Monthly Archives: January 2019

Double Plus Bad Think – Repealed

As some of the cooler heads have pointed out, the practical effect of New York’s new and improved abortion regime is basically nil.  But ideologically it has a lot of oompf.

How so?  New York “liberalized” its abortion law in 1970, three years before the SCOTUS weighed in saying that the constitutional due process “right to privacy” was “broad” enough to encompass, you know, abortion.  How did New York do that?  Not by saying that abortion was a “right”, or that the human unborn was not a “person”; but rather by saying that any abortion taking place within the first six months of pregnancy was a “justifiable abortional act”.  That is to say, or at least strongly imply, that abortion itself was wrong, and would be criminal, but in what became any reason or no reason for a period of time it was “justifiable”, justification also being a criminal law concept described in Article 35 of New York’s Penal Law.

The ideological problem?  Abortion remained a conceptual wrong, the subject of several statutes in the Penal Law in Article 125, which was itself entitled “Homicide, Abortion and Related Offenses”.

How terribly uncomfortable and irksome for one side in the abortion wars.

Fortunately for that one side, in the almost 50 years that have passed since 1970, this curious implied commentary on the nature of abortion, still codified in New York’s Penal Law, has never, to our knowledge, been mentioned in the press, and indeed in all the blather about this recent change in the law has not been mentioned either.  Apparently it has been unmentionable.  And accordingly that one side has never had to confront the implications of what no one can, after all, speak.

And now they surely won’t have to.  The objectionable thought has been purged from the law of New York.  The long-standing oversight from the early days of our reproductive revolutionary zeal has finally been corrected, an intellectual irritant flushed down the collective memory hole where it will no longer trouble us.

That is all the change in the law was about.  It’s to show there’s no going back.


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Dzhokhar Tsarnaev, Impressionistically

We wrote this almost 4 years ago.  Never published it.  This seemed to be an appropriate moment:


I haven’t weighed in on this for a number of reasons; but like a lot of high profile cases it has a larger significance because so many people are aware of it and have opinions.

I’m not familiar with the evidence and don’t really want to go down that road, but I’ve formed some opinions based on a few facts that seem to be beyond dispute.

The older brother, Tamerlan, was a very strong personality.  He was also quite likely either manic/schizophrenic or brain damaged from years of blows to the head.  This is based on some recountings of his personal history which have included allusions to a personality change around the age mania or schizophrenia first appear (late teens to early 20’s) and extensive experience with boxing and/or martial arts.

When people with strong personalities become mentally ill their pathologies are extremely difficult to resist.  You can argue the most obvious points, but you’ll be brow beaten out of them if only because a normal person gets fatigued but a manic person doesn’t.  Or at least not the same way.  It’s almost like their mental illness is contagious, and to stay normal you have to put distance between yourself and them.  A much younger brother would be especially vulnerable, though, because they often grow up idolizing their older brothers, and without some third party pulling them back from the precipice they are apt to fall into the abyss, where their brother lives.

I assume this is going to be the narrative the defense advances in the penalty phase of the trial.  And it’s a good narrative, because it’s probably the truth.

And it makes – or should make – the government’s terrorism narrative look like the product of a febrile hysteria.

In other words, this was not any kind of international terrorism event at all; this was a far more domestic kind of story about a mentally ill and/or brain damaged young man who turned violent and drew his malleable, laid back baby brother into the vortex of madness.  If it hadn’t been Muslim this or that there would have been some other excuse – some other grandiose, conspiratorial bugaboo upon which Tamerlan’s mind had fixated and would eventually (and ultimately inexplicably) move him to some crazed, violent act.

And this is another case where the death penalty shouldn’t even be on the table.  Not only is the narrative I just described likely far closer to the truth than the government’s; as far as I know this kid had no prior criminal history.  For me at least, it is hard to envision any scenario where someone should be put to death on his first criminal conviction.

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Tonsillectomies And “Climate Change”

What’s the connection?  Perhaps some astute reader will figure it out and comment.

We quote:

The tonsillectomy epidemic also fell on my own family according to generation.  My father, born in Norway just after the turn of the century, escaped the procedure entirely, as did most of his generation.  I was not so lucky.  In the late 1930’s my family lived in Bellows Falls, Vermont, and at the age of five I underwent my first tonsillectomy in the local hospital.  I was one of the lucky ones to have my operation in the hospital.  Many of my friends in those Depression-era years were not so fortunate.  Their parents could not afford the hospital, so they had their operations in the school gymnasium during “tonsillectomy day” – a mass surgery event held periodically to ensure that everyone in Bellows Falls who needed an operation received an operation.  Although precise statistics are not available, this apparently meant every child in town.

Emphasis supplied.

Indeed it’s hard to find “precise statistics”.  Indeed it’s hard to to find anything at all documenting the fact – and it is a fact – that mass tonsillectomy days were held in school gymnasiums all over the northeast United States for several decades – roughly the 1930’s to the 1950’s.  Performed on children who were completely healthy and experiencing no symptoms of disease in their tonsils or anywhere else.

Was this a grotesque form of child abuse?  Sure.  Is that what people thought at the time?  Of course not.




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Pleas And Thank You

One of the consequences of the prevalence of former prosecutors being judges (and “prevalence” is putting it mildly – almost all judges were prosecutors at one point or another) is that the prosecutor mindset comes to dominate the judiciary.

Yes, there’s a mindset.  We freely admit we don’t have it, and have often remarked that we could never have been a prosecutor.

It is the prosecutor mindset that places a higher value on “finality” than on accuracy or truth, and the prosecutor mindset that recoils from the idea that a bargained for guilty plea can be undone, because a deal is a deal and that’s not fair.

Judge Garcia again:

In light of defendant’s guilty plea, the case never proceeded to trial. Presumably, the People ceased all efforts to investigate or prosecute defendant’s case…Having struck a bargain with the People many months ago, defendant cannot now contest her guilt…

“The People”.  That’s how prosecutors generally like to refer to themselves in New York.  It’s a bit pretentious and vaguely Bolshevik, don’t you think?

But moving on.  In dissent Judge Wilson is succinct:

Natascha Tiger pleaded guilty but is innocent.

He then puts “finality” in a modicum of perspective:

The majority is focused on the importance of the finality of the plea process, and the appropriate conservation of judicial resources (majority op. at 11-13). Those concerns are weighty. But “conservation of judicial resources” does not appear alongside “life, liberty and the pursuit of happiness.”

We don’t like the “wow much limited resources” excuse for not doing our jobs argument around here, but it’s a really popular refrain from prosecutors-turned-judges.  We don’t agree that it’s a “weighty” concern in the slightest when we’re talking about convicting the innocent, so while we appreciate Judge Wilson’s dissent we wish he’d been better on that point.  Some judge needs to repudiate the whole “resources” thing.  It’s repugnant, and we’ve explained our position before.

But the point here is that Judge Wilson was never a prosecutor.  Neither was Judge Rivera, who joined his opinion (“Deputy AG” is a government lawyer but not generally a prosecutor).

Among those in the majority, however, both of the opinions were authored by career prosecutors who then became judges.

So perhaps the Tiger case is a tidy illustration of at least some of the characteristics of the prosecutor mindset:  it is institutionally minded – that is, it favors institutional concerns (such as finality) over individual ones (such as freedom from incarceration or other punishment for the innocent), which is, you know, un-American – but never mind; it leans heavily towards – indeed we could say it is infused with – the “sporting theory of justice”, even though that mindset was condemned as early as 1906 by Roscoe Pound as “…disfigur[ing] our judicial administration at every point.” and, according to United States v. Agurs (at p. 108) explicitly rejected by the SCOTUS in Brady v. Maryland, at least when criminal defendants employ it.

And what about this “finality” business in habeas matters, anyway?  There’s a pretty cool resource from BYU law school that lets you conduct a search for terms in SCOTUS opinions, although we wish it were a little better.  Nevertheless, it does allow a search for the term “finality” within 10 words of “habeas”, yielding an interesting result.

Prior to the 1970’s that had never happened.  It happened twice in that decade, three times in the 1980’s and five times in the 1990’s – mirroring perfectly, we think, the trend toward the prosecutor mentality in the SCOTUS.

It’s practically tautological to say that the remedy of habeas corpus undercuts finality.  The fact that habeas corpus exists at all – although outside of the death penalty context it exists now only in theory, not in practice – is a testament to the idea that at some point, the law recognizes that finality ceases to matter when someone is wrongfully in custody.  “Finality” might have a place in the discussion of a habeas corpus case where a court was being asked to expand or extend the habeas remedy; its appearance otherwise bespeaks a visceral, emotional and irrational hostility to doing one’s duty, since it should go without saying that the law binds the judiciary.

Question:  was the SCOTUS in Herrera v. Collins, or the New York Court of Appeals in People v. Tiger, being asked to expand or extend the scope of post-conviction remedies like habeas corpus and 440 motions to encompass the notion of “actual innocence”?

Let’s change context.  In Article III of the constitution we have what is known as the “Exceptions” clause, which subjects SCOTUS appellate jurisdiction to such exceptions as the “Congress shall make”.

Can the Congress exception the SCOTUS to death, removing all jurisdiction from it?

Those that answer “no” frequently cite the principle that the separation of powers would be violated if one branch of government – the judiciary – could have its “core functions” removed by another branch.

So there are “core functions” that virtually define the judicial branch of the government?  Would exonerating the innocent be one of those?

Let’s quote Justice Rehnquist again, in Herrera v. Collins:

“After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent.”

So if that’s true – and Justice Rehnquist backed by a majority of the SCOTUS says so –  isn’t it axiomatic that courts have a duty to free the innocent that cannot be denied – or worse, shirked?  Sounds like a “core function” to us.  Non-delegable.  Implicit (not needing to be explicitly provided by some statute or rule).

The question wouldn’t even come up if our political-science-major robed rulers had ever run across the term “a priori” and had any understanding of what it meant.  To ask if the constitution prohibits the judiciary from signing off on the imprisonment or execution of an innocent person is like asking if water is wet.

It’s not true that the only stupid question is the one you failed to ask.

What about the guilty plea, then?  Well, if we say over and over (and we do) – that is, every single time someone pleads guilty – that there’s no difference between a guilty verdict after a trial and a guilty plea then…there’s no difference.  How does a question predicated on such a difference (i.e., People v. Tiger) even arise?

We give up all these “trial rights” when we plead guilty:

At a trial by jury you are presumed to be innocent, and you are entitled
to the following rights:

You have the right to be represented by your lawyer.
You have the right to confront and cross-examine witnesses presented
by the government.
You have the right to remain silent and not to incriminate yourself.
You have the right, but are not required, to call witnesses, and to testify
Finally, you have the right to require the government to prove your guilt
beyond a reasonable doubt to a jury of twelve people who must be
unanimous in finding that you are guilty.

One reason 97% of criminal cases are resolved by guilty pleas is that this spiel is filled with distortions and outright lies.

No one really believes the accused is “presumed innocent”.

Your lawyer, assuming he is “effective”, will be hamstrung at trial by ruling after ruling designed to ensure that he loses, including restrictions on his efforts at confrontation, and having any witnesses marshaled in your defense threatened with arrest.  Or actually arrested.

Finally, there is no actual burden of proof on the government at all; more like a burden of production.  The government’s evidence can be pure garbage and you’re still at great risk of conviction and imprisonment.

So, you know, pleas.

The prosecutor and the judge (or do we repeat ourselves?) may be worried about “resources”, but the Defendant in his cross hairs is worried about his freedom (in some few cases even his life) and at least a permanent reduction into the American class of Untouchables.  The prosecutor’s concern is collectivist.  The Defendant’s is individualist.  Selfish, too, perhaps.  But in the case of an innocent Defendant the selfishness is no sin; indeed a properly ordered conscience would consider it obligatory to correct the record even in one’s own favor.

It all comes back to the late Justice Rehnquist.  Well, maybe not all.  But in any event, and ironically, Justice Rehnquist was never a real prosecutor and came from a largely private practice background, though we use the term advisedly inasmuch as his clients were picked from among the extremely well heeled in Arizona and of course he was a Stanford man.

He apparently had a callow faith in criminal trials that no one who has ever done one – representing a defendant – would be stupid enough to have.

So in Wainwright v. Sykes he endeavored to restore the concept of the “criminal trial” as a “decisive and portentous event”.  Note he was specific to criminal trials.  In civil cases the little guy mostly doesn’t even get a trial, because summary judgment, which overwhelmingly favors the institutional litigant.

See the consistency here?  Institutional litigants benefit from the trial as a “decisive and portentous event” in criminal cases, so that’s what we decide to think.  Institutional litigants benefit from avoiding trials altogether in civil cases, so the decisive and portentous event so terribly important in criminal cases ceases to matter and increasingly doesn’t even happen in civil cases.

This is called “policy”:  favoring institutional interests over individual interests because “resources”, or some such.  It’s galling.  The whole purpose of the courts is to do precisely the opposite, to neutralize the power differential.  Instead they sacralize it.

The glorification of “finality” regarding guilty pleas that every sentient person recognizes as incorrect and unjust is at the end of the slippery slope of this policy.  We have to lie, over and over, then double down, then lie some more, to get there.

Discussion of “negotiations” and “bargains” with respect to guilty pleas can be a useful shorthand, but ultimately these are analogies only:  in no way do they accurately describe the “process” that Judge Difiore considers so “integral” in People v. Tiger.

Two parties are not truly negotiating or bargaining when one of them has a gun to their head and not the other.  Does this really need to be said?




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