Rehash

So, SHG is revisiting an old debate about criminal defense lawyering, and he’s joined by Judge Kopf who has probably come over here (to LoS, that is) to re-familiarize himself with the term “epistemology”, which is now one of our wordpress “categories” since it seems to come up a lot.

The example is familiar, too:  do you “back off” of your “blistering cross” of the complaining witness when you know she’s right, that her rape accusation against your client is the truth, and that your brilliant cross will both destroy her and wrongfully get your client acquitted?

If the lawyer rips her testimony to shreds on cross, her testimony will come off as incredible to the jury and the defendant will walk. Then again, the lawyer, knowing her testimony to be truthful, also knows that a hard cross and a not guilty verdict may well destroy this complaining witness’ life. 

Does the lawyer destroy the victim or back off, knowing that it almost certainly spells conviction for her very guilty defendant?

Tedious, no?

But on a deeper level – depth being something lawyers and judges increasingly don’t do well, or at all – the nuances of epistemology are once again unknown, or at least not considered.  The hypothetical posed is absurdly that – hypothetical.  You don’t “know” that your “blistering cross” is going to result in an acquittal.  What you know is that statistically your client’s chances of being found guilty are north of 90%.  You might hedge that with the observation that in rape cases the percentages are more favorable, but the odds of conviction are still north of 70% by any sane measure.

So the dilemma never actually arises in real life.  Sometimes you should “vary the hypothetical” because the hypothetical is ridiculous.  The meaningful question is whether you should do your best to destroy a witness for an “advantage” that is just as likely to be the opposite, as one of SHG’s other commenters points out, only to be told not to go down that “rabbit hole”.

Ugh.

Can you, as an ethical criminal defense lawyer, balance a speculative advantage to be gained by attacking the witness against a far more certain damage to the witness – such as that the witness will fall apart and, say, harm herself – and forego the attack?  Probably.  Especially if there’s s serious downside to the attack, which in reality there always is.  As we have pointed out on other occasions, the “blistering cross” that lawyers love so much are often harmful to the client.

To be fair, though, you don’t “know” that the witness will engage in self-harm, either.  And you have no specific responsibilities to the witness, whereas you do to your client.  Beyond that, others have responsibilities for the witness:  friends, family, the prosecutor who takes the risk of calling her as a witness knowing the dangers.

We have encountered exactly this scenario in our professional life, by the way.  We assume both SHG and Judge Kopf would approve of our handling of the matter, but the route by which we might reach the same practical result and conclusion would be quite different, we suspect.

Sometimes the route matters a very great deal, however, if you want to avoid confusing people.  As we wrote recently in an unrelated context:

Zahrey reached the right result – holding that a §1983 cause of action grounded in fabrication of evidence by government officials sounded in due process – but the court also exacerbated the problem of conflating immunity with its analysis of the constitutional wrong:

“We think the right at issue in this case is appropriately identified as the right not to be deprived of liberty as the result of the fabrication of evidence by a government official acting in an investigative capacity.”

221 F.3d at 349 (emphasis supplied).

The distinction between acting in an “investigative capacity” as opposed to an “advocacy role” determines whether a prosecutor is immune, not whether a constitutional injury occurred. Conflating these two issues immediately forced the Second Circuit to address – in a rather confusing five and one half pages (221 F.3d at 349-355) – a causation question that disappears once the conflation is eliminated.

It’s important to be right, but it’s also important to be right for the right reason(s) if you want to instruct others properly.  Which is what appellate courts are supposed to be doing.

 

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In A Footnote…

…specifically footnote #1 in the dissenting (en banc, no less) opinion of the latest Cole v. Carson decision (we’ve kicked that one around before) coming out of the United States Court of Appeals for the fifth circuit:

We do not challenge the majority’s decision to leave in place fabricated evidence charges against these two officers and Officer Carson… The Supreme Court has not been clear on the constitutional basis for such a claim, so we have no ground to criticize the majority. Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017), with McDonough v. Smith, 139 S. Ct. 2149 (2019), (refusing to rule on the constitutional grounding of such claims).

Institutionally speaking, that is, we just don’t know any more exactly why the fabrication of evidence by law enforcement officials or prosecutors is a constitutional problem.  We haven’t known since 1994 – a quarter century ago – since the SCOTUS decided Albright v. Oliver, a “plurality opinion” case which ironically had nothing to do with fabricated evidence, but in its own footnote cited Mooney v. Holohan and its progeny, which did.

We’re fatigued on the point here at LoS.  We actually tried to help out with the McDounough case, and maybe we did because it seems at least no more damage was done in the wake of that one.

But the bottom line is that we’re very confused about the simplest thing. We just wrote about that in a different context, but it’s the same macro-problem.  It’s an epistemological crisis in the legal profession and the judiciary, an epistemological crisis that is actually deadly in practical terms even though epistemology is probably the most thoroughly academic and theoretical subject that exists.

It’s horribly fascinating.  The 7th circuit is as incoherent as the 5th and the SCOTUS at this point.  The 2nd?  Well, that’s where McDonough came from.

At least the 1st circuit has some clarity on it all.  But they’re all by themselves at this point.

 

 

Confounding The Obvious

This story is probably emblematic both of the favoritism shown to police-turned-criminal-defendants, and of something deeper.

Three police detectives “had sex” with an 18 year old woman they had in custody.  In handcuffs, no less.  By any sane definition, this is – and always has been – rape.  It is also difficult to imagine a more flagrant and shocking abuse of power by police officers.

The sentence is probation, not prison.  That may be an appropriate sentence for any number of reasons, but the reasons given are why we comment on the whole affair this morning.

Two of these reasons stand out.  One is that the incident took place before the state closed a “loophole” by passing a law explicitly saying that police officer sex with a person in custody was rape by definition, as if this needed to be said, as if any sane person could regard this as a loophole needing to be explicitly closed by language in a statute.  The other is that the judge stressed that the victim was a liar and not credible, to which a more normal response would be:  even if that’s true, so what?  The detectives are going to argue “consent”?  Under those circumstances?

Alas, things are not normal in our legal profession and our judiciary.  And this is another example of the surprising role – surprising to us, at least – of the profound intellectual errors the pseudo subject of “political science” – the most common undergraduate course of study for lawyers and judges – has wrought.  We’ve written about this before.  We may come back to it again, so often does it make itself felt in this or that high profile context.

Briefly:  political science encourages a “positivist” view of things.  In the positivist view, only “empirically verifiable” or “analytically true” statements have cognitive meaning.  And strictly speaking, in reality only the former do, because the latter are mere tautologies, true merely by definition, devoid of cognitive content, always subject to being refuted by empirical “proof”.

So it is possible, in the positivist trained mind, that in a situation where there has been a rape by definition – which would of course be merely an analytically true statement – the axiomatic nature of that assertion could be overcome by an empirical finding of consent due to the victim credibility issue.  Until, of course, what is not coincidentally called the “positive law” codifies the axiom, precluding that conclusion no matter what the empirical evidence might be.  But such a positive law did not exist at the time of the incident in question.  Thus an obvious incidence of rape can be deemed otherwise by a positivist.

Which is to say that positivists are not sane.

They nevertheless dominate the legal profession and the judiciary.  Positivism is at the foundation of their very intellectual formation (though they are not educated enough to be aware of this, or its significance), and there is no atrocity that they are not capable of in their administration of the “law”, as they understand it.  Rape and murder are not off the table, because they do not exist as concepts – or in reality – in any meaningful way unless and until they are positively proscribed by appropriate authority or empirically established by a “fact-finder”, usually a jury.

 

 

 

A Short Musing

Why – with the advent of the #MeToo movement and Bill Cosby and Harvey Weinstein and so on and so forth – hasn’t the “Ke$ha-Dr. Luke” matter been re-evaluated?

Why is Dr. Luke getting a pass?

Maybe he should.  We don’t know.  But on the surface, we think it pretty obvious he shouldn’t.  So we’re a little perplexed.

A Moment In Philadelphia

And a missed opportunity.

There are agendas.  Apparently Philly’s District Attorney Larry Krasner has one:  “reform”.  One would think there’d be widespread agreement that reform is in order.  And maybe there is.

But there’s a counterargument, as twitter traffic will attest.  Krasner’s agenda is encountering law enforcement push back.  Perhaps not all law enforcement, but the unofficial-official LEO party line, which is that Krasner coddles criminals and undermines police and in general is just a “disgrace”.

@DA_LarryKrasner absolutely is a disgrace to all dedicated prosecutors that respect the laws we take an oath to enforce and absolutely bears responsibility for the increase in violence in Philadelphia. #disgrace #philadelphiashooting #takeownership https://t.co/Mi1bST7fu5

— KB Metzger (@grump_opotamus) August 17, 2019

Philly’s federal prosecutor is cheer leading the push back.  Which is kind of odd, but then some seem to believe that this is US DOJ policy.

Not to get too partisan about it all.  We pride ourselves on not being partisans over here at LoS.

And here’s the point.  There is really only one take-away from the #PhillyShooting incident:  it was very fortunate that no one was seriously injured or killed, including the gunman.  The police are to be commended for their restraint and collective good judgment.  The lawyer is to be commended for his heroism and good judgment.  This was an all’s well that ends well scenario by any sensible interpretation.

But the official party line twists the incident into an occasion to take potshots at a reform District Attorney who apparently doesn’t sufficiently toady for the LEO party line, somehow dreaming up an “argument” that the fact anything happened at all is the DA’s fault, and we put argument in quotes because that thesis is too poorly reasoned to be taken seriously as a decent argument.

We’re saddened that the prediction we made in our last post – that we would be the only place where Shaka Johnson’s heroism was noted – came true so unambiguously, so quickly and so readily.  It’s a testament to the raw political power of the LEO party line, and the lamentable media servility to it.  And it is another example of the malignant belief that facts having only one legitimate interpretation can be interpreted in an entirely different way if we suppress the truth enough, and push the falsehood enough.

We hope Mr. Krasner can withstand the barrage, because the lines have been drawn, the sides chosen and the die cast.

 

Heroic Philadelphia Lawyer

His name is Shaka Johnson.  Read all about it here.

This is one of those situations where a lot of folks deserve commendation.  The police were patient and restrained in the face of six of their comrades having been shot.

Yes, shot.  Somewhat miraculously, none of them had life threatening injuries.

So, kudos to the Philly cops.

But Johnson is in a league by himself.  Apparently the gunman was a sometime client who called his lawyer – Johnson – in the midst of the tense standoff.  Johnson goes to the site, the cops put him in body armor and he goes in and convinces his sometime client to surrender.

Wow.  Nice job.  Really, really nice job.

We’ve had a lot of shooting stories lately with really sad endings.  Now we have one – out of Philadelphia, of all places – where everyone went home safe, or at least safely to jail, including the “gunman”.  And the key figure in it all was a lawyer.

Crediting a lawyer with heroism, by the way, is such an alien and disfavored narrative in the media at this point that no outlet is even stressing the obvious heroism shown by the lawyer here.

His name is Shaka Johnson.  It would be nice if we heard that name a lot more over the next few days.  But we’re not holding our breath over here at LoS; our paean is likely to be the only one.

Maybe there should be an annual “John Edland” award for unheralded heroism in the service of peace and justice.  We think 2019 has a hands-down winner already.

Ugh.

Trade War Counter-Spin

So, farmers are upset and claiming that the “trade war” with China is putting them out of business.

We don’t want to see any productive hard working people put out of business.  Especially farmers.  But we also think there may be foundational and structural adjustments to be made and that it’s not easy to do that without some pain.

The way things have been working, we run enormous trade deficits with China and other cheap labor countries so we can buy trinkets at Walmart for virtually nothing, while China buys up our food from our farmers, which is one of the only things ameliorating our trade deficit with them.  One of the effects of all this is to sustain our relatively primitive agrarian economy while China builds up its relatively more sophisticated manufacturing economy.

There’s a sense in which this arrangement is sort of obviously, you know, unwise.

But there’s a deeper issue.  We have grown very accustomed to cheap food and cheap consumer goods while at the same time we have incredibly expensive housing and health care, and pretty high taxation.  Put another way, we transfer an enormous percentage of our national income to bankers for mortgages, government for taxes, and insurance companies for health care.  This sustains in high fashion a basically parasitic managerial class that draw their income from government, or large institutions that feed off of government directly or indirectly, like banks and insurance companies.  And defense contractors – you know, the MIC.

It’s only our opinion, but we think it’s more economically healthy to pay relatively more for food and necessary manufactured goods, and relatively less for housing and government and weaponry and troops.  So we’d like to see farmers paid more by their own neighbors and countrymen for what would probably wind up being better food, but that won’t happen easily because the parasitic class in New York City and Washington isn’t just going to roll over and take a relative pay cut.

So, you know, it’s a difficult adjustment.  Maybe we can bridge the gap with increased subsidies to farmers.  We’ve been doing a lot of that since the New Deal anyway!

Just a little musing here.