Making A Murderer

We spent the weekend convalescing after long needed and much put off dental surgery on Friday.  Of course, there is only one thing to do under such circumstances:  binge-watch some series on Netflix.

The reality show du jour (with the same title as this post) that has captured the public’s imagination is about a guy, Steven Avery, who was wrongfully convicted of a sexual assault in 1985, spent 18 years in prison, and then two years after his exoneration and release was charged with the murder of a young woman.  His real defense to the second charge was that police had framed him, but due to various rulings by the trial judge his lawyers could only hint at that, not argue it.

We’re going to make just a few observations, probably over-informed by our own experiences, and assuming at this point without deciding that Mr. Avery was not only wrongly convicted the first time, but also railroaded and framed the second time, for whatever value readers might find in them, taking all that into account.

First, someone should have told Mr. Avery that the life he knew before his wrongful conviction and 18 years of imprisonment was long gone, and that under no circumstances should he return to live in the same place that wrongfully convicted him.  That he did so was beyond foolish, but apparently he is quite intelligence challenged with a borderline IQ and little education.

The reason for this is that law enforcement as a group, despite some manifest virtues under many circumstances, also have a terrible and often frightening recalcitrance once someone has been written out of their book of life, so to speak.  Trying to right that, if it has been wrongly done, degenerates into a naked power struggle on their part, where police as a group are impervious to evidence or reason and are capable of almost anything.  This is an extremely disturbing and dangerous state of affairs, and the institutional memory – and vindictiveness – is essentially limitless and perpetual.

We have said this many times:  exonerees should probably leave the country and live as obscurely as possible.

Second, when the police frame you a trial, even a jury trial, is no remedy.  Criminal charges are brought by government actors and at a trial they are conclusively presumed to be brought in good faith, as a practical matter.  If they are brought in bad faith, that’s an issue for a collateral procedure.  We could say quite a bit more about that but won’t right now.

As it happened, Mr. Avery’s lawyers went to trial, got hamstrung by judicial rulings and lost.  We’re not blaming them.  Indeed, in one scene in open court they were rather pointedly threatened:  a character sitting at the prosecutor’s table offered his view that if they pursued the theory that police had acted dishonestly and planted evidence, they did so “…at their own peril.”

We think if there’s evidence that the government is acting in bad faith, that has to be sorted out before we put their potential target on trial.  We believe that this is actually the law already, implicitly.  We harbor a probably irrational hope that it will soon be the law explicitly.

Third, the furthest Mr. Avery’s lawyers were willing to go was suspecting that this young woman disappeared and turned up dead, and law enforcement capitalized on the “fortuitous” incident to construct a phony case against their client.  But a far more sinister possibility exists.  It is implied as soon as you start going down the “frame-up” rabbit hole:  was this homicide a coincidence that law enforcement capitalized upon, or was it a homicide that they had a hand in arranging in the first place?  You can’t ignore that because the jury won’t.  Somebody killed the young woman and somebody has to be identified as the culprit.  “Common sense” defaults to whomever is officially accused.

Then again, offering evidence at your own trial that someone else is guilty is highly problematic, although it shouldn’t be.  We restrict a defendant’s ability to accuse someone else because it works too often, making acquittals easy and convictions difficult, the reverse of the current situation.

No one wants to believe that law enforcement as a group are guilty – or even capable – of what they must have done if Steven Avery is innocent.  And that includes us.  But what we want to believe or disbelieve is not the question.  Here is real “peril”:  when we decide that what we want is more important than the truth and we lie and cheat and obfuscate and even do violence to prevail.

It is the peril of zealous advocacy, and it is far more dangerous when practiced by the government.


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“Original” SCOTUS habeas case

Little known and seldom invoked:  the Supreme Court can hear an initial petition for habeas corpus, not just review what another court has done on appeal.

They haven’t granted one since 1925, 90 years ago.  But it looks like they’re going to grant this one.


In the first place, the government is largely in agreement with the Petitioner, disagreeing only that the SCOTUS’ very strict criteria for granting an “original” habeas corpus petition have been met.  Put another way, the government’s “opposition” is halfhearted, and being the most favored litigant this will surely not go unnoticed.

Second, there’s this rather good argument being made by amicus law professors that if they don’t finally grant one where it appears there is no alternative, the whole AEDPA might come under legitimate constitutional attack.  Most SCOTUS Justices love the AEDPA.

And lastly, what’s the harm?  The government agrees that the Petitioner should be released, just thinks there’s no mechanism for him to obtain his release as a matter of right.

Hmmm.  That last one could be problematic.

In any case, a very interesting development for those of us who follow federal habeas corpus law.

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This is an exceptionally good question:  why the long media silence regarding this fairly sensational series of crimes?

The featured correspondent from MSNBC thinks it’s about race.  And that might be partly true, but the better answer is that the media are extremely reluctant to report crimes by cops, the preferred narrative being that cops are heroes.  Which they sometimes are, of course, but that’s beside the point.

Facts are facts, and stubborn things.  They should give rise to narratives, and not the other way around.  Intellectually, we can all understand that cops can be criminals like anyone else.  Viscerally, this is an extremely problematic proposition, because in our minds cops are the protectors from criminals.

The cop-as-criminal narrative, in other words, causes the lizard brain to recoil and hide from facts that threaten to undermine people’s sense of safety.  Unlike news stories that positively engage the lizard brain and sell newspapers, the cop-as-criminal narrative will cause people to avoid the news outlets that are its source.  The media don’t report such stories because they don’t sell.

The most disturbing thing about the Holtzclaw case is not the media’s failure, however, because that is happening all the time to many others, and I know worse stories.  No, the most disturbing thing is how aware Holtzclaw was about his advantages in credibility; and he maximized that by picking vulnerable victims who would almost certainly lose a swearing contest with a cop.

There’s nothing more dangerous than a bad cop.


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We can see why it might be proper, even laudatory, for a lawyer representing a private individual or company to write a book or give interviews – with the client’s permission, of course – about a case, or the client’s story, or whatever.  But for a prosecutor to do that?  Strikes us as trading on their public position for personal gain.

Apparently today’s prosecutors see nothing wrong with it, though, so now we  give you bull dog prosecutor Juan Martinez, writing all about his glorious triumph in the Jodi Arias fiasco:

A juror in the Jodi Arias murder trial fell head-over-heels in love with the convicted killer during the proceedings, according to a new book by one of the prosecutors in the sensational case.

Indeed, a sensational allegation in a sensational case.  One little caveat, though:  the ‘evidence’ supporting this allegation is, well, laughable:

“I’ve never seen this book, but just based on what I felt at the time, I believe it was Bill. Absolutely,” Tara Harris Kelley, 32, told The Post Monday from her Arizona home.

“Whenever we had to go to the principal’s office, as I called the judge’s chambers, he would make eye contact with her, going in and coming out. The rest of us didn’t even want to look at Jody,” she said.

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Photo: Amazon

Kelley said she and Zervakos often ate lunch together and she could tell from his comments that he had a crush on the defendant.

“We’d have lunch together and he’d tell me how back in the day he was a womanizer. He thought she was young and attractive and he didn’t see how somebody that young and attractive could kill anybody,” she said.



So, a juror commented that Jodi Arias was young and attractive, made eye contact with her on occasion and expressed skepticism about her guilt.

Obviously, he was “lovesick”.

Sheesh.  What does the juror have to say about it?

“I’m 71 years old, for God’s sake, I’m not going to have a crush on her or anybody. Of course not. That’s ridiculous,” he told The Post. Zervakos accused Martinez, whom he said he “never liked,” of sensationalizing the case to make a buck.

“People can say what they want to say. I haven’t read it, I’m not going to read it. I don’t have a whole lot of respect for him,“ he said. “I just want it to be over.”

You might think that rushing to a conclusion about a juror based on extremely thin evidence is not something a prosecutor would like to in such a public way.  Then again, it’s not like he need have any fear of being called on it.

The legal profession in Arizona needs to re-think how it does things.  Martinez’ boss isn’t worried, though:

But the publication has stirred controversy in Arizona legal circles, with some experts questioning Martinez’s ethics for spilling the beans while her conviction is being appealed.

But Jerry Cobb, a spokesman for Maricopa County Attorney Bill Montgomery, Martinez’s boss, defended the prosecutor.

“We received appropriate assurances that Juan Martinez’s off-duty activities will not violate state statutes or restrictions on attorney conduct,” he told the Arizona Republic.



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When The Shoe Shifts To The Other Foot

So the very high profile prosecution of Pittsford’s Charlie Tan comes to an end in Justice Piampiano’s courtroom, not by a jury’s decision but by the judge’s.

The prosecutors are upset:

“This is appalling. In my 24 years, I’ve never in my life experienced anything like that. This whole trial presented a unique set of facts, but this is definitely unprecedented,” said District Attorney Sandra Doorley, R-Monroe County.

Prosecutor Bill Gargan interrupted the judge at one point. Piampiano told him to stop talking or he would have him handcuffed and thrown in jail. The two yelled back and forth several times as Gargan accused Piampiano of having amnesia – of forgetting some of the evidence that had been presented. Piampiano told Gargan he was offensive.

We at LoS were most impressed, however, by this comment:

“The judge’s decision did not comply with the law based upon the evidence presented, and the judge took pains to recite certain facts, while leaving out others,” Gargan said.

Every criminal defense attorney, and every personal injury Plaintiff’s attorney, has had that exact same experience many, many times, though we are by no means conceding Mr. Gargan’s point in the case at hand because we haven’t read any transcripts or heard any arguments.

That aside, I’ll never understand why judges feel like partisans who have to massage the record to better conform to their determinations, rather than the other way around.

Nevertheless, the unfortunate reality is that Sandra Doorley is right:  it’s unprecedented – but only when it happens to the prosecution.  It happens to disfavored litigants all day, every day.

The “community”, as they say, is divided and of course the one side is “outraged”, seeing this as a “wrongful acquittal“.  And it may be, we have no idea, but even if it is there is no cause for outrage.  An acquittal is always a proper outcome in our system.  Only a conviction can be wrongful.

On one level we can sympathize a bit with the prosecution here, though:  we, too, have been known to say intemperate things when a judge has in our opinion subverted the jury process.  But then we have always had real clients, not abstractions like “the people”, and we are legitimately entitled to a little latitude on advocacy whereas prosecutors, being theoretically disinterested in outcomes, are not.

Indeed, this little episode demonstrates how very far practice is from that theory.



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The Jesuit Pope And “Divorced Catholics”

The media, being completely ignorant of the very fundamentals of Catholicism, can see the transition from the papacy of Benedict to the papacy of Francis only in political terms:  Benedict the “conservative”; Francis the “liberal”.  First pope from the Americas.  Blah blah.

But any educated and knowledgeable Catholic would understand that the most revolutionary aspect of the Francis papacy is that he’s a Jesuit.  The first Jesuit pope.  That is a very big deal indeed.

We’ve had limited dealings with Jesuits over the years, and we don’t think they are now what they once were, but we also think it can still be said that the Jesuits as a group are characterized by their formidable intellectual skills and high level of education.  This in turn leads to one of the most needful things in evaluating any difficult problem:  clarity of thought.

So over the summer Pope Francis issued some “motu propio” document or other about marriage and family and so on and it was called “Instrumentum Laboris” or some such.  And among the circles we move in – to the extent we “move” in any “circles” as opposed to being mired in day to day solitary anguish – people are upset that the “liberal” pope is caving in on divorced and remarried Catholics and how they maybe can now get communion and so on, because historically they have been barred from the sacraments.

But it’s plain that Pope Francis, though he be a “liberal”, understands with perfect clarity something that many other high ranking Catholic clerics – bishops and cardinals and whatnot – don’t understand and apparently haven’t understood for a long time:  there is no such thing as a divorced and remarried Catholic:

He said that the many problems needing attention can be found in the synod’s instrumentum laboris, but said he was glad to get a question on “Catholic divorce” and clarified that “it doesn’t exist.”

“Either it wasn’t a marriage, and this is nullity — it didn’t exist. And if it did, it’s indissoluble. This is clear.”

Many Catholic leaders outside the United States have noted for years – decades, really – that in the US the Catholic Church has granted all kinds of annulments of marriages so that remarried Catholics wouldn’t be “excommunicated” anymore.  And it’s fair to say it’s been a scandal all by itself:  you get people born and raised Catholic who married at a mature enough age and have children and then one or both of them flake out and the government grants them a “divorce” and then there’s another marriage and more children and to accommodate all this the Church pretends that they were never married in the first place.  Which is, you know, wrong and scandalous.

But there comes a point where perhaps an accommodation must be made, if only because there are so many “divorced” and “re-married” Catholics, or people who call themselves Catholics, or whatever.  And as with everything else Catholic, no one needs to reinvent the wheel, it’s all been said and written about before, usually more than once but almost always at least once.

And so here’s St. Thomas Aquinas on “bigamous” marriages:

Article 5. Whether it is lawful for a bigamist to receive a dispensation?

Objection 1. It would seem unlawful for a bigamist to be granted a dispensation. For it is said (Extra, De bigamis, cap. Nuper): “It is not lawful to grant a dispensation to clerics who, as far as they could do so, have taken to themselves a second wife.”

Objection 2. Further, it is not lawful to grant a dispensation from the Divine law. Now whatever is in the canonical writings belongs to the Divine law. Since then in canonical Scripture the Apostle says (1 Timothy 3:2): “It behooveth . . . a bishop to be . . . the husband of one wife,” it would seem that a dispensation cannot be granted in this matter.

Objection 3. Further, no one can receive a dispensation in what is essential to a sacrament. But it is essential to the sacrament of order that the recipient be not irregular, since the signification which is essential to a sacrament is lacking in one who is irregular. Therefore he cannot be granted a dispensation in this.

Objection 4. Further, what is reasonably done cannot be reasonably undone. If, therefore, a bigamist can lawfully receive a dispensation, it was unreasonable that he should be irregular: which is inadmissible.

On the contrary, Pope Lucius granted a dispensation to the bishop of Palermo who was a bigamist, as stated in the gloss on can. Lector, dist. 34.

Further, Pope Martin [Martinus Bracarensis: cap. xliii] says: “If a Reader marry a widow, let him remain a Reader, or if there be need for it, he may receive the Subdiaconate, but no higher order: and the same applies if he should be a bigamist.” Therefore he may at least receive a dispensation as far as the Subdiaconate.

I answer that, Irregularity attaches to bigamy not by natural, but by positive law; nor again is it one of the essentials of order that a man be not a bigamist, which is evident from the fact that if a bigamist present himself for orders, he receives the character. Wherefore the Pope can dispense altogether from such an irregularity; but a bishop, only as regards the minor orders, though some say that in order to prevent religious wandering abroad he can dispense therefrom as regards the major orders in those who wish to serve God in religion.

Reply to Objection 1. This Decretal shows that there is the same difficulty against granting a dispensation in those who have married several wives in fact, as if they had married them in law; but it does not prove that the Pope has no power to grant a dispensation in such cases.

Reply to Objection 2. This is true as regards things belonging to the natural law, and those which are essential to the sacraments, and to faith. But in those which owe their institution to the apostles, since the Church has the same power now as then of setting up and of putting down, she can grant a dispensation through him who holds the primacy.

Reply to Objection 3. Not every signification is essential to a sacrament, but that alone which belongs to the sacramental effect,* and this is not removed by irregularity. [Leonine edition reads “officium,” some read “effectum”; the meaning is the same, and is best rendered as above.]

Reply to Objection 4. In particular cases there is no ratio that applies to all equally, on account of their variety. Hence what is reasonably established for all, in consideration of what happens in the majority of cases, can be with equal reason done away in a certain definite case.

So clearly, if we are to credit St. Thomas – and what thinking person of any faith or none, to say nothing of a Catholic, could fail to credit St. Thomas, Aristotle’s truest disciple? – a dispensation can cure the “irregularity” of a bigamous marriage.

And the pope can grant a dispensation.

Which is not to say that any of this is easy.  Popes don’t like to grant dispensations.  It’s like presidents and governors granting pardons, and of course every protestant has been waving readily given “indulgences” in every Catholic’s face since the “reformation”.

But just like a jubilee may be the only genuine solution for our financial woes, maybe some sort of mass dispensation for Catholics who have divorced and re-married (sic) is in the works.

Liberal or conservative? Meh. The spiritual wreckage in Catholicism over the last 50 years is a simple fact that must be addressed, and bigamous marriages are a part of that.

Error recognition is a necessary precursor to error correction, someone we know often says.  Correctly understanding the error is of course the only way to recognize it, and leave it to the Jesuits:  they are still the Catholic Church’s clearest thinkers.

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Judicial Restraint

George Will tackles the subject like a layman in a Washington Post article this morning.

Why do we say like a layman?  He bandies about the big idea, but his opinion isn’t informed by in-depth study or experience. He understands the Hobbes outlook as contrasted with the Locke outlook, but only in the most abstract sense.  No lawyer, probably not even the big-law types, would fail to mention in a discussion about when it’s appropriate for the judiciary to be “passive” versus “active”, the revolution that occurred over the last 50 years in criminal law, criminal procedure, and the hard reality of mass incarceration and criminalization.

Here’s another point that we think is important but would probably be missed by most lawyers as well as laymen like Will:

Lockeans favor rigorous judicial protection of certain individual rights — especially private property and freedom of contract — that define and protect the zone of sovereignty within which people are free to act as they please.

On the spectrum of natural rights deserving of rigorous judicial protection, private property and freedom of contract are not, and should not be, on the same level at all.  Private property is much more important.

That’s a long discussion, though.  Another time.

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