Ferguson, MO – Smearing And Pandering

I suppose a little should be said about this.

First, the killing of Michael Brown is a triggering event, not the real reason for the rioting and looting.  So the relative merits of justifying Michael Brown’s shooting death by a police officer are largely beside the point.  Even if you could call the shooting justified there are problems in Ferguson that transcend Brown’s killing, as Professor Turley makes abundantly clear in this post.

Second, Greenfield is quite right about the effort to smear the deceased, and I think it’s just more fuel on the fire for the police to release the video.  Bad judgment, even if you think the video supports the view that the police claim.  Releasing it has had the predictable result of provoking further rioting in response.  Moreover, this is a revealing series of events about the mindset of the police:  even their style of “argumentation” tends towards efforts to overpower.  The lack of subtlety in a situation like this is….disturbing.  And counter-productive.

And I appreciate SHG’s link to Judge Kopf’s blog post, not least because of the truly frightening anomaly that I agree with a federal judge on both counts. 

Beyond that. however, two observations about SHG here:  first, for whatever reason he’s gone a bit off the rails on this one.  Despite the stupidity of releasing that video, it is certainly relevant to the claim that the police officer shot after being attacked.  Arguing otherwise is untenable.

Second, there’s this table-pounding, unequivocal – and one can therefore conclude questionable – assertion:

I would throw whatever I could at the case if I was repping Wilson [that is, the police officer who shot and killed the kid - ed.]. Not because it was relevant, or that its prejudice didn’t outweigh its probative value, but because my sole duty is defend my client, reason be damned.

But that’s because I’m a defense lawyer. My duty isn’t to the public, or truth, justice and the American way. If pandering to stupidity and emotion serves my client’s interest, I’m obliged to do so.

I’m not saying Greenfield is wrong here, exactly.  Maybe all I’ll say for now is that first, it sets forth a false dilemma:  how can you know for sure in advance that “pandering to stupidity and emotion” serves a client’s interest?  It’s not impossible that it could, but more importantly can’t SHG understand that even if it’s true, stating this openly – and to a judge no less – is virtually destroys his credibility?  Is he now going to appear in front of juries and argue stuff, when a juror has probably looked up his blog, read that quote, and not unfairly concluded based upon it that he can’t trust anything SHG says?

And when he says that all defense lawyers believe that, isn’t he potentially hurting them and their clients also, by discrediting them in advance?

This is a big problem, and not just for SHG.  SHG should address it, methinks.

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Was Robin Williams Brain Injured?

I don’t want to dwell on this, but there’s been so much noise about this latest celebrity suicide I thought there should at least be some discussion, somewhere, that might be worthwhile.  At least for some people.

It’s just my opinion, of course – although it is perhaps a bit more informed than most – but I believe that any person who exhibits symptoms of  psychological or psychiatric disturbance should be neurologically evaluated for brain injury.

Brain injuries, as we are learning from things like former NFL players who commit suicide for no apparent reason, are extremely common.  Extremely.  Very extremely.  In fact, in my opinion a significant percentage of the people reading this post have at least some limited form of brain injury.  I may have a brain injury without knowing it, and so might you.  These are scary thoughts in a way, but it’s the truth.

What happens to people with brain injuries?  Well, read a pretty good summary here.  Compare the kinds of problems brain injured people have with problems associated with various kinds of mental illness.  There’s a good deal of overlap that can be discerned immediately, but things like depression, mania, lack of impulse control, Parkinson’s should jump right out at you.

Greenfield put up a good post about mental illness in relation to the Robin Williams suicide.  But nobody that I know of has mentioned the possibile role of an undiagnosed and unknown brain injury in many aspects of Robin Williams’ personality, including his suicide.

One reason I think it’s important to mention this is that in recent years some promising treatments for brain disorders have been developed, in particular neurofeedback therapy, where it’s possible that the brain can be re-trained to function better essentially through playing a kind of video game.   This is, of course, non-invasive and non-pharmacological. 

People might not be so tempted to make harsh moral judgments, as has apparently happened surrounding Robin Williams’ death, if they realized not just that there might have been psychological or psychiatric issues, but physical brain issues over which no one has any control.

 

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Shepard’s Off The Wall ‘Warning’ Re: Mooney v. Holohan, 294 US 103 (1935)

With apologies, probably only lawyers will really understand this post.  Nevertheless, on to it.

Shepard’s is this service that’s been around for a log time helping lawyers to find cases (usually published opinions from appellate courts) dealing with a specific subject, where those cases have been cited by other cases, whether the citations are favorable or unfavorable – and very importantly, whether a case has been overruled and is no longer good law.

In recent years of course all these functions have been computerized and data-based and Shepard’s is primarily an online tool.

So recently I was checking Shepard’s for any recent developments relating to a case that’s been pretty important fodder for discussion around here for quite some time:  Mooney v. Holohan, 294 US 103 (1935).  That’s a US Supreme Court case.

And Shepards contains a warning that Mooney has been “abrogated”.  The warning then directs the reader by hyperlink to an unpublished opinion from a case in an intermediate state appeals court in Arizona – State v. Branch, decided April 17th of this year.

This unpublished opinion maintains that while under Mooney the prosecution’s knowing use of perjured or false testimony in a criminal case is a denial of due process, Mooney has been qualified to include a “materiality standard”:  that is, there is only a denial of due process of law when the perjury or false testimony affected the outcome of a criminal trial.

Two things about this.  First, it’s not true.  Mooney has never been limited or qualified, and we can hope never will be. 

But second, how can Shepard’s issue a “warning”, complete with the red stop sign symbol, that a US Supreme Court case has been “abrogated” by an unpublished opinion from an intermediate appellate court in Arizona?  State intermediate appellate courts don’t have the authority to limit or abrogate US Supreme Court precedents. 

Who is running things over there at Shepard’s?

 

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Rich Man, Poor Man

This article is actually more than a little disturbing.

The author appears to be advancing the thesis that manning up and taking responsibility for your situation in life is the key to success, while the unsuccessful are inclined towards superstition and voodoo.

But there’s an unpleasant reality hiding underneath the condescending pep-talk:  you might just as easily, or more easily, come to the conclusion from reading the article that the rich are self-satisfied, oblivious to how fortunate they have been, and prone to blaming the poor for their poverty.

Are there people who are entirely self-made millionaires, who have made their fortunes with no breaks, no help along the way from anyone?

No.  A little humility is called for, not that you’d glean that from the article.

Are there, on the other hand, people who are impoverished entirely without error in either act or omission?  A pure victim of circumstance, as Curly used to say?

This one is a little easier for me to believe in this or that case, just based on anecdotal observation.  But for the most part, I’d say the answer to this question is “no” as well.

The disturbing thing is that on the moral, and maybe psychological level, the rich and the poor are exactly the same:  both are entirely ego driven.  The rich indulge their egos by imagining they have arrived at prosperity solely because of merit; the poor spare their egos by ascribing their poverty to the cruelty of fate, or the fates if you prefer.

Neither is anywhere near to being correct.

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‘Christian’ Simpletons And The Death Penalty

Is there anything more annoying than someone making emphatic assertions that are obviously wrong? 

CNN runs an essay by a guest columnist/reverend named R. Albert Mohler, supposedly to make a Christian case for the death penalty.  It all boils down to this: 

On the one hand, the Bible clearly calls for capital punishment in the case of intentional murder.

In Genesis 9:6, God told Noah that the penalty for intentional murder should be death: “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image.”

 

What utter bullshit.  In the first place, it isn’t even clear that the quoted passage is a command so much as an observation.  In the second place, although ‘shedding of blood’ generally refers to killing, taken literally that’s not necessarily the case:  shedding blood isn’t always fatal.  The passage may not be referring to murder or the death penalty at all.

But what really makes it a poor argument from my point of view – indeed not just a poor argument but an ignorant one – is that any honest and remotely competent opinion on what the Bible says about capital punishment would have to begin by discussing the very first murder; yet that Biblical account would seem to completely rule out the death penalty.  That is, after Cain murders his brother Abel, this is the exchange between Cain and God:

Now, therefore, cursed shalt thou be upon the earth, which hath opened her mouth and received the blood of thy brother at thy hand.  When thou shalt till it, it shall not yield to thee its fruit: a fugitive and a vagabond shalt thou be upon the earth.  And Cain said to the Lord: My iniquity is greater than that I may deserve pardon.  Behold thou dost cast me out this day from the face of the earth, and I shall be hidden from thy face, and I shall be a vagabond and a fugitive on the earth: every one, therefore, that findeth me, shall kill me.  And the Lord said to him: No, it shall not be so: but whosoever shall kill Cain, shall be punished sevenfold. And the Lord set a mark upon Cain, that whosoever found him should not kill him.

 

I mean, how does anyone claiming to be knowledgeable enough to tell other Christians what they should think about the death penalty, based on the Bible, ignore this part of the Bible? 

We talk about religious subjects sometimes around here at Lawyers on Strike.  We don’t pretend to be Bible scholars, but we don’t need to be to see this particular gaping intellectual hole. 

In other words, we might quote the Bible from time to time, but we don’t thump it at anyone.

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Moreland Commission – Continued

So just to drive the point home, one of the allegations of the New York Times article goes like this:

Word that the [Moreland Commission's] subpoena had been served quickly reached Mr. Cuomo’s most senior aide, Lawrence S. Schwartz. He called one of the commission’s three co-chairs, William J. Fitzpatrick, the district attorney in Syracuse.

“This is wrong,” Mr. Schwartz said, according to Mr. Fitzpatrick, whose account was corroborated by three other people told about the call at the time. He said the firm worked for the governor, and issued a simple directive:

“Pull it back.”

The subpoena was swiftly withdrawn. The panel’s chief investigator explained why in an email to the two other co-chairs later that afternoon.

“They apparently produced ads for the governor,”

 

Nothing to see here, right?

Besides, the Commission Chair William Fitzpatrick, in his three page letter, had this very detailed response to this specific allegation:

 

“Fuck you.”

 

Okay, that wasn’t really what Fitzpatrick said.  What he really said was a far more egregious gesture of contempt, something to the risible effect that he always gave a lot of thought to issuing subpoenas because that’s “serious”; and the Commission reissued the subpoena a few weeks after it was retracted; and finally, the suggestion that the Commission was interfered with by such things as, oh, the Governor’s henchman aide Schwartz telling the Commission to “pull it [the subpoena] back” was – and I quote – “absurd”.

Of course, it’s not like that kind of thing happened except for that one time, though.  Right?

 

According to a subpoena that had been prepared, investigators wanted to examine the real estate board’s political donations, its materials related to a valuable tax break for new housing, and its communications with public officials, including phone calls with lawmakers…

Whereupon Mr. Cuomo’s office stepped in to shut it down.

Mr. Schwartz, the secretary to the governor, telephoned one of the commission’s three leaders in a fury, according to four people briefed on the call. There would be no subpoena to the real estate board, he said.

Ultimately, the commission merely sent the real estate board a letter asking it to provide information voluntarily, which it did.

 

Apparently the Governor’s office got advance notice of objectionable subpoenas because the Governor had a spy lackey close associate as one of the Commission’s co-chairs.  Her name is Regina Calcaterra.

Investigators began to suspect that Ms. Calcaterra was monitoring their activities and reporting back to the governor’s office:

  

Ms. Calcaterra repeatedly pressed Ms. Perry [another investigator with the Commission] not to serve the subpoena, emails show. Yet the commission backed Ms. Perry, and on Aug. 19, she wrote to the co-chairs that she would be sharing a subpoena with them “shortly.”

 

I don’t know what is more laughable – or depressing, depending on your mood:  the Commission itself, or Fitzpatrick’s & Cuomo’s when-you’re-caught-just-deny-deny-deny defense.  Ugh.

I mean, this shows the “Commission” was just a toxic mix of tawdry skullduggery and highly dishonest political posturing by the Governor’s office.  The Feds tried to criminalize such conduct through some statute or other regarding public officials’ failure to render “honest services”, but that was held unconstitutional.  And I don’t know if criminalizing is the right way to go, or even remotely effective.  Given day to day realities of the political system in the US I’d tend to say no.  In any event, I’ve made my suggestion and that has nothing to do with putting anyone in prison.

This does not, of course, indicate that the entrenched corruption of the political class is not a serious problem; indeed I wish we could overcome this vague belief that unless the government is prosecuting someone the wrongdoing, if it exists at all, must be trivial.

Our ‘leaders’ do not so much lead us as reflect us.  We tolerate in them the kind of wrongdoing we tolerate in ourselves.  Thus we like a little bit of ruthlessness in our politicians, it seems.  Unless we’re on the receiving end personally.

We’ll improve the character of our political class when we improve our own.  Until that happens, “Moreland Commissions” are worse than a waste of time; they are a farce.

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Justice

It doesn’t seem to be a law of nature, but it is.

Justice is a hard virtue.  Unlike, say, prudence, which is softer. 

Justice requires that the good be rewarded and that every wrong be paid for. 

Assume for purposes of discussion that there is a God, in the traditional western sense.  Then also in the traditional western sense God must be not only just, but perfectly just.  Every wrong paid for down to the penny, in other words.

Scary thought, isn’t it?

But we’re not God, and we’re not perfect.  So consider this:  for us in the fallen world, mercy comes at the expense of justice, and vice versa.  We like mercy (for ourselves when we have wronged) and justice (for ourselves when we have been wronged).  We’re not God – again – in more ways than one.  Assuming there is such a thing.*

Someone was talking to me the other day about those who do not do their duty, but rather prefer comfort and ease.  Is that a problem?  If justice is a law of nature it certainly is, because if someone has it too easy then someone else must have it too hard, to the extent things are working at all.

I often point out that as much as I and other complain about this and that injustice and whatnot, it’s astonishing how much still goes right in our daily lives:   air to breathe, water to drink, food to eat, relative safety for most of us.

With the exception of the first, we should – in justice, that is – regularly stop to consider that these things do not happen by themselves.  People – in most cases not us – perform tasks and work and make sacrifices so that these benefits come about.  And then we should be grateful for and to those people.  And then, if it seems that those people are not receiving their fair share and credit for the good they bring about for the benefit of others we should work ourselves to change that.

That’s an important job, too.  Don’t you think?

It’s not socialism to work for justice, unless you forget that justice is a virtue that exists only because individuals practice it.  The collective will be just only to the extent the individuals comprising it are likewise just.  This is a hard truth, like justice itself.  There are no shortcuts, there are no magical formulas, and anyone trying to sell you on something like that is a charlatan.  Or a socialist.

Of course, all that aside if there’s no such thing as justice I’m just talking nonsense.  But since just about everyone who has read this post knows exactly what I am talking about then it is not me talking nonsense, but rather those who say that there is no such thing as justice.

Which is not to say that we always know the just thing to do.  We’re not God, after all.  Assuming there is such a thing.

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*  This is a disclaimer we intend to use around here at Lawyers on Strike whenever the subject of God comes up, similar in function to the “Not that there’s anything wrong with that.” meme from the Seinfeld days.

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