CT Blue

The Boston Globe casts doubt on an arson conviction of a man who has now been in prison since the mid 80s. It’s a familiar story-the primary evidence against him was a confession obtained after hours of police questioning. The details of the confession were are variance with the physical evidence at the scene, but who’s going to sweat the details when you have a confession?

We will never know what led up to his decision to put pen to paper. Is the interpreter’s (the convicted man was Hispanic) story true:

The translator who assisted in the police interrogation has made a dramatic reversal of the account he gave at trial. In a sworn affidavit provided to Rosario’s current attorneys, he says Rosario was delusional during the questioning and did not understand what he was signing.

It is a continuing mystery. Why do we allow a confession into evidence if the police do not also produce a complete videotape of the interrogation? It’s not like the technology is expensive or difficult to operate. If the police can’t handle it, they can hire high school kids, who could use the extra money.

Of course it’s not really a mystery at all. The police don’t want to do it, because it would deprive them of the ability to get quick and easy confessions, actual guilt or innocence be damned. The judges don’t want to require them to do it, and ditto with the state legislatures of the various states. Of course the police will maintain there is absolutely nothing untoward going on in the interrogations, and, absent overwhelming evidence to the contrary, the courts will profess to believe them.

In this case, at least according to the Globe, there was probably no crime at all. The fire in question was probably accidental. But the man convicted by his own confession has now been in prison more than half his life, and the chances are, at best, about even that he will get the new trial he is requesting.

In any sane world we would have an exclusionary rule: no video, no evidence.

Why is this not conspiracy to defraud?

Goldman Sachs has been accused of fraud by the SEC, but its apparent partner in fraud will emerge far richer and unscathed.

… Paulson & Co., made a $3.7 billion profit by betting against the housing market as it nose dived in 2006 and 2007. On Friday, the Securities and Exchange Commission disclosed that $1 billion of those profits came in an insider deal in which Goldman Sachs allegedly let the company select subprime securities for a complicated offshore deal and then bet on their failure.

So, Paulson fully expected the securities it chose to tank. It also fully expected that Goldman would be selling those securities to suckers around the world, and it must have known, should have known, surely knew, that Goldman would not be telling those investors that the securities were expected to fail.

If I enter into an agreement that requires the other party to defraud others-that cannot succeed unless others are defrauded- why am I not as liable as the person who actively defrauds? I personally wouldn’t think twice about suing both parties if I had an analogous situation come my way. And yet, according to the SEC:

SEC officials said Friday that Paulson was not charged in the Goldman case because the company did not mislead investors.

No, it simply entered into an agreement that could not succeed unless someone else misled investors. Someone who had explicitly or implicitly promised to do just that.

Perhaps this is some sort of arcane jurisdictional issue at the SEC. Perhaps it only has jurisdiction over individuals that actually and actively make representations to investors. If so, then one can only hope this loophole would be addressed in the financial reform package.

Several publicity hungry attorneys general have filed suit to have the Health Care bill, or portions thereof, declared unconstitutional. They are using the same overheated rhetoric that the Republican Congresspersons and Senators used. To us sane people, particularly us sane lawyers, the idea that this mild mannered health care bill is an “unprecedented expansion of government power” is bewildering. 14th Amendment anyone? Presidential war-making powers? Any of a hundred other examples?

That being said, I have to say that the prospect of success for this lawsuit is fairly good, considering that, if one simply looks at the state of the law today, it totally lacks merit. We no longer live in a country where the judicial system conforms to certain norms. That period in our history ended with Bush v. Gore. It only takes 5 votes to overturn this law, or gut it, and it can be done for the most specious of reasons, no doubt dressed up in language that would lead the ignorant to believe that the result was absolutely compelled by prior case law. There is no reason to think the present court will hesitate to do what it needs to do. Note also that the attorneys general had the ability to forum shop, to file in a district where they will likely get a sympathetic judge, in a circuit where they will get a sympathetic Circuit Court, so that the Supreme Court might be able to strike down portions of the bill while making itself look moderate by narrowing the lower court decisions.

Personally, unless one of the five drops dead soon (tis a consummation …) I give the attorneys general a 50/50 chance of winning. I am writing this now just to be able to say you heard it here first, should it come to pass. I hope I’m wrong, but the fact is that we currently have a lawless court. If they don’t like this bill, and decide they must deliver for their base (Justice Thomas wife just started a group designed to siphon money from the tea party yokels by whipping up their fear and anger), they will find their way clear to sweeping away more than a century of jurisprudence.

It is a sad fact that those things to which we pay the most attention often have the least significance. A case in point is Eric Massa, who will not even rate a footnote in history. At the same time, truly significant developments often go unnoticed. It’s only years later that we realize something has changed, brought about by something that went virtually unnoticed at the time.

This is a case in point, reported by the American Prospect. Back in 2003 Javaid Iqbal, a Pakistani immigrant, was jailed in New York and tortured, before being deported. There is no evidence that he had ever done anything wrong.

The following year, he filed a lawsuit against dozens of U.S. officials, claiming he was declared a “high interest” detainee and placed in ADMAX because of his race, religion, and national origin. Iqbal’s lawyers sought to question former Attorney General John Ashcroft and FBI Director Robert Mueller under oath about their responsibility for the jailing and abuse of detainees in the Brooklyn detention center. But by a 5-4 vote last May, the Supreme Court’s conservative majority rejected the request, quashing a lawsuit that had spent five years climbing through the lower courts. The justices ruled that Iqbal’s lawyers had not made a plausible case that Ashcroft or Mueller was responsible for Iqbal’s mistreatment and barred the lawyers from asking the government to turn over evidence to which only it had access. In doing so, the court used Ashcroft v. Iqbal to rewrite more than a half-century of precedent establishing the hurdles plaintiffs must cross before they can begin discovery — the pre-trial process that requires defendants to hand over internal documents, answer questions under oath, and provide other evidence.

The opinion was so broad that it has become a formidable weapon for corporations and other defendants trying to shield themselves against everything from employment discrimination to product-liability lawsuits. Since the ruling, dozens of cases that might have once proceeded have been thrown out because they don’t meet the Iqbal test.

When John Roberts, and Alito were nominated, attention was focused on their views on so-called social issues, such as abortion, but perceptive observers knew that their real agenda was corporatist. They haven’t touched the abortion decision, and probably don’t care if they do, but they have done yeoman’s work for the corporations to whom they have always given their primary allegiance.

The fact is that it is often the case that we know beyond a moral doubt that something is happening when we lack the legal evidence to prove it. Employment discrimination cases are a great example. If white folks, or men, seem to be getting all the promotions, you might know deep in your gut that something is wrong, but you have to prove it with raw data, and that’s where the discovery process comes in. If you have to prove your case before you start discovery, then many cases will never be commenced. Heretofore, you could commence discovery as long as you alleged facts that stated a cause of action (which the Prospect calls the pleading standard, a term I’ve never heard, though it’s accurate enough); now you have to produce hard evidence in support of the common sense inferences that flow from known facts. It’s those inferences you need discovery to prove, but now you don’t get discovery unless you can prove it to begin with. If, for instance, the New York Times, citing unnamed sources, disclosed that a certain corporation was poisoning your water, you might not be able to sue unless you could name those sources. The Prospect cites just such a case.

The Prospect notes:

Indeed, legal scholars will long debate whether the Roberts court seized on the Iqbal case to change the pleading standard or whether it changed the pleading standard incidentally, in its eagerness to throw out the Iqbal case and protect senior national-security officials from questioning.

I don’t think there’s much debate here. It was a perfect opportunity to make such a ruling, because its real impact would get lost in the smoke that alway surrounds the word “terrorism”. Congress is already bought and paid for, with even worse to come as we enter the era of corporate sponsorship of politicians. Now the courts are being slowly closed to the average citizen, not by direct legislation, but by arcane interpretations of the legal ground rules by which we adjudicate legal disputes.

Meanwhile, the Obama Administration, eschewing the idea that it might be able to do two things at once, has done almost nothing to get its judicial nominees approved, practically guaranteeing right wing judicial dominance into the foreseeable future.

I was only a bit surprised to see that the Obama Defense Department opposed Al Franken’s amendment to forbid government contractors from forcing the victims of sexual assault into arbitration, which is the equivalent of guaranteeing them no redress. The Obama Administration has been better than Bush on civil liberties, but it’s hard to imagine anyone being worse. Here’s the Defense Department’s rationale:

“The Department of Defense, the prime contractor, and higher tier subcontractors may not be in a position to know about such things. Enforcement would be problematic, especially in cases where privity of contract does not exist between parties within the supply chain that supports a contract,” reads the DoD note. “It may be more effective to seek a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse.”

Hate to say it, but this actually makes sense. Here’s the text of Franken’s Amendment:

Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

It does seem that enforcement would be a problem. DOD would be required to inquire into each contractor, and each subcontractor, right down the line. Any subcontractor who violated would trigger non-payment for everyone concerned. It’s a cumbersome way to achieve Franken’s goal.

Maybe the reason it was worded this way was to make it a budget amendment, and thus not subject to filibuster; but that hardly seems likely, since it got 70 votes. Doubtless there’s some arcane reason why Franken chose this approach.

The obvious approach would simply have been to make any such agreement to arbitrate unenforceable if the employee involved was working on any covered government contract. That would make enforcement easy, because it would be unnecessary. All the employee would have to do is prove to the court that he or she was working on a covered contract, and the arbitration clause would bite the dust. (A better approach, but don’t expect it to every happen, would have been to outlaw employee arbitration agreements completely, since they are classic contracts of adhesion.) That appears to be what DOD is suggesting, and I think they’re right.