Mourning Scalia

We haven’t always been kind to Justice Scalia in these pages.  But not exactly unkind, either.

Ultimately, the mighty fall.  Just like the less mighty.  He was 79 and not the least bit addled, plying his trade at the highest levels right up to the end.  That’s a good way for a man of substance to go, and say what you will Antonin Scalia was without a doubt a man of substance.

He died in Texas.  That seems significant somehow, though we don’t know why at the moment.

Whether he will be known posthumously for his constitutional originalism or for something else we can’t say.  He was certainly a prolific contributor to his country, prompting a national conversation that has changed it considerably, often in good ways.

No, we didn’t always – or even often – agree with him.  But standing over everything, and all our differences, is the common mortality he, and we, and everyone else shares.  And we may have shared more than that:  after all, he was one of Georgetown’s finest sons, a prominent defender of the faith, and with nine children and apparently numerous grandchildren, his professional attainments are not his only, and perhaps not even his most important, contribution.

REQUIEM aeternam dona ei, Domine, et lux perpetua luceat ei.  Requiescat in pace. Amen.


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So the FBI waited them out and no one got hurt.  We didn’t follow the Oregon-Bundy flap closely at all – which is to say, we were dimly aware of it and have some familiarity with the eccentric views of these “occupiers” – but we’re very grateful for the patience and restraint shown by federal officials in the matter.

Charges remain to be resolved and let’s hope the US attorneys are as reasonable as the FBI has been.  An incident like this that ends peacefully can go a long way towards dispelling the notion that the government is always some evil tyrant with whom we should be on the brink of war or rebellion.

The government does sometimes behave like an evil tyrant, of course.  But we should remember that any conflict is better resolved by reason than by violence, and that the tolerance of agreeing to disagree, while unsatisfactory to the more primitive impulse to gain a victory or dominate, is an outcome far more consistent with the behavior of civilized men.

And as we have said many times here at LoS, we like civilization.  The alternative being, you know, barbarism.  There’s way too much of the latter in the world, and thanks to the FBI there’s a little less of it in the US and the state of Oregon today.


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Recommended Reading

Birth Order and the Justices, over at the SCOTUS Blog.

We’re second born and have devoted some thought to the whole “birth order” psychobabble thing.  Unlike almost all other psychobabble thing, we think there’s some legitimacy to the idea that personalities are, or at least may be, affected by where in a family you are:  oldest, youngest, somewhere in the middle.

We would characterize things differently than the way the article describes.  Our opinion is that oldest or only children are apt to have an authoritarian bent due to an increased sense of hierarchy, whereas middle children have more of a “justice” bent due to an increased sense of fairness.  That is, the oldest first sees parents as godlike figures upon whom he depends, then when a smaller sibling comes along he gets the idea that he is in a superior position to the sibling, thus hierarchy.

Whereas the second first sees the godlike parents, but then also sees another much more like him and thinks like should be treated alike.  So that’s fairness or justice.

Anyway, it’s an interesting article.

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The “Making of a Murderer” saga continues to demonstrate the power of official accusation.  Once the finger has been pointed the object never truly escapes.  There is a not insignificant group of people who will never, ever accept an exoneration.  It is a ready resource for law enforcement to tap into.

Esquire magazine, apparently trying to tap into the Netflix series national frenzy, announces “new revelations” that “may change everything”.

What are they?

The needle hole in the cap of the blood vial in the evidence room was made when the blood was put in.

Possibly.  If that’s the way every other blood vial in the evidence room looks it’s a fair point.  But even if it’s true, the seal on the box being broken is a big problem.  A very big problem.

The victim’s blood was found only in the back of her vehicle.

First do not, when the allegations are that evidence was deliberately planted, use the word “found”.  It’s like changing the subject.

Second, the “explanation” for this, assuming it really needs to be explained, is that this is consistent with 16 year old mentally challenged Brendan Dassey’s “confession”.

Seriously?  Is this how law enforcement reasons?  Ugh.

They found the victim’s phone and camera on the Avery property

“Found”?  The use of this word in this context is so – frankly – stupid it’s difficult to maintain one’s composure.  A particularly corrupt group of evidence planting cops with whom I am familiar, unfortunately, actually used the declarative sentence “Look what I found!” as a code word to each other during a “search” that they had planted the supposedly found evidence.

Ugh again.

Steven Avery’s use of *67 to obscure his identity on two phone calls to to victim, but not on the third and final phone call.

This, as we have said, is extremely suspicious and potentially damning evidence if there isn’t some more innocuous explanation.  Even if there is a more innocuous explanation, it is still suspicious.  But this is not a “revelation”, as in something that has come up in the last few days.  Obviously.

Avery specifically requested the victim.

This, again, is not a recent revelation.  And it seems adequately explained away by Avery’s lawyer:

“They’re trying to make it sound like he was luring Teresa Halbach to his auto salvage yard where he could commit this dastardly crime,” Buting says. “She was the only photographer for Auto Trader for that whole area of the state! So, he doesn’t say, ‘Send Teresa Halbach.’ He says, ‘Send that woman you had out here to take pictures. We want to put another vehicle in your magazine.'”

All of this is either:  a) not a new revelation; or b) scores no points for the “he’s guilty” camp, or both.  That’s the objective interpretation.  Only those who have some sort of emotional need to uphold the conviction would trot these out as some kind of game changer.

Bottom line:  that this was a seriously compromised investigation, prosecution and conviction is not a debatable point.


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Quote Of The Day

National Review on Trump:

His obsession is with “winning,” regardless of the means — a spirit that is anathema to the ordered liberty that conservatives hold dear and that depends for its preservation on limits on government power.

Read more at:

Sadly, this applies to all too many in the legal profession.  And alarmingly, many of these are prosecutors.
We don’t truck much with NR anymore, never having recovered from Bill Buckley’s departure.  But they’re right that real, traditional conservatism is deeply at odds with the alpha male bluster that has come to characterize a good deal of American political discourse.

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Important Correction

For those of you breathlessly following our issue and our blog’s chronicling of same, we screwed up on Friday and misreported one of two cases we cited from the SCOTUS Blog.

We regret the humbling error.  We find it difficult to explain, as well as embarrassing.

In any case we have done our best to make amends and correct.

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Talk About “Frivolous”.

One of the consequences of gross favoritism to government litigants is that it winds up wasting judicial time and resources.

Case in point:  why is this case receiving any serious attention in the SCOTUS?  The main reason is that the Commonwealth of Pennsylvania is the Petitioner.  And what is the case about?

Apparently a group of lawyers opposed to the death penalty (“defenders”) receive some federal funding in PA and represent some death sentenced prisoners in state court post-conviction proceedings.  The Commonwealth doesn’t like that, and moved to disqualify them in the state courts, then the defenders “removed” the motions to federal court.

The Commonwealth’s argument seems to be that the federal funding the defenders get can’t be used to represent capital defendants in state (as opposed to federal) court, but they couch it differently:

Issue: Whether Congress has created a right to federally funded counsel in state capital post-conviction proceedings, in state court, prior to completing federal habeas litigation, notwithstanding this Court’s contrary decision in Harbison v. Bell.

This is such a stretch.  To properly present this issue you’d need a case where a capital defendant asserted such a right.  That’s not what is going on here.  Here, the Commonwealth is trying to disqualify these death penalty lawyers.  There’s no “right” involved, and no issue about any “right” to present to any court.

But the defenders have to spend time and resources opposing this stupid argument, first by properly framing the real question:

The question presented is whether the court of appeals correctly ruled that these cases were properly removed to federal court and that the AO has exclusive authority to enforce the terms of respondent’s federal grants.

And the SCOTUS has to wade through all that before it determines that the cert petition is denied.

Not to mention, part of wading through all that is dealing with dishonest “quote mining” by the Commonwealth.  This is from their reply brief, where they are trying to suggest that they have stated the issue correctly and the defenders are dishonestly trying to avoid the issue:

The Circuit Court observed that whether 18 U.S.C. § 3599 allows the federal government to provide counsel in State habeas “is the question squarely presented by the merits of this case.” 790 F.3d at 474.
But if you look at that quote in context, the Circuit Court was really saying exactly the opposite of what the Commonwealth’s attorneys are representing in their reply, and agreeing entirely with the defenders’ framing of the issue:
Thus, absent an authorization order from a federal district court requiring exhaustion of state remedies, federally funded counsel would not be required in such situations. Id. at 190 n. 7, 129 S.Ct. 1481. The Court never stated, however, that Federal Community Defender counsel would be prohibited from representing clients in state habeas proceedings in preparation for federal habeas corpus representation. See id. Indeed, that is the question squarely presented by the merits of this case. Because we must accept the Federal Community Defender’s theory of the case at this juncture, see Acker, 527 U.S. at 432, 119 S.Ct. 2069, we find this defense to be colorable.

Personally, we think the Commonwealth’s attorneys should be sanctioned – or at least cautioned or something – for bringing a frivolous cert petition and for dishonest argument.



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