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Justice Sotomayor: Pro-Prosecution or Pro-Civil Liberties? (Pottawattamie County v. McGhee)

We are about to soon find out.  There can be no more telling of a case than Pottawattamie County v. McGhee.  In McGhee, prosecutors who fabricated evidence were denied absolute immunity from suit under Section 1983.  

Will Sotomayor side with prosecutors who violated the law and ruined lives; or with innocent citizens who are wrongfully accused of crimes?  McGhee is a litmust-test case.  There are strong legal arguments on both sides.  Ultimately, the issue is whether one supports prosecutors who commit misconduct; or people who are wrongfully accused of crimes.

I'll have much more to say about Pottawattamie County, but don't want the post on State v. Outing to get buried.  In the meantime, here is an article summarizing some of the issues in Pottawattamie County.

State v. Outing and Change Blindness: Will the Connecticut Supreme Court Respect Empirical Evidence?

There's an interesting case pending before the Connecticut Supreme Court.  The Court states the issues as follows

[T]he defendant sought to introduce expert testimony regarding, among other things, the following identification concepts: 

  • (1) that witnesses who experience heightened levels of stress during a crime tend to make inaccurate identifications; 
  • (2) that under the "weapons focus effect," witnesses tend to focus on a perpetrator's weapon as opposed to the perpetrator's facial features; 
  • (3) that there is a weak correlation between a witness's confidence and the accuracy of an identification; 
  • (4) that pursuant to the "disguise effect," a perpetrator's use of a disguise makes an accurate identification more difficult; and 
  • (5) that when multiple witnesses discuss the crime with each other, the different versions become melded in such a way that the witnesses can no longer be certain of what they actually saw. 

The trial court prohibited the defendant's expert from presenting testimony regarding these concepts, concluding that they were matters of common sense.

How did the trial court conclude that it was common sense?  Did the court ask the jurors in voir dire about eyewitness identification bias and decision making?

The actual, empirical, real research shows that people consider eyewitness identification to be highly reliable. There are, however, some common sense exceptions.

People consider external factors in determining whether an eyewitness identification is reliable.  If it can be shown that it was dark outside, jurors are less likely to believe an eyewitness.  If it was raining, or the witnesses wasn't wearing her glasses, or if the witness is a geriatric: Jurors view eyewitness identification suspiciously.   Those are matters of common sense. 

The really interesting stuff, however, is not.  It's the stuff that is in the inside of an eyewitness's mind that jurors don't understand.  Let's look at one example.  Please bear witness to this video:  Most people clearly miss something huge.  The concept is known as inattentional blindness or change blindness.

We can only see what we are paying attention to.  When we are paying attention to one thing, we miss something obvious about the rest of the scene.  Here is another example of change blindness:

Now, how does that related to eyewitness identification?  If I point a guy at someone's face, what will you focus on?  It won't be my eyes, ears, or nose.  It'll be the gun.  That is scientific fact.  How then could you reliably describe my face?

Now, maybe it's still possible to pay attention to the gun and my face.  Still, most people are not able to.  Here is an abstract from one (of many dozens) of studies

Three experiments investigated the role of 'change blindness' in mistaken eyewitness identifications of innocent bystanders to a simulated crime. Two innocent people appeared briefly in a filmed scene in a supermarket. The 'continuous innocent' (CI) walked down the liquor aisle and passed behind a stack of boxes, where upon the perpetrator emerged and stole a bottle of liquor, thereby resulting in an action sequence promoting the illusion of continuity between perpetrator and innocent. The 'discontinuous innocent' (DI) was shown immediately afterward in the produce aisle. Results revealed that: (1) more than half of participants failed to notice the change between the CI and the perpetrator, (2) among those who failed to notice the change, more misidentified the 'CI' than the 'DI', a pattern that did not hold for those who did notice the change. Participants were less likely to notice the change when they were distracted while watching the video

Did most of you - judges, lawyers, law professors, and smart people in other professors - know about change blindness?  If your answer is yes: Did you know about it before you studied the issue?  In other words, was it a matter of "common sense" to you?

Of course not.  Change blindness is part of a body of literature on cognitive bias that is only a a few decades old.  Although some of these concepts are being popularized by books like Predictably Irrational, the knowledge hasn't trickled down to the Main Street juror.

Why shouldn't lawyers be allowed to educate jurors about the faults of eyewitness identification?  Perhaps there are good reasons - although I haven't heard any.  That inattention blindness is a matter of common sense, however, is not such a reason.

"How You Finance Goldman Sachs’ Profits"

Are you tired of reading about Goldman Sachs?  I sure am.  Yet the most corrupt criminal organizatin in American history has created a neverending story.  In the latest Mother Jones, a former Goldman Sachs insider explains how you (yes, you) are making really rich people even richer.  Check it out:

Bank holding companies (which all the biggest financial firms now are) come under the regulatory purview of the Fed, the Office of the Comptroller of the Currency, and the FDIC. The capital they keep in reserve in case of emergency (like, say, toxic assets hemorrhaging on their books, or credit derivatives trades not being paid) is supposed to be greater than investment banks'. That's the trade-off. You get access to federal assistance, you pony up more capital, and you take less risk.

Goldman didn't like the last part. It makes most of its money speculating, or trading. So it asked the Fed to be exempt from what's called the Market Risk Rules that bank holding companies adhere to when computing their risk.

Keep in mind that by virtue of becoming a bank holding company, Goldman received a total of $63.6 billion in federal subsidies (that we know about—probably more if the Fed were ever forced to disclose its $7.6 trillion of borrower details).... Then, there's the $29.7 billion it's used so far out of the $35 billion it has available, backed by the FDIC's Temporary Liquidity Guarantee Program, and finally, there's the $11 billion available under the Fed's Commercial Paper Funding Facility.

Tactically, after bagging this bounty, Goldman asked the Fed, its new regulator, if it could use its old risk model to determine capital reserves....

On February 5, 2009, the Fed granted Goldman's request.... Yes, Goldman is a more risk-prone firm now than it was before it got to play with our money.

After reading the article, consider how much longer you want the Obama Administration to play you for a chump - like the Bush Administration did before Obama, and like the Clinton Administration did before Bush.  

Are you Obamaheads - who vapidly chanted "Hope!" and "Change!" - going to hold your man to his promises?  Or did the Krishna-like-meditative-chants squeeze out the room needed for real thoughts?

Graffiti Artist [sic] Ordered to Surrender Passport?

This is moronic:  

Thurston County Superior Court Judge Anne Hirsch ordered mixed martial arts champion Jeff Monson to surrender his passport Tuesday after Monson pleaded not guilty to

0018-Jeff monson stand off

 malicious-mischief charges for allegedly spray-painting an anarchist symbol on the Capitol last year.

The order casts doubt on whether Monson will be able to appear in two scheduled fights overseas.  Monson, 38, has a fight scheduled in February in St. Petersburg, Russia, and in March in Tokyo.

After Deputy Prosecuting Attorney Joe Wheeler asked that Monson surrender his passport during Monson's arraignment Tuesday, Monson leaned over and whispered to Wheeler, "Are you going to support my family now?" 

Yes, it's completely retarded for a 38-year-old man to go around spray painting anarchist symbols.  That doesn't make him a flight risk.  

The judge seems to think that the guy is going to flee the country rather than face "swift and certain" justice for illegally spray painting an anarchist symbol?  Are you serious?  Monson won't even get prison time.  Worst case, he'd do a few days in jail.  

Why would he leave his wife and two children to avoid probation?  Get real, Judge Hirsch.  You took one look at Monson, deemed him a scary white man, and then allowed your biases and prejudices to take over.  There is no legal basis for taking Monson's passport.  He is not a flight risk - even if you find him scary looking.

R. Rex Parris and David C. Wheeler Obtain $370 Million Verdict Against Guess Co-Founder

The Associated Press, ABA Journal, and Metropolitian News Daily are all reporting

A Los Angeles Superior Court jury yesterday awarded nearly $370 million in damages against Guess? Inc. co-founder Georges Marciano for claims of defamation and intentional infliction of emotional distress by several former employees, attorneys involved in the matter have announced.

Lancaster attorney R. Rex Parris, who represented two of the employees, called the verdict “one of the largest…ever handed down in Los Angeles County,” in a release.

According to the Bloomberg News Agency: "The jury award is the fourth-largest in the U.S. so far in 2009." Congratulations to Rex Parris, David C. Wheeler, and Alex Wheeler.

UPDATE: I've obtained a copy of the Press Release cited in the article.  You may read it here.

Quick Thought on Libertarian Paternalism

Those opposed to libertarian paternialism should spend some time talking to people with sub-100 IQs.  Seriously.  Try explaining a basic concept like Pythagora's theorem to someone who is as smart as half of the population.  (Relatedly: I tell my liberal friends, mostly Ivy-league grads, that they should go teach at a rural junior college before spouting off that everyone is capable of obtaining a college education.)  It's amazing what one learns about humanity when one actually engages humans.

It's probably not a coincidence that libertarians are smarter than average.  People tend to find a morality that suits them.  The rest is artiface.  If you're smart but physically frail, you might be a libertarian.

"Your rights end at the bridge of my nose."  Clever, right?  Somehow it's entirely moral to trick mental midgets into buying knives from QVC at 33.33% interest (compounded daily); but it's immoral for those fat-fingered plebians to break your noses when you say, "You signed the contract!"

Yes, stupid people need to be protected from themselves.  If you doubt this, spend a few days having actual conservations with people outside of your socio-economic class.  You might actually learn something.

Norwood v. Vance: Law Professor's Failure to Understand Appellate Procedure Leads to Bad Law

Procedural law breaks hearts.  The facts are the facts.  You can spin - not change - them.  Even the substantive law isn't especially malleable.  If you lose on the facts or substantive law, why can you do?  Curse the law, sure.  There is no need for tears or guilt.  Procedural law is different.

If you make a procedural error, it doesn't matter if the facts or substantive law are on your side.  You can't go to court.  Procedural errors haunt.  Norwood v. Vance will give many ghosts.

In Norwood v. Vance (here), a prisoner-litigant in a Section 1983 case won at trial.  

The issue was to what extent a prisoner had the right to outdoor exercise.  Norwood, like every other prisoner, was not allowed outdoor exercise for over two years.  It wasn't because Norwood had done anything wrong.  Norwood was subject to group punishment for other prisoners' misconduct.

At trial, the trial court gave a jury instruction that allegedly misstated a point of law, namely, whether prison officials were deliberately indifferent to Norwood's right to outdoor exercise.

The defendants did not argue in a post-trial motion that they were entitled to qualified immunity.  The qualified immunity issue should have been waived on appeal.

A 2-1 panel of the Ninth Circuit reversed the judgement, holding that the trial court's deliberate indifference jury instruction was erroenous.  Since the defendant did not raise the issue of qualified immunity is a post-trial motion or on appeal, the case should have been remanded for a new trial.

However, the panel did reach the qualified immunity issue. 

Although the defendant did not preserve its qualified immunity argument: It raised the issue on appeal.  The plaintiff did not argue waiver.  Judge Alex Kozinski, writing for the split panel, said that the plaintiff "waived waiver."  The panel then held that the prison officials were entitled to qualified immunity.

Rather than re-trying the case with a new jury instruction, the plaintiff lost his case entirely.  All due to a misunderstanding of procedural law.  How could this have happened?

Waiver is not a quirky area of law.  If a party doesn't raise an issue in a post-trial motion, the defendant has waived it.  Simple - though not easy - stuff.   

In the Ninth Circuit, the slip opinions indicate who briefed the appeal:

Carter White, Supervising Attorney, and [omitted - Mike], Certified Law Student, U.C. Davis School of Law, King Hall Civil Rights Clinic, Davis, California, for the plaintiff-appellee.

A law student argued the case and wrote the briefs.  As part of a love fest, the Ninth Circuit held court at the U.C. Davis School of Law.  A law student got to be a lawyer.  In theory, this is unobjectionable.

A smart law student - if properly supervised - can put together an impressive brief.  The student's supervisor needs to state what the issues are; give an overview of the law; and let the student write.

Law students, though, don't know anything.  They need to be supervised.  You can't just hand a transcript or motion over to a student. 

This law student clearly was not supervised.  An appellate lawyer would have said, "Didn't they waive the right to argue qualified immunity on appeal?"

I didn't identify the law student by name, since you can't expect law students to understand the importance of procedural issues.  Google shouldn't follow her for making a rookie error.  Her law professor screwed up big time, though.

Norwood v. Vance is thus a reminder to pay attention to procedureal issues.  It's also a reminder that a lawyer has an affirmative duty to supervise subordinates.  

The plaintiff got screwed because a law professor didn't do his job.  The plaintiff in Norwood should have received a new trial.  He won't.  For not fault of his own, the client's case is dead.

Edward Eugene Harper and the FBI's Age-Progress Photo/Junk Science Machine

Edward Eugene Harper was a serial pedophile.  His failure to appear in court 15 years ago got him put on the FBI's 10 Most Wanted Fugitive List.   He was recently arrested.  That's not interesting.  Here is what's interesting.

Harper made the FBI's 10 Most Wanted Fugitives list.  Here, according to the FBI, is what Harper would have looked like in a 2008, according to its magical age-progressing photo-making machine:
FBI Edward Eugene Harper

Here is what Harper looked like the day he was arrested:  Edward Eugene Harper

Sex Crimes Prosecutor Charged With Rape (UPDATED)

Bizarre is an overused word.  This is a bizarre story:

As Michael Gressett waited for a jury verdict in a molestation trial, the Contra Costa County sex crimes prosecutor had what he called a "nooner," bringing a fellow prosecutor to his Martinez home for intercourse....

Gressett's 30-year-old accuser, a prosecutor from another unit, says she wanted to sleep with him and undressed before objecting to the type of sex he initiated. He pressed on, she told police, sodomizing her, holding a gun to her head, handcuffing her and jamming ice into her before making threats.

It sounds like there were orgies in the office: 

The sex crimes unit of the district attorney's office, she recalled, was a highly sexualized place where she, Gressett and others bantered about rough sex and directed gallows humor toward the crime victims they represented. 

Yep; bizarre fits.

UPDATE: The case seemed off.  It smelled like a false accusation.  Someone left this telling comment to the article.  While not authenticated, the comment sounds true:

The accuser was not hired as a permanent employee & the allegations only were raised formally when it became apparent she was not getting hired. This is a women who admitted that her boyfriend (another DA) would role play a rape scenario, where he (not the accused) would climb into her window and ultimately have sex. These are facts. not hyperbole. This is a women many deputy DA's she wanted to have sex with the accuser 3 days prior to their 1st weekend lunch date. The DA literally did not take any affirmative action against the accused for more than 5 months. This occurred only after the accuser ranked last on the hiring list and was not hired. The accuser has a drug & psych history, been arrested for biting a cop. READ THE COURT FILE- this case is the biggest miscarriage of justice and the community should be outraged. You may not agree with the edgy sex-but no one was sexually assaulted. The accused has tremendous support from his colleagues and legal community.