“State Courts Matter”

How has it come to pass, we wonder, that someone feels the need to actually say this in a law review article?

Well, we don’t really wonder. We already know.

The legal profession is fractured from an absurd stratification.  “Trial lawyers” are an endangered species confined, at this point, primarily to criminal defense and prosecuting.  The former being the most important and necessary work and also held in the lowest regard by the rest of the profession.

Let that sink in.

The highest regard is reserved for “lawyers” who have never tried a case or had an actual live human being type client.  Lawyers, in other words, who are not lawyers at all  in the sense the term has been traditionally understood.  They include law professors, solicitors general, federal (not state) prosecutors, and large firm appellate advocates.  As we said, some of the highly regarded – federal prosecutors – have actually tried cases, but among the rest this is regarded as mark of lower status.  We are not making that up.  The prosecutors who have tried cases are considered suitable for trial level federal courts (i.e., District Courts), but not federal appellate courts.  It’s not an exaggeration to say that trying a case to a jury, to these members of the profession, is to have dirtied your hands and sullied your credentials.

Federal prosecutors who have tried cases aside, these highly regarded members of the profession now have a near monopoly in federal appellate courts – that is, all the federal circuit courts of appeal and the SCOTUS.  Which is to say that all of the judges, law clerks and for the most part the advocates in these courts come from the most highly regarded ranks of the profession.  Or at least those ranks are highly regarded by People Who Matter.*  So for the most part when an appeal is heard in a federal appellate court, no one arguing it or hearing it has ever tried a case.

State courts do not follow this pattern at all.  Well, maybe slightly, in some states, but the contrast in what might be called “professional diversity” between state and federal appellate courts is extreme.

For sane people, the professional diversity of the state courts is obviously desirable for the federal appellate courts as well.  But in a professional (and more generally, too) increasingly shallow culture, prestige-obsession governs to the point where prestige reaches an upper limit, and it is virtually all that matters.

And then eventually someone has to remind the audience for which law review articles are intended – that is, the prestige-minded and highly-regarded – that lesser prestige state courts have a far greater impact on the country than federal appellate courts do.

The danger, of course – well, one danger anyway – is that the impact on the rabble country, to the highly regarded, is as much a trifle as the state courts themselves.

In the end, we don’t know whether it’s a Good Thing or a Bad Thing that someone actually came out and said to a law review audience that “state courts matter”.  It’s indirectly revealing, which is always a good thing, we suppose.  But what it reveals is also lamentable:  an entrenched snobbery that increasingly marginalizes the legal profession.

A marginalized legal profession “matters”.  In the genuine sense, not the shallow sense.


* People Who Matter is probably a subject for another post, or lengthy screed as the case may be.


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Alibi, Per Se – SCOTUS Follies Edition

So one of the “Petitions of the Week” floating around the SCOTUS calendar is another illustration of the disconnect between those who are making the decisions that govern criminal trials and those who have actually conducted such trials, the two groups being mutually exclusive at this point.

Weighing in as an amicus on the almost absurdly subtle “issue presented” with a self-described “strong interest”, the National Association of Criminal Defense Lawyers makes this assertion:

Until this case, governing precedent across the nation had held uniformly that trial counsel’s failure to introduce neutral, credible alibi testimony undermines confidence in the verdict such that a reasonable probability exists that, but for trial counsel’s error, the outcome would have been different.


“Neutral, credible” is an important qualifier, although in the hands of the SCOTUS there’s no telling how messed up that characterization might get.  Look what they’ve done with the term “materiality”, for example.

But see here.  The NACDL also refers to “testimony”.  We think any alibi that relies upon testimony of any witness – as opposed to, say, independent video footage of the defendant being elsewhere – is an extremely dangerous defense, for reasons we have discussed before.  The defense labors against a nearly unbridgeable credibility deficit with respect to every “witness” it produces, compared with the government that is prosecuting, whose witnesses are presumptively believed.  And the presumption is nearly – not quite, but nearly – conclusive.

So the real and present danger for the defense is that your “alibi witness” will be disbelieved by the jury, and if they disbelieve the alibi witness there is only one alternative that logically follows – at least to most juries – and that alternative is that the defendant is guilty because he’s lying about not being there, and recruiting others to lie for him.

A disbelieved alibi defense, in other words, is fatal 100% of the time.

But realistically, you’d have to do some criminal defense work to understand that.  And not only would you have to do criminal defense work, you’d have to understand why the dogma that “neutral, credible” alibi witnesses must be produced or the defense has been incompetent has been established in the first place:  prosecutors and judges like it.  They know how easy it is to shoot down an alibi defense and obtain a conviction.

And not one of the justices on the SCOTUS has ever done any criminal defense, and neither have any of their law clerks.

We don’t know what other criminal-defense type issues might appear in the SCOTUS this term but this one bothers us because of where it might end up.


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Hobbesian, Holmesian, Columbian

We are flushed out.  Again.

A paean to Oliver Wendell Holmes, and his second most oft quoted* quote:

“The life of the law has not been logic; it has been experience…”

Logic v. Experience – or put another way, Reason v. “Science” – has been for over two thousand years the fundamental preoccupation of epistemology in “western thought” which of course we have explained before.  It is a very, very large and almost laughably esoteric subject.  You might say it is the subject underlying every other subject.  Judges and other rulers – and for that matter lawyers – who are not otherwise trained in epistemology should stay away from it and leave it to the professionals.

So again we must point out the incoherence and prompt self destruction of this nihilist proposition, the same fate of every nihilist proposition.  Holmes chose his words carefully.  “Life” – at least as we know it – is moving, changing and dynamic, and quite unlike the fixed and unchanging meanings of static, logical propositions.  So to say that the life of the law is experience and not logic is a simple tautology.  The life of anything is certainly not logic, by definition.

But a more basic objection, of course, is that “the law” is not a living thing but rather an abstraction.  Abstractions do not “experience” anything at all.  So the second most famous Holmes statement, to the extent it is not a tautology, is completely meaningless.  It has no rational content whatsoever.

We don’t intend to disparage Holmes personally.  He suffered traumatic experiences in the American Civil War.  He “experienced” the carnage of Antietam.  That might well impart a reflexive belief that experience trumped logic.

Still.  That reflexive belief, put into practice by judges and rulers, is a horrifying inversion of reality.  As we have noted, logic fully informs and governs our experience.  Indeed it is not an exaggeration to say that as far as we can tell, logic governs the whole universe.

This is probably an appropriate little follow up to our earlier musings (follow the above links, please) on the subject since today is Columbus Day, which has become quite a controversial holiday and in many places observed more as “indigenous peoples day”, on the theory that the real Christopher Columbus was a cruel tyrant who should not be honored with a holiday.  Maybe that’s true.  Maybe not.

But logically speaking, it can’t be both.  Ugh.


*The first most oft quoted is undoubtedly “Three generations of imbeciles are enough.” from his pro forced sterilization decision, Buck v. Bell.


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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”.


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.




Filed under epistemology, wrongful convictions

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.





Filed under epistemology

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.

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