BeldarBlog: September 2007 Archives

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Friday, September 28, 2007

Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea

I've looked at a whole bunch of press accounts of Wednesday afternoon's hearing on Larry Craig's motion to withdraw his guilty plea. This report of the hearing, from the WaPo, is about as detailed as any I've seen:

A Minnesota judge reacted skeptically Wednesday to Sen. Larry E. Craig's bid to withdraw his guilty plea to disorderly conduct in a Minneapolis airport restroom, asking why the Idaho Republican should be allowed to renew his defense.

Hennepin County District Judge Charles A. Porter said he would not rule on Craig's request until next week, and Craig softened his pledge to resign from the Senate by Sunday if his case was not resolved, announcing that he would remain in office "for now."

....

The judge asked only one procedural question of the prosecutors who after the hearing expressed confidence. "We feel like we have a very strong case," said Patrick Hogan, spokesman for the Metropolitan Airports Commission, which oversees the airport police. "I think the facts are clear."

Oh, so it's just "one procedural question," is it? No drama there. Probably had to do with some picky little rule or something. There can't be any need to explain that in any more detail, can there?

This leaves me banging my head on my desktop. What if the exchange was this?

THE COURT: Mr. Renz, I just have one question for you. When you drafted the written motion for Sen. Craig to enter his guilty plea to the disorderly conduct charge for him to review, sign, and mail back, you obviously knew that it would be presented to the Court by mail and without a written in-person appearance at which the Court could conduct a colloquy on the record to confirm the details of the plea. And you also knew that at least up to that point, no counsel had entered an appearance for Sen. Craig, and he appeared to be trying to represent himself pro se. So did the State do anything to ensure that this plea tracked or complied with the following provisions of the Minnesota Rules of Criminal Procedure: Rule 15.02(3), as incorporated for mail-in pleas by Rule 15.03; Appendices B or C to Rule 15; or Form 11?

MR. RENZ: No, Your Honor.

Now, a question like that would induce narcolepsy in most reporters. But if that was the "one procedural question," that might strongly suggest that there was a whole 'nuther ball game, sports fans, that the reporters didn't even realize was being played. A couple of weeks ago, I wrote:

My revised estimation is that Sen. Craig's odds of prevailing on his motion are somewhere below 5%. The only kind of judge who could grant this motion would be the kind who elevates procedural form over all substance, who cares nothing about whether procedural violations have even arguably prejudiced the defendant, and who is also remarkably unoffended by lawyers and litigants who lack fundamental candor.

I still think that's right. But since, in my judgment, Craig's only real chance is based on procedural arguments, it would be kind of nice to know what "one procedural question" Judge Porter asked. If it were as tightly focused on what the prosecution did wrong as the hypothetical question I just drafted, the answer to that one question alone might indicate that Judge Porter puts a pretty high premium on complying strictly with all of the procedural niceties, especially when it comes to something as fundamental as the exercise or waiver of a defendant's right to counsel.

So: Has anyone seen a press account of the hearing that quotes or even closely paraphrases what the "one procedural question" actually was?

There apparently was no live testimony; if anyone objected to the other side's affidavit evidence as hearsay, that hasn't been reported. Apparently neither side has my own gambler's instinct — although if either side did have good grounds to want to stick close to the written briefs, affidavits, and exhibits already on file, it would have been the prosecution.

Craig's team desperately needed to throw the ball all the way to the end zone, in my opinion, to have even a chance of getting to play in over-time. Instead, lead counsel Billy Martin apparently ran an off-tackle left, which Judge Porter stuffed for a one-yard loss (the argument that nothing Craig did could have constituted disorderly conduct); tossed to Minneapolis co-counsel Thomas Kelly on an end-around, which was stopped for a six-yard loss (the unbriefed argument that Craig's written plea needed to have a judge's signature on it); fired an incomplete pass at his own feet (leaving Craig in Washington instead of having him attend the hearing in person); and then punted as the final seconds ticked off the clock (Craig's statement to the press that pending a ruling, he intends to stay in office).

Unless the "one procedural question" turned into a prosecution fumble that was returned for a TD without anyone noticing, then, Judge Porter's likely to blow the whistle overruling Craig's motion, and consequently ending his career, early next week.

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Previous posts on the Craig matter, oldest to most recent:

Posted by Beldar at 06:10 AM | Permalink | Comments (4)

Wednesday, September 26, 2007

Review: Ron Liebman's "Death by Rodrigo"

Long ago in the spring of 1979, when I was the incoming book review editor for the Texas Law Review, the out-going book review editor told me a secret:

"Book publishers like to see their books reviewed in serious periodicals like ours," he said. "Sells more books. So if you write them a letter asking nicely, most times they'll send us a free 'review copy' of their new books! You can skim the book and see if you think it's worth reviewing. Sometimes, though, you can tell even before you get it that a book is going to be worth our reviewing, so you don't have to wait for the book. You can go ahead and start lining up a reviewer, and then forward the book as soon as you get it."

And thus I learned that part of my job was to scour the pages of magazines and newspapers that mentioned newly-released, or even soon anticipated, books about legal topics, to consider them as possible candidates for which we'd seek distinguished law professors to write book reviews for the Texas Law Review. The professors, of course, got to keep the books, but still: What a deal! Free books — and new ones, in hardback!

*******

'Death by Rodrigo' Fast-forward twenty-seven years. I get a really polite email from a well-spoken publicist at Simon & Schuster, a serious publishing company on anyone's list of serious publishing companies, asking me if I'd like a review copy of Ron Liebman's new novel, Death by Rodrigo. "Sure," I write back. The book arrives in the mail a few days later with a nice hand-written note on embossed note-card stock from the publicist enclosed. Very classy. No visible strings.

And objectively, this is the kind of handsome book I might have bought out of my own pocket in an airport bookstore somewhere anyway, because I like books, and I like hardbacks, and I like books about courtroom lawyers — and from the jacket blurb raves, this particular one sounds like it will be pretty funny. And I'm not particularly offended by the jacket art. Hey, it's discreet; I've seen truck mudflaps that are much more raunchy. When I'm in airport bookstores, I don't look for books with silhouettes of strippers pole-dancing on inverted gavels, but that's no reason not to buy a book, is it?

I hit the internet before I open the book. Liebman, per his law firm's website and the looseleaf promo sheet also enclosed with the book, is a senior partner in the litigation section of a serious Washington law firm, Patton Boggs. Pretty interesting résumé, even discounting for the puffery inherent in all such online efforts: Among other things, he apparently had something to do as an AUSA prosecuting Spiro Agnew once upon a time, which must have been a hoot (while, of course, being very, very serious business). He clerked for a U.S. District Judge in Baltimore back in the day, which means he'd seen the soup-to-nuts practice even before he arrived inside the Beltway. That's intriguing. War-horse, not show-horse, stuff.

The promo sheet also says he "plays in a rock band," though. Oh. Really? They were smart to leave that off the book jacket.

Nineteen pages into the book, however — at the end of Chapter One — I just hated it. "Wow," I thought to myself, "I'd like to keep getting nice free books from Simon & Schuster, but not at the price of writing a puff-piece review on my blog that I don't really mean." It's funny enough, I'm thinking, but not quite as funny as I'd been led to believe by the jacket blurbs. It doesn't seem very novel, as novels go.

But then the book really surprised me, at the beginning of Chapter Two.

A non-cartoonish discussion of SCOTUS Justices and their rulings

This is a grumpy post, but that's the way I feel tonight. Further to Sunday's post about people who write about the Supreme Court:

If you read these three blog posts by Ed Whelan on NRO's "Bench Memos" blog — here, here, and here — you will get a non-cartoonish understanding of a series of important issues relating mostly to SCOTUS abortion precedents that Jeffrey Toobin's book The Nine treats in a shallow, cartoonish, and demonstrably wrong fashion.

Ed is a smart guy. He writes well and concisely, which means that I often have to read the individual sentences in his blog posts more than once to ensure than I'm grasping what he's said. (This is a good thing; it means that sharper minds than mine can spend less time reading his posts than the ones I write here, which are intended to be mostly understandable on a quick pass-through; but I lack Ed's discipline.) He is a sophisticated observer, and he's not talking through one of his nether orifices to please some editor or any particular audience.

*******

Let me try to come at this another way. I emphatically, fervently believe that the Supreme Court Justice of the last half-century (my life-time) whom I respect least — Mr. Justice Harry Andrew Blackmun, the author of (among many thousands of other opinions) Roe v. Wade — was a hard-working, intelligent, patriotic, admirable man who was doing his human best, as he saw it, to further the Rule of Law and to protect and defend the Constitution of the United States and the country it establishes. If his ghost appears on my doorstep tonight, I will shake its hand and praise its live human predecessor's lifetime of devout service to our country. If the sum total of my life's accomplishments amount to a fraction of his, I will die happy.

Nevertheless, I think he was, relatively speaking, an awful Justice who, by the time he retired, was messing things up as best he could, despite his best intentions, with virtually every vote.

But the explanation for why he was doing that requires a detailed discussion, and a thorough appreciation, of the issues involved in the cases on which he was voting. If I encountered someone in the proverbial bar room in which I'd had maybe one too many, who then said, "Yeah, that Blackmun, he was a real a**hole and a Communist to boot," I'd probably punch that guy's lights out and end up spending the rest of the night in jail. Even Harry Blackmun — in my view the worst Justice of the modern Supreme Court — deserves better than that sort of shallow dismissal.

I emphatically do not think that one has to have a law degree from anywhere, much less one from Harvard, Yale, or Stanford, to formulate and voice a meaningful opinion about the work of the Supreme Court of the United States. Law professors, law review students and editors, and (occasionally) judges engage in those debates in the formal, constipated, useful, and inaccessible pages of law reviews (and less often, in judicial opinions) — thereby self-limiting their audiences very sharply. But the premise of my blog — the reason I write this damned thing — is my conviction that the law is not, and ought not be, inexplicable to a broader audience.

And I'll be damned if I'll try to pander to that broader audience by writing variations of:

Justice ___ voted ___ because his daddy was falsely accused of insurance fraud in 1934; or
Justice ___ says ___ was the wrong decision because she was really chapped that Dubya didn't name another woman to the SCOTUS to take her slot; or
Justice ____ voted ___ because he's in BusHitler's pocket on the war on terror.

*******

Facts matter. Prior precedents matter. Proceedings in the lower courts matter. The quality of the arguments of counsel, and of the arguments among judges, matter.

The law isn't a damned Pachinko machine, and neither Snidely Whiplash nor Dudley Do-Right sit on the Supreme Court.

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UPDATE (Wed Sep 26th @ wee-small-hours): I'm late in finding it, but I endorse and adopt Prof. Ann Althouse's views in this op-ed.

Posted by Beldar at 12:58 AM in Law (2007) | Permalink | Comments (3)

Tuesday, September 25, 2007

Comma quote Jay period Dee period unquote

Without exception, I think every single law school graduate whom I've ever encountered who signs his or her name "John Doe, J.D." has been a shallow, pompous dimwit. But how much more pompous must one be to sign a blog comment that way?

In my professional correspondence (but nowhere else), in the inside address, I'll append the honorific ", Esq." after the names of both male and female lawyers (other than myself). It's a cost-free sign of respect, but it actually serves a more practical purpose because it's a reminder for me at a later glance if the addressee is a lawyer or a layperson; and there are different ethical rules that govern my communications with each.

I don't really even have a problem with doctors and dentists or even PhDs who engage in the whole cult of "Doctor This" and "Doctor That." Fine, whatever.

And finally, I humbly submit the entirety of this blog as a tribute to my respect and awe for the mystic, ever-revered Rule of Law, the practical and tangible institutions of the law, and the majestic, mysterious challenges and rewards of the practice of law (when done right or reasonably close thereto).

But "J.D." by itself does not denote membership in a very exclusive club. So to my fellow law school graduates who haven't figured it out yet: Signing your name with a ", J.D." after it tells us all a lot about you, and the information so conveyed is probably useful for us to have. It's not, however, likely to create the impression that you intended.

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UPDATE (Wed Sep 26 @ 1:45am): Follow-up comments here and here. On further investigation, I like the commenter — who thinks I'm a smug bastard, to which I plead nolo contendere without prejudice to the reputation of my parents — better, despite our differing political views. Still think she ought to drop the ", J.D." though, for it can lead to over-harsh first assessments (as mine was, for which, although provoked, I apologize).

Posted by Beldar at 08:56 PM in Humor, Law (2007), Weblogs | Permalink | Comments (14)

Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand

Maybe Washington hotshot lawyer Billy Martin has been reading my recommendations to prosecutor Chris Renz that Renz pop Martin's client, Sen. Larry Craig, onto the witness stand at tomorrow's hearing on Craig's motion to withdraw his guilty plea. According to the Associated Press:

Senator Larry Craig won't be there when his lawyers go to court in Minnesota tomorrow in search of a rare legal prize — a do-over.

A spokeswoman for Craig attorney Billy Martin says the Idaho Republican won't be attending the hearing at a suburban Minneapolis courthouse.

And per a CBS News report (actually quoting a blog on Politico.com):

Sen. Larry Craig (R-Idaho) told reporters that he will not attend his hearing tomorrow in Minnesota on seeking the withdrawal of his guilty plea in a men's room sex sting.

"I've been advised not to," Craig said at the Capitol. "I have very competent lawyers."

Craig then slipped into the Senate Republican Conference luncheon and ignored further questions.

In the meantime, Craig continues to be coy on whether he'll go through with his announced intention to formally resign from the Senate on September 30th.

Craig's public announcement of that his lawyers have advised him not to attend the hearing is all the more reason for Renz to make a formal hearsay objection on the record to Craig's affidavit, as attached to Craig's motion.

"Your Honor," Renz should say, "in support of his motion to withdraw his guilty plea, Sen. Craig has asked the Court to venture outside the record that was already on file when the Court accepted his guilty plea. He filed a detailed written affidavit that raises factual questions about his state of mind, his intentions, what was said to him by the arresting officer, and a variety of other crucial facts upon which his entire motion depends. Some statements in the affidavit are conclusory; but some are very detailed.

"The prosecution is perfectly willing to address those facts too, Your Honor," Renz should continue, "But only in the manner prescribed by rules of evidence for the adversary system. Sen. Craig's affidavit is an out-of-court statement. Although sworn, it was not subject to cross-examination. His lawyers are offering the affidavit to prove the truth of the factual allegations in it. The affidavit is, therefore, hearsay. The prosecution therefore objects to the affidavit, and moves to strike it from the record. We will have no objection, however, if — to try to prove the facts as to which he's already attested in his affidavit — Sen. Craig takes the witness stand.

"By filing his affidavit," Renz should say, "Sen. Craig has already waived his constitutional privilege against self-incrimination, if only for purposes of this motion and on the topics he voluntarily addressed in his affidavit. The prosecution disputes some of his factual assertions, and justice requires that we be permitted to cross-examine Sen. Craig on those assertions. The prosecution has submitted a counter-affidavit, my own, to challenge some of Sen. Craig's factual assertions and to add context on factual matters that he ignored. And yes, it is also subject to a valid hearsay objection, if Sen. Craig's lawyers choose to make one. But the prosecution has no objection to being required to prove those facts through my own live testimony, and I have no reluctance to subject myself to cross-examination from Sen. Craig's lawyers. Indeed, I have with me a colleague from my firm to take over as first chair for the prosecution while I'm on the witness stand.

"No doubt as a tactical maneuver," Renz should wind up, "Sen. Craig's counsel has not brought him to this hearing. Sen. Craig has been quoted in the national media as saying he would not attend, and that that decision was based on the advice of his counsel. But if the Court sustains — as it must, under the rules of evidence — the prosecution's hearsay objection to Sen. Craig's affidavit, then the prosecution will have no objection to a one-day adjournment of this hearing in order that Mr. Martin can secure Sen. Craig's personal attendance. The State's interest is not in hiding any facts, but rather, in fully developing them. And we welcome the opportunity to do so — provided that is done in accordance with the rules of evidence, and not through a self-serving piece of testimony drafted for Sen. Craig by his lawyers at the same time they're trying to immunize his testimonial assertions from being tested by cross-examination."

Craig's lawyers are trying to have their cake and eat it too. Craig's non-appearance sends a powerful, if implicit, message that he has a good reason to be scared to come to court. And in fact, he does, because the truth will sink him.

But Renz ought not be content with Craig's non-appearance, and he definitely ought not let Craig's lawyers get away with trying to use Craig's affidavit without Craig being there live for cross-examination. The hearsay objection is an absolutely valid one as a matter of basic evidentiary law. It should be sustained. And then, if faced with the decision whether (a) to take the stand in support of his motion to withdraw his plea or (b) simply withdrawing that motion altogether and letting his guilty plea and conviction stand, Craig might well take the latter option.

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Previous posts on the Craig matter, oldest to most recent:

Posted by Beldar at 05:51 PM in Law (2007) | Permalink | Comments (6)

Monday, September 24, 2007

Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea

Think of the motion filed by Craig's lawyers to withdraw his guilty plea as a piñata. Now, piñatas are often donkeys, but Craig's a Republican. I can't find a good picture of an elephant piñata, however. So think of Craig's motion as being a clown piñata.

Clown piñatas I've been to enough kids' birthday parties and, heck, bought and hung enough piñatas for my own kids, to appreciate that the darned things (the piñatas, not just the kids) can sometimes be tougher than they look. But at least since I read the cover letter under which part-time prosecutor Chris Renz mailed Sen. Larry Craig the proposed motion to enter a guilty plea to disorderly conduct in exchange for the dismissal of a far more serious peeping charge, I've known that this particular piñata is paper-thin. It may be festooned with lots of colored paper and ribbons, but it's poorly crafted. And at its best moment, it was already hanging from a slender, very frayed thread.

To extend the metaphor: Think of prosecutor Renz' 41-page response to Craig's motion (a hefty 2.3 megabyte .pdf file) and 33-page supporting affidavit with exhibits (which weighs in at a comparatively svelte 1.7 megs in .pdf) as large broom handles. They're a bit rough in a few spots; they're workmanlike, functional tools, not works of art. And as wielded, they don't quite knock the piñata all the way out of the park.

But then again, it's just a piñata, after all, and not a horse-hide covered baseball — and these broom handles are far more than adequate to knock it down and pound it repeatedly until nothing is left but dozens of messy little clown piñata pieces.

And the piñata turned out to be empty inside anyway, which I guess really isn't that much of a surprise after all. I think this Wednesday's ~~party~~ hearing is likely to be a grim one for Sen. Craig and his team.

*******

Renz' filings today, now available as part of a handy court website, add more texture and detail that largely confirm the inferences I've previously drawn about the plea negotiation process. Not counting voicemails, Renz spoke with Craig by telephone on three different occasions — on June 25th, just as Sgt. Karsnia and Renz were finishing up the paperwork for the complaint; then again on July 17th, when they discussed in detail the plea bargain terms that Renz had outlined in their first conversation; and then again briefly on July 31st. In terms of what's new and important, here are the two key paragraphs (from pp. 3-4 of the affidavit; emphasis mine):

13. On July 17, 2007, I spoke with the Defendant and explained that in exchange for a plea of guilty to the charge of disorderly conduct, the interference with privacy charge would be dismissed. I told the Defendant that the sentence would be 10 days of jail, all of which would be stayed for a year on the condition that the Defendant have no same or similar violations, and a $1000.00 fine, $500.00 of which would be stayed for one year on the same condition. I told the Defendant that this offer was similar to offers made to other defendants with similar charges. I spoke with the Defendant about the process that would occur for entry of the plea, such as how it would be processed, the people that would see the petition, and the ultimate destination of the petition. I explained that the plea petition would be filed with the court and the petition and conviction would be a matter of public record.

14. During the July 17, 2007 telephone conversation, the Defendant expressed that he was in a difficult situation as a result of the nature of the charges and his position as a United States Senator. I responded to the Defendant that I had appreciation for the fact that this was probably a difficult situation and [I] told him that it was a situation regarding which he should seek advice from an attorney. In that phone conversation, the Defendant asked that I send the plea offer to the same address as the Complaint so that he could review it with an attorney. I also told the Defendant that I would continue his arraignment date that had originally been set by the Court for July 25, 2007 for two weeks so as to allow time for him to consider the plea agreement.

Although more detailed, all of this is entirely consistent with Renz' cover letter (Exhibit B at pp. 13-14 of the affidavit; also here) forwarding the proposed plea motion to Craig, which I discussed at length in my September 12th post, and which I concluded then had already effectively sunk Craig's present hopes to withdraw his plea. Unless Craig is willing to take the stand to deny the authenticity of the cover letter or deny that he received it — and I don't think that's going to happen — Craig's unlikely to be able to effectively challenge any of these supplementary factual details from Renz' affidavit either. Craig's lawyers may try to spin the facts and the inferences that flow from them differently than Renz has, in other words, but they aren't likely to dispute them directly.

And that creates even more serious problems for Craig. One of the most effective portions of Renz' memorandum is his argument (at pp. 35-37) that this history shows that Craig took a calculated gamble that the plea wouldn't be discovered by the press — a gamble that turned out to be a spectacularly bad one, but that after the fact can form no proper basis for Craig to withdraw his guilty plea.

Renz also does a decent job, I think, in arguing (at pp. 37-41) — notwithstanding some incredibly pro-defendant, wishy-washy Minnesota precedent creating no effective or even nominal deadlines for motions to withdraw guilty pleas — that in these circumstances, Craig's plea is nevertheless "untimely." He did not argue (as I would have) that it's particularly significant that Craig failed to file a timely motion for new trial (or to set aside the judgment based on the guilty plea); there's none of the "direct attack/collateral attack" distinction that Texas law makes, and that I think the Minnesota cases may permit even if they don't mandate it. Nevertheless, finding Craig's motion untimely is appropriate, Renz argues, "not because the raw amount of time between the plea and motion is itself necessarily substantial," but rather because Craig "appears to be playing games with the plea and its finality" by "announc[ing] that he planned to seek withdrawal of his plea, but wait[ing] in filing his motion to determine the consequences of waxing and waning public opinion, the support of his fellow politicians, and committees of the legislature."

*******

Otherwise, today's filings do pretty much what I expected they would. They hammer (and re-hammer) the prosecution's obvious strong points, but also touch on a few more subtle ones. They include a good-sized smattering of helpful precedents (which I haven't double-checked, but I have no reason to doubt that they say what they're represented to say, which is all pretty straightforward). Wisely, they don't re-tread the ground already discussed in the prosecution's motion to strike the ACLU's silly amicus brief, which I've previously discussed (here and here).

What's entirely missing is potentially important, but — given how Craig's motion was constructed — no surprise, either: There's no mention, much less discussion, of Rule 15.02 of the Minnesota Rule of Criminal Procedure, as made binding on mail-in pleas by Rule 15.03. Neither is there any mention of Appendix B or Appendix C to Rules 15, which contain forms that at least on their face it would seem that Renz should have followed in drafting the motion to enter the guilty plea. Nor is there any mention of Form 11 — which at least looks like something that either Renz or the court personnel should have insisted that Craig complete before permitting him to represent himself pro se, and that would have certainly cured any alleged Rule 15.02(2) problem with the failure of the plea motion to contain a specific confirmation that Craig knew of, and was making a well-informed and voluntary decision to waive, his right to counsel at every stage of the proceedings, including in connection with the negotiation of his plea bargain and entry of his guilty plea.

But Craig's lawyers did an incredibly poor job of showing the violation of any of those rules or procedures in the first place, or of making any credible argument as to how Craig could have been prejudiced by those violations. And on the whole, Renz' memorandum does a decent if a bit blurry job of at least dispelling the notion that Craig could possibly have been prejudiced by such violations (of the rules Renz' memorandum pointedly fails to discuss).

It may not be too late for Craig's lawyers to remedy their sloppiness, however. Muddled and ineffective as their written motion was, perhaps at the oral argument they can bring laser-like clarity and precision to their showing that these rules were violated. To the extent that Craig has any hope of winning, that, in my judgment, is what they absolutely have to do. And they'd better come up with at least some straight-faced argument — one better than the utterly stupid and implausible "panic" argument from their motion — to show how Craig was actually harmed by the clear violation of those rules.

In fact, to the extent Craig was indeed harmed by failing to have a lawyer, it's not because he necessarily would have fought both charges through trial and won, but because he might well have been able simply to negotiate a much better plea through a lawyer. And thus, if I were Craig's lawyer, I'd pop Renz on the stand specifically to explore the statement in his affidavit that the deal Craig got was "similar" to offers made to comparable defendants (a proposition which the NYT has suggested may be in doubt):

And so, Mr. Renz, did you tell Sen. Craig that in some other 'similar' cases arising out of this same police sting, you'd agreed to pleas involving deferred prosecution or deferred adjudication? You didn't? Oh-ho, I see. And isn't it true that in all those other cases, the defendants did have lawyers to negotiate such a plea on their behalf? I thought so. So the bottom line, Mr. Renz, is that despite all your mouthing of hollow assurances to Sen. Craig about his rights to see a lawyer, you — knowing full well that he was in mortal dread of anyone finding out about this — were content to see him take a 'similar' but really not very good deal, knowing that if he actually did get a lawyer, that lawyer almost certainly would have explored options that didn't necessarily involve any permanent criminal record, much less a guilty plea — isn't that right, Mr. Renz?"

But then again, I also continue to think that Renz ought to pop Craig on the witness stand on Wednesday — and that Craig has far more to lose than the prosecution does if what's scheduled as "oral argument" turns instead into a contested evidentiary hearing. If Renz intends to do that, however, he probably ought to have objected on hearsay grounds to Craig's affidavit as part of his written response to Craig's motion — and he didn't. So maybe his intention is to play it safe, hope that there's no live testimony, and hope his pre-existing advantages from before the hearing carry the prosecution safely through the end of it.

Make no mistake: I continue to think that Craig ought to lose, and that it's overwhelmingly probable that he will lose. But as much fun as I'm having watching and reading about all this from afar, like any real trial lawyer, I wish I were going to be down in the center ring of the circus on Wednesday. And yes, I could have fun representing either side. I'm like an old calvary horse, trained to ride to the sound of the guns. And there will likely be a fair amount of pyrotechnic glory in Minneapolis this Wednesday afternoon (even if it's less than I'd try to set off if I were there in person representing either side)!

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Previous posts on the Craig matter, oldest to most recent:

Posted by Beldar at 08:12 PM in Current Affairs, Law (2007), Politics (2007) | Permalink | Comments (6)

Hillary on the Sunday talking heads shows

Sen. Hillary Clinton (D-NY) Okay, I have to admit: I need treatment myself. Only someone with a serious, serious problem could force himself to watch (via TiVo), back to back, Hillary Clinton appear on Sunday morning talking-head shows from Fox, NBC, CBS, and ABC on one day, but I've just finished doing exactly that. (I don't regularly watch or TiVo CNN's show, but I gather that she was on it, too.)

Stupidest soft-ball masquerading as a question, from a gushing, stumbling, dare we say fawning George Stephanopoulos:

You know, Senator, we're just about out of time. I just want to ask you one, final question. You've seen the presidency from a perspective unlike any first-time candidate ever in American history, up close, unlike any first-time candidacy ever in presidential history. So you know a lot about being president. But what is something that you don't know, that only a president can know?

Answer (completely unscripted and off the cuff, I'm certain) in exactly ninety* tightly packed seconds (with no pause for breath mid-answer):

Well, George, as you have just said, I've seen the presidency in a very, you know, front-row seat on history way, and I know how hard this job is. And you know, you can read books about it, you can think hard about it, and of course, people running for president do. But it is hard to be prepared for the pressure-cooker that the American presidency is today. We have only one person in our country who represents both our state and our government. Most countries divide those responsibilities. So you're the symbolic head of state and you are running the government. And every single day that goes by, the pressures increase, with the 24/7 media environment, with all of the, you know, advances in communication. You have to be grounded. You have to know what you believe. You have to be guided by what you think are the right principles for your country. But there is still no predicting what is going to happen on your watch. And, you know, I know how hard it is, and I think, following President Bush, with some of the problems we have, will make it especially hard. But I'm also confident and optimistic that our country can rise to this challenge. I wouldn't be running if I didn't think that I was the person at this point in our history who could summon that extraordinary resilience and commitment from America again. And I think that we will be able to start both repairing the damage, but more importantly, starting to act like Americans, solving our problems, restoring our leadership in the world. And that's what I look forward to.

The really great jazz musicians can perform a technique called circular breathing, in which they breathe in through their nostrils while continuing, temporarily, to force a simultaneous steady stream of air through their instruments using their cheek and mouth and throat muscles, so as to never stop for a breath during a long solo. Today is the first time I've seen a politician do that.

"Hitting All the Sunday Talk Shows, Clinton Says a Lot but Reveals Little," says the WaPo. Well, yes, but ... you can't help but be impressed with her stamina. Unless ...

Unless she's been cloned. Or ... re-manufactured into multiple android duplicates. Because that would explain a lot, wouldn't it? How did Bill manage to keep Hill standing by her man through all that? Unplug the last one, adjust the memory circuits of the next one, and plug 'er in.

I'm thinking in terms of some sort of DARPA/Disney black ops project run amok. Either that, or something undead.

By far the most scary things were the two mechanical "belly laughs" she delivered in response to questions from Fox News' Chris Wallace. They made my skin crawl. Seriously, if you could digitize those laughs and put them into a small plug-in appliance that would rhythmically pulse them through your house's electrical system, you could drive out all the insects and small vermin, and the FTC wouldn't challenge your advertisements — they'd give you a testimonial endorsement. (I suspect the FDA would find your product to be carcinogenic, though.) As I listened to those laughs — the exact same length, pitch, and timbre both times, and I suspect you could overlay their wave forms in a sound editor and prove that they were both from the same pre-recorded source — I could just imagine the focus group technicians looking at the dials and gauges, one saying to the other, "Have her deliver just one more 'hah!' as part of that, and let's see if the residual marginal antipathy-plasticity factor goes down another half percent, okay?"

The GOP doesn't just need a candidate, friends and neighbors. It needs ... a Slayer.

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UPDATE (Mon Oct 1 @ 5:10pm): I'm only mildly surprised that the "Hillary's laugh" meme has turned out to have some legs. Jeralyn Merritt at TalkLeft cites several pundits who've commented negatively about it, and she thinks their comments are sexist. Although some of the language they've used may have sexist overtones, I don't think that Hillary's XX-chromosomes are really the basis of the most of the commentary. The laughs struck lots of people as odd — not for anything having to do with her sex, but partly because of their seeming inappropriateness to the context, and largely because of timing, the latter of which (as I've discussed already in comments below) is almost certainly due to the satellite link lag between her Chappaqua studio and the host sites for the talking heads shows in Manhattan or D.C. Jon Stewart's riff on The Daily Show gets it right: It's not about her being female, it's more about her being "some sort of synthetic being that cries mercury." And — as I've also tried to make clear in my comments below — it's a fairly trivial issue even to the limited extent that it's a legitimate comment on her personality (or the ruthless suppression thereof), in the nature of a backhanded compliment for being such a disciplined candidate. I no more think Hillary's laugh is a good reason to vote against her than that I thought John Kerry's hairstyle or Boston accent was a good reason to vote against him. I have ample good reasons to vote against either of them based purely on issues of policy and on genuinely important aspects of personal character.

Posted by Beldar at 12:31 AM in 2008 Election, Humor, Politics (2007) | Permalink | Comments (17)

Sunday, September 23, 2007

SCOTUS members and results as cartoon characters and themes

Flashing-eyed Associate Justice John Paul Stevens In response to my short post yesterday on The Jeffrey Rosen's NYT Magazine article about Justice Stevens, one of my commenters, referring to the nine members of the Supreme Court, wrote: "Nobody likes to work with a backstabber and, when the backstabber is one of only nine, relations can't be good."

Here's the thing, though: Yellow journalists masquerading as legal scholars like The Jeffrey Rosen do their very best to persuade us that the Justices view each other in terms like "back-stabbers." In truth, you'll find, for example, Justice Scalia and his wife joining Justice Ginsberg and her husband at the opera several times a year because they like and respect each other despite their very different judicial viewpoints.

Not everyone in this world operates at the schoolyard level of decorum. And in fact, there tends to be a pretty high level of positive correlation between (a) maturity and (b) the set of talents and career histories that can get one appointed to the Supreme Court.

Read Rosen's whole interview with Stevens. Look hard for personal insults toward other Justices that come from Stevens' lips. There aren't any. Instead, you get things like Rosen reporting that Stevens' "eyes [were] flashing" as he talked about Bush v. Gore.

Flashing-eyed Autobot Optimus Prime Wow, really? His eyes were flashing? Way cool: John Paul Stevens as Optimus Prime! Pew-pew-pew! That, plus gossip and innuendo, is what Rosen has to peddle.

In July, I wrote a lengthy review of the best book about the SCOTUS I've read in years, Jan Crawford Greenberg's Supreme Conflict. One of the things that made that book better than most is that it relied very little on the notion that personality and personal politics define judicial outcomes. For the most part, Greenberg avoided turning the Justices into cartoons; and she performed a genuinely useful public service, in a genuinely fascinating manner, by helping us get a better sense of the "people inside the robes."

But where her book was weakest was on those occasions when she did fall prey to the perhaps irresistible temptation to presume that amateur psychology and politics can explain or even predict any given Justice's votes. And less disciplined writers offer almost nothing but that.

My friend Patterico, for example, is reading Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court, which I haven't yet read, and he describes it as "entertaining." But he literally can't get through the book without feeling compelled to turn to his blog keyboard to point out an incredibly obvious internal contradiction in Toobin's writing about Justice Thomas — a contradiction so stunning that one wonders just how bad Toobin's editors must have been. Ann Althouse has had similar reactions (e.g., here, here, and here), as has Eugene Volokh (e.g., here and here).

The Justices themselves generally resist efforts to turn them into cartoons, and sometimes these journalists will quote them directly as they do so. From Rosen's piece on Stevens, for example, consider this (emphasis mine):

In general, Stevens said, the idea that a justice can sway his colleagues through collegiality and personal lobbying — a talent often attributed to Justice William J. Brennan Jr. — is exaggerated. He suggested that in most cases, justices cannot be swayed to change their votes once they make up their minds, and when they can be swayed, it is only as a result of legal arguments, not charm or charisma. "I was very fond of Bill Brennan — loved the guy and had great admiration for him," Stevens said. "But it’s simply not right to say that he was able to craft the majority. He just had five votes on his side!"

So what does Rosen do in the very next paragraph? He insists that Stevens sways colleagues other than through legal arguments, by using an "intellectual" method of persuasion — namely, gamesmanship in assigning the writing of majority opinions:

Stevens himself, however, has been notably successful in building majorities by courting his fellow justices — in particular, Kennedy. His methods of persuasion are intellectual rather than personal, and they are closely tied to the court’s procedure for deciding cases. After the justices hear the oral arguments, they meet in a private conference to deliberate. After the chief justice speaks, each of the remaining justices speaks in order of seniority, so that Stevens speaks second. Then the justices vote, and the majority opinion is assigned. The majority opinion later circulates among the justices, and on rare occasions a justice may then change his or her vote, and a majority can become a dissent. But "you very rarely win votes if there aren’t five votes persuaded after our conference," Stevens stressed. "Very rare."

"Oh-ho!" we're expected to chortle, "That clever Justice Stevens! He's got that Justice Kennedy wrapped around his little finger!" Rosen would thus have us believe that the outcomes of decisions at the highest court in the land are based on B'rer Rabbit strategies, instead of the Justices' very best efforts to decide cases fairly and appropriately based on the actual law.

But suckers nevertheless will eat up melodrama like that dished out by Rosen — and think him wise for having written it, and themselves better-informed for having read it. Life is indeed more entertaining, and vastly simpler, if we reduce all the complexities — of which there are many at the SCOTUS — down to a cartoon level. The question is, gentle reader: Do you choose to be one of those suckers?

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UPDATE (Tue Sep 25 @ 7:08pm): Betsy Newmark highlights another part of Rosen's story — regarding Justice Stevens' military service as one of the codebreakers who helped decrypt Japanese communications that, in turn, led to the successful fighter attack on General Yamamato — and one of my commenters asked for my take on it. My reactions were multi-fold: First, as the son of another Pacific Theater veteran from WW2, I respect and honor Justice Stevens' service.

Second, notwithstanding that respect, it strikes me as entirely understandable from a human perspective, but naïve from a military one, to feel any qualms about a leadership decapitation strategy in wartime — a strategy that surely predates recorded history, and that we saw again as recently as 2003's Iraq War strikes hoping to kill Saddam.

Third and finally, this particular bit of reporting by Rosen is just fine insofar as it helps better acquaint us with Justice Stevens as a living, breathing individual inside his robes, so to speak. But Rosen's assumption that it explains, or even significantly influences, Stevens' votes on death penalty cases is another example of the cartoonish treatment the rest of the article gives to Justice Stevens' work on the Court. Rosen wrote: "Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately." Well, okay. Let's assume that's an accurate paraphrase of something Justice Stevens actually said. That's not the same as saying — and I'm sure Justice Stevens would dispute any suggestion — that his war-time experience is equally or more important than the law, the factual record, and the arguments of counsel in influencing Stevens' votes. Unlike Justices Brennan and Marshall, Stevens does not routinely dissent from denials of cert in death penalty cases. There's no question that he's "liberal" or "predisposed" against death sentences, but it's not for reasons as simple as Rosen's piece implies. And ultimately, it's insulting to Justice Stevens' (or other principled death penalty opponents') intellect to gloss over the real, and very complicated, reasons that he votes as he does.

So: My take, boiled down to seven words: "Interesting. But not profound. And potentially misleading."

Posted by Beldar at 06:04 PM in Law (2007), Mainstream Media, SCOTUS & federal courts | Permalink | Comments (12)

Saturday, September 22, 2007

Best self-debunking line I've read this month

The Jeffrey Rosen, writing in a Sunday's NYT Magazine article about Associate Justice John Paul Stevens, breathlessly informs us:

According to the gossip among Supreme Court law clerks, the level of tension among the justices is higher than at any point since Bush v. Gore in 2000.

And the way these unnamed one-year transient SCOTUS employees (speaking on a not-for-attribution basis) would know this is ...?

Posted by Beldar at 11:19 PM in Law (2007), Mainstream Media, SCOTUS & federal courts | Permalink | Comments (10)

Applause (well, at least a golf clap) for the NYT

It's not often that I have good things to say about the New York Times, and I'm nothing but amused by the utter, predictable failure of their "Times Select" firewall. But in abolishing it, the NYT also decided to make the NYT archives back to 1987 available online for free. That is a praise-worthy decision; here's my praise.

Posted by Beldar at 09:10 PM in Mainstream Media | Permalink | Comments (1)

De gustibus cerevesiae non scit lex

I'm deeply skeptical of attempts by reporters like the NYT's Adam Liptak to draw broad conclusions about how a nominee for a cabinet post might perform based on the nominee's rulings in a handful of cases he's presided over as a judge. I'm even more skeptical of attempts to compare one such judge's stats against other judges' stats — as if it's meaningful that, in a single particular year,

in criminal cases, he was reversed 20 percent of the time, compared with an overall reversal rate from his court of roughly 15 percent in 2006. But in civil cases, his 24 percent reversal rate compared favorably with the overall rate of roughly 30 percent.

Nonetheless, Liptak's attempt to apply these analytic techniques to Attorney General nominee Michael Mukasey is entertaining, including for the bastardized Latin quote above, a holding that the law does not trouble itself to write about the taste of competing brands of beer. And I'm untroubled by the prospect that the future Attorney General may be "fiercely intelligent, prickly, impatient, practical and suspicious of abstractions." The less polite formulation may be "kicks butt and takes names." For an AG-nominee, that counts as good press. The more I read, the more eager I am to hear from Judge Mukasey at his confirmation hearings. I'm ready to get some cerevesiae chilled down, and I might pop popcorn.

Posted by Beldar at 08:39 PM in Law (2007), Politics (2007) | Permalink | Comments (1)

Rather v. CBS: Experts, "boardroom truth" versus "courtroom truth," and settlement values

A premise of the adversary system, as practiced in American civil courts, is that each opposing party, motivated by rational self-interest, will, through its advocates (and the witnesses they call and the evidence they present), make the strongest possible presentations for the propositions that support its case, and against the propositions that support its opponent's case. The system thereby relies on the parties' presumptively opposing self-interests, and the fair and open competition between them, to help promote goals like "truth" and "justice." Factor in a fair judge and jury, the awesome inherent power of cross-examination well performed, and the ability of both sides to compel the production of witnesses and documents via subpoena (both during pretrial discovery and at trial), and you have what is potentially (albeit not always in practice) the greatest engine for the development of the truth ever known to man.

The danger inherent in Dan Rather's new lawsuit against CBS, however, is that neither side's self-interests will necessarily be served by "truth." To the contrary, both sides are undoubtedly guilty of hiding things from the American public in the past, and both are likely to have compelling reasons to continue to hide things — not just from each other, but from the public — as pretrial discovery proceeds.

If, for example, CBS' overriding interest is to defeat Rather's lawsuit by using all the tools of the civil justice system to establish the absolute, objective truth to the satisfaction of a court and jury, then by the close of business today CBS' lawyers will already have at least have attempted to hire Joseph M. Newcomer, PhD as a consulting expert witness, and very likely ultimately as a testifying expert witness. Or if, as is entirely likely, Dr. Newcomer refuses to agree to be engaged by either side, they will nevertheless identify him in due course as a potential non-retained expert upon whose opinion testimony CBS expects to rely at trial.

If you followed Ra^thergate at all as it developed, you will probably recall Dr. Newcomer as having written these very straightforward words at the very beginning and end of his independent initial report on the so-called Killian Memos on September 12, 2004:

First off, before I start getting a lot of the wrong kind of mail: I am not a fan of George Bush. But I am even less a fan of attempts to commit fraud, and particularly by a complete and utter failure of those we entrust to ensure that if the news is at least accurate. I know it is asking far too much to expect the news to be unbiased. But the people involved should not actually lie to us, or promulgate lies created by hoaxers, through their own incompetence.

There has been a lot of activity on the Internet recently concerning the forged CBS documents. I do not even dignify this statement with the traditional weasel-word “alleged,” because it takes approximately 30 seconds for anyone who is knowledgeable in the history of electronic document production to recognize this whole collection is certainly a forgery, and approximately five minutes to prove to anyone technically competent that the documents are a forgery. I was able to replicate two of the documents within a few minutes. At time I am writing this, CBS is stonewalling. They were hoaxed, pure and simple. CBS failed to exercise anything even approximately like due diligence. I am not sure what sort of "expert" they called in to authenticate the document, but anything I say about his qualifications to judge digital typography is likely to be considered libelous (no matter how true they are) and I would not say them in print in a public forum.

....

It is therefore my expert opinion that these documents are modern forgeries.

And in his original, where my ellipsis appears in this quote, you will find a fabulously detailed, well organized, and inherently credible explanation for how he came to that opinion, and what his qualifications are for doing so. He buttressed those conclusions with no less than ten detailed follow-up reports, the last of which is dated January 11, 2005. During the course of those follow-ups, Dr. Newcomer tackled and, in my opinion, thoroughly destroyed a contrary opinion from a Utah State professor named David Hailey, whose final and still wishy-washy conclusion was: "In the end, I am confident I have demonstrated the memos were typed, but I cannot support the argument they were typed on any specific machine." In other words, despite months of efforts and all his supposed expertise, Dr. Hailey could not duplicate the Killian Memos on any typewriter, anywhere. And Dr. Hailey's flailing efforts were by far the most persuasive attempt to even postulate a way in which the Killian Memos might have been genuine.

That's not to say that there aren't lots of other potential expert witnesses that both sides might consider engaging. But if CBS hired me tomorrow to defend it in Dan Rather's lawsuit (which it won't, although it did seem pretty happy the last time I represented CBS News before the Fifth Circuit some years ago), the very next phone number I'd dial would be Dr. Newcomer's. I've dealt with hundreds of expert witnesses and thousands of expert witness reports over the last 27 years of my commercial litigation practice, and every instinct in my body tells me I'd want CBS to have the benefit of Dr. Newcomer's expertise — just his honest, unshaded opinions, even though they make the entire "60 Minutes II" team look even less competent and more corrupt than CBS has ever yet admitted. I'd want that because I'd be gunning to establish "courtroom truth," not "boardroom truth."

*******

But there is a huge question whether CBS actually does want to take advantage of this splendid opportunity to prove in court, once and for all, that the documents Dan Rather was peddling to the American public were forgeries. It didn't press the Thornburgh-Boccardi Panel to come to a conclusion on that point — just like it didn't press the Panel to go bare-knuckled when it came to assessing Dan Rather's personal share of blame. Until now, CBS has only cared about "boardroom truth" — which often is, shall we say, a more malleable concept by its very nature.

And that's why Rather's case — as incredibly, stinkingly, appallingly, cosmically bogus as it is — nevertheless has some considerable settlement value: Not because CBS is likely to lose to Rather if the truth is confirmed in court, but because individual decision-makers within CBS may have overwhelming vested interests in ensuring that the facts are not thoroughly probed in court.

By failing to fire Rather for cause, by whitewashing his personal responsibility while only firing others, and by enabling the shattered fragments of his journalistic reputation to keep stumbling along for almost two more years before he finally staggered away from the Tiffany Network on his own two feet, CBS has put Dan Rather in a position from which he may very well be able to effectively blackmail the network into a settlement. Rather may be saying to CBS: "I'm going to show how righteous I was, and that you were wrong!" But what CBS may hear (and justly fear) is: "I'm going to make you show how corrupt I was, and that will necessarily also show that you were right there in that corrupt bed with me."

*******

Part of the settlement will be monetary. Rather had a seven-figure annual income as anchor, and so CBS is quite literally used to writing him checks in that order of magnitude, or perhaps the next one up. It's not like it's going to come out of any corporate officers' year-end bonus money anyway, is it? Rather implied at one point during his Thursday night appearance on "Larry King Live" that he's financing this lawsuit out of his own pocket, and he's probably paying his lawyers by the hour rather than through a contingent fee arrangement. His law firm, Chicago-based Sonnenschien Rath & Rosenthal, generally represents blue-chip corporate clients who pay by the hour. In his continuing derangement, Rather probably thinks his case is worth so much on its merits that it would be uneconomical for him to give away any significant fraction of it to his lawyers, and that he'd end up paying them less on an hourly-rate basis. And the sad, sad fact is that CBS is probably going to turn out to be so gutless and litigation gun-shy on this particular matter, he's probably right.

The actual sticking point is likely to be one of draftsmanship and face-saving: What will the negotiated press release say by way of apology? Because that's certainly a great deal of Gunga Dan's motivation here. And thus, as I wrote yesterday, CBS may already be taste-testing several varieties of crow-sandwich to see which ones it can tolerate that might also appease the Rather palate:

Dan Rather was and is a reporter of exceptional integrity and ability whom CBS was proud to have as the public face of CBS News for more than three decades. CBS sincerely regrets the possibility that anything it said or failed to say may have given rise to an inference or appearance of greater personal responsibility on the part of Mr. Rather for the broadcast in question than may or may not have been actually justifiable. CBS hereby reaffirms that it was never CBS' intention to "scapegoat" Mr. Rather, and regrets any words or deeds which might have given that impression. After a frank and professional airing of views, the parties have resolved all misunderstandings between them, and they have agreed to the immediate termination of all litigation on terms that both sides find satisfactory but about which, due to their mutual respect, both sides will refrain from any further comment.

Just about makes you want to puke, huh? But that's how I think it's most likely to end — with a whimper, not a bang, and definitely outside the spotlights that would be focused on a public trial. Because for the civil justice system to establish the objective truth through a public trial, at least one side has to want the truth to come out. And when the side with the money really doesn't, those cases don't very often go to trial.

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UPDATE (Mon Sep 24 @ 9:39am): NYU Department of Journalism Associate Prof. Jay Rosen's post and comments (especially his in response to various of his readers) are clear-eyed and heartening to those of us who still want to believe in journalistic ethics. Highly recommended.

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Previous posts about Rather v. CBS, from oldest to most recent:

Posted by Beldar at 01:48 AM in Law (2007) | Permalink | Comments (61)

Friday, September 21, 2007

Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea

Yesterday the prosecution in Sen. Larry Craig's case filed a very short motion to strike the very silly amicus brief previously filed by the ACLU in support of Craig's pending motion to withdraw his guilty plea. The prosecution's supporting memorandum argues that Minnesota law doesn't permit amicus briefs in trial court proceedings, but then goes on to address the ACLU brief's merits, or rather, the lack thereof.

I doubt there will be a formal ruling on the motion to strike before the oral argument scheduled for next Wednesday, September 26th, on Craig's motion. And I suspect that the real point of yesterday's filing was not such much to try to make the judge pretend he hasn't even read the ACLU's brief as, instead, to (a) rebut it and (b) give the judge a ready excuse (if he wants or needs one) for not bothering to address the ACLU's arguments directly if he makes an oral or written explanation for his ruling on Craig's motion.

I didn't see any particular surprises in this filing, but I'm still looking forward to seeing the prosecution's response on the merits to Craig's motion, hopefully next Monday.

*******

In the meantime, Craig continues to leave open the possibility that he might not leave the Senate by his self-imposed September 30th deadline:

U.S. Sen. Larry Craig said Thursday that he's waiting to find out whether a judge dismisses his guilty plea next week before he decides whether he'll step down from the Senate at the end of the month.

"I just don't know yet," Craig said, when asked whether he would resign Sept. 30.

His decision to continue in office past his self-imposed deadline will depend on "the legal issues, and those kind of things I'm working on," Craig, R-Idaho, told McClatchy Newspapers in a brief interview.

I don't suppose Sen. Minority Leader Mitch McConnell (R-KY) has the power to require Craig to file a written motion to withdraw his "intent to resign" announcement. But he may have other remedies in mind to crank up the pressure on Craig to keep his promises at least in that respect, even if Craig is successful at next week's hearing.

I continue to believe Craig won't be, however. And I continue to hope that the prosecution call Craig to the witness stand at the hearing next week â which, as I've previously written, I believe the prosecution is entitled to do based on Craig's having submitted a sworn affidavit with his motion. Faced with a snap decision whether to take the stand to face cross-examination or not, Craig might drop his motion to withdraw his guilty plea on the spot. Of course, that would presume that he and his lawyers have a rational appreciation of their risks and benefits, and there's no evidence yet to support that theory, and considerable contrary evidence.

*******

Finally for now, just in case this case isn't bizarre enough for you yet, there's this:

[T]he American Land Rights Association, based in Battle Ground, Wash., says that Craig's misadventures were actually just another salvo in the "War on the West."

As the ALRA explained in an e-mail to members: "By ambushing Senator Larry Craig, the Minneapolis-St. Paul Airport Police have effectively declared war on the West. They are primarily responsible for greatly weakening private property rights and Federal land use advocates in the Senate Energy and Natural Resources Committee and in Congress. We are urging you to make all your flight arrangements avoiding the Minneapolis-St. Paul Airport for at least the next year and probably longer. We'll keep you posted as the boycott develops."

Oh, yes. Please keep us posted. From there in the second stall on the left, Sgt. Karsnia seems likely to grind all free Westerners under the heel of, umm, Minnesotan hegemony.

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Previous posts on the Craig matter, oldest to most recent:

Posted by Beldar at 06:22 PM in Law (2007), Politics (2007) | Permalink | Comments (2)

Adjusting Mary Mapes' meds

Generalissimo Francisco Franco is still dead. Dan Rather is still nuts. And Mary Mapes is still a fraud:

We reported that since these documents were copies, not originals, they could not be fully authenticated, at least not in the legal sense. They could not be subjected to tests to determine the age of the paper or the ink. We did get corroboration on the content and support from a couple of longtime document analysts saying they saw nothing indicating that the memos were not real.

Instantly, the far right blogosphere bully boys pronounced themselves experts on document analysis, and began attacking the form and font in the memos. They screamed objections that ultimately proved to have no basis in fact. But they captured the argument. They dominated the discussion by churning out gigabytes of mind-numbing internet dissertations about the typeface in the memos, focusing on the curl at the end of the "a," the dip on the top of the "t," the spacing, the superscript, which typewriters were used in the military in 1972.

It was a deceptive approach, and it worked.

It's possible that some of the readers of the Huffpo who are nodding and saying, "Yeah, that's right!" as they read Mapes' op-ed are so ill-informed about the facts that they might be excused for being misled by her. But the only explanation for how Mary Mapes could write that last sentence is that she is a genuinely pathological liar. And having herself been the producer for the broadcast, only someone genuinely, clinically psychotic could deny that CBS' own experts alerted them to massive indicators that the documents were forged before the broadcast. An ordinary liar, one who still has a grasp on objective reality in the world, would surely come up with a better argument than that.

The only remaining question to me, then, seems to be this: Haldol, or something newer like Clozapine?

(Some of you reading that will say, "Wow, that's so snarky as to cross the border into meanness. Beldar's usually not that harsh." If so, you misunderstand me. I really am saying that I literally believe she is psychotic, and that her particular mental illness involves a compulsion to tell and re-tell lies. It's obviously a lay opinion, for I don't have any medical training. But I'm not engaging in any hyperbole.)

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UPDATE (Fri Sep 21 @ 8:00pm): This is a very measured but detailed reaction to Mapes' op-ed from someone who self-identifies as being "a member of the 'reality-based community'" who aptly concludes: "Mary Mapes' attempt to rehabilitate those forged documents is not based in any kind of reality that I understand." (H/t Eugene Volokh.)

Posted by Beldar at 03:13 PM in Law (2007), Mainstream Media, Politics (2007) | Permalink | Comments (13)

Thursday, September 20, 2007

A cheer for Sen. Cornyn for sponsoring Senate resolution condemning MoveOn.org's "Gen. Betray-Us" ad

Sen. John Cornyn (R-TX) made me feel today like he was directly representing me in the United States Senate. He introduced an amendment to the National Defense Authorization Act for Fiscal Year 2008 in order to add a "Sense of the Senate" resolution for the following purpose:

To express the sense of the Senate that General David H. Petraeus, Commanding General, Multi-National Force-Iraq, deserves the full support of the Senate and strongly condemn personal attacks on the honor and integrity of General Petraeus and all members of the United States Armed Forces.

It passed by a vote of 72 to 25. Sen. Barack Obama (D-IL) wasn't present to vote. Neither was Sen. Joe Biden (D-DE), but from his previous public disapproval of the MoveOn.org ad, it's safe to assume that he would have voted in favor.

But among the 25 who've cast their lot with MoveOn.org, instead of with Gen. Petraeus and all members of the United States Armed Forces, was Sen. Hillary Clinton (D-NY), a/k/a She Who Would Be Commander-in-Chief.

Thank you, Sen. Cornyn — you've made a lot of Texans who voted for you feel proud today, and you've put a much-needed spotlight on the precise portion of the U.S. Senate of whom MoveOn.org is obviously speaking when it says that it has bought and paid for the Democratic Party.

And here's a metaphorical tip of my hat, as a recognition for bravery and decency notwithstanding particular personal political risk, to Sen. Dianne Feinstein (D-CA), who voted in favor.

Posted by Beldar at 08:19 PM in 2008 Election, Global War on Terror, Politics (2007) | Permalink | Comments (21)

Wednesday, September 19, 2007

Civic literacy quiz

As they used to say (do they still?) about the S.A.T., with this quiz (h/t Mona Charen on NRO's The Corner, here and here, from a New York Sun article) you sometimes you have to pick the answer that is "least wrong" — which always struck me as an easy excuse for imprecise question writing, rather than a virtue.

I can, however, humbly suggest to the National Review one possible new addition to The Corner who has slightly surpassed the scores posted by a couple of its impressive current contributors.

Posted by Beldar at 09:28 PM in Current Affairs | Permalink | Comments (13)

Just tell me when I can get in line for tickets to attend the trial: Rather v. CBS

I haven't seen the complaint yet, but I can hardly wait, and I'd eagerly pay my own way to NYC to watch the trial or even any significant pretrial hearings in this new lawsuit (h/t InstaPundit):

Dan Rather filed a $70 million lawsuit Wednesday against CBS, alleging that the network made him a "scapegoat" for a discredited story about President Bush's National Guard service.

The 75-year-old Rather, whose final months were clouded by controversy over the report, says the complaint stems from "CBS' intentional mishandling" of the aftermath of the story.

The lawsuit, filed in State Supreme Court in Manhattan, also names CBS President and CEO Leslie Moonves, Viacom Inc., Viacom Chairman Sumner Redstone and former CBS News President Andrew Heyward. (At the time Viacom Inc. owned CBS. But Viacom and CBS Corp. split into two different companies in January 2006.)

Rather, the former anchorman of the "CBS Evening News," is seeking $20 million in compensatory damages and $50 million in punitive damages.

My first reaction upon reading this was to wonder whether the appropriate statute of limitations had already run. But I can't answer that question, because I can't tell from this story what type of claim Rather's purporting to make. I don't recall studying the tort of "intentional mishandling of a news story aftermath" in law school, but maybe I was sick that day.

My glee is tempered by my realization that this case is almost certainly going to go away before it gets to any good stuff. But oh! it would be fun to watch CBS be forced to justify its putting of Rather out to pasture in a not-quite-firing by showing all of the grounds it had. Usually in a good juicy family court spat, you find yourself in sympathy with at least one litigant. But here's a case in which I can just cut loose and enjoy the misery and embarrassment of all concerned! (I continue to take pride in the high ranking of this post of mine from 2004 in search engine responses to the words "Dan Rather fired.")

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UPDATE (Wed Sep 19 @ 10:40pm): One of my regular readers and commenters provided a link to the complaint in a comment below, for which I'm grateful.

The law firm that Rather has retained, Chicago-based Sonnenschein Nath & Rosenthal, is indeed a good firm. The complaint that Sonnenschein's New York office has filed on Dan Rather's behalf, however, is a nicely buffed and polished piece of garbage. The lawyers who wrote it appear to have been infected with Rather's own delusions, as becomes clear when one gets to numbered paragraph 3 on the second page:

The Broadcast incorporated copies of documents written by Mr. Bush's commanding officer, Lt. Col. Jerry B. Killian ("Documents"), corroborating important aspects of the story.

Not "purportedly written" or "allegedly written," mind you, but just "written." Later in the complaint (at pp. 19-21), while not quite affirmatively asserting that the "Documents" are indeed genuine, Rather's lawyers come very close to that by alleging that Erik Rigler, a private investigator hired by CBS, had reported to a CBS executive that "he was of the opinion that the Killian Documents were most likely authentic," but that Rigler's conclusion was covered up in the report of the CBS Investigatory Panel, and that CBS then prevented Rather from having any further contact with Rigler.

This is too funny to be believed, coming from the news anchor who actively participated in the suppression and ignoring of CBS' own experts' reservations about the authenticity of the Killian Documents before the broadcast ever aired.

But put aside the fact that his lawyers have apparently bought into Rather's paranoid schizophrenia on the facts. Let me tell you in a single paragraph why "garbage" is about the nicest term that can be applied to this pleading.

Rather's lawyers allege a claim for breach of contract based on an oral understanding for a contract extension that, by their own admission, was never consummated and never reduced to writing. They ignore what I'm quite sure will be a devastating waiver/estoppel counter-argument by CBS that Rather kept cashing his paychecks for many months until he finally left the network a few months before the scheduled expiration of his written contract. [See revision note below.] They allege that CBS was Rather's "fiduciary" — and I'm sorry, but that's so badly wrong as a matter of law that every one of the Sonnenschien lawyers whose name appears on this complaint ought to be sanctioned for making it (because when it comes to negotiating extensions of your employment contract, your employer is not your fiduciary but your adversary). Their tort claims against the CBS execs in their individual capacity don't even attempt to allege facts to show that they were acting outside their corporate employment capacities — making those another set of claims that are, in my judgment, so wrong as a matter of law as to be sanctionable. And the fraud claims consist of all the other claims repackaged along with an allegation that the defendants' bad acts were deliberate, and that the defendants fooled poor ol' Dan about their true and truly evil intentions for a really long time.

Do not misunderstand me to be saying that CBS did everything, or much of anything, even mostly right or in an even approximately timely fashion. They covered for Rather and his team for far too long, and the Thornburgh-Boccardi Panel was far too timid and equivocal in its findings. Rather and everyone else should have been publicly exposed, condemned, and fired for cause by CBS no later than September 15, 2004. And for trying to paper over Rather and his cohorts' fraud instead of simply calling it what it actually was, and for keeping Rather on the payroll instead of putting him on the street with all his "literally dozens of Emmy Awards" in a stack of cardboard boxes, CBS does, in a sense, very much "deserve" this lawsuit.

But if CBS has the guts to fight it — and that is an open question — CBS will win it. You can bet the ranch on it.

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UPDATE (Thu Sep 20 @ 6:30am): Yeah, Rather's lead lawyer is just as nuts as he is. From Howard Kurtz in today's WaPo:

[Martin] Gold, Rather's lawyer, maintained that "nobody's proved the documents were forgeries. The way we look at it, it's more than likely the documents are authentic."

Let me give you another indication from the complaint just how entirely out of touch these lawyers are with how this all developed. From paragraph 8 (at page 3), during the introduction to the complaint (emphasis mine):

Central to the defendants' plan to pacify the White House was to offer Mr. Rather as the public face of the story, and as a scapegoat for CBS management's bungling of the entire episode — which, as a direct result, became known publicly as "Rathergate."

But it wasn't "Rathergate"; it was, most emphatically, "Ra^thergate." (On September 10, 2004, as the new name was sweeping across the blogosphere (and doing so with absolutely no prompting from CBS management), I posted instructions for "the html-challenged" on how to do the superscript.) And if Martin Gold knew even that simple fact, and why it's important, he couldn't possibly be quoted in the New York Times as saying "it's more than likely the documents are authentic."

Posted by Beldar at 06:37 PM in Law (2007), Mainstream Media | Permalink | Comments (44)

State of Florida v. Andrew Meyer: Spoilt ham faces meaty prison term of up to 5 years

Why is this report so unsurprising?

Police noted that [Meyer's] demeanor "completely changed once the cameras were not in sight" and described him as laughing and being lighthearted as he was being driven to the Alachua County Detention Center.

"I am not mad at you guys, you didn't do anything wrong. You were just trying to do your job," Meyer said, according to the police report.

At one point, he asked whether there were going to be cameras at the jail, according to the report.

As I said in a comment to my own original post on this incident, poor dear Tasered Andrew Meyer is probably the happiest man in America tonight.

But he ought not be:

Meyer was charged with resisting arrest with violence — a felony — and a misdemeanor count of disturbing the peace. He was released without having to post bond Tuesday.

That first charge would be under Fla. Stat. § 843.01:

Resisting officer with violence to his or her person. — Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); ... or other person ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The Florida sentencing statutes are pretty complicated, but the cross-reference to section 775.082 appears to provide that the punishment for such third degree felonies for first-time offenders is "a term of imprisonment not exceeding 5 years." That's probably a worst-case scenario. And given that he didn't slug any police officers, and neither, apparently, did he end up much harming any of them through his thrashing around and other resistance, I suspect there's a good chance that Meyer would actually be convicted of some lesser included offense and/or sentenced to less than the maximum penalty for this one. Nevertheless, this charge ought to be a sparky bite of horseradish when it's properly appreciated by a free-wheeling publicity-hungry 21-year-old student.

While we're tiptoeing through the Florida criminal laws, let's also pause to notice section 776.051:

(1) A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

(2) A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest is unlawful and known by him or her to be unlawful.

Meyer thus can have no self-defense/justification defense against these uniformed officers. And their use of force was only unjustified if both the arrest was unlawful in the 20/20 hindsight of the court and it was actually known and appreciated by them at the time to be unlawful. That would be a mega-tough standard for Meyer to meet.

These are just my wild guesses as a lawyer not admitted to practice in Florida. But none of them, even as viewed through the more knowledgeable eyes of a Florida practitioner, is likely to make Meyer feel like such a hot dog tomorrow.

Posted by Beldar at 12:13 AM in Law (2007) | Permalink | Comments (48)

Tuesday, September 18, 2007

At John Kerry's Florida rally, Andrew Meyer wasn't "shot" by a Taser, but merely shocked by one used in "drive-stun" mode

Michelle Malkin, James Joyner, and lots of other bloggers are posting about University of Florida student Andrew Meyer being "Tasered" (to take a fairly elegant product name and make an inelegant verb out of it) at a John Kerry political rally. Michelle has at least two different videos linked [warning: frequent profanity makes the audios NSFW], and Neocon News has an excellent and very detailed text description (with associated screencaps) of what looks to me to be the longer of the three videos I've seen, hosted from an NBC affiliate in south Florida. Each of the three videos I've seen are from different angles, and one of the shorter, from YouTube (another's also on YouTube, but apparently from CNN; h/t Bill Quick) has clearer sound and a slightly better angle at the key moment — when Meyer was "Tased." Indeed, you can hear Meyer screaming "Don't Tase me, bro! Don't Tase me! I didn't do anything!" And then, with the sizzling sound of the Taser, you can hear him rhythmically screaming "Owwww! Owwww!" while various female bystanders begin to scream too.

Do not fail, however, to pay attention to what was going on just before and during Meyer's "Don't tase me!" screams. Several police officers were doing their utmost to roll Meyer onto his stomach so they could get his hands behind his back to finish handcuffing him. (The version of the video marked "CNN" clearly shows that he resumed struggling as soon as they had the cuff on his right wrist, and didn't get the cuff on his left wrist until after the Tasering; see screencaps in Update below.) He had previously been on his stomach (when taken to the ground by the large black officer who'd propelled him up the aisle away from the microphone area), but he'd squirmed around onto his side and his back. At least some of the time, he can be seen flailing wildly with at least one, and perhaps both arms; other times, he's clearly trying to wrestle his arms out of the grips of the police officers. The officers had not only ordered him to stop resisting and to roll back onto his stomach, they had clearly warned him that if he did not, they would Tase him. He didn't, so they did — and I'll come back to that in a moment.

The important point to take away is that just before he was Tased, Meyer was continuing to disobey the officers and continuing to struggle against them with what appears to have been all of his strength. There was no real danger that he might escape. But there was a danger that he would hurt himself. There was a danger that he would hurt one of the officers. And there was a danger that in trying to physically restrain him, one or more of the officers would hurt him. With him struggling so violently, it's not completely improbable that someone could have been dealt a life-threatening injury — for example, a crushed wind-pipe. Far more likely is that someone — Meyer or the officers — would have suffered a serious, potentially lifetime-disabling injury. If they were lucky, it would have been only a broken rib or broken arm or dislocated shoulder. But it might have been a torn ligament or ripped cartilage somewhere that would have meant no more running for a 21-year-old college brat or a twenty-something police officer. Deliberately or not, Meyer was still out of control, even though he had no chance of escape, no right to resist, and no more time to continue putting himself and others at risk of serious injury.

*******

Tasers are controversial, and they've been much in the news lately. Originally described, at least in the press, as "non-lethal," they're now typically described as "less lethal," and many state and local police forces have reviewed, or are in the process of reviewing, their training and policies regarding Taser use.

Before any of us can even begin to form opinions as to whether these particular campus police officers used a reasonably proportionate amount of force (including the Taser) under the circumstances, though, we need to know what the professional-model Tasers do, at least when they're working the way they're claimed to and they're supposed to. And the quickest place for a primer on that is, reasonably enough, the Taser operator's manual.

In it, we find (at pages 5-6 of the .pdf file) a description of what most of us in the public think of as "Tasering" someone: Shooting them from a distance of several feet with two barbed probes that remain connected to the Taser pistol housing by insulated wires, through which an electrical current is passed. Those probes are intended to cause what the Taser manufacturer refers to as "Neuromuscular Incapacitation" ("NMI"):

The human nervous system communicates with simple electrical impulses. The command center (brain and spinal cord) processes information and makes decisions. The peripheral nervous system includes the sensory and motor nerves. The sensory nerves carry information from the body to the brain (temperature, touch, etc.). The motor nerves carry commands from the brain to the muscles to control movement and can be involuntary in response to the sensory information. An example would be the involuntary muscle reaction to pull a hand away from a hot object.

TASER technology uses similar electrical impulses to cause stimulation that affects the sensory and motor nerves. Neuromuscular Incapacitation (NMI) occurs when a device is able to cause involuntary stimulation of both the sensory nerves and the motor nerves. It is not dependent on pain and is effective on subjects with a high level of pain tolerance. Previous generations of stun guns could primarily affect the sensory nerves only, resulting in pain compliance. A person with a very high tolerance to pain (e.g., a drug user or a trained, focused fighter) might be able to fight through the pain of a traditional stun gun.

The use of TASER technology is designed to cause incapacitation and involuntary muscle contractions, making secondary injuries a possibility. These potential injuries include but are not limited to: cuts, bruises, impact injuries, and abrasions caused by falling, and strain-related injuries from muscle contractions such as muscle or tendon tears, or stress fractures. These injuries are secondary in nature and not directly attributable to the electric stimulation of the TASER device, but are possible consequences of the involuntary muscle contractions the TASER device induces to produce incapacitation. Some of the effects may include:

Subject may fall immediately to the ground and be unable to catch him/herself.

Subjects located in the water may drown if their ability to move is restricted.

Subject may yell or scream.

Involuntary muscle contractions of varying degrees.

Subject may freeze in place with legs locked.

Subject may feel dazed for several seconds/minutes.

Potential vertigo.

Temporary tingling sensation.

May experience critical stress amnesia (may not remember any pain).

There is no doubt that these "secondary effects" can be dangerous. I've read reports of one police officer who had pre-existing bone degeneration in his back and who cracked a vertebrae as a result of the muscle contractions when he agreed, in training, to be shot with a Taser. And although the manufacturer claims that there are other explanations and other causes, there indisputably have been some suspects who've died after being shot with a Taser.

But being shot with a Taser is almost certainly not what happened to Meyer. The longer video clearly shows him in command of his arms and legs, balanced and coordinated, within seconds after the officers finished cuffing him and hauled him back to his feet. He never shuts up, of course, but his "Owww!" screams are replaced again with his "I didn't do anything!" etc. screams within moments, too.

*******

Instead, Meyer was almost certainly simply shocked by a Taser using something the manufacturer calls (at page 19 of the .pdf file) the "drive-stun mode":

The drive-stun mode will not cause NMI and generally becomes primarily a pain compliance option. Probe deployment is usually considered more desirable, even at close range. Some of the advantages include:

Drive-stun is only effective while the device is in contact with the subject or the subjectâs clothing. As soon as the device is moved away, the energy effect stops.

Deploying the probes allows the user to create distance between the user and the subject while maintaining control.

Due to automatic reflex actions, most subjects will struggle to separate from the TASER device. When the TASER device is used in the drive-stun mode and the subject struggles to get away it may be difficult to maintain contact between the device and the subject.

Why do they call it "drive-stun"? When I first saw the term, I first thought "cattle drive!" because I was flashing back to a high-school hazing ritual I underwent in about 1973, in a part of rural Texas where there are still cattle ranches and, accordingly, kids had access to electric cattle prods that operate much like modern Tasers in "drive-stun" mode. Neither my mind nor body was permanently scarred, and neither did I suffer from "NMI," but I can attest that one of those devices applied to a male nipple hurts like the very devil. But the term doesn't come from "cattle drives" at all:

When using the drive-stun, push (drive) the front of the TASER X26C firmly against the body of the subject. Simply âtouchingâ the X26C against the subject is not sufficient. The subject is likely to recoil and try to get away from the stun electrodes. It is necessary to aggressively drive the front of the X26C into the subject for maximum effect.

The drive-stun works more effectively when aggressively applied to pressure points on nerve bundles. This includes the brachial area, common peronial, mastoid, and pelvic triangle. The TASER X26C must be actively depressed or aggressively driven into the nerve bundles in a âdrive-stunâ manner to be effective in the drive-stun mode.

I can't tell from either video where on his body Meyer was Tasered, nor which officer applied it, nor how hard he or she "drove" the front of the Taser to keep it in contact. But the point of "drive-stun mode" is not incapacitation of a suspect, but rather the infliction of a very intense, localized pain intended to coerce him into dropping his continuing physical resistance and instead cooperating, in order to protect not only the police officers trying to subdue and manipulate him, but the suspect himself. And that's what exactly happened here. The Taseing marked the abrupt end of Meyer's thrashing around and fighting (but not, unfortunately, his yelping, obscenities, self-pity, self-aggrandizement, and slurs upon the police officers).

I don't know enough about any of this to be able to independently evaluate the manufacturer's claims regarding the Taser's general safety, and the operator's manual warns, unsurprisingly, that when vigorously applied to some parts of the body (e.g., the neck or groin), even the "drive-stun" technique may cause crushing injuries that could be permanent or even life-threatening. But it seems fairly obvious to me that the sudden, localized, intense pain Meyer was subjected to might well be justifiable when compared to the risks to him and the police officers from several more minutes of his resisting arrest. At least such a case could be made; and whether it should prevail or not, as a matter of wise long-term police department policy would depend, I suppose, on the marginal risks and benefits from injuries with and without their use. My understanding is that several police departments have policies that permit carefully limited use of "drive-stun" Tasering in precisely the sort of situation in which these University of Florida campus policemen found themselves.

*******

I'm hoping I'll draw some comments from law enforcement types who have training and/or experience with Tasers. I've already read enough just Googling around to confirm that there's an on-going battle of expert witnesses about the manufacturers' safety claims, with at least one prominent critic whom the manufacturer accuses of being a "junk scientist" who does indeed seem to lack certain basic credentials like a bachelor's degree from any college.

In any event, I think it's important that people recognize that, to embrace the Star Trek metaphor, these police officers' phasers weren't even "set to stun." I'm sure it still hurt like hell. But we can all be glad that, apparently, neither Meyer nor any of the police officers were permanently injured. In many other countries today, and in a day and time not too far removed from today in our own, Meyer would have gotten a nightstick to the ribs or the back of his noggin and been carried out on a stretcher; I'm not advocating a return to that, but I hope those who now claim that he was a "victim" in any sense will at least acknowledge that his violent struggle could certainly have resulted in one of today's officer's leaving the scene on a stretcher too.

I'm not inclined to second-guess whoever it was who gave the instructions that Meyer was to be removed from the rally — from what I've read, and from just what I've seen on the longer video, he was clearly abusing the privilege of questioning even a great gasbag like Sen. Kerry, even if Sen. Kerry was encouraging him (and now condemns his arrest). If you don't think this guy went over the line into impermissible public behavior, you are blind to the possibility of there being lines.

And I hope Meyer spends at least several weeks in jail — not for anything he said, but for the indisputable crime he committed in vigorously, insistently, and dangerously resisting arrest. He'll probably still sue the officers and the University of Florida. And maybe something will come out that changes my mind. But right now, I think that if he sues, he ought to lose. And personally, I'd sure rather be representing those officers than him.

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UPDATE (Tue Sep 18 @ 3:25pm): Okay, I've now seen several blogs and MSM resources falsely (but I presume innocently and in good faith) report that Meyer had already been cuffed when he was Tasered. That's only half-true: His right cuff was on, but the officers' attempt to attach the left cuff is what prompted him to begin squirming and resisting again, directly leading to the Tasering. Here are my sequential screencaps from this video, which has the best angle to show the handcuffing attempts, and also very good audio in which you can hear the right cuff click, the left cuff never click, and hear the Tasering. Look at these, note the times, and then watch the sequence on the video again if you have any doubt, because these screencaps are useful mostly as the markers of the key events:

Below (at 2:45) you can clearly see the officer's right hand holding his handcuffs. Neither is attached. Meyer is half-way squirmed around onto his back after having been taken down from his feet onto his stomach originally:

Below (at 2:53) the officers have Meyer rolled back onto his stomach, and although you can't see the officer attaching his right handcuff, you can distinctly hear the metallic click on the audio track, and then see the right cuff in place very briefly in some of the following frames:

Below (at 3:11) you can see that Meyer has half-rolled back onto his right side, having succeeded for the last quarter-minute in keeping his left wrist too far from his right wrist for the two wrists to be cuffed together behind his back. Before this shot, his left arm has been flailing around, flexing and extending. And indeed, in this screencap, you can see the fingers of his left hand fluttering and extended behind another officer's arm, just above the officer's wristwatch — and then those fingers suddenly jerk back in on the video about a half second later just before you hear the Taser begin to fire. Within seconds after that (by 3:29), the officers have finished with the left cuff too, and Meyer's back up and on his feet, headed out of the room with his elbows behind him, no longer a resistance threat.

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UPDATE (Tue Sep 18 @ 8:45pm): From a blog called "Cop The Truth," a post entitled Been Tased and Confused has the law enforcement perspective I've been looking for — with delicious wit (emphasis and link in original):

Anybody who watches the video with an open mind can clearly see that he violently resisted arrest and the cops there had every right to use the taser on him. I would have handled the entire event differently, especially in front of any mostly anti-police crowd on a university campus, but they covered all the bases: they asked him verbally, then warned him, then went hands on, but, because of poor tactics, were unable to control or handcuff him. When he continued to resist, despite numerous verbal commands, he got zapped. Boofreakinghoo.

He'll probably be kicked off of a Southwest Airlines plane tomorrow for wearing a short skirt....

Sadly, it doesn't look like the university is going to back the cops on this one.

That would be sad, and fiscally very short-sighted. Convicting Meyer of resisting arrest is the key to all future civil claims and proceedings.

Here's another cop's take, from Curt at Flopping Aces:

Now take it from one who has used tasers to subdue combative suspects, this guy could very well have had some long term damage done to him if the police HAD NOT used the taser. That's what the tool is for. They receive some zaps and ta da! They comply. If they didn't have that tool then they have their fists, their batons, their flashlights. It's called pain compliance.

If they guy didn't think he should of been arrested the time to fight it is NOT during the arrest. It's after the arrest in a court of law. Once we have come to the conclusion that a person needs to be arrested you must comply. No if's, and's or but's about it. There is plenty of legal recourse to fight it later but physically fighting the police is not the way to go about it.

Ayup.

Posted by Beldar at 01:58 PM in Law (2007), Technology/products | Permalink | Comments (57)

Monday, September 17, 2007

ACLU files silly brief in support of Craig's plea withdrawal

After I'd just graduated from Texas Law School, but before taking the bar exam and starting my judicial clerkship, I spent most of the summer of 1980 working in New York City for Sullivan & Cromwell. The firm helped its "summer associates" (a/k/a law clerks) locate housing, and for half of my stay I was very fortunate indeed to be permitted to apartment-sit, rent-free, for one of the firm's litigation associates whose husband's position at Columbia entitled him to a fabulous pre-war apartment on Riverside Drive at about 118th or so, with a wonderful view over the park and the river. I only briefly met the associate as she was leaving for her own summer vacation. But anyone doing any apartment-sitting can't help but feel as if he's gotten to know the regular occupants a little bit, if only from seeing what take-out food menus were on the fridge door and what magazines came in the mail.

As it turned out, the young S&C associate, Nadine Strossen, left the firm not too long afterwards, and since 1991 she's been the president of the American Civil Liberties Union. And my lingering gratitude to Ms. Strossen, along with the vague feeling of unshared intimacy that I had as a long-term guest in her home (but without her present), has probably made me less skeptical than I otherwise would have been of much of the ACLU's activities. Some of them, from time to time, I've even agreed with, and doubtless would have done so whether I'd known Ms. Strossen or not. But far more often, I've thought that the ACLU's causes were ill-advised and naïve, albeit at least mostly well intentioned.

And such is this amicus brief that the ACLU has now filed in support of Sen. Larry Craig's pending motion to withdraw his guilty plea. (H/t Jeralyn Merritt at TalkLeft.) Even if I were to accept all of its legal arguments as being correct and fairly stated (and I don't; many of them are badly overblown and over-simplified to the point of being misleading), I'd still conclude that it's a profoundly silly brief that is very unlikely to have any effect on those proceedings, for at least two reasons.

*******

First, all of its arguments go to the "as applied" constitutionality of the Minnesota disorderly conduct criminal statute to which Craig pleaded guilty. There is no doubt, and the brief properly concedes, that the statute may be constitutionally applied in at least some cases. But arguments of this sort have to be made by the defendant before he pleads guilty. They're waived, along with all of his other potential factual and legal defenses, when he pleads guilty. And they do nothing to show that his guilty plea should be permitted to be withdrawn now, because they have nothing to do with the voluntary, informed, or knowing quality of his waiver of rights when he entered the guilty plea. The brief makes a truly pathetic attempt to sidestep this in its next-to-last paragraph:

The record shows there is a very significant possibility this defendant pled guilty on the basis of conduct that could not constitutionally have been the basis for a conviction. Given that very real possibility, the interests of justice would best be served by allowing him to withdraw his plea so that the Court can determine if a constitutional prosecution was possible at all here, and if so, whether the defendant could constitutionally be convicted.

Beware the brief whose best and most specific argument for its own relevance is that it will serve "the interests of justice." Often, as here, that's code for: "To reach these arguments, you have to ignore all the ordinary rules." There's no reason to think that the judge who hears Sen. Craig's motion will do that.

The brief could have argued, but didn't, that the plea should be set aside unless there is an affirmative showing in the record of a basis in fact for his plea — and that's true, as far as it goes. But in accepting a plea agreement, a court need not — indeed, ought not — go out of its way to figure out and raise on the pleading defendant's part every potential factual or legal defense that he might have asserted. In particular, courts accepting guilty pleas aren't required to independently re-validate the statute that created the crime to which the defendant is pleading guilty. The allegations from the sworn complaint that Craig stared into the officer's stall, then intruded his hand and foot into the officer's stall, by themselves are sufficient to meet the "basis in fact" requirement. (Indeed, even if that conduct was intended as speech, it would be enough to qualify for the "fighting words" exception to the First Amendment protections argued by the ACLU's brief: Staring and then physically intruding one's hands or feet into someone's bathroom stall is indeed a good way to start a brawl, regardless of whether it was specifically interpreted as part of a homosexual "cruising" code or was instead simply interpreted as intrusive upon reasonable privacy expectations.)

*******

Second, all of the ACLU's arguments presume that Craig was arrested and prosecuted for speech, or for conduct that amounts to speech. Its entire premise is that Craig was soliciting sex, and its resulting argument from that premise is that soliciting sex can't be prosecuted as disorderly conduct without violating First Amendment protections for free speech. But Sen. Craig emphatically denies that he was soliciting sex, or engaged in any other kind of expressive conduct that amounts to "speech."

To the contrary, he insists that he was peering into Sgt. Karsnia's stall only to see whether it was vacant yet, and that his foot tapping was meaningless fidgeting (rather than a code), and that his intrusion of his foot into the officer's stall was accidental (due to his "wide stance"), and that his reaching beneath the barrier between the stalls was intended to pick up a piece of paper (rather than send hand signals). A defendant simply can't simultaneously claim to have been engaged in protected speech under the First Amendment while denying that he intended to do any communicating. And as much as it may want to be one of the trial court's chums via this amicus brief, the ACLU can't claim that on Craig's behalf when it's contrary to Craig's own position.

Bottom line: There's no need for anyone to get outraged over the ACLU's position in this case. It's just silly and irrelevant, and therefore harmless. And I think I can say that without feeling at all ungrateful for the use of Ms. Strossen's marvelous apartment twenty-seven years ago.

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Previous posts on the Craig matter, oldest to most recent:

Posted by Beldar at 09:48 PM in Law (2007), Politics (2007), Trial Lawyer War Stories | Permalink | Comments (3)

Beldar's initial reaction to the Mukasey nomination for Attorney General

Let's get something straight right off the bat. I disagree on matters of politics with Sen. Chuck Schumer (D-NY) almost all of the time. But I don't worry that, if given the chance, he'd wire a gas tank to explode my family car or mastermind a plot to crash a jet airliner into the Capitol. He's not my enemy in that sense.To the contrary, I genuinely believe that in his own mind, he says what he says and votes the way he votes because he thinks that's the best way to serve the country that he and I both love. So the mere fact that Chuck Schumer may not be bouncing off the ceiling to oppose new U.S. Attorney General nominee Michael B. Mukasey is no valid reason for me to doubt the wisdom of that appointment.

I'm better acquainted with Ted Olson's history and credentials. It's been funny to watch pundits on the left foam at the mouth at the prospect of him being nominated instead. "Too partisan!" they shriek ... by which they mean, he and his team whipped David Boies and his team during Bush v. Gore in 2000. But there's certainly more than one person in the U.S. who's qualified to be Attorney General. Judge Mukasey looks to me like he's one of them, and probably very near the top of what's not a very large heap.

I'm impressed that Judge Mukasey (pronounced "mew-KAY-see") has not only prosecutorial experience (four years as an Assistant U.S. Attorney in the Southern District of New York), but management experience within the DoJ (two years as Chief of the DoJ's Official Corruption Unit). I'm impressed that he has many years of private practice experience — because yes, it's useful for government attorneys to have gain perspectives from the "real world" outside of government. I'm impressed that he's got judicial experience, again from the Southern District of New York, whose dockets include the richest and deepest mix of civil and criminal matters imaginable. Top that off with more administrative experience, this Pres. Bush & AG-nominee Michael B. Mukasey (Reuters photo) time as Chief Judge of the Southern District of New York. Altogether, that's an impressive mix and combination of experiences.

And forgive me, but I have very little patience for "Righter-than-thou" skeptics like Mark Levin. Over sixty-two million Americans voted to put the power of nominating cabinet secretaries from January 2005 to January 2009 into George W. Bush's hands. That's the way the system works: He picks, he's accountable. He's accountable for decisions that look bad in hindsight, and if you want to criticize him for the outgoing AG, the buck does indeed stop in the Oval Office. But he's also accountable for nominating Supreme Court Justices — and credit for that is also due, and must be considered when someone's impugning a nominee without much more basis than a lack of sufficient trust in the nominator. Nothing in the system requires the president to pick the potential nominee whom pundits like Levin would like best. And indeed, the system obliges the president to consider factors that Levin may ignore outright. Rabid dog-slobber may well be the best thing for Levin's radio ratings, but that doesn't necessarily coincide with what's best for the Bush-43 Administration, the Republican Party, the DoJ, or ultimately for America. Levin is entitled to express and argue his own opinions. But I am not at all receptive to the suggestion that I'm "insufficiently conservative" if I support the president both in big fights when he picks them, and on those other occasions when he's chosen not to.

In the meantime, Judge Mukasey's record is out there for all to see. Lawyers whose judgment I respect, including but not limited to Andy McCarthy, who have extensive first-hand experience with him praise him highly. He'll run the nationally televised gauntlet in the Judiciary Committee, where perhaps a few Democratic senators will manage to behave like grownups and maybe even nonpartisan Americans for long enough to vote. I'll come to a final opinion based on his performance then, but for now, I pronounce myself well satisfied with this nomination.

Posted by Beldar at 07:51 PM in Global War on Terror, Law (2007), Politics (2007) | Permalink | Comments (4)

Friday, September 14, 2007

Equity time

Long before I started law school in 1977, American law had mostly blurred the distinction between law and equity. Bits and pieces of the distinction persist, mostly in connection with injunctions — civil court orders requiring that someone do or, more often, stop doing something, as opposed to judgments requiring them to pay someone. I still end all my petitions and complaints with a request for "such other and further relief, at law or in equity, to which [my client] may show itself to be justly entitled." But that's actually an affectation, a deliberate use, as a quasi-religious invocation, of archaic language of the sort that I otherwise generally try hard to avoid. The days of going to separate courthouses to obtain distinct remedies "at law" and "in equity" are long since past. (Except, I think, in Delaware — which is why Pennzoil, having established a "probability of success" but not the "inadequacy of its remedies at law" in a Delaware Chancery Court preliminary injunction proceeding, dropped its original lawsuit there against Texaco and refiled in Houston precisely to get a courtroom that included a jury box. Skadden Arps may still be smarting over the black eye it took for permitting that to happen, but that's another war story entirely.)

This week, though, I decided that I needed to buy a new alarm clock/radio — a cheap one that is minimally functional will suffice for the need I had in mind. And I found one at the ~~drug store~~ ~~pharmacy~~ CVS store around the corner. On a corner of its box I find: "Equity Time USA" with a California address. But "Made in China." Well, yeah, for $19.99 I pretty much expected that.

"To locate the product without AC outlet nearly, install 3xAA fresh alkaline batteries in the rear compartment following the polar direction. Note the power of these batteries cannot be lost with connecting the AC power." Duly noted. But there is only room for 2xAA fresh alkaline batteries in the rear compartment, whether I'm facing north or south. I suppose two will work okay. The manual clearly warns me: "Specifications are subjected to change and improve without notice." That's something to hope for, I guess. The radio dial has the highest frequencies at the left side, and the lower ones at the right; maybe they'll switch themselves, without notice. But as soon as I plug it in, it sets the time for itself. That's nice, but not essential: I'm just on the current side of that age/technology divide that separates people whose appliances flash 12:00 from those whose appliances don't.

I'm bemused, though, by the notion of "Equity Time." Will it sound my alarm a half hour later than I've set it for, after I've had a hard day and really needed a good night's sleep? "You deserved an extra half hour, Beldar!" If I tell it, when I go to bed, to wake me at 6:00 a.m. sharp, will it tell me the next morning that I'm estopped from hitting the snooze button? If it notices just how lazy I really am, will it stop working, too, because I'm guilty of laches? And will it care if I have clean hands? God's bodkins, man, if I have a clock radio that uses me after my desert, shall I 'scape whipping?

Posted by Beldar at 11:58 PM in Humor, Law (2007), Technology/products | Permalink | Comments (4)

Wednesday, September 12, 2007

In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"

Sen. Larry Craig (R-ID) As a result of my telephone conversation with him and my follow-up email request yesterday, Patrick Hogan, the director of public affairs for the Minneapolis-St. Paul Metropolitan Airports Commission, graciously emailed to me today the two-page letter dated July 20, 2007, under cover of which part-time prosecutor Chris Renz forwarded to Sen. Larry Craig the three-page written motion to enter a guilty plea that Renz had drafted for Sen. Craig's review and possible signature. Sen. Craig signed the motion on August 1st and returned it for filing with the Hennepin County District Clerk. I had noticed a reference to and short quote from Renz' cover letter in an August 28th Associated Press report, but I had not been able to find the full text or an image of the letter anywhere on the internet.

Renz' July 20th cover letter is a precise, entirely fair, and altogether professional piece of work. The AP reporter who only quoted it briefly obviously didn't appreciate its full significance, because in my opinion, it spells the absolute doom of Sen. Craig's efforts to withdraw his guilty plea.

Of critical importance for purposes of the upcoming hearing on September 26th on Sen. Craig's motion to withdraw his guilty plea: In its very first paragraph, this letter repeatedly reminds Sen. Craig that he still had the right to have the assistance of counsel for the specific purpose of deciding whether or not to enter his plea of guilty to the disorderly conduct charge as part of a proposed plea bargain for the dismissal of the peeping charge (emphasis mine):

Please find enclosed a Petition to Enter Plea of Guilty-Misdemeanor in the above-referenced matter. Please review the document and to the extent that you wish, review the same with legal counsel. If you understand the contents of the Petition and agree thereto, please sign the bottom of pages 1, 2 and 3, as well as sign and date top most signature block on page 3. To the extent that you review the agreement or consult with an attorney regarding the agreement, please enter that attorney's name at paragraph 7 and have them complete the final signature block on the agreement. To the extent that you are not consulting with an attorney or represented by an attorney, please appropriately circle "am not" in paragraph 7.

The letter confirms my previous inference that Renz and Craig had spoken by phone before Renz drafted and sent Craig the proposed motion, and that — far from trying to stampede Craig — Renz had actually arranged for a two-week continuance of Sen. Craig's original July 25th appearance deadline in order that Sen. Craig could have time to consider the plea carefully:

Please return the petition and the [fines and fees] payment so that it is received before August 8, 2007, which is the date to which your arraignment appearance is being continued, as we discussed....

More importantly, however, compare Sen. Craig's attorneys' current spin from his motion (at page 2 of the .pdf file; boldface mine) —

While in this state of intense anxiety, Senator Craig felt compelled to grasp the lifeline offered to him by the police officer [on June 8th after his arrest]; namely that if he were to submit to an interview and plead guilty, then none of the officer's allegations would be made public. Thus, rather than seek legal advice from an attorney to assist him in publicly fighting these charges and potentially protract the issue, Senator Craig's panic drove him to accept a guilty plea, the terms of which offered him what he thought was a private, expeditious resolution of this matter.

— with this sentence from prosecutor Renz' letter that Sen. Craig quite literally had placed into his hands simultaneously with the proposed plea agreement (boldface mine):

Agreeing to the Petition will result in a conviction for Disorderly Conduct appearing on your criminal record.

Point, game, set, match. If you can't hear the fat lady already finishing her warm-ups, it could only be because you've got your fists plugged into your ears and you're singing "LA-LA-LA-I-can't-hear-you" at the top of your lungs. (Or because you're a once-powerful U.S. senator in a serious state of denial.)

I don't know how to say this politely, so I will be blunt: It is inconceivable that when they drafted Sen. Craig's motion, his lawyers did not know of this cover letter. And it is inexplicable to me how any competent lawyer could let his client commit under oath to the notion that he thought his conviction under the guilty plea would not be a matter of public record when he also knew that a letter like this existed. Failing to acknowledge and describe the contents of this letter to the court in their motion borders upon the unethical, and as a tactical decision, it's likely to be about as smart as lighting a barbecue grill aboard the Hindenburg.

Previously, I was guestimating that Sen. Craig had about a 50/50 chance on his motion succeeding. That was based almost entirely on the apparent fact that the motion to enter his guilty plea didn't contain the specific recital required by Minnesota Rule of Criminal Procedure 15.02(3) to establish that "the defendant [knew] there is a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for a defendant unable to afford counsel." But this letter almost certainly, and almost conclusively, remedies that omission. And it destroys Sen. Craig's remaining tatters of credibility — and frankly, that of his lawyers, too — by exploding their claim that Sen. Craig had pleaded guilty based on some explicit or implicit understanding that this would all be hushed up if he'd only go along with the guilty plea.

My revised estimation is that Sen. Craig's odds of prevailing on his motion are somewhere below 5%. The only kind of judge who could grant this motion would be the kind who elevates procedural form over all substance, who cares nothing about whether procedural violations have even arguably prejudiced the defendant, and who is also remarkably unoffended by lawyers and litigants who lack fundamental candor. Personally, either as a lawyer or a citizen, I find Sen. Craig's and his lawyers' duplicitous effort to mislead the court considerably more disgusting than anything Sen. Craig is alleged to have done in the men's restroom of the Minneapolis-St. Paul airport.

-----------------------

Previous posts on the Craig matter, oldest to most recent:

Posted by Beldar at 09:10 PM in Law (2007), Politics (2007) | Permalink | Comments (19)

Do you care if national security criminal Sandy Berger is re-embraced by The Triangulatrix?

This is a story about a buffoon who became one of our nation's top national security officials, and then became a confessed national security criminal. His probation ended last week, and he still can't be given access to classified documents or information. But he's once again part of the "triumvirate" of senior officials advising She Who Would Be President on foreign policy matters.

Former National Security Adviser Sandy Berger

Do you care?

*******

On Thursday, September 8, 2005, former Clinton Administration National Security Advisor Samuel R. "Sandy" Berger pleaded guilty to one count of violating 18 U.S.C. § 1924, "Unauthorized removal and retention of classified documents or material." Section 1924(a) provides:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

Because the maximum term of imprisonment authorized is one year, a violation of section 1924 is considered a "Class A misdemeanor" under 18 U.S.C. § 3359(a)(6), that being the most severe category of federal misdemeanor. (Crimes punishable for more than one but less than five years are Class E felonies.)

Under the terms of the judgment of conviction signed on Tuesday, September 13, 2005, Berger was fined $56,905.52 and "placed on probation for a term of 2 years," with his probation conditioned on his not committing "another federal, state, or local crime," and on his performance of 100 hours of community service. In addition to other standard conditions of probation (such as not associating with persons engaged in criminal activity, permitting visits by probation officers, and so forth), U.S. Magistrate Judge Deborah A. Robinson also approved an unusual plea bargain term as a further condition of Berger's probation: "Defendant shall have no access to any classified material for a period of three (3) years."

Law professor Jonathan Adler sums up Berger's conviction and underlying crime(s) this way (h/t InstaPundit):

Berger repeatedly stole and destroyed classified documents, resulting in the temporary loss of his security clearance. Berger has never provided a plausible explanation for his actions. By voluntarily giving up his law license, he avoided a cross-examination from bar counsel, so we still do not know precisely what he was doing and why. Indeed, the only assurance that Berger did not destroy unique copies of classified national security documents — such as copies of reports containing notations in the margins and the like — comes from Berger himself, something that the 9/11 Commission was not told when it was preparing its report (as I noted here).

Betsy Newmark also has more recent links and quotes about the scope of Berger's thefts and document destruction.

*******

Berger proceeded to show the world just how very, very seriously he took the conditions of his probation. According to the Washington Post, less than 48 hours after his sentencing

Berger was clocked going 88 mph in a 55-mph zone while driving eastbound on Interstate 66 in Fairfax on [Saturday,] Sept. 10, according to court records. Berger told court officers that "he was speeding because he was late to a meeting, and he was not aware of how fast he was traveling," according to a probation violation report filed in federal court.

The charge comes as some judges in Fairfax have begun cracking down on excessive speeding and other reckless driving violations, sentencing violators to jail time in some cases, defense lawyers said.

Reckless driving is a Class 1 misdemeanor in Virginia; it carries a penalty of up to 12 months in jail and a $2,500 fine, although those limits are rarely approached, experts said. At the very least, Berger is likely to be fined and to have his driver's license suspended for several months if he is found guilty, according to traffic lawyers not connected to Berger's case.

An October 5th memorandum from the District of Columbia's Chief United States Probation Officer pointed out to Magistrate Judge Robinson that her options included revoking Berger's probation and re-sentencing Berger to a full one-year custodial term in a federal prison. But apparently, the quality of Magistrate Judge Robinson's mercy was not strained: According to the WaPo story, she "admonished Berger ... for the traffic charge during a brief hearing in U.S. District Court for the District of Columbia but left him on probation as recommended by the federal probation office, according to court records."

The WaPo article closed by reminding us all that "Berger stepped down as an adviser to the presidential campaign of Sen. John F. Kerry (D-Mass.) after the investigation [into his document theft] was disclosed last year [i.e., in 2004]."

As it turned out, Berger was only fined $250 when he pleaded guilty to the reckless driving charge in November 2005. But that guilty plea establishes that within 48 hours after being sentenced to probation for a crime punishable by a year's imprisonment, he proceeded to commit yet another.

According to my check today of the U.S. District Clerk's online docket sheet for Berger's criminal case, he appears to have satisfactorily completed the balance of his two years of supervised probation — that supervision having ended last week on September 7, 2007. But the special condition of his probation — the prohibition on his having access to classified materials — still has another year to run.

*******

Although the accusation that Berger had committed an intentional, shameful abuse of the public trust was sufficient to shame John Kerry into disassociating himself from Berger in 2004, even Berger's guilty plea and conviction are obviously insufficient to similarly shame front-running 2008 Democratic presidential candidate Sen. Hillary Clinton (D-NY). And beating John Kerry in shamelessness is an impressive accomplishment.

Last month, Newsweek's Michael Hirsh revealed, as part of a story about younger Clintonistas who were "defecting" to Barack Obama's campaign, that Berger was indeed functioning as a close adviser to Sen. Clinton (second ellipsis by Newsweek, boldface mine):

Younger former Clintonites ... are also wary of what one describes as Hillary's "closed circle," including her husband and a triumvirate of senior officials from his presidency — Holbrooke, Albright and former national-security adviser Sandy Berger. "There is a sense, consciously or subconsciously, that we don't want to just go back to the same team: Holbrooke, Sandy, Madeleine ... the same people having the same arguments about who's going to be in the room," says the midlevel Obama adviser. The Obama campaign has played on those fears, telling recruits they can rise faster with the Illinois senator. "The Obama pitch is, 'You'll never be in the inner circle' with Hillary," says Gene Sperling, Senator Clinton's top economic adviser.

In a follow-up online-only story this week, Hirsh wrote:

The more experienced Hillary Clinton, meanwhile, has relied largely on her husband and a triumvirate of senior officials from his presidency — former secretary of state Madeleine Albright, former U.N. ambassador Richard Holbrooke and former national-security adviser Sandy Berger (who tries to keep a low profile after pleading guilty in 2005 to misdemeanor charges of taking classified material without authorization).

Oh, how droll is that parenthetical — "tries to keep a low profile"? As of today, a Google search of Hillary's campaign website reveals only one reference to Berger, and that's in a blog comment quoting Berger from 1998 on the likelihood of Saddam having and being willing to use WMDs. By contrast, there are more than two dozen references to Madeline Albright.

*******

Sen. Clinton is, of course, a member of the Senate Armed Services Committee, and serves on its Airland, Emerging Threats and Capabilities, and Readiness and Management Support subcommittees. I presume that as a senator with those assignments, she has regular and routine access to classified documents and information. I also presume that, as a presidential candidate, she has regular and routine meetings with her senior staff to advise her on political aspects of her foreign policy positions.

Golly, I hope she's being careful not to let a shred of classified information slip into her discussions with the Triumvirate. Receiving classified information from Sen. Clinton over the coming year, even if unintentionally and inadvertently disclosed by her, would be a violation of Berger's probation. Him having voluntarily put himself into a situation in which he was likely to be privy to such unintentional and inadvertent disclosures would certainly be something a federal judge considering probation violations could and should consider. And even though he's no longer under active supervision, a violation of this continuing term of his probation could still send him back to prison for a year.

Brave, brave Sandy! I say that because surely he knows that if Hillary were to have a slip of the lips, then honest and ethical Hillary would be the first person to blow the whistle and report the probation violation to the court system and the press.

Wouldn't she?

*******

Sen. Clinton's shamelessness with respect to convicted national security criminal Berger is, of course, entirely unsurprising, given who she chooses to remain married to. And I wrote as far back as July 2005 that the political rehabilitation of Sandy Berger had begun even before his formal sentencing, when the WaPo published an op-ed that Berger co-wrote with Bush-41 National Security Advisor Brent Scowcroft.

Blogging today on Outside the Beltway, Dr. James Joyner wonders whether

maybe we've reached the point where such things [as Berger's conviction and continuing court-ordered non-access to classified documents] don’t matter. Clinton’s husband left office with remarkably high public approval despite impeachment and conduct which led to him being stripped of his license to practice law. Meanwhile, the current administration continues to run war policy despite a string of scandals and near-record low approval ratings. Perhaps fealty to the law is no longer high on the list of public expectations for executive office.

Dr. Joyner's comparison is inapt. Whatever "scandals" surround it in the eyes of its partisan opponents, the only high-level official of the Bush-43 Administration who's been convicted of anything in a court of law is Scooter Libby — and he doesn't still work for Dick Cheney, and hasn't since he was indicted, and almost certainly never will again, even if his appeal succeeds in overturning that conviction. But Dr. Joyner's right on his implied main point — which is that it's only public opinion that can effectively disqualify someone like Sandy Berger from returning to extraordinary public power and influence.

I guarantee you that somewhere in the bowels of the Clintonista Research Room, right now there is someone running Technorati searches on Hirsh's Newsweek articles about Berger; someone's checking Google News; and someone's probably writing questions for the next focus group session or telephone poll to see just how strongly the name "Berger" skews the needle in the window of the public approval meter.

If lying down again with this dog gives her visible fleas that the voters may notice, then The Triangulatrix will drop him in the proverbial New York minute. Otherwise, she won't. If there's no furor now, he'll stay in the inner circle through the election. If she wins and there still hasn't been a public furor, or a very big one anyway, then you can bet the ranch that the U.S. Senate will again be asked for its advice and consent on Samuel R. Berger. In my post of April 2, 2005, which was entitled Beldar on Berger: If he comes back, blame politicians, not the prosecutors, I wrote (emphasis in original):

It's not a felony conviction. The buffoonish schtick — "he stuffed the documents into his pants and his socks, fer pete's sake, har har har!" — is what will stick in the public memory, not the federal criminal conviction for a confessed and indisputable breach of a public trust. And the groundwork has been laid for what suddenly seems to me to be a very likely PR campaign by the once-and-would-be-future Clintonista spinmeisters:

"That crazy Sandy, what a wonk! Yeah, he had that slap on the hand, but hey, he took his medicine like a mensch, Senators — and look at his career in context! Can you let this silly misstep from years ago, during the crazy post-9/11 hysteria, disqualify him from distinguished service in the Hillary Administration? Will you deny the public the benefit of his expertise and his insights for such a trivial matter? Why, that would be crass partisanship, Senators. The President and the public have forgiven him; indeed, the President pardoned him on her first day in office. Onward and upward, Senators!"

... The Constitution requires the Senate either to consent, or to withhold consent. But with respect to Sandy Berger, that future political judgment on the Senate floor ought to be — may not turn out to be, but ought to be, if principle can indeed prevail over spin — preordained by this week's legal judgment in a court of law: GUILTY.

He is guilty. Forever, undeniably — guilty. Pardoned or not, rehabilitated or not, penitent or not, buffoonish or not — self-admittedly guilty of deliberately, intentionally, cynically, cravenly betraying the public trust and the national interest of this country. And then he lied about it to the public, before finally confessing as part of his guilty plea.

Bookmark this post for 2009 — just in case. You might want to email a link to it to your senators then.

Or you might want to leave a blog comment now. Or write a letter to your favorite newspaper's editor, or maybe to the Probation Office for the U.S. District Court for the District of Columbia. Or phone in to your favorite talk radio program. Or mention it to your co-worker at the water cooler or your neighbor over the back fence. Because The Triangulatrix doesn't care herself — but she will care if enough of us care.

Posted by Beldar at 06:48 PM in 2008 Election, Law (2007), Politics (2007) | Permalink | Comments (35)

Tuesday, September 11, 2007

On 9/11/01 plus six

This is how the enemy defines success — chunks of American bodies strewn across a landscape so large that it requires a satellite photo to show, in a photo too large for your web browser to encompass when it's enlarged enough to show any real detail, and whose scale would even then still barely permit an intact human body to be made out as anything but a dot.

National Oceanic & Atmospheric Administration satellite photo of WTC crash site

If you have a fast connection, go ahead and click on the photo to see it full-sized in a new browser window, and then scroll around over the piles. Be grateful that it comes without the smell and texture of dust and greasy ashes that hung over the original. Close your eyes then, and take a few moments to imagine yourself flying slowly upward from this ground, at this same hour of the day only a few days earlier, ghostlike through the more than 100 stories of mixed, motley, mostly happy people, many thousands of them, who all worked in a pair of soaring towers on a brilliant fall morning when mostly all of us were naïve and complacent. We were unaware that we were at war at all, much less that every one of us is a potential casualty. The smell then would have been morning donuts and bagels and coffee, fresh-washed unburnt hair, and innocence. The air had no texture at all.

(A photograph that is simultaneously sublimely innocuous and horrifically disturbing appears after the jump, if you're reading this from my blog's home page.)

*******

Every day for the last six years, brave Americans in and out of uniform — and their brave allies from countries like Britain and Australia and, sometimes, Germany and Spain and Canada and South Korea and Japan and Poland and Honduras and the Ukraine and lots of other places — have worked diligently, sometimes at risk of their own lives, to spare you and me from the kind of choice that this man had to make, six years ago today:

The 'falling man,' actually one of dozens

I hope all their efforts keep us all safe on this sixth anniversary, as they have kept most of us safe on the past five, and on the days in between. I thank them, for my sake and my family's and friends' and countrymen's sake. I thank them even for the sake of my countrymen who have already forgotten, or never grasped the lessons — the ones who blame ourselves collectively, our society, or even just our president, instead of blaming our enemies. They persuade themselves against all logic and evidence that if we'd just "support our troops by bringing them home," our enemies wouldn't keep trying to make scenes like the ones in these photos. They nod to one another sagely when one of them declares that fire can't melt steel, or when another of them says that America today is just like Nazi Germany, or when another says that Fox News is worse than al Qaeda. They buy full-page ads in the New York Times (at special discount rates!) to label as a "betrayer" the commander whose troops are engaging al Qaeda in Iraq so that the NYC PD & FD aren't overwhelmed again by al Qaeda in America. Yes, thank you, brave men and women, in and out of uniform, American and non-, who mostly keep us all, including even our idiots, safe from harm at our enemies' hands.

Our enemies laugh and laugh at our idiots, and at us for tolerating them, and they'll keep on laughing until the very moment when an American Hellfire missile rides up their light truck's exhaust pipe to take them straight to a different sort of hellfire. One way or another, there's hellfire waiting for them; personally, I just hope they get it both ways. I wasn't sure, six years and one day ago, whether there even is a hell. But now I understand that there has to be one, if only as a cosmological and theological counterweight to our enemies' evil. (I was late to the lesson; my father learned it at a much younger age, for example, when he went ashore with his shipmates from the USS Zeilin in the spring of 1945, after the liberation of Manila and most of the island of Luzon in the Philippines.) I can't do the math, but I'm nevertheless very confident that electromagnetism, gravity, the weak and strong nuclear forces, quantum mechanics, string theory, the as-yet-unpublished Grand Unified Theory, and the whole universal ball of wax would stop working properly if there weren't a hell for such evil to be punished appropriately in. And I'm confident that Dante suffered from a failure of sufficient imagination. In contrast to our idiots, though, I concede that these are matters of faith, not empiricism or conspiracy.

For those of us who not only understood, but still remember, the lessons published six years ago today, there's exactly one simple, solemn vow to re-affirm today:

Never forget.

Posted by Beldar at 07:45 AM in Global War on Terror | Permalink | Comments (7)

Monday, September 10, 2007

Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him

Via Jeralyn Merritt at TalkLeft, here is a 39-page .pdf file containing Sen. Larry Craig's motion to withdraw his guilty plea, including a new three-page affidavit from him in support of it. In it, one finds (at pp. 19-20 of the .pdf file, in paragraph 12) this extraordinary statement under oath (boldface mine):

Deeply panicked about the events [of my arrest and post-arrest interview], and based on Officer Karsnia's representations to me regarding the potential outcome, my interest in handling the matter expeditiously, and the risk that protracting the matter could lead to unnecessary publicity, I did not seek the advice of an attorney on the date of my arrest, and I made the decision on that date to seek a guilty plea to whatever charge would be lodged against me.

Oh, really? Capital murder and treason included? This is a ridiculous statement — one that's not only almost certainly untrue, but that actually undercuts Craig's motion: If Craig had indeed come to an irrevocable decision to plead guilty to whatever they charged him with, and he came to that decision immediately after being Mirandized and with full knowledge that he was entitled to an attorney, then any later violation of or compliance with Minnesota's procedural rules designed to ensure that his waiver of his right to counsel was a knowing and voluntary decision was causally irrelevant, either way, to the actual entry of his plea.

(Christopher P. Renz' name, by the way, isn't on the new pleadings as part of Craig's legal team. But I still haven't heard back from him with a denial that he's been retained by Craig. Maybe I'll phone his office tomorrow.)

Craig's whole "I panicked" argument can be ground firmly into the dust with no more of a cross-examination tool than a calendar. Craig was arrested on June 11th and didn't sign his motion to plead guilty until August 1st.

Nor do I think it's a great idea to lead with an assertion that Craig's "panic" was justifiable because a homestate newspaper was investigating his lifestyle, including rumors of homosexual activities. That's not only not a crime on the part of the press, it's not something that any senator has any basis to claim surprise about. "Boo hoo, poor overwhelmed and picked-upon me" is an emphatically stupid defense strategy for a U.S. senator.

Overall, I am decidedly unimpressed with the motion and supporting exhibits that Craig's lawyers filed today on his behalf. It does a barely adequate job of making what is clearly his best argument — that the written motion to enter a guilty plea, drafted for him by the prosecution, failed to comply with Minnesota Rule of Criminal Procedure 15.02. They have what appears to be a crystal clear violation of an important pretrial rule designed to protect fundamental constitutional rights, and they wait until the seventh page of a sixteen page brief to even cite that rule!

To give you just an idea of the lack of care paid to this argument: At the top of page 8, in an intended explanation for how Rule 15.03 requires mail-in pleas to conform to the standards of Rule 15.02, appears this sentence: "Rule 15.03, which governs 'pleas by mail' such as the petition entered in this case, requires the same protections as Rule 15.03." Now, that's just a typo — they clearly meant to end the sentence with "Rule 15.02." But some typos are less excusable than others, and getting a rule number wrong in the most important portion of your argument is pretty damned sloppy.

The motion does not argue that the sting operation unconstitutionally discriminated against gays — no doubt because to make that argument, Craig would have to admit that he's gay, but also perhaps because it would be a bogus argument. Nor does it focus on the "'or' for 'in' typo," or the Article I, Section 6 "arrest en route to a Congressional session" immunity, both of which would also have been completely bogus. (I discussed all of these in more detail here.)

And indeed, other than the Rule 15.02 point (which can be made solely from the written record as it existed at the time the court accepted the plea), Craig's lawyers' only other argument was that neither the plea agreement nor the complaint make out conduct that even arguably violated the disorderly conduct statute. That's an argument that I think is badly, obviously wrong for all the reasons I explained in my very first post on the Craig matter. It might win with a jury; it's not going to persuade many, if any, judges that the prosecution's complaint didn't even allege a prima facie case from which a jury could find a violation of the statute.

By submitting Craig's sworn affidavit, his lawyers have chosen to attempt to prove his entitlement to withdraw his plea by relying on evidence outside the existing record. The prosecution should object on grounds that even though his affidavit is sworn, his statements in it were made out of court, not subject to cross-examination — and therefore they're hearsay. His motion asks for oral argument, but not an evidentiary hearing; yet without an evidentiary hearing, with live witnesses subject to cross-examination, they ought not be able to rely on anything outside the record when the court accepted the guilty plea. (The court could consider the affidavit for the purpose of deciding whether there have been allegations sufficient to justify having such an evidentiary hearing, without giving any evidentiary weight to the hearsay allegations in the affidavit as substantive evidence.)

Unsurprisingly, as CNN reports, the prosecution intends to oppose Craig's motion:

Patrick Hogan of the Metropolitan Airports Commission said the prosecutor will oppose Craig's motion, according to The Associated Press. The commission runs the airport and handled the prosecution of the case.

"We do feel we have a strong case, and he's already made his plea, and it's been accepted by the court," Hogan told the AP. "From our standpoint, this is already a done deal. Mr. Craig was arrested and signed a guilty plea, and from our standpoint, this case is already over."

I would love the opportunity to cross-examine Larry Craig on the quoted statement above from his affidavit, plus others that I think have a very questionable ring, plus the huge subject areas that his affidavit and motion carefully avoid.

Does he now claim under oath, for example, that he was unaware that he had the right to counsel to advise him on how taking the plea bargain compared to his other options?

Does he claim that if the written plea agreement had contained the warnings required by Rules 15.02 and 15.03 to the effect that he was entitled to counsel at every critical stage of the proceedings, including in connection with plea negotiations and the entry of his guilty plea, he would have suddenly decided — inconsistently with what his affidavit swears — not to enter a guilty plea? [Update (Mon Sep 10 @ 9:20pm): This is an awfully important point, and it prompted me to add the additional concluding sentences in the paragraph near the top of this post, just after "treason included?"]

Does he claim that Sgt. Karsnia promised him to seal the court files so that no one, whether the Idaho Statesman or anyone else, could find out about his guilty plea?

As a U.S. senator, did he not understand that criminal proceedings, including trials and pleas and court records about them, are generally open to the public? Or was he instead working on the assumption — notwithstanding the dozens or hundreds of votes he's cast as a law-maker — that American criminal justice operates through secret Star Chamber-like trials?

Despite the average-or-less quality of this motion and supporting affidavit, I still think (as I wrote at length last week) that the chances are still fairly good that Craig can get his plea withdrawn — something on the order of 50/50, anyway. Today's New York Times confirms that, as I suspected, some defendants caught up in the same sting that netted Craig had negotiated pleas through their lawyers for "deferred prosecution." If the judge reviewing Craig's present motion takes that into account, he may conclude that Craig was indeed materially harmed by not having a lawyer, and thus pay particularly close attention to whether the record confirmed a knowing and voluntary waiver by Craig of his rights to counsel before his plea was accepted.

But Craig may now have to climb onto the witness stand for what potentially could turn into a very embarrassing evidentiary hearing even to get that far. [Update (Mon Sep 10 @ 10:30pm): I haven't researched it, but I'm reasonably sure that by filing this affidavit, Craig has voluntarily waived any Fifth Amendment privilege against self-incrimination that he might otherwise have asserted to prevent the prosecution from calling him to he witness stand as an adverse witness during an evidentiary hearing (at least on the topics covered in the affidavit and for purposes of the plea withdrawal). If the prosecution's hearsay objection to the affidavit is sustained, it would be stricken from the record, or at least not considered for any evidentiary purpose other than as a proffer to show why an evidentiary hearing would be justified if the Craig team asked for one. But even if the affidavit is stricken, and even if Craig's team is willing to lose the benefit of the affidavit rather than ask for an evidentiary hearing, the prosecution should still insist on an evidentiary hearing. The more I think about it, the more I think that filing that affidavit was a colossally bad idea, and that whoever helped Craig draft it used particularly abysmal legal judgment. — Beldar]

More importantly, as I've said from the beginning, Craig may win this battle only to be thrust back into the larger war — a trial on the merits on both the disorderly conduct and the peeping charges, as a result of which he may well be convicted of both and have to do serious jail time, in addition to incurring considerable expense and subjecting himself and his family to continuing ruthless public scrutiny. From today's CNN story, we hear more from Sen. Arlen "Super-Precedent" Specter:

In a CNN interview Sunday, one of Craig's Senate colleagues compared the guilty plea to a motorist paying an undeserved parking ticket. Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, said Craig should stay in the Senate and fight to overturn his conviction.

"He thought that this matter would not be publicly disclosed, and that was very foolish," Specter said. "Now look here, you have 27 years in the Congress, you have his reputation, you have his whole life on the line. I think he's entitled to his day in court. Maybe he will be convicted, but I doubt it."

Specter said Minnesota law allows a defendant to withdraw a guilty plea "if there is manifest injustice, and that is defined that a plea can be withdrawn if it was not intelligently made," Specter said. "And what Sen. Craig did was by no means intelligent."

Well, yeah, we can all agree that Sen. Craig has been foolish. The problem is, he's apparently not getting any smarter even now that he's lawyered up.

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UPDATE (Tue Sep 11 @ 11:10am): I phoned the Hennepin County District Courts this morning and waded through the automated messages until I got to a live deputy clerk, who advised me that as best she can tell from her computerized court records summary screen, there was no "Form 11" (or as she called it, "pro se form") on file in Sen. Craig's case. She also advised that an "oral hearing" has been set for 1:30pm on Wednesday, September 26th — which fits with Sen. Craig's announced intention to try to get this "disposed of" before his announced Senate resignation effective date of September 30th. I've got voicemail messages pending for Chris Renz and for the spokesperson for the Airport quoted above, Pat Hogan; maybe one or both will call me back.

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UPDATE (Tue Sep 11 @ 7:10pm): I received a prompt return phone call from Mr. Hogan, who's the director of public affairs for the Minneapolis-St. Paul Metropolitan Airports Commission, around mid-day today. He confirmed that to the best of his knowledge, Chris Renz has not been hired by the Craig team, contrary to the Congressional Quarterly report; like me, he could only speculate that they got a name wrong somewhere. Mr. Hogan explained that the Minneapolis-St. Paul airport functions like a municipality in many respects, including in hiring Renz' law firm to prosecute its misdemeanor charges. He said that same firm will be responding to Sen. Craig's motion to withdraw his plea, and that they'd make whatever decisions were appropriate about, for example, whether to try to call Sen. Craig to the witness stand, have stand-by counsel if Renz should become a witness, and so forth. Understandably, however, he was unable to discuss specific tactics or positions with me.

The September 26th oral hearing setting came, according to Mr. Hogan, directly from the court. He noted that there's no assurance that the court will actually rule on Sen. Craig's plea right away, however.

Finally, consistent with what the deputy clerk had told me, Mr. Hogan also said that he was unaware of any motions or pleas being filed by Sen. Craig before the motion to accept his guilty plea by mail. So that's some further confirmation that Sen. Craig didn't fill out and file a Form 11, either on his own initiative or at the prompting of prosecution or clerk's office personnel.

Posted by Beldar at 07:00 PM in Law (2007), Politics (2007) | Permalink | Comments (8)

MoveOn.org's new ad campaign: "Nanny nanny boo boo, Petraeus is stinky and Bush is too!"

I gather that "the antiwar group MoveOn.org is running a full-page advertisement in the New York Times [today, i.e., Monday,] under the headline: 'General Petraeus or General Betray us? Cooking the books for the White House.'"

MoveOn.org NYT ad, in screencap from NBC's 'Meet the Press'

I know there are mature, thoughtful, and patriotic Americans who will listen to and consider what Gen. Petraeus says this week, and who will nevertheless find it unpersuasive, or judge his testimony to lack credibility, or will accept it in part and yet reject the conclusions that the Bush-43 Administration will urge based upon it. Many, but not all, of the mature, thoughtful, and patriotic Americans who react in these ways will be Democrats. Some of them will be leaders in the Democratic Party at national, state, or local levels.

I don't feel obliged to make a blog post every time some hard right nut-case updates his website on how the real explanation for American history over the last two dozen years can only be explained by Hillary Clinton's involvement in Vince Foster's suicide. But MoveOn.org channels dozens of millions of dollars to Democratic Party candidates. It demands attention. It buys full-page ads in the NYT. It's hard to ignore.

So my question to those mature, thoughtful, and patriotic Americans, and especially Democrats, who end up not being persuaded by Gen. Petraeus' testimony is this:

Will you condemn and disassociate yourself from MoveOn.org's scandalous character assassination? Or will you associate yourself with them, including their "Petraeus --> Betray Us" wordplay, a juvenile antic of which any moderately self-respecting third-grader would be ashamed?

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UPDATE (Tue Sep 11 @ 2:10am): Here, from blogger Big Tent Democrat at TalkLeft, is an example of a grown-up, intellectually honest disassociation. I heard some Democratic Congresscritters doing the same on TV earlier tonight as well. I wish there were more like that, and fewer like the folks who are making the decisions for MoveOn.org.

Posted by Beldar at 03:13 AM in Global War on Terror, Politics (2007) | Permalink | Comments (8)

Sunday, September 09, 2007

A good football weekend for Beldar

I dunno about y'all, but I watched four halves of football on TV this weekend, and thoroughly enjoyed three of them. How 'bout them (second-half) Longhorns (with a come from behind 34-13 win over a valiant TCU Hornfrogs team)? And how about them Texans (with a convincing 20-3 win over the Kansas City Chiefs)? I didn't watch the Cowboys beat the Giants tonight — too busy catching up on the TiVo'd morning talking head shows, cruising the general news on the net, and blogging. But I'm perfectly pleased for them to have won, too.

Posted by Beldar at 11:21 PM in Sports | Permalink | Comments (1)

Fran Townsend and Mara Liasson

As Bush-43 Administration public spokesmen go, I haven't seen any who have impressed me more than Homeland Security Adviser Fran Townsend on Fox News Sunday this morning. A former prosecutor, she was sharp and articulate, exuding competence and confidence on national security issues.

And she just looks mah-vellous, which isn't a job requirement, but doesn't hurt in terms of being an effective communicator.

(Yeah, I'm mildly smitten — two screencaps worth, anyway, albeit from a July appearance I missed. So what of it?)

For another notably candid statement on that same program from another elegant woman, here's Fox and NPR contributor Mara Liasson, speaking of the new Osama bin Laden videotape, after Brit Hume had said bin Laden sounded like nothing more than a madman and a crackpot (including on global warming and sub-prime mortgage markets):

But he's still here! And that's a problem. And his networks, or at least, networks that have been inspired by him, have expanded. And whether or not they can carry out an attack, they certainly can plan one, which we saw by the arrests in Germany. So I think that, you know, on this sixth anniversary, it's — terrorism is as much a threat as ever. No, there hasn't been another attack on U.S. soil, which is good. But I do think that you're going to see that the 9/11 hold on the American political debate has really changed. And I thought — you saw John Edwards this week, talking quite, you know, dismissively of the Administration's policy on terrorism. And I do think you will see Democrats being more willing than they ever have to break with the Administration on fighting terrorism.

Gosh, I hope so. I hope that all the Democrats bet the ranch on Americans' short memories. I hope the John Edwards approach sweeps the party. Certainly some Americans do have short memories. I just don't think they all have memories as short as, for example, Harry Reid's. And I don't think quite 50% of the voting ones do.

Posted by Beldar at 10:29 PM in Global War on Terror, Politics (2007) | Permalink | Comments (2)

Of Thompson and Clark and sports metaphors used in politics

At Outside the Beltway, James Joyner's post today is the latest of many I've seen comparing Fred Thompson's entry into the GOP presidential race this year with Wesley Clark's entry into the Democratic presidential race in 2000, but Dr. Joyner's, quoting one from blogger Publius at Obsidian Wings, is considerably more thoughtful than most of the previous comparisons I've read. Dr. Joyner notes that the "gap from any job to the presidency is wider than any other career progression I can think of," but apropos of today being the beginning of the NFL's regular season, he employs a sports metaphor, with this conclusion:

Thompson (and Clark before him), though, are like the rookie who missed training camp because of injury or a contract holdout. I can’t think of a single case where one of those guys did well his first season.

My response (in a comment there, reprinted here with slight modifications):

---------------

I agree that there's a huge "gap from any job to the presidency," but we're actually talking here about the gap from something else to credible presidential candidate.

Thompson's coming at that gap from the position of a twice-elected senator. He may not have a history at funnel-cake stands in Iowa, but he does have a history that includes small-town barbecue joints scattered across Tennessee. That was a while ago, though, and his previously demonstrated skills in those contexts may indeed be rusty, and the menu of key issues now are different.

Clark had been in the very top tier in his career, but having never run for any elected office, he had nothing remotely comparable to being a presidential candidate, or any kind of candidate, in his background.

So if you want to extend your sports metaphor, Thompson's in the position of a high-draft pick quarterback from, say, the University of Tennessee being expected to start at quarterback in the NFL. Clark was in the position of a third baseman from the New York Yankees being expected to start at quarterback in the NFL.

Clark was an absolute political novice. He may have been a good general (although I have my doubts about that), but not even his biggest fan can suggest that he came to the presidential campaign as an Eisenhower- or Grant- or Washington-like conquering warrior and savior of the nation. He never had a snowball's chance in hell to compete in the toughest political race imaginable. He's a political punch-line now, but anyone who ever took him as anything other than a political punchline was, with due respect, being naïve even before his campaign imploded on contact with, well, actual politics.

Thompson, by contrast, has at least as good a chance as Peyton Manning had as a rookie at Indianapolis:

Peyton Manning was the first draft pick of the 1998 NFL Draft, selected by Indianapolis, and started immediately for the team. Manning passed for 3,739 yards with 26 touchdowns and 28 interceptions. He set five different NFL rookie records, including most touchdown passes in a season and was named to the NFL All-Rookie First Team. [But the] Colts finished 3-13.

How much does being a veteran presidential candidate help? Perhaps not very much: Among the Democrats, the only candidate who has, in his or her own right, been on a national ticket is John Edwards, and his campaign has gone nowhere and has little prospect of going anywhere. On the GOP side, the only repeat candidate is John McCain, who's widely perceived to be doing substantially less well in this campaign than he did in 2000.

However, while she has run in exactly as many senatorial elections as Thompson (two), Hillary Clinton's campaign reflects her and her staff's experience with Bill Clinton's two presidential campaigns. It ought not be a surprise to anyone, then, that her campaign has been ruthless, disciplined, and nearly error-free. To extend the sports analysis further, she's been on a team that twice won the Super Bowl, but just not as the starting QB. It remains to be seen whether her experience will continue to allow her to cruise to a Clinton family three-peat. But objectively, she is, and she is performing like, the most experienced major presidential candidate from either party right now.

Finally: The NFL regular season started today, but the political regular season hasn't. All you have to do is look at the bloated roster to see that the cuts haven't been made, and while there might be season-ending injuries in these preliminary skirmishes, there hasn't been a delegate awarded yet, much less a presidential elector. Fred has a little bit of time to sharpen up, but he has to use it productively.

Posted by Beldar at 03:49 PM in 2008 Election, Politics (2007), Sports | Permalink | Comments (9)

Wednesday, September 05, 2007

Has Larry Craig hired the part-time prosecutor who filed the complaint against him?

[UPDATE (Tue Sep 11 @ 7:40pm): Since writing this post, I've confirmed to my own satisfaction that the answer to the question posed in the post's title is almost certainly: "No." See the updates at the bottom of this later post. — Beldar]

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Renz The prosecuting attorney who signed the complaint against Craig that was apparently filed on July 2, 2007, was one "Christopher P. Renz."

On August 28th, the AP reported: "[The] judge [who accepted the guilty plea], Gary Larson, and the prosecutor named on the criminal complaint, Christopher P. Renz, did not return phone messages left Tuesday." The Minneapolis Star-Tribune likewise reported on August 29th: "Because the case remains open, Larson's clerk said he couldn't comment. Christopher Renz, the prosecuting attorney, declined to comment." And also reported by the AP on August 29th:

The case was prosecuted by Christopher Renz, an Edina attorney in private practice who also prosecutes cases for the Metropolitan Airports Commission, and Craig was sentenced by Hennepin County District Judge Gary Larson.

But Congressional Quarterly reported on August 29th: "Craig said he did not consult a lawyer before pleading guilty, but this week he hired a local expert: Chris Renz, a former prosecuting attorney for the Metropolitan Airports Commission in Minneapolis."

I've seen this same CQ story reprinted elsewhere on the internet, but no other reports to this same effect. Other, later press reports (for example, here and here) that were contemporaneous with Craig's announcement of his intent to resign didn't mention Renz in describing the members of Craig's legal team.

And then there's this today from the AP — the first part of which is consistent with my post from last night, but in the last part of which attorney Renz' name pops up again:

A defendant who wants to overturn a guilty plea has to demonstrate a "manifest injustice" under the state's Rules of Criminal Procedure, said Steve Simon, a law professor at the University of Minnesota who has run a clinic for defense lawyers for 30 years. That's a high hurdle, he said.

"Very few motions to withdraw pleas are brought," Simon said. "Of those that are brought, few are granted."

He added, however, that in Craig's case "there are some very serious problems with the validity of that plea" because of the possibility that Craig may not have specifically waived his right to an attorney.

The police officer's Miranda warning to Craig covers only the police interrogation — not the later court process. In his plea agreement Craig waived five specific rights, including the right to a trial, but not his right to an attorney. Hennepin County's standard plea petition includes a waiver of a right to an attorney but that wasn't used in Craig's case, Simon said.

A July 20 letter from prosecutor Christopher Renz to Craig laying out the proposed plea agreement made several references to an attorney. "Please review the document and to the extent that you wish, review the same with legal counsel," the letter said. The Metropolitan Airports Commission, which prosecuted the case, declined to make Renz available for comment on Wednesday.

I haven't seen this letter yet, but I'm looking for a link to it somewhere.

Ethically, it would be ... extraordinary, to say the least, for a former prosecutor, whether full- or part-time, to undertake the representation of a defendant whom he helped prosecute. I've got to think that CQ just got the name wrong, but I've emailed Mr. Renz and CQ to inquire.

The fact that Mr. Renz is only a part-time prosecutor, though, is a potentially interesting twist that potentially might shed light on questions regarding how the plea bargain was struck, how the motion to enter the guilty plea was prepared, and how the details of this particular case's progression might have compared to those of comparable cases handled directly by the Hennepin County Attorney's office.

Posted by Beldar at 09:50 PM in Law (2007), Politics (2007) | Permalink | Comments (12)

I can't wrestle myself to the ground as your advocate against me in our fee discussions

David Giacalone is a lawyer who hates contingency fees.

Although he and I have never met, David and I have bumped into each other a few times in the blogosphere, most recently through a long-running but very civil discussion, partly here but mostly in the comments section his Overlawyered post about the Rutgers basketball player's defamation case against shock-jock Don Imus.

I became a fan of David's, and silently indebted to him, several years ago in reading through some of his many, many criticisms of the contingent fee structure for lawyer compensation. There was much food for thought on his blog, then called "ethicalEsq." And when I re-entered solo practice last year and was designing the six separate pages in the fees and expenses section of my new professional website, I tried to keep in mind his views, many of which I emphatically agree with.

David's unquestionably correct, for example, in arguing that most lay consumers of legal services don't have a sufficient appreciation for the fact that they can, in theory and usually in practice too, haggle with lawyers over rate structures and fees in pretty much the same way that they can haggle with car salesmen. They can comparison shop. They can improve their odds of making a good decision, and reduce their odds of unpleasant surprises, by doing research before making commitments. If a lawyer tells prospective clients he won't haggle, that's also his right — and maybe the market will sustain him in that, as it sustains the car salesman who's offering next year's new BMW that's restricted for limited U.S. distribution, and therefore insists on a "premium above sticker."

In his most recent post on the subject, however (h/t Ted Frank on Overlawyered), in the midst of many other good points, David makes one argument with which I wholly disagree (emphasis and links his):

Unfortunately, as ethicalEsq wrote in June 2003 at this weblog, when it comes to lawyers who use contingency fee contracts, there appear to be “Fiduciaries everywhere except in the mirror.” Even worse (and shamefully), lawyers have pushed bar counsel and courts to hold that fidiciary duties do not arise until after a retainer agreement is entered into with a prospective client (see Brickman’s The Continuing Assault, at 1197, which is excerpted below the fold). That’s right: some lawyers are shameless enough to argue that their duty to put the client’s financial interests above their own — and to give clients enough information to make intelligent decisions — does not exist until after the level of fees has been settled.

I agree entirely that lawyers are bound by ethical duties to the profession and to the public generally when they are negotiating their fee arrangements with prospective clients. Those include obligations to make full and fair disclosures and, in general, not to overreach or take advantage of our prospective clients' lack of sophistication. I agree, too, that a lawyer's duties to prospective clients include being candid and reasonably forthcoming in describing his preliminary opinions about the economics of a case, at least in general terms and very broad ranges.

But David is badly wrong in arguing that those duties rise to the level of owing fiduciary obligations to prospective clients with regard to fees: We can't yet be bound by fiduciary duties, because by definition, a fiduciary is obliged to put his beneficiary's welfare above his own. And it's unrealistic — it's impossible — for any prospective client to expect me to negotiate against myself on his behalf in order to get my prospective client my absolute best, lowest, most unfavorable-to-me and most favorable-to-him fee terms.

Instead, here's what I say about that specific subject on my professional website:

I try to deal fairly with my clients on fees both because that's the right thing to do and because it's in my own long-term interests.

Whether you're dealing with me or any other lawyer, however, remember this:

A lawyer whom you haven't yet hired must always be his own advocate with respect to the prospective fee arrangement between you and that lawyer. As a businessman, his interest has to be in getting himself paid — and most lawyers (including me) would rather be well paid than poorly paid. Your interests at that stage are certainly different from his, and in fact, depending on the arrangement under discussion, your interests may be exactly the opposite of his. Hopefully you can find an economic arrangement that will be fair to you both. But you must not rely on your prospective lawyer to put his own interests behind yours during the fee negotiation process.

Once I am retained, then I do indeed have an obligation to put my client's interests ahead of my own — including on matters that relate incidentally, or even profoundly, to my fees. Knowing that I will be exposed to risks from such obligations is something I do consider up front, in deciding what engagement terms will be satisfactory to me — and that's altogether appropriate, since I have the experience to make informed predictions and evaluate that risk. My clients' interests not infrequently oblige me to do things that would not be cost-effective for me personally, but once I'm their fiduciary, my obligation is to protect and further my clients' interests even at the cost of my own. And I'm fine with that — once I'm hired.

Before then, however, I would be deceiving and misleading my clients if I even suggested to them that I was putting their interests ahead of my own in my evaluation of how I can use their case to help me run a profitable business. Instead, in order to be candid with them, I think I must tell them that I am a businessman, in business to make a profit, and that they cannot and should not expect me to wrestle myself to the ground on their behalf during fee negotiations. Being a fiduciary is a profound responsibility, and it's not one that should be casually thrust upon any professional unless and until he's willing to undertake it for a specific client whom he's agreed to represent.

No amount of well-wishing or hand-wringing or pious virtue can change this. And by suggesting that it can, I think David dilutes the impact of some of his other, better observations.

Posted by Beldar at 01:06 AM in Law (2007) | Permalink | Comments (8)

Tuesday, September 04, 2007

Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed

On Sunday, I spent a good seven hours doing legal and factual research, all going into a post that would have explained why there was not a chance in hell that Idaho Sen. Larry Craig could succeed in trying to retract his guilty plea.

Airport men's room stalls, credit: Newsweek Law-blogger and real-life criminal defense lawyer Jeralyn Merritt argued last week that that Craig's written motion to enter his guilty plea didn't fully comply with the requirements of Rule 15.02 of the Minnesota Rules of Criminal Procedure as that rule was made applicable to mailed-in guilty pleas by Rule 15.03 — a failure made especially obvious by comparing it to the more much thorough forms provided in Appendix B and Appendix C to Rule 15. Specifically, the form Craig signed and mailed in didn't include a representation that Craig knew of, and was deliberately waiving, his right to counsel at every crucial stage of the criminal proceedings, including specifically in connection with his decision to accept a plea bargain and to enter a guilty plea to the disorderly conduct charge in exchange for the dismissal of the peeping charge.

I agree with Jeralyn that when such arguments are presented in a timely fashion, they can be surprisingly robust, even though they seem awfully picky. There's a good reason that the appendices included the language that was specified in Rule 15.02 but omitted by the Hennepin County prosecutors: Those picky little rules, collectively, both ensure and constitute due process. The more important the value being protected by the rule, the less strict courts tend to be in requiring a direct showing of causation between the violation of the rule and any particular harm to the defendant. And faced with a defendant who was proceeding without a lawyer, who's not a lawyer himself (even if he is a "lawmaker"), whose operative documents were being written for him by the advocates for the State (and they didn't follow the rules), and who's now maintaining his factual innocence and making a timely complaint about a violation of even such a picky little rule, I agree with Jeralyn that Craig would have a reasonably good chance of getting his plea withdrawn.

But I was prepared to disagree with Jeralyn because I was convinced that any attempt by Craig to make that argument now would be deemed untimely — sort of like asking for an instant replay review after the game has been whistled over.

*******

Rule 15.05 of the Minnesota Rules of Criminal Procedure permits withdrawal of a guilty plea "upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice." The missing language from Craig's written plea might be enough to satisfy the "manifest injustice" requirement, but I had already confirmed earlier last week that, based on the judgment date of August 8th, Craig had already missed his fifteen-day deadlines under Rule 26.04 for filing either a motion for new trial or a motion to vacate the judgment of conviction in the trial court, as well as missing his ten-day deadline under Rule 28.02 for filing a notice of direct appeal as of right.

Based on those deadlines, I was therefore working on the reasonable assumption that any motion by Craig under Rule 15.05 would therefore be considered "untimely," and that he would therefore be restricted to a so-called "collateral attack" on his conviction. In some states that would be done through a writ of habeas corpus, but in Minnesota, all such collateral attacks are made under Minn. Statutes § 590.01 et seq. I saved until last the task of looking for cases interpreting those statutes, again working on the assumption that they would at least roughly parallel the collateral attack standards I was familiar with from Texas and other states within the old Fifth Circuit.

My intended grand conclusion was that because he'd missed these bright-line deadlines, Craig would have to show something vastly more than the sort of technical defect that Jeralyn had spotted. He'd need to show that a fundamental constitutional right was violated, and not just in some technical way, but in a way that had actual consequences for him. He'd therefore need to show, I assumed, something like (a) a complete failure of anyone to ever advise him of his right to counsel, plus (b) an actual ignorance on his part of those rights, plus (c) a convincing argument that if the missing language had been in the form plea motion sent to him by the prosecutors, it would have tipped him against pleading guilty and instead into seeking a lawyer's advice, plus (d) an argument that on the basis of such advice, he would have reevaluated the charges and evidence against him, and would have decided instead to fight both charges rather than taking the plea bargain. Since we've heard the arresting officer Mirandize him in the post-arrest audiotaped interview, I thought it would be impossible for him to meet that burden in a traditional collateral attack.

My assumptions, though, were wrong. Minnesota law on withdrawing guilty pleas is just damned generous, at least as compared to Texas and other states I'm more familiar with. Minnesota's caselaw treats Rule 15.05 as having no bright-line deadline, and motions to withdraw pleas under it aren't automatically considered to be "untimely" even after new trial motion and notice of appeal deadlines have passed. Instead, the Minnesota courts have engaged in the sort of sliding scale balancing of interests tests that judicial conservatives (including me) so tend to mock. They weigh the magnitude of the right supposedly deprived against the delay in asserting it, with special emphasis on whether that delay will prejudice the prosecution in proceeding to trial if the plea is permitted to be withdrawn. The presumption of validity for final, no-longer-appealable judgments gets mouthed by the Minnesota appellate courts, but sometimes seems to count for very little. My research was far from exhaustive, and of course I'm not admitted in Minnesota, but in an hour or so I came upon a goodly handful of Minnesota cases permitting plea withdrawals months and even years after they'd been made, sometimes without anything approaching the kind of rigorous examination for both violation of fundamental rights and the resulting causation of prejudice that I would have expected.

Surprised and frustrated — partly with the squishy laws of Minnesota, but mostly with my own assumptions that they were probably like other states' laws I was already familiar with — I hit the "Delete Post" button, and went back to Jeralyn's blog to leave a "never mind" comment after the questioning comment I'd left earlier. (She apparently had seen some of the same cases I had.)

(The wild-card: If by chance the Hennepin County prosecutors also had Craig execute and file Minnesota's "Form 11," through which defendants are supposed to ask permission of the courts to exercise their rights to proceed "pro se" (that is, without counsel), then all bets as to whether he can withdraw his plea are off. But I'm working on the assumption that if there were such a document in the court's file, one of the mainstream media sources who've been swarming around this story would have mentioned it by now. If it's not there, its absence is yet another factor that would support Craig in withdrawing his plea.)

*******

Sen. Arlen 'Super-Precedent' Specter (R-PA) Now, though, as Jeralyn and K-Lo have blogged, various MSM sources (including ABC, WaPo, and the Idaho Statesman) are reporting that Craig is "reconsidering" his announcement that he may resign, in part based on encouragement from Sen. Arlen Specter that he ought to fight rather than bow out. Specter is indeed a former state-court prosecutor, which probably gives him just enough credibility that his advice seems to Craig like a life vest thrown to a man who'd already given himself up for drowned.

But that Specter may be right in saying Craig could get his plea set aside doesn't mean Specter's advice to fight is wise. One of Jeralyn's co-bloggers at TalkLeft who's also a criminal defense lawyer wrote a fascinating post last week reporting his/her poor success rate in trying cases like Craig's:

Does he want a trial? Can he win a trial? I don't think so.

I have tried about a dozen cases involving men arrested in bathrooms or in similar situations. My record: 1 and 11. Why? These cases are hard to win because the credibility determination always favors the officer. Judges feel compelled to rid their communities of gay men trolling for anonymous sex in public bathrooms, as a "quality of life" crime.

That record sounds about right to me — and that's presuming that Jeralyn's co-blogger is a capable and experienced lawyer doing a very competent job. There's a very real possibility — one that I'd go so far as to call a substantial probability — that Craig might get his plea withdrawn in the next week or two, withdraw his statement of intent to resign effective September 30, and then still end up being convicted. Indeed, he might be convicted not only of the simple misdemeanor disorderly conduct charge, but of the much more serious "gross misdemeanor" peeping charge. The trial would be, of course, a media circus; the result would likely come down largely to Craig's on-stand credibility as compared to that of the arresting officer, Sgt. Dave Karsnia, and to the jury's sensitivities in their legitimate role as "conscience of the community."

If I had a client in Craig's position and he was genuinely convinced of his innocence, and if he was therefore insistent upon proceeding to trial despite all the potential downsides — not just the criminal penalties he faced, but the expense and distraction, and most of all the intense embarrassment and hardship on him and his family and friends — then I'd certainly have no trouble buckling on my armor and picking up my sword and going to do battle on his behalf in court. To ensure that his decision was well-informed and truly well-considered, however, I would be as brutal as I could be in describing the risks. I'd do an extended and very realistic mock cross-examination of him on videotape, and then go over the playback with him — and with his wife. I'd beat him up in private as badly as I expect the prosecutors will beat him up in public. Because while a trial here would be very interesting for the public, it won't be pretty. And even if he risks it and wins, it still may not solve his political problems.

----------------

UPDATE (Tue Sep 4 @ 11:10pm): This lede gets my vote for "droll reporting of the week":

Just when Republicans thought things could not get much worse for their scandal-stained party, Idaho Sen. Larry Craig leaked word Tuesday night that he is reconsidering his abrupt plan to resign from the Senate in the wake of his arrest in a police sex sting operation.

Top Republican strategists were neither delighted nor amused by the senator's decision to rethink retirement after pleading guilty to disorderly conduct following his arrest in a Minnesota airport men's bathroom.

By way of further explanation of the difference between "direct" and "collateral" attacks on a guilty plea, let me give you an example of just how strict the Texas courts are with respect to the latter.

This past May, in Ex parte Douthit, the Texas Court of Criminal Appeals considered a collateral attack by a capital murder defendant who pleaded guilty as part of a plea bargain in 1987. As part of the plea, he escaped the death penalty and received instead life imprisonment with no possibility of parole. Eighteen years later, he filed a petition for a writ of habeas corpus in which he raised, for the first time, an absolutely valid argument: Prior to 1991, Texas law quite literally did not permit a defendant charged with capital murder to waive his right to a jury trial. Douthit's plea bargain squarely violated the then-existing statutes, and the judge ought to have required the prosecutors to dismiss the capital charge and re-indict him on a non-capital murder charge before accepting his plea. Had that happened, he would have been eligible, eventually, for parole. In effect, the pre-1991 statute prevented over-charging of capital murder by prosecutors who would then be able to plead down to get a life with no parole sentence; so although it looks like a restriction on defendants' rights, it arguably actually expanded them (albeit at the expense of prosecutors' flexibility in the plea bargaining system, which might come back around to hurt at least some defendants).

On similar facts, the Texas Court of Criminal Appeals and the intermediate Texas appellate courts had granted writs in several previous cases, but the Douthit court reconsidered and then overruled those decisions. The "right" in question, it emphasized, was merely one conferred by statute — it was not a fundamental constitutional right guaranteed by either the U.S. or Texas constitutions, and indeed it had been dissolved for capital defendants accused after 1991 by unquestionably valid action of the state legislature. "The Great Writ [i.e., habeas corpus] should not be used to litigate matters which should have been raised on appeal or at trial," said the court. And more fundamentally, collateral attacks through habeas corpus — those made after the time for a direct appeal has expired, or those that were not included in the original direct appeal — could not be used to correct procedural errors, or even violations of supposedly "mandatory" statutes. Douthit thus reminds courts that habeas corpus actions aren't meant to give unlimited bites, nor late bites, at every apple. Deadlines have consequences; finality is a value; and sometimes bright-line rules are preferable to balancing tests.

-------------------

UPDATE (Wed Sep 5 @ 1:55am): In a new post, besides graciously linking this one, Jeralyn discusses, and I think correctly discounts, the possibility that Craig might have a defense based on his rights under Article I, Section 6 of the Constitution to be free from "arrests" while traveling to and from congressional sessions. And she again mentions the possibility that, if Craig were to succeed in getting his plea withdrawn, he might then, through counsel, try to re-negotiate a better plea bargain — perhaps one for delayed adjudication, in which his case could be placed "on hold" for a year-long probationary period. If he keeps his nose clean, the charges would then be dismissed without his having ever had to enter even a conditional guilty plea. That is indeed the kind of deal that good lawyers often can get for nonviolent clean-record clients, especially if there are other weaknesses in the State's case. It would be the "best case scenario" for Craig: He could maintain his innocence, but avoid both trial and conviction.

But Craig has already very publicly claimed that he's been "railroaded," and he's probably going to have to point more fingers at the prosecution to get his plea withdrawn. Once that's done, I can't imagine the prosecution cutting him any slack in plea negotiations. He shouldn't try to withdraw the plea unless he's really ready and willing to go the distance, all the way to a jury verdict, on both the disorderly conduct and the peeping counts.

Josh Marshall, meantime, gives us partial benefit of his Roll Call subscription in quoting reports which suggest that Craig had actually consulted Washington lawyer Billy Martin many times over the past several weeks — an inference from what seem to have been a large series of mis-dialed phone calls that Craig intended for Martin, and that included a voicemail message in which Craig was coordinating the language of his "intent to resign" announcement with Martin last Saturday. That actually would not surprise me at all; it's always been hard to swallow the suggestion that Craig returned to the airport police station to ask for a "contact person" for his lawyer, but that he hadn't yet consulted a lawyer, and didn't at any point before entering his plea. (On the other hand, he says he didn't tell his wife or his staff, and the mailing address in his motion to plead guilty was for a D.C. residence, presumably to keep them out of the loop.) Confirmation of pre-plea contacts with a lawyer would weaken Craig's arguments for withdrawing his plea, though, to the extent that such a motion is based on the (already ludicrous) suggestion that he really didn't know he had a right to counsel.

Regarding the voicemail message that's now public (and quoted in full at TalkLeft among other places), here's what I left as a comment there:

There's a good chance that Craig could get any evidence of the voicemail suppressed as an unintentional disclosure that didn't amount to a valid waiver of attorney-client privilege — meaning he could keep the prosecution from making any use of it at trial.

Of course, it will be pretty hard to find a jury in Minneapolis who doesn't already know that he pleaded guilty, even if he is permitted to withdraw his guilty plea.

But he's very, very lucky there wasn't anything more sensitive in the voicemail. If he'd said, for instance, "I've got to keep fighting this thing in court or else my wife will realize I'm really gay and divorce me, and I can't afford that," then it would have been cold comfort for him that he might be able to keep that from being formally offered into evidence at a trial.

Moral: When speaking to your lawyer on voicemail, limit yourself to, "Billy, this is Larry, call me back, k thx bai."

Finally: I've updated this post to add, gratuitously, a screencap of Sen. Specter on Fox News Sunday, urging Craig to fight. My question to you is this: Would you take legal advice from a man who matches that tie to that suit? (Or who wears that tie with anything?)

-------------------

UPDATE (Wed Sep 5 @ yes I suffer from occasional insomnia o'clock a.m.): Josh Marshall quotes at length from an unidentified Oregon attorney who says that whether Craig can or can't withdraw his guilty plea "all depends on the transcript of the plea and sentencing [colloquy]." Well, yeah — except there wasn't a colloquy, so there won't be a transcript.

I don't blame this lawyer for jumping to that conclusion, because if this were a felony, or if it were what Minnesota terms a "gross misdemeanor" (like the peeping charge that was dismissed; and no, that's not an intentional double entendre), Craig would have had to show up in person to enter his plea, and there would have been a conversation on the record between him, his lawyer, and the judge. Dr. Marshall's correspondent is just behind the learning curve in failing to have figured out that this was a mailed-in plea.

But that is an important fact here. And frankly, it's hard to tell how it cuts.

One the one hand, the U.S. Supreme Court has been notably reluctant to impose the full range of constitutional requirements and protections for misdemeanors (a term whose meaning varies from state to state, but normally means a crime punishable by fines and a year or less of jail time) as compared to felonies (normally crimes punishable by fines and more than a year of prison time). That's one reason that the Minnesota Rules of Criminal Procedure require a more detailed set of inquiries by a judge who's accepting a guilty plea for a felony or a gross misdemeanor (Rule 15.01) than for a simple misdemeanor (Rule 15.02). That's also why an unsworn plea-by-mail, for the convenience mostly of the defendant, may be okay (per Rule 15.03) for a misdemeanor, with all of the admonitions that would normally be part of an on-the-record colloquy being instead reduced to a written form.

But on the other hand, given the fact that they're already short-cutting the procedures required for more serious crimes, there's an argument to be made that it's particularly important to follow strictly every one of the relaxed rules that have been permitted for the less serious offenses. Arguably, that's where the greatest dangers of prosecutorial abuse lie — in the little cases, where people likely want to just get it over with, and paying a fine that costs less than what a lawyer would bill you in two hours looks pretty damned attractive.

In most of those smaller cases, no one is going to end up fly-specking the written motion to enter a guilty plea. And this is just another simple misdemeanor, sure. But most simple misdemeanors, with no jail time and a $550 fine, don't end up abruptly ending the careers of prominent national figures.

Craig certainly knew — and regardless of what's in the record, the judge will know Craig knew — that he (Craig) had a right to a lawyer. But did Craig know that if he had a lawyer, he might have been able to negotiate a deferred adjudication plea — exactly the sort of thing that a prosecutor might not volunteer to a pro se defendant, even a U.S. senator defendant, but that even a semi-decent defense lawyer would have known to ask for? If I were Craig's lawyer, I'd have minions down at the courthouse this week developing a statistical model to try to establish just how much better similarly situated defendants did on their plea bargains with and without lawyers. But an experienced judge will know that anyway, and bringing him the actual numbers is probably carrying coals to Newcastle. This judge will presumably have seen many, many plea bargains, both mail-in and in-person; he will have a strong sense of what's "normal," and if he has the slightest hint that the prosecution extracted more from Craig than from other pro se defendants, that will help Craig enormously. Even if he senses that the prosecution took advantage of Craig as compared just to defendants who have lawyers, that will help Craig.

On balance, I think the fact that this was a mail-in plea probably makes the odds of getting the guilty plea withdrawn better rather than worse.

And if Craig's attempt to set aside his plea really ought to have been filed within 15 days to be unarguably timely, it will end up being filed no more than a few days after that. The prosecution can't plausibly claim that it's "prejudiced" in the sense of evidence having been lost, or witnesses having died or wandered out of touch, by virtue of the trial taking place in September instead of August.

All of this is what goes into my informed gut hunch about the likelihood of Craig getting his guilty plea withdrawn. The gut hunch of someone who actually practices regularly in the Hennepin County criminal courts would be better, but frankly, I've seen some press reports from people who look like they fit that criterion and yet have been making wilder guesses than Jeralyn or I have.

Posted by Beldar at 09:46 PM in Law (2007), Politics (2007) | Permalink | Comments (2)

Monday, September 03, 2007

More retrospective from Greenburg (and Beldar) on the Miers nomination

In further debunking the silly report that then-Chief Justice nominee John Roberts had "suggested" Harriet Miers for the SCOTUS slot being vacated by Justice O'Connor, Jan Crawford Greenburg describes the Miers nomination as

a decision that badly hurt the President with his conservative base, allowed Democrats to unfairly portray Sam Alito as somehow beholden to those interests and, perhaps worst of all, made a laughingstock out of a smart woman who — but for the nomination — would be seen today as an accomplished lawyer who’d served her country with dignity.

"How could Bush have done so well in choosing Roberts and Alito and so many of his circuit and district court nominees," conservatives are still asking, "and yet have nominated Harriet Miers?"

Greenburg is confident that during the research on her book "Supreme Conflict," which I reviewed a length earlier this summer, she had found the true explanation for how the Miers nomination came about. Besides his general interest in naming another woman to the Court,

George Bush believed — because his advisers had told him so — that Miers was qualified for the Court. Just as importantly, he also believed — because he knew her — that Miers would not drift to the left like David Souter did. It’s impossible to overstate how much the last consideration drove Bush: His dad did not know Souter and relied on his closest advisers to vouch for the reclusive New Hampshire judge’s conservative views. But George H.W. Bush’s advisers — chief of staff John Sununu, primarily — had no idea what they were talking about, and Souter soon was showing himself to be almost as liberal as the justice he replaced, William Brennan. Bush was determined not to repeat what conservatives considered to be his father’s greatest blunder.

This is almost exactly what I wrote on the morning the nomination was announced, before the conservative hurricane against Miers had coalesced (emphasis in original):

I think Ms. Miers' nomination is ... mostly a product of two factors. The first factor — the one that became logically precedent to, albeit not more important than, the other key factor — was the unique-to-this-slot "need" to pick another woman to follow Sandra Day O'Connor. The first attribute used to narrow the field was thus whether a potential nominee had a Y chromosome, although being first didn't make an XX pair the most important criterion. No, the second and ultimately determinative factor can be completely summarized in three words: "No more Souters."

To you, me, the Senate, and the public, Harriet Miers may seem as much of a blank slate as David Souter was when Bush-41 nominated him. "Another 'stealth' candidate," many will say, "another blank slate about whom we know too little to make confident predictions!" That's already the official party line of the Dems, and it's something being muttered less loudly among puzzled Republicans as well.

But that is emphatically not the case from the perspective of George W. Bush. And the Constitution does, after all, give him the nomination power — not "the White House," not "the Republican Party," nor "conservatives generally," nor even "us'n who put him back into office." And he knows, and he's always known, that the blame for an appointee who turned out to become "another Souter" would likewise be placed on him. It's a responsibility and an opportunity whose benefits and risks he sought, but that he obviously takes very seriously indeed, because from Dubya's perspective, Harriet Miers was the one prospective female nominee about whom he personally felt that he could be most certain in predicting what sort of Justice she will become.

Further on the subject of Miers' qualifications, Greenburg writes:

Bush had said he wanted to nominate someone outside the "judicial monastery," and certainly the Court could use an experienced lawyer who would bring a real-world perspective. But Harriet Miers was not that person. Her experience dealing with complex commercial litigation was embarrassingly inadequate — as the lawyers in the White House painfully realized when she filled out her Senate questionnaire and was asked to list the top cases she’d handled.

And that's a fair assessment too, as far as it goes. But this passage ignores Miers' total package of credentials — ones which, in fairness to Greenburg, she did take the time to discuss in her book, but that many of Miers' critics then and now have ignored or trivialized.

Miers' record as a top-flight trial lawyer, or even as a "litigator" (who'd handled big cases without necessarily seeing them through to trial) was good. But it was indeed thin for the number of years she'd been in practice. The explanation for that, though, was not that Miers was an all-around light-weight. Rather, she'd also been doing other things outside the courtrooms that a president could reasonably conclude would add valuable perspectives in a SCOTUS nominee: serving the legal profession through local and state bar organizations (including president of the Texas Bar); leading a prosperous and successful major law firm, including through a risky but successful merger, in times of unprecedented change and competition; and serving behind the scenes as a senior legal adviser to the governor of a large state and then to a war-time POTUS.

David Boies, famous among other reasons as Al Gore's lead lawyer in 2000, is the only practicing courtroom lawyer with a national reputation outside legal circles. But beneath the general public's radar screens, of course, there are conservative analogs (e.g., Phillip Beck) who would be equally as well qualified for a seat on the Supreme Court. And Miers indeed wasn't one of those. Not even Dubya thought she was, which is why she wasn't one of the first-team courtroom lawyers standing opposite David Boies in court during the most important aspects of the Bush v. Gore litigation in 2000. She did, however, advise Bush then behind the scenes, and she handled a less famous 2000 election challenge in Texas based on the Twelfth Amendment. More to the point, though, neither those conservative courtroom veterans nor, for that matter, David Boies also had the other non-courtroom credentials for a SCOTUS seat that she had.

The Miers nomination was, in hindsight, a political disaster. But I continue to maintain that's not because of stupidity, nor because of incomprehensible or flawed logic, on the part of George W. Bush in making it. Nor was it at all a case of Bush breaking faith with the voters who'd elected him in part on his assurance that there would be "no more Souters." And the value of Greenburg's current blog post, in addition to confirming Chief Justice Roberts' non-participation in the Miers nomination, is to provide a reminder of both of these points, especially the second one. Conservatives refused to see it, and the White House proved itself utterly, ridiculously, tragically inept in explaining it at the time, but Dubya, from his point of view, was keeping faith.

Miers would have been confirmed without controversy had she been (a) male, (b) less of a crony (read: less of a known quantity) to a POTUS who is radioactive outside his party and still distrusted by "elite" elements within it, and (c) nominated at any time in our nation's history other than the last 30 years. Based on long, close personal experience with her, Dubya is still confident that she wouldn't have "drifted left." But in every other respect, she'd have been essentially indistinguishable from a nomination like Lewis F. Powell, Jr.'s, whose credentials resembled hers and were, if anything, slightly inferior to hers.

Posted by Beldar at 08:43 PM in Law (2007), SCOTUS & federal courts | Permalink | Comments (0)

Sunday, September 02, 2007

I see the image, and I immediately hear again its soft hum and imagine it vibrating under my eager flashing fingertips

So AMC was replaying all of the first seven episodes of Mad Men today, and having read good things about it, I TiVo'd them. Ten minutes into the first episode, the knowing and experienced Madison Avenue secretary, while showing the new one to her desk, says (after a drag on her cigarette):

Now try not to be overwhelmed by all this technology. It looks complicated, but the men who designed it made it simple enough for a woman to use.

As she says these lines, she's uncovering this:

As continuity errors go — the show is supposedly set in 1960, and the original Selectric wasn't out until a year later (although a Madison Avenue advertising agency would indeed have been one of the places you'd have expected to see them first) — this one's forgivable.

For oh! How emblematic, how evocative! For purposes of grabbing those of us who fancy ourselves wordsmiths and came of age in the 1960s or 1970s, this was a genuinely inspired scene.

I still miss the Correcting Selectric II — recognizably a grandson of the machine pictured above — that I bought from IBM on a time-payment plan during law school in 1978. I loved it for many reasons, not least its pilcrow key. It was splendidly designed and engineered. Its gleaming silver typeball leapt and spun like a tiny, magical martial artist — chock! chock! chock! against the page — in an eager rhythm that could be quite intense, altogether passionate, but onto which the machine nevertheless imposed its own invariable discipline of methodical spacing and even strikes (with ne'er a double-strike).

And I'm sorry I sold it some time back in the mid-1980s. I didn't later find myself often genuinely needing it, and had I kept it, I would not likely have used it very often or much; the computer plus printer alternatives are just too practical for most of what I do. Typewriters lived in the moment, and I fancy that my prose needs a memory. (Although the title of this post suggests that it probably ought instead just be euthanized.)

But my Correcting Selectric II was elegant. And there are some elegant things you just ought to keep, even after you no longer need or use them regularly, rather than selling off at garage sale prices.

-------------

UPDATE (Sun Sep 2 @ 11:20pm): But then the first episode proceeds to disappoint: Forty-three minutes in, the young whippersnapper ad guy is being kicked out of his boss' office because during their important client meeting that afternoon, the whippersnapper had tried to pitch something from a written research report that the boss had, literally, trash-canned earlier that morning. The whippersnapper had secretly fished out of the trash can, but the boss noticed the report on the conference table at the meeting. So:

BOSS: If Greta's research was any good, I would have used it.

WHIPPERSNAPPER: What are you talking about?

BOSS: I'm saying I had a report just like that. And it's not like there's some magic machine that makes identical copies of things.

Gong! "Mad Men" scriptwriters, meet the Xerox 914, introduced in 1959:

It wasn't elegant, nor ubiquitous for many more years, but it was something that would have been in a top-flight Manhattan office as soon as it was introduced, and it was revolutionary enough to eventually turn the word "xeroxing" into a verb (and almost, despite its maker's best efforts at tradename protection, into a generic product description).

Most of the period details, and attitudes, ring true (although the latter are exaggerated for dramatic purposes). But when so much of the show depends on getting the look, sound, and feel (including the technology) of the era just right, this was something they ought not have missed.

Posted by Beldar at 10:17 PM in Film/TV/Stage, Technology/products | Permalink | Comments (3)

Saturday, September 01, 2007

Dear alma mater

It makes me angry that I cannot listen to Longhorn football games for free on the internet (via, for example, the normal internet feeds from a dozen different radio stations in your sports network) when those same games are broadcast for free by radio. I'm perfectly willing to listen to advertisers. But I'm not willing to listen to advertisers and pay Yahoo! another $5/month subscription fee for that privilege. (Much less am I going to pay $30/game for pay-per-view.)

No more contributions to U.T. from Beldar while that's the case. You're already taking in $107 million through the athletics department for 2007-2008. Quit nickel and diming your fans, punishing them for preferring 21st Century technology over 20th Century technology.

Posted by Beldar at 06:49 PM in Sports | Permalink | Comments (5)

Rove on Dubya on Rove's last day at the White House

It's too soon to be discussing Dubya's long-term legacy, but nevertheless, I pretty much agree with this from yesterday morning. (H/t Hugh Hewitt.)

Posted by Beldar at 12:02 PM in Current Affairs, Global War on Terror, Politics (2007) | Permalink | Comments (3)

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BeldarBlog

The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Friday, September 28, 2007

Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea

Wednesday, September 26, 2007

Review: Ron Liebman's "Death by Rodrigo"

A non-cartoonish discussion of SCOTUS Justices and their rulings

Tuesday, September 25, 2007

Comma quote Jay period Dee period unquote

Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand

Monday, September 24, 2007

Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea

Hillary on the Sunday talking heads shows

Sunday, September 23, 2007

SCOTUS members and results as cartoon characters and themes

Saturday, September 22, 2007

Best self-debunking line I've read this month

Applause (well, at least a golf clap) for the NYT

De gustibus cerevesiae non scit lex

Rather v. CBS: Experts, "boardroom truth" versus "courtroom truth," and settlement values

Friday, September 21, 2007

Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea

Adjusting Mary Mapes' meds

Thursday, September 20, 2007

A cheer for Sen. Cornyn for sponsoring Senate resolution condemning MoveOn.org's "Gen. Betray-Us" ad

Wednesday, September 19, 2007

Civic literacy quiz

Just tell me when I can get in line for tickets to attend the trial: Rather v. CBS

State of Florida v. Andrew Meyer: Spoilt ham faces meaty prison term of up to 5 years

Tuesday, September 18, 2007

At John Kerry's Florida rally, Andrew Meyer wasn't "shot" by a Taser, but merely shocked by one used in "drive-stun" mode

Monday, September 17, 2007

ACLU files silly brief in support of Craig's plea withdrawal

Beldar's initial reaction to the Mukasey nomination for Attorney General

Friday, September 14, 2007

Equity time

Wednesday, September 12, 2007

In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"

Do you care if national security criminal Sandy Berger is re-embraced by The Triangulatrix?

Tuesday, September 11, 2007

On 9/11/01 plus six

Monday, September 10, 2007

Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him

MoveOn.org's new ad campaign: "Nanny nanny boo boo, Petraeus is stinky and Bush is too!"

Sunday, September 09, 2007

A good football weekend for Beldar

Fran Townsend and Mara Liasson

Of Thompson and Clark and sports metaphors used in politics

Wednesday, September 05, 2007

Has Larry Craig hired the part-time prosecutor who filed the complaint against him?

I can't wrestle myself to the ground as your advocate against me in our fee discussions

Tuesday, September 04, 2007

Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed

Monday, September 03, 2007

More retrospective from Greenburg (and Beldar) on the Miers nomination

Sunday, September 02, 2007

I see the image, and I immediately hear again its soft hum and imagine it vibrating under my eager flashing fingertips

Saturday, September 01, 2007

Dear alma mater

Rove on Dubya on Rove's last day at the White House

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