Monthly Archives: March 2014

I Don’t See The Problem.

A hissy fit this morning from Greenfield and another blawger named Josh Blackman over an opinion by Judge Posner of the 7th Circuit US Court of Appeals.

It’s interesting, because on the one hand I found the little experiment the judge conducted in chambers kind of startling myself, at first.  That is, my first inclination was that this was improper.

But thinking it through a bit, juries do that kind of thing:  conduct some little experiment while they are deliberating to see if they can figure out who’s telling the truth.  Watch 12 Angry Men sometime.  Seems like that’s all the jury did when they weren’t at each others’ throats. 

Anyway, if a jury can do something like that can’t a judge, to the extent the judge has to determine a fact?

Of course, appellate court judges do not determine facts.  Not directly.  As Blackman and Greenfield point out, the record on an appeal is fixed, nothing else comes in or out.  That’s pretty basic to the whole idea of an appeal, at least in our system.  Such as it is.

But there are limits to this principle.  As a general rule, intermediate appellate courts do have jurisdiction to ‘review’ – that is, second guess – the fact findings of the trial court.  And there are times they should do so.  Many more times than they actually do, in my experience. 

The ‘standard of review’, it is constantly noted, is ‘highly deferential’, although deference is as deference does and there is an obvious disparity on how much deference there is depending on which kind of litigant benefits:  lots and lots when the favored litigant has prevailed in the trial court; none when the disfavored litigant has prevailed.

But I digress.

Greenfield and Blackman are a bit off, and they’re being a little unfair to Judge Posner.  The evidence in an appeal, it is true enough, is fixed in the record.  But evidence isn’t always res ipsa loquitur.  Interpretation is sometimes necessary.  A fact finder is entitled to interpret where he feels he needs to, and a judge reviewing a fact finder is entitled to do that, too.

There are some contentions that are true, or they are false, and the conclusion is not debatable, at least not on the practical level on which we operate on a day to day basis and not, therefore, in our courts of law.  If we fairly assess what an appellate judge might do in ‘reviewing’ the facts found by the trial court, he surely has an obligation to point out a fact finding that is clearly wrong, or absurd.

We’ve been over this idea here at Lawyers on Strike several times.  We return to it occasionally simply because we reject the notion that the “adversarial process” requires courts to seriously entertain the clearly false, or the clearly fraudulent, or the clearly stupid.

Now is there a danger that a judge, or a jury, will mistakenly conclude the degree of clarity required, or involved?  Sure.  We live in a dangerous world.  Greenfield:

The possibilities are endless for judges to conduct secret experiments in their chambers, or on the streets, or, if they have any clue how to gain access, on the internet, to figure out “who was telling the truth.”  The flaws of the experiment will never be known, never be subject to question or challenge, and yet will dictate the outcome for people’s lives and fortunes.  What could possibly go wrong?


Two things here:  first, Judge Posner’s experiment wasn’t “secret” – he disclosed it in his opinion, for which he should be given credit, not excoriated.  And second, it doesn’t seem quite right to complain that a judge wrongly believes himself to have some sort of clarivoyance about assessing witness “demeanor”, and finding the truth that way; but then complain more loudly when he eschews that kind of superstition for a more rational and better method. 

At some point the fact finder – or the fact reviewer – must make his decision and the time for the advocates to have input is past.  That might rankle ego-centric lawyers who feel their input can be both absurd and never-ending and the fact finder must listen to it, but I have to disagree.

There was nothing wrong with what Judge Posner did, especially considering he disclosed it in his opinion.

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A written judicial opinion might be “well-reasoned” or not, but either way an implicit reference is being made to logic, which provides a lot of rules for what is called reasoning.

Ironically, reason cannot provide its own justification, which is to say that everyone understands certain basic rules of reasoning and lives by them, for the most part unconsciously; either way, though, at the end of the day no one knows why these rules of logic and reason should be the rules.*

But all that aside we employ basic reasoning all the time.  Day to day life would be chaotic and unintelligible if we didn’t, and even the extreme skeptics who deny there’s any such thing as rational thought processes are forced to admit that much.

This comes to mind because I have been recently having an exchange with a police officer turned author named Martin Preib who has managed to effectively (if unintentionally) display much of what is wrong, logically, with the usual cop group-think.  First and foremost, cop group-think becomes a big problem when it ignores basic rules of reasoning.

Here’s one revealing exchange.  Martin says:

The prosecutor and detectives in that case [i.e., the Central Park Five case – ed.] have been put through hell,

I say in response:

Nothing compared to what their victims, or indeed any victim of any wrongful conviction have been put through.

This addresses Martin’s claim that cops and prosecutors have suffered over the Central Park Five case by pointing out that the wrongfully convicted suffered more.

Martin’s response to this is to first misquote and then totally misconstrue my response, deliberately or not:

Nothing compares to what the victim of a wrongful conviction went through? Tell that to the woman who was raped in Central Park or the families of the victims in the Porter case…

Making an argument so obviously invalid – basically changing the subject – should fully discredit the interlocutor.  If it was done intentionally he’s not honest.  If it was done unintentionally he reasons too poorly to contribute meaningfully to an argument.

And this was after I had pointed out to Martin that one of his arguments was a non-sequitur and another was an ad hominem.  And notice further that after this last one, Martin proceeds to make an appeal to emotion by aligning himself with the rape and murder victims.

Arguments like this should always fail in the courts.  But they frequently don’t, as long as they are made by favored litigants (government, bank, insurance company).  They will, of course, always fail if made by a disfavored litigant – like a criminal defendant – going up against a favored one. 

It wouldn’t be an exaggeration to say that this – the double standard exposed so plainly by the most elementary rules of logic – is the primary cause of the system’s many failures.  More than faulty eyewitness testimony, more than police or prosecutor misconduct even, because the double standard breeds the police and prosecutor misconduct in the first place by rewarding it with success.

Martin is offended and combative – rather than chastened – when I point out his poor reasoning skills.  And why not?  The system has taught him and other police and prosecutors to behave precisely this way.


* There are big epistemological questions lurking here, but they are beyond the scope of this little post.  I might deal with them some other time.

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Wrongful Conviction ‘Industry’


So here’s an article, via the Wrongful Convictions Blog, by a Chicago cop taking on one of The Innocence Project’s first big wrongful conviction successes out of Chicago, back when George Ryan was governor.

Back before George Ryan went to prison, like most governors of Illinois seem to.

The cop makes a good case that in this instance the wrongfully convicted Anthony Porter was in fact rightfully convicted because he actually killed the two people he was convicted of killing in the first place. 

I guess we need a new phrase:  “wrongful exoneration”.  We’ll add that to the phrase “wrongful acquittal” that we also coined over here at Lawyers on Strike.

But let’s tone it down a bit here, shall we?  Do you think you’ve got a lot of folks over-invested in these things?

Retired cops from all over the country came to the city to help the detectives prepare for the trial, for it was a common belief among the police that Porter was guilty and had gotten away with a double homicide.

Let’s assume for purposes of dicussion that Anthony Porter was wrongfully exonerated.  The effort, including “retired cops from all over the country” to make him a poster child for the sins of the perfidious wrongful conviction industry is really nothing more than a desperate attempt to reassert dwindling dominance, and the same kind of distortion of reality that causes wrongful convictions – and for that matter wrongful exonerations – in the first place.

For months now I’ve been chronicling (see, e.g., here) a rash of court decisions out of the federal court system’s 7th circuit – that is, where Chicago and the Anthony Porter case are located – all dealing with wrongful convictions or wrongful prosecutions, in many cases admitted, where police and even prosecutors committed grotesque abuses of their power in order to obtain convictions of innocent people because that was easier and better for their ‘career’ than doing their job and doing the right thing.  And the governor isn’t shaking the hands of these rightfully exonerated and the media isn’t writing stories about them and the cop-author of the linked article isn’t mentioning any of these cases along with the Anthony Porter matter because his purpose is polemical and not educational.  It is partisan and not truthful.  It is about reclaiming absolute hegemony over the criminal justice system for the cops because apparently near absolute hegemony isn’t enough for them, and “retired cops from all over the country” are onboard with the effort, which to me is sad.

There are hucksters who will try to capitalize on any trend, and I’m sure that they have appeared and will appear again in wrongful conviction cases.  Using them to score rhetorical points is just more hucksterism. 

There is no legitimate argument that we don’t have a serious wrongful conviction problem in the United States (CNN is doing a series just on wrongful death row convictions), there is no serious dispute that the police have had too much power for too long.  As in any such state of affairs in any context the power gets abused, first by a few, and then by more than a few, and then by many until finally it is a normal part of the every day functioning of a police department.

Like the police department in Mount Morris, New York, circa 2004.

Even there, of course, not every cop enthusiastically goes along, and maybe some would join an effort to clean things up if they didn’t also feel that it would be ruinous to themselves and their families.

And here’s a reality that’s as much irony as it is true:  the friend of the honest cop in Mount Morris and elsewhere is me, not some huckster cop-author pandering to a built in readership.

Maybe there’s a wrongful conviction ‘industry’; but it’s a tiny fraction of the size, power and scope of the criminal justice system conviction industry (two can play at the game of using the term ‘industry’ as a pejorative).  In either case honesty has to trump subservience to an agenda if we are to leave the world, or at least the criminal justice system, a better place than when we found it.


Filed under Media incompetence/bias, wrongful convictions

Malaysian Airlines Flight 370 – UFO’s, Wormholes, Bermuda-East Triangle, Etc. (Updated)(x4)

Actually, I am agnostic on the very existence of aliens from another world or wormholes or that kind of thing, but you have to start considering some pretty bizarre scenarios at this point.

I’m probably a little more knowledgeable than most people (hardly an ‘expert’, but a little more knowledgeable) about aircraft and the communications type stuff involved.  You know, US Navy and all.

So, I think what might be perplexing a lot of folks right now is….there are almost no non-supernatural/extra-terrestrial  scenarios that fit, other than maybe some highly skilled pilot-hijacker who could basically shut off all the automatic signaling devices, like the IFF transponder, fly under the radar coverage, evade satellite detection and land the plane in some pre-determined location where it can be quickly hidden.

Of course, that would mean there are 239 people to account for and no one’s demanding ransom so far as we know.

So in other words, the one natural, same-dimension-as-the-rest-of-us scenario that might fit seems so unlikely that I, at least, don’t believe it.  Then again, if you had told me that a 777 jetliner could have any kind of accident – mid-air, over water or over land without some indication something had gone wrong – a distress call, an explosion detected by someone – and that even if this had happened no one would find any trace of the plane for almost a week, I would have said that was a practical impossibility, too.  There is just too much stuff on an airplane that squawks no matter what happens, the whole idea being that if some sudden catastrophe takes place you’re still going to find what’s left in fairly short order.  Even with AirFrance 447 in ’09 they found debris after a couple of days and that was pretty much over the middle of the Atlantic, which is way more remote than the anything on the flight path of this one.

As a practical matter, the longer it goes with no trace of anything, the less chance anything is going to be “found” – like debris, other than the “black box” which has a beacon that can’t possibly have stopped working.

So in other words: 

     1.  The highly skilled pilot-hijacker scenario is so unlikely I don’t believe it.  

     2.  The absence of any evidence at all after almost a week that the plane has been destroyed or crashed through a bomb or some natural catastrophe leads to, at the very least, significant doubt that either of those things actually occurred.

That leaves as wide an opening for some sort of paranormal/supernatural occurrence as you’re ever going to get.  Right?  Or am I wrong?

Thoughts/opinions appreciated.

Update:  Well, there’s been quite a bit of information since I posted this, so I think I should address the matter again.

Now, I found the skilled hijacker scenario unbelievable, but since I wrote that it appears that certain of the automated communications devices were deliberately disabled (but not all of them) and so now we must re-evaluate.  Also, it appears that the plane was deliberately diverted westward and flew pretty close to the point that its fuel would have run out, and maybe it did run out of fuel and crash into the Indian Ocean, although you’d think someone would have found something by now.

So at this point the skilled hijacker scenario has legs.  But it also has some problems. 

As for “legs”, there is a fairly believable scenario at this juncture.  The plane was hijacked by a skilled hijacker, the pilot(s) did what they could to avoid endangering anyone else or helping the hijackers to complete their mission, and they were somewhat successful in that the plane never reached its hijacked destination and either ran out of fuel over the Indian Ocean or perhaps there was some kind of altercation in the cockpit and in the melee the plane was crashed into the sea.  Or perhaps the hijackers blew it up mid-air, in which case it wasn’t so much a hijacking as a terrorist act like 9-11.

Of course if any of that happened search parties should find something soon.  Something.  So the jury’s out on a crash scenario of any kind, hijacker or no.

But going a little further with the hijacking scenario, you can’t rule out yet that the plane was landed somewhere.  If the hijacker was skilled enough to disable so many systems that would have tipped off authorities, he would also be skilled enough not to just crash the plane but to deliver it to wherever it was that he was supposed to be hijacking it to, and skilled enough to hide it once he got it there.

Yet another scenario is that one or both of the pilots are the “hijackers”, with some mysterious agenda that at this point it’s very difficult for me to fathom. 

In any scenario that does not involve a crash, of course, there are 239 people to be accounted for.  Let’s not forget that.  Ugh.

Finally, until search and rescue finds something – anything – UFO’s and Wormholes or some other supernatural cause are not off the table.  If you don’t rule that out in advance because you can’t accept something like that, that is.

Update 2:  As some on twitter have noted – and which I had forgotten about, oddly enough – there is a US Naval Air Station at Diego Garcia in the Indian Ocean, and I’m sure a 777 could land there, if indeed it could make it that far, though I don’t know whether it could or not.

That puts the US Government in the cross hairs of the usual conspiracy theory suspects, of course.  Not that I’m buying anything like that, mind you.

Then again, could Diego Garcia have been the target in a 9-11 type suicide mission that failed?

Update 3This is a good article, via CNN.

Our previous consideration of supernatural causes, never really too heavy, has been pushed to the outer margins at this point.  Actually it really belonged out there as soon as it became apparent that transponders and other auto-communnications devices were deliberately disabled.

There’s a lot of focus on the pilot and co-pilot right now, as in some kind of pilot suicide.  While I realize this kind of thing has happened (very rarely) before, there would have to be some really good evidence to convince me that either one of those guys did this.  It is likely they would both have had to be in on it.  Very hard to swallow that one.

Most plausible to me at the moment?  A hijacking.  A sophisticated hijacker, perhaps bent on a suicide mission to crash the plane into the Diego Garcia US Naval Base.  Similar to the 9-11 style of attack, turning a commercial airliner into a missile.  Lots of innocent people terrorized and killed.

The two pilots may have foiled the effort and crashed the plane in the attempt, perhaps deliberately running out of fuel or something.

Some people are still thinking the plane landed somewhere, but while I suppose that’s possible – just barely – I can’t see it as having any likelihood given all the other evidence.  As between that and the pilot-suicide scenario, I’d opt for the latter, and I just find that one too hard to accept at this point.

Update 4So here’s a pilot writing on saying that the Boeing 777 can essentially fly itself, even with auto-pilot off, for a good long ways and that some of the manuevering that has been alluded to in other reports is consistent with such a scenario.  This lends plausibility to the “sudden, catastrophic decompression” scenario in which everyone on the plane is more or less instantly knocked out.

Ugh.  11 days later and things are just as confused as they were at the beginning.  For a while there it seemed that a deliberate act, such as a hijacking, was a certainty.  No longer.

A very tragic situation for anyone who had a loved one onboard. 

Honestly, I don’t see much point in speculating further.  If they don’t find the aircraft – and it appears we may never find it – it’s just going to remain very much a mystery.

The black box emits a signal and remains active for about 30 days.  If the plane is underwater, that is.  But of course like everything else we don’t know that one way or the other, either.



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Krugman Now In ‘Deflation’ Camp?

What’s kind of interesting to me about this seismic little shift in Paul Krugman’s thinking is that when he refers to interest rates being “zero-bound” he is speaking the language of liquidity traps; but the context of the discussion is “debt-deflation”.

So he’s finally catching up to …… me.  More than two years later. 

Is that right, Frances?

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Medley Centre – Waste And Shame

In a suburb just north of Rochester called Irondequoit there was a rather nice, bright and airy shopping mall (‘nice’ as those things go, mind you), first called The Irondequoit Mall when it opened in 1990.

For reasons that will always be something of a mystery to me*, it began failing as a retail outlet within ten years and has now been almost completely vacant for about a decade.  A few hucksters have appeared on the scene in the years since promising this and that to the town board, but nothing of any significance has come to pass.  Then, a couple of months ago, with the rather brutal winter afflicting the entire country and of course in this area as well, a bunch of pipes burst in the now unheated gigantic space and the results have been captured on film (or digits, as the case may be) and posted by one of the local news stations here.

A couple of samples:



Bottom line is, it’s a tear down at this point. 

Everyone’s sights are turning on the most recent con man developer, but I think it’s clear from the photographic evidence that the waste of this facility, both inside and outside, is not the product of one pipe bursting incident in January, although I’m sure that didn’t help things.  I mean, like I said, the place has been largely vacant for 10 years and it looks just the way it should.

I don’t know why the story interests me.  Part of it may be the role that “rumors” of “crime” at the mall around the year 2000 might have played in gutting the place.

There’s a race angle there, of course.

In any event I’m sure some scapegoat will be identified and pilloried somehow, but I don’t think this is as simple as all that.  We may be letting ourselves off the hook too easily.

Maybe more on this later.


*  Probably the most reasonable explanation is that opening a mall in the Rochester area in 1990 is pretty bad timing, and we might have been pretty well saturated with malls by that time, but like a lot of things economic, you can fake it for a long time, covering losses, etc.

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Lawyers Need Not Apply? The Debo Adegbile Affair.

I’m not sure what to make of that name, but he’s a lawyer in Washington DC. 

I mean after all, just about everyone in Washington DC is a lawyer. 

But overall of course they’re not the type of lawyer who might ever represent a criminal defendant.  This guy (Debo Adegbile) did, and now he’s apparently unfit for public office in the minds of many United States Senators.

I’m not an Obama partisan by any stretch, but this is a profoundly socially dangerous attack on the legal profession.  Every lawyer – and especially prosecutors – should have weighed in on this in a big way.  Fifty years ago that would have happened.

Not today.  The difference is probably worthy of another post.  But not today.

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Bitcoin (Updated)

Suffice it to say, for now, that I have my doubts about any ‘virtual’ currency.  At some point, for some things, bricks and mortar are indispensable.  And I think money is one of them.

That said, I don’t think the idea of a virtual currency is worthy of mockery.  The nature of money is poorly understood by just about everyone:  politicians, journalists, lawyers, and even economists at the Fed. 

It’s easy to naysay after the fact:

The uncomfortable fact for Bitcoin believers is that every major prediction they’ve made has yet to come true. And as time passes and the inevitable fizzle-out of Bitcoin becomes visible, those believers will splinter. More will drop out of the cult. And the ones who remain will only grow more convinced, more zealous, more eager to share the good news.

Well, this is what happens with all kinds of investments.  Investing is an interesting business.  Commitment is an important part of any successful venture.  At what point does commitment become folly, more of a cult-like devotion than a rational appraisal of the merits of an idea or product?  There is no really good answer to that question.  It depends on too many things.  There are ideas that turn out spectacularly after decades of seeming failure; more often, there are seeming successes that blow to smithereens because there was never anything there in the first place.

The article appears in the New York Magazine.  New York qua New York has a personal stake in quashing economic and particularly monetary innovation, and most particularly anything that threatens to decentralize and fragment the financial “industry”, over which New York currently has a monopoly.

New York Magazine is pretentiously protecting its turf, in other words.

But that doesn’t mean I think Bitcoin is going anywhere.  In fact I don’t.

UpdateThis is terribly sad, a 28 year old woman dead.  Or maybe it’s suspicious.  But I don’t want to go there this morning.

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