It’s Good To Have A Navy

Not sure how you can justify this, given the cost-benefit analysis, but then search and rescue often seems like a disproportionate expenditure of resources.  I’m sure by now you could build 10 Boeing 777′s for the cost of searching for MH370.

At least this time we save a baby.  Nice going.

It surprises me that the US Navy is still operating any Perry class frigates.  I was on the reserve crew of one of them, out of Philadelphia when I was in law school.  Engineering wise, they were like half a Spruance.  Much cheaper to operate, I suppose, so they were kept around a lot longer. 

The Spruances were all gone years ago.  Most sunk as targets.  Like this:

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That’s the Hayler, the last one built.  The only Spruance still afloat is the Paul F. Foster, which is used as some kind of unmanned, experimental robot ship.  They don’t keep me informed anymore, so I can’t be more specific.

If memory serves Spruances were about $400 million a copy, and that was in the 1970′s when most of them were built.  They seemed ridiculously expensive for destroyers, which were kind of regarded by high up Navy brass as throwaway ships, at least historically.  The expense was justified because they were “modular” in construction and could be easily upgraded with new weapons systems, sensors and whatnot, which would keep them relevant and in service well into the 21st century.

Most of them didn’t make it past 2003.

Even so, a lot of that went on throughout their service life.  Upgrading, I mean.  Seemed like we were getting new systems every time we pulled into port toward the latter part of my active service.

I think to a large extent they were the Navy’s computer revolution pioneer ships, and ultimately casualties of that same computer revolution.  What little facility I have with computers I owe to my time on a Spruance class destroyer.  But even I could see, even at the time, that the dozens of refrigerator-size cabinets full of digital processing hardware that were built in to the 1970′s design were hopelessly outmoded a few years later.  By the turn of the century a typical civilian desktop computer was probably more processor-capable.

Sometimes the whole project just seems a waste to me.  A huge waste of billions of dollars.  Other times that doesn’t seem fair.  Having access to billions of dollars to build a Navy doesn’t make anyone clarivoyant.  You make the best decision you can about deploying resources and hope for the best.  Most of the time you’re not entirely correct, but you’ve probably done better than doing nothing, which I suppose is not an option if you might have to go to war to defend yourself.

In any case, we and our Spruances won the cold war, or so I am told.  It’s another of those things I am conflicted about now, although I wasn’t then.  Whether that’s because of maturity and wisdom or being addled by years of practicing law, well, I don’t know.

Maybe someone will interview that baby in a few years and ask her what she thinks of the United States Navy.

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Miriam Carey

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

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

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

mimcar

 

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

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

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

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

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

A tragic fuck up by the police.

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

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

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

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Very Well Said

A little wisdom for newly minted lawyers, from Norm Pattis.

No, that’s not fair.  A lot of wisdom, really.  And a good read for anyone, lawyer or not.

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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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Logic

A written judicial opinion might be “well-reasoned” or not, but either way an implicit reference is being made to logic, which provides a lot of rules for what is called reasoning.

Ironically, reason cannot provide its own justification, which is to say that everyone understands certain basic rules of reasoning and lives by them, for the most part unconsciously; either way, though, at the end of the day no one knows why these rules of logic and reason should be the rules.*

But all that aside we employ basic reasoning all the time.  Day to day life would be chaotic and unintelligible if we didn’t, and even the extreme skeptics who deny there’s any such thing as rational thought processes are forced to admit that much.

This comes to mind because I have been recently having an exchange with a police officer turned author named Martin Preib who has managed to effectively (if unintentionally) display much of what is wrong, logically, with the usual cop group-think.  First and foremost, cop group-think becomes a big problem when it ignores basic rules of reasoning.

Here’s one revealing exchange.  Martin says:

The prosecutor and detectives in that case [i.e., the Central Park Five case - ed.] have been put through hell,

I say in response:

Nothing compared to what their victims, or indeed any victim of any wrongful conviction have been put through.

This addresses Martin’s claim that cops and prosecutors have suffered over the Central Park Five case by pointing out that the wrongfully convicted suffered more.

Martin’s response to this is to first misquote and then totally misconstrue my response, deliberately or not:

Nothing compares to what the victim of a wrongful conviction went through? Tell that to the woman who was raped in Central Park or the families of the victims in the Porter case…

Making an argument so obviously invalid – basically changing the subject – should fully discredit the interlocutor.  If it was done intentionally he’s not honest.  If it was done unintentionally he reasons too poorly to contribute meaningfully to an argument.

And this was after I had pointed out to Martin that one of his arguments was a non-sequitur and another was an ad hominem.  And notice further that after this last one, Martin proceeds to make an appeal to emotion by aligning himself with the rape and murder victims.

Arguments like this should always fail in the courts.  But they frequently don’t, as long as they are made by favored litigants (government, bank, insurance company).  They will, of course, always fail if made by a disfavored litigant – like a criminal defendant – going up against a favored one. 

It wouldn’t be an exaggeration to say that this – the double standard exposed so plainly by the most elementary rules of logic – is the primary cause of the system’s many failures.  More than faulty eyewitness testimony, more than police or prosecutor misconduct even, because the double standard breeds the police and prosecutor misconduct in the first place by rewarding it with success.

Martin is offended and combative - rather than chastened - when I point out his poor reasoning skills.  And why not?  The system has taught him and other police and prosecutors to behave precisely this way.

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* There are big epistemological questions lurking here, but they are beyond the scope of this little post.  I might deal with them some other time.

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Wrongful Conviction ‘Industry’

Seriously.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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