At Least That’s One Danger Less

I refer, of course, to the rash of highjackings and terroristic attacks which have been, in the dark years since September 11, 2001, perpetrated with . . . crab salad.  Mozzarella cheese also, and stuffed herring.

Back in 2013, a ticketed passenger was denied clearance in Berlin because he had 272 grams of mozzarella cheese made from buffalo milk, 155 grams of North Sea crab salad, and 140 grams of a stuffed herring product identified as “Flensburger Fördetopf” (never heard tell of that last, apparently it’s a stuffed product).  So he sued.  Isn’t it heart-warming, by the way, how the Germans have taken so readily to the habits of their American conquerors?

The top German administrative court has now ruled that he loses.  Yep.  Because such food products are “made with” liquids — you know: dangerous stuff like sour cream and milk — they are subject to the same regulations governing your shampoo or other substances that you really can’t tell what they are.  But hey:  It’s just hard to tell, sometimes, whether that’s really crab meat there of very artfully concealed C4.  You can’t hand the would be passenger a forkful of it and tell him to eat it and show you it can be done.  For that matter, you can’t take a damned toothpick and shove it to the bottom of the container to show that there’s not a miniature land-mine stowed under the

Germany is no longer a serious country.

Pardon Her

That post title is not a misprint.

Nor is it an indication that I’ve finally gone off my meds (consisting of beer; on those few occasions when I see someone in a doctor’s office and I’m asked if I’m taking any medications, my invariable response is, “Does beer count?”).

Nor have I suddenly become unable to read, and thus discovered an element of intent in a statute which plainly contains no such element.  18 U.S.C. § 793(f) reads, in full —

(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer–

Shall be fined under this title or imprisoned not more than ten years, or both.”

The FBI director allowed that he was recommending She not be prosecuted for violating that statute because they couldn’t find any solid indication of intent on Her part to commit the acts described in it.  No Virginia, the word intent does not appear in that statute, nor does any variant of it.  Nor, for that matter, does reckless.  But the mens rea for both components of it is in fact expressed, so that you cannot even say that you must infer the standard of intent. The affirmative act proscribed requires only “gross negligence” (which was, as I recall, more or less exactly how Comey characterized Her actions), and the omission (failure to report) requires only “knowledge”.  She certainly had knowledge of the events itemized in the statute.

She is, in round numbers, Guilty as Hell, as are many of Her underlings and associates.  She is subject to imprisonment for up to ten years.  Full stop.

I have expatiated, both here and elsewhere, on why Her actions in respect of this country’s most sensitive information (barring, perhaps, the actual nuclear launch codes) made it impossible for me to support Her candidacy, no matter how revolting Her opponent may be, and no matter what Her actual policy actions might have turned out to be (in contrast to Her objectives as stated for public consumption).  Her blithely compromising our national security would alone have done that.  That, added to Her sale of the fourth-highest public office in our gift (the secretary of state is fourth in line for the presidency, behind only the actual president, the vice president, and the Speaker of the House), and you could have run a yellow dog against Her and I’d have voted for the dog.

Before proceeding, I want Gentle Reader to understand how it pains me to have to write that last sentence.  I grew up among Yellow Dog Democrats, people who proudly proclaimed they’d vote for a yellow dog if you ran him as a Democrat.  And they meant it, too.  I once attended a talk given by the author of a book about a very tumultuous time in my Southern state’s history.  It was neither more nor less than a full-blown constitutional crisis, and several key players came together to salvage the integrity (to the extent we enjoy any around here) of the Rule of Law.  Come to think of it now, those several weeks early that winter marked the point at which the Democrat Party in this state went into a decline from which it has not recovered to this day, forty-odd years later.  What I remember most about the author’s presentation was the praise heaped on the then-chief justice of our state supreme court, because he chose to uphold his oath of office, rather than do what he dearly wanted to do, namely not do anything that might benefit a Republican.  Apparently he actually did struggle with his decision, on exactly that basis.  Pause and think about that for a moment:  The highest judge in the state finds it even a close question as to whether to put party loyalty before his “so help me God” oath to preserve, protect, and defend the constitution of our state and of the United States.  I want to go find his grave, that I may shit on his headstone and otherwise desecrate it and those of his ancestors.

All of the above notwithstanding, I would like nothing more than to see Dear Leader pardon Her on his way out the door.  Certainly pardon Her for Her compromise of national security and all the crimes She committed in connection with the cover-up (destruction of evidence, obstruction of justice, conspiracy, and God only knows what else), and — here I confess I waffle a bit — probably for the corruption-related crimes as well.

However much She richly deserves to spend the bulk of the balance of Her life in an orange jumpsuit (She’s on the wrong side of 70 and not in good health; there’s a decent chance She wouldn’t do the full term even if sentenced), if She is prosecuted by the Trump administration, it will later be explicitly used by a Democrat administration as a precedent to bring witch-hunt criminal charges against defeated opponents.  Capture office and you not only sideline your opponent politically, but you use the physical coercive power of the United States government to destroy the individuals on the other side.  I still remember — I think it was the very first day of class — my 1L criminal law class, and the professor pointing out that criminal law is concerned with the application of the physical coercive power of millions upon millions of people and all the wealth they command to the body, the corporeal being, of a single human.  Or as Stalin phrased it, “How much do you suppose the Soviet Union weighs?”

Stalin, Hitler, Mao, and the other totalitarians are of course only the best-known practitioners of that principle.  A goodly bit of The GuLAG Archipelago covers Stalin’s use of the Soviet criminal law system (I refuse to use the expression “justice” in connection with anything appertaining to the Soviet Union) to wreak the physical destruction of vanquished political foes.  And by “physical destruction” I don’t mean that they had to eek out a marginal existence as third assistant bottle-washer in some dreary provincial town.  I mean they were sent to the execution chambers, just as they had, by the way, joyfully sent thousands of others before them.  So my sympathy for them is muted.

What is less known, because the perpetrator is something of a secular saint around here, is that Stalin and Hitler were far from the only ones doing that.  I refer Gentle Reader to the story of one Andrew Mellon (yes, of that family).  He had been Coolidge’s and Hoover’s Secretary of the Treasury.  After Hoover’s blow-out defeat by FDR, the new president instructed the chief prosecutor for the IRS, one Robert H. Jackson, to bring criminal charges against Mellon.  Not, you understand, for any misdeed taken in any official capacity, but rather for allegedly fiddling on his personal income taxes.  The specific offense charged (because Jackson did FDR’s bidding; his reward later was appointment to the U.S. Supreme Court) was Mellon’s having claimed deductions against his income.  The problem was that the deductions were specifically legal to claim, and Mellon was well within his rights to claim them.  No matter; Roosevelt commanded that he be charged and prosecuted as a criminal, and Jackson the toady in fact tried to do it, although the grand jury returned a no true bill.  The whole sordid story is well-told in Amity Schlaes’s The Forgotten Man.  Not having been able to get the grand jury to do his master’s bidding, Jackson then went after Mellon for civil penalties; eventually Mellon was fully exonerated.  Jackson went on to become the chief Allied prosecutor at Nuremberg’s IMT trials of the chief Nazi defendants.

So Gentle Reader may not think it can’t happen here, because it can and it has.  In fact it continues.  What’s left of the Democrats in Texas have made several — thus far unsuccessful — runs at their opponents.  In Alaska they succeeded in a witch hunt trial of Sen. Ted Stevens.  They convicted him of corruption and he lost his re-election bid to a Democrat, with the vote of whom the “Affordable” Care Act became law.  There was only one problem:  The Department of Justice rigged the whole thing, up to and including manufacturing of evidence and suborning perjury.  Don’t take my word for it.  Let’s hear from the Special Counsel’s report (completed and released too late to avoid the disastrous consequences of his loss to the Senate):  “The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

The fact that She is in fact guilty, that there is no reasonable dispute as to Her guilt, the fact that the damage She did to national security interests, all in an effort to cover up . . . well, we don’t know quite why she went to such lengths . . . will endure for decades:  None of that changes my thinking.  Trump’s prosecution of a consummately guilty person will, no matter the outcome, later be used by his Democrat successors as an excuse to destroy the innocent.  And then it will be only a question of time before a successful Republican does it.  And then it will become part of our political DNA.  Lose office and they’ll hound you into jail or the grave, whichever comes first.

When you raise the stakes of political challenge-and-defense to that level, candidates and incumbents alike will stop at nothing in their effort to win.  And by “nothing” I am not speaking metaphorically.  At that point anything and everything will be viewed as being on the table, up to and including outright assassination.  Grabbing the scalp of a senator is one thing; when the stakes are the Oval Office on the one hand or federal incarceration on the other, things become imaginable which otherwise never ever would.  When we reach that point we will be indistinguishable from some banana republic, from Mexico, from Putin’s Russia, from Cambodia, from North Korea.

So I heartily endorse the notion that Dear Leader will pardon Her for Her criminal actions in regard of The E-Mail Server and its cover-up.  The sale of office offenses I have a little more hesitation about, but if pushed would probably swallow that as well.  My hesitation in that respect arises from the unfortunate fact that sale of public office is so easily accomplished and so difficult to prove, and it may be practiced at all levels of government, and its unabashed practice — which would, by the way, be the inevitable outcome of Her getting away with it — has the independent ability to destroy the republic.

And the pardon must come from Dear Leader.  Everyone expects him to, anyway, for starts.  Secondly, such a pardon from a President Trump would in an instant destroy his credibility with everyone who — as I did — pulled the lever for him by reason of Her guilt.  If you want to destroy Trump’s presidency once and for all, have him grant Her clemency.

I would note that, because the FBI has an independent counter-intelligence function, pardoning Her will not end its jurisdiction fully to investigate and evaluate all those e-mails.  This is important, because the American people do deserve to know the full details of what She did while in office.

I would not, however, support clemency for Her raft of co-conspirators and enablers.  Exactly how many hundreds of people had to be in the loop on that illegal server, seeing what any fourth-grader could recognize as classified information flit to and fro?  How many bag men for the Clinton Foundation were there who made the arrangements with the foreign donors?  All of Her scheming could never have got off the ground were it not for the underlings.

Let us run a thought experiment:  I am some senior staff member to a senior government official.  I am given instructions by my chief that I know from the moment the words leave his mouth are flagrantly not just illegal, but constitute major felonies.  Thinking that my chief and I sink or swim together gives me a warm and fuzzy feeling, because I’m thinking he has the political pull to save himself, and by doing so will necessarily save me as well.  What if, on the other hand, I can look back and find ample precedent for the outcome that my chief, for whose benefit I am asked to commit multiple crimes, is going to skate and enjoy a long and remunerative retirement, while I go to prison?  Will I be more likely or less likely to go along with it?  How likely is it that my chief will organize a John Q. Zimmelfritz Legal Defense Fund to keep my country ass out of chokey?

What if senior staff at the State Department had refused to communicate with Her except across a properly authorized, secure government e-mail account?  What if She Herself had had to do all her negotiating favors for the King of Morocco, or the Russian uranium interests, or Ericsson for cash (like the $750,000 speech Bill gave to Ericsson’s board of directors, or the $500,000 speech he gave to the Moscow bankers financing Putin’s acquisition of 20% of U.S. uranium production capacity, or the $23 million that the king kicked into Her foundation), instead of having shoals of willing errand-boys and -girls?  I will tell you one very likely outcome of my alt-history:  We would be getting ready for our second President Clinton right now, because millions of voters — voters such as yore ‘umble correspondent here — would very likely have opted for Her, instead of Trump.

I don’t want to live in Central America, or Russia, or China, or North Korea.  I damned sure don’t want those places brought here.  Pardon Her, and be done with it.  To borrow from Cromwell:  In the name of God, go!

Variations on a Theme by Ferguson

As I think I’ve mentioned on this humble blog before, the most interesting part of the U.S. Department of Justice report on the Ferguson, Missouri riots was not the racial aspect of what the Ferguson police department were or weren’t doing (and certainly not the conclusion that the officer was perfectly justified in shooting dead a violent felon who’d already made one attempt to seize the officer’s weapon and use it again him).  It was the degree to which Ferguson monetized its city court system and by extension its criminal law powers.

We are now seeing a variation on that theme, except that now we’ve got two rent-seekers fighting over the spoils.  “Rent-seeking” is what economists call the practice, as Wikipedia.org phrases it, of “seeking to increase one’s share of existing wealth without creating new wealth.”  Among the most egregious rent-seekers are (i) government at all levels, and (ii) lawyers.  I still recall hearing a fellow lawyer gloating over some peculiarly ill-advised statute which our state legislative assembly had passed, with specific emphasis on what a boon it was going to be for lawyers such as himself.  It made for depressing listening, the more so when I considered that he was correct.  That statute was going to generate untold extra business for lawyers in situations where the world just doesn’t need lawyers to be mixed up in them.

There is a company in Utah, Corrective Education Company, which markets its services to retailers.  For retailers, Gentle Reader should understand, shoplifting is a non-insurable risk.  That means that when someone steals from them, they either get it back themselves or they eat the loss.  It is part of the reason that, as the (true) saying has it, “The poor pay more.”  They do.  They do that because in poor neighborhoods losses to shoplifting are greater, the margins are thinner, and the money to cover the losses has to come from somewhere.  So it comes from everyone paying more for the same product.

What Corrective Education Company (CEC) does is a species of what is known in civil litigation as “alternative dispute resolution,” or ADR.  The point of ADR is resolution of civil disputes is that it is faster that a full trial and the results are less subject to judicial screwing-up.  It is phenomenally popular among economic actors whose business existence is exposed to repeated risk of litigation.  CEC has taken that same concept and is applying it to criminal offenses, specifically shoplifting.

What happens is that when a perp gets caught shoplifting from a CEC client, he is offered a choice:  He can have them turn him into the police for criminal prosecution, or alternatively he can sign an admission of what he did, then go through what CEC promotes as a “life skills” course the point of which is to impress upon the perp why it’s not a good idea to be a criminal and some degree of how to avoid staying a criminal.  And the perp pays CEC, roughly $500 or so.  Some portion of that money goes to the victim, but most of course stays with CEC.  Oh, and by the way, the perp doesn’t end up with a criminal record.

This idea has sparked outrage from entirely predictable quarters.  Remember Ferguson?  Well, there is an entire host of players who feed off the criminal justice system.  Police, prosecutors, court staff, judges, and then the whole tail-end process — the probation services companies (many if not most cities contract that out, either to private operators or to larger government entities, like the state itself), drug testing companies, counselors, and other busy-bodies.  The perps pay for them too, by the way, through the assessment of court costs, fines, and fees for all those private probation service companies, drug testing companies, counselors, and other busy-bodies.  Those outfits sure as hell don’t work for free, and the taxpayers have no interest in funding them.

What made the Ferguson system so pernicious, and I can vouch that their offense was distinct only in degree, not in kind, is that when the perp who’s copped a plea so that the prosecutor and police can tick that box off as being a closed case can’t find a job because of a criminal record, or can’t hold a job because its attendance requirements are inconsistent with having to run down to his probation officer every week or however often, and so can’t pay his court costs, fines, and fees, or he’s just not making enough money to pay them, he gets cycled back through the process, spending time in jail on the way (so he loses what job he had, and now can’t pay those court costs, fines, and fees), and on and on.  Plus, he’s now got a criminal record.

By the way, the court costs, fines, and fees for even a misdemeanor offense are uniformly a helluva lot higher than $500.

At any rate, in California (Gentle Reader knew that was coming, right?), the San Francisco city attorney has sued CEC, alleging that what it’s doing is extortion, false imprisonment, and so forth.  The case was filed back in November, 2015; I just saw a television news report of it yesterday on my way through a room where a television was on.  So I decided to see what I could find out about it.  Here’s the Los Angeles Times write-up, complete with link to the complaint filed.  And here Reuters, and SFGate, with their respective write-ups.

Let’s get an idea of the scope of the problem, from the LAT:  “Last year alone, retailers lost $44 billion to theft by shoplifters, employees and vendors, according to a national retail security survey. The CEC founders have said their ‘vision is to reinvent the way crimes are handled, starting with retail theft.’”  Forty-four billion dollars literally walking out the door.  Mind you, that’s not breaking-and-entering, or hijacking the trucks carrying product.  That’s broad-daylight theft.

Now let’s hear from the city attorney who’s filed the suit:  “But the civil lawsuit, filed in San Francisco County Superior Court, calls the tactics ‘coercive’ and ‘deceptive’ and says the program ‘has not been approved by any California court or prosecutor.’”  Well, of course it’s not been “approved”; this is a competitor to the other side of the criminal law industry.  They’re offering first-time perp a roadway out of his pickle for $500 and six hours pissed away in a seminar.  Versus dozens of hours spent with police, prosecutors, waiting around at cattle-call court dockets, then many hundreds of dollars in court costs and fines, followed by several thousand dollars to some private probation supervisor and drug-screening company (along with the hundreds of hours pissed away dancing attendance upon them).  Whom, exactly, does Gentle Reader think the owners, management, and employees of these third-party providers support come election time?

Even more to capture the motivation behind this lawsuit, here’s a longer extract from the LAT article:

“But legal experts said that particularly in California — where Proposition 47 has made petty theft a misdemeanor — it is unlikely that police and prosecutors would have pursued it.

That makes the threat of referral for prosecution problematic, said Stanford Law School professor Joan Petersilia, who with her students is surveying the increase in diversion programs — some of which partner with for-profit companies — that have resulted from shifts in California criminal justice policy.

Petersilia called CEC’s tactics ‘just so obviously wrong’ and said they do not fit the philosophy of restorative justice, which is based on empathy for the injured party and a solution that repairs the harm.

Most of the money under this model goes to CEC, not to the retailer or injured party, she said, adding that for those with money, it is not punitive enough, and for those without, it is unduly harsh.”

“Just so obviously wrong”; that is a characterization for use by someone who doesn’t really have an argument that will stand up against being pushed against.  What is the “tell” (to use a poker expression) for what is really going on here?  It’s in the bland phrase “increase in diversion programs — some of which have partnered with for-profit companies — that have resulted from shifts in California criminal justice policy.”

This is nothing more than a fight over the money that can be extracted from petty criminals.  Remember that, for starts, such crimes are at the bottom of just about every prosecutor’s priority list.  That’s just a fact of life, both for economic and political reasons.  No district attorney has a budget that will permit him to go hammer-and-tongs after every petty thief.  No district attorney won or kept office on a campaign platform of cracking down on the gal grabbing a lip-stick on her way out the door.

Most important to remember, in deciding how vigorously to wring one’s hands at the horrors of these perps getting nabbed not by the constituted authorities but by their own victims, is that even when they are prosecuted,  all that money in court costs, fines, and fees to those “diversion programs — some of which have partnered with for-profit companies” also does not go to “the retailer or injured party” either.  It sticks with the court officials, with the penal system, with those “partners” of the criminal legal system.  So Ms. Petersilia’s crocodile tears don’t move me much.

I long ago abandoned using the expression “justice system.”  No, what we have is a legal system.  In fact, it is more properly characterized as an industry.  It feeds multiple actors, some governmental, others private.  But what they all have in common is that they all pay their home mortgages, put tires on the car and shirts on their kids’ backs off the proceeds — we may call them the back-end proceeds — of crime.  They have livelihoods for so long, and only for so long, as an endless stream of perps is dragged through a legal system which is tailor-made to extract the maximum amount of cash from them for the minimum input in time.  Take away that cash and they’ll have to go get jobs and convince others to do business with them.

CEC is neither more nor less than threatening the rice bowl of an entrenched cadre of rent-seekers.  And so I have zero sympathy for their plight.

Will They Play With Fire, Again?

The Supreme Court at least in its present composition has an extremely mixed track record in upholding the basic building-block notions of the U.S. Constitution.  Its two most egregious, and potentially most damaging, cases thus far have both concerned the “Affordable” Care Act.

Gentle Reader will recall those two cases:  This first decision ruled that Congress can in fact exercise powers plainly not granted to it by any article, section, clause, phrase, or word of the document, nor which can be squeezed from the document by even the most strained reasoning, if (wait for it), Congress could have enacted a penalty on the failure to abide by that illegal power grab and called the penalty a “tax.”  Get that?  The ACA imposes a penalty on people who fail to buy insurance from private insurance companies.  Congress obliges individuals to engage in commerce, in other words, rather than merely contenting itself to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” which is what Article I Section 8, Clause 3 actually authorizes it to do, in respect of people who are engaging in those sorts of commerce.

Not even the clowns on this court could get five votes in favor of a power to oblige people to buy a new car every three years in order to support the personal transportation industry in America.  Remember, the industry which provides the means for individual Americans to live anywhere outside the most densely populated parts of the Northeast Corridor is one the fruits of which are of much greater importance to many more people on a much more frequent basis than the activities of health insurance companies, doctors, or hospitals.  Such an enactment would avoid the “free rider problem” of people who insist that their beat-up ol’ bangers (my 2000 Chrysler Concorde, which I picked up 16 years ago yesterday with 6 miles on the odometer, rolled 235,000 miles yesterday evening) are sufficient for their needs.  We folks who persist in driving a car until the wheels fall off by doing so deprive the automobile manufacturers of the cash flows necessary to fund their research and development to comply with ever-more-stringent CAFE standards because global warming climate change.

O! but let us not lose faith in the creativity, the revolutionary consciousness (cf. Solzhenitsyn’s chapter on “The Law as a Child,” in Vol. I of his Gulag Archipelago) Solomon-like wisdom  of our judiciary.  Congress cannot make you engage in activity.  But it can tax your failure to do so (according to the RevTrib Supreme Court), and if you don’t pay the tax it can imprison you for that failure.  And here’s where Chief Justice Krylenko Roberts really extended the known boundaries of American jurisprudence.  You see, Congress didn’t call the penalty for failure to buy health insurance a tax.  The administration and its lapdogs in Congress, in lying selling to the American public this abortion of a statute, repeatedly and explicitly disclaimed that it was a tax.  But Krylenko Roberts held that Congress could have called it a tax, and because it could have called it a tax and relied upon its taxing power to exercise indirectly a substantive power denied to it by the document itself, therefore it was a tax and therefore the individual mandate is constitutional.

Wow.  I mean, just wow.  Think of all the meaningless formalities which we can, under the Krylenko Roberts Doctrine now dispense with.  The senate refuses to ratify a treaty?  No problem:  It could have ratified the treaty, and therefore it did, and therefore that treaty, “constructively ratified,” we may call it, is now under the Supremacy Clause part and parcel of the highest law of the land.  Congress refuses to fund a program — oh, say, handing money to the baby cadaver salesmen at “Planned Parenthood”?  No problem:  Congress could have called that appropriation an expenditure for “public health,” and therefore the administration can keep shelling out tens of millions of taxpayers’ dollars.

But it gets even better:  Remember, the substance of the Krylenko Roberts Doctrine is that what matters in terms of the question, “Did Congress have the constitutional power to enact this provision?” is not, you know, whether the document actually or necessarily by implication grants that power, but rather whether Congress might have chosen to slap a monetary penalty (which the RevTrib Supreme Court can then call a “tax”) on a person’s conduct inconsistent with the desired behavior.  Let’s think of this in terms of the Fifth Amendment.  Oh no:  We’re not forcing a criminal defendant to testify against himself.  We’re just making him pay the additional expenses of proving his guilt without his cooperation.  I mean, can you say “externality”?  It costs money, dammit, good money that has to come from the public fisc to prove up a crime without a confession (hence, as Solzhenitsyn points out, the organs’ single-minded focus on obtaining those confessions, by means he and others (see, e.g: Dolgun) have described in detail).  So you don’t have to testify; oh no, you’re perfectly at liberty to sit there mute in the courtroom.  But by God we’re going to make you pony up for getting all those eyewitnesses in, all the forensic proof, the DNA testing, and all that.  And the beauty is that because it’s a tax (remember the Krylenko Roberts Doctrine, dear children), its imposition is utterly independent of our defendant’s actual guilt.  I mean, the money had to be spent, after all, and if the defendant is innocent, then there’s no reason he shouldn’t have testified to that effect, right?

Similarly, we’re not forcing you, Gentle Reader, to march in support of Dear Leader’s non-public deals to hand nuclear weapons to Iran.  But because the rest of the world, and especially Israel, will be much likelier to accept that deal if it knows that the entire American population is behind it, and the costs of ramming Israel’s physical destruction down its throat are much greater in the face of its opposition, we’re going to impose a money penalty (oh, we might have called it a tax, and therefore it is a tax, and therefore Congress had the power to impose it) on your failure to turn out for the scheduled Mass Demonstration demanding death for Zinoviev and Kamenev, the Trotskyite dogs and imperialist stooges immediate implementation of an Iranian nuclear weapons program.  By like token, we’re not forcing you to enroll your children in the Young Pioneers, or the Bund deutscher Mädel, or the Red Guards, but your unreasoning refusal to enroll them means that the school system must spend that much more time and greater resources educating them in Mao Thoughts the Führer’s Will the precepts of the Great Helmsman’s Short Course their civic duties in respect of the “Affordable” Care Act, and therefore a money penalty, which we might have called a tax but didn’t, is obviously constitutionally proper.

See how much can be accomplished through the Krylenko Roberts Doctrine?

The second case which Gentle Reader might recall is the insurance exchange case.  You’ll remember that, in order to compel the states to establish their own insurance exchanges under the “Affordable” Care Act, the availability of financial subsidy for the (now wildly-escalating) premiums was very carefully limited to those who purchased policies through exchanges established by “states,” which the statute very carefully defined to mean, you know, the 50 states of the union (and, I recall, territories and possessions as well).  All of those actors are, at the risk of pointing out the obvious, geopolitical entities, with physically-described borders.  They are not agencies or instrumentalities of anyone, like, for example, the federal Department of Health and Human Services.  Well, most of the states had better sense than to pour money down that rat-hole, and so Dear Leader’s administration set up a federal insurance exchange for people in those states, and then — here’s the flagrantly illegal part — began doling out money for policies purchased on that exchange.

The RevTrib Supreme Court upheld the illegal expenditure of public funds for an unauthorized purpose, because, well, Congress might have said “federal government,” or even “department,” and it was really important for this statute to work so we’re just going to act as if Congress actually had done what it didn’t do at all, namely include HHS within the definition of “state,” or alternatively just go ahead and authorize subsidy payments for policies bought through the HHS-run insurance exchange.  And lo! the outlay of billions of dollars is magically validated.

We may call this the “Statutory Error Doctrine”.  You see, when Congress has, through oversight (obviously it must have been just a drafting error, because reasonable minds simply cannot disagree on something so important, after all, as whether to plonk down billions of dollars on socialized health care, much in the same fashion as all sensible men being, per Disraeli, all of the same faith), omitted to authorize the administration to take Action X, whatever that may be, then the RevTrib Supreme Court will correct that li’l ol’ drafting error, and will supply what Congress plainly meant to have said, were it fully mindful of its duty to the Party.

Dear Leader’s administration is now advocating what we might call the “Statutory Omission Doctrine,” in which the RevTrib Supreme Court may supply, not merely a missing or obviously incomplete definition, but an entire statute which plainly Congress would have enacted, but for its truancy in obeying the Holy Writ of the Light Bringer.  You see, Congress, which under Article I, Section 8, Clause 4 has the power to “an uniform Rule of Naturalization,” and has done so.  Those rules provide for deportation and other nastiness for folks who come here illegally.  Congress has not chosen to exempt from those rules the parents of children who are, pursuant to the Fourteenth Amendment, citizens of the United States by right of birth.  Very awkward, by God! as the Duke of Wellington observed about William IV’s rant at the Duchess of Kent.

Some stupid redneck dirt lawyer might suppose that Congress, realizing it cannot deport minor children who are, by constitutional right, citizens and thus have a right to stay here, determined to leave in place the disincentive of family separation to discourage parents from creating such “anchor babies” in the first place.  Fine:  Your child can stay here because she’s a citizen, but your country ass is getting shipped back to Guadalajara, lady.  You’re perfectly free to take your citizen-child with you or leave her here.  If you leave her here we’ll provide for her, but you’re leaving.  Speaking as a father of three wonderful boys, I can tell you that is one powerful disincentive.  It puts, after all, the most painful burden on the only decision-maker (the pregnant woman) capable of preventing the situation from arising.  The infant cannot decide for herself, after all.  The father in fact cannot really decide.  So we’re going to make that woman wager the most sacred of human bonds against her desire to violate United States law.

Dear Leader does not like this.  He does not like this because those parents are reliable sources of money and political support.  The ones who eventually are able to vote (e.g. the anchor baby herself when she turns 18) reliably and extremely heavily vote Democrat.  So he has decided to exempt from the operation of the “uniform Rule of Naturalization” the parents of those anchor babies.  On a blanket basis.  He’s decided that the importance of keeping in place a permanent dependent class of Democrat electoral cash and support is more important than his own constitutional duty under Article II Section 3 that, “he shall take Care that the Laws be faithfully executed[.]”

Thus far he’s gone zero-for-however-many on injunctions preventing his administration from implementing this illegal program, which he calls, of course misleadingly, “Deferred Action for Parents of Americans”.  It’s not “deferred” action, but the permanent abandonment of action, and is widely known to be such.  Well, now the RevTrib Supreme Court has agreed to hear the administration’s appeal of the most recent such injunction.

We’ll have to see what Krylenko Roberts and his colleagues do.  I firmly disagree with the linked article that, “There are reasons to be sympathetic to President Obama’s efforts to overhaul America’s immigration laws. The system has been broken for decades, and political elites have proven unable or unwilling to fix it.”  It is no such thing.  It has not been enforced for decades, and this has created a painful and in many cases tragic set of facts on the ground.  But that is not the fault of either Congress or the law itself.  It is, rather, the logical outcome of hundreds of millions of politicized decisions by the ought-to-be-enforcers of the immigration laws.  Imagine if hundreds of millions of people and institutions simply refused to comply with the Internal Revenue Code.  Imagine if banks refused to produce and keep the financial records necessary to track taxpayers’ transactions; imagine if employers simply destroyed their payroll records after each pay period, and refused to remit income or payroll taxes.  Imagine if everyone simply stopped filing returns.  Imagine if all this went on, not for a season or two, but for decades.  Imagine that all this went on with the active connivance of the Internal Revenue Service.  Now, would it be intellectually or morally defensible to say that the Internal Revenue Code “has been broken for decades”?  Bullshit!  And the same response is due the claim that the immigration system is “broken,” unless by “broken,” you mean that the laws have been openly, flagrantly, and with the encouragement of government broken.  Well, yes, the immigration laws have been broken.  And for years the Fifteenth Amendment, prohibiting the denial of voting rights based upon the color of one’s skin, was openly and with the active cooperation of government “broken.”  Where is the principled argument that we should have, in the 1960s, and in lieu of adopting and ferociously enforcing the Voting Rights Act, just rolled over and allowed the South to continue on as before?

But will the RevTrib Supreme Court formally rule that, gosh darn it, this is Just So Important, and when Something is So Important, the president has the inherent power to put in place whatever program he deems expedient?  I’ll remind Gentle Reader that James II’s blanket exemptions from the religious disability laws were a principal reason (although not the final: that was the birth of a male heir) for the erosion of support which ended in the Glorious Revolution.  But will we have formally announced, with all the gravity that can be mustered by an institution which has so far beclowned itself as to rule that homosexual “marriage” is a fundamental right guaranteed by the Fourteenth Amendment, that when the president deems something sufficiently important, the allocation of “all” (not some, most, or “generally”) “legislative Powers herein granted shall be vested in a Congress of the United States” is no longer operative?

We might call such a notion the “Constitutional Omission Doctrine,” and set it forth as follows:  “If the president shall deem an issue sufficiently important, and if the Congress shall refuse to enact such legislation as the president shall deem necessary or expedient to address such issue, then the president may act in such fashion as the president shall deem appropriate, and such action shall have the force of law.”  That is pretty much the position taken by Dear Leader and his supporters.  We have an “immigration crisis,” with a “system that is broken,” and Congress refuses to act because of “partisan gridlock,” and therefore the president has the inherent “authority to act when Congress won’t.”  Because obviously the constitution’s drafters must never have imagined that Congress and the president might disagree on a matter of significant policy.  It’s just plain as day that they never intended that the federal government might be unable to act as a president thinks it ought to act because Congress has decided an issue contrary to the president’s desires.  And if they never intended that situation to come to pass, then the conclusion is inescapable that they obviously meant to include a provision in the constitution granting the president that authority, and the fact that the drafters included no such provision is merely an oversight, a mistake.  Like defining “state” such that you can’t shoe-horn “Department of Health and Human Services” into it.  Since we have a “living document” on our hands (all those silly little words about how the document may be amended are merely illustrative of one alternative method among many, after all), the fact that a fail-safe clause is nowhere to be found in the words the drafters actually used is no impediment to our now, 226 years later, recognizing that the president in fact has such a power.

I would caution the RevTrib Supreme Court against recognizing any such authority.  Once you recognize the ability of one branch to bypass another and exercise legally binding power over an issue or set of issues which the document on its face places squarely within the remit of another branch, what is then to prevent the doctrine’s application to the RevTrib Supreme Court itself?  Obviously, after all, the drafters never intended to create a situation in which a number of unelected, unaccountable nincompoops would usurp the expressed policy decisions of the legislative and executive branches.  I mean, the whole point of freeing ourselves from a monarchy, an prohibiting titles of nobility, was precisely to ensure we never became the playthings of a court and court party.

For example, consider the Defense of Marriage Act.  Passed with overwhelming bipartisan support and enthusiastically signed by a president from the party not in control of Congress, the RevTrib Supreme Court declared it unconstitutional.  We ignore the argument over whether the statute was a good idea in the first place.  Reasonable minds can differ in good faith as to whether the federal government needs to get into the business of deciding who is married and who is not, at least for purposes of federal laws where the marital status of an individual is a relevant determination.  Reasonable minds can differ in good faith as to whether marriage-is-what-you-call-it is a good policy position (I think it’s a bad policy position).  But the reasonableness and good faith of people on either side of those sorts of arguments played no part in the RevTrib Supreme Court decision.  According to it, the American people, acting through their lawfully elected representatives and approved by their lawfully elected president, did not have the right to decide the issue as they did, because the constitution does not permit that substantive outcome.

But hist!  Let us now apply the Constitutional Omission Doctrine to this dispute.  Congress determines that the RevTrib Supreme Court got its decision on the Defense of Marriage Act wrong, and because the drafters obviously intended to grant Congress the power to correct flagrantly bad court decisions (really? can it be that the drafters desired that a decision once blown should remain blown for all time, until the very institution that buggered it up climbs down and admits as much?), be it and it hereby is declared that the decision in this-that-or-the-other-case is reversed, set aside, and for naught held.  See how simple that was?  About as simple as the Democrat-controlled Congress in the late 1950s or early 1960s just un-doing Brown v. Board of Education.  Woo-hoo!  Plessy is once again the law of the land.  Gentle Reader can come of with just about any number of parade-of-horribles decisions that might fall prey to the doctrine, to the consternation of whatever group(s) or interest(s).

But Gentle Reader will tax me with hyperventilation.  Of course no Congress would ever do such a thing!  It would be politically impossible!  Never come to pass.  People would never stand for it!  And so forth.  And no administration would ignore the repeated cries for help of its overseas ambassadors, then stand by idly while an American ambassador was slaughtered like a dog and literally dragged through the streets, then send multiple representatives to lie repeatedly to the American public about why it happened.  No administration would ever weaponize the federal tax gathering apparatus to shut down the political affiliations of its political opponents, then instruct its senior administrators to destroy evidence and lie to Congress about its destruction.  We’d never have an administration concoct an attack on two U.S. warships — when no opposing forces were ever in the area on the night in question — and use that non-existent attack to obtain an authorization to wage years of undeclared but very much real war halfway around the globe.  [I’m referring, by the way, to the Gulf of Tonkin “Incident,” the non-existence of the second “attack” of which is related by no less personage than Vice Adm. Stockdale, who was in the air over the Maddox and Turner Joy that night, and in whose book he unambiguously states that the second “attack,” used by LBJ to get the Tonkin Gulf Resolution passed, never happened.  He had been named in the European edition (but not, significantly, the Pacific edition) of Stars and Stripes as having been present on the scene, and he spent the entirety of his long captivity terrified that his captors would get hold of a copy of that edition, see his name, and torture out of him his recollections of that night.  But they never did.]

Who are we to say what some future president and Congress may or may not do?

The last sentence in the last book of the last volume of The Gulag Archipelago reads:  “There is no law.”  The present administration, aided joyfully by the present constellation of the RevTrib Supreme Court, have marched us a good way down that same path.  Here’s hoping they have the minimal integrity not to take us that last step.

Of Elephants

Back in the 19th Century, it was rare for anyone living out in what is now generally referred to as “flyover country” ever to have seen an exotic animal.  There were pretty much no zoos, and back then the notion of loading up the family and going on a “vacation” didn’t exist for any but the very, very wealthy, and they didn’t live in small-town America.  About the only time that your typical 1840s child had a shot at maybe seeing something so outlandish as an elephant was when the circus came to town.  Back then, the circus company, in addition to setting up the big top outside town, would parade through town, with its dangerous beasts in cages on wagons, and invariably The Elephant being the star attraction.  The kids — especially the farm kids — would come from miles around “to see the elephant.”

The experience of “seeing the elephant” and making a special effort to do so was so common that “to see the elephant” became a metaphor for any Life Experience long desired and finally attained.  In the Civil War, the initial experience of combat — remember that thousands of young men had enlisted in fear that they might miss out on the fun — was universally known as “seeing the elephant.”  There is a very famous letter from a soldier to his family back home (it’s quoted in Ken Burns’s film series, although I first ran across its mention in Bruce Catton, if memory serves), right after his first battle.  At some point in the letter he allows, “Well sister I have seen the elephant, and now I don’t want to be a soldier no more,” or words to that effect.

These past two weeks I have seen the elephant.

I post under the nom de blog of Countrylawer because that’s what I do for a living.  Been doing it for roughly 20 years, give or take a bit.  I don’t do criminal defense and I don’t do either plaintiffs’ tort or insurance defense litigation.  Which is why I’d lasted so long without ever trying a case to a jury.  Such courtroom work as I have done, up until now, has all been bench trials.  Commercial contract disputes, eminent domain, deficiency actions, land title and boundary lines, business entities, and so forth.  I got started on a jury trial a couple of years ago and then the judge made an absolutely imbecilic evidentiary ruling which resulted in a mistrial.

Way long time ago — January, 2006, to be precise — I filed a bad house case on behalf of a couple who’d built their dream house and within less than a year of completion the thing was coming apart on them.  Massive water intrusion into the basement, exterior walls out of plumb, the entire brick veneer bleeding white all over, the dining room ceiling repeatedly leaking despite the contractor’s repeated statements that he’d fixed the problem.  And then the foundation walls started sprouting cracks; some vertical, but some horizontal, and it’s the horizontal cracks that are the more serious.  What a horizontal crack is telling you is that your basement wall is bowing inward from lateral pressure on the outside of it.  As things later turned out, the basement walls (concrete blocks) had been built eight feet below grade, with zero reinforcement of any kind in them.  The brick veneer had been largely put on in weather that was getting down below 24 degrees at night, with no protection from the elements.  What was supposed to have been a 1″ air void behind the veneer was partially plugged in large areas by enormous cakes of excess mortar, some of them three feet tall and ten or more feet long.  The windows had been flashed so that water would run behind the house wrap vapor barrier, which itself had been installed in part reverse-lapped, so that it would channel water into the interior of the wood frame.  And the wall penetrations had no through-wall flashing or weepholes beneath them so that water intruding would find its way back to the surface.  The chimney, the first time they lit it off, bled oozing, sticky, black creosote all over its surface (interestingly the heaviest concentration of creosote matched, on a 1:1 basis, the areas of strongest white leaching on the brick’s surface before they began using their basement wood stove).  And so on and so forth.

I sued their builder, who hired a lawyer who has a reputation for taking very aggressive positions on his clients’ behalf, even when that’s not necessarily in his client’s best interests.  As happened now.  We did depositions, we did discovery, we had petrographic examination of brick and mortar sections of the veneer (had to fly to Chicago to take our petrographer’s deposition), and on and on and on.  The case took forever, in no small measure because it took roughly a year to get them to make discovery.  We finally got the thing set for trial in early June, 2013.  That was continued at the defense’s request to October, 2013, which was continued once more, again at the defense’s request, to February of this year, which was continued by the court sua sponte (perhaps uncharitably, I cannot dispose of the suspicion that the last continuance came about because the judge before whom it would be heard was new to the bench and had never practiced civil law a bit, having been an assistant district attorney for 25 years).

So we finally had our trial date beginning June 22.  It took eight mortal days of proof, and over a full day of jury deliberations, but we got our verdict yesterday evening.  Although they didn’t give us everything we asked for, it was still a plaintiffs’ verdict, and the jury specifically ruled in our favor on every single count of the complaint.

Now I can say I’ve seen the elephant.  Here are some things I hope I have learned.

1.     Do as much of the work up front as you can.  I had done my requests for jury instructions and special verdict form two years ago.  Everything was just so and all I had to do was print them out, make service copies, and ship them out before trial.  By like token I had combed and combed and combed through all the parties’ and witness depositions, cross-indexing, gathering specific quotations with page citations into themes, and so forth.  While it didn’t completely avoid some late nights during trial, there was only one night I dragged back into my house past midnight, and that was the last night before cross-examining the defense’s star witness, their consulting engineer.

2.    Include not just citations to authority in things like requests for jury instructions.  Put in the actual quotations of the relevant language so the judge can see for himself that you’re not just making it up.  Also generate a “clean” copy of the proposed instructions, without citations; save them in as many different document formats as you can, organize them in folders on a CD, and include that with your courtesy copies of your motions that you send to the judge.  Judges and their assistants aren’t any less susceptible to letting someone do their work than anyone else is, and the easier you make it for them to use your work, the more likely you are to own more of the process.  Inertia is a powerful mental force as well as physical.

3.     Eat well, but not copiously, during trial.  This trial was a good 40 minutes away from my home.  So each morning I would grab a 24-ounce cola and have that, with two bananas, on my way to court.  I kept a granola/power bar or two in my brief bag, so that if I weren’t in a position to take lunch I would have at least some fuel.  On those days I did have lunch, it was never more than a 6-inch Subway sandwich, so I never got bogged down in the afternoon.  I’m a big ol’ boy (the less euphemistically inclined would describe me as “fat,” I’m sure), and one of my large concerns was hypoglycemia during trial.

4.     This ties in with doing as much work up front as you can, but get good sleep in adequate amounts.  Remember your body is used to X hours of sleep per night, and if you suddenly ask it to continue for longer stretches on less than that, it will rebel.  I made sure to come home as early as I could, take a shower, grab a modest supper, and then read something that had nothing at all to do with law, lawyering, or especially this case for a half-hour or so.  I’d take a melatonin tablet (never tried them before, ever, by the way) around 8:45 p.m. and by an hour later be turning out the light.  I was able to sleep and get up aware and ready to hit the decks running at 5:30 a.m.  Mental activity uses enormous amounts of calories, and in addition to the adrenaline of a full day in front of the jury, your levels of concentration are going to be ferocious and sustained for much longer periods than you’re used to.

5.     If you can, get your family out of the house.  Spouses and children, especially young children, are going to have a very hard time wrapping their minds around the notion that You Need to Stay Away From Daddy/Mommy until this trial is over.  They’re going to be knocking about the house, making noise, impinging on your dwindling attention energies.  I know it sounds heartless as all get out, but playing with the kids, or playing with the kids’ mommy, is going to tax a limited reserve of psychic energy.  They’ll still be there when the jury has come back; you can catch up with them then.

6.     Get to court early each day.  You need to get set up, get yourself calmed down, and focus in on the work you’ve got ahead of you.  Get there early enough and you should have the courtroom to yourself.  If you should need to finish up your morning business in the bathroom, you’ll be able to do so without risking a jury member strolling in and wondering what just died and can’t you give it a decent burial.  Take a breath.  If you need to set up any demonstrations or suchlike, you can tinker with the physical arrangements.  And if your projector blows a lamp, or your laptop won’t read a disk, or whatnot, you may have time to come up with a work-around.

7.     Google every last single witness.  I mean that:  Search Facebook, Twitter, MySpace, anything.  This especially applies to experts.  In fact, I am convinced that it’s why I got that verdict.  The defense’s testifying engineer was an accomplished liar (he’d screwed over some friends of mine 18 years ago, back when he was, in addition to his regular engineering gig, running a foundation repair service).  And I mean he was good; in some ways I think he could give Bill Clinton a close run.  Perfectly dishonest, of course.  He was perfectly willing to take a photograph of mold growing so thickly on a block wall that it cast its own shadow when photographed with a flash, and testify that was calcium carbonate efflorescence (even though a swab sample of it showed it to be Aspergillus/penicillium).  He did no testing or sampling of anything (or even asked to) in the house over the 9+ years of the suit, and then felt perfectly comfortable sliming the competence, methods, and integrity of a petrographer who not only followed the ASTM book in analyzing the mortar work, but in fact to some degree participated in writing that book, so to speak.

Our petrographer’s résumé listed two and a half pages of publications in all manner of masonry industry publications, as well as papers presented at international industry conferences.  I wanted to see if this opposing engineer had any publications out there, so I looked around.  I didn’t find any, but I did find his blog.  And on his blog I found a blog post.  And that blog post dealt in great depth with an issue that formed a central pillar of his testimony:  To what extent is it appropriate to use residential building code standards to evaluate the workmanship and quality of a house in a county in which no building codes have formally been adopted by whatever government authority would do so?  As you might surmise, on the witness stand he pooh-poohed the notion that the building codes were helpful.  “Out here where there aren’t any codes,” you see, you have to look into what are the “community standards.”  In other words, if every builder in the county builds a lousy building, then it’s perfectly acceptable that you got a lousy building, too.  And on his blog he in great detail and in unambiguous words (that last in marked contrast to his rambling, Cliff Claiborne-like trial testimony) gave exactly the opposite opinion.  As in 180 degrees out.  As in no way to reconcile the same.

Thus, at the bottom of my cross-examination of him, having previously got him to nail his flag to the mast of codes don’t apply here, I popped a print-out of his blog in front of him and then proceeded to read, one juicy snippet at a time, his opinion when he wasn’t being paid for it.

When the jury’s special verdict form came back, it was obvious that they hadn’t accepted any part of his testimony.

8.     Don’t play gorilla.  You’re not a gorilla, and anyone acting like a gorilla who is not, in fact, actually a gorilla only looks silly.  Chest-thumping isn’t likely to work on anyone who’s been doing this for more than six months, and all you’re going to do is convince the other guy that you in fact have that little class.  My learned opposing counsel kept making these just incredibly tacky remarks to me over the course of the trial.  On the first day, at the lunch break, he excused himself with the observation that “we’ve got trials to win.”  Well, dontcha now, buddy?  He kept busting on the minivan I drove to court.  It’s filthy, because for years now it’s sat under an oak tree in my driveway.  Well, what of it?  For starts, those jury members (this was a small overwhelmingly rural county) got to see me loading and unloading myself and my stuff from what was obviously a beat-up old vehicle.  At any rate, Dear Opposing Counsel kept making snide observations about the condition of my van, and at one point he said, “After I’ve won this trial, I’m going to come out to your office and wash your van.”  Knock yourself out.  He borrowed a laser pointer from his engineer, to use while he was taking his engineer through the pictures he took, and during breaks he’d keep shining it at my face.  Never in my eyes, but on my moustache (I do enjoy my soup-strainer), hair, etc.  He even called my attention to it and asked if I didn’t think it just hilarious.  I only observed that me must have been just an absolute prince on Halloween, back in the day.  As I said:  Tacky.  And now he gets to eat his words.

9.     Do not have your gas-bag of an expert witness explain each and every last one of 250-plus photographs to the jury, especially if many of them either don’t show anything that’s directly relevant to the claimed subject matter of the lawsuit, or show the same penny-ante detail from three separate perspectives and with as many different shutter speeds or contrast settings.  This Cliff Claiborne of an engineer just about put me to sleep, and I can only imagine what he did to the jury members, every one of whom could see that was a fucking water stain on a concrete block.  It took hours.

10.     Be very careful how you call a man a liar.  In my closing argument I explained to the jury that they had to decide whether to believe my clients’ engineer, who had not been hired to help in a lawsuit, who had not been hired to come up with any corrective action plan (they had a different engineer do that), but rather had been hired months before anyone lawyered up and only to help two distraught people figure out what was wrong with their house, or alternatively the defendants’ engineer.  Then I observed that if they were going to believe this other fellow, they needed to decide whether they believed the opinion he had when he was undeniably speaking just for himself and wasn’t getting paid for it, or alternatively the one he’d just offered to them on the defendants’ behalf.  And I left it at that.  I also had, after much consideration, decided not to bring out on cross-examination that the defendants’ lawyer was also this engineer’s personal business lawyer.  Two lawyers getting in a pissing contest and descending to personalities is the sort of thing that can put a stranger off, and prompt in him thoughts of a pox on both your houses.  In contrast, during Learned Opposing Counsel’s closing, he alleged that, in presenting the defendants with a detailed, written repair agreement (it even attached the most recent engineering report they’d received the week before) to be signed before they’d let the defendants back on their property to take yet another shot at getting the work right, that I — I, the lawyer — had “attempted to imposed [my] will” on these poor defendants.  Huh?  I just have a real hard time imagining that he scored many points with that theory.  I could be wrong, of course, but I doubt it.  And remember a jury member whom you’ve offended by your conduct is going to do your client’s case a great deal more harm than one who hasn’t formed a personal opinion of you one way or the other can do you good.

11.     Practice with your clients, especially if they’ve never been personally involved in courtroom proceedings.  Then practice some more.  Then some more.  If you have multiple clients (like a married couple), work them through actual outlines of their testimony, both yourself with them and them with each other.  Their answers can’t meander.  They can’t come across as either hesitant or as too-well rehearsed.  They can’t answer you in a questioning tone of voice, as if they were looking to you, the lawyer, for confirmation they’re correct.  They need to practice phrasing answers to include punchy, easily-comprehended visible images.  One of my clients, when I asked why they hadn’t gone behind this builder to check up on every last thing he told them, responded that that’s why they’d hired a licensed contractor; when their car breaks they go to a mechanic; when the husband had a hernia that needed fixing, they went to a doctor.  Avoid trying to script things, however.  It won’t work.  You’ll get a feel that a particular line just isn’t playing well, or something else will come up to knock your flow a little out of channel.  It’s a guide, not a script.  This is not for you and your client to memorize (it’s impossible to memorize proposed testimony anyway), but rather so that your client will feel comfortable with, because thoroughly familiar with, the substance and general phrasing of everything you’re going to ask.

12.     Ask as many of the other guy’s questions for him.  If your client has said something stoopid in his deposition, drag it out.  He might look poorly, but I guarantee he’ll do better at damage control if he’s taken through it by a friendly questioner.  Especially ask the other guy’s rhetorical questions for him.  My clients noticed their house’s moisture and mold problems gradually getting worse over the first summer they lived in the place.  They’d decided to get their contractor back out there in early September, and then a hurricane blew through, causing their dining room ceiling to leak a stream of water for the fourth time (the first three times had been during construction).  They got the contractor out there afterward and he looked at the saturated top-to-bottom basement block walls (including the two-plus courses of block above grade level), and allowed he couldn’t understand where the water was coming from.

So my folks got another contractor out for a second opinion.  That guy recommended a home inspector, who looked around, found indication of multiple other serious problems, and he recommended an engineer, who came, saw, and noted several major issues in a formal report.  My folks got that in early October and, in shell shock, they spent the next five or so weeks gob-smacked.  Then in mid-November they lit fires in their wood stove and the creosote came blooming out.  Beginning the first week of December their rear basement wall grew cracks so fast they were visibly longer from one day to the next.  So they got their engineer back out (he couldn’t make it until after the new year).  But between that early-September visit from the contractor and the second week of January, my people didn’t call the contractor.  The contractor alleged as a defense the failure to provide notice and an opportunity to cure.  And so repeatedly I worked my way back around, with my witnesses on direct, to the question of, “Well, why ever did you not call?”  By the time Learned Opposing Counsel got to cross, they jury would have been thinking This is Old News and They’ve Already Explained It Four Times; Now Move Along.

13.     If you know your clients’ case better than your clients, you’re both in trouble.  They’ve got to be able to articulate, in their own words, in coherent form, what happened, when, in what order, by or through whom, and What It All Means.  If they can’t do that, in painful detail, then they’re not going to be able to convince a jury to make some stranger (at least from the jury’s perspective they’re strangers) cough up money to your client.  Just not going to happen.  I once years ago tried a bench trial on an option to purchase commercial real estate.  The case had been pending for not quite four years when it went to trial.  My client spent seven hours on the witness stand that day, and under cross-examination she was nearly completely unable to explain to the court what she wanted by way of relief and why she thought she was entitled to it.  We won the case, but the judge ruled in a manner that cost my clients about an extra $250,000.  If your client obviously doesn’t know his own damned case, don’t expect your jury to spend much effort trying to understand it either.

14.     Don’t ask your witnesses to be any more positive than they genuinely are comfortable being.  If they’re basically honest, that stretching of their narrative will stick out like spines and the jury will conclude they’re lying.  If they’re basically dishonest (and you know, sometimes the only witness you have to something is one of your county’s notorious crooks; it just works out that way and if that’s the only way you’ve got to get your facts into evidence then you’re going to have to figure it out), you’re shooting dice that nothing will happen like happened to that engineer.  All through my case in chief Learned Opposing Counsel was cock of the walk, strutting about and playing Dutch Uncle to my poor little dirty-assed-van redneck self.  He acted like he had a massive bombshell in reserve, just waiting to chamber it up and send it down-range onto our target coordinates.  After I blew up his star witness in front of God and everybody that sonofabitch “sulled up” as we say around here and spoke scarcely eight words to me until late yesterday afternoon.  All that having been said, if your witness has a fact to recite, or an opinion to form, for God’s sake don’t pussy-foot around about it.  That comes across as dishonest as well.  Purge “I might have,” and “I think,” or “it could be that” or “it might have been” or “As I remember it” from the vocabulary.  This did happen.  So-and-such did not happen.  I saw whatever-it-was.  Don’t have your expert say, “My opinion is such-and-stuff”; you ask him if he has an opinion and let him state his opinion in the form of a fact:  “There was nothing wrong with this house that a little time wouldn’t have cured without spending a bunch of money.”  “There were no termites present on whatever-date-it-was.”

15.     Never, ever, ever, ever put on proof, unless the substance of the claims or defenses makes it absolutely unavoidable, of what your client is paying you or has paid you, especially if you’re a big-city lawyer appearing in front of a jury full of people at least half of whom either live from government hand-outs themselves, or have relatives or friends who do.  Our total claim for compensatory relief was for not quite $90,000; ol’ Learned Opposing Counsel had one of his clients testify that, exclusive of the trial, they’d already paid over $96,000 in attorney’s fees.  That didn’t even get to the engineer’s fees (and they’d paid him to be present for the trial from Day 1).  Think about it:  How likely is it that Average Jury Member is not going to ask himself the deadly rhetorical question, “Wouldn’t it just have been simpler for you to have built the house right in the first place?”

And so I saw the elephant over the past two weeks.  We have post-trial motions and then I am assuming Learned Opposing Counsel is going to file an appeal, which for several tactical reasons I’m all for, since it is likely to make my clients’ ultimate collection much more certain.  I cannot say I have enjoyed it, except to the extent that winning (assuming nothing blows up between here and the final order) beats losing all to hell and gone.  It was an 8-day adrenaline rush and I’m still coming down off it.  But at least the magic spell is broken.

I can do this.

California Goes to India

And from the Dept. of You Can’t Make This Up, we have a report from The Times of India of a judgment rendered by a court in Delhi, identified as the Delhi High Court.

Some Indian analogue to PETA had freed a bunch of birds from the cages in which a bird merchant was keeping them.  Legal proceedings ensued (the report doesn’t make very clear whether civil or criminal, and by whom initiated and against whom).  A trial court had directed that at least some of the birds be released  back to the merchant from whom “liberated,” and the animal rights folks had sought an injunction barring that release.  [I’m curious how the birds, who had after all been freed from their cages, were re-captured so as to be released back to the merchant in the first place.  I mean, if I’m a bird kept locked up and someone comes along and pops open the door to my cage, my country ass it outta there.  You couldn’t, as an old judge friend of mine says, find me with a search warrant.]

The animal rights group appealed that portion of the trial court’s action, and the appellate court bit down on their argument in toto, in language that seems alarmingly over-broad for a society which has some difficulty feeding itself.   Justice Manmohan Singh allowed:  “I am clear in mind that all the birds have fundamental rights to fly in the sky and all human beings have no right to keep them in small cages for the purposes of their business or otherwise.”  Really?  “All birds” have a “fundamental right” to fly “in the sky” and humans have “no right” to keep them for any “purpose” (how else can you read the “otherwise” in that sentence?).  “This court is of the view that running the trade of birds is in violation of the rights of the birds. They deserve sympathy. Nobody is caring as to whether they have been inflicted cruelty or not despite a settled law that birds have a fundamental right to fly and cannot be caged and will have to be set free in the sky.”

The breadth of that statement would sweep in chickens, geese, ducks, or any other bird raised for food or for their eggs.  According to Justice Singh, even keeping your chickens in a hen-house with an outdoor run enclosed by fencing would violate the birds’ “fundamental right” to fly “in the sky.”  The full opinion isn’t quoted in the article, but if the decision had turned on a law proscribing the birds’ being in the possession of the merchant — such as American federal law which criminalizes such private possession or trade (and I actually had a client once who’d recently been enlarged from Club Fed for precisely that offense) — you’d think the court would have mentioned it and the article likewise.  But there’s none of that, but rather only the categorical announcement of a “settled law” establishing a “fundamental right” to fly in the unrestricted “sky.”  The specific source for the right is not cited in the article, so I wonder whether it’s in India’s constitution or some statute somewhere, although the judge’s invocation of a “settled law” is a pretty strong clue that he’s just making it up as he goes along, the South Asian variant of black robe fever being presumably indistinguishable from its American strain.

Wow.  I mean, just wow.  Eating beef is severely constrained in India by reason of religious scruple.  Pork is considered by a sizable proportion of the population to be unclean, likewise on religious grounds.  And now an appellate court has decided that the only practicable way to keep domestic birds for eggs or food is as a proposition of “fundamental right” impermissible?  I guess the population living near the ocean or near rivers can fish, if the water’s not too polluted.  But what are the rest of India’s one billion-plus population to do for animal protein in their diet?

I guess it shouldn’t surprise us that Indian judges are just as susceptible to silliness as our own.

I Wonder if the Supreme Court Heard These Arguments

When the parties were arguing for or against the notion of homosexual “marriage.”

Via Instapundit, we have a contribution from Breibart.com’s British site.  “Attack of the Killer Dykes!” doesn’t really sound like much more than click-bait as a headline, but what caught my attention was the squib:  “Lesbian violence is poorly understood because it is poorly researched, and poorly researched because it makes the gay lobby deeply uncomfortable. We’re not supposed to admit that any kind of gay relationship might have a dark side. It’s all unicorns and Mariah Carey, as far as charities, politicians and the media are concerned.”

So I clicked through and read the article.  While reading it I realized it was written by a British author (references to “mum” and English spellings like “colour” were give-aways) before I noticed the Union Jack on which the Breitbart logo was superimposed.  In truth, even had the URL not contained “London” and had there been no conspicuous non-Americanisms in the text, I think I’d have figured out it was a Brit just by the unapologetic tone of the piece, its willingness to call things by their correct names, its vinegar-laced humor, and its playful use of cacophemism.

Examples:

“If you’ve ever heard of a gruesome murder in your neighbourhood in which the short-haired victim was beaten savagely with a rolled-up copy of Saga magazine and then strangled with a jock strap, it’s probably not some terrifying new sadistic white male serial killer, but rather another dyke domestic that got out of hand.”

“We know, for instance, that black women experience intimate partner violence at rates 35 per cent higher than white women. And those girls know how to swing! So the real figure for lesbian batterings is much higher than we know.”

“It’s not like they’re in it for the sex. Maybe it’s the faint whiff of cat sick, maybe the chafing of polyester bedsheets, but it’s well known that lesbians stop having sex after the first few months and retreat into hobbies like softball, vegetarianism, penis envy and Twitter.”

“Who knows. Perhaps these women don’t know what they’re getting themselves into, and imagine that lesbian relationships are a blissful domestic idyll, rather than the hellish reality of being kicked to death by someone in sensible shoes.”

Maybe it’s because as an American I’ve just been brain-washed into thinking in terms of identity politics, but reading the article I was thinking this guy’s laying into the homosexuals with perhaps excessive vigor.  Got me to thinking just who he is.  So I clicked through on his byline link at the top of the article.  Milo Yiannapoulos is his name, and he seems to be regular Breitbart.com contributor.  He’s got some hilariously truthful articles there, like his “A Lexicon of Social Justice“.  Some favorite entries from which:

Dominant culture
The stuff people actually like. Not to be confused with taxpayer-funded lesbian performance art, which would surely break all Box Office records if only more people got to see it.”

Glass ceiling
My career isn’t doing as well as I think it should be, because I’m an insufferable, hateful, jealous bore, and I am looking for someone to blame.”

Transgender
A psychiatric disorder reimagined as a ‘civil rights issue’ because we’ve literally run out of things to complain about.”

Read, as Instapundit frequently encourages, the whole thing.

But what really caught my eye were two other of his articles that also showed up:  “I’m Sooo Bored of Being Gay” and “Kids Need a Mum and a Dad,” in the latter of which he describes himself as a “party-hard homosexual.”  Do what?  Having read both of them it seems to be the case:  His piece on lesbian (and to a lesser extent, male homosexual) domestic violence isn’t just some hit-piece content “sponsored” by the Westboro Baptist Church.  Whatever his stated reasons for his homosexuality may be (in his “Sooo Bored” he makes a joking reference to having decided to be homosexual in order to offend his parents), and whatever his thoughts may be about the implications his life choices (I’m willing to accept that homosexual inclination is something you may be born with, but living as a “practicing” homosexual, just like living as a “practicing” heterosexual, is very much an affirmative choice) for his personal existence, he goes out of his way not to wear blinders about that part of the world he lives in.

I like someone who makes an effort not to entertain illusions about himself and those things he chooses to be a part of.  I’m in large measure something of a redneck.  I’m also an introvert, a P. G. Wodehouse fan, and something of a school snob.  At least as to that last, I know I ought not be, and I know that school snobbery is more than a little bit like people who manage to work into every damned conversation the fact that 35 years ago they set their high school’s single-season passing yardage record.  Pathetic, in other words.  I freely acknowledge the underside of redneckery; I admit my inclinations, to the extent that I have them, in those directions; and I likewise confess myself not always having the moral strength of character to resist them.  And so forth.  With Wodehouse there arises within one the warm glow of the Initiate.  One goes through life feeling alternately pity and scorn for those who have never heard of The Great Sermon Handicap, or drunk with The Oldest Member, or who have never gone into a bar, looking for a brass foot rail with a silent prayer to St. Galahad Threepwood in their heart.

[You can’t grow up reciting the General Confession from the 1928 Book of Common Prayer and still cherish an unblemished self-image:

“Almighty God, Father of our Lord Jesus Christ, Maker of all things, Judge of all men; We acknowledge and bewail our manifold sins and wickedness, Which we, from time to time, most grievously have committed, By thought, word, and deed, Against thy Divine Majesty, Provoking most justly thy wrath and indignation against us. We do earnestly repent, And are heartily sorry for these our misdoings; The remembrance of them is grievous unto us; The burden of them is intolerable. Have mercy upon us, Have mercy upon us, most merciful Father; For thy Son our Lord Jesus Christ’s sake, Forgive us all that is past; And grant that we may ever hereafter Serve and please thee In newness of life, To the honour and glory of thy Name; Through Jesus Christ our Lord. Amen.”]

So I went back and re-read the article on lesbian domestic violence.  I even clicked through on the link to the Puffington Host article cited.  “Shocking” statistics on domestic (or what now seems to be called “intimate partner” violence, presumably to cover as well those couples who beat, torment, and kill each other without ever actually shacking up together) are paraded before us.  [Aside:  Any headline which contains the word “shocking” is to be treated as presumptively heralding an out-pouring of mountebankery until proven otherwise.  The Weather Channel’s website is especially offensive in this particular, and the only reason I still patronize them is because I haven’t found one that’s easier to use and not just as bad or worse.]

The PH’s article starts off, predictably enough, with some nice context-free false equivalence:  “The number of American troops killed in Afghanistan and Iraq between 2001 and 2012 was 6,488. The number of American women who were murdered by current or ex male partners during that time was 11,766. That’s nearly double the amount of casualties lost during war.”  How many different individual American servicemembers were in Iraq and Afghanistan during those twelve years, in places where they were realistically exposed to combat operations?  Maybe a few hundred thousand?  And how many different American women during that same period were in adult (in other words, post-high-school) relationships with men during that period?  Maybe 100,000,000 or more (a girl ten years old in 2001 would have been 22 in 2012, so you’ve got the better part of an entire generation of female Americans added to the population pool during that time)?  Also overlooked is the fact that American troops are, you know, armed to the teeth to protect themselves, while tens of millions of women were denied their most basic civil and human right — self-defense — by the sorts of anti-gun demagoguery pumped up by precisely outfits like the Puffington Host.  Whatever.

Then we get to the statistics.  I am entirely comfortable each and every one of those numbers quoted by the PH is valid, in the sense that it is a usefully accurate quantitative measure of the sociological phenomenon described.  On the other hand, you have to pay very close attention when left-extremists begin citing statistics.  Thomas Sowell years ago drew attention to the archetypal technique employed to confuse the discussion of X of Y per unit of Z.  When attempting to extract money from the productive classes in order — allegedly — to fight black poverty, the figure of black income-per-household is cited to paint a picture of continuously unfolding disaster; when what is desired is to show the effectiveness of various “affirmative action” and racial preferences and thereby extract money from the productive classes to hand it over to what Sowell helpfully describes as the “pet constituencies,” the figure of black income-per-capita is given.  And never is highlighted the distinction between the two.

The PH’s statistics are mostly strictly American numbers (there are a couple which are expressly world-wide figures, and several that specifically reference the U.S., but most are silent).  But let’s put some context underneath it all.  According to the U.S. Census Bureau, on Census Day in 2010 the gross U.S. population was 308,745,538.  Their age-and-sex data shows that 156,964,212, or 50.8% of the total, were female.  Of those women, 16,322,308, or 10.4%, were born in 1940 or earlier.  That’s helpful to keep in mind, because I’m going to suggest that, whether better or worse, the world inhabited by adult women before 1960 was qualitatively different from that developing and existing after 1960.  Not to put too fine a point on it, but there was a lot of shit doled out to women back in the day which is now recognized much more widely, and sincerely, as just unacceptable than it used to be.

A further note on the PH’s numbers.  You’ll observe that not many reflect the data on heterosexual “intimate partner violence” experienced by men, although there is quite a bit of data out there on the subject.  It shows that men experience it at rates very similar to women, although the injuries suffered by women tend to be more severe (as you’d expect, given the physiological differences between the sexes).  Just by way of example, the U.S. Secretary of Defense the other day announced the annual sexual assault data for the U.S. Armed Forces.  More men reported unwanted sexual contact during the previous year than did women.  Huh?  Further, when you factor in the personal violence experienced by men of all sorts, you begin to realize that American women, even when you include their personal physical risk from their “intimate partners,” are overall safer in their persons than men are by several orders of magnitude.

38,028,000 women have experienced some form of “intimate partner” violence at any point in their lives.  That makes 24.2% of all women who have experienced it, ever.  I’d be interested to know the age break-down of that 38 million.  If it’s concentrated in the upper age ranges, what that tells me is that the problem is getting better instead of worse.  If the other way around, then we need to be asking ourselves why, in a post-1960s world, when overall violence of all types is going down, this one subset of it should be getting more, rather than less, prevalent.

1,509 women were killed in 2011 by men they knew, of whom 926 were killed by an intimate partner (who was, we are invited to assume, male).  That’s 926 women killed in one year, out of roughly 157 million women, or 59 ten-thousandths of one percent of the female population.  During 2002-2009, there were an average of 3,533 non-boating drowning deaths per year, 80% of whom were age 15 or over, and 80% of all of whom were male, meaning an average of 565 or so women ages 15 or over in the U.S. died each year by drowning.  In fact, women overall have a higher risk of death by drowning than men.  Booze, the by the way, figures in 70% of all drowning deaths (no sex-correlation is given for that data point).  The FBI shows 2,813 total female homicide victims for 2011, so familiar killers accounted for 53.6% of the total, and intimate partners for 32.9%, or almost exactly one-third.  But this is why the PH really should have put some context around it:  In 2011, there were 9,829 male homicide victims, almost 3.5 times as many.

And now we get to see some subtle presto-chango from the PH:  Every minute 20 “people” are the victim of intimate partner violence.  Well, how many of those 20 are female and how many male?

4,774,000 women will “experience intimate partner violence” during the course of a year.  Let’s couple that with 1 in 4 women will experience “severe” domestic partner violence, and 1 in 7 men will experience “severe” domestic partner violence.  “Severe” is not defined, but I’m going to assume that it is, well, severe enough to require medical attention.  Thus, a scratched male face would not be severe, but a spiral fracture of a woman’s forearm, or a female shoulder wrenched from the socket would be.  What I’d like to see is a male counterpart to that 4,774,000 figure.  Why the “severe” comparison but no gross-numbers comparison?  Well, the latter comparison is meant to suggest that men are overall exposed to less domestic violence, when all it really does is highlight the entirely expectable result of the overall physical strength imbalance between the sexes.  Including the male-victim gross numbers would make that plain.  And left-extremists are never, ever about being plain.

40-45% of women in “physically abusive” relationships are raped and/or sexually assaulted during the course of the relationship.  What does “physically abusive” mean?  Does it mean a relationship in which there has ever been a manifestation of physical violence, ever, or does it mean more than X instances of physical violence total or at least X instances during any particular period?  By the way, note that over half of physically abusive relationships don’t result in a sexual offense.  Does that throw any light on the feminist claim that rape is not a sexual offense but a power-relationship offense?  I mean, trying to think my way into the head of a man who’d make a habit of beating his woman — surely about as crude an expression of power-exploitation as you can imagine? — if rape is just one more aspect of power-exploitation rather than an expression of perverted sexual lust, would I not have frequent recourse to it?

And then we get to Yiannapoulos’s cited figures:  2 in 5 — that’s 40% — of male homosexuals will experience intimate partner violence during their lives.  That’s a two-thirds greater statistical likelihood for them than for all women as a group.  Among lesbians, fully 50% will experience “domestic violence” (which the PH goes out of its way to assure us may not be “intimate partner” violence . . . why tell us that, and why not just give the “intimate partner” data?) during their lives, exactly double the overall female population expectation.

Perhaps inadvertently, the PH then provides some context to that 38,028,000 figure, although they shove it in way at the bottom of the column so as to discourage the comparison.  World-wide, not 24.2% of the female population can expect to experience intimate partner violence, but full 70%.  Suddenly all us Awful Americans don’t look so bad.  I have just one question for the pro-al-Qaeda left-extremists:  Does female genital mutilation of small girls count as “domestic violence”?

Another article linked by Yiannopoulos contains some alarming data points.  Somewhere between 17% and 45% of all lesbians report being the victim of at least one act of violence perpetrated by a female partner.  That’s from somewhat less than to almost double the rate of “intimate partner violence” — 24.2% — reported with respect to the gross U.S. female population.  Here’s another: 30% of all lesbians report being the victim of an act specifically of sexual violence by a female partner.  Here we’d better remind ourselves that how the surveyor defines things like “sexual assault” can produce any number desired by the study.  It’s how, for example, we get that 25% of college women will be the victim of sexual assault or worse during their time in college (which is the same as to say that a college woman experiences the same risk of sexual assault during a four-year period that all U.S. women experience of intimate partner violence over their entire lives).  I’d like to see the number of heterosexual women who would report positive according to the same criteria; how would that compare?

The long and short of Yiannapoulos’s article and the others he links to is that homosexual relationships are much more prone to violence than heterosexual relationships.  Period.  That situation seems hard to reconcile with the notion that they are functionally and therefore morally indistinguishable from heterosexual relationships.  That in turn suggests that maybe, just maybe, a state’s refusing to give homosexual relationships equal legal stature by calling a homosexual couple “married” is not just an exercise in bigotry, but may well be very concretely supported by specific physical data.  If the numbers Yiannopoulos cites are good numbers, then I think any constitutional argument about homosexual “marriage” must ask whether it is a legitimate state objective to refuse to encourage domestic relationships so markedly more violent than traditional arrangements.  The state cannot effectively forbid those or any other sort of human relationships; not even the Nazis with the death penalty for “racial defiling” could do that.  But does the fact that the state cannot as a practical matter, and ought not as a legal matter prevent them from arising necessarily command the result that therefore the state must encourage them by granting them a privileged legal status (which is what marriage in fact is)?

That’s not a bigoted question to ask, any more than it is unreasonable to ask whether terminating a biological parent’s rights in respect of his or her minor child by reason of the parent’s drug abuse, or running with violent felons, or other behaviors demonstrably hazardous to small children is a lawful exercise of the state’s protective function in respect of its citizens.

Somehow I don’t reckon any the Supreme Court is going to pay much attention to those data.

The 10th Amendment Revisited

Via Instapundit, we have news that the governor of Tennessee (Instapundit’s home state) has signed a bill — SB 1110 is the bill designation — which prohibits use of state assets or personnel in the enforcement of certain federal firearms laws.  Over at Breitbart.com’s Big Government, we have a brief write-up on the Tennessee bill, as well as a similar measure recently enacted in Indiana (the Indiana law relates only to regulation of sawed-off shotguns).

The comments to the Breitbart.com article seem to fall into two camps, those who view such laws as attempted “nullification” of federal statutes, and those who see such laws as a state standing up to the federal government’s over-reach.  Among the former we have —

“These nullification laws are sedition and you people commenting on this story are encouraging insurrection. There is no 10th Amendment because the supremacy clause can be used at any time to nullify any law passed by a state. State laws designed to defeat Federal Law is nothing more than a throwback to when Confederate Traitors tried to destroy our nation. Like those traitors in the past, Union Blue will put you in the ground in order to save the Union. There are far more people who still love this nation and will not tolerate a collection of stupid America haters.”

And among the latter we have . . . well, we have just about the balance of the commenters on that post.

For reference purposes, the text of the 10th Amendment reads, in its entirety:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  The commenter quoted above seems to misunderstand the functioning of amendments in general in relation to the base document.  To the extent that the 10th Amendment and the Supremacy Clause conflict on an issue, the amendment trumps.  Were that not the case then the following provisions of Article IV Section 2 would still be the law, notwithstanding the 13th Amendment:  “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”

Also beyond the comprehension of the above-quoted commenter is the operation of the Supremacy Clause.  That clause only operates within the scope of the powers “delegated to the United States by the Constitution”; it is not an independent source of federal authority.  It is why the federal government cannot prescribe the qualifications of voters in individual states, except to the extent that a state’s voter qualification law violates the due process or equal protection provisions of the 14th Amendment, or effectively denies voting rights based upon “race, color, or previous condition of servitude.”  Thus, a state may disqualify felons from voting, and a federal statute attempting simply to over-ride that proscription would not trump based on the Supremacy Clause (depending on how it was crafted it might stand a chance under the 14th Amendment, however).

I’ll also point out that the text of the 10th Amendment, drafted by, debated, voted upon in Congress, and ratified at the same time and by the same people as those who produced and ratified the 2nd Amendment, sort of puts the lie to the notion that when the 2nd Amendment protects the right “of the people” to keep and bear arms, what was really meant was the right of the states to create a militia.  No; those drafters understood the distinction between “the people” and “the states.”  In fact the rights of “the people” (and that’s always how it’s referred to, never as “individual persons” or “persons” or “individuals”) are mentioned something like eight or nine times in the Bill of Rights, such as the 4th Amendment, which provides, in full, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  If you want to read the 4th Amendment in the same manner as the anti-gunners want to read the 2nd, you would have to conclude that only those “persons, houses, papers, and effects” at the time in the custody and control of the states are secure against unreasonable searches and seizures.  So presumably my birth certificate would be so secure, or the possessions of a prisoner would be secure.  The rest of us are on our own, because the expression “of the people” refers only to collective actions exercised by and through the intermediation of a state.

Errrmmmmm . . . . not.

But I digress.  Let’s look at specifically what the new Tennessee statute prohibits and what it does not affect.  As an initial matter, I’ll note it’s poorly drafted.  The bill’s two substantive subsections are both single sentences, and they both share a common verb:  “shall be allocated.”  Huh?  A quick search on Westlaw for variants of the verb “allocate” in Tennessee’s constitution turns up one hit from the text, in Article 11 Section 5, relating to lotteries (apparently it took an amendment to that state’s constitution to permit a lottery).  There’s also an attorney general’s opinion that turns up as a citation to that section, to the effect that lottery proceeds have been “allocated” within the meaning of the text when they are placed in a separate fund for the purposes referenced.  That still tells me not a whole lot.  So you can appropriate and expend state assets for “the implementation, regulation, or enforcement” of federal statutes and regulations regarding certain aspects of gun ownership, so long as you do not assign those assets to a specific fund?  Moreover, how in God’s name does a state “allocate” funds to the “regulation” of “any federal law, executive order, rule, or regulation” regarding gun ownership?  And for that matter, what if we’re talking about a court order?  Under the text of SB 1110, the State of Tennessee could appropriate and expend state funds for the implementation of a federal court order regarding gun ownership.

This bill has all the earmarks of something put together by an amateur draftsman who then found a sponsor to slap his name on it.

So much for the poor grammar and drafting.  What sorts of “federal laws, executive orders, rules, or regulations” may Tennessee not “allocate” either its “public funds” (subsection (a)) or “personnel or property” (subsection (b)) to “implement, regulate, or enforce”?  These:  “regulating the ownership, use, or possession of firearms, ammunition, or firearm accessories.”  What’s not on that list?  Design; manufacture; sale, trade, or other commerce (whether intrastate or interstate); transportation (again, either intra- or interstate); taxation.  Those are some pretty sizable areas within which the State of Tennessee is not refusing its cooperation with the federal government.  In fact, if you think about it, those areas of gun rights with respect to which Tennessee is declining to serve as the federal government’s errand-boy are precisely those rights guaranteed to Tennessee’s individual citizens by the 2nd Amendment; they are more or less the components of “keep and bear arms”.

Strange as it might be to realize it, but whoever wrote this bill, while not being a very competent draftsman, nonetheless displays a very fine constitutional sensibility.  The state is refusing to participate in federal attempts to circumscribe citizens’ constitutionally protected rights.

Our commenter quoted above also seems to labor under some confusion about what precisely is a “nullification statute.”  A true nullification statute states that a law of another jurisdiction (in this case, federal) is ineffective within the boundaries of the state.  Thus, a federal employee who attempts within the state to enforce the nullified law does so at his own risk.  He is nothing more than a thief, an assailant, a trespasser, and is liable for civil and/or criminal prosecution as such in the courts of the state.  At the risk of pointing out the obvious, this new Tennessee law does nothing of the kind.  It would, for example, prohibit Tennessee from turning over any gun-ownership data on its citizens to any federal database.  It would prohibit federal access to its database of concealed carry registration.  It would prohibit a local police department from seizing firearms or accessories based upon a violation of federal law (or a conviction of a federal offense, even a firearms-related offense, although it could deny voting rights to that same convicted federal felon).

All of which is to say that this bill does and will create some interesting outcomes in law enforcement, but I’m just not seeing how this is treasonous or “anti-American” or somehow usurpatory of any lawful claim of federal supremacy.  I guess you can reasonably debate whether it’s a good idea or not, but then that’s why we have a 1st Amendment, isn’t it?

 

From the Dept. of Well, Isn’t This What You Wanted?

A couple of weeks ago, a police officer in North Charleston, South Carolina pulled over a car for having a broken tail light.

The police car’s on-board camera shows the officer go to the driver’s window and retrieve the driver’s license.  While the officer is running the license and tags, the driver panics, gets out, and runs.  Chase ensues, followed by scuffle.  Driver then hoofs it again and the police officer squeezes off eight rounds at an unarmed fleeing man.  At least one round strikes the driver’s heart and he falls dead.

Why did the driver run in the first place?  We can guess at why he might have run the second, fatal time.  He’d just had a physical altercation with a police officer.  But why the first time?  The car wasn’t stolen.  He wasn’t driving without a valid license.  He wasn’t wanted for any sort of drug- or violence-related crime.  He was a gainfully employed father of four.  Why did he run?  Obviously we can’t ask him now.

What we do know is that there were outstanding warrants for his arrest.  For unpaid child support.

I have not seen the victim’s court files, of course, and so I cannot tell you whether he had been held in civil contempt of court for failure to pay, or in criminal contempt, or both.  I don’t practice domestic law in any event, and so I have no way of telling what sort of experience he had awaiting him if he had been successfully nabbed instead of shot down like an animal.

Cue the squawks about “debtor’s prison.”

By this is meant the imprisonment of people for failure to pay money.  Of course there’s a verbal sleight-of-hand going on when you hear the left-extremists use the expression.  Genuine debtors’ prisons were prisons where you were locked up for failure to pay your lawful debts . . . to private creditors.  With one exception, on which more later, what are now being referred to as “debtors’ prisons” by the left-extremists at shops like the Puffington Host are the mechanisms for the incarceration of people who have not paid the government money.  Usually — with that one exception — what we’re talking about are criminal fines, fees, and costs, the responsibility for which is imposed as a matter of law in connection with conviction of a criminal offense or a plea arrangement in which the inducement is avoiding either a conviction on one’s record or incarceration for a conviction.  In other words, these are not people who have to go borrow some money from a title-pawn outfit to pay for the week’s groceries, discover they can’t pay, and end up in jail on a revolving basis.  These are people who have been charged with a crime and, in order to avoid the risk of even longer incarceration they agree to some sort of arrangement, maybe but not necessarily involving a guilty plea, but nearly always involving some kind of probation, for a period of time.  And they promise to pay court costs, any criminal fines, as well as the fees and expenses of the probation process (not infrequently contracted to private service providers).

Let’s leave apart the question whether the state should be contracting any portion of what is, after all, inherently a function of sovereignty — the imposition of criminal penalties.  Let’s ignore for the sake of argument whether the crimes with which these people are charged even ought to be crimes in the first place.  In point of fact until the relevant statutes are repealed they are crimes, lawfully proscribed behavior as determined by elected representatives of the people.  The people caught in the toils of the system are in fact people whose behavior has been sufficiently objectionable as to come into contact with the criminal justice system.  [Aside:  We are also ignoring for the sake of argument the phenomenon of grotesque over-charging, so tellingly portrayed in Instapundit’s own “Ham Sandwich Nation,” a practice that reliably produces guilty or similar pleas by people who in fact may well be not guilty of the crime to which they plea — or even any crime at all — but who dare not risk the decade or more in hard time if they go to trial on all the litany of offenses they’ve been charged with.]

I will admit that it is perfectly within reason to debate the idea of whether how we finance our criminal justice system is a good idea or a bad idea.  Reasonable people can in good faith disagree on whether this fines-costs-fees hamster wheel that in practice seems to feed on itself, as criminal defendants/convicts can’t pay the freight, thereby getting re-arrested, with more costs, more fines, more fees, and so forth, is a net benefit to society or not.  I will also join ranks with those who execrate places like Ferguson, Missouri, where they in exactly so many words decided to use their municipal criminal court to pay for their city, instead of taxes.

But what about that exception?

Well, yes.  That exception is unpaid child support.  The reason why the victim in South Carolina had warrants for his arrest.  Those debts are in fact owed to a private party — usually the mother.  Of course, if the mother is receiving government benefits, then federal law requires the state to seek to recover those benefits from all persons who are liable for the support of the child for whom the benefits are being paid.  As a taxpayer I don’t have any problem with this at all.  Why should some useless slug force me to pay for his baby-momma while he hangs around on the street corner drinking out of a paper bag or shooting dice in a government-provided apartment’s kitchen?

Does Gentle Reader remember one of the most popular hand-writing causes of the 1980s and 1990s — the Deadbeat Dad?  Almost weekly if not more often we got to hear horror stories about women struggling to raise children whom the fathers simply refused to support.  The fathers just walked out and point-blank refused to chip in anything, whether or not they had the ability to pay.  And the courts were letting them deadbeat dads get away it!!  I can no longer recall anywhere near the sheer number of articles in the newspaper, in news magazines, on the television which I saw on how awful it was that The Law Wasn’t Making These Fathers Pay.

And you know what?  There was a tremendous amount of truth in those stories and the conclusions we were asked to draw about the system.  The court system was egregiously lax in forcing parents of otherwise indigent children to pay up, and most of those delinquent parents were fathers.  I could spit-ball any number of theories as to why that might have been so, but for whatever reason the System was doing it, the reality was that if you were a mother of a child to whose father you were not married, you had precious few effective remedies if that father told you to go pound sand, he wasn’t paying.

And you know what else?  The legislatures and the bench listened.  Special agencies were set up, or special task forces within existing agencies were set up, the sole mission of which was to pursue deadbeat dads — and all at taxpayer expense, not at the expense of the single mother, by the way — to go after the deadbeats.  Judges got measurably less forgiving.  I still recall one day sitting in court, waiting for my client’s case to be called.  Ahead of us on the docket was a child support matter.  The father was attempting to convince the judge that your honor I Just Can’t Pay This.  The judge looked at him and said, “You don’t have to work but a half a day, and I don’t care whether it’s the first twelve hours or the second twelve hours, but you’re going to support your child.  Do you understand me?”  Another judge around here was widely known at contempt hearings for adjourning a 9:00 a.m. hearing to the 1:00 p.m. docket, and telling the respondent parent, “We’re going to adjourn this hearing until one o’clock.  At one o’clock I want you back in front of me with one of two things:  A check for <however many dollars> or your toothbrush.  Do you understand me?”  And as that same judge was wont to observe, it’s amazing how many people managed to find a money stump between 10:15 a.m. and 1:00 p.m.

So it was the South Carolina legislature’s and bench’s response to what was a very real problem that provided the background for what happened in North Charleston the other day.  Without the aggressive enforcement of child support orders, that shooting victim would not have had arrest warrants outstanding, would likely not have fled from the police or got in a fight with the officer, and would be alive and well today.  On the other hand, he can be viewed as a regrettable casualty, collateral damage, so to speak, in a battle that is much larger than he is.  It is not unreasonable or heartless or cruel to suggest that the damage avoided by that same aggressive enforcement mechanism — the systematic economic neglect and abandonment of children — is of sufficient social importance that, while we must regret this man’s death, and while we must punish vigorously the officer who gunned down an unarmed fleeing man, we still must not allow the tragedy of his death to cloud our judgment of why he needed to have those arrest warrants out.

It is simply an unfortunate truth that most of us are no better than we need to be.  Without the knowledge that non-payment equals jail time, there are just too many fathers out there who will refuse to pitch in to house, clothe, and feed their own children.  If that fear of jail time expresses itself in some non-compliant fathers not in a willingness to pay but rather in decisions to engage in demonstrably foolish behavior, like running from a cop, getting into a fist fight with him, then running again, I humbly suggest that is a price that we as a society should be willing to pay.

[Update 10:35 a.m., 21 Apr 15]:  The New York Times weighs in with an article on the dynamics of effective enforcement of child support orders.  Perhaps unusually for the NYT, the headline actually captures the essence of the process:  “Skip Child Support.  Go to Jail.  Lose Job.  Repeat.”  That about says it.

The article gives some sense of the treadmill aspect of it.  Get behind on your support payments.  Get hauled into court.  If the court determines you have the ability to pay and didn’t, then you go to jail for some period of time.  While you are inside, your employer fires you, so that when you come out you have no income to catch back up on the support obligation, which continued to accrue while you were inside.  And so forth.

I’d like to press, however, on a couple of points brought out in the article.

The initial one is that the North Charleston shooting victim, Walter Scott, lost “the best job [he] ever had” over a failure to pay support, by getting locked up for failure to pay.  That “best job” was paying him $35,000 a year in Charleston, South Carolina in around 2001-02 (to judge by the time line stated in the article).  Listen up, chief:  I was living in Charleston, South Carolina, in 1991, making right around that same $35,000, and you could more than just get by on that income.  I strongly question whether that situation would have changed by 2002.  For that matter, $35,000 is to this day right around the national median household (not per capita) income for a family of four.  So what precisely was Walter Scott doing with his $35,000 per year other than supporting his four children?  I’m going to need some convincing that his stepping onto that treadmill was someone’s fault other than his own.

The second is a bit harsher on Comrade Scott.  Apparently the mother of his first two children (born out of wedlock; the latter pair were born to his wife, from whom he later separated) was on the public tit, and Scott resented it.  Well yes, I perfectly understand that.  But this isn’t a playground argument over who has got more time on the teeter-totter.  This is about an obligation — to support your children to the best of your ability — that exists independently of anyone else’s efforts.  Just like to point that out.

The final point in the article I’d like to weigh in on is this statement:  “But experts said problems could arise when such tactics were used against people who had little money, and the vast majority of unpaid child support is owed by the very poor.  A 2007 Urban Institute study child support debt in nine large states found that 70 percent of the arrears were owed by people who reported less than $10,000 a year in income.”  Here’s a link to the study; the relevant chart is on page 22.  People who “reported”; get it?  Make that “self-reported” and you get closer to the truth of the matter.  That study draws its data from child support numbers matched to national quarterly wage and unemployment insurance data.  As the study itself honestly points out:  “Although obligors may not have reported quarterly wages or unemployment insurance, it does not mean they do not have the ability to pay any child support. Some of these obligors may be employed in areas that are not covered by quarterly wage data, such as those who are self-employed or independent contractors. Others may be working in covered industries, but they are working under the table to avoid paying taxes or child support. Still others may be engaged in illegal activities.”  Working under the table precisely to avoid paying taxes and child support?  Gee whiz, Sherlock, what was your first clue?

I once saw pointed out, many years ago and in a different context, the basic fact that you simply cannot rely on reported income figures to obtain a meaningful picture of any aspect of life in modern America.  Among the more pernicious effects of byzantine tax and employment regulations is a black-market economy that is truly staggering in its scope.  No; if you want to find out how much Group X is making, you have to measure their spending, not their reported income.  Someone who regularly spends $3,000 a month and reports income of $400 a week is lying.  Thus the Urban Institute’s (and the NYT‘s) picture of the child support system unfairly standing on the neck of the down-trodden, locking up men who truly, genuinely cannot pay to support their children, needs to be taken with several heaping tablespoons of salt.

Every lawyer out there who has practiced domestic law for so much as three weeks is familiar with the deadbeat parent who shows up in a recently-purchased, very nicely appointed vehicle, whose iPhone 6 is clipped to his belt, whose Facebook page shows him off doing his hobby (fishing on his bass boat, golfing, at the beach with New Girlfriend, or otherwise doing things that undeniably cost money), whom you’ll see cutting his yard on his zero-turn mower (check out what even a used one of those costs), and so forth.  He’s working for cash, frequently in construction, landscaping, or some other hard-to-pin-down trade.  Oh! but he’s “disabled,” walking into court on a cane . . . right before he goes out to tune up his tree stand for deer season.  Cry me a river.

I suppose it’s easy to tell where I shake out on the sympathy spectrum in respect of Walter Scott and his peers.  He sure as hell didn’t deserve to get killed, and certainly not like he was killed, but he gets very, very points from me about the arrest warrants that appear to have triggered his flight from that police officer.  And by the way, if he exhibited as poor decision-making skills in respect of his child support obligations as he did in running from, fighting with, and then again running from a police officer, just how much of a surprise can it be that he got and remained side-ways with the system?

With Apologies to Dean Swift

I offer my own modest proposal.

An 11-year-old Florida student shot a smart-phone video of a teacher bullying a fellow student, publicly and in the classroom.  This same teacher has a Facebook page on which she posts photographs taken in the classroom.  The school’s principal also runs a Facebook page for the school, again featuring in-classroom media.

The student shot and publicized the video, thereby getting the teacher fired — as the teacher deserved to be.  The school’s principal then suspended the student, citing an alleged violation of the teacher’s “expectation of privacy.”  In a classroom.  Full of students.  In connection with a raised-tone-of-voice, everyone-in-ordinary-earshot-can-hear exchange with a student.  A public school teacher, paid by the taxpayers’ money.  You can’t make this shit up.  The thug rocket-scientist school principal is named Traci Wilke.

Although the student’s suspension was lifted before the five days were up, you really have to ask why this transparently improper punishment was meted out to a student who did nothing more, it seems, than identify someone who needed to be weeded out from the rest of the teaching profession.  Actually, we don’t need to ask, not at all.  As the linked article describes it, this was neither more nor less than “an obvious attempt at intimidation.”  See, kiddoes?  You mess with one of us, you mess with all of us.  Shut and keep your head down.  The NEA code of omerta strikes again.

It is gratifying to report that the student’s family has already hired a lawyer.  Part of any settlement agreement should requiring the principal to be fired and to execute a consent order agreeing never again to seek or accept any employment from any school or school system, at least in Florida and preferably nation-wide.  Someone whose sense of justice and propriety is so warped should never be entrusted with any group of people who by law are restricted in their ability to fight back.

But more to the point, how about this for a state-level fix?  A very simple statute:

“(a)  Except as expressly set forth in this section, all actions and omissions of any person holding any office or position, howsoever characterized, under the constitution or laws of this state, or of any political subdivision thereof, or of any agency or instrumentality thereof, in respect of all offices or positions so held by such person, shall be public matters of public import and concern.

(b)  Notwithstanding any provision of the law of this state or of the United States to the contrary, no person holding any office or position, howsoever characterized, under the constitution or laws of this State, or of any political subdivision thereof, or of any agency or instrumentality thereof, shall have or claim any expectation of privacy or other privacy interest, howsoever characterized, in respect of any matter arising from, relating to, or connected with such person’s holding of such office or position.  There shall be no cause of action under any theory whatsoever in favor of any such person for the otherwise lawful gathering, recording, storing, publication, or other dissemination of any information in respect of such person’s actions or omissions in respect of any office or position so held by such person.

(c)  The acceptance by any person holding any office or position under the constitution or laws of this State, or of any political subdivision thereof, or of any agency or instrumentality thereof, of any compensation, perquisite, or other benefit of such office or position, of any kind, character, or description whatsoever shall conclusively be deemed to constitute a waiver, for all purposes and to the fullest extent permitted by any applicable law, of any claim to or expectation of privacy in respect of such person’s actions or omissions in respect of such office or position and otherwise existing under any provision of the laws of this state or the United States.

(d)  The provisions of this section shall not supersede — 

      (i)  those provisions of the law of this state specifically exempting from public disclosure items of personal information generally exempted from disclosure pursuant to the provisions of ____________________; 

      (ii) the laws of this state in respect of defamation; or,

      (iii)  the laws of this state in respect of the permissible methods of visual or audible recording of the speech or actions of another person.”

Reference in the blank would be to the statutes containing that state’s public records disclosure statutes, and to the exemptions from them (in other words, just because you happen to be a state judge doesn’t mean your Social Security number ought to be disclosable).  On the other hand, I don’t see why that state judge should be able to claim an expectation of privacy as to any matter having anything to do with that judge’s execution of his office.

Note that “not having an expectation of privacy” is most emphatically not the same thing as “subject to public disclosure upon demand.”  A right of privacy is a right that is personal to you.  To use an example from private life:  I have no personal interest in the privacy of my communications with my clients.  Those communications are protected by the attorney-client privilege, but that’s a privilege that (a) belongs to the client, not me, and (b) can be waived by the person to whom it belongs.  Thus, our hypothetical state judge’s deliberations, either with his fellow judges (on a multi-judge tribunal), or his law clerk, or even a buddy of his who happens to be a judge elsewhere, may not be subject to forcible disclosure by some member of the general public.  But if a secretary (or law clerk, or just Joe Bloggs who happens to overhear the judge talking in a restaurant) hears the judge and his buddy sitting around a table discussing how best to screw a political enemy, or ruling a particular way in order to “send a message” to some person or group, and decides to record it, then by God that’s a public service for which the person recording should be commended (and the judge impeached and then disbarred, of course).  The judge himself should not be heard to allege that his “privacy” was invaded by someone catching him violating the trust of his office.  As Traci Wilke, whom I’ll just go ahead and declare to be the most fire-able principal in America as of this afternoon, has done.

Just my humble contribution to the good of the public.

[Update 31 Mar 15, 12:39 p.m.]:  In my discussions-in-chambers hypothetical, the judge’s not having a right of privacy in those matters is also not the same thing as public disclosure of them not being a firing offense, unless protected by a whistleblower statute or similar common law rule.  Again, it’s not the judge as an individual firing the discloser, but rather an agent of the state, and what is being punished is not some violation of the judge’s legitimate privacy interest, but rather a violation of a law to keep confidential matters that are in fact and (if otherwise lawful) ought to be exempt from public disclosure.  The long and short is that everything you do and say in your capacity as a public official belongs to your government and to the people who have constituted that government.  It does not belong to you and you have zero — absolutely bugger all — right to keep it under wraps to protect yourself.  Therefore no disclosure of it can injure you in your personal capacity.