Category Archives: Uncategorized

Open Letter To Don McClean

Last verse of the immortal “American Pie”:

I met a girl who sang the blues

And I asked her for some happy news

But she just smiled and turned away

And I went down to the sacred store

where I’d heard the music, years before

But the man there

said the music

wouldn’t play

And in the streets the children screamed

the lovers cried and the poets dreamed

But not a word was spoken

the church bells all were broken

And the three men I admire most

the Father, Son and the Holy Ghost

They caught the last train for the coast.

The day

the music died.

Question: is this referring to the suppression of the traditional latin mass?

It’s hard for us to imagine it could be referring to anything else.

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To Be Clear…

Because sometimes we fall short of that here at LoS, as we maybe just did.

Our position is that the cops, including Derek Chauvin, are bearing the brunt of the consequences of what are really our – that is, the legal profession’s and judiciary’s – failures. And it bothers us that we and our colleagues are getting a pass while the cops are taking all the heat. If the cops are monsters, in other words, we are Dr. Frankenstein.

Moreover, the likelihood is that unlike 99.9% of criminal defendants, Chauvin will have his convictions reversed on appeal after everyone has stopped paying attention. Because he’s a cop. And this is not even cynicism. The system cannot help it. It has no other narrative to fall back on.

The only silver lining in all this is that finally, the shoe is being placed on the other foot. Everyone feels good about that. They shouldn’t.

What’s really needed are new shoes. And we are a long way from realizing that, much less doing anything about it.

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Sizzling SCOTUS

It’s a misnomer, of course. The SCOTUS doesn’t sizzle.

We mean it only to suggest that the last week has seen a certain SCOTUS bent towards what might be termed trendy issues.

We’re not sure how “trendy” is defined here. But let’s take a look at two examples and see how it pans out in context.

The first is the NCAA anti-trust argument that took place Tuesday. We’re of the opinion that if you applied the anti-trust law to the practices of the NCAA and their member schools those practices would certainly violate the anti-trust laws. The claim on the other side, as we understand it, is that the anti-trust laws do not apply because the NCAA operates an amateur (not-for-profit) rather than a professional sports league.

NCAA schools and their sports programs, such as Notre Dame football, generate a huge amount of popular interest and, it should be noted, revenue. There are arguments that because of the educational nature of the institutions involved that they should retain, and perhaps more importantly be seen as retaining the characteristics of amateurism. The other side looks at the sheer amount revenue involved and, echoing our new national leader, collectively complains “C’Mon, Man!”

But as you might imagine, we here at LoS have a slightly different approach: who cares? We like college and professional football as much as the next guy. But we wonder: why does SCOTUS take up a case about something as frivolous as a game? We have perhaps as a country gone stark raving mad in the importance we attach to these fundamentally unimportant endeavors, but does our SCOTUS have to follow suit and devote “scarce judicial resources” to sorting out this particular question?

Here’s an irony about our position, though. We’re trying to co-opt the snobbery appeal with that argument. The NCAA also makes the snobbery appeal with their application to be heard, which was granted and we think should never have been granted. From their petition for certiorari:

At issue in this case is whether the nationwide
rules that define who is eligible to participate in NCAA
sports will henceforth be set by the NCAA or by one
federal judge in California, assisted by the imagination
of plaintiffs’ lawyers…..

Anytime you see a reference to “plaintiffs’ lawyers” in SCOTUS filings it is an appeal to the snobbery of the Justices and their law clerks. As with so many things, we’ve talked about this before. This kind of snobbery is not so much class snobbery as it is professional snobbery. Plaintiffs’ lawyers went to lesser law schools and had lesser academic “success” and to the SCOTUS inhabitants it is a constant imperative to preserve and advance the transcendent importance of this distinction between lawyers.

We, on the other hand, are trying pointing out that with the NCAA case the SCOTUS is wasting its time on a low brow and frivolous pastime. That’s an appeal to snobbery, too. But we suspect SCOTUS Justices and their law clerks are not snobs in that way.

The other example is the cyber bullying case. Look at all the amicus briefs!

One important observation on this one: school administrators don’t have enough to do if they’re litigating this all they way to the SCOTUS, not to mention all the effort put in to amici.

A number of things are in play here. School districts are government, and government is a favored litigant, especially at the SCOTUS, for reasons that are both understandable and objectionable. Understandable because government interest is probably a reliable indicator of wide interest, in theory. Objectionable because in practice government interest is often driven by the most fervent, not the most rational.

Then there is the computer and internet-related, social media angle. SCOTUS Justices are for the most part technological luddites, but their law clerks are not. The Justices are probably over-impressed with the importance of cyber anything, but it’s a Thing.

What do these two examples tell us then, about how trendiness matters at the SCOTUS? Next post.

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Certiorari Granted

And, as usual, we don’t really understand why.

It’s a death penalty case. But so what?

It’s a case we’ve offered our opinion on before. But so what?

Is the SCOTUS really going to reach down to the District Court and decide that Dzhokhar Tsarnaev gets the needle?

We hope not.

Why does the SCOTUS take any death penalty cases? They’re so rare they’re all one-offs, really. What are the “of general importance” questions raised by the Tsarnaev petition?

Whether the court of appeals erred in concluding
that respondent’s capital sentences must be vacated on
the ground that the district court, during its 21-day voir
dire, did not ask each prospective juror for a specific
accounting of the pretrial media coverage that he or she
had read, heard, or seen about respondent’s case.

Whether the district court committed reversible
error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was
allegedly involved in different crimes two years before
the offenses for which respondent was convicted?

Certainly doesn’t seem to us to have much general importance, but the government disagrees:

This is no ordinary capital case. It is a prosecution
for terrorism, involving horrific crimes that struck at
the entire Nation

Of course, we took the position that this was really a much more domestically oriented case about a very dysfunctional family and brain damage.

Not that what we think matters, of course.

The federal government is the Petitioner here, seeking to reinstate the DP. We suppose that has a lot to do with why the SCOTUS has decided to hear the case. The government is a favored litigant, and is always likely to be heard by the SCOTUS when it asks to be.

But there’s an anomaly in all this. People who call themselves “liberals” should be asking why the Biden administration did not abandon this Petition. Biden opposes the death penalty on principle, right?

Perhaps we should never use any politician’s name in the same sentence as “on principle”, though.

Ugh.

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Rush Limbaugh, RIP

Sic transit gloria mundi.

He was quite the presence in the national conversation for many years. We became aware of him early on, in 1990, when he was just achieving celebrity status. He was the talk of the Hall of Justice in Rochester. Among the conservative people, that is.

Beyond that, we can relate a story about Rush based on personal knowledge. In 1990 we were very, very conservative ourselves, and had the poor sense to run for Congress. Unsuccessfully, of course. But we did bring about what seems in retrospect a very noteworthy event: a fundraising dinner that featured retired LTCOL Oliver North and none other than the Rushbo himself. At the same time. I believe the date was September 12th, 1990.

How did this happen? Well, we became big fans of Col. North during the Iran-Contra congressional hearings. They were quite the thing back in 1987 and we were in law school. When, three years later, we were back in Rochester we were invited to run for Congress and received the endorsements of the Republican, Conservative and Right-to-Life parties.

Col. North by that time was a big draw on the speaking circuit out of DC, so we called him to request his support. We were asked our positions on two issues: abortion and the Strategic Defense Initiative (SDI). Apparently pleased with our responses, Col. North agreed to lend his support and come to Rochester for a fundraising dinner and the game was on.

Subsequently, around the time the dinner was scheduled, LTCOL North was a guest on the Rush Limbaugh show, which we did have a chance to listen to often because we were in the car a lot in the afternoons with the radio on. Campaigning, doncha know. So we called down to WABC in New York (we think it was WABC) and talked to an assistant, Kit Carson, explaining that Rush might want to join the man he had just had on his show as a guest and take a puddle jumper-commuter flight up to Rochester.

Well, at first our suggestion was not well received. But we thought: “How cool would it be to get Oliver North and Rush Limbaugh at the same campaign event!” We were determined. We went ahead and purchased a plane ticket for Limbaugh for the date in question, called back to WABC/Kit Carson and said we had done so in case Mr. Limbaugh changed his mind. We were briefly put on hold, and then the famous voice came on and said: “John, this is Rush Limbaugh.”, as if that needed to be said under the circumstances.

In any event, Rush indicated he’d come up on his own dime, he had other things to do in smugtown (nickname for ROC).

He was very gracious, and a bit nervous about appearing before a large, live crowd, something we imagine he got over as time went on and he became more and more famous.

So that’s our own special little Rush Limbaugh memory. If you doubt us, the local newspaper gave the whole thing a brief mention in its story on the death of Rush Limbaugh.

Overall he was a very nice man. At least that was our experience of him. And we hope one day to see him again in that other fabled place we all long to be at the end of our own lives.

Requiem aeternam dona eis Domine, et lux perpetua luceat eis. Amen.

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Rationalizing The Status Quo

In political science world, that is the most important job the courts have: to signal to the rabble that despite their own travails, all is well. This is thought to foster social stability. Social stability is the most important political value.

The truth, of course, is the opposite, as it so often is when the axioms of political science are analyzed. The courts are there to scrutinize the status quo, not to rationalize it.

In disordered poli-sci world, accordingly, the rabble are made to lose in court, time after time, but are given the impression that there is some neutral reason for them losing when there isn’t. The reason they lose in disordered poli-sci world is that they are the rabble and the rabble will always lose because otherwise the status quo is seen to be disturbed and the status quo must be preserved because that is social stability. Whereas the reality is that neutral rules should be followed whereby the rabble will lose only when they should lose and otherwise they will win, and because this is in accordance with the truth and with justice social stability will actually result as a by-product, as opposed to the phony social stability of poli-sci world which is always in danger of unraveling.

Sometimes the SCOTUS is bewilderingly poli-sci-ish. Today we wonder how, with the few cases it takes up during its terms, one of them winds up being this one. Goldman Sachs thinks it is important, so it must be? Is that the criterion?

This is in fact an important case, though not for the reasons Goldman Sachs says, nor the reasons legal punditry provides. It’s important precisely because, and only because, the SCOTUS took it up. It’s revealing about the SCOTUS and our other courts as well.

What is the issue the SCOTUS felt so strongly that it had to decide? Whether shareholders of publicly traded companies can bring what is called a “dervative” class action against the companies for lying to them when they can’t show that the lies affected the share price? Goldman Sachs thinks that without such a showing, the “class” should never be “certified”, a prerequisite to the “class action” moving forward to further adjudication.

So let’s get this straight. We already have the abusive, kick-the-rabble-out-of-court summary judgment rules that have been around since the 1980’s and the Celotex “trilogy”. But since Celotex apparently didn’t go far enough and allowed too much leeway to the rabble to to advance their claims in federal courts we piled on with 2009’s Iqbal and Twombly (Jones Day declares them a “welcome” development!), justifying even earlier dismissals of rabble initiated litigation – at the pleading stage, essentially overturning decades of law holding that a pleading should be a “short and plain statement” showing a right to relief.

You should see complaints in federal courts these days. They routinely run to 50 pages or more. And of course because it is the sentiment behind Iqbal and Twombly rather than the details which govern outcomes, even these lengthy complaints are most often dismissed early on.

And now, apparently even Iqbal and Twombly – piled on top of Celotex – are not enough. The rabble might combine forces and press a “class action” that seems to give their piddling little gripes some weight because there are so many of them, when really that’s the whole problem with the rabble – that there are so many of them. And so to make sure their class action complaints have merit, because unlike the government or institutional litigants like Goldman Sachs the rabble’s complaints are generally meritless, we’ve provided another hurdle, that being the “class certification” process, and that provides another opportunity to kick the rabble out of court while seeming to have a rule that’s based on something other than contempt for the rabble.

Rationalizing the status quo, in other words.

You have to admire the audacity: we lied, but they can’t show that our lies actually hurt them financially, so their class should not be certified. This is directly analogous to how the government employs the Brady “materiality” requirement or the “harmless error” fiction in criminal cases to preserve convictions on appeal or in collateral proceedings challenging them.

It’s an institutional habit. The status quo has been good to the institution and its designated members, so why change it? Note we say “designated” members. Shareholders are members, too. But they are not designated like directors or CEO’s are.

Cases like this are little noticed in media land. But they matter. The Celotex trilogy mattered, Iqbal and Twombly mattered and Goldman Sachs will matter, too. Unfortunately, not in a Good Way.

Here’s a thesis: one reason Trumpian populism caught on so much is that the rabble have no realistic chance of redress in the courts when they have been wronged. For forty years or more the primary focus of the SCOTUS has been to close off court remedies to the rabble as much as they can without the snobbery involved being too obvious. We’ve described thisand lamented this – before, in other contexts.

Then we get Trump.

Then the SCOTUS doubles down in one of the last cases it takes up in the excruciating year of 2020.

A tone deaf and decadent courtier class is a prelude to revolution, is it not?

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Business As Usual

So maybe we’re going to get a new POTUS, although “new” might be a bit of a misnomer considering that the change would result in the inauguration of a 77 year old.

Never mind.

The SCOTUS has been busy and has a new Justice. Meanwhile, they are doing what they have so often done in the last two decades: applying their own rules selectively, and against the most powerless and disfavored litigants of all – state prisoners seeking federal habeas relief.

From Jon Elwood’s “Relist Watch” we note the case of Shinn v. Kayer. Some poor schmuck who is not even on death row was actually granted federal habeas relief out of the 9th circuit, and when that happens the SCOTUS takes a close look for some reason, looking to summarily reverse, in a fit of “error correction” that is not their role by their own calculus.

We suppose the point is that the approach to federal habeas relief, outside the death penalty context, should be one of unremitting hostility and that such relief should effectively never be granted. This is because of comity and federalism and finality, supposedly. But we don’t care about any of those in other contexts. Well, maybe finality.

It is terribly unseemly, this zeal at the SCOTUS to crush the weak, disregarding settled rules that are almost never otherwise disregarded in order to do so.

Interesting to note that the sole amicus brief filed so far (on behalf of the state, of course) cites a 2015 law review article by the late 9th circuit Judge Stephen Reinhardt, as if to underscore the really, really important consideration here: squelching any judicial solicitude whatever for dirty, no-good criminals, apparently a terminal judicial defect from which Judge Reinhardt suffered during his time here on earth.

Ugh.

At least the SCOTUS has its limits, though. They won’t sign off on an admitted 8th amendment violation that consisted of confining an inmate in a feces filled cell for hours and hours. Leaving open the possibility that some lesser period would be okay!

Ugh. Again.

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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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SCOTUS Watch! (Updated)

The SCOTUS decides every case that is argued and submitted before the end of the term.  The end of the term is the end of this month.

They’ve got a lot of work to do:

We’re especially interested in two outcomes:  this case and this case.  But we’re not going to go on and on about it.  At least, not this morning.

Update: Justice Ginsburg gives a few hints.

 

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SCOTUS Potpourri

It’s amusing, this “sovereignty” stuff with states and whatnot.

So on Monday you have the SCOTUS overruling its previous decision that the constitution did not require one state’s courts to grant sovereign immunity to another state.  Now we know that the constitution does so require.

That was the only question.  Not, dear reader, whether it’s a good idea for one state to extend sovereign immunity to another, which it usually does as a matter of comity; but rather, whether the constitution requires a state to do that.

One thing that makes this so amusing is the incoherence of it all.  44 states joined in an amicus brief that waxed poetic about the various blessings of the sovereignty of the states, the “insult to sovereign dignity” when one state is “haled” into another state’s courts, and so on (see the summary of the argument, p. 2).

As a practical matter, having 44 states on one side of the question is a strong argument that you might as well go along with them.  That’s only 6 states that haven’t weighed in.  That’s almost 90% of the litigants with the most at stake.

On the other hand, what they’re actually asking for is a limitation on state sovereignty.  Whereas before every state had the power to grant or not grant immunity to another state in its courts, now that attribute of sovereignty has been denied them:  they gave it up when they joined to union, we guess.

Why didn’t the states bribe lobby Congress for legislation under the commerce clause to address their complaints, rather than seek a constitutional ruling from the SCOTUS limiting their own sovereignty even as they pretended to assert it?  Cheaper, we suppose.

In any case, no one on the SCOTUS got that point.  Another reason SCOTUS Justices should probably be consulting us before making their rulings.

We jest, of course.

What really animates the decision, it seems, is the reflexive hostility to the little people we have occasionally noted.  “States all too frequently find themselves the target of private-plaintiff lawsuits filed in the courts of other States.”  That’s the real sales pitch the 44 states make in their amicus brief.  That’s the actual hook the 5 Justices in the majority bit on.

Those grubby “private-plaintiff lawsuits”.  Nobody likes them, right?

So what is the significance otherwise?  The talking heads focus on the last line of the dissenting opinion, Justice Breyer’s musing about the sanctity of precedent.  He’s anticipating a run at Roe v. Wade, or at least this is what the talking heads think he’s doing.  It’s certainly what the talking heads are doing.

To the talking heads, the only SCOTUS thing that really matters is Roe v. Wade.  Defensiveness is always revealing, no?

In any event, we can see the point.  After Hyatt, the 5 in the majority go on a state sovereignty binge and overturn Roe on that basis.  Maybe other cases in the same vein, too, like the gay marriage case (Obergefell).  Let the states work it out on their own, these contentious things like abortion and gay marriage.  Like they were already doing before Roe.  Like they were already doing before Obergefell.

Could that get interesting?  Certainly.  It’s about time we had a little fun around here.

Alabama goes one way and New York goes the other.  Let them have their way.  See who prospers and who doesn’t.

Sometimes the cases the SCOTUS decides are really about something else.  Actually, a lot of times, it seems.

 

 

 

 

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A Win For Diane Russell….

In New York’s Court of Appeals.

We go back a long way with Diane.  A very long way.  She deserves a lot of kudos for this one.  It’s part of a large body of very, very good work.

The only sad part is that Diane’s win comes at the expense of Judge John DeMarco, who is one of the most thoughtful, independent and fair minded judges on the bench around Monroe County, New York.

Thoughtfulness and independence are dangerous qualities for judges.  And rare ones.

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Amanda Knox News…

Apparently she’s returning to Italy for a visit at the invitation of the Italian Innocence Project to address the “role of the media” in “judicial error”.

Good for her.  Of course there will be plenty of hecklers.

 

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Homestead Amendment – Just The Text

HOMESTEAD AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

Neither the United States nor any State shall tax residential real property, or permit the encumbrance of residential real property by reason of any debt. Neither the United States nor any State shall evict any person from their principal residence for non-payment of rent.

 

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Homestead Amendment

This is, you know, the “outside the box” category.

Some time ago – quite a lot of time, actually – we decided to float the idea of a “jubilee” constitutional amendment.  We felt there was no end game to the debt trap our country and indeed the world was in.  We liked a gold standard for sound money.  We objected to central banks, and the basically socialist-collectivist, yet oddly oligarchical political regime they fostered.

There were many drawbacks, however.  One was intrinsic:  it took a lot of verbiage to get the idea out.  It would have been the longest constitutional amendment ever.  That is not good, because (for example) each additional word is fuel for judicial mischief undermining the whole thing.

Another was extrinsic.  People who felt they had lived a virtuous life and had been financially responsible and paid their debts objected, often emphatically, to the idea of an across the board debt forgiveness for those who have been less responsible and virtuous.  This one is, we think, close to insurmountable.  The objection does not withstand even a modicum of sober and logical reflection but it has a stubborn, if irrational, political power.

Stubborn and irrational political power, it should go without saying, is the worst possible way to be governed.  It’s a synonym for tyranny.

But let us move on.  We think that by scaling back our ambition regarding what, precisely, we might accomplish with a constitutional amendment we can effectively address the intrinsic problem.  We have another idea, in other words.  And more specifically, in far fewer words.  This amendment would not accomplish nearly so much as the jubilee amendment but it would accomplish something very significant – far more than, say, what a lot of people seem to believe a Trump administration ever would.  Or could.

The goal here is to secure the places people reside – that is, their actual real estate and dwelling, their “homes” – so that they can never be involuntarily taken away.  This is a profound change from the regime we currently live under, where the security of one’s home is always in doubt.  We consider that current regime – how shall we put this – extremely unhealthy.  Morally, politically, socially, personally, emotionally and rationally.  We submit that “natural reason” – our preferred method for viewing and interacting with the world around us – regards the “home” primarily as a stable and secure place for people to live, and that a political regime that undermines this principle of natural reason is fundamentally dysfunctional and induces cognitive dissonance among the rulers and populace alike.

So undoing that dysfunction would be no small thing.

We set forth the text of the amendment below, all two sentences.  We invite commentary from interested readers.  All three of them.  We especially appreciate commentary directed to a) whether the reader thinks the amendment will accomplish the goal set forth; b) any significant problems the amendment has; and c) any objections to the goal along with any alternative goals the reader believes would be more suitable.

HOMESTEAD AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

Neither the United States nor any State shall tax residential real property, or permit the encumbrance of residential real property by reason of any debt. Neither the United States nor any State shall evict any person from their principal residence for non-payment of rent.

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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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