Category Archives: wrongful convictions

Plainly, outrageously unjust criminal convictions ignored or evaded by judges.

Death Threats. Harassment. Obsession. (Amanda Knox)(Updated)

So a British tabloid that has been fanning the flames of the frenzied mob for eight years now reports that the FBI is investigating some of its readers.  Pretending to be neutral at this late date, after years of smearing and base casuistry masquerading as ‘journalism’.

The FBI can investigate away, and contrary to the impression given by the article, not all the lunatics are in the UK; there are plenty of people in the US who are driven mad by high profile acquittals, especially when the beneficiary is a pretty young woman.

We suspect this will go on for quite some time.  Our standing recommendation to the exonerated is to live as obscurely and remotely as possible in a country other than the one that convicted you in the first place.  Of course this reasonably requires the exoneree to be independently wealthy.  And that is exactly what those responsible for the wrongful conviction are obligated to ensure:  that their victim be made independently wealthy.

Wealthy or not, the exoneree will live out a substantially diminished life.  There’s no fixing it.  But leaving an exoneree to fend for herself, defenseless, in a world in which so many want to see her suffering or dead is literally excruciating and utterly unconscionable.

If you let loose the dogs of war in error, there’s no going back.  Prosecutors should think hard about what they set in motion when they file charges.

Update:  Radley Balko points out that we’re very, very lousy at compensating those we have injured through major malfunctions of the criminal justice process.  That has to improve.

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The Sad Fate Of Amanda Knox (Updated)(x2)

How is it possible, in an age where human intelligence has produced wonder after wonder, to have a murder case where guilt is determined by the “reasoning” level of a moron?

I was reading an article recently about the legal profession and the appalling lack of quality in reasoning that prevails.  Often, court opinions are little more than screeds of heavy rheotric that ignore evidence that obviously – and often definitively – undercuts the desired result.  They are frequently comically disingenuous.  Or at least it would be comical is someone’s life didn’t hang in the balance.

So the “Nencini” report re-convicting Amanda Knox contains a discussion of 2 phone calls AK made to Meredith Kercher’s phone the day after her murder but before the body was discovered  that lasted only a few seconds.  Nencini then draws the inference that these phone calls were not genuine, that they were designed to deceive the investigators, that they were so short because Amanda Knox never expected Meredith Kercher to answer because Amanda Knox already knew Meredith Kercher was dead.  And the only reason she could know that was she had participated in the killing.  Let me quote here from the Nencini report as excerpted in a “guilter” blogger’s article:

“The telephone call made [by Knox] at 12:11:54 pm to the English service of the victim lasted 4 seconds. Perhaps not even the time to repeat the first ring.

Knox should have been affected by a certain anxiety in calling Kercher’s telephone services. Filomena Romanelli let the defendant’s telephone ring for 36 seconds the first time, and the second for a good 65 seconds; an insistence which appears normal. But that did not happen when Knox called… these are two calls that barely registered [and this] has only one plausible explanation:

There was no concern at all in the mind of Amanda Knox when she made the two calls to the young English woman, simply because she knew very well that Meredith Kercher could not have answered the calls; calls which had to be made because Filomena Romanelli insisted, but which the defendant knew were useless. Nobody would have been able to answer those calls; let alone poor Meredith Kercher whom the accused knew was lifeless, locked in her own bedroom.”

The problem is that there was a much longer phone call from Amanda Knox to Kercher’s phone earlier – at 12:07 PM – so long that Kercher’s phone – that had been tossed into some bushes and would otherwise have been lost – rang and rang until it was found.  And this phone call also occurred well after Kercher’s murder, but before the shorter calls.

To a sane and reasonably intelligent person, then, the earlier, longer phone call rules out making the incriminating inference from the later calls.  In other words, Nencini is either not sane or not intelligent.  Or, I suppose there is a third possibility:  he’s not honest.

So Amanda KNox’s fate at this point has rested with a man who is either crazy, or stupid, or corrupt and dishonest, and there’s no other alternative.

So appalling.

Update:  From CNN’s report this morning:

But the high-profile nature of the case and the controversial evidence prosecutors have built their argument on makes Knox’s extradition anything but certain.

“Controversial” evidence? That’s what stupid evidence and unfounded argument are to the media – as long as those are offered by police and prosecutors.  Judges aren’t the only apparently reason-challenged players in this drama.

Update 2:  After 9 PM in Italy and no word yet.  If this was a jury deliberating over here, might start thinking about whether they’re hung, but I don’t think that’s possible here.

Update 3:  An apparently unexpected acquittal.  Good on the Italians. Of course, if twitter traffic was any indication, there are millions who will never let go of it.  But for now, while the whole thing is still terribly sad, Amanda Knox and her former boyfriend can enjoy at least some peace.  And maybe Meredith Kercher’s survivors, too.

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Amanda Knox Redux (Updated)(x3)

It appears from press reports to be all but certain that Amanda Knox will come out of the Italian Justice system a convicted murderess.  It is at least equally certain that this is the wrong result.

The British tabloids have been braying for Knox all along for their own reasons, but I suppose it’s notable that the lowest of the low in British tabloids are still more than a cut above the Arizonan uncivilized mob frenzy surrounding Jodi Arias.

In the latest installment, in any case, the Daily Mail is spinning some kind of last minute filing by Rafaelle Sollecito (Knox’s former Italian boyfriend), also in the dock, as being a “brutal” act of distancing himself from his former lover to save his own skin.  That’s quite a dramatic characterization, but hardly seems to fit:  most of what they quote is pretty much what Sollecito has been saying all along.

The Mail article does not say, but as I recall Sollecito must be in prison back in Italy. That adds a level of pressure not present for Knox at the moment:  Knox fled at her first opportunity, and apparently will go back to an Italian prison only if extradited by the United States pursuant to treaty:

If convicted [that is the all-but-certainty we have been discussing – ed.], Knox could face immediate extradition proceedings and her supporters fear the worst.

One supporter told MailOnline they were prepared for what would be the ‘greatest miscarriage of justice’ that has ever happened to a US citizen.

Well, that last part would seem to be hyperbole.  There are worse injustices.  And very similar ones.  Mostly we do it to our own citizens.  Does that make it better, or worse?

Or does it matter at all?

Update:  Apparently all kinds of things can happen in the highest Italian court.  Meaning this could go on and on, even from here:
The high court judge at the hearing this week will either uphold the convictions definitively, or send the case back for another appeal, or potentially on to a different section of the high court.
I wouldn’t be at all surprised that they just kick the can down the road a little more.  Institutionally, the potential for embarrassment either way they go is so high it’s the easiest course.  For them.  Not for the people in the dock.
Update 2:  Maybe nothing until Friday now.  The Italians certainly know how to generate drama through their court system.
Update 3:  Is the delay to hear only from Sollecito’s lawyers,
but not AK’s?  That doesn’t sound good, but that’s what the BBC is reporting.

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Malevolence v. Incompetence

It’s this Brady-Mooney thing again.

It’s easy to see why prosecutors blur the distinction between the two.  It’s a lot more difficult to understand why the defense bar does:

Until prosecutors are held personally accountable for concealing Brady, nothing will change. And that won’t happen as long as they’re immune from liability for their incompetence or malevolence.

“Malevolence” – that is, the intentional suppression of evidence tending to show a Defendant innocent by a prosecutor – has been a clear due process violation since 1935.  Because Mooney.  “Incompetence” – that is, prosecutors not knowing the evidence they have, or not realizing its exculpatory nature, and failing to disclose it – is sometimes a due process violation, and sometimes not, since 1963.  Because Brady.

The point being that this distinction is pretty important, not to mention settled law although it seems many who should know that, don’t.

Some time ago I wondered – worried, really – about the criminal defense bar being as unaware of this distinction as the organized prosecutor’s groups have intended for the last, oh, 30 years.  I further worried that the criminal defense bar might even be hostile to the idea of recovering this distinction.

Given the above quote, Greenfield is either unaware of the distinction, or hostile to it.  Neither is a good sign, inasmuch as SHG is nothing if not a representative sample of one highly regarded portion of the criminal defense bar.

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The NYPD Back Turning Backfire

You should read this article in full.  This situation is turning pretty ugly.

The subject of discussion is the police protest of the New York mayor by turning their backs on him as he gives a speech at the funerals of recently slain officers, and a directive from the police commissioner to the rank and file officers calling for this conduct to cease.  An officer who spoke on condition of anonymity:

“I did that because I feel Mayor de Blasio does not like cops, and I would never do anything to disrespect another cop or his family…“

“He cares about his boss more than the 35,000 cops he’s in charge of,” the cop complained.”

Then again, Sergeant’s Benevolent Association President Ed Mullins isn’t shy:

“If you’re the mayor and you have to direct the commissioner to respect you, it’s a total embarrassment for the office,” he said. “Are they going to order cops to go have dinner with him next?”

Then you have NYPD Captain’s Endowment Association President Richter*:

“We must work to honor Police Officer Wenjian Liu’s sacrifice at future services,” he said in a statement. “In this forum the appropriate protest is not a sign or turning away from mourners, or people the family has asked to speak, but rather cold, steely silence.”

So, the range of opinion among the New York police apparently goes from: a) protesting the mayor by turning your back; or b) protesting the mayor through “cold, steely silence”.  Because the mayor “doesn’t like cops”, which is pretty much a ludicrous assertion when you think about it.  It’s completely unnatural for a mayor not to like cops that are, after all, one of his most important political constituencies.  Liking cops is part of the mayor’s informal job description.

So, the real complaint could not be, and is not, that the mayor doesn’t like cops, but rather that he must not “like” cops enough.  How much is “enough”?  Apparently a whole lot.  Apparently it’s a very tough job to like cops as much as cops think you ought to like them when you are the mayor.  It may be an unattainable kind of like.  As in, a kind of worship.

I mean, I like cops.  I don’t worship them.

At this point, it’s hard to read this episode any other way than this:  the police commissioner and the mayor are seen as being insufficiently servile to collective police power and influence, and so the police collectively throw a hissy fit on the occasions of the funerals of of recently slain officers, using their deaths as an occasion to make a show of force against the mayor and commissioner.

And they are so convinced of their invincibility in all this.  It never seems to enter their mind that they are overplaying their hand, that they are coming to resemble spoiled children stamping their feet and holding their breath until they get their way.  They have gotten away with that too much to worry about it, and they are as yet unaware of the sea change that’s underway in much of the country.

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* What, do these guys have a separate “association” for every rank?

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Fabricating Ferguson

Sometimes, cops and/or prosecutors fabricate evidence.  And I’m glad they do.  Simple, out and out lying can be very difficult or even impossible to expose, but when amateur fiction writers – and that’s what cops and prosecutors are when they fabricate evidence – make things up they are liable to screw up, revealing themselves as evidence fabricators and, you know, bad fiction writers.

Like say I’m writing a novel today but set in the 1920’s and I have a scene where some characters are having a conversation and one of the characters mentions the Japanese attack on Pearl Harbor, or the Kennedy assassination.

Oops.

So apparently this “diary” mysteriously appeared and was used in the Ferguson Grand Jury presentation, from some unidentified witness (#40), describing the relevant events consistently with an account that would exonerate the police officer.  I came across this story courtesy of the brilliant Andrew Roth and can’t improve upon what he has already set forth here.  And you need to follow the links.  Because this story should really get around.

Bottom line is that this “diary” is an obvious fabrication – because preposterous – and let’s hope Charles Pierce, Esquire’s politics blogger, connects the dots more fully and we get answers from the Ferguson DA about using that evidence, which he knew was false, before a Grand Jury.

Now, I know this is hard for a lot of people to swallow, the idea that someone has had to confront not just inaccurate evidence, but wholly made up evidence, and wholly made up evidence by the government at that.  For most people this is unthinkable, unspeakable, and highly disturbing, not least because this could happen to them.  Obviously.

This reluctance – this denial – can lead to bizarre results, where people become, let’s face it, functionally stupid.  The prosecutor here should have a lot to explain along the “what-did-he-know-and-when-did-he-know-it” lines, and if he can’t that might just be the end of his “career” as a prosecutor, and frankly there might be no good explanation because he’s either complicit in the dishonesty or…stupid.

Yes, he should have a lot of explaining to do.  Operative word is “should”.

But will anyone in the mainstream press, as opposed to just a few bloggers, pick up on this story and run with it, generating the pressure that will force him to have to explain?  I guess we’ll see, but believe it or not there’s a good chance the mainstream press won’t, and that nothing will come of this smoking gun type evidence other than Pierce and Roth and me blogging about it.

After all, nothing has come of the Ashley Baker statement, which surfaced in September of 2006:

053

And a lot of intelligent people seem to have trouble seeing that the story told in that statement is obviously preposterous and therefore a fabrication by whoever generated it, and we know who generated it, and who used it (or, properly speaking its derivatives) before a Grand Jury, and this wasn’t done to exonerate someone but rather to indict and ultimately imprison someone.

Need more?

055

I’m going to let readers put two and two together there rather than walk them through all that.  For anyone even remotely paying attention, there should be at minimum a horrible fascination about it all.  For anyone new to these pages, background can be found here.

Of course, to say that it is frustrating when, after all the lying and cheating you can’t prove screws things up for some poor bastard – because, you know, you couldn’t prove it – it then turns out not to even matter when you absolutely positively have proven it beyond a shadow of a doubt – well, to call that ‘frustrating’ doesn’t seem to quite capture it, does it?

So I hope this time it matters, and that a prosecutor who deliberately presented false evidence to a Grand Jury to get the result he wanted – mocking them and the whole system, including me – is punished for doing that. Or something.

Just remember, there is a school of thought among prosecutors that it’s okay to deliberately present perjury and/or fabricated evidence to a Grand Jury. Or was some such school of thought.  Maybe the Department of Justice has changed its mind, since they have removed the Grand Jury training manual that used to teach this from their official web page (used to be right here; now as you can see, you just get a blank page).

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Wrong

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

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

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

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

Why?  What’s wrong?

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

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

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

 

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

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

 

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

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

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

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

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

A crumb, a morsel.

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

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

Why do I say that?

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

Innocence does not matter.

Our job is only to defend.

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

There is no such thing as justice, or truth.

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

 

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

 

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

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

It’s a big and important question, methinks.

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

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