February 28, 2011

That's Gonna' Leave a Mark

Today, the Supreme Court handed down Michigan v. Bryant, a 6-2 decision (Justice Kagan recused herself) affirming the murder conviction of a man identified by his dying victim.  At issue was whether the victim's statements to police who arrived at the scene should be excluded under the Confrontation Clause of the Sixth Amendment because the defendant did not have an opportunity to cross examine him. The majority said no, calling the police encounter with the victim part of an ongoing emergency and his statements therefore were not "testimonial" so as to fall within the ambit of the Sixth Amendment.

Justice Scalia disagreed, not just with the legal issues in the case, but with, well, you'll see:
Today’s tale — a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose — is so transparently false that professing to believe it demeans this institution.
Ouch! Don't hold back, Tony - tell us what you really think! It's easy to deploy that kind of weapon's grade snark when you're right, of course.

And, for those who assume that wherever Scalia goes Justice Thomas is sure to follow, the other dissenter was actually Justice Ginsburg. Scalia and Thomas really aren't carbon copies of each other.

The Other Side of Jury Nullification

Jury nullification is back in the news, thanks to a heavy handed (and most likely unconstitutional) prosecution in New York.  The local US Attorney has charged a 78-year-old man with jury tampering because:
Since 2009, Mr. Heicklen has stood there and at courthouse entrances elsewhere and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.

That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates a law against jury tampering.
Eugene Volokh does a good job of analysing the First Amendment issues with the prosecution, but I'm more interested in the underlying issue of jury nullification.

Jury nullification really isn't a thing in and of itself.  It's more a side effect of the prohibition against double jeopardy in the Fifth Amendment.  When a jury acquits a defendant at trial, that's the end of it.  The prosecution cannot seek appellate review of the verdict.  By contrast, a defendant can challenged the sufficiency of the evidence on appeal, although (as I've explained before) there's little chance of success.

The upshot of that setup is that a jury can return a not guilty verdict for any reason it wants, from the state's failure to prove its case to the jury's disgust at the law being enforced.  Those of the libertarian/people power persuasion see jury nullification as an unfettered good, a way for the people to check the power of the state when it comes to unpopular laws or discriminatory applications of otherwise popular laws.

That's all fine and dandy, in theory, but it strikes me as naive in practice.  After all, if we tell jurors to "render verdicts based on conscience" there's no principle that limits it to acquittals.  Judges routinely instruct jurors both to ignore evidence that comes out in court and instructs them about the burden of proof and other legal issues.  If they are free to disregard what the judge says, it could lead to all kinds of problems.

Maybe I'm just cynical, but from my experience it doesn't look like jurors give the weight they should to the judge's instructions in most cases. My completely unscientific conclusion is that the presumption of innocence and beyond-a-reasonable-doubt standard exist largely on paper at this point, not in the minds of actual jurors.  As a result, we already teeter dangerously close to a criminal justice system that makes convictions of innocent people too easy.  Any program that exacerbates that state of play can't be altogether good.

Jury nullification has a long and storied history in this country, dating back at least to the libel trial of John Peter Zenger in 1733.  But that was a different era, one in which the basics of the law was much more in the grasp of potential jurors.  In the modern era, I'm not so sure that telling jurors they can and should go rouge won't lead to more harm than good.  At the very least, it's a problem that jury nullification advocates need to face head on.

And they'll have to do better than some of the commentators to this article about the case over at Reason.  Asked to distinguish between jurors who acquit because they view the law as unjust and jurors who acquit for less lofty reasons (i.e., an all-white jury acquitting a Klansman who killed a black guy), the best they can do is a variant on the No True Scotsman fallacy - the second example isn't "really" jury nullification.  Sadly, it produces the same result, so any theoretical distinction is moot.  In any case, further informing jurors that they can do whatever the hell they want would encourage bigotry and bias as much as more principled decisions.

February 23, 2011

All You Are Is Wrong

As a lawyer, and an appellate lawyer at that, I've gotten used to the fact that most of the public knows very little about a Supreme Court decision before popping off about it.  News coverage of those things is sketchy, at best, and rarely comes to grips with the nuances of a particular case.  For criminal cases, especially, anything other than "defendant loses" causes most people to just flip their shit.  I'm used to it.

Still, it bothers me when a case that does get big news coverage nevertheless is completely misunderstood by the public at large.  The most recent one that makes me shake my head and mutter obscenely to myself when I hear people talk about it - usually from the left - is last year's Citizens United case.

The nuts and bolts of the case are pretty simple, as laid out by Floyd Abrams:
Citizens United is a conservative group partially funded by corporate grants. It prepared a documentary denouncing in the harshest terms then-Senator Hillary Clinton when she was considered the front-runner for the Democratic nomination for President in 2008. The organization sought to show the documentary on Video-on-Demand during one of the late-campaign 'blackout periods' during which the Bipartisan Campaign Reform Act of 2002 (BCRA) banned independent expenditures by corporations or unions supporting or opposing the election of candidates on television, cable, or satellite.
Citizens United went to court, arguing that BCRA violated the First Amendment.  And how couldn't it?  The state clamping down harder on political speech the closer you get to an election - isn't that the kind of thing the First Amendment is designed to prevent?  Seems like it, on its face, anyway.

The counter argument, of course, is that there's too much money in politics and allowing groups like Citizens United to dump even more into it in the guise of quasi-partisan ads (whether 30-second spots or feature-length docs) is a kind of influence buying.  We limit the amount of money a person can give a candidate, why not limit how much he can say about a candidate, too?

The Supreme Court, correctly, in my view, ruled in favor of Citizens United in a 5-4 vote that had come under harsh criticism.  In spite of the split, it really wasn't all that radical:
Justice Kennedy’s analysis was rooted in two well-established legal propositions. The first, that political speech—not to say political speech about whom to vote for or against—is at the core of the First Amendment, is hardly novel. First Amendment theorists have occasionally debated how far beyond political speech the Amendment’s protection should be understood to go, but there has never been doubt that generally, as Justice Kennedy put it, 'political speech must prevail against laws that would suppress it, whether by design or inadvertence.' Nor has it been disputed that the First Amendment 'has its fullest and most urgent applications to speech uttered during a campaign for political office.'

The second critical prong of Justice Kennedy’s opinion addressed the issue of whether the fact that Citizens United was a corporation could deprive it of the right to endorse candidates by making independent expenditures that individuals had long since been held to have. In holding that the corporate status of an entity could not negate this right, Justice Kennedy cited twenty-five cases of the Court in which corporations had received full First Amendment protection. Many of them involved powerful newspapers owned by large corporations; others involved nonpress entities such as a bank, a real estate company, and a public utility company. Justice Stevens’s dissenting opinion (but not most of the published criticism of the Citizens United ruling) took no issue with this historical record, acknowledging that '[w]e have long since held that corporations are covered by the First Amendment.'
It's that second part that has most of the folks I've seen on the left get so upset about it.  They usually pitch Citizens United as a decision that "gave" corporations the same rights as real human beings.  Not only does that criticism show a fundamental failure to grasp what the First Amendment actually says, it ignores that fact that none of the dissenting justices took issue with Kennedy's statement about corporations are covered by the First Amendment.

And why shouldn't they?  While Citizens United is the type of conservative hack group that gives the Kos Kids gas, take a look at some of the folks who supported Citizens United before the Supreme Court: the AFL-CIO and ACLU, along side such right-wing heavies as the NRA and US Chamber of Commerce.  Why?  Because damn near any advocacy group - union, lobbying firm, civil rights organization - is itself a corporation.  Cracking down on Citizens United's Hilary movie means cracking down on AFL-CIO get out the vote drives, too.  Doesn't sound so good, does it?

Another large elephant in the room that the lefty critics have is that news groups and publishers are,  yes, corporations.  As Adam Liptak wrote recently:
If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?

The usual response is that the press is different. The First Amendment, after all, protects 'the freedom of speech, or of the press.' Since 'the press' is singled out for protection, the argument goes, media corporations enjoy First Amendment rights while other corporations do not.

But the argument is weak. There is little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers.
'Freedom of the press,' as used in the First Amendment, literally means the printing press itself.  The 'press' as a profession didn't really exist until the next century.  So, again, if you want to shut up Citizens United for a month prior to an election, how can you avoid doing it to The New York Times or FoxNews, too?  Not to mention blogs of all shapes and sizes.

I'm not unsympathetic to the concerns of the lefty critics of Citizens United.  There is way too much money in politics.  In addition, most political speech has little to do with actually putting forth ideas and defending them, and more to do with stoking the tribal fires with not-so-subtle dog whistles.  But in order to figure out a workable solution to the problem that doesn't piss on the First Amendment, you have to confront the reality of Citizens United not the political bogeyman it's become for so many.

As with so many things, the process is simple: get the facts right first, then make an argument.  Don't do it backwards.  Otherwise, all you are is wrong.

February 22, 2011

Your Side Lost. Get Over It.

There's an old episode of Family Guy where the family is relocated to the "deep South" as part of a witness protection program.  Peter and Brian attend a "Southern tradition" - a reenactment of the Civil War.  The reenactment actually consists of one guy playing a sober, dignified Robert E. Lee who is being insulted by a drunken U.S. Grant.  Lee gets up from the table, pushes Grant over on his ass ("I am vanquished!"), turns to the crowd and says, "I hereby declare victory, in the name of the Confederacy!"  The crowd cheers.  Peter stands up and points out the obvious - that's not how it happened ("that drunken idiot kicked your asses south of the Donna Dixon line!").  Unpleasantness ensues.

I used to think what made that scene so funny was that it took a kernel of truth, that Southerners still haven't gotten over losing the Civil War, and blew it up to an outrageous extreme.  I'm not so sure how outrageous it is anymore.

As the 150th anniversary of the Civil War gets underway, some folks in the South are marking the occasion as something worth celebrating.  Something worth remembering fondly.  You know, like they won the war, or something.

First there was the "secession ball" held in (the other) Charleston last year.  Invitations promised "a joyous night of music, dancing, food and drink."  What better way to commemorate the beginning of a crisis that nearly tore the country apart?

Now, last weekend we had a celebration of the inauguration of Jefferson Davis, the first and only president of the CSA.  At the event:
an amateur actor playing Jefferson Davis was sworn in as president of the Confederacy on the steps of the Alabama Capitol on Saturday, an event framed by the firing of artillery, the delivery of defiant speeches and the singing of 'Dixie.'

What both events have in common, aside from a creepy nostalgia founded on the deaths of hundreds of thousands of people, is the relegation of slavery to a bit part in the whole thing, if it's even mentioned at all:
The Sons [of Confederate Veterans]’ principal message was that the Confederacy was a just exercise in self-determination that had been maligned by “the politically correct crowd” through years of historical distortions. It is the right of secession that they emphasize, not the cause, which they often describe as a complicated mix of tariff and tax disputes and Northern attempts to politically subjugate the South.

The other matter of subjugation — that is, slavery — went unmentioned on Saturday. (Davis himself did not refer to it in his inaugural address, but he emphasized the maintenance of African slavery as a cause for secession in other high-profile settings.). And the issue of slavery was largely brushed aside in interviews as a mere function of the time, and not a defining feature of the Confederacy.

The idea that slavery played a bit role in the Civil War is, of course, horseshit as any number of Confederate leaders were happy to tell you at the time (see statements collected in these posts).  The fact that, in 2011, people stand up and assert otherwise comes down to two things.  One is our piss poor history education in this country, which mangles the Civil War up until the college level (in my experience).  The other is the fairly large hunk of Southerners who need to justify the actions of their ancestors and therefore do all they can to make the war about anything other than slavery.

The first problem can be fixed.  I don't know about the second one.  Folks are free to buy into whatever revisionist history they want, of course.  Hopefully, one day, those who try to divorce the Civil War from slavery will be no the same plane as Holocaust deniers - marginalized and mocked by those with some connection to the real world.  Will it happen in time for the 200th anniversary?  Somehow, I doubt it.

February 16, 2011

Show Your Work, Please

As I was getting ready for work the other day, I heard a disturbing bit of information.  What I thought I heard was that someone in the West Virginia legislature had proposed a bill to bring back the death penalty in the state.  We did away with it in 1965.  It's one of those few social justice issues where we were ahead of the curve.

Turns out, I heard right, which is very disappointing.  Even more disappointing, though, was the public hearing held on the issue by the House Judiciary Committee yesterday.  Both sides, pro and con, were led primarily by appeals to emotion (victims' families) and God talk (most of the con folks).  Neither facts nor evidence-based argument seemed high on the agenda.  In fact, the only bit of practicality that cropped up was this:
Others argued that despite scientific advancements the legal system is still flawed and therefore should not include a penalty so irreversible as the death penalty.

'What's particularly disturbing about the fact that we're considering reinstating the death penalty now in West Virginia is that we're still living with and dealing with the legacy of Fred Zain,' said Julie Archer of the West Virginia Citizen Action Group.

Zain was a state police serologist from 1986 to 1989 who was found to have exaggerated or faked lab tests in dozens of cases.
See, regardless of whether it makes victims' families feel better or makes Jesus cry, there are some very down-to-earth issue that need to be addressed.  Given that the pro death penalty side is the one seeking to change the law, I think the burden is one them.  Here's what I'd like to see addressed if this project moves forward.

First, what is the deterrent effect of the death penalty, if any?  I know there are conflicting studies on this, but to be honest I don't know how has the better side of the debate.  Answering that question should be step one in any analysis.

Second, and a related question, what is it that we're looking to deter, anyway?  West Virginia traditionally has a low crime rate (39th of 51, according to the most recent numbers I can find).  Our murder rate is a bit higher (tied for 28th), but is still behind such noted execution mills as Virginia & Ohio (t-24), and Texas and Florida (t-15).  Is this a solution in search of a problem?

Third, who is going to pay for all this.  Contrary to what common sense may tell you, it does cost much more to try, convict, and execute someone than it is to house them in prison for life.  In this state, we'll need to upgrade the court system - a midlevel appellate court will be needed - the public defender system, and our forensic science infrastructure.  In the state of Zain, that is not a hypothetical problem.  As none other than *gulp* FoxNews explained last year:
Every time a killer is sentenced to die, a school closes.
Look, I'm a death penalty absolutist.  I'm against it in all instances for all killers (yes, Hitler included).  But I realize that, "but, it's wrong" isn't a cogent argument.  Neither is, "but, it's right."  Bring me some facts.  Make some serious arguments.  It's the least we can do before we put the state back in the death business.

February 15, 2011

Dune Explained. Kind of.

I have something of a troubled history with Dune, Frank Herbert's legendary sci-fi classic about deserts, a precious natural resource, and a religious uprising (sound familiar?).

Jedijawa, my college room mate, read the novel, in its full doorstop length, for a sci-fi/fantasy class he took.  I started it shortly thereafter, but just couldn't wade through the thicket of made up words, medieval political structures, and just plain weirdness.

I did, however, manage to watch the movie, directed by David Lynch and released in 1984.  To call it a "clusterfuck" is perhaps too kind.  It was a troubled production that left the film, in some formats, released with Lynch's name taken off.

Here's a pretty good piece of evidence for just how troubled it was.  Over at blastr, they've recovered the two-page handout that Universal prepared to hand out at screenings to help Dune newbies figure things out.

Let that sink in for a minute.

Most American movie goers won't see foreign films, lest they have to "read" while they go to the movies.  And you want to assign them homework?  And how are they supposed to read the damn thing in the dark, anyway?  Hindsight being 20/20, it's amazing the thing was as well received as it was.

Having said that, I kind of like it.  Scratch that - I really like it.  Enough to own the the nearly three-hour "extended" edition and even watch it now and then.  Is it because of that Toto (I shit you not) soundtrack?  Sting being the only overactor that actually works?  The fact that Patrick Stewart's gets to play an instrument in one scene that's so futuristic Tony Levin's used one since the 1970s?  I can't say.  There's just something about it.

It's also ruined my later attempts to return to the original book.  I borrowed the audiobook version from the library years ago and just couldn't make it through more than a few hours.  I knew too much of what happened from the movie (and the later done miniseries, which isn't half bad, but lacks the . . . whatever that the Lynch flick has), so that the details of things that weren't in the movie seemed pointless and the plot couldn't move along fast enough.  Maybe I'll give it a go another time.

Or not.  I've never read The Lord of the Rings, either!

February 14, 2011

Your Tax Dollars At Work

I was working on a reply brief today in a case in which our client sold pills - Oxycontins - to a confidential informant working for the police.  He made three sales, each involving two pills.  So he sold a total of 6 pills to the cops.  Upon searching his residence, the cops found 100 more pills (of a different variety, however).

For his misdeeds, our client faced a suggested Guideline sentence of somewhere between 51 months (the bottom of the range we argued for) and 78 months (the top of the range the court adopted) in prison.  He got 63 - just over five years in the pen.

While working on the reply brief, I came across a case from 1991 in which the defendant was convicted of 2nd degree murder.  Actually killed somebody, snuffed out the life of another human being (which, if you've been reading here lately, is kind of a big deal).  So what sentence did he face for this act?

Between 46 and 57 months in prison.

If you asked kids which was worse - killing someone or selling them a couple of pills, I'm pretty sure they'd realize it's an easy question.  But that's what the War on Drugs has done to us.  Not only has it pretty much eviscerated the Fourth Amendment, it's completely messed up our sense of proportionality when it comes to sentencing.

February 11, 2011

The Sporting Life

A couple of sporting things caught my eye this week . . .

Robert Kubica, the lead driver for Renault's Formula 1 team, suffered a horrible crash last weekend.  As a result, he suffered serious injuries (including to his hand) that will keep him out of F1 for a while, if not forever.  But Kubica's accident didn't occur behind the wheel of his Renault R31 during testing for the season opener.  It happened in a minor rally in Italy in which he was competing.

That Kubica was doing something other than driving an F1 car have led some to question Renault's judgment in giving him the freedom to race in other venues:
'You've got to look after that investment,' triple World Champion and former team owner and boss Sir Jackie Stewart told the Telegraph. 'It's quite a challenge to stop drivers doing the things I believe are unwise leading up to a F1 season.'

* * *

Former BMW-Sauber team boss Mario Theissen told the Associated Press: 'What's the point in pushing hard for the highest safety standards in F1 if a driver is then seriously hurt in other racing activities?'

The German said he always had 'sympathy' for Kubica's passions, but 'the driver is key to success in F1. Only he can turn the tremendous effort of several hundred equally determined people into results.'
However, one of the reasons Kubica has enjoyed his move to Renault is that they allowed him to compete outside of F1:
Renault chief Eric Boullier, however, said the freedom to rally is so important to Kubica, who for years was not allowed to according to the terms of his BMW contract.

* * *

To L'Equipe in France, however, Boullier defended Kubica's freedom to rally on the basis that 'he could also have been run over by a bus going to get his bread.'
Such concerns aren't unique to racing.  Years ago, when Major League Soccer was just getting going, EPSN did a segment in which Brian McBride, then playing for the Crew, went sky diving.  As a result, he got fined by the league (remember, MLS owns all the player contracts) for engaging in dangerous activity that could lead to injury without permission.

It was not always such.  Back in the "golden days" of racing, aka the 1960s and such, top drivers regular competed in different kinds of races.  AJ Foyt, for all his dickishness, won the Indy 500, Daytona 500, and the 24 Hours of Lemans.  That's impressive.  Although the only one to complete that trio, he was not the only one who tried.  Of course, you also have incidents like the one that took the life of Jim Clark, who died at Hockenheim in 1968 in a Formula 2 ("minor league") race.

On a completely different note, a professor of management and operations at Villanova has undertaken a statistical analysis of substitutions in soccer, trying ti figure out when they are most effective.  In top level soccer, each team is only allowed three subs in each game, so their timing and purpose are critical.  According to the study, teams that made their three subs at 58, 73, and 79 minutes were "successful" - they scored goals - 36% of the time.  That's twice as often as teams who didn't follow that pattern.

It's a neat study, but it has some methodological issues.  For one thing, it defines success in terms of goals scored, but sometimes subs are made for defense.  Those would appear to fall through the cracks.  For another thing, there's no way to distinguish between purely strategic subs and subs made for other reasons.  Yeah, OK, a team that subs offense for defense and doesn't grab a goal doesn't succeed.  But what about just subbing in fresh legs for a tired player?  Or replacement due to injury?  Or to keep a starter from getting a second yellow card?  There are just so many variables, I'm not sure you can draw hard and fast rules.

But my biggest problem with the survey is it's basic assumption:
The pace and flow of soccer generally make it difficult for managers to affect the outcome of a match once it begins.
I don't think that's quite right.  One of the differences between good and great managers is how they take the resources on the field and shift them around to deal with changing conditions.  Bob Bradley, for instance, is notorious for not changing things on the field, even when his first design isn't working out.  Yeah, OK, they can't call timeout and chalkboard a trick inbound play, but there's more to it that that.

February 10, 2011

A Pox on Both Houses

John Boehner experienced one of the first failures as Speaker of the House the other day when a bill reauthorizing "temporary" provisions of the Patriot Act failed to get through the House.  Why?  Because of Republican objections.  Sort of:
The bill to reauthorize key parts of the counter-terrorism surveillance law, which expire at the end of the month, required a super-majority to pass under special rules reserved for non-controversial measures.

But it fell short of the required two-thirds after 26 Republicans bucked their leadership, eight of them freshman lawmakers elected in November's midterm elections. With most Democrats opposing the extension, the final tally was 277 members in favor of extension, and 148 opposed.
Now, if you've got even rudimentary math skills, you can see that there's enough support to get the bill through the old-fashioned way (majority wins!), but it will take some extra time.

Boehner's bobble inspired Glenn Greenwald to write a little bit about what may be the only real hope of making progress on civil liberties may be a coalition of Tea Partiers and liberal Democrats, because:
The establishments of both political parties -- whether because of actual conviction or political calculation -- are equally devoted to the National Security State, the Surveillance State, and the endless erosions of core liberties they entail. Partisan devotees of each party generally pretend to care about such liberties only when the other party is in power -- because screaming about abuses of power confers political advantage and enables demonization of the President -- but they quickly ignore or even justify the destruction of those liberties when their own party wields power. Hence, Democratic loyalists spent years screeching that Bush was "shredding the Constitution" for supporting policies which Barack Obama now enthusiastically supports, while right-wing stalwarts -- who spent years cheering on every Bush-led assault on basic Constitutional limits in the name of Terrorism -- flamboyantly read from the Constitution during the Obama era as though they venerate that document as sacred. The war on civil liberties in the U.S. is a fully bipartisan endeavor, and no effective opposition is possible through fealty to either of the two parties.
I highlighted that last big because it goes back to something I wrote last month about how we, as a nation, deal with whatever the latest Problem is to grip the popular will.  Glenn is sadly correct when he notes that neither party gets it right when it comes to this stuff.  Is some bipartisan alliance really possible to counter that status quo?  I kind of doubt it, but I wouldn't mind being proved wrong.

February 9, 2011

How Precedent Works

There's a story I remember one of my professors in law school telling.  It's apocryphal and almost certainly fictional, but it makes a valid point about the practice of law.  It goes like this:
Two lawyers are arguing their case in front of a trial judge.  The plaintiff is suing the defendant because the plaintiff's train derailed when one of the defendant's cattle wandered on to the tracks.  During the defendant's argument, the judge asks, "counselor, you're familiar with X v. Y, aren't you?"

"Yes, your honor."

"Well, in that case, didn't the supreme court hold that a cow's owner is responsible if his cow wanders onto a set of train tracks and causes an accident?"

"Yes, your honor."

"Doesn't that mean you lose this case, then?"

"No, your honor."

"Explain why," says the judge, completely confused.

"Well, your honor, in X v. Y, the cow at issue was a Jersey.  My client's cow was a Guernsey, so I think it's distinguishable."
Such is the life of a lawyer, often times, searching for any basis upon which you can distinguish your case from the earlier case that otherwise dooms you to defeat.  Sometimes, the best you can do, is point to different cows.

While lawyers are free, and even required, to make such creative arguments, lower court judges are bound to apply the law as set forth by higher courts.  That's stare decisis, which basically means that if a court higher up the food chain has decided the issue before you, lower court judge, you are bound to apply it.  Doesn't matter whether you agree with it or not, just apply it.

The role of stare decisis is a subject running through several posts over at The Volokh Conspiracy in the wake of the more recent ruling against last year's health care reform law.  While a few of the Conspirators (some of whom have been involved in crafting the arguments used against the health care law), and many of the commentators, have applauded Judge Vinson's decision striking down the law, Orin Kerr has been a consistent and notable critic.

Not because of the end result - Kerr is no bleeding heart liberal - but because of how Vinson got there.  To summarize (and simplify), Kerr argues that while Vinson's result is the one a correct interpretation of the Constitution based on first principles supports, it runs contrary to current Constitutional doctrine as set forth by the Supreme Court.  Vinson made a mistake by not following current doctrine, even if his disagreed with it, because only the Supreme Court can make that kind of a change.

Kerr's taken a lot of flack over his position, but I think he's got the better of it (assuming his characterization of Vinson's opinion is accurate - I haven't read it).  That's evident in the most recent post over there, which points out a similar situation in the Virginia state courts.

In 2009, the US Supreme Court decided a case in which it held that a defense attorney provides ineffective assistance of counsel (a Sixth Amendment violation) if he does not advise his client of potential immigration consequences of entering a guilty plea.  Since then, state courts have been struggling to figure out how, and even if, that ruling should be applied to people already convicted and serving time.

Lawyers in Virginia found a potential means to do so in a writ of coram vobis, which allows courts to address "any clerical error or error in fact for which a judgment may be reversed or corrected" outside the regular appeals process.  It's one of those old writs that hangs around in musty old law books but doesn't have a lot of use these days.  Regardless, numerous cases have been percolating in the state for months.  In January, the state supreme court ruled that such an error could not be corrected via writs of coram vobis, leaving those defendants without a remedy for a potential Sixth Amendment violation.

In a surprise move, one trial-level judge in Virginia has simply decided not to follow the state supreme court's holding.  Rather than trying to find a way around a ruling with which he obviously disagreed, the court explained (at length) how the state supreme court got it wrong on the scope of coram vobis relief and concluded that it would not let the defendants be denied their only potential remedy for a Sixth Amendment violation.

There's a certain part of me, the public defender part, who wants to cheer the judge for getting the right result and not overlooking the lack of other remedies available to those defendants.  The rest of me, however, that tries to look at these things in a big picture kind of way, finds the decision pretty troubling.  After all, our entire judicial system is built upon the idea that lower courts have to follow the pronouncements of superior courts.

Can that be a pain in the ass?  You bet it is.  I've had several cases where the law in the Fourth Circuit was settled (and not in my client's favor, naturally) and had to admit that fact to a lower court.  Even in the Fourth Circuit, it binds itself to prior decisions unless overturned by the Supreme Court or the entire court sitting en banc.  That means I've had entire briefs filed in the Fourth Circuit that said, in essence, "I know you can't do anything about this, we're just stopping by on the way to the Supreme Court."  It can be frustrating.

But what's the alternative?  If lower courts could go off on their own and just ignore what binding precedent says, two things would happen.  First, the law would be in a constantly mixed up state, as parties could not rely on trial courts and mid-level appellate courts to apply settled law.  Finality and predictability are almost as important to the court system as getting to the right answer is.  Second, the appellate courts would be clogged with cases that needed to be corrected because they were decided based on a lower judge's whim or gut feeling rather than settled law.  That slows things down for parties with more contentions appeals and costs everybody more money.

So, ultimately, I think Kerr has the right of it here.  Lower courts should not be commended for "getting it right" at the expense of making rulings contrary to what established law from higher courts says the right answer it.  Maybe it means lengthy opinions in which lower judges explain their position and then concede that they have to rule the other way.  Flagging a issue that way seems infinitely preferable to everybody just doing their own thing in my eyes.

February 8, 2011

Why This Life Matters

If you haven't seen The Tillman Story, the documentary about how Pat Tillman's family struggled to get at the truth of what happened to him in Afghanistan, I highly recommend it. It's a fairly straight forward doc, but the story it tells is very powerful. Spoiler alert - just about everybody in the chain of command lied through their teeth to make Tillman's death a pro-war PR event, even though it was much more complicated than that.

One of the themes that runs through the film is that Tillman did not fit into any neat descriptive boxes, particularly those our society likes to ascribe to a brave soldier. He signed up after 9/11, but during a tour of duty in Iraq called that war "fucking illegal." His played football with flair out outsized confidence, but was quick to deflect attention from himself off the field.

There was something else, too. It came out during the nationally televised memorial service for Tillman, after several notables dished out the usual "he's with Jesus" pablum, his brother took the lectern (beer in hand) and said:
'He's not with God, he's fucking dead,' asserted Mr Tillman. 'Thanks for your thoughts but he's fucking dead.' Mr Tillman, who has a low tolerance for lies was clearly offended by the sentiments, stating that his deceased brother 'was not religious.'
The fact that Tillman was an atheist should be a footnote in this whole matter, as it had nothing to do with the investigation into his death and cover up. But it did:
In an interview with ESPN's Mike Fish, the Army officer who directed the first inquiry, Lt. Col. Ralph Kauzlarich, admitted officials knew which shooter killed Tillman but he saw no value in going there.

'I don't think it really matters,' Kauzlarich said.

* * *

'[Tillman's family] have a hard time letting it go. It may be because of their religious beliefs.'
He went on to say:  'When you die, I mean, there is supposedly a better life, right? Well, if you are an atheist and you don't believe in anything, if you die, what is there to go to? Nothing. You are worm dirt. So for their son to die for nothing, and now he is no more -- that is pretty hard to get your head around that.'
This is a sentiment I see a lot from religious folks when talking to we of no faith. "If this life is all there is, how do you get out of bed in the morning?"

I get out of bed this morning precisely because this is all there is. I've got one life, and that's it. Once my time on Earth is done, there is no more. Why would I not want to make the most of it? Why would I not want to improve my own lot in life and the lots of those around me?

It seems perfectly straightforward to me. I know it doesn't for others. And I don't begrudge folks who rely on the comfort of knowing about the "next life" to get them through the day and deal with all the shit this world can throw at them. As Bruce Hornsby wrote, "well, whatever works for you."

Is it too much to ask, though, that folks who are certain there is something beyond this life to realize that those of us who disagree don't see that as a problem? That this is all there is does give us meaning, even if it seems odd to you. At the very least, don't let your inability to recognize that serve as a cheap excuse to ignore the truth. Note that it was the believer, not the atheist, who said of the truth of the Tillman saga, "I don't think it really matters."

And, for the record, I hereby give permission, once I am dead and (hopefully) being fondly remembered, to anyone who wishes to remind anyone who gets too religious about the whole thing to blurt out, "he's not with God, he's fucking dead." I approve beforehand, 'cause I sure won't be able to afterward.

Take it away, cousin David . . .

February 6, 2011

Cryin’ the Blues Indeed

As I sit here and work on briefs, word has come though the Net that guitarist Gary Moore is dead. Moore had a long and varied career – he even bumped up against prog as a member of Colloseum II.

But my main interaction with his work was his blues album After Hours – one of the few albums that both of my brothers and I wound up owning without any input from the others.

So, without further ado . . .

RIP, Gary.

February 3, 2011

We Are . . . Stifled!

I was all set to lay into Marshall University for landing on FIRE’s list of the worst colleges in the country when it comes to free speech.  FIRE is the Foundation for Individual Rights in Education, a group that sometimes makes mountains out of molehills but does a lot of good when it comes to student speech.  But this might be one of those molehill situations.
The allegation against The Herd sounds pretty bad:
Last month, the Foundation for Individual Rights in Education, or FIRE, gave Marshall its ‘Speech Code of the Month’ designation for what foundation official Samantha Harris says are restrictive speech codes that prohibit a ‘staggering amount of constitutionally protected speech.’
* * *
The foundation did not turn their attention toward Marshall after any particular actions or cases that occurred on campus, but for the university's actual policies, said Robert Shibley, the group's senior vice president.
In other words, MU hasn’t really done anything wrong, but conditions are there for them to do so.  Sort of like a Winter Storm Watch, I guess.  In fact, of the two episodes discussing the article, Shibley admits FIRE would not have intervened in one and the other was covered by settled (if possibly incorrect) West Virginia law.
That second incident goes back to a statute passed to combat the Ku Klux Klan that prohibits wearing a mask in public.  The Supreme Court of Appeals upheld the statute in a 1996 decision against attack on free speech grounds.  The facts of that case, State v. Berrill, 474 S.Ed.2d 508 (1996), are worth sharing (paragraph breaks added):
The facts are not disputed. In an effort to convince the Calhoun County Board of Education (Board) to change the Calhoun County High School red devil mascot, Thomas Berrill, appellant, went to a Calhoun County Board meeting dressed in a devil costume. The costume included a mask that covered his face. Prior to the meeting, Mr. Berrill called the Board and asked to be placed on the meeting agenda under the fictitious name of ‘Mr. DeVille’. He did not inform the Board of his true identity nor of his plan to dress in a devil costume.
The meeting was held at the Board office, which is owned by the Board, in a room that had only one means of exit, an interior door leading to another part of the building. Although the agenda for the Board meeting provided a time for public questions and comments, Mr. Berrill did not await that opportunity. Rather, when Mr. Berrill entered the meeting, he took advantage of a pause in the proceedings, a short period of silence, to begin his conduct and remarks.
The evidence discloses that Mr. Berrill moved or ‘pranced’ about the room and began to speak although he was not called on by the moderator to do so. Mr. Berrill then addressed the gathering for a period estimated by witnesses to range from one-and-a-half to ten minutes, during which time the regular business of the meeting came to a halt. Although Mr. Berrill used no threatening words and had no physical contact with anyone at the meeting, he ignored instructions to take a seat or leave and was at least twice called out of order by the moderator.
In his statement to the assembly, Mr. Berrill represented that he was the red devil and thanked the Board for keeping the devil in the schools and keeping God out. Mr. Berrill departed from the meeting room only when the Board president stood up and moved toward Mr. Berrill.
Ah, the fun of small town kooks.
Anyway, getting back to FIRE’s complaints, they are legitimate, if not perhaps a little overblown.  No, neither MU nor any other state university should have vague policies about speech that could be used to squash legitimate First Amendment protected expression.  But if theoretical repression is good enough to get you on a “worst in the country” list, then things must be going pretty well on campuses across the country.
For more discussion of FIRE’s list, see Ed’s post over at Dispatches from the Culture Wars.

February 2, 2011

On Hunting for Hypocrisy

The other day I wrote about the perils of accusing someone of hypocrisy.  Today, I found a good example of a related danger: trying to make others look like hypocrites.

It comes, as such misguided things often do, from state legislators with too much time on their hands (via):
Five South Dakota lawmakers have introduced legislation that would require any adult 21 or older to buy a firearm ‘sufficient to provide for their ordinary self-defense.’

* * *

Rep. Hal Wick, R-Sioux Falls, is sponsoring the bill and knows it will be killed. But he said he is introducing it to prove a point that the federal health care reform mandate passed last year is unconstitutional.

‘Do I or the other cosponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,’ he said.
Now, the intent here appears to be to provoke a knee-jerk reaction from liberals defending health care reform.  Confront them with an “individual mandate” to buy a gun and watch them fall all over themselves trying to distinguish it from the mandate to buy healthcare.  Just add water – instant hypocrisy.
Except the two issues don’t match up.

For one thing, while lower courts are splitting on the constitutionality of health care reform, there is a common theme that runs through all that litigation.  It has to do with the actual issue raised by the plaintiffs in those cases.  They are not arguing that the insurance purchase mandate violates some individual right protected by the Constitution to not have the government tell you how to run your life.  They are arguing that the mandate exceeds the scope of the authority of the federal government.

It’s a subtle, but important distinction, that these arguments sound in federalism rather than individual rights.  Most importantly, for Representative Wick, it means that this litigation, which will surely only come to an end after the Supreme Court weighs in, says nothing about what states may do in their jurisdiction.  It will create no enforceable individual right to assert against, say, West Virginia or South Dakota.  Or, of course, Massachusetts, where Mitt Romney’s mandate-driven health care plan survived state constitutional attack.
So whatever point Wick and his cosponsors are trying to make falls flat.

But, even beyond that, there’s a decent argument that the federal government actually could mandate that everybody buy a gun.  Exercising its authority under Article 1, Section 8 of the Constitution to “provide for calling forth of the Militia,” Congress just about did that in 1792:
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . .. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder;
Emphasis mine.

So, a complete fail in attempting to rope your adversaries into being hypocrites.  Well played, Rep. Wick!

February 1, 2011

Defining Down Hypocricy

There was an interesting little kerfuffle in the blogosphere last week that reminded me of something that came up a lot last year during the rise of the Tea Party and the debate over health care reform.  Sort of a step beyond the dunces showing up at rallies with "keep your government out of my Medicare" signs.  It was the charge of hypocrisy levied against those who argue for smaller government while taking advantage of big government benefits.

The potential new example of this is actually an old one, and one that involves the all time small government mama grizzly, Ayn Rand.  According to a "social worker and consultant" to Rand's law firm, the creator of such fierce individualists at Howard Roark and John Galt signed up for, and received, Social Security and Medicare payments:
As Pryor said, 'Doctors cost a lot more money than books earn and she could be totally wiped out' without the aid of these two government programs.
The apparent hypocrisy is easy to see: Rand, who made a career out of touting individual responsibility and referred to those on public assistance as "parasites," violated her own principles by taking government benefits.  But is it really that simple?  I don't think so, and that's without getting into Rand's rationalization for it (that because the state stole her property via taxation she had a right to get it back as possible).

The key issue when it comes to hypocrisy, it seems to me, is whether the person charged with being a hypocrite actually has any chance of implementing whatever ideal she is alleged to have violated.  A person who rails against a system she has no real hopes of changing can't really be a hypocrite if she takes advantage of that situation.

Rand, for all her influence, would have been the first to admit that the world she argued for was aspirational, not an accurate reflection of reality.  It was a fantasy.*  Reality was a governmental structure that levied taxes and provided (in some limited ways) for the general welfare with the proceeds.  That wasn't going to change anytime soon, although it could be snipped a bit around the edges.  In other words, Rand was no different from any other Utopian thinker.  The fact that any Utopia is a fantasy doesn't, it seem to me, bind any particular Utopian to a course of action in the real world.

Compare someone in that situation to, say, a member of Congress.  One of only a few hundred similarly situated, she has a great deal of power and influence.  There are ways of changing how Congress does business that are within her grasp.  Someone in that situation who, for example, rants against earmarks and pork spending and then turns around and loads her state or district up with earmarks and pork projects is acting hypocritically.  She has the power to stop seeking those things.  Might cost her reelection, but it's doable within the real world.

Hypocrisy is a bit like forgiveness, then.  It's situational.  I can only forgive someone who has actually wronged me, not their agent.  I might appreciate the agent's concern, but true forgiveness is something he can't earn.  Similarly, the charge of hypocrisy turns on one's ability to actually act in a meaningful way. 

The deployment of hypocrisy also derails a substantive discussion of issues.  As this comment in a follow-up post puts it:
To me, the key point is not that Rand got social security and Medicare, but that Evva Pryor, the social worker who helped Ayn Rand get it, said that Rand needed to get on social security because 'Doctors cost a lot more money than books earn and she could be totally wiped out.' So this isn't a case of Rand simply 'getting back' what she put into the system, but of her NEEDING the system she despised in order to exist. In other words, she failed to be the completely self-made person she demanded others be and ended up as 'dependent as the beggar, the social worker and the bandit.' She ended up being the type of person she would have called a parasite.
That's the takeaway here, I think: that even the most most vocal individualists recognize the need for a social safety net when they need to take advantage of it (sort of like how pro-life politicians seen to find a loophole when it's their daughter that gets knocked up).  That's hardly a revelation.  Utopian fantasies, after all, tend to crumble when brought into contact with reality.

* As someone once said:
There are two novels that can change a bookish fourteen-year old's life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs.