Wednesday Writs: Soulless Enterprise of Death Edition
Courtroom at the Boone County Courthouse in Harrison, Arkansas. Photo by Brandonrush, CC0, via Wikimedia Commons
WW 1: If you were unaware, in many states there exists a “backlog” of hundreds of thousands of “rape kits”, the collected DNA evidence from sexual assaults, waiting to be examined. Some make it to the lab only to sit unanalyzed due to lack of resources and manpower; others never make it to the lab at all, sitting forgotten in an evidence room somewhere. Several organizations such as R.A.I.N.N. and the “End the Backlog” Program (founded by Mariska Hargitay of Law & Order: SVU fame) exist to raise funds and awareness in an attempt to get these kits tested and perhaps find justice for survivors. Some states have passed laws to address the issue. A new law in Georgia took effect on July 1 will allow survivors to “track” their test kits, enabling them to go online and find out where their kit is. There is no indication that this alone will speed up the process, but it is a step in promoting transparency and accountability.
WW 2: New Jersey has dismissed 88,000 marijuana charges, the first batch of some 366,000 such cases in the state to qualify for expungement under decriminalization laws passed in February. Eligible charges include selling or possession of less than one ounce of marijuana, possession of drug paraphernalia, being under the influence, and possessing marijuana while in vehicle.
WW 3: On the flip side – and the other side of the country – the city of Seattle has filed civil forfeiture on the homes, cars, and money of a man convicted of growing more marijuana than his license allowed. The criminal charges resulted in a $500 fine and 5 days on a work crew, but the city is intent on taking everything he owns.
WW 4: In North Carolina, an elderly woman in a nursing home drowned in her own fluids, allegedly due to the failure of the facility to provide her with her necessary medication. Her family has sued, but the nursing home claims to have immunity thanks to a state “COVID immunity” law shielding health care workers from liability for damages arising out of “acts or omissions” which occurred during the pandemic – whether the treatment had anything to do with COVID or not.
WW 5: In case you missed it, there was a (figurative) mass murder in Michigan Monday, as U.S. Judge Linda Parker took a bunch of lawyers to the woodshed. The sanctions hearing was a who’s who of lawyers who have cast aside their credibility in the name of Trumpism, including all-stars Sidney Powell, Lin Wood, and Howard Kleinhandler. There were also some great recaps on Twitter, if you want an entertaining play by play:
Good morning, everyone – the sanctions hearing in King v Whitmer is scheduled to kick off in 5 min. I'm livetweeting here.
Online access is via permission from the court; click the "access attendance information" button for the hearing to get access.https://t.co/P4s6mWm62s
— Mike Dunford (@questauthority) July 12, 2021
Oh, man, sanctions hearing in the Kraken MI is ongoing. Thought it started at 9:30
— Akiva Cohen (@AkivaMCohen) July 12, 2021
WW 6: The first Muslim federal court judge was sworn in last month. Judge Zahid Quraishi will preside in the US District Court in New Jersey. During his confirmation, he was asked about his thoughts on Shariah law, a “the dogma lives loudly in you” moment from the other side of the coin. He was confirmed in the senate by a vote of 81 to 16. The “nay” group included pretty much exactly who you would expect: Marsha Blackburn, Ted Cruz, Rand Paul, Josh Hawley, and Tommy Tuberville, among others.
WW 7: It’s been 10 years since Rebecca Zahau was found hanging from the balcony of a mansion in southern California, her hands and feet bound. Authorities ruled her death a suicide, a finding the family – and a civil jury – did not accept. The family won a wrongful death suit against Adam Shacknai, the brother of the mansion’s owner and Zahau’s boyfriend, Jonah. Now, Zahau’s family has filed a complaint about the San Diego County Sheriff’s Department for refusing to release documents related to the investigation, which the Department has refused to reopen.
WW 8: A $37 million verdict against a tobacco company was overturned because of the plaintiff’s lawyer’s passionate, literary reference-filled closing argument, which included calling R.J. Reynolds and Philip Morris a “soulless enterprise of death.” Huh. Was that wrong?
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
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
Dang, imagine being a prosecutor in Florida and being denied use of the term ‘Florida Man’Report
ITYM a defense attorney.
“Yes, your honor, my client’s actions may have been unwise, perhaps dangerous, and arguably a Class A felony, but are these not part and parcel of the glorious tradition of Florida Man?”Report
Well, we did have the shortages last year. Can’t find graphics cards or PlayStations in stock? Literally Orwellian.Report
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
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
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
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
I was prepared to be outraged about WW3 as well… but I read the article and saw this paragraph at the beginning:
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
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
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
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
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
Link?Report
https://twitter.com/questauthority/status/1414561524757192705Report
It’s in the piece :).Report
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
um yeah I don’t see that going over well at all, but I’m no lawyer.Report
How would they be supposed to review the testimony?
How does one vet an affadavit?Report
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
>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
I ROTFLOL’dReport
The way the kraken lawyers kept digging themselves deeper was a hilarious running thread.Report
They weren’t hired for their competency.
“Are you not entertained” was a good description of that Opening GambitReport
I think someone summed the whole thing up as:
“Some lawyers tried to get out of the hole by climbing on top of other lawyers. Unfortunately, they were hampered because the ones they climbed on top of kept digging”Report
“Fraud vitiates everything”
Just to weigh in here, the case they’re quoting? SCOTUS decided that fraud does not, in fact, vitiate everything.Report
Question for the legals: Why do the Kraken lawyers keep going on about an evidentiary hearing?Report
Are you looking for an explanation that makes sense or an explanation that corresponds to what they’re probably doing?Report
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
“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
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
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
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
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
Lawyerly Prime Directive #0: Do not get yourself disbarred.Report
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
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
This, and the comments above… thank you for that, CJ, it helps quite a bit.Report
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
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
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
Greg, let me clarify: my complaint is not that it is *A* tax.
It is that it is a *25%* tax.Report
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
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
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
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
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
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
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
They need you on this page. They’re still arguing:
Report
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
I was just arguing that the ability to reschedule the Devil’s Lettuce is not limited to the legislative… and that it would, theoretically, be possible for the executive to do it.Report
And if you want to see the comment thread in which we discussed this back in 2016, here it is.Report
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
Senate Bill 420 would be the appropriate title.Report
I would take back all the bad things I’ve said about Schumer if he had somehow wrangled a way for it to actually be numbered that.Report
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
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
Best not to take anyone seriously anymore.
Particularly not juries.Report
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
I have kinda noticed that there seems to be one person posting under multiple, ever shifting names.Report