Crime & Federalism

Some people are so much superior that, when they gaze at their own navels, they abs where there is only lint and flab. And so goes the New York Times missing the target.

A week or so ago, a story about ACORN's corruption broke. Why wasn't the newspaper of record on this story? Does “media bias” explain the inattention?

The Times' public editor spends several paragraphs rationalizing the failing, before obtaining this concession:

Jill Abramson, the managing editor for news, agreed with me that the paper was “slow off the mark,” and blamed “insufficient tuned-in-ness to the issues that are dominating Fox News and talk radio.”

Isn’t that something? The reason the Times missed the ACORN story was because they are too good for you flyover state rednecks. They don't listen to the radio you listen to; or read the websites you read.  Nevertheless, they are not biased against you.  Got it?  

What was the Times’ solution:

She and Bill Keller, the executive editor, said last week that they would now assign an editor to monitor opinion media and brief them frequently on bubbling controversies.

Shouldn’t news reporters be monitoring FoxNews and talk radio, anyway? Isn’t news about – well – the news? An unbiased reporter shouldn’t view reading FoxNews as slumming it.  

It gets even more amusing:

Keller declined to identify the editor, saying he wanted to spare that person “a bombardment of e-mails and excoriation in the blogosphere.”

God forbid that you mouth breathers start e-mailing a Times reporter.  Remarkable.

Given that I blog about media bias, you probably think I'm a "FoxNews" or "talk radio" guy. Hardly.

I don't read FoxNews, listen to talk radio, or watch any news programs. I get into heated arguments with my best friend – a talk-radio listener – about how beneath him talk radio is.  He should be embarrassed, I tell him, that he listens to that stuff.  Instead, I read the New York Times, Los Angeles Times, Wall Street Journal, and San Francisco Chronicle. For news aggregation, I read the Drudge Report.

The Times article was the kind of stuff psychologists must love. In protesting too much about their unbiasedness, the Times revealed deep class or political  biases. The biases are so deep that news reporters don’t monitor the same media that tens-of-millions of Americans rely on. The bias is so deep that the reporters don’t want to hear from “those people.” The bias is so deep that the Times’ can't even surface it - even when they try.

Two heartfelt and thoughtful posts:

• Norm Pattis on a favorable verdict that still feels like a loss.
• Jeff Gamso on the death of a client.

Often people like me seem unreasonable. We fought efforts to make purchasing Sudafed a crime. Yes, Sudafed contains pseudoephedrine. Yes, pseudoephedrine can be used to manufacture meth. However, it's also the case that there are moronic police and prosecutors.  This is the kind of stuff that happens:

When Sally Harpold bought cold medicine for her family back in March, she never dreamed that four months later she would end up in handcuffs.

Now, Harpold is trying to clear her name of criminal charges, and she is speaking out in hopes that a law will change so others won’t endure the same embarrassment she still is facing.

“This is a very traumatic experience,” Harpold said.

Harpold is a grandmother of triplets who bought one box of Zyrtec-D cold medicine for her husband at a Rockville pharmacy. Less than seven days later, she bought a box of Mucinex-D cold medicine for her adult daughter at a Clinton pharmacy, thereby purchasing 3.6 grams total of pseudoephedrine in a week’s time.

Those two purchases put her in violation of Indiana law 35-48-4-14.7, which restricts the sale of ephedrine and pseudoephedrine, or PSE, products to no more than 3.0 grams within any seven-day period.

Perhaps granny is a druggie. Perhaps she was purchasing Sudafed for her druggie kids. Surely the law makes an exception for people who innocently purchase "too much" Sudafed. Don't call prosecutor Nina Alexander surely:

When the police came knocking at the door of Harpold’s Parke County residence on July 30, she was arrested on a Vermillion County warrant for a class-C misdemeanor, which carries a sentence of up to 60 days in jail and up to a $500 fine. But through a deferral program offered by Vermillion County Prosecutor Nina Alexander, the charge could be wiped from Harpold’s record by mid-September.

While the law was written with the intent of stopping people from purchasing large quantities of drugs to make methamphetamine, the law does not say the purchase must be made with the intent to make meth.

“The law does not make this distinction,” Alexander said.

The written law might not make the distinction.  Yet not every technical violation of the law needs to be vindicated.  Nina Alexander is too much of a nit-wit to understand prosecutorial discretion.  

Making anything a crime gives people like Nina Alexander a lot of power.  If nothing were a crime, prosecutors would have no power.  If everything were a crime, prosecutors would have total power.  In a world where many things are a crime, the discretion of people like Nina Alexander is the thin line keeping average Americans out of prison.

Have prosecutors proven that their enormous power?  Has Nina Alexander?  

In most states, a person facing criminal charges who flees the jurisdiction will be hit at trial. The jury will be instructed that it can infer guilt based on the defendant’s flight. The concept is known as flight as evidence of consciousness of guilt. Here is a typical instruction:  

The flight of a person immediately after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide." 

CALJIC No. 2.52  An innocent person, the thinking goes, should not fear the legal system. One might counter that an innocent person has the most to fear. After all, the system, by nature of demanding the arrest of an innocent person, has already failed.

Shouldn’t a defendant who turns himself in be given a compliance with legal processes as consciousness of evidence? After all, if flight is bad; then non-flight should be good. A cynic would suggest that courts would find away around such logical implications.

Courts have specifically – and repeatedly – reject that counter-argument: The California Supreme Court has concluded that courts need not give instruction on the absence of flight because the value of such evidence is slight. People v. Williams rejects the argument that the federal Constitution requires an instruction on absence of flight. In contrast to the notion of reciprocal discovery rights, there is no fundamental unfairness in not requiring an instruction on the absence of flight. As previously discussed, unlike the flight of an accused from the scene of a crime or after accusation of a crime, the absence of flight presents such marginal relevance it is usually not even admissible. [F]light and the absence of flight are not on similar logical or legal footings.

People v. McGowan (2008) 160 Cal. App. 4th 1099 (quotation marks and citations omitted).  

And you wonder why criminal defense lawyers are such cynics?

Libertarians will say, "But that's not libertarianism, Mike!"  That response parallels communists who say, "But China isn't real communism!  Russia wasn't pure communism!" 

The bailouts should have been 9/11 for libertarianism.  We libertarians were duped.  We were unwitting foot soldiers for Wall Street. 

"Free markets!  Deregulation!"  All good in theory - until you realize that, in America, this is the end result of libertarianism:

The answer to speech is more speech, libertarians will utter.  So you're really going to outspend the GM Corporation?  Goldman Sachs?  If the Supreme Court gives corporations the same rights as people, then we can consider the latest bailouts a quasi-bailout, perhaps even the Diet Coke of bailouts.  And why do corporations qua corporations even need free speech rights?

I immediately wonder why corporations even need unlimited Freedom of Speech rights. They already have reasonable Freedom of Speech protections (First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)). Further, everyone who works at a corporation and all the shareholders already have the highest level of Freedom of Speech rights protected by the Constitution. If we give corporations the same Freedom of Speech rights as humans, we are functionally giving extra powers of speech to corporate executives in the C-Suite. After watching how they ran our economy into a shitpit, should we allow this handful of business people to use their out-sized coffers to drown out the incredibly less financed individual citizens?

Read the rest here.  And keep uttering "more speech."  You're right, and I'm wrong.  Because we're all going to be able to outspend our corporate masters. 

Libertarianism only works when there is a separation of corporation and state.  The bailouts proved that, far from a high and impregnable wall, the White House and Congress are pregnant with Goldman's octuplets! 

Corporate speech is truly hilarious.  People can't sleep at night knowing that the Nike company can't lie to people about it's slave labor practices.  How can we say we live in a "free" society when Nike can't lie to its customers in order to trick those customers into buying shoes made with slave labor!?

Third Circuit Court of Appeals Judge Ruggero J. Aldisert, author of the excellent Logic for Lawyers, recently updated his book on judicial opinion writing.  I've just ordered a copy, which I'll review once it's read.   

Why should lawyers read a book on opinion writing?  Some judges - unlike Richard Posner - actually try applying the law when writing an opinion.  One understanding of brief writing lawyer-as-law-clerk.  Namely, when writing a brief, help the judge write the opinion.  Drop in language that a judge can copy-and-paste into her opinion.  What language does a judge want to see?  That's explored in Opinion Writing. 

Plus, Opinion Writing teaches empathy.  Judge Aldisert's previous writings - and Opinion Writing - focus on the busy appellate judge.  They don't have time to read every stupid word in the briefs.  How can you help a judge bring justice to your client if you don't understanding a judge's job and pressures?

Some will say: "Judges don't follow the law!  Who cares about this stuff!?"  Often that is true.

Even so, sometimes judges will engage in outcome-based reasoning to help you.  If they are busy, and you don't show them the way to dress up their judicial activism in law: Will you really be more likely to win?

• "Pottawamie and the Shaking Prosecutor Syndrome"
• "What Are the Medical Ethics of Forced Catheterization?"
• "Thursday on Men’s Rights"
• "Inverse Preemption: Does California's Anti-SLAPP Statute Preempt Section 1983?"
• "Cutting Budgets, Scaring People"

Here is a post that I am jealous of, for not having written.

The Supreme Court will soon hear oral arguments in Pottawattamie County v. McGhee.  In McGhee, the issue is this: Should prosecutors who fabricate evidence, leading to a wrongful conviction, be absolutely immune from suit?  Absolute immunity from suit means that a wrongfully convicted person may not sue - at all or under any circumstances.   

Recently the Department of Justice filed an amicus brief (via Jonathan Adler) arguing that prosecutors who fabricate evidence should be entitled to absolute immunity.  Let's examine DOJ's arguments:

If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involv ing a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. 

How many prosecutors ever face criminal prosecution for misconduct?  The Department of Justice would clearly have this data.  Other than Mike Nifong, has any prosecutor in recent memory been prosecuted for misconduct?  What about "professional disciplinary proceedings"?  

At least unethical prosecutors, according to DOJ, get disbarred or fired.  That, too, is a false claim.

In a lengthy post, I showed that the Department of Justice does not punish prosecutorial misconduct. Unethical state prosecutors similarity escape punishment.    

The California Commission on the Fair Administration of Justice compiled data on prosecutorial misconduct. They had to do a lot of leg work, though, as no District Attorneys' offices do not monitor prosecutorial misconduct.  How can you punish misconduct if you don't keep track of it?

CCFAJ's report was revealing, and disappointing:

Research identified 347 of the prosecutors and 30 of them were found to have committed misconduct more than once. Two of them actually did it three times. So what happened to them? In only one case was there a sanction - the prosecutor was disciplined by the State Bar.

More here.  Recognizing that prosecutorial misconduct was a problem, a California State Bar lawyer, Scott Drexel, tried punishing prosecutors.  How did police and prosecutors respond?  They successfully lobbied to have the lawyer fired:

Drexel also raised hackles in the law enforcement community by going after several well-known prosecutors for misconduct, including Santa Clara County prosecutor Benjamin Field. Accused of offenses including withholding exculpatory evidence, which Field's supporters were quick to point out involved cases more than a decade old, Field ended up having his license suspended for four years.

Instead of being given an award from ethical prosecutors, Drexel "raised hackles."  Prosecutors, like every other organized guild, seeks self-protection and self-promotion.  Prosecutors are not interested in uprooting unethical prosecutors from their offices.

The Department of Justice itself does not take prosecutorial misconduct seriously.  State Bar Associations do not punish prosecutorial misconduct.  Lawyers who fight misconduct lose their jobs.  

Thus, the only remedy available to a wrongfully-convicted citizen is a civil rights lawsuit.  The Department of Justice's assertions in its amicus brief ignore the reality of prosecutorial misconduct.  Accordingly, its reasoning must be rejected, and absolute immunity must be denied.