Good For Detroit

After the financial “industry” has gutted real, actual productive industries everywhere, but nowhere so much as the Motor City, Detroit is succeeding in putting the shoe on the other foot:

The loudest grumbling has come from some creditors which stand to lose big money if Rhodes approves the bankruptcy plan. Bond insurer Syncora Guarantee has said its claim is about $400 million and that Detroit has unfairly discriminated against financial creditors.

 

“High stakes gambler Bond insurer”.  Please. 

I’m not under any illusions that the public employee pensioners – probably the biggest players in Detroit’s bankruptcy – are paragons of economic virtue, but as between them and bond insurers I have no quarrel with a brush cut for the former and shaved heads for the latter.

Of course after this there will be a flurry of legislative proposals to “reform” municipal bankruptcy law, sponsored by the usual suspects – JP Morgan Chase, Citigroup, etc.

But you take your comfort when whatever small measure of justice happens in this world.

Wrong

A while back an old lawyer I know was quoting an even older lawyer, to the fanciful effect that obtaining a criminal conviction is a well-nigh impossible task, what with the insuperable burden of proof – beyond a reasonable doubt – and the requirement of convincing 12 people unanimously.  The prosecution, it was concluded, should never win a case.

A sentiment contrary to observable fact, when one considers that prosecutors almost always win convictions.

Is this a problem?  Why, yes indeed it is.  There’s a fairly simple, though not entirely verifiable, statistical reality at the bottom of the criminal justice system in the United States:  the input – that is, what the relevant ‘law enforcement’ agency sends in for ‘processing’ – is correct or substantially correct about 75-80% of the time.  The whole purpose of the processing – that is, all the prosecutors, lawyers, judges, jurors, trials, appeals, post conviction collateral proceedings and so on – is to catch that other 20-25%.  All of it.

The system does a terrible job of this.  Absolutely terrible.  Abysmal.  And as a result, and other than war, this is the most immediately frightening and destructive thing the government does:  prosecuting people for crimes.

Why?  What’s wrong?

Let’s get back to that Department of Justice Grand Jury Manual thing.  You know, the guide book for federal prosecutors presenting cases to Grand Juries, not to obtain convictions but to obtain indictments, which in general must precede a conviction, which in turn are readily obtained by prosecutors, nationwide.  We talked about this before.

In 1983 the manual dealt in a rather cursory way with the “due process” problem of prosecutor misconduct in knowingly presenting perjured testimony to a Grand Jury.  It was a cursory treatment because the mostly unambiguous instruction was that indictments obtained with such testimony would be dismissed, citing the 1974 case of United States v. Basurto, 497 F.2d 781 (9th Cir., 1974):

Importance:  In Basurto, prosecutor did not become aware of perjury until after indictment (but before trial); indictment was still dismissed.

 

By 1991, though, the DOJ Grand Jury Manual said this:

A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

 

What happened between 1983 and 1991?  Well, one thing that happened is that we elected Reagan POTUS and got Ed Meese as Attorney General.  Then we got some very prosecutor-friendly Supreme Court Justices:  O’Connor, Scalia, Kennedy.

But there’s more to it than that.  After all, had the law changed?

No.  Prosecutors don’t get to deliberately use perjury to obtain a conviction.  I suppose you could respond that no one said they couldn’t deliberately use perjury to obtain an indictment, but what are they going to do with the indictment thus obtained?  If they can’t get a conviction with it, the only thing to do is dismiss it, right?

But let’s back up a bit further, to the “due process revolution” of the Warren SCOTUS.   By most accounts the revolution had run its course by 1969, but 45 years later it remains “controversial”.  Wikipedia says so.

Why the controversy?  “Conservatives” complained about “handcuffing the police” with all the procedural rigmarole.  Did they have a point?  Yeah, maybe.

A crumb, a morsel.

Nah.  On to larger issues.  Let me get too abstract for just a moment, because at the moment I can’t think of any entertaining or creative way to express the particular thought I am thinking.

We have procedures, but the procedures are not about themselves, obviously.  They are about the “substance”.  The substance-procedure distinction is one of those large ideas.  You would think it doesn’t come up very much, but you’d be wrong.  Thus one of the most contentious areas of the law is “substantive due process” which you may notice, based on what I just wrote, is something of a contradiction in terms (Justice Scalia specifically called it an “oxymoron”) because substance can’t be procedure and vice versa, but “substantive” = substance and “process” = procedures, so substantive due process ought to prompt nothing but eye rolls, but it doesn’t.  And it shouldn’t.

Why do I say that?

The show trial courts of Stalin’s Russia followed their procedures pretty well, by many accounts.  But there was no “there”, there.  No substance.

I guess one way of putting it is that the purpose of procedures is to make the substance intelligible and orderly, but if the substance can’t be made intelligible in the first place because, say, it’s all phony made up crap then crossing all the procedural ‘t’s and dotting all the procedural ‘i’s doesn’t matter.

Or, put another way, the procedures serve the substance and are subordinate to it.  You can have substance without the procedure, but you can’t have a meaningful procedure without the substance.

So what is the real and more thoughtful objection to the Warren Court “due process revolution” – more thoughtful, that is, than saying it “handcuffed” the police?  Just this:  that it inverted the natural, rational hierarchy and made procedure superior to substance.  As I’ve said before, I’m not the only one who has pointed this out.

I recently came to Justice Scalia’s defense – not really, but it might have seemed that way – in a comment over on Turley’s blog, when another commenter was excoriating the apparent Scalia position that the execution of a factually innocent person who had received all the procedures the Constitution provided was okay with him.  But I summed it up this way:

1. People are justified in being appalled at the idea because ultimately Scalia is wrong, and wrong in a serious matter. But it’s also a symptom of the larger problem that the justice system has been too good at abdicating its essential functions, one of the most prominent of which is to ensure the innocent are not punished. The reason a meritorious innocence claim winds up in federal court on habeas corpus in the first place is that the state courts have failed in this essential function. The idea that the federal court should just punt it back to the state that has already failed is fatuous. Somebody has to be responsible in the end, and in the end on a matter like this the federal system must act as the failsafe. That’s my opinion, probably not Scalia’s, although he wasn’t directly confronting the question there. As far as it goes, he was merely stating a fact: the SCOTUS has never ruled that the constitution forbids the execution of a ‘legally” guilty, but factually innocent person.

Everybody makes mistakes.  But it’s a special type of mistake when we refuse to recognize it as being mistaken, even when it’s obvious.

I’m bringing all this up because there was a post the other day on SJ to the (also fanciful) effect that what ails the justice system is shitty defense lawyering.  And so presumably this can be fixed by good defense lawyering, which means SHG and his friends and his spawn, if any such there be.

There may be some shitty defense lawyering out there.  That was hardly the point of the article SHG cited – which had more to do with funding indigent defense, not lamenting its poor quality – but it’s SHG’s point all the time.  Too often, really:

That’s where Jeff picks up the story, and why Jeff rightfully puts the blame on the last person standing between the government and the defendant.  Even if every other player in the system fails, the burden remains on the defense lawyer to make up for it.  Sucks, I know, and a very heavy responsibility.  It’s too much for most lawyers, which is why most lawyers have no business standing in the well of a criminal court.

 

“Jeff” didn’t single out defense lawyers for “blame”.  That’s a distortion, and overall SHG’s take on the whole thing seems a bad case of confirmation bias.

But forget the article.  The SJ post is just another variation on a very tired theme:  SHG, or lawyers like him, are the solution to what ails the system.  This is wildly implausible:  the change in the DOJ Grand Jury Manual from the 1983 version to the 1991 version; the explosion of criminal prosecutions and the US prison population; the near certainty of conviction at trial with conviction rates exceeding 95%; the vanishing trial and ‘trial tax’; the futility of appeals and post conviction remedies; the Anti-Terrorism and Effective Death Penalty Act of 1996.

SHG probably started out practicing law right around 1983.  Does he, and more specifically his professional self-concept, bear any responsibility for these deleterious systemic developments, all of which occurred on his watch?  If he doesn’t bear at least some small share, who would?

Beyond that, is performing the same act over and over going to yield a different result?

Innocence does not matter.

Our job is only to defend.

We game the system to ‘win’, every single time.

There is no such thing as justice, or truth.

 

These are essentially a sales pitch (to potential clients), with a kernel of thoroughly impoverished pseudo-philosophy (“everything’s relative”) woven in.  So you posture this way and maybe it gets you a few clients and you do a good job for them – although most of the time that doesn’t make much difference – but the result to the system as a whole is – well, what I just told you.

Has it been worth it?  You have the occasional acquitted client, I’m sure.  How many others have been convicted who otherwise would not have been, though?  The statistics over the last 30 or so years suggest the numbers may be substantial, but ultimately that’s one of those questions we’ll never be able to really answer, but nevertheless deserves a little thought.  Maybe more than a little.

The elevation of procedure over substance leads directly to institutional and systemic incoherence.  Like war and pestilence, institutional incoherence can have short term benefits for some.  But if you’re one of those few, don’t expect admiration and respect from the much larger group of people on the receiving end.

Not that that’s the main point.  I don’t know.  Let’s see if I can drive the point home, starting with  a post from a few years ago on SJ:

True believers usually end up having problems as a criminal defense lawyer.  When people push the “factual innocence” button, they almost always miss the boat.  We don’t defend because our client’s are innocent.  We defend because they are accused.  Our job is to test the government, not to do justice…The prosecution side, including the police, exist to do justice, and justice means both substantive and procedural.  They are equally responsible for keeping innocent people out of jail as putting the guilty in.

 

That’s the familiar little ditty played over and over on SJ.  And elsewhere.  But SHG and the SJ posse are keeping some dubious company:

Investigators believe Witherspoon then raped the girl who was not conscious enough to stop the attack.  Witherspoon has hired well-known defense attorney John Parrinello to defend him.

Thursday, Parrinello revealed a potential line of defense in the case. He said prosecutors will have a hard time proving Witherspoon used Ambien to sedate the girl.

“None was found in her system,” said Parinello, “and if there were any sexual activity between the two, it was purely consensual.”

Livingston County District Attorney Tom Moran said, “Mr. Parrinello and I have totally different ethical responsibilities. Mine are to seek justice; his are to do everything humanly possible to get his client off.”

 

This is from a local Channel 13 news interview (scroll way down, about 7/8th of the way to the end, to see the actual story) dated September 30, 2004.

Notice how Moran – who’s a psychopath, by the way, but that’s another subject – is using the very same ideas – indeed the very same words – expressed by SHG to discredit another defense lawyer, and that lawyer’s case, and his client. 

Multiply 10 thousand fold, since of course Tom Moran and SHG are not the only adherents to the dogma.

It goes without saying – or should – that this whole outlook is a fairly recent affectation in the profession.  Consider this quote, dating from the 1940’s and obtained second-hand from a 1999 Fordham Law Review article:

 

The difference between the true lawyer and those men who consider the law merely a trade is that the latter seek to find ways to…violate the moral standards of society without overstepping the letter of the law, while the former look for principles.. within the limits of the spirit of the law in common moral standards.

 

Maybe that’s going too far in the other direction, but still:  we’re left with the disturbing question of how much the more recent affectation has contributed to the widepread collapse or at least demoralization of criminal defense lawyering, and the cascade of prosecution friendly developments that have characterized the criminal justice system since, oh, about 1980.

Again, probably about the same year Scott Greenfield began his legal career.

It’s a big and important question, methinks.

I won’t be posting for a while.  Busy.

The Unserious Approach To Ferguson – And A Serious Solution

I’m sure Eric Holder has good intentions, as far as they go. 

We’ve seen this before:  civil unrest followed by the National Guard followed by a sop from Washington, usually in the form of some high profile visit or other.  Maybe by the President.  More often the Attorney General.

On his day-long swing through the area, the attorney general was welcomed warmly at every stop.  At Drake’s Place, a soul food restaurant located a few blocks from the scene of overnight clashes, Holder went table to table offering words of encouragement to some stung by the fatal shooting and days of unrest. 

“We don’t want the world to know that’s all that’s going on here,” said Viola Murphy, mayor of the nearby Cool Valley community.

“We can make it better,” Holder told her.

 

How are you going to “make it better”, Eric?  You’ve got some kind of magic wand you wave?

We’ve said this many times:  civil unrest is an indictment of our courts and our legal profession.  Another program or edict emanating from Washington, punctuated by a media saturated visit from a high ranking official, isn’t going to accomplish jack other than maybe quelling the immediate disorder.  For now.

The serious solution, or at least one serious solution, is very simple.  Norm Pattis alluded to it the other day:

What is not written in the Constitution is the legal doctrine the courts have fallen in love with and rely upon to keep police misconduct cases from going to trial — qualified immunity. This doctrine sprung from the fertile imagination of a judiciary sick and tired of presiding over civil rights cases. It is a product of a judicial revolution no one noticed, a revolution that has effectively closed the courts to ordinary people seeking justice.

 

We at Lawyers on Strike suggested this kind of serious solution more than two years ago:

Statutes can be amended by a simple act of Congress.

So if the people of the US ever recover their gumption, they might want to browbeat their federal legislators/congress-critters into amending 42 U.S.C. 1983 to provide a few things to counteract the execrable rulings of the SCOTUS.  Such as:

1) no immunities for public officials, including judges;

2) no statute of limitations;

3) no summary judgment permitted (F.R.Civ.P Rule 56 won’t apply)

4) Make it all retroactive.

 

It bears repeating:  we have a lot of lawyers who need work.  For a long time – too long – lawyer “work” with any cache or prospect of a prosperous living has meant to become a toady and tool of the powerful against the weak:  represent the bank, the insurance company, the government.

Even so, all the unemployed and underemployed lawyers are a great untapped resource out there, and Ferguson demonstrates once again – just like the Occupy movement did – that there’s an increasingly desperate need.  What’s not to like? 

A “litigation explosion”?  Meh.  The only litigation explosion that ever actually happened was a stupefying increase in criminal prosecutions and imprisonments.  All the rest was insurance company propaganda.  We should be ashamed of ourselves for being so thoroughly duped. 

Nevertheless, however simple this serious solution is, it’s not easy.  There are a lot of conflicting and powerful interests – police unions, for example.  And as a people we don’t do difficult too well anymore.  Or at all, it sometimes seems.

There is a basic lack of discipline, I think.  Mental discipline in the first instance is required to understand what a serious solution might be.  And then personal and behavioral discipline is required to implement the serious solution.

So in the meantime there are emotionally cathartic visits by the Attorney General to the trouble spot of the day, and then when we tire of that there is Kim Kardashian.  Until the next unarmed black teenager is shot to death by a police officer at one of those odd moments that makes it a triggering event. 

The undisciplined lurch from crisis to crisis, in between long periods of indifference and indolence.  If that’s what we have become then what happened in Ferguson is just random, episodic noise, fodder for a news cycle and little else.

Follow Up

I thought it might be a good idea, it being a recurring disagreement with SHG and there now being a judge involved, to flesh out this “role of the criminal defense lawyer” thing a bit more. 

None of us is writing on a blank slate.  Indeed, a fairly recent law review article deals specifically with differing ideas about the role of lawyers representing clients.  The article is entitled “Lawyering at the Extremes:  the Representation of Tom Mooney”, the author is Rebecca Roiphe, and it can be found at 77 Fordham L. Rev. 1731 (2009)

Briefly, according to the article “scholars” have described a few categories of thought:  the “libertarians” or “neutral partisans”, who argue that a lawyer must do whatever is legally permissible to help the client (this is the SHG position); the “moral activists”, who argue that a lawyer must work with the client to define and pursue his goals in a moral way; and a middle ground, staked out by the Model Rules of Professional Conduct (of course) where a lawyer must serve his clients zealously but also guard the integrity of the courts.

For what it’s worth, the author doesn’t seem to come down on the side of any particular view, just notes the shortcomings of all of them.  Nevertheless, reading the article I get the impression that the “libertarian” or “neutral partisan” approach – that is, SHG’s approach – is the most defensible. 

But where he and I part company is at the margins, I guess.  I think in the majority of cases you don’t have to overthink the neutral partisan position; it just works and that’s what you do.  But there are unusual situations where it doesn’t work, and it seems to me you can’t evade responsibility for your representation of a client by blaming everything you do on your duty to the client.  There are tactics and strategies that are objectionable and you shouldn’t pursue them.  You shouldn’t make arguments you think are invalid or unwarranted.  You shouldn’t mislead, ever.  I short, there are limits to the “neutral partisan” approach that vary from lawyer to lawyer and that are probably the product of, well, too many factors to delineate in a blog post.  The judgment and temperament of the lawyer, and/or the client; the nature of the case; the qualities of the forum; the strength of proof for and against.  I mean there are just too many things to consider.

I suspect that despite the bluster, SHG is largely – not entirely, but largely – on the same page.  But there is still room for big and serious disagreement, especially in a given case.  And in that sense disagree we do.  More than that, though, the bluster itself is harmful, to him and other lawyers.  I wish he’d cut it out.  Judge Kopf (and other judges) should not be led to believe that criminal defense lawyers would knowingly mislead them, or that they’ll argue anything they think they can get away with if it benefits their client.  It isn’t so.

The Arizona Felony Murder Bootstrap

Felony murder.  Not just murder, but felony murder.  Sounds serious, doesn’t it? 

In fact, however, “felony murder” isn’t really murder at all.  The idea is that the perpetrator has agreed to participate in some felony or other –  a robbery, a grand theft auto, a sex offense – and in the course of carrying it out someone is killed.  The perpetrator who neither killed nor meant to kill is liable under the felony murder rule for murder.

One would think that this harsh rule would at least be limited to a lesser category of murder, though.  It’s criminal behavior for sure, but not remotely like intentionally offing someone.  And felony murder is an old rule.  It’s been abolished in a lot of places.  But not in the US.  And not in Arizona, where felony murder is murder in the first degree.

Indeed, in Arizona it is a death penalty eligible offense.  Of course ostensibly that’s only if “aggravating factors” are present.  But the aggravating factors requirement is a joke, a flagrant example of bootstrapping:

bootstrap, v., trans:  to make use of existing resources or capabilities … to modify … by making use of what is already present.

 

Why do I say this?

If you look at the lengthy list of “aggravating factors” provided by Arizona statute, there’s this one:

2. The defendant has been or was previously convicted of a serious offense, whether preparatory or completed. Convictions for serious offenses committed on the same occasion as the homicide, or not committed on the same occasion but consolidated for trial with the homicide, shall be treated as a serious offense under this paragraph.

(Emphasis supplied.)

 

So, when you fall under the felony murder rule in Arizona – a rule where you can be liable for a murder without killing anyone or even intending to kill anyone – the same offense(s) that bring you under the rule in the first place will also provide an “aggravating factor” that makes you eligible for the death penalty.

I think this stautory scheme is disingenuous, dishonest and violates a defendant’s right to due process of law.  Not that it matters what I think, of course.

Ferguson, MO – Smearing And Pandering

I suppose a little should be said about this.

First, the killing of Michael Brown is a triggering event, not the real reason for the rioting and looting.  So the relative merits of justifying Michael Brown’s shooting death by a police officer are largely beside the point.  Even if you could call the shooting justified there are problems in Ferguson that transcend Brown’s killing, as Professor Turley makes abundantly clear in this post.

Second, Greenfield is quite right about the effort to smear the deceased, and I think it’s just more fuel on the fire for the police to release the video.  Bad judgment, even if you think the video supports the view that the police claim.  Releasing it has had the predictable result of provoking further rioting in response.  Moreover, this is a revealing series of events about the mindset of the police:  even their style of “argumentation” tends towards efforts to overpower.  The lack of subtlety in a situation like this is….disturbing.  And counter-productive.

And I appreciate SHG’s link to Judge Kopf’s blog post, not least because of the truly frightening anomaly that I agree with a federal judge on both counts. 

Beyond that. however, two observations about SHG here:  first, for whatever reason he’s gone a bit off the rails on this one.  Despite the stupidity of releasing that video, it is certainly relevant to the claim that the police officer shot after being attacked.  Arguing otherwise is untenable.

Second, there’s this table-pounding, unequivocal – and one can therefore conclude questionable – assertion:

I would throw whatever I could at the case if I was repping Wilson [that is, the police officer who shot and killed the kid – ed.]. Not because it was relevant, or that its prejudice didn’t outweigh its probative value, but because my sole duty is defend my client, reason be damned.

But that’s because I’m a defense lawyer. My duty isn’t to the public, or truth, justice and the American way. If pandering to stupidity and emotion serves my client’s interest, I’m obliged to do so.

I’m not saying Greenfield is wrong here, exactly.  Maybe all I’ll say for now is that first, it sets forth a false dilemma:  how can you know for sure in advance that “pandering to stupidity and emotion” serves a client’s interest?  It’s not impossible that it could, but more importantly can’t SHG understand that even if it’s true, stating this openly – and to a judge no less – is virtually destroys his credibility?  Is he now going to appear in front of juries and argue stuff, when a juror has probably looked up his blog, read that quote, and not unfairly concluded based upon it that he can’t trust anything SHG says?

And when he says that all defense lawyers believe that, isn’t he potentially hurting them and their clients also, by discrediting them in advance?

This is a big problem, and not just for SHG.  SHG should address it, methinks.

Was Robin Williams Brain Injured?

I don’t want to dwell on this, but there’s been so much noise about this latest celebrity suicide I thought there should at least be some discussion, somewhere, that might be worthwhile.  At least for some people.

It’s just my opinion, of course – although it is perhaps a bit more informed than most – but I believe that any person who exhibits symptoms of  psychological or psychiatric disturbance should be neurologically evaluated for brain injury.

Brain injuries, as we are learning from things like former NFL players who commit suicide for no apparent reason, are extremely common.  Extremely.  Very extremely.  In fact, in my opinion a significant percentage of the people reading this post have at least some limited form of brain injury.  I may have a brain injury without knowing it, and so might you.  These are scary thoughts in a way, but it’s the truth.

What happens to people with brain injuries?  Well, read a pretty good summary here.  Compare the kinds of problems brain injured people have with problems associated with various kinds of mental illness.  There’s a good deal of overlap that can be discerned immediately, but things like depression, mania, lack of impulse control, Parkinson’s should jump right out at you.

Greenfield put up a good post about mental illness in relation to the Robin Williams suicide.  But nobody that I know of has mentioned the possibile role of an undiagnosed and unknown brain injury in many aspects of Robin Williams’ personality, including his suicide.

One reason I think it’s important to mention this is that in recent years some promising treatments for brain disorders have been developed, in particular neurofeedback therapy, where it’s possible that the brain can be re-trained to function better essentially through playing a kind of video game.   This is, of course, non-invasive and non-pharmacological. 

People might not be so tempted to make harsh moral judgments, as has apparently happened surrounding Robin Williams’ death, if they realized not just that there might have been psychological or psychiatric issues, but physical brain issues over which no one has any control.

 

Shepard’s Off The Wall ‘Warning’ Re: Mooney v. Holohan, 294 US 103 (1935)

With apologies, probably only lawyers will really understand this post.  Nevertheless, on to it.

Shepard’s is this service that’s been around for a log time helping lawyers to find cases (usually published opinions from appellate courts) dealing with a specific subject, where those cases have been cited by other cases, whether the citations are favorable or unfavorable – and very importantly, whether a case has been overruled and is no longer good law.

In recent years of course all these functions have been computerized and data-based and Shepard’s is primarily an online tool.

So recently I was checking Shepard’s for any recent developments relating to a case that’s been pretty important fodder for discussion around here for quite some time:  Mooney v. Holohan, 294 US 103 (1935).  That’s a US Supreme Court case.

And Shepards contains a warning that Mooney has been “abrogated”.  The warning then directs the reader by hyperlink to an unpublished opinion from a case in an intermediate state appeals court in Arizona – State v. Branch, decided April 17th of this year.

This unpublished opinion maintains that while under Mooney the prosecution’s knowing use of perjured or false testimony in a criminal case is a denial of due process, Mooney has been qualified to include a “materiality standard”:  that is, there is only a denial of due process of law when the perjury or false testimony affected the outcome of a criminal trial.

Two things about this.  First, it’s not true.  Mooney has never been limited or qualified, and we can hope never will be. 

But second, how can Shepard’s issue a “warning”, complete with the red stop sign symbol, that a US Supreme Court case has been “abrogated” by an unpublished opinion from an intermediate appellate court in Arizona?  State intermediate appellate courts don’t have the authority to limit or abrogate US Supreme Court precedents. 

Who is running things over there at Shepard’s?

 

Rich Man, Poor Man

This article is actually more than a little disturbing.

The author appears to be advancing the thesis that manning up and taking responsibility for your situation in life is the key to success, while the unsuccessful are inclined towards superstition and voodoo.

But there’s an unpleasant reality hiding underneath the condescending pep-talk:  you might just as easily, or more easily, come to the conclusion from reading the article that the rich are self-satisfied, oblivious to how fortunate they have been, and prone to blaming the poor for their poverty.

Are there people who are entirely self-made millionaires, who have made their fortunes with no breaks, no help along the way from anyone?

No.  A little humility is called for, not that you’d glean that from the article.

Are there, on the other hand, people who are impoverished entirely without error in either act or omission?  A pure victim of circumstance, as Curly used to say?

This one is a little easier for me to believe in this or that case, just based on anecdotal observation.  But for the most part, I’d say the answer to this question is “no” as well.

The disturbing thing is that on the moral, and maybe psychological level, the rich and the poor are exactly the same:  both are entirely ego driven.  The rich indulge their egos by imagining they have arrived at prosperity solely because of merit; the poor spare their egos by ascribing their poverty to the cruelty of fate, or the fates if you prefer.

Neither is anywhere near to being correct.

‘Christian’ Simpletons And The Death Penalty

Is there anything more annoying than someone making emphatic assertions that are obviously wrong? 

CNN runs an essay by a guest columnist/reverend named R. Albert Mohler, supposedly to make a Christian case for the death penalty.  It all boils down to this: 

On the one hand, the Bible clearly calls for capital punishment in the case of intentional murder.

In Genesis 9:6, God told Noah that the penalty for intentional murder should be death: “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image.”

 

What utter bullshit.  In the first place, it isn’t even clear that the quoted passage is a command so much as an observation.  In the second place, although ‘shedding of blood’ generally refers to killing, taken literally that’s not necessarily the case:  shedding blood isn’t always fatal.  The passage may not be referring to murder or the death penalty at all.

But what really makes it a poor argument from my point of view – indeed not just a poor argument but an ignorant one – is that any honest and remotely competent opinion on what the Bible says about capital punishment would have to begin by discussing the very first murder; yet that Biblical account would seem to completely rule out the death penalty.  That is, after Cain murders his brother Abel, this is the exchange between Cain and God:

Now, therefore, cursed shalt thou be upon the earth, which hath opened her mouth and received the blood of thy brother at thy hand.  When thou shalt till it, it shall not yield to thee its fruit: a fugitive and a vagabond shalt thou be upon the earth.  And Cain said to the Lord: My iniquity is greater than that I may deserve pardon.  Behold thou dost cast me out this day from the face of the earth, and I shall be hidden from thy face, and I shall be a vagabond and a fugitive on the earth: every one, therefore, that findeth me, shall kill me.  And the Lord said to him: No, it shall not be so: but whosoever shall kill Cain, shall be punished sevenfold. And the Lord set a mark upon Cain, that whosoever found him should not kill him.

 

I mean, how does anyone claiming to be knowledgeable enough to tell other Christians what they should think about the death penalty, based on the Bible, ignore this part of the Bible? 

We talk about religious subjects sometimes around here at Lawyers on Strike.  We don’t pretend to be Bible scholars, but we don’t need to be to see this particular gaping intellectual hole. 

In other words, we might quote the Bible from time to time, but we don’t thump it at anyone.

Moreland Commission – Continued

So just to drive the point home, one of the allegations of the New York Times article goes like this:

Word that the [Moreland Commission’s] subpoena had been served quickly reached Mr. Cuomo’s most senior aide, Lawrence S. Schwartz. He called one of the commission’s three co-chairs, William J. Fitzpatrick, the district attorney in Syracuse.

“This is wrong,” Mr. Schwartz said, according to Mr. Fitzpatrick, whose account was corroborated by three other people told about the call at the time. He said the firm worked for the governor, and issued a simple directive:

“Pull it back.”

The subpoena was swiftly withdrawn. The panel’s chief investigator explained why in an email to the two other co-chairs later that afternoon.

“They apparently produced ads for the governor,”

 

Nothing to see here, right?

Besides, the Commission Chair William Fitzpatrick, in his three page letter, had this very detailed response to this specific allegation:

 

“Fuck you.”

 

Okay, that wasn’t really what Fitzpatrick said.  What he really said was a far more egregious gesture of contempt, something to the risible effect that he always gave a lot of thought to issuing subpoenas because that’s “serious”; and the Commission reissued the subpoena a few weeks after it was retracted; and finally, the suggestion that the Commission was interfered with by such things as, oh, the Governor’s henchman aide Schwartz telling the Commission to “pull it [the subpoena] back” was – and I quote – “absurd”.

Of course, it’s not like that kind of thing happened except for that one time, though.  Right?

 

According to a subpoena that had been prepared, investigators wanted to examine the real estate board’s political donations, its materials related to a valuable tax break for new housing, and its communications with public officials, including phone calls with lawmakers…

Whereupon Mr. Cuomo’s office stepped in to shut it down.

Mr. Schwartz, the secretary to the governor, telephoned one of the commission’s three leaders in a fury, according to four people briefed on the call. There would be no subpoena to the real estate board, he said.

Ultimately, the commission merely sent the real estate board a letter asking it to provide information voluntarily, which it did.

 

Apparently the Governor’s office got advance notice of objectionable subpoenas because the Governor had a spy lackey close associate as one of the Commission’s co-chairs.  Her name is Regina Calcaterra.

Investigators began to suspect that Ms. Calcaterra was monitoring their activities and reporting back to the governor’s office:

  

Ms. Calcaterra repeatedly pressed Ms. Perry [another investigator with the Commission] not to serve the subpoena, emails show. Yet the commission backed Ms. Perry, and on Aug. 19, she wrote to the co-chairs that she would be sharing a subpoena with them “shortly.”

 

I don’t know what is more laughable – or depressing, depending on your mood:  the Commission itself, or Fitzpatrick’s & Cuomo’s when-you’re-caught-just-deny-deny-deny defense.  Ugh.

I mean, this shows the “Commission” was just a toxic mix of tawdry skullduggery and highly dishonest political posturing by the Governor’s office.  The Feds tried to criminalize such conduct through some statute or other regarding public officials’ failure to render “honest services”, but that was held unconstitutional.  And I don’t know if criminalizing is the right way to go, or even remotely effective.  Given day to day realities of the political system in the US I’d tend to say no.  In any event, I’ve made my suggestion and that has nothing to do with putting anyone in prison.

This does not, of course, indicate that the entrenched corruption of the political class is not a serious problem; indeed I wish we could overcome this vague belief that unless the government is prosecuting someone the wrongdoing, if it exists at all, must be trivial.

Our ‘leaders’ do not so much lead us as reflect us.  We tolerate in them the kind of wrongdoing we tolerate in ourselves.  Thus we like a little bit of ruthlessness in our politicians, it seems.  Unless we’re on the receiving end personally.

We’ll improve the character of our political class when we improve our own.  Until that happens, “Moreland Commissions” are worse than a waste of time; they are a farce.

Justice

It doesn’t seem to be a law of nature, but it is.

Justice is a hard virtue.  Unlike, say, prudence, which is softer. 

Justice requires that the good be rewarded and that every wrong be paid for. 

Assume for purposes of discussion that there is a God, in the traditional western sense.  Then also in the traditional western sense God must be not only just, but perfectly just.  Every wrong paid for down to the penny, in other words.

Scary thought, isn’t it?

But we’re not God, and we’re not perfect.  So consider this:  for us in the fallen world, mercy comes at the expense of justice, and vice versa.  We like mercy (for ourselves when we have wronged) and justice (for ourselves when we have been wronged).  We’re not God – again – in more ways than one.  Assuming there is such a thing.*

Someone was talking to me the other day about those who do not do their duty, but rather prefer comfort and ease.  Is that a problem?  If justice is a law of nature it certainly is, because if someone has it too easy then someone else must have it too hard, to the extent things are working at all.

I often point out that as much as I and other complain about this and that injustice and whatnot, it’s astonishing how much still goes right in our daily lives:   air to breathe, water to drink, food to eat, relative safety for most of us.

With the exception of the first, we should – in justice, that is – regularly stop to consider that these things do not happen by themselves.  People – in most cases not us – perform tasks and work and make sacrifices so that these benefits come about.  And then we should be grateful for and to those people.  And then, if it seems that those people are not receiving their fair share and credit for the good they bring about for the benefit of others we should work ourselves to change that.

That’s an important job, too.  Don’t you think?

It’s not socialism to work for justice, unless you forget that justice is a virtue that exists only because individuals practice it.  The collective will be just only to the extent the individuals comprising it are likewise just.  This is a hard truth, like justice itself.  There are no shortcuts, there are no magical formulas, and anyone trying to sell you on something like that is a charlatan.  Or a socialist.

Of course, all that aside if there’s no such thing as justice I’m just talking nonsense.  But since just about everyone who has read this post knows exactly what I am talking about then it is not me talking nonsense, but rather those who say that there is no such thing as justice.

Which is not to say that we always know the just thing to do.  We’re not God, after all.  Assuming there is such a thing.

——————————————————————-

*  This is a disclaimer we intend to use around here at Lawyers on Strike whenever the subject of God comes up, similar in function to the “Not that there’s anything wrong with that.” meme from the Seinfeld days.

Lunacy

Somehow, a new law has sailed through the legislature having as its only objective to increase the number of people sent to prison for relatively minor offenses.  To make felonies out of misdemeanors, in other words.

But maybe there’s a method to the madness. 

The “prison industrial complex” idea has always struck me as outrageous, in that it seems that it should be a fanciful rant dressed up as an argument; but at the same time disturbing, because it fits reality far better than I would like to think it possibly could:

As the prison population grows, a rising rate of incarceration feeds small and large businesses such as providers of furniture, transportation, food, clothes and medical services, construction and communication firms. Prison activists who buttress the notion of a prison industrial complex have argued that these parties have a great interest in the expansion of the prison system since their development and prosperity directly depends on the number of inmates. They liken the prison industrial complex to any industry that needs more and more raw materials, prisoners being the material.

 

The new “law” is counter to the explicit national trend – that is, on the surface we appear to be looking for ways to reduce prison populations, which every reasonable person believes have gotten out of hand – but consistent with an entrenched group of interests that frequently find favor with political institutions because of superior organization and tightly focused goals.

This so-called law is Exhibit “A” in the prison-industrial complex scenario, then.  A healthy press would be all over this, finding out who was lobbying for it and who the interested parties are.  But never mind.  We have the press we have, 1st amendment or no.

Ugh.

Moreland Commission And The Individual Conscience

I was raised Catholic and one thing I have never understood is the antipathy so many seem to have to the practice of confession.  We’re all sinners, right?  So what do we do about that?

One frequent accusation has to do with the “hypocrisy” of it all:  you confess your sins, receive “absolution” and go right out and commit sins all over again.  Rinse and repeat.  What a bunch of hypocrites Catholics are.

Hypocrisy may be the tribute vice pays to virtue, but applying the concept here at all is just an intellectually pedestrian category error, misunderstanding things completely.  Every time you make a confession you must promise to “sin no more” and yet you know that’s not going to happen, and indeed that reality is formally acknowledged because you’re also required to keep going to confession.  This isn’t so much hypocrisy as it is inconsistency.  Or maybe incoherence.

But is it?  Is it really?

Metaphysics 101:  to exist is to be in the process of becoming.  Plain language:  you’re never quite there, always on the way, at best.  But then if you don’t have a destination in mind you’re not even on the way, because you don’t know where you’re going.  Talk about incoherent.

So, you’ve got to have a destination to be on your way in the first place, and you have to accept that as long as you exist you’ll never reach your destination.  The practice of confession captures this – well – perfectly.

The examination of conscience is, moreover, a fascinating exercise.  There are mortal sins.  Venial sins.  Seven deadly sins.  And while we’re on the subject of sin lists, let’s not forget the sins against the Holy Spirit, which are unforgivable, and of particular relevance to this discussion, the fact that two of these unforgivable sins are:  a) presuming salvation; and b) despairing of salvation.   (For bonus points:  why are those two sins “particularly relevant” to this discussion?  Answer in the comments section to receive your just reward in the form of fulsome praise from your hosts here at Lawyers on Strike.)

And those are just some of your own sins.  There are also nine ways of being an accessory to someone else’s sin.  That’s right:  vicarious liability is rare in the law, but in Catholicism it’s a daily companion.

Now, why do I bring this up in connection with the Moreland Commission fiasco?  Well, consider the nine ways you can fall into someone else’s sin:

I. By counsel
II. By command
III. By consent
IV. By provocation
V. By praise or flattery
VI. By concealment
VII. By partaking
VIII. By silence
IX. By defense of the ill done

Now, forget confession for a minute.  Just focus on the nine ways and the examination of conscience entailed by that.  Isn’t it obvious that a political class that regularly examined their consciences with respect to the nine ways would have a hard time degenerating into the cesspool of political corruption that is Albany, New York?

So here’s the problem.  The political class in Albany doesn’t know anything about the nine ways – probably never even heard of them – and neither does did the Moreland Commission.

Don’t get me wrong:  like the poor, political corruption will always be with us.  But the regular examination of conscience, and particularly an examination inspired by the nine ways, would hold it in check. 

The United States Attorney, Preet Bharara, doesn’t stand a chance by comparison.  He’ll find a couple of people to prosecute.  And he’ll have a tough time winning convictions, not because there aren’t a lot of guilty people, but because that’s just the way it is.

Maybe the juries are right.  Prosecuting and convicting doesn’t do much good.  Something deeper is involved.  Much deeper. 

A lot of people have talked about changing the culture of corruption in Albany.  As suggestions go, I submit you could do worse than encouraging examination of consciences and confession.  In any case, it’s the only suggestion we at Lawyers on Strike have.

You’re welcome.

Reaching For Amanda Knox

As in, a stretch.  A real reach.

The Telegraph in the UK reports that Amanda Knox was sexually involved with a cocaine dealer who knew someone else who stabbed yet someone else.

Got that?

This somehow bears upon Amanda Knox’s guilt, because….nope.  This doesn’t bear on anything relevant to Amanda Knox’s guilt, even if every word of it is true.  There are probably only a few people on the planet that can’t be linked to some kind of criminal act that way; that is, by extension several times removed. 

It’s a silly effort at a smear that shouldn’t be taken seriously by anyone.  And it’s a sign of desperation. 

By someone.