Category Archives: legal stuff

be not as the hypocrites are

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Well, ain’t this America. Today SCOTUS will hear arguments in one of the stupidest religious rights cases in recent memory. A high school football coach from Bremerton, WA, Joseph Kennedy, insists that at the end of a game he has the right to kneel and say a prayer–with student players gathered around him–on the 50-yard line.

The school told him, “Dude, you can’t do that.” Coach Kennedy said, “Sure I can. I’m a veteran.” The school said, “Seriously, dude, you can’t. It’s a school event. It would be like the school’s endorsing your religion.” Coach said, “I got me the right to religion.” The school said, “Yeah, but not on the school’s dime. Besides, there are players on the team who don’t want to pray with you but feel pressured to do it anyway, and that ain’t right.” Coach said, “I’m being persecuted for being a Christian.” The school sighed and said, “No, you’re not. You can pray quietly all you want, but you can’t make a huge display of it, so just stop.” Coach said, “Nope, not gonna stop.” School said, “Sorry, coach, take a seat, you’re on leave.” Coach said, “I’ll sue.” School said, “Okay.”

And here we are. Every lower court agreed with the school, which was perfectly in keeping with precedent. But now we have TrumpScotus, which has shown little regard for legal precedent. So the coach may actually have a shot at getting approval for his performative aggressive Christianity.

As I’ve said many times before, I’m not a Christian. But I think as religions go, New Testament Christianity has some pretty solid ideas (but I have to say, Old Testament Christianity is pretty fucking scary). The problem isn’t Christianity. The problem is Christians who claim to practice Christianity but don’t. Coach Kennedy, for example. Here’s what the coach says:

“I fought and defended the Constitution, and the thought of leaving the field of battle where the guys just played and having to go and hide my faith because it was uncomfortable to somebody — that’s just not America.”

Dude, that’s totally America. First off, it’s a damned football game–a game, not the field of battle. Second, you don’t have to hide your faith, you just can’t make a public display of it while you’re acting as a representative of the school. Third, why do you want to make some folks uncomfortable? And fourth, the Bible its ownself says you shouldn’t be making a public display of your prayer.

Jesus and Matthew having a quiet chat.

That’s right. First book of the New Testament, Matthew basically tells folks not to be a dick about praying.

And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.

But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

But when ye pray, use not vain repetitions, as the heathen do: for they think that they shall be heard for their much speaking.

Be not ye therefore like unto them: for your Father knoweth what things ye have need of, before ye ask him.

Okay, that’s the King James version. I prefer KJV on account of I like the way it rumbles. But all of the more modern versions say the same thing. Don’t be a hypocrite, pray quietly and privately. If there’s a god (okay, this is me speaking, not Matthew), they’ll hear you even if you’re not on the 50 yard line. Also? It’s shameful that a non-Christian has to remind Christians what the Bible says.

But this isn’t about the Bible. It’s about the law. It’s about the Constitution of the United States. And it’s about how Comrade Trump (with the willing help of the GOP Senate) damaged SCOTUS by seating Justices who casually ignore precedent when they disagree with it. In any ordinary SCOTUS, this case wouldn’t merit an argument; with TrumpSCOTUS, it may actually prevail.

loathsome, feculent

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The good news? Ketanji Brown Jackson will be sitting on the bench of the Supreme Court of the United States. Light the fireworks, cue the herald angels singing, hand out tissues for the tears of joy.

Then remember that loathsome, feculent pillocks like Judge Trevor N. McFadden are also sitting on Federal courts. Before he became a judge, McFadden specialized in defending white collar criminals–including people accused of violating the Foreign Corrupt Practices Act (which prohibits people and businesses from bribing foreign officials) and money laundering. There’s nothing wrong with that; every person accused of a crime deserves to be represented by a good attorney. The problem, of course, is that people and entities who can afford to bribe foreign officials and need to launder money can also afford really good attorneys while people caught shoplifting Oreo cookies generally can’t.

Judge Trevor N. McFadden

But that’s not what makes Judge McFadden a loathsome, feculent pillock. Neither is the fact that he was appointed to the court by Comrade Trump (also a loathsome, feculent pillock). No, what makes him a loathsome, feculent pillock is that as soon as he put his pale ass on the bench, he began doing exactly what Trump expected him to do: protect Trump.

For example, back in 2019 Trump, pissed off because Congress wasn’t giving him the money he wanted to build his stupid wall on the border of Mexico, decided to divert US$6 billion from military construction and from counter-drug operations and piss it away on his stupid wall. Congress sued to stop him. McFadden, being loathsome and feculent, dismissed the suit, saying Congress lacked standing to sue POTUS (although a couple of years earlier, when the GOP controlled Congress and Obama was POTUS, the court agreed Congress DID have standing to sue POTUS…go figure).

Another example: when the House Ways and Means Committee tried to get Trump’s tax returns as part of his first impeachment, McFadden (loathsome and feculent) slow-walked the matter, making it impossible to get the tax information in time to press the impeachment.

But wait, there’s more. When Aleksej Gubarev, a Russian “internet entrepreneur” sued BuzzFeed News for libel after they published his name in connection with the investigation into Comrade Trump’s Russian connections, feculent and loathsome Judge McFadden was assigned to rule on a subpoena seeking information. The defendant asked McFadden to recuse himself, since 1) he was appointed by Trump, 2) he’d donated money to Trump’s 2016 presidential campaign, and 3) he’d been a volunteer on Trump’s presidential transition team. McFadden refused to recuse himself, saying there was no reason “to question my impartiality.”

But wait again, there’s still more. Despite expressing his belief that the January 6th Insurrectionists were being treated more harshly than the rioters in the 2020 Black Lives Matter protests, the loathsome and feculent McFadden has been assigned to some of the cases resulting from the insurrection. Yesterday, McFadden became the only judge to issue an outright acquittal of one of the Insurrectionists. Matthew Martin argued that he believed the Capitol police had allowed him into the Capitol, so didn’t realize he was trespassing. Prosecutors argued that the broken windows and blaring alarms should have given Martin a hint. McFadden said, “I do think the defendant reasonably believed the officers allowed him into the Capitol.”

But wait one more time, because Jesus suffering fuck, there’s still more. One of the Insurrectionists, Jenny Cudd, who was indicted on five federal counts, including one felony, had requested she be allowed to leave the jurisdiction in order to attend a company retreat at a resort in Mexico. McFadden allowed her to go. Cudd eventually entered a plea agreement–she would plead guilty to one misdemeanor (entering and remaining in a restricted building) and the other charges (including the felony count, which was punishable by up to 20 years in prison) would be dropped. The misdemeanor is punishable by a year in jail and a US$5000 fine. Although Cudd has said she was proud of her part in the insurrection, McFadden loathsomely and feculently sentenced her to two months probation.

But lawdy, wait one more fucking time because yeah, there’s more. One condition of Cudd’s probation forbade her to own or possess any “firearm, ammunition, destructive device, or dangerous weapon.” That’s a common probation condition. Today, Judge McFadden (feculent, loathsome) restored Jenny Cudd’s right to possess firearms.

So yes, we should absolutely celebrate soon-to-be Justice Ketanji Brown Jackson. And we should keep celebrating her, because she deserves it and we deserve a celebration too. But let’s not get too starry-eyed; let’s not forget that Comrade Trump (with the help of a loathsome, feculent Republican Congress) installed a metric shit-ton of Judge McFaddens throughout the Federal Court system. And they’ll continue to stink up the judiciary for years.

finally comrade trump is fucked…probably

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For decades, this guy has managed to dodge and delay any sort of accountability for most of the awful things he’s done. He didn’t escape responsibility because he was clever; he did it because he inherited a buttload of money, which allowed him to retain very expensive, highly skilled lawyers and accountants.

Trump’s entire reputation as a deal-maker and businessman was built on his access to those people. He was able to walk into meetings, make demands, then wander off while his legal-financial team worked out the details of the actual deal. Trump would then take credit for his team’s success (or blame them for the deal’s failure). But even the best lawyers and accountants couldn’t prevent Trump from fucking things up.

I mean, he had six (6!) corporate bankruptcies, and each time his lawyers/accountants were able to allow Trump to slide out from under his legitimate debts and remain in business. The guy bankrupted his own casinos, for fuck’s sake. How do you lose money running a casino? He’s been involved in numerous (at least 3500 lawsuits in the past 30 years) contract disputes (mostly for failure to pay his bills), tax cases, defamation claims, and allegations of sexual harassment. And, again, in almost all of those cases his lawyers/accountants protected Trump from serious criminal or financial harm.

But Trump being Trump, he also tended to stiff many of his lawyers out of their fees. Over time, that’s made it harder for him to hire effective counsel. Now, he finds himself scrabbling to find a good lawyer. After well-known litigator Marc Kasowitz withdrew his services last September, Trump engaged lawyer Alina Habba whose office is near his Bedminster, NJ golf club and whose biggest prior client was a parking garage company. (By the way, that doesn’t mean she’s not a good lawyer; it just means top tier lawyers have stopped taking Trump’s calls).

And now his accountants are taking a hike. A few days ago they completely severed their relationship with Trump and the Trump Organization. Looking beyond the delicate legal phrasing, his accountants basically said 1) they believe Trump has been lying about his assets and debts over the last decade, 2) they’ve seen/heard the evidence held by the Attorney General of New York–and they believe it, 3) Trump ought to cowboy up and inform his creditors of all this, and 4) they’re out the door, goodbye, good luck, you’re on your own.

Trump is going to face the same problem with accountants as he has with lawyers. No big hat accounting firm is going to pick up when he calls them. That’s a HUGE problem for him, because he owes a metric shit-ton of cash (at least US$400 million and up to about $1.1 billion) to various banks and lending institutions. He and his organization were able to borrow all that money based on the information Trump had provided to his accountants. Now that his accountants have pissed in his soup, it’s unlikely those banks will refinance his loans. It’s possible some of them will call in their loans.

If that’s not enough, a couple of days ago a NY judge agreed with the Attorney General of NY that Trump (and three of his feral children) must submit themselves for a deposition within 21 days. As always, he’s trying to delay that…and he may succeed for a while. But it’s pretty clear he’ll eventually be testifying under oath in a civil case. That’s a big deal for a couple of reasons. First, because Trump can’t/won’t stop lying. Lying under oath is a crime. I can’t see any situation in which Donald Trump can talk about his finances and not lie. Hell, I can’t imagine a situation in which Trump would talk about anything at all without lying.

Second, probably the only way Trump can avoid lying in a deposition is to invoke his 5th Amendment privilege against self-incrimination. But that will also bite him on the ass. In a criminal case, a jury isn’t allowed to draw any adverse inference about a defendant who takes the 5th Amendment. In a civil case, a jury CAN assume that a defendant who takes the 5th is hiding something.

That’s just his civil legal problems. Trump is also facing a variety of criminal charges in at least two jurisdictions.

There’s a tsunami of trouble coming for Comrade Trump, and the legal breakwater that’s protected him for so long has eroded. The guy is fucked. He’s fucked. Totally and comprehensively fucked.

Probably.

voting rights — how fucked are we?

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Yesterday I was…let’s call it challenged…for not being sufficiently outraged by the Republican assault on voting rights. A Facebook friend suggested I wasn’t taking the threat of voter suppression seriously enough, that I didn’t fully comprehend the severity of the issue, that I was naive. Why? Because I disagreed with this:

Will Joe have the cajones to install voting rights / election law changes even if it takes declaring Martial Law?

I’m not convinced that the willingness to invoke extraordinary military power to seize control of a civil election is a valid metric of my commitment to voting rights. I mean, the US military is brilliant at blowing shit up and killing people, and they’re really great at responding to humanitarian disasters. But martial law isn’t a remedy for our voting rights problems. It’s not the answer for any number of reasons, beginning with 1) the president doesn’t have any Constitutional power to substitute military authority for civilian control of the US election system, and moving through 2) the reality that no election could be considered valid if one candidate is the Commander-in-Chief of the military and the military is in charge of the election process, and ending with 3) an authoritarian act committed with good intentions by a POTUS I agree with is STILL an authoritarian act–and no authoritarian government in history has remained benevolent.

Martial law is just fucked up. I like Uncle Joe Biden, but he’s no Abe Lincoln. Look at what happened to Lincoln after he imposed martial law in some border states during the Civil War. Not only did SCOTUS spank him for violating the Constitution, but his military commanders became so accustomed to ruling without civilian interference that when Lincoln realized he’d made a mistake and tried to unwind martial law, his generals were reluctant–even actively resistant–to giving up their authority. It was so bad that Lincoln, a few months before he was assassinated, had to send General John Pope with another army to dismantle the martial law system.

Still, the fact remains that representative democracy in the US is in danger. It’s threatened by the Republican slide into authoritarianism and their concentrated assault on voting rights. It’s important to ask what’s being done to save democracy. What can be done about preserving our voting rights?

Ideally, the Senate would pass the pair of voting rights bills that have already passed in the House–the For the People Act and the John Lewis Voting Rights Act. The former is as dead as Dickens’ door-nail because of the Manchin and the Sinema issues (which are two totally different though equally fucked up issues). The latter, however, has support from Manchin (as well as at least one Republican–Lisa Murkowski), so it’s still a possibility.

The John Lewis bill basically restores the power to the Department of Justice that SCOTUS stripped away in the Shelby County v. Holder decision. It would require DOJ pre-clearance before states can change voting laws involving redistricting, voter ID requirements, changes to precinct locations, changes to early-voting access, or changes to how voter rolls are purged. It wouldn’t end gerrymandering, but it would seriously limit it. The John Lewis Act wouldn’t heal our wounds, but it would help stop the bleeding.

IF the John Lewis Act is passed, then it’s all up to Merrick Garland.

“Help us, Obi-wan, you’re our only hope.”

I fucking hate to trust government officials. Even the ones I like. I don’t entirely trust them because there’s always other shit going on. And let’s face it, every government official I’ve ever counted on has, in some way, let me down. And it’s always for the same reason (that ‘other shit going on’ I mentioned a moment ago). Merrick Garland, as the US Attorney General has SO MUCH other shit going on that you’d need an abacus the size of the St. Louis Gateway Arch to keep count of them. I mean, in addition to voting rights, he’s also got the matter of possibly prosecuting the former president to deal with. That’s a full plate, right there.

But in his speech last week, AG Garland said he was doubling the size of the staff of the Civil Rights Division “within the next thirty days.” They’re the folks who’d handle the voting rights cases. So that’s…promising? Even without John Lewis, a doubling of the staff suggests the DOJ is serious about voting rights.

So that, in my opinion, is where we are. Hovering in the null zone between Totally Fucked and Semi-Fucked. We will almost certainly remain Fucked In Some Fashion so long as the GOP continues to hold fast to authoritarianism and SCOTUS continues to be held hostage by unqualified conservative hacks. The degree to which we’re Fucked will depend a lot on the future of our voting rights.

accountability, not vengeance

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Let’s talk about Kimberly Potter, the Minnesota police officer who was recently convicted of manslaughter. This case has been badly reported in the news media; it’s both more simple and more complex than the news reports.

Potter, who’d been a police officer for 26 years, was acting as a Field Training Officer at the time. Here’s a true thing about training: the stuff you learn in a classroom doesn’t always translate well in real life. I’ve done OJT (on the job training) as a medic, as a counselor in the Psych/Security unit of a prison for women, and as a criminal defense investigator. You can learn initial treatment of a traumatic amputation in a classroom, you can practice on an actor wearing a moulage, but it’s not the same as being confronted with a screaming, bleeding, panicked person who’s just had his arm torn off. You can teach somebody various interview techniques, but it’s not the same as finding a witness in a bar and trying to get them to talk to you. Real life is a lot weirder and slipperier. The only way to really learn to do a job is to do the job.

Potter was a passenger in the police squad car driven by her trainee. While they were on patrol, he saw a white 2011 Buick signal a right turn while it was in a left turning lane. He also noticed the vehicle’s registration tag on the licence plate was expired. There was also an air freshener hanging from the car’s rear view mirror, which technically could be considered an obstruction which might impair the driver’s vision. The news media focused almost exclusively on the air freshener, but the reality is that there were legal justifications for stopping the vehicle.

To be clear, they were all bullshit justifications–they’re the sort of things police officers often use to stop black/minority drivers. But, again, the only way to really learn to do a job is to do the job. Even if it was a bullshit justification, it was a legit teaching opportunity–a way for Potter to see how her trainee would handle a real life traffic stop. And also again, real life is a lot weirder and slipperier.

They stopped the car, did the usual “License and registration, please” business. This is what they learned: 1) Daunte Wright, the driver, didn’t have a driver’s license, 2) the car wasn’t registered to him or the woman passenger, 3) there was no proof-of-insurance, 4) a records check showed there was an open arrest warrant on Wright for failing to appear in court on weapons violation, 5) and a protective order had been filed against him by an unnamed woman. Even though it was a bullshit traffic stop, Potter and her trainee had probable cause to arrest Wright. In fact, until they determined whether or not the woman passenger Potter was the same woman who had the protective order against him, they’d have been negligent not to arrest him.

So they did. And then it all got weird and slippery. Wright decided to escape. In her 26 years as a police officer, Potter had never used either her pistol or her taser. When Wright broke away and got back in the car, she drew her pistol instead of her taser. Instead of tasing him, she shot and killed him.

Potter was just doing her job. But had what’s known in tort law as ‘a duty of care’. She had a legal obligation requiring her to adhere to a standard of reasonable care while performing any act that could foreseeably harm others. She had an obligation to know whether she was holding a pistol or a taser. And even though she clearly didn’t intend to kill Daunte Wright, he’s still dead. And Potter had to be held accountable for that.

This is exactly how the justice system should work. This is how it should work for every officer-involved incident. It’s about accountability, not revenge. It’s about a professional being held to a standard of behavior.

If a surgeon makes a mistake during an appendectomy, they have to be accountable for that. If the pilot of a commercial fishing vessel misjudges their speed and crashes the ship into a marina dock, they have to be accountable. If a bartender serves a clearly intoxicated person and that person dies in a traffic accident (or kills somebody else in a traffic accident), they have to be accountable. If a landscaper accidentally kills your lawn, they have to be accountable. And if a police officer kills a person in the line of duty–even if it’s unintentional–they have to be held accountable.

Kimberly Potter was almost certainly a good, solid police officer. She made a terrible mistake and Daunte Wright died as a result. It doesn’t matter that Wright was complicit in his own death, she remains responsible and accountable. I hope she gets a relatively light sentence, but at the heel of the hunt, she has to be accountable for it.

It’s about accountability, not vengeance.

This also applies to presidents.

you can’t trust the soup

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Today the Supreme Court of the United States begins its new term — and it’s going to be a goatfuck rodeo. We’re talking abortion rights, gun rights, religious rights. To make matters worse, these cases are all coming at a moment when the reputation of SCOTUS as an independent apolitical institution is at its lowest point in history.

And the justices on the Court — particularly the conservative majority — know it. They’ve spent the last couple of months making a preemptive attempt to repair the Court’s reputation. Last Thursday, Justice Samuel Alito gave a speech defending the Court’s refusal to act on the new Texas abortion law. He claimed that the tsunami of criticism faced by the Court was, in effect, an effort “to intimidate the court or damage it as an independent institution.”

A month ago, Justice Clarence Thomas gave a speech in which he stated the Court doesn’t base decisions on their personal feelings or religious beliefs. He warned that the people who criticize the Court risked “destroying our institutions because they don’t give us what we want when we want it.”

A week or so before Thomas’ speech, Justice Amy Coney Barrett gave a speech claiming any divisions on the Court were a result of differing judicial philosophies, not partisan motivations. She said, “[T]his court is not comprised of a bunch of partisan hacks.”

Four Supreme Court Justices and five Partisan Hacks

When three of the most conservative judges on the most conservative Supreme Court in modern history all feel compelled to defend the Court against claims of being driven by partisan political ideology rather than by the law, you’re almost forced to quote William Fucking Shakespeare. The Court doth protest too much, methinks.

(Okay, sorry, short tangent…wait, two short tangents. First, I’ve come to despise that archaic term, methinks. A lot of people use it in a way that sounds ironic, but it usually comes across as cute. Cute and irony go together like corn flakes and okra. Second, for some reason, people who quote that line tend to put ‘methinks’ at the beginning. That’s not how Shakespeare wrote it. At least quote it accurately, people.)

In Hamlet, that line is delivered in response to a play that takes place within the play itself (look, it’s Shakespeare, everything is complicated in Shakespeare). Queen Gertrude is commenting on an actor’s performance; she’s basically saying the actor’s declarations of love and fidelity are too excessive to be believed.

That applies to the speeches made by these three judges. Their declarations of independence and political objectivity are too excessive to be believed. Alito, Thomas, and Coney Barrett can claim SCOTUS is an independent institution not comprised of partisan hacks who act on personal religious beliefs or political ideology — but nobody believes them. Because that’s exactly what they are, and that’s exactly why the GOP put them on the goddamned bench. Uh…in my opinion.

Tuscan soup — it looks good, doesn’t it.

Here’s an analogy: if a chef secretly poured an ounce of urine into six quarts of Tuscan soup and served it to you, you’d eat it. You wouldn’t be able to taste the urine, and it wouldn’t do you any harm to eat it. But if you SAW the chef pour an ounce of urine into the soup, you wouldn’t eat it. Wouldn’t matter if you couldn’t taste it, or that it wouldn’t harm you, you’d push the bowl away. Not only that, you wouldn’t trust that chef to cook for you again.

We all SAW Trump and the GOP Senate pee in the SCOTUS soup. Doesn’t matter if the conservatives on the Court tell us there’s nothing in the soup that can harm us, there’s no way we’re going to trust that soup.

EDITORIAL NOTE: Yes, we ‘eat’ soup. The reason we don’t ‘drink’ it is because many (maybe most, I don’t know) soups have solids in them that require chewing. Eating involves chewing and swallowing; drinking is swallowing without chewing. So stop fretting about it.

until proven guilty

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I’m afraid I’ve pissed off a friend. Well, it would be more accurate that I’ve further pissed off a friend who was already pissed off. They were already pissed off because former Minneapolis police officer Derek Chauvin–who, of course, is charged with the murder of George Floyd–has asked the court to 1) delay the trial and 2) reconsider an earlier change-of-venue motion. I further pissed them off by saying both requests were reasonable.

I was asked How can you defend the cop who murdered George Floyd? My friend either forgot or was unaware that I’d once made a living helping to defend people accused of all manner of awful crimes. For seven years or so, I was a private investigator specializing in criminal defense. Murder, rape, arson, child abuse, animal abuse, pick an awful crime and there’s a good chance I’ve helped defend somebody accused of it. Almost all of them were factually guilty; almost all of them had actually committed the crimes of which they were accused.

I could truthfully argue that I wasn’t actually defending the accused criminals; I was defending the US Constitution, which guarantees everybody the right to a fair trial. I could truthfully argue I was actually defending civil liberties. Because the ONLY way to insure the innocent get the full protection of the law is by forcing the State to prove their case beyond a reasonable doubt within the strictures of the law–and forcing them to prove it every single time. That means defending the guilty as vigorously as the innocent.

Derek Chauvin, police officer

But here’s the thing: it’s going to be incredibly difficult–maybe impossible–for Derek Chauvin to get a fair trial. It’s going to be incredibly difficult–maybe impossible–to find 14 jurors (twelve jurors plus two alternates) who will be willing and able to put aside everything they ‘know’ about the case and decide on a verdict based solely on the evidence and the law.

Most of the people I know are dead certain Chauvin is guilty–that he murdered George Floyd. There are other folks who are certain he caused Floyd’s death, but aren’t certain about Chauvin’s intent (which matters in a murder case)–maybe Chauvin was reckless, maybe he was indifferent, maybe he was just negligent. There are folks who think Floyd was somehow complicit in his own death–that he wouldn’t have died if he’d made better decisions. And there are folks who think Floyd’s life just doesn’t matter–that Black lives don’t matter. Very few folks are capable of putting their thoughts and beliefs aside long enough to focus purely on the evidence.

That pool of potentially impartial jurors HAD to decrease when the city of Minneapolis announced it had reached a US$27 million civil settlement with the Floyd family. I suspect a lot of potentially impartial jurors heard that and thought, There’s no way the city would cough up that much cash unless they knew they were responsible for killing that man.

Derek Chauvin, criminal defendant

So yes, I think there are legit reasons for delaying the trial. And yes, I think there are legit reasons to hold the trial in a different jurisdiction–one that hadn’t gone through weeks or months of protests, demonstrations, and riots as a result of Floyd’s death. I think the requests are legit because–and this will also piss off some/most folks–right now Derek Chauvin is innocent. Every defendant walks into a criminal court as an innocent person; the State has to prove they’re guilty. That’s the core principle of our justice system. Innocent until proven guilty. It has to apply to Chauvin, just like it applies to any accused criminal.

That said, I hope the State does its job; I hope they’ve followed the law and legally obtained enough forensic evidence to convince a jury to convict. I hope the defense team does their job; I hope they hold the State to the letter of the law and force them to prove their case. And I hope the court does its job; I hope the court abides by the letter and spirit of the law to insure Chauvin gets a fair trial.

Years ago, when I was doing criminal defense work, there was a bailiff at the Strafford County Courthouse–a former Sheriff’s Deputy who’d been injured in the line of duty and had a bum leg. While I was waiting to testify in some trial, he told me this: “I’m a great believer in mercy; but justice just keeps happening.” I agree with him about mercy; I’m not convinced justice happens as often he believed. But I hold out hope that it will.

EDITORIAL NOTE: One of the problems with being involved in the criminal justice system, even from a defense perspective, is the tendency to focus on specific issues rather than the broad system itself. I was asked a question about delaying and moving Chauvin’s trial, and I addressed that question–and only that question.

I wasn’t addressing the criminal justice system itself, but yes lawdy, it is wildly fucked up. And I didn’t address the obvious irony that the legal protections that are–and should be–afforded to Derek Chauvin were denied BY Derek Chauvin to George Floyd. Almost every criminal trial is about protecting the rights of people who refused to recognize the rights of their victims.

the looming repeachment

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Comrade Trump has a new legal team. Another new legal team. A new new legal team. His original impeachment team declined to represent him in his repeachment, so he had to find a new legal team. Over the weekend, his new legal team walked away from him, which makes them his old new legal team. His new new legal team will probably defend him in his repeachment trial. I say ‘probably’ because this is Trump and who the hell knows?

The new new team revolves around two lawyers, David Schoen and Bruce Castor. These guys are taking a metric ton of shit about their previous clients and legal decisions. Castor, for example, was the prosecutor who initially chose NOT to prosecute Bill Cosby for drugging women and raping them. And Schoen? He represented Jeffrey Epstein, among others. He’s been quoted as saying the following:

“I represented all sorts of reputed mobster figures: alleged head of Russian mafia in this country, Israeli mafia and two Italian bosses, as well a guy the government claimed was the biggest mafioso in the world.”

Me, I don’t have a problem with that. In the US every accused criminal has the right to defend themselves, and every defense lawyer has an obligation to defend their client to best of their ability. The fact that Trump’s new lawyers worked with some other nasty folks doesn’t bother me at all. It’s the least interesting aspect of the looming repeachment.

I like the sound of that. The looming impeachment. [Okay, tangent: loom as a verb is entirely unrelated to loom as a noun. A loom, of course, is a weaving machine, and the term originates from the Old English geloma, meaning a utensil or tool. An heirloom is a crafted thing bequeathed to one’s heirs. Nobody is quite certain how loom as a verb meaning ‘to be imminent, especially in some menacing or threatening way’ came into being. Some folks think it’s from the East Frisian lomen, which meant “to move slowly” and was probably related to the way ships move in a harbor. Which is appropriate, since Trump’s repeachment is slowly coming to the dock — and lawdy, there’s another etymological rabbit hole.]

Comrade Trump, did you order the Code Red?

Anyway, what I find interesting about the repeachment is how Trump’s defense is being framed. Trump, it seems, wants his lawyers to focus on the same thing the rioters and insurrectionists focused on — the ridiculous claim that the election was stolen from him by fraud. That would require Trump’s lawyers to present a case based on lies, which would get them soundly spanked by the American Bar Association. Instead, Trump’s lawyers apparently want to challenge the constitutionality of the repeachment, claiming that it’s unconstitutional to impeach a president who’s no longer president. Most constitutional scholars describe that strategy as “a load of stinking bullshit.”

Steve Bannon, Trump’s recently-pardoned former adviser, has been suggesting Trump should lead the defense team himself. It’ll never happen, but lawdy, there’s part of me that would love to see that, because there’d be a really good chance of a Colonel Jessup / A Few Good Men moment. “You can’t handle the truth! We live in a world that has walls, and those walls have to be guarded by men with guns!”

But no, that’s not going to happen. Still, what’s interesting is that neither defense approach really addresses the crime with which Trump is charged: incitement of insurrection. The sole article of impeachment accuses Trump of engaging “in high Crimes and Misdemeanors by inciting violence against the Government of the United States.” Claiming “the election was stolen from me” may speak to Trump’s motives, but it isn’t a defense against inciting violence against the government. Claiming it’s unconstitutional to impeach a former president isn’t a defense against inciting violence against the government either; it’s just an argument saying the Senate isn’t legally authorized to rule on Trump’s behavior since he’s no longer in government.

On February 9th Democrats are going to say, “Trump incited a riot.” Trump wants his defense team to argue, “The election was stolen from him; he was just trying to get it back.” His lawyers want to argue, “Y’all aren’t authorized to decide whether or not he incited a riot.” It appears nobody will be arguing, “No, Trump didn’t incite no riot.”

“Yeah, I incited a riot. And I grabbed women by the pussy, cheated on my taxes, and gave intel to Russia. What’re you gonna do about it?”

That’s because Trump did, in fact, incite a riot. To be clear, he hasn’t actually been charged with the federal crime of inciting a riot. I’m not a lawyer, but I suspect you could make a case that Trump violated 18 U.S. Code § 2101 in that he 1) traveled interstate, 2) told his supporters the election had been ‘stolen’ from him…and from them, 3) encouraged them to travel to DC, 4) on a specific date, where 5) he told them they had to “fight like hell” to stop Congress from ratifying the Electoral College results, and then 6) told them to walk to the Capitol building.

He may not have specifically told them to riot, or to break into the Capitol building, or to harm anybody, but he created the conditions that inflamed the crowd, then he pointed them in the direction of the Capitol, and told them to fight like hell. Which they did.

Of course, that doesn’t mean Republicans in the Senate will vote to find Trump guilty. They’ll probably never find him guilty of anything. Republicans have proven themselves to be invulnerable to evidence.