Prosecutorial Discretion

Turley makes a good point this morning. At least that’s what we think. We put up a little comment there. Now we’re going to comment over here. Where we live.

In obscurity. But never mind that for now.

To us it seems the feds often don’t really have any principles at all about who and what they prosecute.

For instance, they seem to have a large number of little noticed prosecutions for tax fraud, money laundering, welfare fraud, food stamp fraud. Our impression is that these are training events for junior prosecutors. Nobody much cares about them except the Defendants and their families.

There are occasional large drug crime prosecutions, of course, but like every other kind of crime such prosecutions are normally carried out by state officials under state laws. Why the feds get involved in this or that case is often a mystery.

There’s a notion we have only recently become aware of (because while it is a prevalent notion, it is also never – or almost never – explicitly stated, and we expect a manly straightforwardness around here at LoS), that the federal government is simply more important and higher status than the state governments. It’s a surprising notion, not least because it is un-American and contrary to the entire scheme of the constitution.

But we digress.

We chronicled another strange prosecutor decision here. This wasn’t the feds, but the mindset is the same. And like the feds, once they put you into the “perp” box they normally “succeed” in convicting and imprisoning you.

Prosecutor discretion is an important safeguard in the system. When it’s driven not so much by a sense of justice and mercy but by career concerns – or as Turley points out this morning, political concerns – it becomes perverted. And dangerous.

Is that what goes on with the feds – that is, career and political concerns over everything else?

We think sometimes the answer to that is yes. It gives us no pleasure to say so. But there it is.

Ugh.

Collectivism

Just a little musing here this morning.

We were thinking back, in world-historical terms, and reminding ourselves of our now long ago educational experience as an undergrad, where for a time we were infatuated with the ideas of GWF Hegel.

Hegel was not a communist – he predated communism – but some of his ideas were preludes, as it were.

For example, communism is known for its “dialectical materialism”. Hegel wasn’t a reductionist/materialist at all, but damned if he didn’t virtually invent this notion of “dialectic”: thesis, antithesis, synthesis, doncha know.

But not being a materialist, there was this spiritual gloss over the whole thing, and it had a name: weltgeist. Literally, “world ghost”.

What was, or is, the weltgeist? Sort of a “spirit of the age” kind of thing. But Hegel imbued it with a personality, an independent identity, and it became in his mind and the minds of his followers a spirit that moved things and determined events in the world. Its methodology? Why, the dialectic, of course!

It can be thought provoking to view certain historical events through this prism, and particularly this: those periods where we make the transition from one century to the next.

Which brings us to the title of this post.

As the world transitioned from the 19th century to the 20th we were reaching a crescendo of a certain weltgeist that might be termed the industrialization and collectivization trend, which in turn produced mass armed conflict that we called the “Great War” at the time, until there was another one a decade or so later, whereupon we called both of them “World Wars”. Weltkriegs, Hegel might have said.

As we may have said elsewhere, there was then push back against the collectivist trend – kind of a decentralizing trend, we probably opined – in which we figured the internet was a prominent piece. A profoundly decentralizing medium, we think we put it at the time.

So now we a roughly at the point in time in the 21st century where the world had just put the Great War behind itself, and lo what do we have? A Great Pandemic, and some sort of “Great Reset” in the offing. And the internet, which we had originally described as a profoundly decentralizing medium – well, we might have been mistaken about that. Because there is a powerful trend afoot now to exert a rather profound centralizing effect on the world wide web, where it seems to be more of a collective hive mind than a free-for-all.

So the point this morning is this: the centralization weltgeist of the 19th to 20th century transition that led to the collectivist phenomena of world wars is duplicated in the centralization weltgeist of the 21st century transition that has led to the phenomena of one continual, collectivist public health “emergency” in which all are compelled to participate, much as men were drafted to fight the collectivist wars of the 20th century.

And this outlook somewhat explains the sort of natural ideological division that surrounds the pandemic. The people who reflexively or instinctively approve of the collectivist action on the pandemic do so because they are, basically, collectivists more than anything else and in the first place. And the people who reflexively or instinctively recoil at the same phenomenon are more individualists.

So that is our morning musing on the state of things in the world. It’s all about Hegel. And collectivism. And the weltgeist.

And, you know, religion. But that part will have to wait.

Fiat Justitia..

ruat caelum.

“Let justice be done though the heavens fall.”

Being a judge can be a very easy job, or a very difficult one, but when it’s difficult it’s not difficult in the usual way. That is, it’s not difficult due to arduousness, or long hours. No, being a judge can be difficult when it requires moral courage, one of the four cardinal virtues of antiquity.

The Latin adage is interesting from that standpoint. Most cases are routine – by definition, we guess – and the judge doesn’t really do any of the work; rather, he reviews the work of others and his job is to make the decision. But sometimes the case is not routine – again, by definition – and what this means in practice is that the party who would be normally expected to prevail (government, bank, insurance company) should lose.

The operative word being should.

Unsurprisingly, the party that is normally expected to prevail – well – expects to prevail. When those expectations are unfulfilled “the heavens fall”. That’s the idea, anyway.

Here’s an account of a judge who did his duty in just the way we are pondering this morning. Note that he did not go on to the usual conceptions of judicial greatness, becoming a federal appeals court judge or a United States Supreme Court Justice. Indeed, knowing full well that his decision in the Scottsboro Boys case would cost him the position he had, he made his decision anyway. He lived out the rest of his life in obscurity in rural Alabama as a farmer.

We hear nothing about Judge James Edwin Horton, just as we hear nothing about John Edland. Even as we can’t avoid hearing about Kim Kardashian.

We need to do better, in terms of the cardinal virtues, obviously. Especially the virtue of courage.

Today is Memorial Day, and we here in the US observe and commemorate the ultimate sacrifices of those servicemen who lost their lives in the military service of their country. We ourselves are a military veteran of the US Navy and we do take the observance seriously.

But this is a lawyers blog, and we put up this post this morning to make this connection: our war dead made their sacrifice for a country that promises justice. When lawyers and judges fail – or indeed often refuse – to do the hard work and (in particular for judges) make the hard decisions that cause the heavens to fall we dishonor and make futile their sacrifice. That is a terrible sin.

So this morning our request is that our colleagues on the bench and in the bar rededicate themselves to do justice though the heavens fall, to do their duty without fear or favor, as they swore they would at the beginning of their careers. And by doing so honor the sacrifices of the fallen, who died defending the civilization that depends upon lawyers and judges making the hard decisions when called upon.

Amen.

Rehashing Casey Anthony

We have no idea why this is occurring. There’s a lot going on in the country, and indeed the world, that ought to command our attention. Then again, look at all the attention the Kardashians get.

In any case, back in the day we opined somewhat prolifically about the Casey Anthony trial, which was a world wide frenzy for no particular reason we could fathom even then. We found the whole thing horribly fascinating.

The difficulty that attends Casey Anthony to this day is that apparently there was no conduct by public officials in the course of prosecuting her that gave her a cause of action for damages. She has never been compensated for her ordeal, and so we assume for practical reasons (i.e., lack of funds) she is unable to follow our advice for the “wrongfully acquitted”: leave the country and live obscurely elsewhere.

So here we are 10 years later, and there’s some sort of documentary in the offing that will of course imply that Casey Anthony killed her toddler and went out partying in “hot body contests”. And to gin up even more interest in the spectacle, we are treated to articles like this in our Yahoo news feed this morning.

Not to mention this juicy little tidbit: one of the jurors, who now allegedly regrets his vote to acquit. Note that he has to remain anonymous, even 10 years later. And stories from a jailhouse snitch. We are not making that up.

Apparently, even the jurors should leave the country with a bucket of cash, but we don’t know how that can be done.

The whole fiasco remains an important case study. It demonstrated that pretty young women have a really hard time as criminal defendants because of jury dynamics. It proved that even that can be overcome by a brilliant – and rare – performance by the defense attorney. It showed that mass delusion and the madness of crowds are with us still, even in the age of the individualistic world wide web.

Perhaps most importantly, the Casey Anthony case showed us that a large segment of the population will believe in someone’s guilt once they are in the dock, with virtually no rational reason to believe it. The mere possibility of guilt is more than enough to convince many, many people.

We’ll say it again, as we said 10 years ago. There is virtually no reason to believe Casey Anthony killed her toddler. The jury verdict was courageous and clearly correct, clearly even compulsory.

The end.

Ugh.

“Failed To Allege”…

There is absolutely no way in any sane universe that the Plaintiffs “failed to allege” sufficient facts to avoid a 12(b)(6) dismissal in this case, headlines and bylines and introductory paragraphs notwithstanding.

The linked article is behind a paywall, but neither you nor I have to read the article, nor do we have to spend our PACER capital looking up the actual decision.

The system has learned nothing from a year or more of social unrest. Here’s what happened in this case, and it can be gleaned from what little remains. Volkswagen and a few other German automakers were sued in a class action. They spent an enormous amount of money to hire Sullivan & Cromwell, perhaps the most “prestigious” law firm in New York City. Sullivan & Cromwell made an utterly bullshit, even embarrassing “argument” that the complaint should be dismissed on 12(b)(6) grounds. The judge granted the motion.

Arguments are cheap, but not when Sullivan & Cromwell makes them. Then they are very expensive and prevail, no matter how stupid they are.

The decision will be upheld on appeal to the CA2, if there even is an appeal. Because intermediate federal appeals courts are now “certiorari” courts, which ostensibly means that they only devote their “scarce resources” to important questions of law, but in practice what it really means is that District Court decisions throwing the rabble out of court will always be upheld, because we don’t spend our scarce resources on the rabble.

In other words, this is a purely class-based decision in favor of established, entrenched interests. It’s snobbery pretending to be a legal opinion. It’s the kind of increasingly common occurrence that in the long term is a threat to the courts as institutions because, as we have repeatedly noted, established and entrenched interests prevail without courts, so courts may as well be done away with. But since that is, by definition, the collapse of the government….

We’ve described all this before, in a similar context. Recently. Indeed we would not be surprised to learn that this Volkswagen decision is derived from the case we were reviewing there.

This cannot go on. The institutional momentum, mindless though it may be, is doubling down after a crisis that should have inspired some change. If all the courts ever do is rationalize the powerful prevailing over the weak, the lesson becomes power is everything and truth and justice are nothing. The weak learn the lesson and turn to rioting and other forms of violence. It’s the only logical approach, and we follow logic, ultimately, whether the courts do or not.

Oh yes, almost forgot. Here is the bio of the judge. She’s Hispanic, but she’s made her “career” by being an establishment shill. Former prosecutor. Political operative. Ivy Leaguer.

We’re beginning to think that not just prosecutors should be barred from judicial office, but Ivy Leaguers, too. The extent to which that is unthinkable is directly related to how hopeless the situation with our courts is.

Ugh. We are doomed.

Edwards v. Vannoy, Finality And Floodgates Run Amok

So, this was an interesting case that came down from the SCOTUS this week. We’ve been busy and haven’t had the time to deal with the case, at least not in the manner with which it deserves to be dealt.

Interestingly our media elite, such as at CNN, have exercised no restraint whatever in their haste to report not so much the significance of the case for people affected by it, but rather the revealing banter between the Justices in their various opinions, which collectively stretch to almost 60 pages. Which is not the lengthiest of opinions in the modern SCOTUS era, but lengthy enough. Seems that in times gone by SCOTUS was able to do much more in far fewer words.

In other words, CNN is focused on its own “legal analysts”, who in turn are focused on career-oriented gossip like the good little Ivy Leaguers they are. Indeed, if CNN is still accompanying that article with the video entitled “How are Supreme Court Justices chosen?” you’ll note, as we did, the pending rehabilitation of Jeffrey Toobin.

(Jeff ran into an excruciatingly embarrassing problem not that long ago. We find it hard to sympathize, both because the indiscretion involved seems unfathomable to us, and because Toobin thinks Edwards v. Vannoy is an occasion to talk – again, and ad nauseum – about the “impeccable” credentials of SCOTUS Justices.)

The poor schmucks who will rot in prison even though everyone now knows they shouldn’t be incarcerated at all? Who gives a shit about them? We’d rather gossip about petty sniping between the impeccably credentialed Justices than try to understand what they did and did not do to thousands of our fellow human beings.

You see the problem with our “legal analysts” (We mean, aside from their tendency to pleasure themselves on camera)? They’re so deeply mired in their own silly snobbery they miss the actual story.

We tend to the actual story here at LoS.

So what is that, in context here? Edwards holds basically, on the surface, one thing: the jury unanimity requirement that was held to apply to the states in Ramos v. Louisiana, such that a judgment of conviction for a felony after a jury trial can be valid only if the jury was unanimous, does not apply retroactively such that federal collateral relief is available to those aggrieved.*

Yet just like Ramos, which was specifically about jury unanimity but wound up being about stare decisis and Roe v. Wade for the likes of Jeffrey Toobin, so Edwards winds up being about something else as well. And what is the something else?

Federal habeas corpus.

The problem is, does Edwards really say anything we don’t already know? Kind of. It’s giving us some insight into the Justice’s positions. And for the most part, and probably unsurprisingly, it reveals that the Justices are hostile to the “Great Writ”, at least as exercised by federal courts over state court criminal convictions. Which is not to say that they are not also hostile to the Great Writ as exercised by federal courts involving federal court criminal convictions – they most certainly are, although those are called “2255 motions”, not petitions for habeas corpus.

But we digress.

Let’s string together a few choice quotes from Justice Kavanaugh’s opinion:

But under the habeas corpus statute as interpreted by this Court, a new rule of criminal procedure ordinarily does not apply retroactively to overturn final convictions on federal collateral review. See Teague v. Lane, 489 U. S. 288, 310 (1989) (plurality opinion)…As the Court has explained, applying “constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system…When previously convicted perpetrators of violent crimes go free merely because the evidence needed to conduct a retrial has become stale or is no longer available, the public suffers, as do the victims…Put simply, the “costs imposed upon the States by retroactive application of new rules of constitutional law on habeas corpus thus generally far outweigh the benefits of this application.” Sawyer v. Smith, 497 U. S. 227, 242 (1990)

Yes, well. We might as well be re-reading Calderon v. Thompson and post about that here. Like we did just about seven years ago exactly. Obviously, Justice Kavanaugh has not come over here to read.

Let’s say a person really is innocent and was wrongly convicted and rots in prison unjustly. How does the “cost imposed upon the State” outweigh the benefit of exonerating, freeing and compensating the wrongly convicted and imprisoned? Who in their right minds thinks this question even needs to be asked?

Are SCOTUS Justices in their right mind? We wonder sometimes. And note that the majority joined this opinion.

For his part, Justice Gorsuch, concurring, plainly understood that this is yet another case about federal habeas corpus, the AEDPA, and so on. He starts with a rather lengthy and detailed review of the history of habeas corpus and its origins in England.

Notice how Teague comes up again:

Under the view that prevailed in this country for most of our history, and in England for even longer, Teague’s question about the “retroactive” application of “watershed” rules of criminal procedure to undo final criminal judgments would have made no sense. Because a final judgment of conviction, pursuant to a full-fledged criminal trial, was the process due to a criminal serving a custodial sentence, the habeas writ had served its purpose…Only in the middle of the twentieth century did things really begin to change. In 1915, this Court suggested that a state court’s extreme departure from “established modes”of criminal trial practice, such as proceeding under the specter of mob violence, might be akin to the loss of “jurisdiction,” at least if no corrective mechanism like an appeal existed. Frank v. Mangum, 237 U. S. 309, 326, 335–336 (1915).

But if that represented an innovation, it was a modest one. The same cannot be said for Brown v. Allen, 344 U. S. 443, 464, 478 (1953)

Turns out Justice Gorsuch doesn’t like Brown v. Allen. Interesting that he also leaves out – skips over, actually – our favorite quote from Frank v. Mangum, which we have noted before:

In the light, then, of these established rules and principles: that the due process of law guaranteed by the Fourteenth Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a State on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the State, and not merely a single step in those proceedings; and that it is incumbent upon the prisoner to set forth in his application a sworn statement of the facts concerning his detention and by virtue of what claim or authority he is detained; we proceed to consider the questions presented

This quote wouldn’t have bolstered his argument any, of course.

Justice Gorsuch certainly knows what he wants to say about Brown, though:

With time, these implications became clear and, as Justice Jackson predicted, Brown’s innovation proved unsustainable. The haystack just grew too large.

We debunked this claim some time ago, when it was made by Justice Scalia. The “floodgates” argument, one of the SCOTUS’ favorites, is really annoying. It’s worse than annoying when you’re on the receiving end. It’s a visceral thing with the Justices, imagining the unwashed hordes storming the courthouse and making their lives miserable when they’re sitting for their portraits.

Here’s a nice little bit of positivism from Justice Gorsuch, a little further in to his opinion:

But if the rule of law means anything, it means the final result of proceedings in courts of competent jurisdiction establishes what is correct “in the eyes of the law.” Herrera v. Collins, 506 U. S. 390, 399–400 (1993).

Apparently, the “rule of law” can incorporate falsehood after falsehood, ad infinitum, so long as the falsehoods are findings of guilt in criminal cases in state courts. Because “finality” and “floodgates”.

And here’s something even more odd:

It’s simpler than that: The writ of habeas corpus does not authorize federal courts to reopen a judgment issued by a court of competent of jurisdiction once it has become final.

Whither 28 U.S.C. 2254, then, which explicitly says the opposite?

Here’s the reality. In any other context, all this hokum about federalism and federal courts not disturbing state courts doesn’t matter to the Justices at all, and it hasn’t mattered to the SCOTUS since at least the 1930’s and FDR’s “New Deal”, which essentially cemented in the United States a central (as opposed to federal) government. The state governments are now, and have been for some time, essentially vassals of the “federal” government who largely administer federal funds that pass through multiple layers of bureaucracy at the federal, state and local level before they reach their intended targets, if indeed they ever do. Just for grins and giggles some time, take a little trip following “policy” and more importantly money as it winds its way through the federal Health Care Finance Administration (“HCFA”) augmented by a stop on the way down at the State Health Department, which then delegates to the County Health Department, which services whatever individuals are making claims. In theory, anyway.

All of this would have been unthinkable to the founders of the United States and is profoundly contrary to our national traditions. FFS, the same goes for the FBI, a permanent national police force, or for that matter a standing army and a military industrial complex. Our federal government, in other words, has long since assumed a general supervisory role over public life in the Republic, and in the public mind – not to mention the minds of the rulers – this is a perfectly proper state of affairs. The federal courts themselves are considered, in our hearts of hearts, “super courts” that attract only the “best and the brightest” and adjudicate every “important” question, which the lesser state courts merely administer.

But for the SCOTUS, and now especially Justice Gorsuch, there is one exception to this otherwise prevailing regime of thought: when some poor schmuck is wrongfully convicted of a crime in a state court, his life essentially taken from him whether he winds up executed or not, the state courts have failed him and he seeks relief in a federal court.

The real reason, in other words, is not that we are so, so concerned about not elevating ourselves to a perch higher than our state court counterparts; rather, it’s that the task is too “dreary” for our Very Important Federal Courts, says Justice Gorsuch. This argument reminds us of Justice Scalia likening the same task to endlessly shoveling shit out of horse stables.

Finally, this rather interesting footnote:

The dissent criticizes today’s decision as a departure from modern habeas precedent. Post, at 2; post, at 3, n. 2; post, at 12–13. But the dissent’s history is selective. The dissent champions decisions from the 1950s, ’60s, and ’70s. But it disregards how those decisions departed from a century of this Court’s precedents and the common law before that. Supra, at 5–8. At the same time, the dissent’s account overlooks this Court’s precedents refusing to afford retroactive application in every case since the 1980s. Post, at 10–11; post, at 12, n. 7. The dissent may prefer decisions within a particular 30-year window. But it is too much to say this preference is required to “[r]espect[] stare decisis.”

Brown v. Allen, the 1953 case that is Justice Gorsuch’s bete noire in this opinion, was most decidedly not an out of the blue SCOTUS expansion of the availability of federal court relief for state prisoners, as Justice Gorsuch seems to think. It was consistent with precedent that had accumulated for about 20-40 years before that – at least since the 1930’s, in other words. Which of course is consistent with the FDR era history that the federal government and federal courts were now the Very Important places where all Very Important debates took place, the roots of which are even earlier. Don’t believe us? We have already demonstrated that Justice Gorsuch is largely misrepresenting Frank v. Mangum, which is a 1915 case, and pretty much stood plainly for the proposition that the federal courts will collaterally enforce federal rights over state courts on habeas review. Mooney v. Holohan, 294 US 103 (1935) was actually a habeas corpus petition seeking review of a final criminal state court judgment (California) that also originated in the SCOTUS itself, not a District Court, yet another hitherto unheard of but bound to be more and more common example of federal court oversight of state court criminal judgments. Mooney didn’t result in an out and out grant, but it was entertained, opined upon, and remanded to the state courts who were presumably chastened.

Want more, even earlier? Moore v. Dempsey in 1923. In particular, we suggest you read the dissenting opinion of Justice McReynolds and joined by Justice Sutherland. It is essentially the same point being made by Justice Gorsuch. In dissent. That is, by 1923 Justice Gorsuch’s view was already becoming quaint.

But what should really put to bed – forever – Justice Gorsuch’s views about federal habeas corpus is an ancient and, you know, what we used to call hoary principle of habeas corpus practice known as the exhaustion doctrine. The exhaustion doctrine says that you cannot seek habeas corpus relief in a federal court unless you have exhausted your remedies in the state court system and – usually – been denied review in the SCOTUS on petition for certiorari.

The necessarily true corollary, of course, is that after you have exhausted state remedies you can seek habeas corpus relief in the federal courts.

Far from being a novelty of the swinging 1960’s anything goes decade, the exhaustion doctrine appears as early as 1886 and then floats around through 1907 and by 1944 is pretty much written in stone. Here’s another in 1948.

Put another way, contrary to his contentions about “the dissent” it is Justice Gorsuch’s “history” that is highly selective and renders his position untenable. We hope he’s not serious when he sort of oddly pledges to persist in this error:

My vote in similar cases to come will, I hope, “be guided as nearly as [possible] by the principles set forth herein.”

We hope the opposite, because we sort of like Justice Gorsuch and think he’s capable of self correction.

Some days it all just seems too much, you know? Ugh.

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*To tell the truth, in practical terms neither the Edwards decision nor our little critique here of it is necessarily as significant as we think, because our brief and cursory review of post-conviction proceedings in Oregon and Louisiana may support the idea that prisoners can seek relief under the state laws governing those proceedings, which appear to confer a fairly broad discretion on the state courts. That is, Edwards refuses to apply the Ramos rule retroactively for federal habeas corpus purposes, but the state courts are free to grant relief. Strange that we at LoS should mention this point when the SCOTUS doesn’t in 60+ pages, especially since many of those pages are so deferential to state courts. Not strange, of course, that the media and their legal “analysts” miss it as well: they are so imbued with the notion that only federal courts, and especially the SCOTUS with all their impeccable this and that, MATTER.

Vaccination For Fun And Profit?

So this is a hot issue these days. And an interesting one. And it poses questions that are largely out of our field – immunology, epidemiology – so we’re careful about making grand or definitive pronouncements. Our traditional position has been something along the lines of “live and let live”. If you feel the need to vaccinate, why, go right ahead. If you object to vaccination, well, by all means refrain.

But our traditional position appears to be no longer feasible. We are being forced to take a position for ourselves and everyone else. So we have to think it through in our usual thorough, systematic way, emphasizing The Reason as governing The Science, because as we’ve noted we have a background in epistemology and that is the actual subject that is being implicated by these surprisingly prevalent meta-arguments, something we have pointed out before.

We start from the bedrock principle of “informed consent”. Any trespass against this principle requires compelling justification. This is not arguable. At least, it’s not arguable unless you’re willing to concede that the tribunals at Nuremberg got it wrong.*

We don’t concede that around here. We’re pretty surprised that anyone in modern times would be willing to concede that. Justice Holmes might have, back in his day. But then his willingness to do so was not his finest moment, was it?

But we digress.

We’ve been suffering collectively from a worldwide pandemic for more than a year, beginning around March of 2020. We’ve placed our faith in “public health authorities” to prescribe a collective solution to the dire and deadly threat posed by the responsible virus, known popularly as COVID-19.

Well, some of us have. Others of us object quite strongly, resenting the forced bureaucratic imposition of nationwide or statewide “lock-downs”, and historically peculiar – not to say bizarre – behaviors such as wearing masks and “social distancing”. The objection is that this is a largely manufactured crisis, that the seriousness of COVID-19 is greatly exaggerated, and that the whole episode is an irrational panic, like witch burning; or a power grab by power hungry swamp dwellers; or a money grab by money hungry pharmaceutical companies; or, finally, a worldwide conspiracy to set the stage for a “Great Reset” that will result in universal human enslavement under a new and sinister technological oligarchy (That last is a “baseless conspiracy theory”! The BBC says so!!).

There is significant disagreement about the very facts and circumstances that are cited as justification for disregarding that bedrock Nuremberg principle, in other words, and the motives, honesty and integrity of those attempting that justification.

Then, of course, there is the meta-argument: there is no significant or legitimate disagreement. The Science provides the only acceptable interpretation of the situation, and The Science prescribes mass – nay universal – worldwide vaccination as the only acceptable solution.

That is quite an extraordinary claim. And of course it is an epistemological claim, not a scientific one.

For our part we follow the newsletter of an osteopathic doctor named Mercola, who is “all in”, as they say, on the side of the objectors, occasionally teaming up with Robert F. Kennedy, Jr. We also engage regularly in our Facebook activities with other doctors who have the opposite point of view.

The – for want of a better term – “established” medical authorities do not generally engage the objectors like Mercola or RFK Jr. on the merits of their claims; rather, they seek to discredit them, sometimes quite unfairly, and censor their contentions. On those rare occasions when they do engage on the merits, they lose the argument, at least to the extent that they do not succeed in “debunking” the objections in any meaningful way, although we hasten to point out that even though they might not be “debunked” it is quite possible to disagree on the merits, and we do not purport to resolve that disagreement here.

For their part, the mainstream media (“MSM”) shill for the established medical authorities, much as they shill for the police and other authorities. We won’t go down the rabbit hole of why that is, at least not this morning, but we note that it’s too obvious to really debate the point.

The media approach is a “tell” as they say – what we used to call a “contrary indicator”. One faction engaging in character assassination and censorship is another tell. And when that same faction, in their few forays into genuine engagement, lose the debate on the merits, at least in the sense that they do not succeed in “debunking” the position of their interlocutors – we come readily to the conclusion that they are the faction in the wrong. It is not difficult, intellectually, to reach this conclusion and it is the only fair and objective conclusion under the circumstances.

Want another tell? Efforts to make vaccination more compulsory have become a Thing in recent years, some of it pre-dating the current pandemic. This supports a conclusion – doesn’t mandate the conclusion, but certainly supports it beyond any rational debate – that the pandemic is a manufactured excuse – by whomever – to further push vaccination. Even if this is true, of course, it may be that those pushing vaccination further do not have evil motives. But let’s just say that it’s not a good sign.

That does not, by the way, mean that it is not legitimate to disagree on the narrower, more modest point. That is, it is perfectly reasonable, even if it is likely wrong under our analysis, to disregard all the tells, decide that “The Science” is settled, and get yourself vaccinated.**

But that is not the issue on the table. The issue is not whether people are free to get vaccinated or not but rather whether those who do not want to be vaccinated can be compelled to do so in violation of the Nuremberg principle.

And that, ladies and gentlemen, is not a close call. Remember we said at the beginning that a justification for overriding the Nuremberg principle would have to be compelling, and that this is likewise not a debatable point. But not only is the profferred justification not compelling, it is not a winning argument at all, objectively speaking.

And that’s that! We know that many of you find it much more difficult than we do to think things through systematically. So this is our little public service this morning.

You’re welcome!

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*We understand that Nuremberg dealt most specifically with experimentation and not clinical treatment, but the standard has been a fixture in the time since for both.

**We ourselves, owing to our tour of duty as a key component of the national defense in the US Navy, are among the most heavily vaccinated persons you could ever encounter. We never felt the vaccines we received, by the dozens over a few days, did us any harm. But that is not the point here, obviously.

Cause And Effect

Two items this morning remind us of how difficult it can be to focus on what causes what.

Post hoc ergo propter hoc. It makes sense to infer that what comes right after something else was caused by the something else. But of course it’s a logical fallacy.

Scott Greenfield is looking at the same phenomena we are – the civil unrest, the calls for abolishing the police, and so on – and attributes the problems to the police themselves. And of course to an extent he is correct. Certainly the police as a group are not blameless in the situation they find themselves in.

But we focus on the legal profession and the courts. We figure that constitutionally speaking, these are the check on the police, so if the police are failing the cause would be there, and not just the police themselves. We also figure that chain-of-command speaking, we are the supervisors of the police, and the problems people are now perceiving with the police are nothing if not problems of poor supervision. Or a lack of supervision, if you prefer.

Indeed this blog started more than 10 years ago focusing on the same thing and was, for the most part, shouted down by other members of the profession, Mr. Greenfield himself perhaps the most prominent among them.

Is he right, or are we? A little of both, probably.

Our habit, it turns out, is thinking things through. And when you think things through, you often go back further, and forge deeper, before you declare that you have found the cause of some observed thing.

Another example of that in our approach to things even on this little blog itself is our proposals regarding the “financial crisis”, which we have usually cautioned should be referred to as a “rule of law” crisis.

Almost as long ago, we proposed that the solution to the problem was a jubilee and a return to the gold standard, and figured the only way to get there was with a constitutional amendment. At least in the US.

We had no takers then. Now? There’s a lot of talk about debt forgiveness. There is talk of a “reset” in the wake of the current pandemic, and some people believe it will involve a currency restructuring.

But it won’t be by a constitutional amendment and it almost certainly will not involve a return to the gold standard.

It seems to us that before a solution a problem can be devised, the correct cause of the problem must be identified. And that, it seems, is usually a tougher task than any posed by the problem itself.

Ugh.

Unhinged

From Michael Cohen that’s to be expected, we suppose.

But how does a media outlet cover this story without the slightest mention of the attorney client betrayal going on?

And Professor Turley, who wields a pretty big internet megaphone, is focused on what the feds took or didn’t take in their search. The elephant in the room remains the idea of raiding Giuliani’s office in the first place.

Obviously, lawyers can be prosecuted like anyone else for crimes they themselves commit. But when a prosecution stems from their representation of a client, and the prosecution also seems aimed at the client more than the lawyer that raises deep concerns about what the prosecutors are doing.

The silence from the punditry bar has been deafening. We’re in new territory again, and it’s a bleak landscape indeed.

Ugh.

Michael Cohen – Increasingly Weird and Disturbing

He surfaces from time to time in this or that article in the news feed.

The point always seems to be that he is cheering on the federal investigations that put his former client, Donald Trump, in criminal jeopardy. Let us say that again: he’s trying to help those that are out to prosecute and imprison his former client.

Not that he’s ever going to be much help. It’s hard to imagine a worse witness.

But what is intensely concerning about this is the eagerness of the press, or at least some of the press, to provide publicity for this excruciating professional betrayal, excruciating on every level for every member of the profession. One would think even for a former and disgraced member, like Cohen, there’d be limits. But no. And a press that would be horrified if the client were anyone other than the loathsome Trumpster, doesn’t even note in its reporting what a terrible betrayal this is, how damaging to our beloved “system”.

The duty of loyalty is perpetual. It survives even the death of the client.

Now, of course, we have the looming prosecution of Rudy Giuliani, apparently for conduct that occurred in the course of his representation, as an attorney, of the same loathsome Trumpster. Just as when the feds went after Cohen, there is no outrage here, even from the places you would most expect it. Even when the press increasingly portrays this basic professional obligation as something that people “hide behind“.

We are bemused, as well as disturbed. As we were last month. At this point a previously sacred rule is being routinely violated by the government, and no one seems to notice or object.

Ugh.

Ke$ha Redux Redux

“It goes on, Judah!”

Apparently someone important was reading over here and picked up on the fact – which only we seemed to find significant at the time – that having the wife of a SONY Records’ attorney sit in judgment on the Ke$ha v. Dr. Luke case was, you know, bad optics. So the litigation went to another judge but the result was the same and we’re a little puzzled by the general media silence about it, or why in the #MeToo era the headlines appear to stress that that this is a win for Dr. Luke without dwelling too much on what the case is really about. Because if they dwelt on that they would have to explain why this narrative is being treated so differently than other #MeToo narratives. Which has pretty much been our point all along.

We suppose it does not help Ke$ha’s case that Katy Perry has denied Ke$ha’s allegation that Dr. Luke had also raped her. Meaning Katy Perry. Perry denied this allegation fairly emphatically under oath at a deposition.

Does Perry have a motive to falsely deny the story? Of course. The industry is backing Dr. Luke. The industry is the source of Perry’s fame and fortune. Does that mean that Perry is lying? Of course not. Could she be lying? Sure.

That’s the kind of thing we submit to juries to decide. Or, we used to submit them to juries. But summary judgment, doncha know.

Anyway, this is where things stand now. The saga continues.

Switching gears, but still focused on puzzling media narrative choices, former New York Attorney General Eric Schneiderman has been subjected to attorney discipline and his license is suspended. No major media outlet has reported this rather startling development prominently, so far as we can tell. Oh, it’s reported. They always report. You can never accuse them of not reporting. But it’s buried somewhere.

We once harbored high hopes for Mr. Scheniderman. Dashed, of course.

But more to the purpose here: why is the Schneiderman story unworthy of being featured? Or Ke$ha’s? Then on the other hand, Governor Cuomo’s conduct has apparently been an issue for years, and only recently – and quite suddenly – has it become fodder for the news cycle. Why all the silence for so long? Why is the period of silence now over?

We wish we could provide an answer to our readers (all three of them!). We wonder whether political science is involved, as it is in so many other examples of social and institutional incoherence.

Ugh.

Immunity

There’s a lot of talk about immunity lately. To end the “pandemic” we are advised that enough people need to be inoculated that “herd immunity” will be reached.

Then there is “qualified immunity”, which has nothing to do with vaccines or pandemics but is rather an immunity from civil liability granted to all public officials except for prosecutors and judges.

And that’s only because prosecutors and judges enjoy absolute immunity with no “qualifications” whatever.

But this morning we see in our news feed that they are taking up the immunity thing in the Congress, as we suggested Congress should do over nine years ago. The Congress is focused on cops, of course, and so all that seems to be on the table is what the courts have extended to cops, and that is the immunity of the “qualified” kind.

As usual, the Congress should be hearing from us. Clearly we were way ahead of this curve – nine years ahead of it – and again as usual we are chagrined that for some reason the powers that be haven’t beaten a path to our door.

But never mind. It seems the Republic can’t be saved anyway.

And we’re not really chagrined. That’s just a figure of speech. And just used it because we like the soft “ch” sound. So French-ish!

In any event, here’s something to ponder about all this SCOTUS-invented immunity business. The immunity comes on top of the summary judgment remedy and the 12(b)(6) standards of Iqbal and Twombly, which already pretty much guarantee that any lawsuit brought by the rabble will be thrown out without ever seeing a jury. Immunity is on top of that. It actually doesn’t really add that much. The deck is already stacked.

It says a lot about our system that it can be so heavy handedly one sided.

Accountability Gap

Probably the last thing we’re going to say in the wake of the Derek Chauvin verdict is this, and we’ve said it before but it bears repeating in part because no one else is saying it:

Why are lawyers and courts and judges getting a complete pass while we’re actually prosecuting and imprisoning cops?

We can understand that the optics of the work of lawyers and judges are unlikely to include choke-holds and whatnot, but surely we can think it through a little more than that. People are on “qualified immunity” again, for example. Largely getting it wrong, as Scott Greenfield recently pointed out. But of course that’s not the main thing here.

The Main Thing is that the SCOTUS just made up qualified immunity to do what they do best, which is favoring the government, and generally favoring those who are more powerful and/or wealthy, those who are already winners in the game, over everyone else. And no litigant is more representative of that than….the government.

We’ve pointed this out before. Repeatedly. For years.

And why just “qualified” immunity? That’s the lesser kind of immunity afforded to cops. Judges are absolutely immune. They gave that to themselves, and just made that up, too. And they extended absolute immunity to prosecutors.

That is, why don’t we abolish absolute immunity while we’re at it?

We haven’t even scratched the surface of what is really wrong. We won’t begin to do that until some very hard questions are asked about the legal profession and the judiciary. It’s past time to do that.

In other words, sending Derek Chauvin to prison is no more than, and probably considerably less than, a band-aid. Lawyers – especially prosecutors – and judges must be called to account as well.

Ugh.

To Be Clear…

Because sometimes we fall short of that here at LoS, as we maybe just did.

Our position is that the cops, including Derek Chauvin, are bearing the brunt of the consequences of what are really our – that is, the legal profession’s and judiciary’s – failures. And it bothers us that we and our colleagues are getting a pass while the cops are taking all the heat. If the cops are monsters, in other words, we are Dr. Frankenstein.

Moreover, the likelihood is that unlike 99.9% of criminal defendants, Chauvin will have his convictions reversed on appeal after everyone has stopped paying attention. Because he’s a cop. And this is not even cynicism. The system cannot help it. It has no other narrative to fall back on.

The only silver lining in all this is that finally, the shoe is being placed on the other foot. Everyone feels good about that. They shouldn’t.

What’s really needed are new shoes. And we are a long way from realizing that, much less doing anything about it.

The Chauvin Verdict And The Real Problem

When viewed through the lens of The Reason, the guilty verdicts were somewhat more than a stretch. But when looked at empirically – that is to say, how would the system come out in almost any other case with the same facts – the verdicts are entirely proper.

What this says about us and our system at this point?

Let’s tie this in with our recent discussions about Brown v. Davenport.

To review, we noted that Judge Readler of the 6th circuit dissented from the habeas grant and that we had “some sympathy” for his position. But now that we have had the opportunity for reflection on the matter, it is quite clear to us that Judge Readler’s position is, you know, dangerously wrong. We’re not accusing him of anything: for all we know this is all a predetermined outcome about which there has been much discussion off the record among many judges. We harbor the hope – probably irrational – that the SCOTUS in taking up Brown v. Davenport is poised to actually improve the coherence of the law in this area.

For a change, we might add.

Basically, what it boils down to is this: we currently have these fluctuating (and highly theoretical, but that’s something to be discussed later) standards by which federal courts and appellate courts review criminal convictions of state courts for constitutional error. Relevant here is that there is case law establishing (very unfortunately, in our view) that the standard for overturning a conviction for constitutional error in a collateral habeas action in federal court is more stingy stringent than if the same constitutional error is reviewed on direct appeal.

This is very wrong and bound to be incoherent, but this is what the SCOTUS has ruled, primarily since 1993’s Brecht v. Abrahamson (published 28 years ago to the day!). We think, as we so often have, that Justice White’s dissent captures the point perfectly:

“Assuming that petitioner’s conviction was in fact tainted by a constitutional violation that, while not harmless beyond a reasonable doubt, did not have “substantial and injurious effect or influence in determining the jury’s verdict,” Kotteakos v. United States, 328 U.S. 750, 776 (1946), it is undisputed that he would be entitled to reversal in the state courts on appeal or in this Court on certiorari review. If, however, the state courts erroneously concluded that no violation had occurred or (as is the case here) that it was harmless beyond a reasonable doubt, and supposing further that certiorari was either not sought or not granted, the majority would foreclose relief on federal habeas review. As a result of today’s decision, in short, the fate of one in state custody turns on whether the state courts properly applied the Federal Constitution as then interpreted by decisions of this Court, and on whether we choose to review his claim on certiorari. Because neither the federal habeas corpus statute nor our own precedents can support such illogically disparate treatment, I dissent.”

Note that the essence of Justice White’s dissent is that the majority’s position is illogical. That’s The Reason in action. A breath of fresh air coming from the SCOTUS at this point, though we hasten to add that this is from 28 years ago. Whether The Reason can prevail now when it couldn’t then is a serious question.

Happily, Brecht was basically a 5-4 decision, so this bit of SCOTUS incoherence was not a really solid holding. Which is a good thing. But it’s there, so it generates mischief.

Fast forward to 2015 – a mere six year ago! – and we have another 5-4 decision out of the SCOTUS that hearkens back to Brecht, and upon which Judge Readler is basing his dissent in Davenport, and that case is Davis v. Alaya. In Davis Justice Alito engages in a painful analysis of every possible justification for dismissing a juror during voir dire where the suspected reasons is race, which would violate Batson v. Kentucky. Never mind. The point is, as it so often is with Justice Alito, that the petitioner in Davis is a really, really bad criminal.

But this is the SCOTUS, not a trial court, and Justice Alito’s concerns are misplaced. The most importanest thing ever for the SCOTUS is to be coherent, not to pull out all the stops to deny federal habeas relief to a bad guy. So the dissent – and there are four of them – wind up echoing Justice White’s dissent in Brecht, and for that reason alone we should suspect that the dissent has the better of this argument. In any event, here is what they say, in a nutshell:

If a trial error is prejudicial under Brecht‘s standard, a state court’s determination that the error was harmless beyond a reasonable doubt is necessarily unreasonable.

Just so. It cannot be otherwise, and that’s the essence of it. The law of non-contradiction, doncha know, that must be observed unless reject The Reason and you are a follower of Nietzsche. Which we have discussed before.

So we hope that the SCOTUS has a fight over this again in Brown v. Davenport and comes out on the other side and overrules or limits Brecht and puts Davis v. Alaya in its place. Which is the dustbin of history, we think.

But there’s a deeper point to be made here, too.

This entire debate is almost risible, in the sense of being absurdly academic, though it is not risible for people on the receiving end, as is also so often the case with SCOTUS goings on.* The context of the whole thing is that the “harmless error” standard is very difficult for the government – who bear the burden of proving harmlessness “beyond a reasonable doubt” – to meet, but that the Brecht standard, that requires to poor schmuck to bear the burden of proving that he was likely harmed by a constitutional error, provides the deference to convictions that holds our fragile system of federalism and finality and whatnot together.

But the theory of what harmless error is, which the SCOTUS is relying upon, and the practice of what it is – well – these are two very different things:

Years ago, during an appellate argument in the state of Washington, a judge asked a prosecutor why, in light of a rule that prohibits trial prosecutors from asking one witness whether another witness is lying, the prosecutors from his office continued to ask the prohibited question. “It’s always been found to be harmless,” he explained.

When the court published its decision, it rejected any suggestion that courts “wink at intentional and repeated unfair questioning by prosecutors under the rubric of harmless error.” But the court then affirmed the conviction, concluding that the prosecutor was “correct in relying on the doctrine of harmless error.”

Harmless Error: Explained – The Appeal

Put another way, “harmless error” is itself a joke in practice. All errors are held to be harmless so we can uphold convictions. We do not say this lightly. But it is true. And so we say it. Because that is our calling here at LoS.

Ugh.

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*We hazard a guess that the reason SCOTUS took up Brown and not Whatley is that in the former case the government is the Petitioner and in the latter case the poor schmuck on death row is. The cases present practically the same question, so even if SCOTUS didn’t want to hear argument in Whately, shouldn’t they have just held it pending the outcome of Brown? Or maybe this is a further indication of the outcome in Brown. An ominous indication, we should think.