Not even. Doesn’t seem like it got by the clerk’s office.
So, what now?
Sephora’s still on parole, until March. As long as she is on parole, a federal habeas corpus petition is viable. Having slept on it, I think it’s fair to conclude that the Supreme Court is out, at least as far as any further attempts to go there directly. I mean, I could just bring another petition down there – see Supreme Court rule 20.4(b) – but the time is too short. They might take another month or more just to determine that they aren’t going to do anything and of course that is the overwhelmingly likely result, as it always is.
But a petition could still be brought in the US District Court in Rochester. There are many problems with this, of course. I’ll just mention a couple, for now.
The first problem is, it can’t be done without me, both in a lawyer capacity and a witness capacity. Either way, I would have to physically go to Rochester. If I do that under present circumstances, I think the risk to my personal safety is significant enough that it’s unwise to run the risk. Unless perhaps there is no alternative.
However, this could change in the near term. As regular readers of the blog know, I have applied for asylum in Canada, where I am currently residing. If the application is granted, killing me during a trip to Rochester would become an international incident and expose the perpetrators to a level of scrutiny that they could not be confident of successfully evading. The refugee hearing was held in Toronto on September 29th and a decision should be rendered within the next month.
That would still leave time to go to the District Court with a petition.
Part of the problem with this whole “personal safety” issue is that the cops and the DA involved here, apparently with the mindless acquiescence of much if not all of the local judiciary – or worse – have succeeded to a large degree in more or less smearing me behind the scenes. There have never been any formal proceedings or accusations at which I could defend myself, but the whisper and gossip mills have concluded, without any input from me of course, that this whole Sephora Davis episode is not what any rational review of the evidence would reveal, but rather indicates that there is something wrong with me. So the narrative of my death – from some accident like drowning in the bathtub or other circumstances suggesting self-harm – is already in place. “Troubled lawyer’s tragic demise”, reads the byline. No thanks.
If I go back there without the protection of another government I might as well paint a big bulls eye on my back while I’m at it.
So that’s one problem.
Another problem is that unless he decides to recuse himself, a new petition in the District Court in Rochester would go back to David Larimer. As I’ve indicated elsewhere, Judge Larimer is a terrible judge. Loves the government, loves the big litigant, despises real people with the temerity to come into his court seeking relief. If he’s looking for procedural reasons to never even hear the merits of the case or look at the evidence, well, that’s what federal habeas corpus law provides copiously. If he ever decided to hold a hearing – a highly unlikely development in the first place – I would not trust him to make fact findings in good faith.
Indeed, if we still had a best evidence rule in federal courts, ordering a hearing would by itself indicate bad faith, as I have also explained elsewhere. This matter should be decided on the papers. The only testimony that might be required is mine. Anything else is just an invitation to official perjury and misconduct.
So I think for now the ball is in the court of the government of Canada. I’ll probably write to the hearing officer in the next day or so and explain the development in the SCOTUS to him so he can take that into account in rendering his decision. And then I’ll just have to wait and see.
Now. Let me comment a bit on why the SCOTUS won’t do anything.
If you look at what was actually sent down there, here and here, most lawyers would agree that this was quite a good sales pitch on the formal legal grounds, the grounds that ostensibly determine outcomes in the SCOTUS and other courts.
The problem is not there. It’s with the informal, intangible, largely unspoken grounds the SCOTUS likes to see.
What are those grounds? They’re always, by definition, somewhat murky. This leads some people to bizarre conspiracy theories about what courts do; but it’s not a conspiracy. In some ways, it would be easier if it was.
One of the informal and intangible grounds is that even though you might have a very good issue for the SCOTUS; even if you can show that the SCOTUS itself has looked at the issue but was unable to resolve it, like we did here, so you’re giving them another shot at it; even if you can show ample precedent supporting your position, like we did; even if you can show that your case is urgently required to repair an error in the firmament of constitutional law that the SCOTUS itself is responsible for, along with being the only court that can fix it – as we did; even if you show that you can’t go anywhere else to bring the application or get relief (except to another country) for basic reasons of personal safety, as we also did; even if you can show the national importance of the issue, like we also did; even if you have all that, they’re not ready to consider the issue until the chattering classes have concluded that it’s an issue, and that hasn’t happened here.
The chattering classes might be described as the 1%, I guess. In any case, they are the people that populate the fine institutions of higher learning and go to the cocktail parties and dinners in New York and Washington that SCOTUS people go to, or at least people they know go to. The chattering classes are insular. But effectively, and for others, they are the SCOTUS. If you have not created a buzz among the chattering classes, the SCOTUS isn’t interested. And it doesn’t matter what your facts are, or how much the law and even the other sort of political and pragmatic factors I mentioned support you.
And the chattering classes have not taken note either of Sephora Davis, which is not surprising since the New Yorker never has; or the serious issue of constitutional law demonstrated by the Albright and Pottawattamie cases, because only I have noticed this problem, and I’m not a member of the chattering classes. They may get to this issue someday when one of their own notices it – this is called, I believe, a “percolating” process – but it will be far too late for me and my client, and my estimate is that it will also be too late for the country. At the rate things are going, I doubt the chattering classes will ever get to it before they themselves are undone as a result of this and lots of other issues that they also haven’t noticed, and won’t, before it’s too late.
It’s frustrating, of course, because it’s not that I don’t understand the law or the SCOTUS or even the importance of the chattering classes – though the latter, at least in its full measure, is something of a recent revelation to me; it’s that I’m way, way ahead of them in this particular corner of the legal universe.
In other words, in the end and apparently like too much else that goes on in early 21st century US officialdom, the outcome here is driven by class distinction and nothing else.