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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Relevant SCOTUS Goings On (Corrected)(Updated)

Well, well.

It seems our issue keeps bubbling to the surface in other venues, in other contexts, long after we first noticed it.

There are now two cases before the Supreme Court that are, perhaps, serendipitous.  And perhaps not.  Because as with all things in appellate courts, assessments of favorable v. unfavorable must abide the event, “the event” being whenever some judge or group of judges decides to weigh in.

We discover these cases courtesy of SCOTUS Blog’s “Relist Watch” which is a very useful tool for learning what SCOTUS Justices and/or their law clerks are looking at and maybe even interested in.

Astute and attentive readers, in other words, will appreciate the significance of Manuel v. City of Joliet.  It was filed in the SCOTUS way back in April, but by the time some modicum of interest was shown – that is, a response was requested – and after two extensions, the matter wasn’t fully submitted until December 14th, whereupon it was quickly scheduled for a conference, whereupon it was then relisted.

A “response requested” and a “relist” are two signs that the case is receiving serious attention.

We don’t really like this development otherwise.  Take a look at the Petitioner’s brief.  The case is out of the 7th circuit, which is the most confused circuit on our issue and has been the circuit most responsible for confusing the rest of the country.  The confusion is reflected in the brief, which is nowhere near up to speed, citing Albright v. Oliver – a 7th circuit case, of course – as standing for the proposition that a federal “malicious prosecution” cause of action sounds in the 4th amendment rather than the due process clause, which leaves Mooney v. Holohan out of it, a – ahem – problematic result inasmuch as Mooney and its progeny are the governing federal law on the question and they are all due process cases.  The brief cites neither Mooney, nor Pyle nor Miller v. Pate.


The Respondents’ response is dismissive, only 5 pages.  The Petitioner’s reply is more dismissive still, only 2 pages.

This case isn’t very well briefed and we hope the SCOTUS denies the petition.  It wasn’t granted today, so it’s either going to be denied or “relisted” again.  We have nothing against the Petitioner, but we hope it’s the former.  Too much at stake for us and lots of other people to have the issue messed up in the SCOTUS with yet another 7th circuit fiasco.

The other case is this one.  It was filed at the end of May and has been “relisted” five times.  It was not among the grants today either, meaning it will either be relisted again or denied on Monday, and again while having nothing at all against the Petitioner we hope it’s the latter, because the issue in the case is a Brady issue and the Petitioner’s attorney is not aware of the true Brady-Mooney relationship.  He more appears to be of the erroneous mind that Mooney has been “generally subsumed” into Brady.

Ugh again.

What is interesting about both of these cases is that the disfavored litigant is the Petitioner in both and they received considerable interest and attention.  Ordinarily when the disfavored litigant is the Petitioner a case will receive no attention in the SCOTUS no matter how meritorious it might otherwise be.

We’ve talked about that before, in the same context, but with respect to different cases which were also not taken up.  Thankfully.

That was in February, almost a year ago, and we surmised then that there was at least one Justice on the SCOTUS who was attuned to our issue.  We think by now there is probably more than one, but in that respect nothing has changed, because one is all you can know for sure.

This is a little like reading tea leaves, isn’t it?

Correction:  Manuel v. City of Joliet was a GRANT.  Ugh.  We are morons sometimes.  Don’t know how we missed that, misreading the order list on Friday.

What does this mean?  This is a very important development for us.  We may have things to do in connection with it.  Ugh again.

The other case, Wearry v. Cain, does not appear on today’s order list unless we are become morons again and have misread the list.  In all likelihood this means another relist – the 6th for this petition.  Or perhaps it has been consigned to some sort of SCOTUS limbo.

Update:  Wearry v. Cain is “relisted” again for this Friday’s conference.  See here.  That’s a 6th relist.  If I’m not mistaken, while a relist or two means a greatly enhanced chance of a grant, this many relists implies the opposite, but an enhanced chance of, say, a dissent from a denial of cert.

Again, this begins to resemble reading tea leaves or divination.



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Ken Kratz Weighs In (Updated)

So, the “Making a Murderer” prosecutor sends an email raising points and evidence he says the Netflix show ignored.  Interesting.

As we said, we assumed without deciding that the whole thing was a frame up job.  We’re open minded and not committed.  We have no dog in this particular fight.

But still, let’s take a look at the Kratz rebuttal:

1. Avery’s past incident with a cat was not “goofing around”.  He soaked his cat in gasoline or oil, and put it on a fire to watch it suffer.

Well, animal abuse of this nature is highly disturbing and, we agree, properly associated with homicidal tendencies.  Was this evidence introduced at Avery’s trial?  We don’t know.  What was the evidence that such an incident occurred?  We don’t know that either.

Accordingly, we give no weight to this “reason” one way or the other.

2.  Avery targeted Teresa.  On Oct 31 (8:12 am) he called AutoTrader magazine and asked them to send “that same girl who was here last time.”  On Oct 10, Teresa had been to the Avery property when Steve answered the door just wearing a towel.  She said she would not go back because she was scared of him (obviously).  Avery used a fake name and fake # (his sister’s) giving those to the AutoTrader receptionist, to trick Teresa into coming.

We’ll assume that these facts were established.  On that assumption, we think this is strong evidence in Mr. Kratz’s favor.

3. Teresa’s phone, camera and PDA were found 20 ft from Avery’s door, burned in his barrel.  Why did the documentary not tell the viewers the contents of her purse were in his burn barrel, just north of the front door of his trailer?

One problem that really must be addressed once the prospect of police-planted evidence is in play is that the word “found” cannot be used credibly unless and until the issue of planted evidence has been resolved favorably to the police.  We thus conclude two things from this “reason”:  a) it does not support Kratz’s position in the slightest; and b) it undermines confidence in Mr. Kratz’s reasoning ability and/or intellectual honesty.  Or just his basic honesty.

4.  While in prison, Avery told another inmate of his intent to build a “torture chamber” so he could rape, torture and kill young women when he was released.  He even drew a diagram.  Another  inmate was told by Avery that the way to get rid of a body is to “burn it”…heat destroys DNA.

This is jail house snitch information.  It is worthless, as proof of what it purports to prove; it is valuable in establishing that its propounder has no regard for the quality of evidence upon which he bases his conclusions.  Citing this as a “reason” counts heavily against Mr. Kratz’s contentions.

5. The victim’s bones in the firepit were “intertwined” with the steel belts, left over from the car tires Avery threw on the fire to burn, as described by Dassey.  That WAS where her bones were burned!  Suggesting that some human bones found elsewhere (never identified as Teresa’s) were from this murder was NEVER established.

This is strained conjecture, regardless of whether some “expert” offered this opinion.  Again, this undermines confidence in Mr. Kratz’s reasoning ability, honesty, etc.

6.  Also found in the fire pit was Teresa’s tooth (ID’d through dental records), a rivet from the “Daisy Fuentes” jeans she was wearing that day, and the tools used by Avery to chop up her bones during the fire.

See discussion of the use of the word “found”, above.

7.  Phone records show 3 calls from Avery to Teresa’s cell phone on Oct 31.  One at 2:24, and one at 2:35–both calls Avery uses the *67 feature so Teresa doesn’t know it him…both placed before she arrives.  Then one last call at 4:35 pm, without the *67 feature.  Avery first believes he can simply say she never showed up (his original defense), so tries to establish the alibi call after she’s already been there, hence the 4:35 call.  She will never answer of course, so he doesn’t need the *67 feature for that last call.

We’ll assume these facts were established.  This is extremely incriminating evidence and strongly favors Mr. Kratz’s position, as does #2, above.

8. Avery’s DNA (not blood) was on the victim’s hood latch (under her hood in her hidden SUV).  The SUV was at the crime lab since 11/5…how did his DNA get under the hood if Avery never touched her car?  Do the cops have a vial of Avery’s sweat to “plant” under the hood?

Leaving the word “found” out of the argument doesn’t change the nature of the contention.  Same objection as before.

9. Ballistics said the bullet found in the garage was fired by Avery’s rifle, which was in a police evidence locker since 11/6…if the cops planted the bullet, how did they get one fired from HIS gun?  This rifle, hanging over Aver’s bed, is the source of the bullet found in the garage, with Teresa’s DNA on it.  The bullet had to be fired BEFORE 11/5—did the cops borrow his gun, fire a bullet, recover the bullet before planting the SUV, then hang on to the bullet for 4 months in case they need to plant it 4 months later???

Using 3 question marks suggests poor reasoning and writing skills.  “Found” is the operative word once again.  “Police evidence locker”?  Please.  Same objection.


So, out of 9 reasons there are 2 that we think by themselves, and assuming these are undisputed and established facts, strongly suggest Avery’s guilt.  Beyond a reasonable doubt?  If we were on the jury we think it would be a close call, but from the outside we believe it’s a jury question.

If the defense has some explanation for this evidence – that is, “reasons” 2 and 7 – we’d like to hear it.

UpdateCan you believe this shit?



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