Witness Intimidation (Corrected)

If you thought things couldn’t get any more bizarre in the Casey Anthony Jodi Arias case, it seems the prosecutor, Juan Martinez, engages in flagrant witness intimidation.  Not just so that he can win the case – he’d already done that as of last week – but so that he can win a death sentence:

Martinez said that he had merely interviewed [proposed defense witness] Womack about her testimony last week, on May 15, and asked her pointed questions about her drug use and unreported income that could subject her to criminal prosecution. Womack decided to invoke her Fifth Amendment right in response to his questions, Martinez said.

I love how the word “merely” is thrown in there.  Why not say as well, instead of references to “pointed questions”, that he just “casually mentioned” to the witness that if she testified in a way he didn’t want her to that he might prosecute her?

The solution for this kind of misconduct by the prosecutor is to throw his whole case out and refer him for discipline, after which he should be disbarred.

I’m completely serious.  There is no conviction that matters as much as making damn sure no prosecutor thinks he can do something like that and get away with it, or win his case despite misconduct like that.  At the very least he should lose his case – immediately and forcefully and make damn sure you pin the blame right where it belongs, your honor.

But that’s the way the system should work; not the way it does.

Rather 10 guilty men go free rather than 1 innocent person convicted?  Screw that.  How about this:  rather than allow a public official to so abuse his authority and subvert a fair trial for any person – but especially the most reviled, who are the easiest for a crude bully to pick on – shut down the court house entirely and let everyone go, because if you permit that abuse you have already turned the courthouse into a farce.

Bullies make me mad.  You?

Correction:  According to this, defense counsel was present when Martinez interviewed the witness.  This changes things.  While I still think the substance of the questioning was improper and an effort to intimidate the witness, I would have to say that although it is an extremely unfair tactic by the prosecutor, it wouldn’t be criminal.  Unethical, but not criminal.

Enough Is Enough

Feds are thinking about making states criminalize “drunk” driving at …… .05% blood alcohol content.

Speaking of “safety”, I think it’s safe to say that we have reached a moment of unbridled insanity on the drunk driving thing when this can even be proposed with a straight face.  I’ll take any reasonably competent 18 year old behind the wheel at .08 – never mind .05 – than a stone cold sober 75 year old.

Operating motor vehicles cannot be made absolutely safe.  You’re talking about a couple tons of metal rolling down a road at speed.  This is no longer about any rational concept of safety, this is about the same puritan impulses that brought us prohibition.

Not to mention this is a potentially huge boondoggle for the prison industrial complex, prosecutors and police, jailors and the endlessly moralizing therapeutic state.  Enough.

The Grim Result Of The Jodi Arias Trial

I can understand why people get interested in criminal trials intellectually, and even why some of those trials can become “sensational”, appealing to baser interests.  It’s the same reason people like murder mysteries or whodunnits.  Sherlock Holmes could not have become a popular series unless there were something inside of us, or in the way our minds work, that such fictional stories appeal to.  So the real life versions understandably command attention.

I can also understand the satisfaction of being proven right, and having that acknowledged, with the caveat that prudence and wisdom would counsel that this feeling is not to be over-indulged.  It’s a matter of manners, mostly, a concept that has undergone a sea change in the internet age:  a deplorable lack of manners has been unleashed, as any trip to any message board on virtually any topic will reveal immediately.  The unmannerly have found so much company that they are no longer ashamed and are dragging much of our popular culture down.  I don’t think the bottom is in, either.

In any case, what I can never understand is how some people feel glee or exuberance at a guilty verdict in a criminal trial.  To me a guilty verdict is always a sad occurrence, even when I believe it is justified.  And the more serious the crime, the sadder it is.

So Jodi Arias was found guilty of first degree murder and now a death sentence is on the table.  The mob, led by the execrable Nancy Grace, is already foaming at the mouth and looking for blood.  A friend of the victim weighs in:

“It just feels so good … to finally have the truth and be vindicated,” said Dave Hall, choking back tears.

Don’t forget how close “vindicated” is to “vindictive”, David.

The big crowd outside the courthouse “erupted in cheers” at the verdict.  Ugh.

By any sane measure this was a horrible incident and a tragedy for all concerned, Jodi Arias included.  I indicated elsewhere (near the end of this post) that it was hard for me to see an acquittal on all possible homicide convictions, since self-defense seemed to be belied by the nature of the victim’s wounds.  But my opinion, although it is soft since I didn’t follow this one closely, is that although murder with premeditation had some support, it wasn’t enough for a conviction.  In other words I think the jury got it wrong here, but I would probably not be able to quarrel with a lesser murder or manslaughter conviction.

I do not think the death penalty is appropriate here under any circumstances, and I’ll venture a guess that the jury will not authorize it.

I’m worried, and I think lawyers and judges should be especially worried, that the unremitting scorn heaped upon juries who acquitted in high profile cases like Casey Anthony’s and OJ Simpson’s has distorted the jury pool nation wide.  And it’s yet another failure of the legal profession and lawyers that, far from alleviating this problem, lawyers have often aggravated it.  And not only have they suffered no professional consequences, they have ridden their ethically challenged behavior to fame and fortune.  And there are more wannabes waiting in the wings.

Lawyers are important for so many reasons, but maintaining perspective and, yes, dignity in the middle of adjudicating some of the worst things human beings can do is among the most important.  If the profession as a whole was more introspective, somber and grim on occasions such as these people would be ashamed to engage in their unseemly revelry.  Nancy Grace would probably be disbarred and running a psychic hotline, where she belongs.

And we’d all be better off.

Troubling

Read some of the comments to this article, if you dare.

The story is about a 17 year old Canadian girl who hung herself.  She claimed to have been gang-raped when she was 15, but no charges were ever brought and apparently she was harrassed on social media and elsewhere.  People calling her a “slut”, among other things.

What a horrible story.  How it engenders anything in a reader other than profound sadness I don’t know, but people seem to have a lot of opinions, and quite remarkably lots of people appear to have little sympathy for the girl and blame her, at 15, for “putting herself in a situation” where she could be raped.

At 15.

I’m trying to fathom these opinions.  I can’t.  The idea that bad things happen to you only because you have brought them on yourself has run away with many peoples’ minds to such an extent that they can read an incredibly tragic story featuring a dead teenager and consider that an occasion to direct criticism at the teenager for alleged mistakes she made as a child that led to her suffering and death.

This is not reasoning of any discernible kind.  The closest thing to an explanation of it I can find is that our society has become mired in a “positivity cult” fostered by snake-oil salesmen/guru types, taking root in a warped and ill-defined Protestantism.  It has grotesque “victim blaming” as an intellectual corollary, although of course I use the term “intellectual” advisedly.  This is evidently what is on display in the comments to that CNN article.

This is utterly pathological.  Primitive and superstitious, akin to magical thinking.  In rational terms it completely misconstrues cause and effect.  In human and moral terms it bespeaks a shocking “empathy deficit”, as Barbara Ehrenreich notes here.

Sometimes you just feel like despairing.  Sigh.

Jodi Arias = Snow White?

I haven’t followed this trial at all, but I have to wonder where the prosecutor thinks he’s going with this seemingly endless Snow White analogy.  Unless he just thinks he’s scoring points by repeatedly bringing the subject up because he thinks it discredits the witness all by itself.

If anyone has any other ideas about what that lawyer is doing I’d be glad to hear them.  To me it doesn’t look like it’s working at all, whatever it is he’s trying to do.

Easy Pickings

It’s just another small time bribery/political corruption scheme in New York.  And the feds are all over it.

I guess this is just an easier prosecution than going after TBTF banksters.  But it’s the latter that is really needed.  It matters very little who gets to be Mayor of New York City and how much in bribe money he doled out to get there.

Still, you gotta love gems like this from arrestee Halloran:

“That’s politics, that’s politics, it’s all about how much,” Halloran said, according to the criminal complaint.

“Not about whether or will, it’s about how much, and that’s our politicians in New York, they’re all like that, all like that.”

Halloran allegedly added: “You can’t get anything without the f–king money.”

The meeting ended with Halloran receiving $7,500 cash bribe from the feds’ cooperating witness, according to the complaint.

“Money is what greases the wheels — good, bad or indifferent,” Halloran allegedly remarked.

 

Halloran is a lawyer, apparently.  And a former cop.  This should tell us something about the state of our criminal justice system and our legal profession here in New York State that after so many years of “public service” these are his opinions, but nobody much is listening with that in mind.

 

Delicate Subject: Defense Lawyering Is Dangerous Too

The District Attorney of Kaufman County, Texas was apparently found shot to death along with his wife.  A few months ago, one of the assitants in that same office was shot to death outside a courthouse.

These are, of course, terrible crimes.  And it is certainly not out of bounds to believe that the killings were related to the work the men did, which colloquially is often described as “putting the bad guys away”.  The bad guys are, after all, bad guys.  At least some of them are.  And bad guys do bad things like shooting you when you cross them, or when they believe you have crossed them.

All that said, there is something else that needs pointing out about this story.

In the first place, it is quite a story.  Front page on CNN, all over the web.  I’m not saying it shouldn’t be, and since you’re dealing with gun deaths there isn’t a lot of mental effort required to conclude that you’re dealing with homicides.

But here’s the thing:  defense attorney deaths don’t become the top story on CNN.  And it’s not as if there aren’t defense attorney deaths that don’t raise some questions.  Like this one.  And this one, and this one, which were, in fact, gun deaths.

And how about this one?

The ones that aren’t obvious homicides are the scariest.  If you’re in the hot seat, that is.  Because people are slow to perceive the risk.  In fact, most people never perceive the risk, even when it is pointed out to them, even when it makes sense objectively.

One reason why?  They don’t see that risk confirmed, affirmed, validated in the media, like the risk to prosecutors and to cops.

So when Mark Hasse, the assistant district attorney that was shot to death outside that Texas courthouse in January, packed a pistol and varied his routine to make himself less of a target, no one called him “crazy” for doing that.  And indeed he surely was not:  there’s nothing good about being shot to death but it does tend to vindicate the taking of precautions that may have seemed unnecessary or pointless beforehand.  Mark Hasse’s friends and colleagues took him seriously.  As they should have.

But a defense attorney who believes himself to be at risk is likely to be met with at least skepticism.  If not ridicule.  And the defense attorney’s risk is in many ways greater - and frustratingly far more subtle – for the threat he perceives is not as likely to be so crude and so obvious, since it probably comes from law enforcement that is already busy and adept at covering its tracks.

And there is this inescapable fact:  the law enforcement apparatus that poses the threat to you is the very same one that will “investigate” anything that happens to you.

You may think that homicides disguised to look like something else are far fetched.  But once you have uncovered, say, a law enforcement perjury scheme and appear to be the only witness that can prove it, it doesn’t look like such a remote possibility to you.

I guess this is a matter of perspective.  But the truth of the matter is, a defense attorney in that position cannot afford to disregard the risk.  And he shouldn’t.

C’mon

I know North Korea is kind of scary-crazy, but really.  Their little boy emperor should go back to the video games.

It’s kind of pathetic that this even has to be taken remotely seriously.  Maybe a phone call from Obama to the kid, who would probably be as star struck as he was with Dennis Rodman, would kind of help this blow over, instead of threatening the moron with B-2′s and bragging about ”…the United States’ ability to conduct long range, precision strikes quickly and at will,”

Of course we can’t stoop to the level of talking to him.  We would lose face.  So we spend a few billion on some military operations.

I don’t know who’s crazier, him or us.

 

Pet Detectives, Canine Edition

So the Supremes waded into the K-9 “search” area again and came up with a decision that at least on the surface is a win for the good guys.  A vindication for 4th amendment rights and so on.

A few comments may be in order, though.  There seems to be a lot going on here.

First, it’s a 5-4 split.  Whatever 4th amendment right is being vindicated here is hanging by a thread.

Second, Scalia wrote the opinion, in which Thomas joined.  Siding with a criminal defendant.  A little odd.  No, a lot odd.

Third, Kagan’s concurrence, about which I’ll say a couple of things:  a) her emphasis on a “privacy” analysis rather than a “property” analysis – and indeed this seems the entire point of writing her concurrence – is heavily, and probably unnecessarily, ideologically inspired.  Or perhaps generationally inspired, as if to say something along the lines of “Scalia can dispose of this on those stodgy old property grounds, but I represent the changing of the guard and think ”privacy” grounds are more important, which was the whole point of the Robert Bork fiasco, which took place during my intellectually formative years.”; and b) Kagan’s writing style seems very conversational, light and informal for a court opinion.  Almost like blog writing.  There’s nothing necessarily wrong with that, it might even be refreshing, but it’s noteworthy in the sense that it’s a departure from tradition.  And this is consonant with (a), above.  And this may not be a coincidence.

In other words, Kagan may be consciously changing the style of the SCOTUS, or representing that such a change is in the air when the next round of appointments comes about, whenever that is.

In any case, for those reasons I thought the opinion was interesting.

Another War

…but this one might actually be good for something.

It’s a war on the war on drugs.  Andrew Cohen of NYU’s Brennan Center tells it like it is.

Poignant

A very good, insightful and readable post from Ken at Popehat.

The part dealing with depression, and to a lesser extent mental illness generally, is an important contribution to a discussion that more people should be having.  So many tragedies cry out for an understanding of mental illness.  It may be that we have a limited capacity to understand.  But we won’t even approach that limited capacity unless and until we begin a serious discussion of the subject.

This is just my view, of course, but it is one of the markers of our descent into neo-paganism and barbarism that we so often mock the suffering of others.  This in turn fuels the shame that strangles candid and meaningful discussion in the crib.  So it seems to me we could start there:  attach suitable cultural opprobrium to mockery of others’ suffering or misfortune.

To be more specific, a few examples of commonly heard wrongful mockery:

- joking about men being raped in prison

- referring to people struggling with mental illness as “nut-jobs” or “crazy”

- openly rejoicing or gloating at a criminal defendant being convicted and sentenced, even though the conviction and sentence may be warranted.

- jokes about wanton killing of the enemy in a war.

Now with respect to the last on my list here, this kind of black humor is prevalent in the military and is perhaps more forgiveable – not excusable and certainly not right – but forgiveable in the sense that it’s a psychological survival mechanism if you grant that military preparedness is a necessary evil.  But still it should be discouraged and ultimately subject to rebuke, and the officer corps in particular should be vigilant not to let callousness of that kind take hold.  The consequences of that can be really catastrophic.

Readers with other examples are encouraged to contribute.

Another Legislative Solution In Search Of A Problem: A Dog’s Life

Stemming from a recent incident in which a police dog was killed in the line of duty, the New York Leg has swung into action and proposes to make it a felony to kill – or even ‘injure’, whatever that may come to mean – a law enforcement dog.

Just as police-persons are to be in a special category when someone kills or injures them, so also with police-pets it seems.  The real question is whether police pets are higher up the pecking order than non-police persons.

Of course the guys at Popehat and Radley Balko have chronicled police shooting/killing of family pets over the past several years (e.g., here and here), and those kinds of incidents appear to be far more numerous and far more deserving of legislative attention that the exceedingly rare instances where police dogs are harmed.

But never mind.  The political dynamics here are all too familiar, and all too tedious at this point.

B-52′s Over Korea

Apparently this is being done to express our displeasure, or to intimidate.  Or something.

The first flight of a B-52 occurred in April, 1952.  61 years ago.

The first powered flight of a heavier than air manned aircraft took place in December, 1903.  That is, 49 years before the first flight of a B-52.

Put another way, more time has elapsed between the B-52′s first flight and today than had elapsed between the first manned flight and the B-52′s first flight.   We’re still flying B-52′s; but it would have been unthinkable that in 1952 anyone would have gotten around in one of those Wright Brothers’ crates.

This is a startling fact and it says something.  I’m just not sure what.

 

When Being Right Has To Be Enough

Interesting remark from Gamso the other day:

I spent some time on the phone this afternoon with another lawyer offering him some thoughts and experience about making arguments and convincing courts and how it is that being right isn’t enough.

He didn’t say what kind of lawyer he was talking to.  He didn’t have to.  It clearly would not be a lawyer for the government or an insurance company or a bank.  It would be the other kind of lawyer:  the kind that represents the disfavored litigant, such as a criminal defendant or a personal injury plaintiff.

Because if there were any way to succinctly describe the main difference between the disfavored litigant and the favored litigant it’s a corollary to Gamso’s comment.  That is, for the favored litigant, being right is always enough.  Favored litigants most often prevail – at least with judges – when they are wrong.  But they always prevail when they are right.

And there’s a follow up question that ought to be explored at some length:  namely, what exactly is it that the disfavored litigant needs to prevail other than just being right?  What more do you need?

Eloquence?  Persistence?  Good looks?  Bribe money?

You see the problem.  If being right isn’t enough your mind begins to speculate as to what will make it “enough”.  There’s no good reason why any litigant should have to be more eloquent or more persistent or better looking than another litigant, in addition to being right, in order to prevail.  There are only bad reasons, and many of those bad reasons are also unethical or even criminal reasons.

We shouldn’t get complacent about not prevailing when we are right.  When we do that, we’re letting the courts cheat disfavored litigants, and disfavored litigants’ lawyers too.  But the fact that I can even speak intelligibly of favored and disfavored litigants means that systemically we have been too complacent for too long.

Something has to change.  I don’t know why Greenfield thinks it should be one person taking on all the work:

There are many leaders in the ranks of indigent defense, but no one has yet
emerged as a national leader, a spokesman, a teacher. True, they are tied up in
the trenches, fighting for crumbs, trying cases, trying to lighten the absurd
caseloads of their offices. Who has the time to mount a larger effort when there
are human beings marched in and out of courtrooms without meaningful
representation?

 

Some time ago I noted that Gideon, while not formally a dead letter like just about every other pro-defendant Supreme Court precedent from the 1960, had nevertheless been gutted by indirect means.

I don’t have any suggestions other than the one I made then.

9th Circuit Habeas Grant

It’s a death penalty case.  And a woman.  You can read about it here, and the decision is here.

So you have the thorny problems of police lying and Brady violations pertaining to the police lying.  The decision is undoubtedly correct on the violation of Brady and Giglio.  Whether it’s a proper case for a federal habeas corpus grant is another question entirely.  You’d think Judge Kozinski would know how to clear all the hurdles, but the SCOTUS has had a field day over the last few years overturning everything the 9th Circuit offers up.

At least when it’s one of those rare habeas grants.  Denials almost never receive any attention.  And non-death penalty habeas petitions almost never do either.

Here’s a question lurking behind the curtain on this one:  what if the co-defendants, instead of refusing to implicate the woman, had falsely done so on the promise of leniency as much more often happens?  In this case the perpetrators never implicated her.  But that is unusual.  It’s easy for police and prosecutors to get someone already in the dock to implicate someone else to save their own hide, and often they know it’s false or at best don’t care.

Judge Kozinski laments the “swearing contest” nature of the trial that convicted Debra Jean Millke.  But a lot of trials boil down to swearing contests.  The deal is that the jury decides who to believe and no one second guesses that.  Almost never, anyway.

Another question:  what if the Brady disclosures had been made, the defense used them at trial, painted the police officer as the liar he was and then the jury decided to believe the cop anyway and still convicted?  Now Debra Millke was convicted at a “fair trial”.  Can you argue that “no reasonable view of the evidence” supports the conviction?  I suppose.  That’s the one standard by which a jury’s decision can be second guessed by some judge or judges.

Never happens though.

Of course, I agree with Judge Kozinski’s decision and so much of the opinion as I have read thus far.  That’s easy.  What’s not easy is getting to the nub of the problem here, and that has to do with intermediate appellate courts and obvious differences in the quality of evidence.

In most places in the US, in both state and federal courts, you have trial courts that do the day to day adjudicating and conduct the trials.  Then the outcome can be reviewed, usually as a matter of right, in what are called “intermediate” appellate courts.  After that there’s no right to anything on “direct” appeal; the next step up is either the highest state court or the US Supreme Court, and those courts hear cases only as a matter of discretion.

Now in the New York state system, the intermediate appellate courts actually have the jurisdiction to reverse a criminal conviction that is “against the weight of the evidence”.  They never do this.  In fact the way they routinely  review trial court proceedings can best be conveyed with dark humor.

This has to change.  Conventional wisdom notwithstanding that intermediate courts of appeals are where “policy” is made, that role must not eclipse or displace (as it does now) the more fundamental one – that intermediate courts of appeals are the only realistic chance a litigant has to right a wrong taking place at the trial level.

Besides, “policy” is such utter bullshit.  It really doesn’t mean anything other than:  the government wins, the bank wins and the insurance company wins.  “Policy” is judge-speak for observing the pre-existing pecking order:  power prevails over weakness, bigger prevails over smaller, higher status prevails over lower status.  Preserving the status quo is always “policy” for those to whom the status quo has been kind.  Like judges.

Reversals of criminal convictions that are against the weight of the evidence should be frequent, rather than non-existent as they are now.  But this is a radical departure from current practice and can only happen, to even a minimal degree, if the criminal defense bar goes beyond making jokes  or blogging about how terrible the “system” is while continuing to “make a living” from it.  And forces the issue.

Scott Greenfield is right.  This is a system failure.  What is he actually doing about it, though?