Interest Rate Two-Step

Via Drudge, behind a link questioning whether the Fed is ever going to “raise rates”, it appears at least that it won’t be any time soon.

We’ve been over this beforeLots of times.  But to recap briefly, the idea – basically by now thoroughly discredited to any reasonably informed and intelligent person – that “low interest rates stimulate the economy” is a self serving mythology of the financial and government class that is sold to the rubes in fly-over country to falsely assure them that what is being done by their representatives is all in their interest (no pun intended).  The truth is that the banking system is protecting itself and its privileged economic position, and all those who have come to rely on that position.  Which is a not insignificant number of people, and not all of them are masters of the universe billionaire types.

The political considerations here are formidable.  That’s why I rarely view this stuff in terms of good and evil.  I think everyone feels trapped, even those who are ostensibly running things.  It’s just not quite fair that they are trapped where they are, and others are trapped into, say, homelessness.

Can they keep rates low for a really, really long time and let banks who would otherwise collapse re-order their balance sheets so that when rates finally rise those banks won’t go under?  It would seem this is the plan.  What is the human cost of it?

I’m going to have to mull that over for a bit.

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Gamso v. Greenfield (Updated)

Is the Innocence Project anything more than a pain in the ass?

One of the dirty little secrets of those who sit on the far side of the courtroom from the jury is that the Innocence Project makes our efforts harder.  You see, the idea that an innocent person has been wrongfully convicted is horrific to all good people, Justice Scalia excepted.

The good that comes of it is that the mechanisms giving rise to wrongful convictions are put under scrutiny, shown to all the world as junk in either their application or effectiveness.  The bad is that it focuses public concern on the innocent, as if those are the only people entitled to our concern.  The guilty are throwaways.

SHG has a point.  A small one.  Without debating the matter at length, we would agree that to any fair minded person almost no one should be a ‘throwaway’, such that we just, say, sentence them to death and that’s the end of it.  At the same time, “…focusing public concern on the innocent…” does not come at the expense of concern for anyone else, unless the public concern is some sort of zero sum game.   We don’t know why SHG would think that.  We don’t know why anyone would.

We’ll say this, though, for SHG:  he’s consistent on this point, at least in the larger sense, insisting that the CDL perspective is to defend them all, innocent or guilty.  This, too, is not in the least problematic.  Unless it becomes some kind of dogma with far reaching – and completely unnecessary – implications.

For example, does consideration of the government’s offer of leniency in the form of a plea bargain in any way depend upon the actual guilt or innocence of the defendant?

Meanwhile, Gamso writes another compelling piece about a death penalty case in Texas that’s conscience shocking by any sane measure; and yes, it involves a guy who has been in the Texas prisons since 1996 and appears not only to be innocent, but to have been framed by a cop.

That scenario certainly resonates around here.

Ordinarily Gamso agrees with SHG (and for that matter, Justice Scalia) in oft opining that innocence doesn’t matter.  But with Gamso there’s a qualifier:  “…until it does…”, you might say.  For SHG, well, like we said he’s consistent on the point.  It’s a dogma.

Here’s an interesting thing, though:  SHG seems to believe that innocence concerns make his job harder.  We have often said that SHG’s dogma makes every other CDL’s job harder.  And especially ours.

Who’s right?

Update:  Pretty funny how the comments to SHG’s post of today that prompted this post are finishing up at the moment.  Apparently SHG has never heard of the four cardinal virtues.


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Malevolence v. Incompetence

It’s this Brady-Mooney thing again.

It’s easy to see why prosecutors blur the distinction between the two.  It’s a lot more difficult to understand why the defense bar does:

Until prosecutors are held personally accountable for concealing Brady, nothing will change. And that won’t happen as long as they’re immune from liability for their incompetence or malevolence.

“Malevolence” – that is, the intentional suppression of evidence tending to show a Defendant innocent by a prosecutor – has been a clear due process violation since 1935.  Because Mooney.  “Incompetence” – that is, prosecutors not knowing the evidence they have, or not realizing its exculpatory nature, and failing to disclose it – is sometimes a due process violation, and sometimes not, since 1963.  Because Brady.

The point being that this distinction is pretty important, not to mention settled law although it seems many who should know that, don’t.

Some time ago I wondered – worried, really – about the criminal defense bar being as unaware of this distinction as the organized prosecutor’s groups have intended for the last, oh, 30 years.  I further worried that the criminal defense bar might even be hostile to the idea of recovering this distinction.

Given the above quote, Greenfield is either unaware of the distinction, or hostile to it.  Neither is a good sign, inasmuch as SHG is nothing if not a representative sample of one highly regarded portion of the criminal defense bar.

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I’m beginning to worry about Greenfield:

Nothing is intrinsically anything. Everything a lawyer does is situational.

If he wants to be coherent and “not make people stupider” with what he writes – as he so often claims – he should either give that thought a much more thorough treatment (which would involve things like metaphysics and epistemology if he doesn’t want to frankly admit to being a nihilist); or on the other hand  abandon it, or if he can’t bring himself to do that, at least stop saying it so, so much as if it was axiomatic.


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Bower v. Texas – SCOTUS Grants A Stay

Well, well. And the SCOTUS Blog hasn’t mentioned it yet.  Scooped ‘em.

We still don’t think it’s the right “vehicle”, as they say.  And the death penalty lends unnecessary drama.

But, the plot thickens.

Meanwhile, Justice Kagan’s opinion is fairly predictable, and as she indicates probably shared by everyone on the SCOTUS:  leave it to the specialists.  That is, the Supreme Court has a “specialized bar” and they don’t want to hear from outsiders. We’re not as hostile to that idea as you might think.  But neither do we want to go into all that right now.  Maybe later.  But without going into the subject at length, the fact that the Justices’ preference is that no one arguing before them has ever tried a case to a jury for a disfavored litigant – that is, “lawyers” just like them – reflects a profound institutional weakness.  We have no suggestions at the moment to address this, but we’ll think about it and get back to you.

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SCOTUS – Another Near Miss (Updated.)

Irish v. Cain.  The ScotusBlog page for the case is here.

Somebody at the SCOTUS is interested in this false testimony/fabricated evidence/due process issue.  You know, the issue we discuss around here a lot because, well, we know more about it than just about anyone in the country?

You can read the briefs, but I wouldn’t bother.  Nixon Peabody represents the death row guy (pro bono credit, doncha know) but they didn’t get a real good handle on the Mooney-Pyle-Napue-Brady thing, which is fine because it probably wouldn’t have helped their case any.

The significant thing is not really the case or the quality of the briefs (which isn’t very good) but that it got a lot of attention from someone at the SCOTUS anyway, having been rescheduled and then relisted three times.  Could be only one Justice is interested.  Could be more than one.  That can’t be known at this point.

Might even be Thomas.

Also noteworthy is that it got all this attention when it’s not in the posture the SCOTUS normally takes seriously; that is, the Petitioner was the disfavored litigant (death row inmate v. government) and had uniformly lost on the way up.  SCOTUS is very, very unlikely to take a hard look at a case like that.

So, for at least one Justice up there, interest in this issue is very, very high.  They’re just looking for the right case.

Update:  Meanwhile, this is interesting.

We reviewed Bower v. Texas almost two months ago, largely to criticize the Petitioners for not having a good enough handle on the issue they really want to stress.  Nevertheless, however poorly presented, the issue is in there (they cite Napue).  And it’s getting a serious look, even though like the Irish v. Cain case we just reviewed here, it’s not the usual posture the SCOTUS likes to see; that is, the Petitioner is the poor schmuck and he’s lost everything all the way up.

To review again briefly, we know it’s getting a serious look because it’s been “relisted” several times, and as of this writing the SCOTUS supposedly conferenced it on January 23rd and there’s been no further word.

Again, there’s someone at the SCOTUS who is really honing in on this issue and we have to think whoever it is has been reading over here because we’re basically the only place the issue otherwise gets any play, for some reason or reasons that remain obscure to us.

Off the cuff take:  Personally, we don’t like Bower for this because the Petitioner didn’t brief the issue very well, and because it’s a death penalty case, which clouds everything.  We prefer the issue to be better briefed and without the emotional baggage of the death penalty hanging over everyone’s head.

Nevertheless, if the SCOTUS takes this one up we will contact the Petitioner’s attorneys and lend what assistance we can.  The important thing is that this due process mess gets straightened out correctly, not how that happens or who does it.

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Monsters Of The New York Cesspool

Honestly, we don’t know where this all goes at the end of the day, as we say.

Is Preet Bharara really going to systematically prosecute and topple every high ranking state official in Albany?

We’re not saying either that we favor or oppose this federal prosecutorial onslaught.  Perhaps it is necessary, even long overdue.  We are wary, however, of criminal prosecutions as the panacea of the day to any problem, including entrenched political corruption, which is concededly abundant in the capital of the State of New York.

The feds hounded the New York governor from his office almost seven years ago now.  Has it made a dent in the abuse of power and corruption problem in the time since?  Then they turned their sights onto Joe Bruno, the second of three men in a room.  This did not go well.

Now they have Sheldon Silver in the dock, and are training their sights on Dean Skelos.  And maybe this all leads back to the governor – again – only this time not just for a sex scandal.

Maybe it’s a good idea.  Singling out this or that official hasn’t changed a thing, so a scorched earth carpet bombing approach might have an impact.  We’ll see.

But it really tests the integrity of the United States Attorney for the Southern District of New York, doesn’t it?  I mean both the current one and any of his successors.

After all, it might be the ultimate truth in all this that the only way to kill a monster is with a worse monster.  The Southern District of New York has gone down that road before.

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