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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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I Don’t See The Problem.

A hissy fit this morning from Greenfield and another blawger named Josh Blackman over an opinion by Judge Posner of the 7th Circuit US Court of Appeals.

It’s interesting, because on the one hand I found the little experiment the judge conducted in chambers kind of startling myself, at first.  That is, my first inclination was that this was improper.

But thinking it through a bit, juries do that kind of thing:  conduct some little experiment while they are deliberating to see if they can figure out who’s telling the truth.  Watch 12 Angry Men sometime.  Seems like that’s all the jury did when they weren’t at each others’ throats. 

Anyway, if a jury can do something like that can’t a judge, to the extent the judge has to determine a fact?

Of course, appellate court judges do not determine facts.  Not directly.  As Blackman and Greenfield point out, the record on an appeal is fixed, nothing else comes in or out.  That’s pretty basic to the whole idea of an appeal, at least in our system.  Such as it is.

But there are limits to this principle.  As a general rule, intermediate appellate courts do have jurisdiction to ‘review’ – that is, second guess – the fact findings of the trial court.  And there are times they should do so.  Many more times than they actually do, in my experience. 

The ‘standard of review’, it is constantly noted, is ‘highly deferential’, although deference is as deference does and there is an obvious disparity on how much deference there is depending on which kind of litigant benefits:  lots and lots when the favored litigant has prevailed in the trial court; none when the disfavored litigant has prevailed.

But I digress.

Greenfield and Blackman are a bit off, and they’re being a little unfair to Judge Posner.  The evidence in an appeal, it is true enough, is fixed in the record.  But evidence isn’t always res ipsa loquitur.  Interpretation is sometimes necessary.  A fact finder is entitled to interpret where he feels he needs to, and a judge reviewing a fact finder is entitled to do that, too.

There are some contentions that are true, or they are false, and the conclusion is not debatable, at least not on the practical level on which we operate on a day to day basis and not, therefore, in our courts of law.  If we fairly assess what an appellate judge might do in ‘reviewing’ the facts found by the trial court, he surely has an obligation to point out a fact finding that is clearly wrong, or absurd.

We’ve been over this idea here at Lawyers on Strike several times.  We return to it occasionally simply because we reject the notion that the “adversarial process” requires courts to seriously entertain the clearly false, or the clearly fraudulent, or the clearly stupid.

Now is there a danger that a judge, or a jury, will mistakenly conclude the degree of clarity required, or involved?  Sure.  We live in a dangerous world.  Greenfield:

The possibilities are endless for judges to conduct secret experiments in their chambers, or on the streets, or, if they have any clue how to gain access, on the internet, to figure out “who was telling the truth.”  The flaws of the experiment will never be known, never be subject to question or challenge, and yet will dictate the outcome for people’s lives and fortunes.  What could possibly go wrong?

 

Two things here:  first, Judge Posner’s experiment wasn’t “secret” – he disclosed it in his opinion, for which he should be given credit, not excoriated.  And second, it doesn’t seem quite right to complain that a judge wrongly believes himself to have some sort of clarivoyance about assessing witness “demeanor”, and finding the truth that way; but then complain more loudly when he eschews that kind of superstition for a more rational and better method. 

At some point the fact finder – or the fact reviewer – must make his decision and the time for the advocates to have input is past.  That might rankle ego-centric lawyers who feel their input can be both absurd and never-ending and the fact finder must listen to it, but I have to disagree.

There was nothing wrong with what Judge Posner did, especially considering he disclosed it in his opinion.

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Malaysian Airlines Flight 370 – UFO’s, Wormholes, Bermuda-East Triangle, Etc. (Updated)(x4)

Actually, I am agnostic on the very existence of aliens from another world or wormholes or that kind of thing, but you have to start considering some pretty bizarre scenarios at this point.

I’m probably a little more knowledgeable than most people (hardly an ‘expert’, but a little more knowledgeable) about aircraft and the communications type stuff involved.  You know, US Navy and all.

So, I think what might be perplexing a lot of folks right now is….there are almost no non-supernatural/extra-terrestrial  scenarios that fit, other than maybe some highly skilled pilot-hijacker who could basically shut off all the automatic signaling devices, like the IFF transponder, fly under the radar coverage, evade satellite detection and land the plane in some pre-determined location where it can be quickly hidden.

Of course, that would mean there are 239 people to account for and no one’s demanding ransom so far as we know.

So in other words, the one natural, same-dimension-as-the-rest-of-us scenario that might fit seems so unlikely that I, at least, don’t believe it.  Then again, if you had told me that a 777 jetliner could have any kind of accident – mid-air, over water or over land without some indication something had gone wrong – a distress call, an explosion detected by someone – and that even if this had happened no one would find any trace of the plane for almost a week, I would have said that was a practical impossibility, too.  There is just too much stuff on an airplane that squawks no matter what happens, the whole idea being that if some sudden catastrophe takes place you’re still going to find what’s left in fairly short order.  Even with AirFrance 447 in ’09 they found debris after a couple of days and that was pretty much over the middle of the Atlantic, which is way more remote than the anything on the flight path of this one.

As a practical matter, the longer it goes with no trace of anything, the less chance anything is going to be “found” – like debris, other than the “black box” which has a beacon that can’t possibly have stopped working.

So in other words: 

     1.  The highly skilled pilot-hijacker scenario is so unlikely I don’t believe it.  

     2.  The absence of any evidence at all after almost a week that the plane has been destroyed or crashed through a bomb or some natural catastrophe leads to, at the very least, significant doubt that either of those things actually occurred.

That leaves as wide an opening for some sort of paranormal/supernatural occurrence as you’re ever going to get.  Right?  Or am I wrong?

Thoughts/opinions appreciated.

Update:  Well, there’s been quite a bit of information since I posted this, so I think I should address the matter again.

Now, I found the skilled hijacker scenario unbelievable, but since I wrote that it appears that certain of the automated communications devices were deliberately disabled (but not all of them) and so now we must re-evaluate.  Also, it appears that the plane was deliberately diverted westward and flew pretty close to the point that its fuel would have run out, and maybe it did run out of fuel and crash into the Indian Ocean, although you’d think someone would have found something by now.

So at this point the skilled hijacker scenario has legs.  But it also has some problems. 

As for “legs”, there is a fairly believable scenario at this juncture.  The plane was hijacked by a skilled hijacker, the pilot(s) did what they could to avoid endangering anyone else or helping the hijackers to complete their mission, and they were somewhat successful in that the plane never reached its hijacked destination and either ran out of fuel over the Indian Ocean or perhaps there was some kind of altercation in the cockpit and in the melee the plane was crashed into the sea.  Or perhaps the hijackers blew it up mid-air, in which case it wasn’t so much a hijacking as a terrorist act like 9-11.

Of course if any of that happened search parties should find something soon.  Something.  So the jury’s out on a crash scenario of any kind, hijacker or no.

But going a little further with the hijacking scenario, you can’t rule out yet that the plane was landed somewhere.  If the hijacker was skilled enough to disable so many systems that would have tipped off authorities, he would also be skilled enough not to just crash the plane but to deliver it to wherever it was that he was supposed to be hijacking it to, and skilled enough to hide it once he got it there.

Yet another scenario is that one or both of the pilots are the “hijackers”, with some mysterious agenda that at this point it’s very difficult for me to fathom. 

In any scenario that does not involve a crash, of course, there are 239 people to be accounted for.  Let’s not forget that.  Ugh.

Finally, until search and rescue finds something – anything – UFO’s and Wormholes or some other supernatural cause are not off the table.  If you don’t rule that out in advance because you can’t accept something like that, that is.

Update 2:  As some on twitter have noted – and which I had forgotten about, oddly enough – there is a US Naval Air Station at Diego Garcia in the Indian Ocean, and I’m sure a 777 could land there, if indeed it could make it that far, though I don’t know whether it could or not.

That puts the US Government in the cross hairs of the usual conspiracy theory suspects, of course.  Not that I’m buying anything like that, mind you.

Then again, could Diego Garcia have been the target in a 9-11 type suicide mission that failed?

Update 3This is a good article, via CNN.

Our previous consideration of supernatural causes, never really too heavy, has been pushed to the outer margins at this point.  Actually it really belonged out there as soon as it became apparent that transponders and other auto-communnications devices were deliberately disabled.

There’s a lot of focus on the pilot and co-pilot right now, as in some kind of pilot suicide.  While I realize this kind of thing has happened (very rarely) before, there would have to be some really good evidence to convince me that either one of those guys did this.  It is likely they would both have had to be in on it.  Very hard to swallow that one.

Most plausible to me at the moment?  A hijacking.  A sophisticated hijacker, perhaps bent on a suicide mission to crash the plane into the Diego Garcia US Naval Base.  Similar to the 9-11 style of attack, turning a commercial airliner into a missile.  Lots of innocent people terrorized and killed.

The two pilots may have foiled the effort and crashed the plane in the attempt, perhaps deliberately running out of fuel or something.

Some people are still thinking the plane landed somewhere, but while I suppose that’s possible – just barely – I can’t see it as having any likelihood given all the other evidence.  As between that and the pilot-suicide scenario, I’d opt for the latter, and I just find that one too hard to accept at this point.

Update 4So here’s a pilot writing on CNN.com saying that the Boeing 777 can essentially fly itself, even with auto-pilot off, for a good long ways and that some of the manuevering that has been alluded to in other reports is consistent with such a scenario.  This lends plausibility to the “sudden, catastrophic decompression” scenario in which everyone on the plane is more or less instantly knocked out.

Ugh.  11 days later and things are just as confused as they were at the beginning.  For a while there it seemed that a deliberate act, such as a hijacking, was a certainty.  No longer.

A very tragic situation for anyone who had a loved one onboard. 

Honestly, I don’t see much point in speculating further.  If they don’t find the aircraft – and it appears we may never find it – it’s just going to remain very much a mystery.

The black box emits a signal and remains active for about 30 days.  If the plane is underwater, that is.  But of course like everything else we don’t know that one way or the other, either.

 

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Medley Centre – Waste And Shame

In a suburb just north of Rochester called Irondequoit there was a rather nice, bright and airy shopping mall (‘nice’ as those things go, mind you), first called The Irondequoit Mall when it opened in 1990.

For reasons that will always be something of a mystery to me*, it began failing as a retail outlet within ten years and has now been almost completely vacant for about a decade.  A few hucksters have appeared on the scene in the years since promising this and that to the town board, but nothing of any significance has come to pass.  Then, a couple of months ago, with the rather brutal winter afflicting the entire country and of course in this area as well, a bunch of pipes burst in the now unheated gigantic space and the results have been captured on film (or digits, as the case may be) and posted by one of the local news stations here.

A couple of samples:

medleycenter_5

medleycenter_18

Bottom line is, it’s a tear down at this point. 

Everyone’s sights are turning on the most recent con man developer, but I think it’s clear from the photographic evidence that the waste of this facility, both inside and outside, is not the product of one pipe bursting incident in January, although I’m sure that didn’t help things.  I mean, like I said, the place has been largely vacant for 10 years and it looks just the way it should.

I don’t know why the story interests me.  Part of it may be the role that “rumors” of “crime” at the mall around the year 2000 might have played in gutting the place.

There’s a race angle there, of course.

In any event I’m sure some scapegoat will be identified and pilloried somehow, but I don’t think this is as simple as all that.  We may be letting ourselves off the hook too easily.

Maybe more on this later.

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*  Probably the most reasonable explanation is that opening a mall in the Rochester area in 1990 is pretty bad timing, and we might have been pretty well saturated with malls by that time, but like a lot of things economic, you can fake it for a long time, covering losses, etc.

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Thoughtful

Norm Pattis on privately operated drones, the FAA, negligence law, technological advances, and so on.

Highly recommended.

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Quick Political Note – GOP And The Debt Ceiling

The Republicans in the US House of Representatives are so pathetic at this point that Speaker Nancy Pelosi has to tell her troops not to “gloat” about their latest tactical victory.  No kidding.

I don’t know what is worse:  that the GOP threatened to refuse to raise the debt limit (you know, “government shut down” time again) unless some goodies would be dispensed to one of their core constitutencies (military pensioners); or that when they were called on it they caved.  Both are so miserably inept.  The GOP shows you craven, unprincipled pandering competing with despicable cowardice – a complete and almost nauseating lack of character or fortitude – and asks people for their votes.  It would be funny.  Maybe it is anyway.

Ugh.

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The Woody Allen Case (Updated)

I do not know the parties at all.  I am not a big Woody Allen fan.  I am not a big Mia Farrow fan.

One way or another, Dylan Farrow has been through hell.  Either because Woody Allen did to her what she says, or because her mother has made her believe that he did that even though it didn’t happen.  I mean, those are the only two alternatives here, so that much is certain.

If I had to pick a side it would be Allen, for two very basic reasons:  no previous or subsequent similar allegations; and the fact (which I am trying to verify) that the allegations of abuse were not made until after Allen had started an affair with his current wife (Soon-Yi), which understandably greatly upset Mia Farrow for a lot of reasons.

I wouldn’t accuse anyone of “lying” here.  All parties may believe what they are saying even though they can’t all be right.  But this is a very good example of a case where you cannot be certain and you have to be comfortable with being uncertain.  When defense lawyers are asked:  how do you defend those you know are guilty? – this kind of situation is one very good answer.  Most of the time you don’t know.

Update:  Well, no wonder I was having trouble nailing down the timing of the first emergence of these allegations that Woody Allen sexually abused Dylan Farrow.  Look at the NYS Supreme Court opinion from 1993.  It bounces around from time to time and person to person in a somewhat chaotic fashion as it recites “fact findings”, which, in a case like this, it’s extremely important to get right.  There are some places in the opinion where the only time frame referred to for an important development or even is “…in 1990″.  Ugh.

In any case, it’s apparent that Allen’s relationship with Soon-Yi began developing in 1990 when he started taking her to Knicks games.  The first independently verifiable* indication that Mia Farrow had concerns about Allen’s relationship with Dylan occurred in the fall of that year, with a therapist named Coates who opined:

I understood why she [Mia Farrow - ed.] was worried because it [Mr. Allen's relationship with Dylan] was intense, …I did not see it as sexual, but I saw it as inappropriately intense because it excluded everybody else and it placed a demand on a child for a kind of acknowledgment that I felt should not be placed on a child…

 

So by the fall of 1990 Mia Farrow is expressing concerns to a therapist about Allen’s conduct with Dylan.  Whether the concern was that this conduct was of a sexual nature is not clear, at least from the opinion, though the possibility was considered and rejected by the therapist herself.  At roughly the same time a relationship is beginning between Allen and Soon-Yi, which apparently developed into something romantic no later than fall of 1991.  Again, during roughly this same time period, Dylan enters therapy with a Dr. Schultz in April of 1991, and was formally adopted by Allen, finalized by December, 1991.  It was just a few weeks later in the following month - January 13 of 1992 – that Mia Farrow learned that Allen had been romantically involved with Soon-Yi.

This led to a lot of strife in the Farrow-Allen-Polyglot household(s), obviously.

The molestation incident described in Dylan’s open letter allegedly occurred in early August of 1992, more than 7 months after Mia Farrow had definitively learned of Allen’s relationship with Soon-Yi.  August 4th, I believe is the exact date but the opinion is frustratingly vague about it.  Dylan is alleged to have told her mother about it on August 5, the next day.  On August 6th Dylan saw a doctor and the report was made and presumably all hell broke loose.  On August 9th Dylan was examined and no evidence of sexual abuse was found.

The timeline undercuts (Doesn’t rule it out entirely, but undercuts it) the case against Allen, for two reasons:  

1)  He was openly involved with Soon-Yi and had been romantically involved with her for at least a year, probably longer.  He was in an acrimonious dispute with Mia Farrow for months.  It would seem bizarre beyond description that he would pick a time like that to molest his adopted 7 year old daughter.  

2)  Mia Farrow’s anger at Allen that had begun in earnest in January showed no signs of abating, and every indication of hardening and deepening by then.  This doesn’t mean she is “lying”, but it does make it more likely that she’s looking for horrible things to think and say about Allen.

Bottom line is, the allegations don’t add up. They’re not impossible, but they are very, very unlikely to be true.

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Philip Seymour Hoffman, RIP

Very, very sad news.  Such a talented man.

First time I remember seeing him was in a film called “Twister” that I thought was so terrible, but the one thing I enjoyed was watching him.  And I had no idea who he was at the time.

He hailed from Fairport, New York, and his mother – Marilyn Hoffman – has been a fixture in the Rochester legal community for decades. 

Our thoughts and prayers are with her, obviously.  This is a great tragedy for the acting community and the country, but it’s an unbearable sadness for her.

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Brady’s Bastard Children IV

To say that guaging the significance or importance of a case is not an exact science is to understate the matter dramatically.  Still, there are many reasons to believe that the 2nd Circuit’s Poventud case, that we have been picking apart for a few days now, will reverberate strongly and widely both in the 2nd Circuit and around the country.

One reason is, of course, the simple fact that the 2nd Circuit itself treated it as such an important case.  It went to a three judge panel which split on the outcome and featured unusually strongly worded opinions from both sides.  It was then reviewed en banc, which almost never happens and hasn’t happened in the 2nd Circuit in two years.  When the en banc ruling came down there was very, very sharp division again, strongly worded to the point of being tart-tongued dissents, numerous amicus briefs from several state’s attorneys general and national and state associations of this and that.**

And in the end it was a decisive ruling against the government in a case where the government actually had good arguments that it should prevail.  For my entire legal career, the favoritism shown to the government as a litigant in the courts has been grotesque and often disgraceful.  The government as a litigant can ordinarily be expected to prevail over an individual even where the arguments in the government’s favor are literally ludicrous and patently self-contradictory - at least with judges.  The Poventud case constitutes a dramatic and highly visible departure from this day-to-day reality, for reasons that are not easy to identify.

Although I’m going to try.

I believe it has finally dawned on some judges – not many of them, I presume, but apparently some – that the indulgence of the government as litigant has reached insane proportions and it’s past time to check it.  We noted that a South Carolina state court judge said something to this effect openly in a post a few weeks ago, and further opined that it’s as though there’s something just floating around in the ether out there where judges mingle and talk:

In any case, if a judge on a state’s highest court is talking this way openly, that means there have been discussions among a much larger group in private for some time.  It would be fair to say that the judge’s remarks reflect the beliefs of some not insignificant group of jurists and that those beliefs are bubbling up into more explicit statements either in opinions or in these confabs that public officials seem constantly to be holding and attending, sequesters or no.

From where I sit it’s like a radio signal I can’t quite lock onto.  I know it’s there and have an idea what it’s about but it’s not entertaining me in my car yet.

But if this is like other such sea changes, that might actually happen before too long.

Of course, I don’t want to run with my own thoughts too far.  Then again, if I do say so myself I am far less prone (though of course not absolutely immune) to confirmation bias than virtually anyone I know.  I mean seriously, I’m not in control of the objective indicators of Poventud’s significance; they are just there and I just notice them.

Also of great interest is the nature of the split of opinion among the judges of the 2nd Circuit.  We have a majority opinion by Judge Wesley that is both cautious in spots and alternatively daring (holding that a section 1983 Plaintiff who pleaded guilty can still have a valid claim about how he was convicted).  We have a concurring judge, Lynch, who actually characterizes the convicting of an innocent person as a “horror”, terminology that seems to hearken back to a long lost era of jurisprudence that in truth may never have really existed at all. 

The dissents, by judges Jacobs and Livingston, go on and on about the sanctity of the guilty plea and the sanctity of that distortion of Brady that they believe in.   For more than 30 years this is the kind of language you would see only in majority opinions.  To see it in dissent could be called stunning, without exaggeration or hyperbole.

This may all be just the natural pendulum swinging, I suppose.  But I think in more “proximate cause” terms it may have something to do with just how far prosecutors and attorneys general have pushed the envelope in their dealings with the less powerful.  They get together at conferences and whatnot and adopt as policy the position that if they can get rid of pesky innocence claims through stonewalling them, they’ll do just thatWhen they argued that there’s no “free-standing” constitutional right “not to be framed” by the government, or when they argued that grotesquely abusive behavior by prison guards towards inmates is not “cruel and unusual punishment”, it finally sunk in to at least those judges who have some experience with, or who can imagine, being the human being on the receiving end of such atrocities that some matters have gotten out of control.  Like some criminal prosecutions, where what is appalling is not what the defendant is alleged to have done but what the government has done in the course of prosecuting them.

These transparently disingenuous arguments – the “bastard children of Brady” most prominently, may have finally undone the mighty.  At least in some quarters.

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** According to one commentator:

En banc cases are “arguably the most significant cases decided by the courts of appeals, receive “more attention in the legal community, and are more likely to be reviewed by the U.S. Supreme Court than are rulings by three-judge panels.”

http://www.law.du.edu/documents/denver-university-law-review/v86-3/Berkus.pdf  

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Brady’s Bastard Children II

Let’s get into it a little more.  First, the facts.  Of course, we start with the facts.  We are lawyers here at Lawyers on Strike.

So this guy Poventud was convicted of attempted murder in 1998 in New York State courts, after a trial, and sentenced to a long term of imprisonment.  After serving about 9 years of it, the state courts vacated his conviction and ordered a new trial because of…..Brady violations.

Thus the title of this post, and the previous one.  I thought you might be wondering.

Anyway the State is doing what the State does in those situations:  blustering, chest thumping, we’re going to appeal, we’re going to try you again, we’re going to win again anyway – but since you’ve already served 9 years we’ll be really, really nice and lenient and let you plead guilty to a lesser offense and you’ll get time served and you’ll be out.  Which is more than you deserve, you lousy criminal piece of shit.

This is the graciousness with which the State ordinarily handles a loss, as they did at the hands of Mr. Poventud.  Maybe it’s understandable here, even if it’s wrong:  because if Mr. Poventud is not a criminal piece of shit someone else is.

But I digress.

So anyway.  It goes down like this:

The prosecution filed a notice of appeal; successfully argued that Poventud be denied bail; and offered him immediate release in exchange for a guilty plea to a non-violent, Class E felony charge of third-degree attempted robbery. By this time, Poventud had been incarcerated for nearly nine years. Poventud testifies that during his imprisonment he endured gruesome and repetitive physical and sexual abuse; that he attempted suicide; and that he suffered from depression and post-traumatic stress disorder. In January 2006, Poventud accepted the terms of the plea bargain and went home….Poventud now contends that he was deceived into pleading guilty. He alleges that the assistant district attorney knew, but did not disclose, that the district attorney’s office had decided not to perfect its appeal. Poventud alleges further that the ADA withheld crucial information from the defense. When he learned of these omissions, Poventud stayed the instant federal suit and moved in state court to have his guilty plea vacated as involuntarily given. The New York Supreme Court for Bronx County granted an evidentiary hearing on the question of voluntariness, but Poventud withdrew his motion without prejudice. He says he did this after learning that he had multiple myeloma, after nearly dying from kidney failure, and after undergoing bone and stem cell transplants and chemotherapy. Poventud asserts that he thought the stress and infection risks of a new trial, together with the possibility, however remote, of returning to jail, would kill him.

 

You remember how Norm Pattis says that criminal court cases often involve tales of horror?

By any sane measure, Poventude’s guilty plea was a plea of convenience.  But it wasn’t an Alford plea, so the judge asked him a couple of questions and Poventud said yes and that was that.  It’s important to bear this in mind:  this guilty plea was the only way Poventud could avoid the certainty of additional years in prison.

In other words, this was a plea of convenience and nothing more.  Its probative value about what actually occurred, to a sane person, is nil.

Now.

…..

……

Read the dissenting opinions.  One is by Judge Jacobs.  We have had occasion to discuss Judge Jacobs before (here and here), very early on in the blog, and damned if he doesn’t vindicate us all over again.

The other is by Debra Ann Livingston.

We haven’t examined Judge Livingston’s opinions before. 

But we will now.

Conveniently, she very explicitly and succinctly exhibits the very Brady confusion we just mentioned about two months ago.  That is, she treats a prosecutor’s inadvertent failure to disclose exculpatory evidence and his deliberate suppression of exculpatory evidence as if these are the same “due process” problem

She really should have come over here before issuing that opinion, but never mind.

Observe.  We quote:

Heck itself involved a Brady claim. See Heck, 512 U.S. at 479 (stating that Heck’s pro se complaint alleged, inter alia, that the defendants had “knowingly destroyed evidence which was exculpatory in nature and could have proved [Heck's] innocence”

 

But deliberately destroying someone’s evidence of innocence is not a simple Brady violation, it’s a Mooney violation:

Petitioner charges that the State holds him in confinement without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. The grounds of his charge are, in substance, that the sole basis of his conviction was perjured testimony, which was knowingly used by the prosecuting authorities in order to obtain that conviction, and also that these authorities deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him…Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise. (Emphasis supplied.)

As we peons over here at Lawyers on Strike said in November:

Now, it’s true that as you get to the serious end of Brady violations – that is, the deliberate withholding/hiding/destroying of exculpatory evidence – it becomes a distinction without a difference, as they say.  But the key to understanding Brady is that the case really wasn’t about the serious end violations.  Those were assumed to be covered by MooneyBrady was “extending” the principle of Mooney both to place an affirmative duty on prosecutors to search their files and to err on the side of disclosure if there’s some question about whether the subject evidence is “exculpatory” or not.

None of this implied - except possibly, let us face it, to a very warped mind indeed - that the out and out, deliberate willful and malicious fabrication of evidence and subornation of perjury was not different from the inadvertent failure by a prosecutor to disclose exculpatory evidence.  Brady called the latter a due process violation as well; but the former had been held to be not just a due process violation, but an obvious due process violation even at the time of Mooney, which is to say 1935 – almost 80 years ago.

 

There is more to say here.  Next post.

 

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Extending The Discussion

Elsewhere in the blawgosphere, a couple of interesting posts:  one from Gamso about the death penalty (of course) and one from Greenfield about, well, apparently increasing lawyer suicides, among other things.

The death penalty.  Ugh.  Speaking for myself I trend in Gamso’s abolitionist direction and then away from it, depending on, well, nothing in particular.  Stepping back from it all I think of it as a very interesting question for debate.  As long as it remains completely abstract I think the death penalty winds up being justifiable in this or that imagined case.

Make it more concrete, though, and the whole chain of reasoning, elegant though it may be in theory, falls apart.  Breivik, the Norwegian who killed about 70 teenagers in a shooting spree the like of which is normally seen only in the US?  Both sides of Gamso’s debate seem to think he fits the bill of ‘the worst of the worst’.  But I think he’s completely fucking nuts, not a good death penalty candidate at all.  I realize what he did was unspeakable, but the harm done is not the measure.  People – lots of people, or at least frequently more than 70 at a time - suffer terribly, are terrorized  and die in plane crashes.  Nobody should get the death penalty for that; it’s usually an accident.  Nobody’s criminally liable at all.

Not to mention what the death penalty apparently does to us as a people.  The bloodlust I have observed over the web with respect to numerous cases over the last few years is bewildering.  Stupefying.  It leaves me speechless and as close as I ever come to being depressed.  I’ve pretty much decided that this particular collateral consequence is sufficient reason in and of itself to abolish the death penalty.  Most days I decide that, anyway.

Speaking of depressed, apparently a lot of lawyers are becoming depressed and committing suicide.  Greenfield goes into it and his take is illuminating and predictable at the same time.  He uses the opportunity to mock “therapeutic justice”.  Maybe he should, but on the other hand it seems to me that the blinders type approach to legal representation – that is, where the lawyer is very narrowly focused on “the case” and won’t bother with even the most obvious, if broader, consequences to the client, the client’ s family, etc. – has very deep flaws of its own.

Then again, as he often does despite himself, I’d have to agree almost completely with SHG here:

From my perch, two things seem to permeate the problems suffered by lawyers: First, good, hard-working lawyers are not earning enough to enjoy a sufficiently comfortable lifestyle for themselves and their family to justify surmounting the barriers to entry and the headache of the job. Second, the arbitrariness of the law. Non-lawyers think the law is somewhat reliable, and if a lawyer does good work, they will prevail. We know better, and it makes us nuts.

 

The only caveat:  it’s not the law itself that’s arbitrary; it’s how it is administered in practice.

I also appreciated a quote from the underlying CNN article about lawyer suicides.  Describing the stresses of lawyering, someone pointed out that a surgeon works with a group of people to save a patient; but there isn’t an opposing team trying to kill the patient. 

I used to express sort of the same idea to people but not as well.  I would tell them that sometimes I longed to be a mechanic, because you might or might not figure out how to fix the fuel system, but at least the fuel system isn’t fighting you while you try.

 

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Government Fraud v. Private Party Fraud

Regular readers should know where this one is going.

On Monday the SCOTUS will hear argument on the case of Law v. Siegel.  It’s a bankruptcy issue.  Bankruptcy is kind of an interesting area of law.

But that’s not the point here.

The point is that the courts get very creative about punishing bankrupt people who have supposedly committed fraud in their bankruptcy proceedings.  In the Law case, you have a guy who files for bankruptcy and has apparently manufactured/fabricated liens against his house so he can keep it, whereas otherwise it would be sold out from under him by the bankruptcy trustee to satisfy the claims of his creditors.

The case comes out of California.  California, where in many places a bungalo with a hammock, a sink and a toilet will cost you $5 million, apparently allows an unbelievably stingy $75,000 “homestead exemption” which is adopted by the bankruptcy court.  In simple terms this means if your home is worth $75,000 or less you get to keep it when you go bankrupt, but if it’s worth any more than that and you file for bankruptcy the trustee sells the house and puts you out on the street – with your $75,000 but no place to live.

Lots of luck.

Anyway, the trustee in bankruptcy defers to any mortgages on your home, because mortgages are almost always debts to banks and banks are favored litigants.  So if your house is worth $200K and it has a $200K mortgage to Bank of America and you file for bankruptcy the trustee doesn’t take your house – Bank of America does, with the trustee’s blessing.

And thus when a mortgage is ostensibly owed to someone other than a bank, some non-favored litigant like an individual, well the trustee will become suspicious and suspect fraud, and that’s what happened here apparently.  The debtor loaded up his house with phony mortgages to a fictitious person in the hope that the trustee wouldn’t take his house.

The fraud was discovered and the trustee took the house.  And the bankruptcy court punished the guy for this fraud by taking his $75,000 exemption, too.  So he was made homeless sans the $75K.  And the question before the SCOTUS is whether that’s all right.

So what’s the point of this little excursion into bankruptcy law, something we’ve never discussed on this blog before?

Read the article on the SCOTUS blog that I linked to above.  It is dripping with contempt for this poor schmuck who was trying to keep his home, albeit by easily discovered fraud (If he was going to fabricate a phony mortgage he should have made it to a bank.  Then the trustee never would have looked twice and he’d probably have gotten away with it.  Not that I’m recommending any such thing.).  The schmuck is raked over the coals, excoriated by the obscure but prestigious SCOTUS blog, deprived of his already unconscionably puny “homestead exemption” and left destitute.  And the article’s author fully expects the SCOTUS to sign off on this draconian oppression.  With gusto.

Yet in a slew of cases involving the exact same kind of conduct by public prosecutors – that is, fraudulent prosecutions with fabricated evidence – the SCOTUS has long since found that such conduct gets a pass:  the prosecutors are immune.  And they have heard uncontradicted evidence that prosecutors who engage in such conduct otherwise suffer no consequences whatsoever* and are often promoted or become judges.  And they have shrugged this off as if to say “meh”.

And then, when one poor sap finally gets some measure of justice against one of the lying, cheating prosecutors, who not only managed to convict him on made up evidence but put him on death row and almost succeeded in  killing him – well, the SCOTUS chafed at the justice some jury rendered and overturned it.  Took it all away.

And let’s not even start on the frauds committed by banksters, other than to note that they are explicitly given a pass as well because they are “too big to fail”.

So if anyone’s interested here’s my take:  the SCOTUS could use this Law v. Siegel case to move away from its heretofore srictly class based “jurisprudence”, note that those higher up the food chain are given a pass on far more egregious frauds than anything done by this desperate man trying to keep a roof over his head, reverse the punishment mindlessly meted out to him by the lower courts and hint that if prosecutors won’t prosecute big frauds then maybe their convictions for little frauds shouldn’t hold up either. 

It’s easier to convict little people than big people.  But that’s not the job.  Easy is not the point.

Ugh.

————————————————–

*  See discussion with Justice Sotomayor beginning at p. 21, line 20

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Power Differentials And The Paradox Of Weakness

This is really a continuation of the same topic as the last few posts.

Okay.  So what can explain the fact that a proposition deemed self-evident as long ago as 1935 (the proposition being that it violates a criminal defendant’s right to due process of law if the government, through its police and prosecutors, deliberately uses perjury and fabricated evidence to convict him) becomes controversial as of 2009, with the United States Government itself proclaiming that there is no “free-standing” constitutional right not to be framed by the government?

Well, in the first place the moral and intellectual regression hasn’t occurred only in the courts, although it is more acutely felt there, because courts are supposed to be the place where power is ultimately tamed and subordinated to justice.  Indeed as I look back over the three years I’ve been writing this blog it would be fair to characterize the whole thing as a chronicling of how, in a multitude of modern contexts, the worship of naked power has displaced any notions of fair play or justice in the popular mind and especially in the political leadership of the United States, and elsewhere.

Like uncultured pagans, in other words, we revere the powerful and the strong merely for being powerful and strong, and we despise the weak and the sick and the powerless merely because of that.  And there’s nothing else to it, no further thought – or in particular, effort – is made to ameliorate that state of affairs in part because in the end nothing is really seen as being wrong with it. 

It is this kind of society that makes a celebrity out of Kim Kardashian; in which the “economy” is plagued by a steady stream of hucksters and charlatans who exploit others at will and with no consequence; in which plaintive pleas for change are ruthlessly suppressed by force; in which people can be easily whipped into a feeding frenzy at the prospect of the perfect scapegoat for ritual sacrifice – the beautiful and alluring young woman; in which freakish and overpaid gladiators exercise a monopoly on glory inasmuch as the society at large no longer comprehends glory at all, but merely a bastardized caricature of it.

And so obviously, this kind of society will also feature a government that insists upon its power to punish arbitrarily, at whim, manufacturing its own justification in a vestigial and hollow tribute to a long dead civilized concern for truth and justice – in other words, just fabricating a pretend case to be processed through its pretend courts. 

And everyone must be forced go along.  Pretending doesn’t work when someone – even one lone person – lifts the veil. 

Of course, this is an indirect acknowledgment of what is underneath. 

But I digress.

There are degrees of barbarism, of course.  Taking the long view we are as yet only mildly barbaric.  But it’s important to bear in mind that once things have degenerated into the barbaric, there is no principled reason why they should not descend further, to whatever depths of human debauchery constitute the lower limit.

The only check on the trend is the principled resistance of the few remaining civilized actors who are willing to, or who are put in the position of having to, making what must be under the circumstances a sacrificial effort. 

And there’s a good reason the effort has to be sacrificial.  The forces of barbarism are barbaric precisely because they worship only power and strength, and so to overpower them in the end only reinforces them.  It is self defeating.  Even if you succeed, it’s only a speed bump on the already well paved road to moral oblivion.

And so the only way to truly conquer barbarians, who worship power and strength, is through weakness.

And this is the genius of passive resistance:  to make manifest the paradoxical strength of weakness, the power of powerlessness.

The techniques are familiar, or should be.  Striking is one of them:  not an attack, not an act of any kind, really.  A refusal to act.  Resignations in protest.  And so on.

The barbarians exploit, impoverish, punish and imprison the just.  And the innocent.  Fight back only by stating it plainly until they can’t help but see it themselves.  Be patient, but be implacable, too.  Never give in. 

This is the job of lawyers.  And civilization itself depends on it.

So there’s a lawyer’s strike across the pond.  Good for them.  But I’d rather see one over outrages inflicted on clients than over lawyer pay.  If you effectively address the first the second will take care of itself.

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Moral Coarsening And Regression

I once suggested to a court that the intellectual and moral landscape in which the legal profession and justice system operated had changed over years in ways that might charitably be described as….disturbing.

Some of the case law provides a neat and tidy measure of the argument.  We’ve been talking about “due process of law”.  There are times when it’s very clear that a due process violation has occurred because it is so intimately related to traditional definitions of the process itself.  Thus if you get arrested and no one tells you what you’re supposed to have done wrong (“notice”) or they tell you but you don’t get to defend yourself from the accusation (“opportunity to be heard”) well, then, you just haven’t received “due process of law”.  The very procedures are defective, and you are “due” more than that.

But then there are other times when the procedures – the “process” – may have the appearance of being what is “due” but it’s all a sham.  Nazis and commies were the gold standard for this, staging “show trials” where they’d convict their political enemies and dissenters in a “trial” the only real purpose of which was to provide the veneer of due process.

It was probably in response to this fresh wound to the integrity of judicial systems that our own in the US made a considerable effort in the 1950′s and 60′s to put some flesh on the bones of the “due process” idea, to define just when a process, seemingly proper on the surface, has in fact degenerated into the equivalent of the Nazi/commie show trials.

You could say this has not gone well.  There was a flurry of activity during the Warren Court years in one direction, resulting in something of a shift away from favoring government prosecutions in criminal cases, though the shift was never nearly as dramatic as some like to pretend.  That trend ran its course by the mid-1970′s.  We’ve been in the counter-trend ever since.

That fits, too.  Ten to fifteen years of tepid moving away from favoring the government followed by 40 years of ferocious government favoritism.  Par for the course.

But the whole Warren Court enterprise was not only a feeble effort in practical effect; it was also largely an intellectual failure.  We never really did get a good handle on the whole due process thing.  We never really improved upon notions of due process from decades before:

In the light, then, of these established rules and principles: that the due process of law guaranteed by the 14th Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States… to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a state on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the state, and  not merely a single step in those proceedings…

Frank v. Magnum, 237 US 309 (1915)

 

So when we “look beyond forms and inquire” what, precisely, is the basis for the inquiry?

Let’s not discuss the close cases.  Or rather, since maybe we can’t even tell what a ‘close’ case is, let’s look at a couple of cases 50 years apart and consider just one possible basis for an inquiry into whether “due process of law” has been observed in “…regard to substance of right…”; that is, does the scenario considered on the whole “shock the conscience”?

In Rochin v. California the SCOTUS found that a couple of cops acting without a warrant who apprehended a suspect in his home, took him to a hospital and had his stomach pumped to obtain the evidence of possession of illegal substances that he had swallowed shocked the conscience.  That was 1952.

In Chavez v. Martinez the SCOTUS found that the intensive interrogation of a suspect who was shot “several times” by police and who claimed to be in great pain and in danger of dying even as the interrogation proceeded did not shock the conscience.  That was 2003.  To be fair, Chavez was a plurality opinion and even within that group was something of a mess.  One of those cases where you can’t really be sure what it says.  It obviously gave the SCOTUS a good deal of difficulty, and despite the abundant verbiage and dissenting opinion by Justice Stevens, this one-liner by Justice Souter is actually explicitly designated the “opinion of the Court”:

Whether Martinez may pursue a claim of liability for a substantive due process violation is thus an issue that should be addressed on remand, along with the scope and merits of any such action that may be found open to him.

 

Justice Stevens – already by then I think the oldest member of the Court – thought the Chavez scenario amounted to obtaining a confession by torturous methods.  Which is to say, there’s quite possibly a generational perspective at work here.  Which is part of the point.

The other part of the point is that it’s hard to imagine a conscience that would be shocked by the Rochin scenario but not shocked by the Chavez scenario.  But one explanation is that “consciences” in 2003 were different from consciences in 1952.  We were very sensitive to torturous methods and forced medical procedures in 1952; less so in 2003.  At least if the subjects were accused criminals.

And it isn’t just the SCOTUS either; it’s us, because, as has been noted by my betters, SCOTUS is in many ways a reflection of what we are.  Or have become.

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Cash Is King

One aspect of the paucity of bank financing is a much, much higher proportion of people buying residential homes without bank financing at all.

That is, with cash.

All-cash purchases accounted for 42% of all sales of residential property in November 2013, up from 39% during the previous month, according to data from real-estate data firm RealtyTrac released Friday. “This is still a very cash- and investor-driven market,” says Daren Blomquist, vice president at RealtyTrac.

What is the interplay between interest rates and the prevalence of all-cash residential real estate transactions?

When interest rates went up slightly in June, there was a notable increase in cash sales, Daren Blomquist says. “Some markets are more interest-rate sensitive than others based on affordability,” he says. “Just a slight increase makes homes a lot less affordable.” In fact, another report by Goldman Sachs in August was even more strongly in the cash-is-king camp, estimating that cash sales now account for 57% of all residential home sales versus 19% in 2005. Walt Molony, a spokesman for the National Association of Realtors, says that the association’s estimate of the share of the market made up by all-cash buyers is lower than others’, at 31% in July, but that it’s still at an all-time high.

Who are all these people buying residential real estate without having to go to a bank for a mortgage?

Molony says that investors make up 32% of all-cash buyers (70% of all investors pay cash), up from 31% in October and 30% in November 2012, while retirees who’ve built up equity in their homes or paid off their mortgages account for around 12%. The rest include vacation-home buyers and foreign buyers.  (emphasis supplied)

The homes-as-worldwide-casino racket is hard to quell.  It was a great game for banks prior to ’08.  It has devolved to less regulated “investors” that of course include “foreign buyers”.

People want a place to live; actually, they need a place to live.  And if they don’t have one, or the cash to buy one, they are fodder – patsies, chumps - for any gambler trying to make a quick score, whether a bank or a well-off “investor” or a “foreign buyer”.

If this seems vaguely immoral, that’s because it is.  The libertarian language of the “free market”, although I am generally in agreement with it, begins to break down a bit at this margin.  Because the just and proper exercise of freedom can only exist where there are certain minimum standards of character, meaning the practice of virtue, one of the cardinal virtues being justice.

Put simply, people have to have a sense of being fair to one another.

There is no grand socio-economic organizing principle or form of government that can overcome the general collapse of character in the people.

It’s an old lesson, at least as old as the republic itself.

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