cases – illustrating how, in the fifty years since NFL players had to have second jobs, and moving stories about wrongful convictions were best-sellers, rampant economic injustice has taken over our courts and is now more or less expected. 

What is the cause, what is the effect?*  That’s a very interesting question as well.  Did the courts tow the line in those days, at least to some extent because they feared they would be shamed by the media if they didn’t?  Or did the media tow the line because they feared the courts would shame them if they didn’t? 

Or did both tow the line because they feared the public was interested, and just, and would not tolerate rampant injustice?

And God help us, what about lawyers?  Then and now?

Too big a subject for one post, I’m afraid.

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*  Can’t be our fault.  We’re all much, much smarter than average.

UpdateYou have to laugh at the CNN coverage of the same story as the first link in this post, with the headline “Russia To Leave International Space Station by 2020″ as opposed to the British Telegraph’s “Russia to Ban US from Using International Space Station Over Ukraine Sanctions.”

The CNN article still doesn’t say anything about Russia providing rocket engines for the launch of US military satellites.  Like this is not newsworthy.

Maybe that information is classified.  Wouldn’t be the first time classified information leaked in the foreign press when the US press doesn’t report it because here it would be illegal.

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Amanda Knox Redux

So here’s an important contribution to understanding not just Italy’s problematic justice system outcomes, but our own.

The idea is that the justice system in Italy is invested in the guilty verdicts of Amanda Knox and her former boyfriend for reasons of institutional integrity.  Their guilt is mandated because that was the narrative leading to the conviction in a separate trial in the Italian courts of Rudy Guede, the real perpetrator.

Here in the US, we wouldn’t hold Amanda Knox to a fact finding from a trial in which she was not a party or did not have the opportunity to contest.  These are the rules of a doctrine known as collateral estoppel.  Or more recently “issue preclusion”.

Now it may be that the law in Italy doesn’t have such a doctrine.  Or rather, it recognizes issue preclusion but will apply it whether the person precluded had an opportunity to be heard or not.  I don’t know.  And actually, come to think of it, I don’t know if Amanda Knox had an opportunity to be heard at Rudy Guede’s trial.  Maybe she did, because it seems it works differently over there – you can make yourself a party to someone else’s criminal prosecution, maybe if you can demonstrate some kind of personal stake in it. 

This is all kind of interesting from a lawyer’s standpoint.

But let’s give Italy’s law the benefit of the doubt.  If they give Knox the opportunity to be heard in Rudy Guede’s trial and she passes it up, well then that’s her opportunity to be heard.  Now they hold her bound to whatever facts might be found against her at that trial.  She will no longer be heard to contest them.  And this is one of those odd situations where for technical legal reasons a fact is deemed to be true regardless of whether it really is.  That is possible in our system, too.  For example, a fact in a civil case that is formally admitted in a pleading is legally true regardless of whether it’s actually true.  Or, a person can be found “not guilty” at his trial and in fact he is guilty.

Now, it might be surprising to some, but I have a little bit of sympathy for the institutional concern.  It would be a terribly unfortunate thing for Amanda Knox to be technically, legally guilty without being actually guilty, but the high courts in Italy could be legitimately worried about what happens in other cases.  In this case, the law works a wrong; but if you disregard it in this case and set a new precedent, then the new precedent could just as easily work a bigger wrong in another case.  If the Italian courts allow peripheral potentially accused persons to be heard in the criminal trial of another person, then I suppose Amanda Knox’s lawyer(s) in Italy should have taken that into account when Rudy Guede was put on trial.  So you might argue that they screwed up and put her in a position where she had no chance to be found not guilty because that issue had already been determined, she had a chance to fight it and she didn’t.

But like I said, a little bit of sympathy, not a lot.  I don’t think you should run the rule out – assuming it is the rule over there, I mean I don’t know – to the extent that you’re going to hold someone guilty of a murder they didn’t commit.  Hard cases make bad law, but being wrong is bad, too.  I don’t think you can ever enhance institutional integrity by getting it wrong, especially when everyone knows it.  The system has to conform to reality, not the other way around.

I guess my position is that if you find yourself in a position where the rule forces you to be wrong, then it’s time to develop a new rule.  Appellate judges are all smart guys, so just be careful and have at it.  It’s your job, it’s why we pay you the big bucks.

In any case, I’m grateful to my twitter companion (and author of the linked article across the pond) Nigel Scott (twitter:  @gronff), for the hat-tip.

Let’s hope this all works out correctly for Amanda Knox, Raffaele Sollecito and the Italian justice system.  Come on.  I know we can do it.

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Law Enforcement Mythology

Stories like this surface from time to time.

The contention that there are ‘scientific’ ways to detect when a human being is ‘lying’ is on a par with assertions of the existence of unicorns, fairies, or sasquatch (which perhaps not coincidentally was also in the news over the weekend).

Then again, I would sooner accept the proposition that sasquatch is a real thing than the proposition that someone has figured out scientifically how to tell when someone is lying.

Why does this myth persist?  Why do uncritical recitations of the myth regularly appear in the news media?

Quite simply, to influence the jury pool.  Law enforcement is planting and cultivating the seed in the minds of as many people as possible that by the time a trial occurs, our highly trained and trusted law enforcement officials have already determined who is telling the truth and who isn’t through their detached, scientific approach.  That way, when the trial is characterized as a “he said-she said” contest they will overwhelmingly win, as long as their claim to a flawless scientific methodology is respected.  Notice that the news stories, in a departure from the usual practice of getting a contrary opinion, don’t bother to do that here.  No skeptic of the demonstrably false law enforcement myth is quoted or, it appears, sought.

It’s yet another arrow in the quiver of the prosecution in a criminal case, and where it’s a factor it should probably be addressed at jury selection.

If the judge lets you.  Ugh.

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Disparity Of Treatment – Courts Of Appeal Edition

Sometimes a couple of things strike you on the same day capturing in a nutshell, as it were, the very essence of the problem.

On the one hand you have District Court Judge Richard Kopf, undergoing a good deal of introspection these days at what presumably constitutes the tail end of his judicial career, blogging about a woman he sentenced to a long term of imprisonment in the early 1990’s.  Quite a saga.  He tried to set her free much earlier but the 8th Circuit Court of Appeals reversed him.  The title of his blog post is “Merciless”.  Ugh.

Contrast the mindless cruelty of the 8th circuit in that case with the tender solicitude demonstrated by Judge Barrington Parker (indeed apparently all three judges of a panel of the 2nd Circuit) yesterday for a different kind of criminal defendant.  That is, the kind of criminal defendant that wheels and deals in complicated securities and instruments in New York City’s main “industry”:

“We sit in the financial capital of the world,” Parker said. The atmosphere that you have “gives precious little guidance to all the institutions, all the hedge funds, that are trying to come up with some bright line rule of what they can and can’t do.”

Notice the subtle bias there.  Of course the good guys “institutions” are “trying” so, so hard, in good faith, with all their might, using all the resources at their command and of course they have copious resources because they’re such great, great people to begin with, otherwise how would they have become so successful, like hedge funds are?  (But then never mind about that Long Term Capital Management thing which was just an aberration.)  But these great, great people are having such a tough, tough time figuring out just how to game the system to maximum advantage without getting caught what the “bright line rule” is.  Oh, my. 

Really.  

Judge Parker and his panel are considering overturning the convictions of some hedge fund types for “insider trading”.  The idea being expressed is that the nature of the crime needs to be more precisely defined so that traders will be certain just what it is they are prohibited from doing.  The context is whether a jury needs to be instructed (and thus the law is) whether some benefit accrued to the source of the insider information, or whether the government just needs to prove that insider information was used to make trades.

By the way, as financial crimes go, insider information cases would be, I should think, fairly straightforward as compared with, say, fraud cases.

Note that the sentences the 2nd circuit panel is so concerned about are one for 4.5 years and one for 6.5 years for a couple of multi-millionaires, whereas the sentence Judge Kopf’s post chronicles is for 22 years.  For an impoverished mother with a young child.

But never mind.  In truth Judge Parker’s concerns appear to be entirely academic.  The more restrictive interpretation of the law – that is, with an additional requirement in the jury instructions adding an element the government must prove – that he seems to favor has already resulted in convictions:

U.S. District Judge Jed Rakoff, in the case of Whitman Capital LLC hedge fund founder Doug Whitman; former U.S. District Judge Richard Holwell, in the case of Galleon Group LLC co-founder Raj Rajaratnam and U.S. District Judge Paul Gardephe, in the trial of SAC Capital portfolio manager Mathew Martoma, all required jurors to consider the three elements of insider trading, as opposed to the two Sullivan instructed the jury on.

However, although the other judges in the insider-trading cases have required jurors to find the extra element of personal benefit to convict, Rajaratnam, Whitman and Martoma, all were found guilty.

Judge Parker seems worried about it, but juries aren’t.

It’s disturbing that Judge Parker is so acutely aware of the fact that the 2nd circuit sits “in the financial capital of the world”.  So what?  Should the judges of the DC circuit give a lot of weight to the fact that they sit in the “governmental capital of the world” (or indeed the known universe at this point)?  Should the 9th circuit be sensitive to the fact that they sit in the “.com start-up/fall down capital of the world”?  Is Judge Parker worried about justice for the Defendants, or the impact on the local economy?  Which might be an attenuated, but genuine, form of self-interest?

That’s disturbing on a deeper level, though.  What’s disturbing enough on the surface is the comparative severity of the sentences, and that the difference is plainly related to the social status of the Defendants.

Things like this cannot go on forever.

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Resurrected Body

I don’t get into religious things too much around here.  Mostly there’s no point.  This is not really a good forum for it.  At least, I don’t think so.  Today is just the exception that proves the rule. 

So on to it.

People might be Christian or not, believe in Christianity or not, and of course let’s stipulate that there are Christians of this and that denomination and there are lots of differences and so on.

God bless ‘em all, I say.  I don’t want any arguments on that score.

But it really should be annoying not just to Christians, but to anyone who is fair minded, that the media routinely conjure up material during what some Christians refer to as “holy week” to subtly challenge – which is to say, surreptitiously undermine – core Christian beliefs.  And what is doubly annoying to me is the ignorance – willful or otherwise – that is often revealed in this material.

One of this year’s truly annoying installments comes from CNN, under the banner “Did Jesus really rise from the dead?” authored by some guy named Parini from Middlebury College which, you know, because it is a “college” you would think there would be some scholarship involved. 

But no.

Of course, Easter is the central Christian holiday commemorating the central Christian event, and most people calling themselves Christian* regard that event – the resurrection – as a real, physical event and not some made up story or allegory.  And Parini takes a little half knowledge that most people are not aware of or haven’t thought about and uses it to undermine the idea that the resurrection was a real occurrence; rather it is a parable, an allegory, a story written about later as a “symbol” of some larger truth:

Questions arise, of course. Did Jesus really rise from the dead? What would that look like? Many Christians imagine some literal wakening from the dead and refuse to accept the slightest hint that the Resurrection might be regarded as symbolic without denigrating it.

The strongest argument he then makes in favor of this position, which to the ignorant probably appears to be convincing when in fact it is about as routine and pedestrian a bit of sophistry as any first year college student would be capable of, is that there’s all this magic going on in the gospel stories that are fanciful and couldn’t really have happened:

The post-Resurrection appearances of Jesus vary wildly. For the most part, those who meet him fail to recognize him, as in the story of the Road to Emmaus, where Jesus appears beside two of his followers. They don’t recognize him, which suggests that he has not reappeared in a familiar form. Even when he joins them for dinner, they don’t know who sits beside them. Only when he prays over the bread before eating do they recognize him, and he immediately disappears — poof.

Even his closest disciples don’t know Jesus when they see him, as in John’s Gospel, where he appears by the Sea of Galilee to Peter, Thomas, Nathanael and two other disciples. It takes quite a while for Peter, alone among them, to recognize this mysterious figure on the shore who advises them where to catch the fish.

Gee, like no one ever noticed any of this before and had any thoughts about it.  Except for oh, say, St. Paul, St. Augustine, St. Thomas Aquinas, probably every priest or bishop since the first century. 

I mean seriously.

In other words, these very passages of scripture, like almost all scripture, have been picked apart, dissected, studied, pondered, analyzed and whatnot by both lesser and greater minds for centuries, though of course for our purposes here it’s the greater minds that count.  They form part of the basis for an elaborate and, if I might say so, well thought out (albeit at present quite obscure, for reasons I won’t go into here) theology of the resurrected body.  You can find out a little bit about it in this article.

Briefly, though, it is believed – in a somewhat speculative way but nevertheless believed – that the resurrected body will have a number of notable qualities:

1. Identity – it will still be recognizably you, although maybe not immediately recognizable to everyone.

2. Integrity – all the parts will still be there.  All of them.  Don’t ask.  Ugh.

3. Quality – sort of an improved version, at the ideal age and of the same gender.

4. Impassability – the resurrected body won’t die and can’t get injured.

5. Subtlety – I think this is kind of related to the next quality, that is

6. Agility – the resurrected body can be anyplace it wants to be, any time it wants to be there, and maybe two or more places at once, pass through walls, other solid objects and so on.  I’m not real clear about this but it sounds cool.  And speaking of clear, the last quality is:

7. Clarity – Radiance and luminescence

Now, I’m not saying you have to believe any of this.  Indeed, I see significant barriers to belief in any of it.  That’s not the point. 

The point is just that the Parini/CNN article is either disingenuous or pathetically ignorant of Christian belief to behave as if Parini was the first person, ever, in history, to notice these sort of weird aspects of the post-resurrection gospel stories and to have inferred some meaning from them.  Others – many others – have done precisely that. 

And of course among Christians that meaning was entirely consistent with the belief in an actual, physical resurrection of Jesus.  Indeed, so firm was the conviction that the resurrection was an actual physical event that the whole theology of the “resurrection of the body” is mainly derived from that.  

Parini is free to have an entirely different take on it all, of course.  But what he is not free to do – at least not while retaining any scholarly legitimacy – is to posit his own meaning as if it’s a brand new, unique insight on problematic scripture passages, without confronting or even mentioning that Christian tradition has already accounted for, and ascribed specific meaning to, these same passages. 

That’s intellectually dishonest, if it isn’t appallingly ignorant.  And we don’t go for either of those around here at Lawyers on Strike.

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There’s an argument that anyone who doesn’t believe in an actual resurrection cannot possibly be a Christian in any meaningful sense, but that’s a side issue.  At least this morning.

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The Case Of Dawn Nguyen

So here in Rochester we just completed one of the most high profile trials of the last year or so, involving the prosecution of a woman who now stands adjudged guilty by a jury of having ‘falsified business records’.

Ordinarily, of course, falsifying business records charges don’t generate a lot of copy, but this particular business record was a form filled out when buying guns that were later used to kill two firefighters and wound two others in a particularly depraved act on Christmas Eve 2012.  The killer shot the first responders when they came to help, there having been a fire no doubt started intentionally by the killer himself.  Who had just killed his sister.

He had been released from prison years before.  He was in prison because he had killed his grandmother.

I’m not making any of this up.

The basis of the case against Dawn Nguyen is that she had stated on the business record that she was the purchaser of the guns, when in fact the guns were intended for the killer, named William Spengler.  The puchase of the guns occurred, apparently, in June 2010.

That’s two and a half years before Spengler went on his perverse Christmas killing spree.

Let’s assume she’s guilty as charged on the business record thing, just like the jury said.  What’s really animating the prosecution, what made it “high profile”, is not what Nguyen did; it’s what Spengler did.  To drive the point home, Nguyen’s trial was very well attended by fire fighters from the relevant department and cops from the relevant village police department.  Indeed after the guilty verdict the firefighters and police chief were breathlessly interviewed by local media for their opinions, which were uniformly that they had been extremely interested or involved in the prosecution of Nguyen, that they were ‘gratified’ by the verdict as far as it went, that they were upset that the 1-1/3 to 4 year maximum sentence was woefully insufficient punishment, and that they looked forward to a federal prosecution arising from the very same facts and circumstances that would entail as much as 30 years in prison.

And then they would set about the business of changing the state law to provide for more severe penalties for doing what Dawn Nguyen had done.  One of the wounded firefighters commented that as far as he was concerned, Dawn Nguyen was a conspirator in the murder of his comrades.

Now.  A few more observations.

Ms. Nguyen’s lawyer, Matt Parrinello, did a fine job and knows a lot more details than I do.  It’s a very tough thing to do:  stand up and defend someone when the most important possible constituency – law enforcement and their fellow travelers in the fire/EMT communities – is out for blood very publicly.  Matt is my hero today.  Let’s be clear about that.

Second, this was as clear cut a case as you could ever have of what might be called a substitute criminal prosecution.  The guy everyone would really like to see hanged is dead, having killed himself.  Good riddance, but it does leave law enforcement bereft of that particular remedy.  Not to be left unsatisfied, they go looking for an alternate target, and lo they find one:  a twenty something Vietnamese heritage (maybe an immigrant but I don’t have that information) woman.  The fury they would like to unleash on the deceased miscreant they unleash on her instead.  Its searing intensity is wildly, insanely disproportionate to the wrong alleged, but that’s one of those things you mention at your peril, from a community point of view.* 

I don’t know how you could get a much more attenuated moral fault than filling out – or maybe just signing – a form some two and one-half years before a crime you had no involvement with took place.  I mean, this is one of the problems here.  Spengler’s sister must have known that he illegally possessed weapons.  He lived with her, each and every day of that two and one-half years.  She bears much more responsibility for what her brother did than Dawn Nguyen.  But of course Spengler’s sister is dead, too – Spengler killed her.

Beyond Spengler’s sister, how many neighbors knew Spengler had those guns but never reported it?  According to the village police chief, Spengler was a braggart about the neighborhood, in addition to all his other sterling qualities.  That’s one of the reasons the police chief figures Dawn Nguyen must have known all about what a bad guy and felon he was. 

Of course the problem with that is, lots of other people must have known, too.  Figure out something they did or didn’t do that violates some law or other within, say, merely one year as opposed to two and a half, and maybe you’ve got yourself a better case than the one against Nguyen.  File into the courtroom every day of their trial and glare at the jury until they convict, as by now almost any jury in the United States has been conditioned to do through decades of relentless law enforcement propaganda.

What’s to stop you from doing that, from roping in many, many other people to pay for Spengler’s crime?  Why, nothing.

 A third observation:  Dawn Nguyen is an attractive female.  The jury dynamics for attractive female criminal defendants are atrocious.  There’s almost no way to win:  other women hate her; men, of course, side with law enforcement.

Fourth:  that attractive female defendant thing also seems to generate a fevered intensity all by itself, to say nothing of combining it with a homicide.  Throw in the victims are law enforcement, or at least quasi law enforcement.  Throw in that it was Christmas.  Ugh.

Fifth:  Will anyone – other than me and her lawyer, that is – venture to state the obvious, that at this point a federal prosecution is overkill?  Will the local media give any air whatsoever to this, or is it a thought crime?

Sixth:  Dungeons, racks, screws, stockades, the pillory.  When someone is facing 30 years over lying on a form, these medieval tortures begin to look comparatively humane.  Something is seriously wrong when that happens.

But we already knew that, didn’t we?  Why do you think this blog and others like it even exist?

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*  Note, that is an obviously correct observation, and that makes it all the worse.  There’s no answer for it, so it interferes with the desire to wallow in simmering hatreds and desires for revenge.  Woe unto the cooler head pointing out such an obvious moral consideration in the midst of a collective frenzy.

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Miriam Carey

That’s a name everyone in the United States should know.  We here at Lawyers on Strike wrote about her six months ago wondering what, if anything, would be done to follow up on a tragic story that would seem to warrant a lot of serious questions.

I mean, the woman was shot to death in the nation’s capital by police while she drove in her car and apparently made a wrong turn.  She had her one year old child strapped in the back seat.

First, let’s connect a face with the name:

mimcar

 

Very pretty.  Very young.  Seemingly happy.  And productive.

Then, do you remember the saturation coverage the incident received at the time?  That is, as long as an approved, feeding-frenzy type narrative was in play – our institutions under attack by young women in cars with their toddlers strapped in the back seat terrorists or extremists.  When the narrative failed, the story disappeared.  The media lost interest.

This post is not about the police, who do dumb things sometimes just like the rest of us.  This is about the media.  And the elected officials who mindlessly seek political advantage out of tragic circumstances, oblivious to the grim, human reality underneath.  And then the indulgence of them by a media that has no interest when a story doesn’t fit into an approved narrative.

Read the only follow up news coverage, from the online WorldNetDaily.  The fatal wound was apparently to the back of the head.  The “investigation” has taken six months so far and no conclusions have been reached.  No one, other than a lawyer named Sanders, is pressing for any answers.  No one, other than WND showed up at a news conference dealing with the case.

The whole episode is instructive.  The police, of course, are the initial sources of all “information”.  It turns out all of the information was wrong.  She wasn’t trying to crash into the capitol building; she wasn’t “mentally ill”; perhaps most importantly, she wasn’t a threat to anyone.  She was apparently shot to death for no good reason.

A tragic fuck up by the police.

It is to be hoped that the police will be held accountable civilly, not criminally, since this really doesn’t seem to be a case of criminality on their part.  This part is lawyer’s work.  And it’s important work, because maybe after it costs officials a few million dollars they won’t be so quick to pull the trigger. 

But it would also be nice if the media and the elected officials could be held accountable for their inexcusable negligence in applauding a beautiful young mother being shot to death and then for doing their best to smear her, adding cruel insult to even crueler injury.  Not sure how that could be done, but an article or two on WND and a little opinion piece over here at Lawyers on Strike doesn’t cut it.

Even so, John Boehner, Steny Hoyer and Eric Cantor all owe the Carey family an abject and very public apology.

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Wrongful Conviction ‘Industry’

Seriously.

So here’s an article, via the Wrongful Convictions Blog, by a Chicago cop taking on one of The Innocence Project’s first big wrongful conviction successes out of Chicago, back when George Ryan was governor.

Back before George Ryan went to prison, like most governors of Illinois seem to.

The cop makes a good case that in this instance the wrongfully convicted Anthony Porter was in fact rightfully convicted because he actually killed the two people he was convicted of killing in the first place. 

I guess we need a new phrase:  “wrongful exoneration”.  We’ll add that to the phrase “wrongful acquittal” that we also coined over here at Lawyers on Strike.

But let’s tone it down a bit here, shall we?  Do you think you’ve got a lot of folks over-invested in these things?

Retired cops from all over the country came to the city to help the detectives prepare for the trial, for it was a common belief among the police that Porter was guilty and had gotten away with a double homicide.

Let’s assume for purposes of dicussion that Anthony Porter was wrongfully exonerated.  The effort, including “retired cops from all over the country” to make him a poster child for the sins of the perfidious wrongful conviction industry is really nothing more than a desperate attempt to reassert dwindling dominance, and the same kind of distortion of reality that causes wrongful convictions – and for that matter wrongful exonerations – in the first place.

For months now I’ve been chronicling (see, e.g., here) a rash of court decisions out of the federal court system’s 7th circuit – that is, where Chicago and the Anthony Porter case are located – all dealing with wrongful convictions or wrongful prosecutions, in many cases admitted, where police and even prosecutors committed grotesque abuses of their power in order to obtain convictions of innocent people because that was easier and better for their ‘career’ than doing their job and doing the right thing.  And the governor isn’t shaking the hands of these rightfully exonerated and the media isn’t writing stories about them and the cop-author of the linked article isn’t mentioning any of these cases along with the Anthony Porter matter because his purpose is polemical and not educational.  It is partisan and not truthful.  It is about reclaiming absolute hegemony over the criminal justice system for the cops because apparently near absolute hegemony isn’t enough for them, and “retired cops from all over the country” are onboard with the effort, which to me is sad.

There are hucksters who will try to capitalize on any trend, and I’m sure that they have appeared and will appear again in wrongful conviction cases.  Using them to score rhetorical points is just more hucksterism. 

There is no legitimate argument that we don’t have a serious wrongful conviction problem in the United States (CNN is doing a series just on wrongful death row convictions), there is no serious dispute that the police have had too much power for too long.  As in any such state of affairs in any context the power gets abused, first by a few, and then by more than a few, and then by many until finally it is a normal part of the every day functioning of a police department.

Like the police department in Mount Morris, New York, circa 2004.

Even there, of course, not every cop enthusiastically goes along, and maybe some would join an effort to clean things up if they didn’t also feel that it would be ruinous to themselves and their families.

And here’s a reality that’s as much irony as it is true:  the friend of the honest cop in Mount Morris and elsewhere is me, not some huckster cop-author pandering to a built in readership.

Maybe there’s a wrongful conviction ‘industry'; but it’s a tiny fraction of the size, power and scope of the criminal justice system conviction industry (two can play at the game of using the term ‘industry’ as a pejorative).  In either case honesty has to trump subservience to an agenda if we are to leave the world, or at least the criminal justice system, a better place than when we found it.

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