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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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Pardon Paradox And Innocence Follies

We thought we should briefly revisit our earlier post regarding People v. Tiger, a very unfortunate case from the New York Court of Appeals.  And we may revisit that case again, for other reasons.  But we have a particular reason in mind this morning.

One of the things a judge explicitly tells a criminal defendant when they are pleading guilty is that there is no difference between the conviction that results from a guilty plea and one that results from a trial.

Increasingly, and especially in the wake of the Tiger decision, this is a lie.  Tiger holds that a person who pleads guilty cannot contest their factual guilt in a “post-conviction” proceeding whereas a person who is found guilty after trial can, although let’s face it the latter is true in theory but not in practice.

Former-prosecutor-now-appellate-judges really seem to have a Thing for “finality”.  First you get Judge DiFiore:

The plea process is integral to the criminal justice system and we have observed that there are significant public policy reasons for upholding plea agreements, including conserving judicial resources and providing finality in criminal proceedings. To that end, we have recognized that a defendant can plead guilty to a nonexistent or legally impossible offense in satisfaction of an indictment that charges a higher offense. Likewise, we allow defendants to plead guilty while maintaining their innocence by entering an Alford plea. Allowing a collateral attack on a guilty plea obtained in a judicial proceeding that comported with all of the requisite constitutional protections on the basis of a delayed claim of actual innocence would be inconsistent with our jurisprudence and would effectively defeat the finality that attends a constitutionally obtained guilty plea.

Thus, a guilty plea entered in proceedings where the record demonstrates the conviction was constitutionally obtained will presumptively foreclose an independent actual innocence claim.

(citations omitted)

Notice how Judge DiFiore tries to subtly lump Alford pleas in with other guilty pleas in this context.  That’s really, really bad man.  We’ll get back to that shortly.

First, though, we’ll quote Judge Garcia.  He concurs, but wants to “emphasize” something, though we’re not sure what:

I join the majority and agree that defendant’s “freestanding actual innocence” claim is not cognizable under CPL 440.10 (1) (h). I write separately to emphasize that defendant’s “freestanding” claim is foreclosed regardless of whether she raised, or could have raised, an alternative claim.

What he really seems to want to emphasize, however, is how wonderful we are to criminal defendants and how it’s wrong to let them take advantage of our generosity:

Under New York law, a defendant who maintains his or her innocence may employ various procedural protections, and pursue an array of challenges, to ensure that guilt or innocence is fairly and reliably determined.  Initially, a person charged with a crime may elect to proceed to trial…Alternatively, a defendant may forego a trial in favor of a guilty plea. The plea bargaining process, an essential component of our justice system, enables a defendant to concede guilt in exchange for certainty and leniency—oftentimes in the form of a lesser conviction or a more favorable sentence. It also serves a number of critical public policy goals, including conservation of judicial resources and finality in criminal proceedings…

Judge Garcia really likes to “emphasize”:

Under New York’s statutory scheme, a defendant may pursue various claims on appeal to directly or collaterally challenge a judgment of conviction…First, a defendant convicted at trial may bring a direct appeal to challenge the procedural fairness of the proceedings as well as the adequacy of the evidence presented…A convicted defendant may also move to vacate the judgment pursuant to CPL 440.10…New York’s existing framework already contemplates numerous and various relief mechanisms for a defendant who—despite having been convicted—maintains his or her innocence…The CPL’s exhaustive list of specified remedies…Even where these challenges fail, a defendant has further remedies still…

And look how ungrateful they are:

 …a “freestanding” claim would allow a defendant to bargain strategically, only to later attack the factual sufficiency of his or her plea. Having received the benefit of a lenient plea deal, a defendant should not be permitted to subsequently challenge that conviction on the ground that he or she is “innocent” of the charge of conviction…

So, of course:

Having struck a bargain with the People many months ago, defendant cannot now contest her guilt in a belated, jury-less, free-for-all mini-trial.

“Free for all”?  Rhetorical excess much, Judge Garcia?

Judge Garcia quotes the more or less infamous federal habeas case of Herrera v. Collins:

 “In any system of criminal justice, innocence’ or guilt’ must be determined in some sort of judicial proceeding”

But the quote is selective.  On the same page Herrera says this:

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

Judge Garcia leaves that part out.  Indeed his whole concurring opinion reads more like the rather shrill brief of a party than a judicial opinion.

Want more selectivity?  It is fundamentally and intellectually dishonest, as the majority opinion does, to cite Tollett v. Henderson for the proposition that:

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

without also citing the later case of Menna v. New York:

Neither Tollett v. Henderson, 411 U. S. 258 (1973), nor our earlier cases on which it relied, e. g., Brady v. United States, 397 U. S. 742 (1970), and McMann v. Richardson, 397 U. S. 759 (1970), stand for the proposition that counseled guilty pleas inevitably “waive” all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct. However, in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, 411 U. S., at 266. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore, does not bar the claim.

Emphasis supplied, as we say, but particularly importantly here to illustrate the further intellectual dishonesty of trying to lump Alford pleas in with other guilty pleas in this context, since an Alford plea by definition contains no admissions of factual guilt.

It would be fairer, and simpler, to say that the “central purpose of any system of criminal justice” is to free the innocent, because convicting the guilty is properly the responsibility of the executive branch.  It is implicit in this that its determinations of guilt or innocence must be accurate, and so it would also be fairer to say that “finality” doesn’t matter at all in a criminal justice system, but certainly not at the expense of accuracy.  In the civil justice system it does – res judicata, doncha know – but not in the criminal justice system, which has always permitted criminal convictions to be “collaterally” attacked, which would run afoul of the doctrine of res judicata if that doctrine applied.

Which obviously, therefore, doesn’t.

We think prosecutors should be disqualified from being judges.

Finally, the “pardon” thing.  We do not understand how the SCOTUS and now the New York Court of Appeals can claim that “traditionally”, pardons were the last resort for an innocent convicted person.  In fact, traditionally, the acceptance of a pardon has been deemed an admission of guilt along with the need for forgiveness and mercy, such that even those advocating for pardons on the ground of innocence have noted that the idea is paradoxical.

The innocent convicted do not need forgiveness and mercy from us.  We need forgiveness and mercy from them, for convicting them in the first place.

The dissent in Tiger has it right, we say:

“Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible”

How many criminal defendants have stood in the dock at sentencing being upbraided by the judge for not taking “personal responsibility”, yet a majority of our Court of Appeals judges are now joining the SCOTUS Justices in offering the opinion that the innocent convicted are the responsibility of the executive branch through the pardon power?  It’s a truly shameful abdication.

But at least Judge Wilson is a voice crying in the wilderness:

Today’s decision inexplicably and unnecessarily denies that mission, eschewing our obligation in favor of further legislative action or executive clemency. I will not.

There’s that, then.  But let’s face it, Judge Wilson was writing in dissent on a 5-2 decision.



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The Impeachment Of Trump

Just thought we might cut to the chase on the whole Trump-y thing.  Here’s the dynamic now that the House of Representatives has changed hands but the Senate has not:

The “Mueller probe”, which is not a spacecraft or an uncomfortable medical procedure but rather an anomalous creature of the deep state to officially punish – and more importantly to officially discredit – those it doesn’t like, will finish up with a published report that will variously, and hysterically, and with great media hue and cry, be characterized as “scathing”, “devastating”, and similar such.  And this will form the basis for “articles of impeachment” that originate in the Democrat controlled House and which, you know, at this point they pretty much have to do even if they don’t really want to and know that the Senate (still Republican) will not convict and remove at the trial.

Because, like we said, the discrediting part is actually more important than really punishing anyone, and we all get to say, along with the deep state swamp dwellers, that Trump has suffered the rare “disgrace” of a sitting president to have been “impeached”.

The whole otherwise pointless exercise, in other words, is just so the shrillness that has characterized DC since the beginning of the Trump insurgency can acquire some measure of legitimacy, at least in the minds of swamp dwellers.  Which is not much of a point in the first place, because they don’t need any persuading on that score.

Will anyone else be persuaded?  That’s the only interesting question here.

Our take?  Doubtful.  We don’t think this is just about Trump.

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Kavanaugh And “Sexual Assault”

A little rationality.  Seems out of place, but still.

The first step in any case is to figure out whether, assuming everything a claimant is alleging is true, it adds up to anything legally cognizable.  Not deciding that it is true.  Assuming it for purposes of analysis.

This, by the way, is something the vast majority of people seem to be incapable of.  Indeed there are times it seems to us we are the only ones, and that we would make a fine benevolent dictator.

But moving on.

In New York – and apparently Maryland also, where the 36 year old event is alleged to have occurred – there is a critical and delicate element of a sexual abuse or assault charge that no one has mentioned, so far as we can tell.  In fact it seems to have been left out of the conversation in a lot of similar contexts where it also might be a crucial determining factor, because we are instructed that we must look at the events from the victim’s point of view, whereas historically we have looked at things from the accused’s point of view.  Not that this instruction has much to recommend it, at least in the criminal context.  We just note it.

In any case, the critical and delicate element we are referring to is the accused’s purpose in whatever physical contact took place.  And that purpose has to be his own, or the other person’s, “sexual gratification”.  This is what we call the mens rea of the offense.

Now.  Let’s look at how high schoolers can sometimes behave.  Remember ever getting “pantsed” in high school?  Remember wedgies?  Remember anyone being “dared” to do this or that?

Which of these categories seems the better fit for Christine Blasey Ford’s allegations:  a “sexual assault” with the required mens rea; or boorish high school football player conduct falling in the latter category?

We think the latter is the better fit.  We admit the former is a possibility on the most expansive interpretation of the facts Ford alleges, but we do not believe in judging people guilty of criminal conduct or even charging them based on a possibility.

But let us consider something else, to address a concern that in the end is misplaced but nevertheless has some prima facie relevance:  could Ford have experienced the incident as a sexual assault?

And the answer to that is yes, certainly she could have.  And there would be nothing wrong with her feeling that way at all.  But her experiencing it as a sexual assault does not make it a sexual assault objectively based on the elements of a criminal offense.

It doesn’t add up to criminal assault simpliciter, either.  That requires an injury.

Here’s what it does add up to, at least in New York:  Harassment 2nd, which is a “violation”; that is, a non-criminal but public offense.

It also adds up to a civil assault, an intentional tort, because any unwanted, intentional touching of any kind is a civil assault.  That would apply to wedgies and “pantsing”, too, not that we’re recommending litigation over such things.  We’re just noting that such things could be litigated because they are legally cognizable.

And note that in the civil context, the focus shifts to the state of mind of the accuser, not the accused.  “Believe the victim” is perfectly appropriate in the civil context.

But people have no faith in litigating civil wrongs on their own behalf.  Seems they want the police, and through them and the criminal justice system the public, to validate their injury.  An FBI investigation, too?  That’s the “gold standard”.  We are not making this up.

Note well, please.  We performed our analysis based on the assumption that all of Ford’s allegations were true.  We do not say that they are true.  And we do not say that they are not true.  Like a court considering a case, we do not reach that question because we don’t have to reach it in order to resolve the dispute.  And we can resolve the dispute only one way:  based on the evidence, viewed in the light most favorable to the accuser, Judge Kavanaugh did not sexually assault Ms. Ford.  There is nothing for the FBI to investigate.

Throw in that this is something alleged to have happened about 36 years ago.  Throw in that we’re talking about minors at the time.

Conclusion:  someone – and probably many – in the chain of events whereby this became an embarrassing public spectacle has been extremely irresponsible.  If we are representing Ms. Ford our advice before this all blows up is:

“However traumatic you may have found this incident, it is fundamentally a civil matter and the time to do something about that is long past.  At this point bringing this accusation will bring nothing but grief to both you and the man you accuse, and your family and his, although of course the brouhaha may be of great value to political partisans.  But I advise you not to accept a ride on that tiger’s back.”

Politics ain’t beanbag, but there really should be limits.  Decency, at least.  We often don’t realize how far astray we’ve gone until long after the dust settles.  It’s unfortunate:


By the way, that’s the late Roy Cohn in some of the footage.  Cohn was notorious in many ways both good and bad, but he is noteworthy today more for his association with Donald Trump than his halcyon days with McCarthy’s HUAC




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An Open Letter To Barbara Underwood, Acting New York State Attorney General

So, you’re undertaking an investigation of sexual abuse in the Catholic Church?  Good for you.  See what you can dig up.  Our impression is that most of it is already out there, but who knows?  Pro tip:  we have it on good authority that going all the way back to Francis Cardinal Spellman might yield some much needed understanding of how “open secrets” came to be a Thing that shielded abusers and marginalized their victims for decades, since the 1930’s.  If you go there you might even outdo the Pennsylvania AG, in the depth and breadth and scope departments.

New York should always outdo Pennsylvania, we figure.

Plus, if you don’t outdo Pennsylvania, there’s a Johnny come lately, hopping the bandwagon feel to the whole thing.  We wouldn’t want that.  We wouldn’t want this much heralded investigation to seem, well, unserious.

But then we have another suggestion, of course.

We appreciate that the New York AG has jurisdiction to supervise in some respects charities and churches, although of course in the latter case there would appear to be 1st amendment concerns.  Or even without the 1st amendment. Do you know the story of Thomas Becket?  That kind of thing.

We will not tarry or digress, however.  Indeed, let us be blunt, and get right to the point. It’s our blog-letter, after all.

If sexual abuse tied to the abuse of power is an outrage worth investigating – and it is – then why be so selective?   There are other institutions, institutions that conveniently raise no 1st amendment concerns, that deserve a look.  Institutions like, say, police departments.

Oh, the stories we – and others – could tell.

Yet we have in mind a specific story.  Namely, the Mount Morris Police Department, circa 2004-2006.  Much more recent than most of the outrage you are likely to uncover in your Catholic Church investigation. So there’s that.

A little background.  We endeavor to avoid being cryptic.

Things were so bad that the department went through three chiefs in about 18 months. The consensus in the generally reliable rumor mill was that police officers in the department had a long standing practice of receiving sexual favors (often from underage girls) in exchange for not charging them with crimes. And whether those girls were actually guilty of any crimes was irrelevant: police could make up charges, and police were always believed.  Including of course then Mount Morris Police Officer William Rosica.  Who appears to have learned a lot in his time there.

All “official” proceedings related to these long standing and ongoing issues with the Mount Morris Police Department took place in “executive session” by the Village Board, however. Meaning everything that was really going on in the department was kept – yes – secret.  A few officers quietly moved to other departments.  Sound familiar?

Nevertheless, after all that a very courageous member of the Village Board sought to disband the department. That had to be approved by a referendum. Guess how that turned out, given that the real problems with the department were never disclosed, among other things?

Does our outraged attorney general’s office have anything to say about all this? And while we’re at it, how is it that so many elected public officials in New York become fodder for federal prosecutors, yet no one seems to ask: whither the Attorney General, the State’s “highest” law enforcement official?  Does the New York Attorney General have any responsibility to address malfeasance and criminal conduct by state and local officials or is this always the feds’ problem?

The AG gets all exercised over corruption only when there’s a politically agreeable angle, it seems. Investigating the Catholic Church is a politically safe play right now, but investigating corruption in police departments is never a safe play.  They have powerful unions.  And lobbies.  And clout.  And that’s putting it mildly.

The bottom line:  sexual abuse of the powerless by the powerful is the outrage du jour? Fine, let’s be even handed about it.  Let us, because we are responsible public officials with courage and integrity, investigate and if warranted by the evidence expose these monsters who have ruined lives by their perfidious acts, be they in the Catholic Church or in the Mount Morris Police Department.  And let the chips fall where they may.  Fiat justitia ruat coelum.

But let us – that is, us here at LoS – also be candid.  We have been around a while.  We do not believe that the New York Attorney General’s office has any integrity, or courage, or any genuine sense of responsibility, or any devotion to duty.  In fact we doubt that its current “investigation” of the Catholic Church is anything more than a cynical and highly political ploy to reap some undeserved benefit from the suffering of others because it happens at the moment to be generating some headlines that are easy to capitalize on: the political calculus is entirely different, of course, if the target is a police department.

No, we don’t believe that the New York Attorney General’s office cares about sexual abuse victims in the slightest, unless they can be the occasion for a plaudit fix.  We write this open letter now only because we harbor the exceedingly faint hope that in the wake of the astounding departure of the office’s most recent occupant there is, or at least could be – dare we even think it – a modicum of a sense of shame among those remaining. People who are, after all, lawyers.

Put another way: we are, as usual, disgusted.

Yet for that reason alone – because being regularly disgusted is decidedly unpleasant – we would be happy to be proven wrong. Do not doubt us on that point.

So we leave the matter with you, expecting nothing to come of our open letter, our plaintive pleas, our earnest importunings, other than the recklessly shallow and snobbish indifference to which we have grown so accustomed. Yet also prepared to be pleasantly surprised, even to render our assistance.

You see, unlike the New York Attorney General’s office, we are willing to move past cynicism. At least a little.

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