Monthly Archives: February 2020

The Ugly Harvey Weinstein Moment

We think it’s probably a Good Thing that the casting couch has finally been explicitly criminalized. It always tended that way.  Take a look at coercion in the second degree – a class E felony in New York – and tell us what you think.  Come to think of it, why wasn’t this also charged in the whole Weinstein thing?  Was it?

But – and we’re so defense minded here at LoS that there’s always a “but” – we’re disturbed by at least one aspect of the treatment of Mr. Weinstein: ridiculing his physical characteristics, such as Weinstein being “ugly” and a “monster” and even possessing a “disgusting penis“.

Why disturbed?  There have to be limits on just how much scorn and obloquy we can heap upon the designated criminal of the day.  The man has been felled from a very high perch, his life ruined and he’s off to prison, because he did terrible things and we agree they were terrible.

But that’s enough.  Piling on in the fashion that so many already have is uncivilized.  Our collective judgment of his guilt is not a license for cruelty.

And we should not be so easy on ourselves.  Who among us has not seen a Miramax film, or any other movie for that matter, without being at least dimly aware that the “industry” producing the films had this sordid side?  There have been a lot of Harvey Weinsteins.  And to a significant degree that’s on us.

And episode like this should prompt some circumspection, some self-searching, not an orgy of shockingly cruel abuse heaped upon such an easy target.

 

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SCOTUS Dust-Up (Updated)

Justice Sotomayor complains that the SCOTUS is favoring the government.

But see here.  SCOTUS has been heavily favoring the government for many years. We pointed this out in some detail – gosh – more than six years ago.  Called it an “open secret”.

What’s the truth here?  We don’t mind Justice Sotomayor especially, but she’s being more than a little disingenuous.  The Justices CNN labels “conservative” have it right.  Trump Derangement Syndrome is rampant in the federal judiciary and there have been a slew of judicial injunctions against the government which is totally fucking unheard of a tad rare in historical terms, and the SCOTUS is undoing them a lot, pretty much on request whenever the Solicitor General wants.

There’s nothing unusual about the Solicitor General getting what he wants from the SCOTUS.  There’s nothing unusual about the little guy – Justice Sotomayor cites death row inmates – getting roundly screwed over by comparison, or let’s face it just in absolute terms either.  It’s business as usual at the SCOTUS.

If CNN an other news outlets are going to tout a SCOTUS opinion as being significant, they should tell the story in a balanced way.

Ugh.

UpdateAnother one.  The SG’s office can get a reversal here any time it’s of a mind to. This kind of thing is the reason for the oft cited statistic that this is happening more in Trump’s America. It’s not Trump’s doing; it’s the judiciary’s susceptibility to Trump Derangement Syndrome.

 

 

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The Search For Political Validation

Some high profile criminal trials and/or cases are driven by that search.  It’s improper, and that’s on the prosecution, but never mind that for now.  The reality is clear enough.

So there are two such cases dominating the “news” cycle this week:  the trial of Harvey Weinstein and the post trial proceedings of Roger Stone.

It’s a strange drive, if you ask us.  Convictions and stiff sentences will constitute highly emotional validation for the partisans on one side.  Will they feel rebuked by acquittals or leniency?  Of course not.  Will the partisans on the other side feel the same, only going the other way?  Of course not.

That’s why it’s an improper and wasteful exercise bringing a criminal case for political validation, as a proxy for some political controversy or other.  It has no chance of resolving the controversy.  That’s one reason anyway.  There are others more serious.

In any event, there is one interesting practitioners’ aspect to the latest development in the Harvey Weinstein trial, where the jury asked a question towards the end of the business day on Friday, implying that they had reached a verdict on three “lesser” charges but were hung on the remaining two more serious counts.

We take it back.  This is not just interesting, but fascinating.  Questions a jury asks are often revealing to the anxious litigants and their attorneys regarding the outcome.  In one of our first jury trials, we were summoned back the court from our office because the jury had asked a question.  By the time we got there, however, the jury had asked a second question that they said “superseded” the first:

Can we award the Plaintiff more money than he asked for?

This was, you know, a a pretty good clue into the minds of the jurors.

If the Weinstein trial were more normal, the latest question the jury asked could be reliably interpreted to mean that they had reached guilty verdicts on the lesser counts but were hung on the more serious ones.  Maybe not as reliably as the question we just recounted from our own trial, but still pretty reliable.

Alas, the Weinstein trial is not normal.  Because “propensity” evidence of similar but uncharged conduct was admitted, it is possible – not likely, but possible – that the jury might acquit on the lesser charges but convict on the more serious because those charges were bolstered by the propensity evidence but the lesser charges were not.

That would be quite an anomalous result, to convict Harvey Weinstein of the more serious charges after acquitting him of the lesser.  Indeed, it would arguably constitute an inconsistent verdict, which would be a basis for quite the post-verdict motion.

Not that such a motion, no matter how meritorious, will ever be granted, of course. Because judges.  They would have to grant such a motion, and they don’t want to.

When you bend the rules to get your political validation you may overlook the foreseeable problems you generate.  Be careful what you wish for, in other words.

Roger Stone?  Apparently he has moved to disqualify the judge.  Turley is right, of course, that such motions are never granted.  He should throw in – like we do – that they should be frequently granted, because for the most part judges are extremely biased in favor of the prosecution.

Here, the judge having already very publicly condemned Mr. Stone when she sentenced him, how can she impartially rule on the new trial motion?

But never mind.

Politics makes strange bedfellows, it is said.  It also makes for incoherent criminal prosecutions.

Ugh.

 

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Weinstein Redux

A very thoughtful article here, from a periodical that no doubt would like to see a conviction but acknowledges that it’s a “weak case”.

We here at LoS?  Not so sure.  We like this quote from The Nation article:

In bringing this case the way it did, however, the state has also invited jurors to contend with issues that criminal law is too blunt an instrument to resolve.

That’s insightful. The outcome of a criminal trial is guilty or not guilty. This leaves little room for nuance. In theory, at least, a lot of nuance should result in “not guilty”. But the practice is different.

Weinstein didn’t testify. That’s not supposed to count against him, but it does. Reliable accounts indicate his lawyer argued well on his behalf, but there’s just something about a defendant not testifying that leads many jurors – probably a majority – to incline towards a conviction.

One interesting thing about this trial, at least to us: it’s revealing about the prosecutor mindset.  As we have pointed out before on numerous occasions, prosecutors are normally very comfortable with witness credibility contests at a trial, because their witnesses – very often cops – overwhelmingly win such contests.  The question the prosecutors ask themselves about their case is whether their witness will “hold up” under cross-examination before the jury. They tend to under-appreciate the significance of documentary proof, and specifically contemporaneous records that undermine their witness’ testimony.

Here, the defense had some pretty devastating documentary proof in the form of contemporaneously generated records, often by the witnesses themselves, strongly suggesting that at the time the complained about events occurred the witnesses did not regard themselves as having been raped or assaulted.  So the argument the prosecution has to make from there is that the truth is being told on the witness stand, not in the contemporaneously generated records.

That’s a tough sell, and it should be. But the prosecution might sell it.

If the shoe’s on the other foot, and the defense has to make that argument? There is no possibility whatever that it could be sold.

The prosecution is apparently going out on this limb because #MeToo is just a slogan unless there’s a scalp at some point.  Another disturbing thing is that there are a lot of problems with the proof here, but Harvey Weinstein is an unappealing defendant – as in physically unappealing – and that has been made a factor in the trial.

We object to that as a tactic, both because it’s unfair and because there’s at least some chance it will work: pretty defendants are more often acquitted and ugly defendants are more often convicted.

Likely there will be a verdict by close of business today, or a communication to the court that the jury is hung. It’s Friday, after all.

 

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Harmless Error – Not

You get Bagley expounding on Agurs opining that a “Napue” violation – which really should be termed a “Mooney” or “Pyle” violation – and this is what you wind up with in a District Court in 2020, in this case the District of Maryland:

However, a Napue violation is evaluated under the harmless-error standard, Bagley, 473 U.S. at 679 n.9, while a Brady violation is not; instead, an alleged Brady violation only requires reversal if a reasonable probability exists that, had undisclosed evidence been disclosed to the defense, the result of the proceeding would have been different, id. at 680-81, 682.

A Mooney violation, which would of course include the erroneously termed “Napue” violation, has never been explicitly subject to any limitation at all, including a “harmless error” analysis, and neither Bagley nor Agurs can change that because they were both Brady cases and everything they said about the Mooney line of cases was dicta, and the portion of the Bagley opinion cited in the District of Maryland wasn’t even part of the opinion of the SCOTUS!

In fact, as we pointed out in an amicus brief to the SCOTUS last year (Actually, that link is to a motion for “divided argument” but let’s not get too technical, just look at paragraphs 6 and following after you click the link, which we notice few of you ever do!), the better argument is that the SCOTUS already implicitly held that deliberate lying and cheating by police and prosecutors would result in automatic dismissal and/or reversal.  The harmless constitutional error doctrine was established for the first time in Chapman v. California.  Chapman was decided virtually simultaneously with Miller v. Pate, which was the last case strictly in the Mooney line and which contained this otherwise kind of inexplicable language:

More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. Mooney v. Holohan, 294 U. S. 103. There has been no deviation from that established principle. Napue v. Illinois, 360 U. S. 264Pyle v. Kansas, 317 U. S. 213; cf. Alcorta v. Texas, 355 U. S. 28. There can be no retreat from that principle here.

Why was the question of a “retreat from that principle” even on the table?  Because Chapman was the very next case in the US reports (386 US 1 v. 386 US 18), and held that some constitutional errors can be subject to harmless error analysis.  Meaning that they might not result in a reversal on appeal.

Mooney violations always, always require reversal.  And dismissal.

But the Rehnquist SCOTUS, ignoring Miller v. Pate, beat a retreat from that principle for years, although never quite succeeding.

Obviously, the SCOTUS is going to have to be clarify the law here at some point.  We hope soon, but we have already been waiting so long.

Taking up the second question on this petition might help.

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Two “News” Items

…from this morning caught our attention here at LoS.

First, although we have been somewhat aware of the CIA’s MK Ultra debacle we had never seen it associated with the notorious Whitey BulgerCharles Manson, yes.

It raises the question of just how many poor souls had their lives ruined in what should have been recognized even at the time as a highly unethical – indeed criminal – experiment on unwitting human beings.

To be fair, the CIA had long since bought the argument that a well placed assassination that prevented a major armed conflict was justifiable.  And it’s almost as if the MK Ultra program was some kind of open secret, even as it was going on.

But never mind.

The other item was this.  We’re not big fans of Alan Dershowitz. But it’s good to point out double standards, and this is a double standard that has already gone way too far:  the impeachment of Trump was itself an example of a sui generis hostility that beltway denizens would never invoke on any other president.

But there’s something more basic that should be discussed in this context.  We are actually of the opinion that the president is always entitled to “interfere” with the DOJ in favor of leniency, because at the end of the day he has the power to short circuit any prosecution by pardoning the defendant; what would amount to an “abuse of power” is doing the opposite:  that is, interfering in favor of prosecuting someone.  That’s basically turning the DOJ into a stasi-like secret police force.

Nobody seems to be recognizing this distinction to be as crucial and dispositive as it actually is.  Or should be.  Except we here at LoS.  This represents yet another example of the lack of clarity of thought, and a failure of intellectual discipline.

On their part, obviously.  Not ours, of course.

 

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Eight Years Ago…

…the term “liquidity trap” was popular and being discussed around here.  It’s still an issue requiring discussion.  Beyond that, we could still use a jubilee and a return to the gold standard.  There is still no other permanent solution.  Presidential candidates like Bernie Sanders are discussing the former; nobody in media land is discussing the latter.  That’s a disservice to the public, but only one among many at this point.

In any event, if people want to understand our monetary system in a nutshell, they could do worse than reading what we wrote back then:

Keynes and MMT are the ones who fundamentally misunderstand the government’s relation to money. The proper role of government wrt to money is to define a monetary unit of account and adminstrate it through bureaus of weights and measures.

The liquidity trap occurs when all that has been disregarded, the unit of account becomes fiat, and the bulk of a nation’s money is created through lending to individuals and businesses. Without a reference point at the bottom of it all, new money issuance is deemed satisfactory so long as loans are being repaid on schedule. In fact this is the only criterion for monetary balance in such a monetary system. When that changes, and loans are no longer being repaid on schedule, lending constricts, and it cannot be otherwise. It doesn’t matter how much liquidity you supply to lenders, they can’t make loans because the borrowing capacity of the populace has dried up. They are debt saturated.

The only answer for this that Keynsians have come up with is for the government to act as borrower of last resort. But in that case government deficits explode and you wind up with Greece and the EU.

In the system that we have, the fact that new money is loaned into existence is not discretionary. There is no other option. Thus if lending isn’t possible, no new money is possible either, and the money supply will stagnate or contract, which of course makes the repayment of existing outstanding loans more and more difficult.

This is why the “helicopter drop” remarks are intended to be funny. New money cannot be distributed that way. All newly created money must be owed back into the system; that is, someone must borrow it into existence and owe it back. It is the only way in a fiat system to regulate money issuance.

The subprime “crisis” signaled that the lending saturation point had been reached in the US. Since the country had largely run out of qualified borrowers, loans were made to UNqualified borrowers. There is no one to blame for this except the people who instituted the monetary system in the first place, and they’re all long since dead. The system will always wind up in this spot after a few generations.

The WaPo article discusses the common MMT inspired idea that taxes are the method for managing the government deficits that occur as the government becomes the borrower of last resort in a liquidity trap, which is just what is happening now. The idea being that the government takes back more and more of the new money that has been issued to ameliorate the deficit issue.

This is a frighteningly stupid assertion. It seems to contemplate a monetary circle jerk where new money is created through a loan to the government, paid out to whomever as salary or pursuant to a contract, and then the recipient is heavily taxed so as to get most of the money back. At that point, the monetary system is not reflecting or facilitating or serving the real economy, rather it’s the reverse: the real economy is serving the monetary system. To say that this is pointless and perverse is an understatement.

No theory of money and credit is worth a largely hungry and homeless populace, yet this is what is happening all over the globe: the theory is more precious than reality to those who get to make the decisions. We have government by so-called “technocrats” who are devoted to an idea rather than their subjects. And the idea is ridiculous.

The answer to all this is redeemable money that can exist and be newly issued apart from being loaned. But to get there from where we are will require a jubilee, because all the debt that has piled up cannot be paid back.

And it will take a constitutional amendment.

But this is a good thing. People need to recover their sense of self-government.”

 

Following the comments section here would prove interesting for some people, too.

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Weinstein Roger Stone Ke$ha/Dr. Luke Narrative Redux

Apparently Weinstein’s lawyer is a “#MeToo Skeptic”.  This designation, we assume, is a Bad Thing in the narrative.

If the casting couch is now a criminal matter instead of just a sordid open secret of the entertainment industry, wherefore is the Ke$ha – Dr. Luke case?  We’ve asked about that beforeRepeatedly.  Why does Weinstein get criminally prosecuted but New York judges won’t even let Dr. Luke get sued for money?

This is a question you ask at your peril.  There is no principled distinction whatever.

And check out this little tidbit about the New York judge deep-sixing overseeing the Ke$ha – Dr. Luke litigation:

Judge Shirley Kornreich, who presided over the trial, is married to lawyer Ed Kornreich, who is a partner in Proskauer Rose, the law firm that represents Sony/RCA.

Sony/RCA is, of course, one of Dr. Luke’s big backers.

Meanwhile, several prosecutors resigned in protest over the Roger Stone affair.  It is big news, because it fits an approved narrative about the corruption of President Trump.  We, of course, tried to resign in protest ourselves, for what were objectively far more compelling reasons, but somewhat inexplicably were not permitted to do so.  And not only was this not news; all discussion of the episode was squelched except on this obscure little blog.

Why is the one resignation in protest a Big Thing and not the other?

This is a question you ask at your peril.  There is no principled distinction whatever.

Some days the incoherence is a bit overwhelming.

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The Weinstein Trial Weinsteins Down (Updated)

So.  Should he testify?

Follow the link.  It’s a good case study in standard arguments about defendants testifying when they are on trial.  But there’s one quote from the “expert” they trot out, right at the end, that at least hints at the truth of the matter:

“I tell my clients once you take the stand you have lost your shield, which is me, and you are on your own,” said McMonagle, who was not involved in Sandusky case.

“In my experience as a prosecutor and defense attorney it is rare to see a client take the stand. The problem is, some jurors do hold that against you.”

Indeed some jurors do.  In fact, that is so much of a concern that one of the really difficult things to decide is whether to even ask for the instruction from the judge that the jurors are not supposed to do that.

Because it just draws more attention to the fact that the defendant didn’t testify, and otherwise that fact can’t be mentioned by the prosecution or the judge.

So at least this particular expert acknowledges the problem.  Good for him.  He has some actual experience at criminal trials.  On the defense side, although apparently he was also a prosecutor and that’s a factor in his outlook, too, we think.

Speaking of prosecutors, what happens if Weinstein takes the stand and then gets cross-examined?  It’s easy for the prosecutor to strike an emphatically skeptical pose during questioning, to impress the jury with how incredible the no-good criminal defendant is, and it most often plays well because the jury is ready to believe the no-good criminal defendant is guilty and, you know, not credible.  As we have noted many times before, natural reason predisposes jurors to find guilt.  That is the real presumption, not the phony one we pretend to have.

But sometimes a defendant can get the better of the situation and make the prosecutor look like a jerk, which frankly the prosecutor would in fact look like in most any other context, because the kind of cross examination most of them do would be seen as obnoxious behavior at, say, a cocktail party.

Is Weinstein capable of that kind of turn around?  Maybe.  He’s in the image business, after all.

Not to mention that there is always one big plus for the defendant to testify:  the jurors get to know him a little.  Even if it’s just a little, it’s harder to pronounce “guilty” on someone you have some acquaintance with than on a complete stranger.

In these parts there was a legendary criminal defense attorney, Felix Lapine.  He had a lot of success in criminal trials putting the defendant on the stand.  We might say it was one of his secrets of success.

If I’m Weinstein’s attorney I’m trying to prepare him to testify.  He has a better chance taking the stand.

As an aside:  Daniel Holtzclaw is taking his case to the SCOTUS, claiming innocence.  We looked at his case before, assuming the guilt that had been adjudicated, focusing only on the media coverage and treatment.  We don’t think the SCOTUS petition has much of a chance.  We hope he’s not innocent, because it’s an upsetting story if he is, but in any event we don’t have enough information to know one way or the other.  His immediate family seems convinced, though.  Family loyalty is a fine thing, we agree.

Update:  So, that’s that.  The conventional wisdom prevails and Weinstein will not testify, even though he reportedly “wanted to”.  We’ll see how that all works out.

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They Had The Prettiest Mugshots Ever!

Image result for robicheaux

But it turns out the charges were fabricated by the then District Attorney for political and personal gain.

What are these beautiful Californians supposed to do now?  Their attorney realizes what the problem is:

“I don’t want to be overly dramatic or hyperbolic, but the mere filing of this case has destroyed irreparably two lives,” defense lawyer Philip Cohen told reporters.

“He has become persona non grata with an entire city, an entire state—and I don’t want to be exaggerating—but probably an entire country.”

You see, it’s not unanimous that dropping the charges is the right result:

At least some of the women who accused Robicheaux and Riley maintain they were assaulted.

Michael Fell, an attorney for one of them, told the Los Angeles Times the decision is a betrayal of his client.

“For somebody to report, for them to go through what she had to go through with the police, for the district attorney’s office to file criminal charges, for her to have to be patient the last two years while the case is being prosecuted, only for it to be dropped—she’s going to be devastated,” Fell said.

Maybe it’s never unanimous.  We don’t know.  Where there’s smoke there’s fire, think most people.

Maybe their reality show gig would have caught on as much or more than KUWTK.  But we can never know that now.  All we know is that it turned into a debacle with the criminal charges and now it’s over.

Assuming the truth of the 2nd DA’s contentions, can they be made whole by the 1st DA for his perfidy?

No.  DA’s are immune, no matter what they do to corrupt the process.

Realistically, they have to start a different life elsewhere, as in elsewhere on the globe, not just elsewhere in California or the US.  That requires money.  A lot of it.  And we owe it to them, but because of judge made rules we refuse to pay up.

As others have said, you might beat the rap but you won’t beat the ride.

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“Response Requested”

It’s a sign of interest at the SCOTUS.  The Petitioner files his petition.  The Respondent doesn’t have to respond.  He has a right to respond.  But he doesn’t have to.

The Respondent can also explicitly waive his right to respond.  He’s supposed to do that within 30 days after the petition is filed.  The quicker he does that, the quicker the petition will be “distributed” for consideration at a conference of the SCOTUS, where the vast majority of the time it will be denied.  Unless the Petitioner is a governmental agency or some other official this or that like the police.  These are favored litigants, and their chances of being heard by the SCOTUS if they ask for that are much, much higher.

“Equal justice under the law” does not exist in the United States anymore, if it ever did, and that goes for the SCOTUS and every other court from bottom to top and back down again.  This is not cynicism.  This is a brutal fact.

So we’re following this case.  It’s been kicking around an awfully long time.  It’s been up to the SCOTUS before, sent back to the 5th circuit, argued again, reheard “en banc”, and now it’s in the SCOTUS again and they’re interested, and we know that because a response has been requested.  And what’s more than passing strange here is that the Respondent just blew it off, let the 30 days run without responding at all but then about two weeks later filed one of those explicit waivers whereupon the SCOTUS immeidately “distributed” the petition and then immediately after that requested its response.

Why, having blown off the petition completely, did the Respondents suddenly decide to explicitly waive?  Presumably a clerk at the SCOTUS called and told them to make an appearance.

So now a response is due March 2nd.

The danger here is the second question presented.

II. Does a police officer who inaccurately reports
his perceptions of events during a dynamic shooting
encounter violate clearly established rights under the
Fourteenth Amendment?

We talked about this before.  And with respect to the larger issues raised, before that.  And before that, too.  And, yeah, even earlier.  And we could go on.

But we won’t.  Not now, anyway.

We would like to think that the SCOTUS isn’t going to take this case up again.  We’ll speculate though:  the conservative, cop-friendly wing is the SCOTUS faction showing an interest, because it doesn’t seem right that the cops are going to be held liable for a crazed kid with a gun who winds up shooting and badly injuring himself.  So they’d really like to deep-six this one, but the CA5 keeps ignoring the SCOTUS hints in that direction and letting it continue.

Let the man have his trial, we say.  What’s the worst that can happen? He wins a lot of money – relatively speaking – like Mr. Thompson did?  Some poor schmuck gets, say, $14 million, which the Kardashian clan might spend on a one week vacation, and the SCOTUS takes up the case to overturn it just to make it absolutely clear (as opposed to abundantly clear, as it already is) that schmucks are not going to get any relief in federal courts?

And in the process make the state of the law even more incoherent than it already is?

Ugh.

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