Wednesday Writs: Soulless Enterprise of Death Edition

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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69 Responses

  1. Marchmaine says:

    WW8 – Honestly people, 1984 is the wrong novel… we’re in Brave New World simulation right now; and Wilde should never be quoted sober or drunk but only during the first blush of the buzz. I didn’t read the appellate court’s objections but assume they were these?

    But is it really the case that literary metaphor is considered inflammatory? Is that a general rule, or one applied depending on how badly the metaphor lands? Or something else?Report

    • Em Carpenter in reply to Marchmaine says:

      It depends, like everything in the law. Apparently Florida has some pretty strict case law about inflammatory speech in arguments. There’s a fine line, more generally speaking. I saw a prosecutor reprimanded for calling drug dealers “a scourge” during closing in another state.Report

    • Brandon Berg in reply to Marchmaine says:

      Well, we did have the shortages last year. Can’t find graphics cards or PlayStations in stock? Literally Orwellian.Report

    • PD Shaw in reply to Marchmaine says:

      One way to look at is that the optimal argument for the legal system is one that identifies the evidence the jury has heard in a way that allows them to follow the jury instructions. So these literary allusions are likely to be seen as having zero value, and the question becomes whether they are disparaging or inflammatory and prejudicial. Apparently there was a prior case involving the same counsel in which Schindler’s List was invoked in clear violation of the Law of Godwin, and the sense I have is that the court thinks that things are getting out of hand. But since plaintiff’s are seeking punitive damages, which calls on a jury to gauge its moral outrage, you should expect some purple prose.Report

  2. Oscar Gordon says:

    WW3: Well, what with all the Defund the Police in Seattle, they gotta pay that sweet overtime somehow. Besides, hypocrisy in policy and action is par for the course in that city.Report

    • Brandon Berg in reply to Oscar Gordon says:

      Worth noting that he also stole electricity by wiring around the meter. His lawyer disputes it, but the power company claims he diverted over $100,000 worth. Apparently this was a major operation, not an extra plant or two. Civil asset forfeiture is still bad, but this doesn’t seem to be one of those cases where it was a huge overreaction to a minor infraction.

      Also, since when is “drug dealer” a Chinese stereotype?Report

      • Oscar Gordon in reply to Brandon Berg says:

        If SPL can prove he diverted power, they should do so in court, and then seize assets to satisfy the judgement. Relying on CAF, etc. is just extra-judicial punishment.

        ETA: SPL – Seattle Power & LightReport

    • Jaybird in reply to Oscar Gordon says:

      I was prepared to be outraged about WW3 as well… but I read the article and saw this paragraph at the beginning:

      In particular, he grew more cannabis than allowed by the license he says he had under the state’s old medical marijuana system. He continued growing it after the license expired. He sold it to the black market that continues to thrive outside the state’s heavily taxed legal cannabis regime. And he got caught.

      I went into it thinking that he may have grown 17 plants instead of 16 or, maybe, he had adolescent plants at the same time as adult plants so that he’d be ready to replace the adults the second they were cashed out.

      We ain’t in an Angel Raich situation.Report

      • Oscar Gordon in reply to Jaybird says:

        Sure, so charge and convict him with a felony.

        If you plead the guy down to a misdemeanor with a modest fine and community service, then that is the punishment!

        You should not get to come by after the fact and start seizing assets after he’s paid his debt to society.

        ETA: I mean, look at the rationalization both you and Brandon have done here.

        The guy was bad, not an innocent if clueless mook!

        Fine, if he is truly bad, then prosecute him like he is truly bad. If you flake out on the work of prosecution, then you shouldn’t get to enact extra punishments through a different avenue.

        I mean, if you let a killer walk away with a negligent homicide charge, should we have the police go smack him around a bunch after he’s done his time just because he was bad?Report

        • Jaybird in reply to Oscar Gordon says:

          Please understand: I am one of the “abolish civil asset forfeiture” people.

          I am also one of the “end the war on drugs” people.

          But if I wanted to make the least sympathetic marijuana grower I could, I’d have him steal electricity, grow waaaaaay too many plants, and have him sell those plants to the black market.

          My solutions would include lifting regulations on stuff like “how many plants can be grown” and “legalize it to the point where there doesn’t have to be a black market anymore”. Like… maybe on the level of where IPAs are legalized.

          But in the absence of those… then what?

          Let’s change the law and then have the governor grant clemency.Report

  3. Oscar Gordon says:

    WW7: Victim was naked, bound at the hands and feet, and gagged – and it was a suicide.

    Kinda sounds like those cases where handcuffed individuals in the back of a squad car somehow get out of the cuffs, and get their hands on a gun so they can commit suicide in the back of the car.

    Smell Test: FAIL!Report

  4. WW5:

    Mike Dunford’s Twitter recap is well worth reading. TL/DR: the judge’s main complaint was the massive dump of unvetted affidavits from the Trump lawyers had submitted as part of their case. Courts do not like having their time wasted as part of a propaganda blitz.Report

    • Oscar Gordon in reply to Mike Schilling says:

      Link?Report

    • JS in reply to Mike Schilling says:

      Well sure, but I think they also don’t want to open the door by “perjury through willful blindness”.

      Lawyers aren’t allowed to submit evidence they know is false to the court. Allowing them to end-run this by having someone ELSE collect sworn testimony, then not reviewing that testimony, and then entering it is….sub-optimal.

      And the Judge leaned real heavily into “Much of this stuff was blatantly, clearly lies. And you submitted it anyways” and the Kraken lawyers apparently decided to go with the novel legal argument of “We can’t vet it beforehand, that’s for the evidentiary hearing we never had. So it’s YOUR FAULT. If the Courts hadn’t tossed this as obvious BS, we would have learned it was BS during the hearings, and then withdrawn it!!”Report

      • Philip H in reply to JS says:

        um yeah I don’t see that going over well at all, but I’m no lawyer.Report

      • Q in reply to JS says:

        How would they be supposed to review the testimony?
        How does one vet an affadavit?Report

        • CJColucci in reply to Q says:

          Generally the lawyers talk to the witnesses and draft the affidavits based on what the witnesses say. (Every so often, someone claims to be shocked — shocked! — about this.) But whether drafted by a lawyer, or by the witness, the affidavit is supposed to be based on what the witness saw or heard (or, in some cases, smelled, tasted, or felt) and not be full of supposition. The factual content has to be such that it supports whatever claim the affidavit is being offered to support. “I saw a poll worker dragging a bag in that maybe could have been phony Biden ballots, but I didn’t see what was in the bag or what they did with whatever was in the bag” is something no competent lawyer would submit. Many of the affidavits in this case simply didn’t pass the smell test. There was no indication in the affidavits, whether drafted by a lawyer or a witness, that the witness actually perceived or knew anything relevant, and that was and should have been obvious to anyone contemplating submitting them. Witnesses may lie in ways that lawyers can’t detect, and you don’t get dinged for that– though your client may lose the case. But you can’t submit things that are, on the face of it, nonsense. In short, vetting affidavits is something lawyers who want to keep their licenses do all the time. It’s not mysterious.Report

        • JS in reply to Q says:

          >How would they be supposed to review the testimony?
          How does one vet an affidavit?

          Do you think lawyers are immune to due diligence? Vetting such things is literally THEIR JOB.

          I mean they had affidavits full of hearsay (in one case hearsay of hearsay), which is trivial enough to review and dismiss rather than file.

          Secondly, a lot of other things were full of NOTHING: “I saw a guy with a bag. I thought he might have been smuggling ballots. Because he had a bag.”. Okay, like there’s nothing there. You can’t file that. That’s not even evidence. That’s just a dude that saw a bag, so unless someone holding a bag is a crime….

          Then there is, of course, stuff like trying to file REDACTED affidavits in which an Army Mechanic claims he’s a spy and helped rig South American elections. Again, literally five seconds of due diligence would reveal this guy was a mechanic who was not, in fact, an electronics intelligence specialist.

          Lawyers have a duty to the Court to not file bullsh*t, to not file obvious lies, and to basically perform some level of sanity checking on their briefs.

          These lawyers did none of that.

          This is akin to a doctor deciding to cut off your leg because he heard from a nurse you had a stubbed toe. Would you be like “How does one even vet the nurse’s tale?” at that point?Report

    • Oscar Gordon in reply to Mike Schilling says:

      Kleinhendler, not shutting up:
      Fraud vitiates everything. Court has broad inherent equitable powers.

      Still yammering on trying to undo Campbell’s work.

      Campbell looks like he’s secure in the knowledge that the check cleared.

      I ROTFLOL’dReport

    • Oscar Gordon in reply to Mike Schilling says:

      Question for the legals: Why do the Kraken lawyers keep going on about an evidentiary hearing?Report

      • CJColucci in reply to Oscar Gordon says:

        Are you looking for an explanation that makes sense or an explanation that corresponds to what they’re probably doing?Report

        • Oscar Gordon in reply to CJColucci says:

          Both, maybe?

          How about, what is the purpose of an evidentiary hearing, and why they seem to think it will make everything all better for themselves?

          And if that is a post worthy kind of explanation, I’ll understand if folks want to waive off on that.Report

          • JS in reply to Oscar Gordon says:

            “How about, what is the purpose of an evidentiary hearing, and why they seem to think it will make everything all better for themselves?”

            It’s the bit where the folks who signed the sworn affidavits are placed on the stand, put under oath, and questioned by attorneys for both sides.

            The Kraken’s position was, basically, “If you hadn’t stopped our cases, the defense would have figured out who lied on their sworn affidavits then, and we’d have withdrawn them. So it’s okay we filed false claims, because they’d have been removed later! In fact, it’s YOUR –the COURTS — fault, not ours, because you stopped us from getting to that stage.”

            FWIW, “the fact that the other side will expose our lies” does not, in fact, suddenly make lying to the Court okay.Report

          • CJColucci in reply to Oscar Gordon says:

            I’ll give it a shot. In a normal case, lawyers present affidavits to a court to prove either that X is the case, or, more commonly, that there is a serious issue about whether X is the case. If the affidavits are any good, they will contain testimony, based on the actual knowledge of the witnesses, about some fact or other that supports their claim, or defeats the other side’s claim.

            Usually, the judge can’t decide the case based on the affidavits because the affidavits (usually written by lawyers) are, by their nature, one-sided and untested by cross-examination. The witness could be mistaken or even lying, and you can’t determine that by staring at an affidavit. So, if the affidavits, taken at face value, say relevant things that, if true, support or defeat a claim, the judge holds an evidentiary hearing, where the witnesses come in live, get sworn in, testify, and subject themselves to cross-examination. Then the judge decides whom to believe and decides the issue. (Sometimes, the issue is not what the judge thinks is true, but whether there is enough of a factual dispute to go to a jury and let them decide.)

            But all that presupposes that the affidavits contain facts within the personal knowledge of the witness and that those facts, if true, amount to something legally relevant. If they don’t, no evidentiary hearing. And that’s what happened here.

            So what are the Krakens up to? Either of two things. Maybe both. They could just be making the reflexive argument that we’ve got affidavits, dammit, so let’s have an evidentiary hearing. Maybe they actually believe that — since it is all too easy for lawyers to convince themselves that whatever is in their client’s interest is true, which is why objective reasonableness, rather than subjective belief, is the usual test for sanctions — and maybe they don’t. But they could also have been trying to get more play in the court of public opinion for their absurd claims and feeble evidence. Or both.Report

            • JS in reply to CJColucci says:

              I dunno man, some of that stuff was really bad.

              I mean hearsay of hearsay, even. And then the Spyder stuff.

              It was Tweets with a filing fee, and now they’re grasping at straws trying to protect themselves.

              I don’t think they expected to the Judge to come after them so hard over the affidavits and how bad they were — I think they were expected more arguments on their legal reasoning, that “You had to know much of these ‘sworn affidavits’ was inadmissible or BS” was not what they thought the focus would be.

              And maybe it’s generally not for cases dismissed right away, but the Kraken not only went with sheer quantity of BS, they quality was…it’s like there was a competition for the worst possible, least admissible, most questionable affidavits and they won the lottery.Report

              • Dark Matter in reply to JS says:

                it’s like there was a competition for the worst possible, least admissible, most questionable affidavits and they won the lottery.

                Survivor bias.

                With paranormal science, the better scientists find nothing and so report nothing. Ergo the scientists who do report stuff aren’t very good.

                The same thing happened here. Good Lawyers couldn’t find anything reasonable to submit so they submitted nothing. Ergo the lawyers who chased this are by definition bad.

                There was a lot of lawyer shopping before this point, and the ones who said “no” are not in the news.Report

              • I remember reading some “where have the RNC’s usual law firms gone?” pieces shortly after the election.Report

              • Oscar Gordon in reply to Michael Cain says:

                That was a huge red flag for me regarding the veracity of these claims. If the white shoe law firms the RNC had on speed dial were sitting this out, chances were pretty good there was nothing worth looking at.

                Or, it was all horribly corrupt, but Trumps seeming inability to pay people meant they weren’t willing to jump on that grenade.

                But I figured option 1 was more likely.Report

              • It would be fun if Trump called the good lawyers and hung up the minute they said the word “retainer”.Report

              • Dark Matter in reply to Michael Cain says:

                Lawyerly Prime Directive #0: Do not get yourself disbarred.Report

              • CJColucci in reply to JS says:

                Just to be clear, I don’t think we disagree. My focus was on the general process, yours on the specific deficiencies in this case, as to which I agree entirely.Report

      • JS in reply to Oscar Gordon says:

        it’s their only defense, that’s why.

        basically, they filed false claims with the Court (such as the Spyder stuff). Stuff they, in the Judge’s opinion, should have known were false. They also filed a literal ton of hearsay (which they also knew and shouldn’t have filed, because it’s not admissible), and then filed a bunch of….non-hearsay that had nothing to do with anything. (“I saw a guy with a bag. I bet that bag contained ballots they were using to stuff the boxes with. I never saw what was in the bag.”).

        They can’t really hide behind “I didn’t know they were false claims” and “I didn’t know it was just hearsay” or “I didn’t know it had no validity or evidentiary value”. It wasn’t subtle stuff. And all three (especially the lying part) are things the Court gets…unhappy about.

        So they’ve settled on the only thing they could: “We only filed them because we were in a hurry, and we were totally gonna vet them in the future and it’d have all come out in the evidentiary hearing ESPECIALLY and we’d have just withdrawn it then. it wouldn’t have mattered, see? It’d have fixed itself.” (They went on to — no kidding — basically add: “in fact, it’s the Court’s fault for dismissing it. Not ours”. Not…recommended.)

        The evidentiary hearing is where, you know, cross-examination and basic lawyer wrangling of witnesses begins. So the Kraken team, basically, is saying “Okay, we filed some lies with the Courts. But if the process had continued, the defense would have easily shown they were lies, and we’d have totally withdrawn them, so that SOMEHOW MAKES IT OKAY.”

        Basically they were trying to argue “mistakes were made because we were pressed for time” and “It’s okay, because the defense would have totally caught it”.

        The problem for them is (1) the Judge pointed out they never withdrew any of them, even as months passed and further that some weren’t filed for days or weeks after they could have been, so they weren’t pressed for time and (2) never in the history of the Courts has it been okay to file false claims or hearsay because “the other side would figure it out then and we’d just withdraw it and it wouldn’t matter”.

        Bluntly put, the Kraken lawyers should have been very quiet and very deferential and let their lawyer speak for them and hope to hell the Judge was forgiving because was they effectively DID was officially lie to the Courts. They filed documents they knew were false, and “But we didn’t actually vet them so it’s okay” is not a loophole for filing sworn affidavits that were, bluntly, not true.Report

  5. Greginak says:

    Fwiw Schumer with a couple of D Co sponsors and no R sponsors has proposed a big pot legalization bill. Lots of good stuff in the bill worthy of its own post though they tragically failed to come up with a good acronym. CAOA…. WTF is that. Ds just can’t do anything right.Report

    • Jaybird in reply to Greginak says:

      It’s got a 25% tax and they said that they don’t have the votes.

      But forcing the Republicans to “filibuster” instead of whining that they can’t do anything because the Republicans would filibuster is the better option.

      Good for them. Even if it wouldn’t fix the problems they’re ostensibly trying to fix.Report

      • Greginak in reply to Jaybird says:

        Yup its got a tax. Some of which will go to a variety of restorative programs so thumbs up from me. Let the negotiating begin. If something like it passes it will be a vast improvement.Report

        • Jaybird in reply to Greginak says:

          Greg, let me clarify: my complaint is not that it is *A* tax.

          It is that it is a *25%* tax.Report

          • Philip H in reply to Jaybird says:

            WHO estimates total taxes on cigarettes at 42.5% of the prices of a pack. Phillip Morris estimated a decade ago that taxes were 55% of a pack. Doesn’t seem to have slowed sales any . . .Report

            • Jaybird in reply to Philip H says:

              It seems to have slowed sales by around 2/3rds.

              From what I understand, if you wanted to make your own cigarettes with your own tobacco, you probably couldn’t. I mean, it’s a bigger pain in the butt than making your own beer. You’d need a shed. Maybe two sheds. Much more of a pain in the butt than just having a square yard in the garage.

              If you wanted to grow your own pot, you could. If you wanted to go vaguely undetectable, you could do one of the Home Depot 5-gallon Homer bucket setups. You just need to be vaguely conscientious and have access to a wall outlet.

              If you were willing to grow outside (pollen will adulterate your females!), you can forget about the wall outlet and just remember to use a hose every other day.Report

              • Dark Matter in reply to Jaybird says:

                One of my daughters makes her own Kombucha. It’s very good.

                This is more of a “money” thing and “fun with chemistry” than anything else.Report

              • Jaybird in reply to Dark Matter says:

                I betcha it’s in the same range of quality of what you get at the supermarket (for only a fraction of the price).

                I have met dozens of people who made their own beer, a handful of people who grew their own weed, and a couple of people who made their own Kombucha.

                I have never met a *single* person who grew his own tobacco.Report

              • Oscar Gordon in reply to Jaybird says:

                That’s because tobacco is a bit of an a$$hole of a plant that requires quite a bit of care, and that does bad things to the soil after a time.Report

    • JS in reply to Greginak says:

      Hey look, the correct branch of government is trying to legalize pot.

      Maybe now I can stop being forced to listen to idiots who claim it can be done via EO, or by “Saturday Night Massacring” their way down the DEA or FDA.

      You’d think after watching Trump slam head first into the Courts — over and over and OVER — because he failed to follow even basic law on regulatory changes, they’d have worked out that the President is not a King, and Congress didn’t stupidly allow the Executive to just add, remove, or alter regulations willy-nilly but actually put some actual, legally required steps in there.

      Which, you know, would bounce your pot legalization via Saturday Night Massacre right off the Courts for failure to follow ANY of the LEGALLY REQUIRED steps to reschedule a drug.Report

      • Greginak in reply to JS says:

        I get where you are coming from. The Prez cant bogart all the legislation. He has to pass it around so everybody gets a hit or all the good vibes are ruined.

        Got to do things the right way so it will stick.Report

      • Jaybird in reply to JS says:

        They need you on this page. They’re still arguing:

        Cannabis could be rescheduled either legislatively, through Congress, or through the executive branch.

        Report

        • JS in reply to Jaybird says:

          My very last paragraph:

          “Which, you know, would bounce your pot legalization via Saturday Night Massacre right off the Courts for failure to follow ANY of the LEGALLY REQUIRED steps to reschedule a drug.”

          But you knew that. You read it. Why let facts get in the way of whatever anti-communication you’re indulging in today?

          Jesus, for a supposedly “smart guy” was three paragraphs just too much for you to read?

          Oh wait, no. You just do the usual thing where you randomly ascribe people positions and refuse to READ THEIR ACTUAL WORDS.Report

      • North in reply to JS says:

        Biden is ostensibly pretty lukewarm (to cold) on pot legalization but if Congress passes it I have virtually no doubt he’d sign the thing in a heartbeat. Good on Schumer, I wish him all the best on his endeavor.

        Here in Minnesota pot legalization is trapped in a new quandary. We’re one GOP senator shy of being able to pass it and, unfortunately, the GOP has realized that as long as pot remains illegal the “legalize pot nao” parties (real and GOP invented) drain votes off the Dems from the left. So now they have an electoral as well as a policy reason to oppose legalization damn it.Report

    • Chip Daniels in reply to Greginak says:

      Senate Bill 420 would be the appropriate title.Report

  6. Jaybird says:

    WW8… I thought that you could say pretty much whatever you wanted in Closing Arguments.

    Not if the appeals judge is in the pocket of somebody, I guess…Report

    • CJColucci in reply to Jaybird says:

      It is not true anywhere that you can “say pretty much whatever you wanted in Closing Arguments.” From reading the decision and following up on some of the cases cited, however, it does appear that Florida is more restrictive than most states. Judge Gross’s concurring opinion says that Florida law is too restrictive,though he was constrained to apply it.
      Attributing the decision, compelled as it is by existing, if silly, law, to the judges being “in the pocket of somebody,” might land you in legal trouble if anyone took what you said seriously.Report

  7. Oscar Gordon says:

    Again, links or you are talking out of your nethers.

    You and all your other sock puppet accounts are like a living, breathing Gish Gallop.Report