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An Astonishingly Asinine Prosecution

| 35 Comments
PowerLine brings us the story of what is probably the most stupid federal prosecution I ever heard of.  Its account starts:

A U.S. District Court in California has declared 75-year-old veteran Robert Rosebrock not guilty of violating federal law in a prosecution for allegedly displaying two four-by-six inch American flags above a Veterans Affairs fence on Memorial Day 2016. Rosebrock had been charged with hanging the two napkin-sized American flags on a section of the fence adjacent to the entrance to the VA facility in violation of a VA regulation prohibiting the displaying of "placards" or posting "materials" on VA property without authorization. 

This mind-blowing episode is not a case for allowing the judicial branch to intrude into charging decisions.  It is, however, a case for hiring Assistant United States Attorneys with an IQ above 60.

35 Comments

I attribute this to government abuse rather than IQ. I suspect the AUSA knew the case was BS.

We have (had) a highly politicized Justice Department and a Federal bureaucracy that believes the people have no right to question them and will punish you for it.

They know that 99% of the people will not risk their sanity and financial well-being by hiring attorneys and fighting such a charge for years Even if you win, the financial cost is devastating. It is how they make sheeple.

I think there is much to what you say. The VA officer who made the arrest also has to take a share of the blame. Why didn't the officer tell the old guy, "Sorry, the rules say you can't hang these right here, but there's another place for them. Let me show you. Perhaps you would allow me to help you hang them there, which I would be proud to do given your service to our country. Did you see combat? Where?"

And right there, you know this is going to end well rather than poorly.

My guess is that there is a board-up-your-you-know-what culture at that VA facility. Apparently this is how a number of them behave. Kind of like flying United.


And certainly the AUSA had to know better than to waste taxpayer time and money with something this trivial, even if the old man turns out to have been nasty and uncooperative.


Violent crime is spiking; drug overdoses are spiking; gang activity is way up. Had I been a supervisor in that Office, I would have pulled aside the AUSA and told him, "This case is silly, you're probably going to lose it and look bad in the process, and it's not going to do much for your reputation with the bench to be taking it even if you win. So we're going to let this one go."

You do have to wonder where that AUSA's supervisor was.

P.S. The old man was represented pro pono by a public interest group.

From what I have read, the defendant had been engaging in this trivial conduct (attaching small American flags to the VA fence) for years as a way of protesting VA policy.

I suspect that the decision to prosecute this case was not made by the AUSA. I suspect that a higher up in the VA convinced a higher up in the USA Office (perhaps the USA for the central district) to prosecute this case given the long-standing nuisance the defendant had been.

I have personally witnessed these type of prosecutions: A defendant poses a trivial problem to law enforcement. But the problem has continued for a long time, won't go away, and is a persistent an unending drain on law enforcement. In my experience, the local police chief will contact a higher up in the prosecutor's office and convince him/her to charge the defendant despite the trivial nature of the offense.

I do agree, however, that prosecuting cases such as this undermines arguments that serious crime is exploding (in LA or California, as the case may be) -- if the government has the time and resources to prosecute such trivial conduct, why should the taxpayers give them more money to fight the alleged explosion of serious crime enveloping the city and state?

Bill, will an AUSA ever face any kind of professional sanction for bringing what you call "the most stupid federal prosecution"?

Do you think an AUSA should?

I doubt the AUSA will or should face any sanction beyond having the First Assistant come in and talk to him somewhat impatiently about the meaning of J-U-D-G-M-E-N-T.

This is not a case of dishonesty or bad faith. It's a case of not having a much of a clue of what your job is about.

A case like this is its own punishment, when it gets around the office that you brought this thing and got laughed out of -- get this -- Magistrate's court.

P.S. What sanction should the AUSA face who went along with defense counsel's flagrantly false claim that a long-time thug and drug pusher, Wendell Callahan, was not a danger to the community?

Good points, but you just cannot make a federal prosecution out of something like this. Federal prosecution is for serious stuff.

If I'm the US Attorney and I get the call, my answer to the Chief would be, "I think there might be a better way to solve this. Next time he shows up, invite him in to your office, give him some kind of certificate of thanks for his service, take him on a tour of the facility, then sit down with him for ten minutes to solicit his suggestions for policy changes. Right now you have an annoying adversary; turn him into a friend. I just don't have the brass to tell any of my Assistants he has to do a "case" like this. That's not they bargained for when they signed up."

I have never been a prosecutor, Bill, so I am disinclined to opine on when/how prosecutors should be face sanctions for doing their jobs poorly. That is why I asked you.

So I will ask you in this other context you raise: What professional sanction do you, Bill, think should the AUSA face who failed to object to Wendell Callahan retroactively receiving a FSA-reduced sentence?

More broadly, do you really think prosecutors should be held professionally accountable for high rates of recidivism given that, in so many cases, they could presumably push harder and harder for longer and longer sentences (though, I know, the ACLU says that is already taking place)? Is it really your view --- and is it really more of a conservative or a liberal view --- that the government and its officials should bear primary responsibility for the actions of individuals?

"I have never been a prosecutor, Bill, so I am disinclined to opine on when/how prosecutors should be face sanctions for doing their jobs poorly."

I don't think you need to be a prosecutor to have an informed opinion about that, any more than you need to be a judge to have an informed opinion about how this week's SCOTUS cases should turn out.

"So I will ask you in this other context you raise: What professional sanction do you, Bill, think should the AUSA face who failed to object to Wendell Callahan retroactively receiving a FSA-reduced sentence?"

I think he should be fired and should face a grand jury investigation for abetting defense counsel's (as it turned out, lethal) fraud on the court.

What do you think should happen to the dishonest defense lawyer? A few honorary banquets for his zealousness?

"More broadly, do you really think prosecutors should be held professionally accountable for high rates of recidivism given that, in so many cases, they could presumably push harder and harder for longer and longer sentences..."

No. And I think the question is frivolous, as do you.

"Is it really your view --- and is it really more of a conservative or a liberal view --- that the government and its officials should bear primary responsibility for the actions of individuals?"

No to that thinly disguised straw man as well. Unlike your pals from the ACLU, I understand that the person who has primary responsibility for crime is the person who commits it. This is why I'm at odds with what so often appears on your blog, which consists of more and more creative ways to blame anyone but the criminal.

P.S. Callahan should be executed, no? Multiple murder, child murder, long, violent criminal record -- is that enough?

Seems like in the Callahan case you are eager to blame the prosecutor and defense attorney, Bill. A grand jury investigation for fraud? Really? Is there any evidence of any fake documents being created or factual lies put before the Court?

I share your sense that Callahan is a good subject for capital prosecution. Will you write to the new SD Ohio US Attorney and urge as much? Do you think federal prosecution is justified and warranted in this case?

"Seems like in the Callahan case you are eager to blame the prosecutor and defense attorney, Bill."

Yes I am. Eager, that is, to blame them for what they did, and eager to blame Callahan for what he did.

"A grand jury investigation for fraud? Really?"

Yup. The grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." United States v. Morton Salt Co., 338 U. S. 632, 642-643 (1950).


"Is there any evidence of any fake documents being created or factual lies put before the Court?"

Yes. Defense counsel's submissions argued that Callahan was not a danger to the community, one of the key findings under the FSA. This was flat-out false, and Callahan's history of beating up women proved it was false.

"I share your sense that Callahan is a good subject for capital prosecution. Will you write to the new SD Ohio US Attorney and urge as much?"

Nope. The drug dealing was within federal jurisdiction. The murders aren't.

"Do you think federal prosecution is justified and warranted in this case?"

I see no basis for it. But the case is an excellent illustration of why the great state of Ohio is well-advised to keep, and use, the death penalty.

Do you think, Bill, that defense counsel genuinely and affirmatively believed Callahan WAS a danger to the community and yet nevertheless lied to say he thought that he was not? Is it your contention that the AUSA likewise genuinely and affirmatively believed Callahan WAS a danger to the community and yet nevertheless stayed silent when the defense suggested otherwise?

Gosh knows many folks on the left believe and assert that prosecutors affirmatively lie to or perniciously mislead judges every day. And, if often seems to me that hindsight bias often fuels these contentions. I am inclined you are falling into a similar tendency here, Bill, unless you have some firm basis for asserting, other than subsequent events, that lawyers were actively defrauding the court when considering his FSA motion for a reduced sentence.

"Do you think, Bill, that defense counsel genuinely and affirmatively believed Callahan WAS a danger to the community and yet nevertheless lied to say he thought that he was not?"

That would be an excellent question for the grand jury to ask. Oh, wait, you don't want a grand jury.

"Is it your contention that the AUSA likewise genuinely and affirmatively believed Callahan WAS a danger to the community and yet nevertheless stayed silent when the defense suggested otherwise?"

You're up to your old tricks of putting words in my mouth by the ancient rhetorical device of, "Is it your contention..."

If I have a contention to make, I'll make it. You won't have to ask. Do I strike you as shy?

I'll humor your question nonetheless. The most likely thing is that the AUSA was too lazy to investigate Callahan's past, and/or fecklessly trusted the defense lawyer's claims. It could also be the case that the AUSA was under implicit political pressure not to look too carefully at these defense motions, which the Obama Administration favored (and when they didn't get enough of them, just used commutations to expand the FSA in ways they couldn't get through Congress).

One way or the other, here are the facts: The defense claimed that Callahan was not a danger; this was flagrantly false based on Callahan's past; Callahan won release in significant part on the basis of that falsehood; and while out on early release, sliced to death two little girls and their mother.

If you're waiting for me to look the other way, or just accept that sort of disgusting and lethal deceit, you'll be waiting a long time. And I wish you would show some of the same disgust, rather than take the side of the members of our profession whose dishonesty paved the way for these murders.

Do you think it's mere happenstance that lawyers have such an abysmal reputation for their "ethics"?

Bill, I think being ethical includes not accusing other lawyers of criminal fraud for doing their jobs absent any evidence of genuinely fraudulent behavior. No one is urging you to "look the other way," but I worry about the notion of a CRIMINAL investigation of lawyers/officials who, thanks to hindsight, appear to have made a mistake in criminal justice case processing that allowed a bad person to do something bad.

Should there be a criminal investigation of lawyers involved in the initial case processing of a repeat drunk driver who kills --- which, sadly, takes place a few thousand times a year? Should there be a criminal investigation of every police officer who helps an overdosing opioid addict who later has a fatal overdose --- which, sadly, is now taking place maybe tens of thousands of times a year?

My concern, candidly, is that the left will surely seek to "weaponize" criminal investigation of criminal justice case processing if/when any hindsight-established mistake can become to basis for criminal prosecution. I surmise you did not think much of all the Freddy Gray prosecutions, but that was a great example of hindsight-based claims of lethal mistake turning into costly and controversial prosecutions. Surely after allegations of execution problems in Arkansas last night, folks on the left could (and perhaps you think should) ask for a grand jury to investigate and criminal problems in representations made by Arkansas lawyer to get the execution moving forward. Surely after any and every signficant exoneration --- and we are over 2000 (http://www.law.umich.edu/special/exoneration/Pages/about.aspx) --- there could be calls for criminal investigations of prosecutors. And on and on.

For the record, I am disgusted by many aspects of the Callahan case. But, given our system's commitment to an adversarial system and the lack of evidence you have provided of affirmative dishonesty/fraud rather than wishful mistaken predictions of the future, I remain disinclined to blame the lawyers here for a tragedy that was more individual (Callahan) and systemic (a problematic expectation/hope that prison and prison only might help Callahan become a different type of individual).

Douglas stated: "Bill, I think being ethical includes not accusing other lawyers of criminal fraud for doing their jobs absent any evidence of genuinely fraudulent behavior. No one is urging you to "look the other way," but I worry about the notion of a CRIMINAL investigation of lawyers/officials who, thanks to hindsight, appear to have made a mistake in criminal justice case processing that allowed a bad person to do something bad."

The rest of us are often judged on the concept of "reasonable person." Why not attorneys?

And let's not confuse the issues. We are not talking about an 18 year old kid with no past record who committed a crime and the attorney and prosecutor were engaging in "wishful predictions of the future." Callahan is a guy who committed a crime and the attorney put forth the blatantly false claim that Callahan was no danger to the community when he had a history of violence against women.

Would a "reasonable person" believe that a women beating crack dealer poses no threat to the community?

You stated: "Should there be a criminal investigation of lawyers involved in the initial case processing of a repeat drunk driver who kills --- which, sadly, takes place a few thousand times a year?"

Of course, and I suspect you know this, your scenario is not even close to being analogous.

Did the lawyers, say during sentencing or some early release request, claim that the drunk driver had no past DWIs or a past of alcohol abuse when he has been in rehab three times and it is his fourth DWI? Again, would a "reasonable person" believe someone with such a record was no risk?

Your error, or one of them, is in claiming that my suggestion for a grand jury investigation is made only in hindsight. Wrongo. Look at the original Columbus Dispatch story: http://www.dispatch.com/content/stories/local/2016/01/12/0112-3-stabbed-to-death-on-north-side.html

You will see that, for one thing, Callahan had a 2006 police record for a violent assault. The paper reports that, "Hammonds and Callahan had a history going back more than ten years." and that While Callahan's FEDERAL CASE WAS PENDING, Hammonds reported that Callahan "had beaten and choked her so severely" that she thought her life was in danger.

My original entry about the Callahan case contains a link to the story so you can see it for yourself, http://www.crimeandconsequences.com/crimblog/2016/01/the-end-for-sentencing-reform.html

Now that you know that Callahan had a violent history going back a decade, and with at least the same person he killed on early release, are you still of the view that no inquiry should be made into whether defense counsel, who had represented Callahan before, committed fraud on court when he made the FACTUAL ASSERTION that Callahan presented no danger to the community?

The assertion was completely false. The chances that the lawyer, then a public defender well-regarded for his diligence, didn't know it was false are miniscule. And the chances the AUSA had no duty to research it before acquiescing are zero.

The fact that empty allegations of misconduct can be (and are) made against lawyers in no way, shape or form suggests that there is not the occasional one backed up by substantial evidence, and this is such a case.

Thanks for the link, Bill.

Here are fuller quotes about Callahan's history.

"In a Columbus police report from 2006, taken while Callahan’s federal case was pending, Hammonds said that he had beaten and choked her so severely that she thought he “would have killed her if (a) good Samaritan didn’t pass by.”"

"Prior to his U.S. District Court case, Callahan was convicted in connection with a nonfatal shooting in 1999 and another drug case."

I ask again, Douglas, would a reasonable person make the claim that the man with the above record is no danger to the community? If not, why should attorneys be held to a lower standard than the rest of us?

Have either of you seen the defense filing that you both seem to be suggesting is criminally fraudulent? If there was evidence that the filing hid Callahan's criminal past, I could see a basis for alleging criminal fraud. But here is what the Dispatch article says about the filing:

"In a 2011 motion for Callahan’s last reduction, Callahan’s attorney said federal prosecutors agreed that Callahan’s good behavior in prison and other factors led both sides 'to conclude that his early release did not present a danger to the safety of the public'.”

Hindsight tells us that this "conclusion" reached by "both sides" about Callahan's future danger to the public was lethally wrong. (That is the hindsight I am talking about, Bill.) But criminal fraud requires an intentional/knowing deception. Again, if there were efforts to hide from the court relevant evidence about Callahan's history, I see the argument. But a poor prediction by a zealous advocate is not what I think is meant by the crime of fraud.

And Tarls, I am fine with judging lawyers by a "reasonable lawyer" standard. And reasonable lawyers are not allowed to make fraudulent/false representations to a court. But reasonable lawyers are expected --- indeed, professionally obligated --- to make the strongest possible arguments for their clients. Here it seems the lawyer convince himself and the prosecutor and the judge that Callahan's good behavior in prison made him no longer a threat. Again, that was obviously wrong. But if it were so obviously unreasonable, why did the prosecutor and judge accept the argument?

I said, "reasonable person." Please stay on topic.

Would the average "reasonable" person off the street consider a crack dealer who strangled his girlfriend to near death and shot another in a separate crime "no danger to the community?"

It's pretty much a yes or no question.

It is simply not the case that defense counsel's statement needed to conceal anything to be a fraud on the court. It need only be the case that it was knowingly false. I'm quite sure you know this, so all the stuff about "concealment" is a smokescreen.

We know that the "Callahan-presents-no-danger-to-the-public" assertion was false. The only remaining question is whether it was knowingly false.

The answer to that question lies in Callahan's long, documented, violent past -- the same violent past Tarlsqtr and I discussed but you white out. But the chances that Callahan's lawyer didn't know about it are next to zero (something I noted before and you don't contest).

That the government agreed to this falsehood does not make defense counsel's mendacity different or better; it makes the government's honesty and/or diligence worse.

As the quotation you put forward plainly states, the submission to the court authored by defense counsel has one and only one (literal) bottom line: that Callahan's "early release did not present a danger to the safety of the public'."

No one familiar with Callahan's record when he was actually living "among the public" could possibly have believed that proposition. We know that it was flagrantly false based, not on what Callahan MIGHT DO, but on the long record of what he HAD DONE.

As to why the prosecutor and the judge accepted this false assertion, I don't know for sure, nor does it make any difference to DEFENSE COUNSEL'S moral and legal culpability. But if a point be made of it, I've suggested the likely answers to that question: The AUSA was simply too lazy or too trusting, and/or felt pressured to go along in order to bend to the political winds coming out of DOJ.

Finally, I must note the irony of the man who relentlessly says we should get more data and "seek more facts" opposing the most effective means of doing so, to wit, a grand jury investigation.

My goodness. If all this is so innocent, what's there to hide?

I do not resist investigation into this matter at all, Bill, as I would love to see a fulsome review of Callahan's (1) initial 2006 sentencing, (2) 2008 sentence reduction, and (3) 2011 sentence reduction. I would also like to know more about his purported good behavior in prison, as well as the particulars of the case processing of prior violent crimes of strangling and shooting. I think there are many lessons to learn here, and I hope folks will work to improve the system based on this horrible case.

What I do resist is the notion that there should be a CRIMINAL investigation into a defense attorney for doing his job serving as a zealous advocate for his client unless/until there is a basis to conclude he concealed facts or made a false representation about the past rather than a poor (client-serving) prediction concerning the future.

The points you both make would support, it seems, an investigation focused on the AUSA and the judge if it was so plainly obvious in 2008 and 2011 that Callahan would be a future danger. The defense attorney here was duty-bound to make the best possible non-frivolous argument that Callahan should get a sentence reduction. But the AUSA was duty bound to serve the public interest in what was supposed to be an adversarial process and the judge was duty bound to consider all the relevant evidence in making a sentencing determination. You seem eager to blame the defense attorney for doing his job while excusing the AUSA for being "simply too lazy or too trusting." That is not how an adversarial system is supposed to work, and I do think it scary to imagine CRIMINAL grand jury investigations of every attorney who turns out to be too good of an advocate while his adversary is asleep at the switch.

Again, if investigation shows that the defense attorney actively hid what Callahan "HAD DONE," we have fraud. But if that violent past was in the record AND the defense simply advocated a focus instead on good behavior in prison, that is not fraud, it is advocacy. And the AUSA's job --- ESPECIALLY IF THE RECORD WAS SO CLEAR so that any "reasonable person" would see the danger in 2008 and/or 2011 --- was to provide the court with a different view of the record evidence. And the judge's job was to "judge" that evidence.

Let's see then if we can end/agree along the lines of the start of this post with its focus on poor work by a federal prosecutor: would you both agree that DOJ should conduct a public investigation of why/how the AUSA in the Callahan case in 2011 (and perhaps also in 2008) failed to oppose Callahan's early release motion?

Please understand, I am not seeking a criminal investigation of this AUSA or even asserting wrongdoing before knowing more of the particulars. But I am suggesting that, if it seems so painfully obvious that Callahan was a threat to the public, then you should be eager to know a lot more about how the AUSA here managed --- seemingly twice --- to ignore public safety in the name of politics or some other force.

You note Bill, "why the prosecutor and the judge accepted this false assertion, I don't know for sure." Let's find this out first, no, before seeking to criminally prosecute a defense attorney for his advocacy? I get that you deeply dislike many of the representations that get made by defense attorneys in the name of zealous advocacy, and you have every right to criticize on policy grounds how defense attorney's conduct themselves. But urging CRIMINAL investigation into advocacy seems different in kind to me. But, then again, I often see and fear big government in the criminal justice arena before it seems you do.

Doug,

I've never seen a person write so much and still not answer a question that requires a one word answer.

Sorry, Tarls, forgot to answer. Your question was: "Would the average 'reasonable' person off the street consider a crack dealer who strangled his girlfriend to near death and shot another in a separate crime 'no danger to the community'?"

My answer is: "no"

But I hope you and/or Bill will acknowledge the critical follow-up this answer highlights. We know why Callahan's defense lawyer argued, based on his good behavior, that he should get a sentence reduction. That lawyer was duty bound to make the best possible argument on his client's behalf. But why did the prosecutor and judge not foresee Callahan's danger?

Do you have any answers to that question? Doesn't that question merit investigation rather than the convening of a criminal proceeding against the defense attorney for doing his job?

Lying is still lying even when it's called "advocacy."

Or do you think lying is justified in the name of advocacy?

And it wasn't a prediction. It was a (purported) statement of fact. "I predict my client will not be a danger to the public" or "I think in the future my client will not be a danger to the public" is a prediction. "My client is not a danger to the public" is a (purported) statement of fact.

I don't know why the prosecutor went along with it. My guess is that he was lazy. Perhaps he was bought off. But whatever it was, he should be fired (not gushingly praised, as you praise the mendacious defense lawyer), and both of them should be subject to a grand jury investigation -- which may or may not find probable cause to believe that a crime was committed but which has the power of oath-administration and coercive contempt so it can do a better job of finding out.

I also don't know why the judge went along with it, but I strongly suspect it was for the same reasons as the prosecutor. Either way, he should have the decency to step down from the bench, but don't count on it.

We hear all kinds of stuff about how black lives should matter, but these black lives didn't matter and they still don't. So far as I have seen any evidence, none of the three -- the judge or the two disgusting lawyers -- has expressed even slight regret.

This is the one honest thing they've done, however. They don't express regret because they have none.

If you have evidence to the contrary, I'd be happy to see it. Do you?

Thanks for your answer, Doug.

Now a follow up. If I was engaged in a fight on the street and I shot the other person with the defense that I feared for my life, the question of whether a reasonable person would have feared for his life and done the same thing would have been asked. In fact, my guilt or innocence would very likely rest at least partially on that question.

Apparently, this attorney said "Callahan is no threat to society" when you admit any reasonable person would see it differently. Why should a lawyer get a free pass from having to live up to a reasonable person standard?

As far as the prosecutor and judge, I have no issue holding them to the same legal standard as long as it cannot be shown that their error was due to negligence or laziness rather than outright dishonesty.

You stated: "That lawyer was duty bound to make the best possible argument on his client's behalf."

Are you claiming that this is a limitless duty? In other words, the lawyer can make ANY CLAIM HE WANTS with no regard for the truth because a lie is necessary for the "best possible argument?"

If so, our system is worse off than I thought.

Now, I suspect you want to have your cake and eat it too. You want the lawyer to be able to lie while mouthing platitudes "OF COURSE you are not supposed to lie!"

Well, that is exactly what the lawyer did. He lied, and you as much as admit it unless you are surprisingly making the case that he is not a "reasonable person."

My understanding of what the 2011 Callahan motion for sentence reduction said, based on the press report linked above, was that Callahan behaved well in prison which led the defense attorney AND prosecutor "to conclude that his early release did not present a danger to the safety of the public.”

Though obviously wrong in hindsight, this statement does not strike me as a "lie" unless/until there is evidence that the defense attorney AND prosecutor in fact subjectively concluded his early release did present a danger to the safety of the public. (In other words, this was a prediction, not a statement of fact, by both the prosecutor and defense attorney.)

I am struggling with the claim of "outright dishonesty" when what it seems you both are saying is that is SHOULD HAVE BEEN obvious to everyone that Callahan was a danger. Fine to reach that clear conclusion in hindsight, but TWICE in 2008 and 2011 when Callahan got sentence reductions, everyone who looked at the case files reached a different view. Is the whole system so corrupt that everyone involved was lying TWICE? Or, is the fairer statement that everyone engaged in "wishful thinking" because it was easier to grant sentence reductions than deny them. That kind of wishful thinking and the system that produces it is, in my view, a very fair subject for criticism and goes far beyond this ugly case. But to chalk this case up to lying by the prosecutor and defense attorney seems to me both misguided and facile.

Of course, you are free to call lawyers "disgusting" or "bought off" or any variation of the adjectives that David Behar likes to use for all lawyers, but to accuse them of lying requires some evidence that they subjectively believed one thing and represented the opposite. That is not what the record reveals, at least based on what I have seen.

Bill, who I know has sway in the Trump Administration, is welcome/able to take his calls for a grand jury investigation to people who could make this happen. Perhaps he already has. But I would worry about the future of a well-functioning adversarial system if/when a lawyer/government actor is going to be criminally investigated if and whenever a criminal/client later does wrong. I worry not only because I imagine that police and prosecutors and other govt agents will come under attack for unavoidable mistakes while trying to do their jobs much more than will defense attorneys (see, e.g., DeShaney), but also because it would perpetuate the statist notion that the big loving government is responsible for all harms and protections therefrom.

Douglas,

I go back to a variant of my original question. Would a reasonable person make a decision about someone being safe to release into the community based ONLY on his actions when he is monitored 24/7 in a prison setting?

It was not a mere accident that the lawyer used ONLY Callahan's prison behavior as the rationale. He used it because the facts of Callahan's behavior prior to prison made his claim of "no threat to the community" look foolish. It may be good lawyering, but it is also a lie.

Doug obviously knows the difference between Callahan's presenting no danger IN PRISON, and his supposedly presenting no danger IN THE COMMUNITY, which was the whole question presented by his sentence reduction motions.

But it's inconvenient to get into that, so it gets skipped over. It's also inconvenient to answer whether lying is OK when its labeled as "advocacy," so that too gets skipped over.

Likewise, it's convenient to just blandly repeat over and over that a present tense statement of fact (Callahan "presents on danger to the public") as merely a "prediction" or "wishful thinking" about the future.

Doug is doing much the same fancy dance here that the defense lawyer did then to spring the throat slitter. The difference, I think, is that Doug would have a conscience about it. Despite my asking, however, he has produced no evidence that the judge or either lawyer whose slickness paved the way for this triple murder gives two hoots in hell.

Bill, thanks for not closing the thread here --- as you have now twice elsewhere when I am challenging your seemingly more extreme assertions like the Pope is a liar and Justice Breyer must be recused because of his interpretation of the Constitution. Perhaps you think I deserve the "Berkeley -- Ann Coulter" treatment, but I hope I do not offend you here in a way that requires censorship. (And I am sorry if others offend you, but I do not hold you responsible for what Tarls says in this forum, and I do not bless what others say in my open comment forum. Rather, unlike the lefties in Berkeley, I see value in letting everyone speak their mind and then hope accountability can and will run only to the speaker, not to the host who simply wants to promote free speech.)

On the topic here, I am now surmising that you both seem to be advocating here for more of an inquisitorial European-style criminal justice system in which all the lawyers are civil servants making public-oriented decisions rather than client-focused decisions. A lot of folks on the left (and the previously mentioned Justice Breyer) might very well join you in a call for a more inquisitorial European-style criminal justice system, and within such a system I think it would be much more appropriate to criticize a lawyer for being too eager to view/portray facts in a way that was client-focused, not public focused.

But, recalling the final paragraphs of Justice Scalia's opinion in Blakely, I remain of the belief that the Framers gave us an adversarial system of justice, not an inquisitorial one, and within that system the lawyers are bound to make the best possible arguments on behalf of their clients. With the benefit of hindsight, many of those arguments can and will look misguided and misleading. But, absent known facts to the contrary, calling a lawyer's representation a lie does not seem like a healthy and useful way to advance an important conversation about a tragic case.

Maybe my real concern here is semantic and a broader one that is also triggered by Bill's eagerness to also call the Pope a liar: I do not think it helpful to brand everyone you disagree with a liar --- just like I do not think it helpful to brand everyone you disagree with a racist or a fascist or whatever other epitaph seems to produce a satisfying sting.

That said, if the name-calling --- of defense lawyers, of the Pope --- make you feel better and is the kind of catharsis one seeks in these turbulent times, go for it. And, as I suggested above, if Bill really thinks the prosecutor and defense attorney here should be subject to grand jury investigation, I hope he will urge the Trump Administration to take this matter up.

One of your aspects of genius as an Internet debater is that you move on to new accusations while just taking a pass on unanswered questions from past inquiries.

Before falling for this again -- as I often do
-- I'm going to repeat the questions you're avoiding and see if I can get answers.

-- Do you know the difference between Callahan's presenting no danger in the highly structured setting of PRISON, and his supposedly presenting no danger IN THE COMMUNITY, which was the only question presented by his sentence reduction motions?

-- Wasn't that difference crucial in his lawyer's "advocacy" for his early release into the community?

-- Do you think there's any realistic possibility his lawyer didn't know that difference?

-- Is making false statements OK when it's labeled "advocacy?"

-- Is intentionally misleading the court without directly lying acceptable "advocacy?"

-- Why, other than avoidance, do you insist on characterizing defense counsel's present-tense statement of fact (Callahan "presents no danger to the public") as merely a "prediction" or "wishful thinking" about the future?

-- Can you cite any evidence that the judge or either the defense lawyer or the AUSA has even slight regret that their dishonesty/sleaziness/laziness paved the way for child murder? Where is it?

N.B. Just for the present record: The problem is not that I brand as liars people and organizations that aggressively make statements they know are false. The problem is that they aggressively make statements they know are false.

P.S. Unlike Berkeley, a public university, C&C is private property, and sets and enforces its own rules for participation. An increasing number of blogs disallow ANY comments because of the gutter-level rudeness and/or intentional deceit of commenters. Kent has said that he hopes not to have to follow that course here.

HERE ARE MY ANSWERS IN ALL CAPS:

-- Do you know the difference between Callahan's presenting no danger in the highly structured setting of PRISON, and his supposedly presenting no danger IN THE COMMUNITY, which was the only question presented by his sentence reduction motions?

YES I KNOW THE DIFFERENCE, AS I SUSPECT DID ALL THE FOLKS INVOLVED IN TWO DISTINCT DECISIONS TO REDUCE CALLAHAN'S SENTENCE. THEY JUST WISHED THAT HIS GOOD BEHAVIOR IN PRISON MEANT HE WOULD BE WELL BEHAVED IN THE COMMUNITY. THEY WERE LETHALLY WRONG.

-- Wasn't that difference crucial in his lawyer's "advocacy" for his early release into the community?

I AM NOT SURE WHAT YOU EXPECT A DEFENSE LAWYER IN THIS SITUATION TO DO WHEN APPOINTED TO REPRESENT CALLAHAN. WAS THE DEFENSE LAWYER HERE SUPPOSED TO REFUSE TO SEEK A SENTENCE REDUCTION BECAUSE WE COULD NOT BE SURE GOOD BEHAVIOR IN PRISON WOULD MEAN GOOD BEHAVIOR IN THE COMMUNITY?

-- Do you think there's any realistic possibility his lawyer didn't know that difference?

I AM SURE ALL INVOLVED KNEW THE DIFFERENCE, BUT FEDERAL JUDGES AND STATE PAROLE OFFICIALS REGULARLY GIVES SENTENCE REDUCTION BASED ON GOOD BEHAVIOR IN PRISON EVEN THOUGH ALL KNOW THAT SOME (MANY? MOST?) OFFENDERS CANNOT BEHAVE AS WELL ON THE OUTSIDE AS THEY DO ON THE INSIDE. (INDEED, THE SRA INCLUDES A 15% SENTENCE REDUCTION BASED ON GOOD BEHAVIOR IN PRISON THAT IS NEAR AUTOMATIC.)


-- Is making false statements OK when it's labeled "advocacy?"

KNOWINGLY FALSE STATEMENTS ARE NEVER OK, BUT CLIENT-SERVING REPRESENTATIONS ABOUT THE FUTURE (IF REASONABLY BELIEVED) ARE WHAT CIVIL AND CRIMINAL LAWYERS DO EVERY SINGLE DAY IN COURTROOMS AROUND THE NATION.

-- Is intentionally misleading the court without directly lying acceptable "advocacy?"

INTENTIONALLY MISLEADING STATEMENTS ARE NEVER OK, BUT CLIENT-SERVING REPRESENTATIONS ABOUT THE FUTURE (IF BELIEVED) ARE WHAT CIVIL AND CRIMINAL LAWYERS DO EVERY SINGLE DAY IN COURTROOMS AROUND THE NATION.


-- Why, other than avoidance, do you insist on characterizing defense counsel's present-tense statement of fact (Callahan "presents no danger to the public") as merely a "prediction" or "wishful thinking" about the future?

BECAUSE IN CONTEXT, THAT IS WHAT THE STATEMENT OBVIOUS IS --- REALIZE CALLAHAN WAS NOT GOING TO GET OUT FOR ANOTHER FEW YEARS EVEN IF GIVEN THE 2011 REDUCTION. THERE IS NO OTHER WAY TO SENSIBLY UNDERSTAND THE STATEMENT OR THE PROSECUTOR'S AGREEMENT WITH THE STATEMENT. I SURMISE YOU WOULD RATHER LABEL THIS STATEMENT A LIE AND BELIEVE IT JUSTIFIES A CRIMINAL INVESTIGATION. IF YOU FEEL STRONG ENOUGH AND HAVE ENOUGH PULL, PERHAPS SUCH A FEDERAL CRIMINAL INVESTIGATION OF ALL THE INVOLVED INDIVIDUALS WILL TAKE PLACE. (I just saw an article from the Guardian about DAs in NOLA bringing charges against defense attorneys and their investigators, so perhaps what you are suggesting here is not unprecedented: https://www.theguardian.com/us-news/2017/may/01/prosecuted-law-new-orleans)

-- Can you cite any evidence that the judge or either the defense lawyer or the AUSA has even slight regret that their dishonesty/sleaziness/laziness paved the way for child murder? Where is it?

NOPE, THOUGH I HAVE NO REASON TO THINK THESE FOLKS ARE VILE PEOPLE WITHOUT REGRETS FOR THE HORROR CALLAHAN PRODUCED. WHAT WOULD YOU LIKE TO SEE THEM DO? QUIT THEIR JOBS? WHAT DID YOU DO IN THE WAKE OF ANY PROFESSIONAL DECISIONS YOU REGRETTED TO SHOW YOUR REGRET[OR PERHAPS THERE WERE NONE]?

Thank you for your answers. I think I'm obliged now to be as direct as you were.

-- YES I KNOW THE DIFFERENCE, AS I SUSPECT DID ALL THE FOLKS INVOLVED IN TWO DISTINCT DECISIONS TO REDUCE CALLAHAN'S SENTENCE. THEY JUST WISHED THAT HIS GOOD BEHAVIOR IN PRISON MEANT HE WOULD BE WELL BEHAVED IN THE COMMUNITY. THEY WERE LETHALLY WRONG.

Wishing is not how responsible adults act in important matters. And when Mr. X's wishing creates dreadful risks, Mr. X should be the one to bear them, not little children.

-- I AM NOT SURE WHAT YOU EXPECT A DEFENSE LAWYER IN THIS SITUATION TO DO WHEN APPOINTED TO REPRESENT CALLAHAN. WAS THE DEFENSE LAWYER HERE SUPPOSED TO REFUSE TO SEEK A SENTENCE REDUCTION BECAUSE WE COULD NOT BE SURE GOOD BEHAVIOR IN PRISON WOULD MEAN GOOD BEHAVIOR IN THE COMMUNITY?

No, they were supposed to say the same thing you just did: That they HOPED Callahan's good behavior in prison would mean good behavior in the community. But after that, as honest men and officers of the court, they also needed to say, "But the truth is that his behavior in the community has been poor."

I expect lawyers to behave the same way you expect your 12 year-old to behave: To tell the truth even when it hurts, indeed especially when it hurts. I simply do not know how, otherwise, it's possible to live an honest life.

-- I AM SURE ALL INVOLVED KNEW THE DIFFERENCE, BUT FEDERAL JUDGES AND STATE PAROLE OFFICIALS REGULARLY GIVES SENTENCE REDUCTION BASED ON GOOD BEHAVIOR IN PRISON EVEN THOUGH ALL KNOW THAT SOME (MANY? MOST?) OFFENDERS CANNOT BEHAVE AS WELL ON THE OUTSIDE AS THEY DO ON THE INSIDE. (INDEED, THE SRA INCLUDES A 15% SENTENCE REDUCTION BASED ON GOOD BEHAVIOR IN PRISON THAT IS NEAR AUTOMATIC.)

To give sentencing credit on the basis of a factor of unknown (at best) probative value is just plain nuts. It doesn't make any difference how often it's done or who does it. As you often say, we should get actual data before we act, not afterwards. As commenter mjs has told us, behavior in the highly structured environment of prison tells us next to nothing about behavior in free society.

-- INTENTIONALLY MISLEADING STATEMENTS ARE NEVER OK, BUT CLIENT-SERVING REPRESENTATIONS ABOUT THE FUTURE (IF BELIEVED) ARE WHAT CIVIL AND CRIMINAL LAWYERS DO EVERY SINGLE DAY IN COURTROOMS AROUND THE NATION.

The problem is that the key statement -- that Callahan "does not present a danger to the public" -- was about Callahan's present state, not the future. That's why the statement was in the present tense. And it wasn't true, as all the participants could not have helped knowing based on Callahan's well documented record of violence.

-- BECAUSE IN CONTEXT, THAT IS WHAT THE STATEMENT OBVIOUS IS --- REALIZE CALLAHAN WAS NOT GOING TO GET OUT FOR ANOTHER FEW YEARS EVEN IF GIVEN THE 2011 REDUCTION. THERE IS NO OTHER WAY TO SENSIBLY UNDERSTAND THE STATEMENT OR THE PROSECUTOR'S AGREEMENT WITH THE STATEMENT.

I think the prosecutor agreed with the statement because he didn't care if it was true or not, expected (realistically) that no one would hold him to account if it were false, and knew that DOJ wanted these motions made and granted.

-- I SURMISE YOU WOULD RATHER LABEL THIS STATEMENT A LIE AND BELIEVE IT JUSTIFIES A CRIMINAL INVESTIGATION. IF YOU FEEL STRONG ENOUGH AND HAVE ENOUGH PULL, PERHAPS SUCH A FEDERAL CRIMINAL INVESTIGATION OF ALL THE INVOLVED INDIVIDUALS WILL TAKE PLACE.

A lot of stuff I would like to see happened is not going to happen. I think a false statement made with either knowledge of its falsity or reckless disregard for the whether it's false or not is indeed a lie. And I think what, in other contexts (and perhaps, after a time, this one) you think as well: That AUSA's wield great power and should be responsible. If the AUSA were taking money from the cash drawer, he should be accountable for that, too. This was vastly more serious than petty theft.

-- NOPE [I HAVE NO EVIDENCE THAT THE LAWYERS OR THE JUDGE HAVE EVEN SLIGHT REGRET THAT THAT THEIR DISHONESTY/SLEAZINESS/LAZINESS PAVED THE WAY FOR CHILD MURDEER], THOUGH I HAVE NO REASON TO THINK THESE FOLKS ARE VILE PEOPLE WITHOUT REGRETS FOR THE HORROR CALLAHAN PRODUCED. WHAT WOULD YOU LIKE TO SEE THEM DO? QUIT THEIR JOBS? WHAT DID YOU DO IN THE WAKE OF ANY PROFESSIONAL DECISIONS YOU REGRETTED TO SHOW YOUR REGRET[OR PERHAPS THERE WERE NONE]?

Yes, I would like to see them out of their jobs. That they have expressed no regret anyone can find is telling, and awful.

What is the matter with these people?

As to your last question: I once missed a deadline for filing a motion. No one knew about it except me and the defense lawyer (who was a gentleman about it and called me before he made any motion in response). I reported myself to the First Assistant US Attorney and fined myself $250, which I more-or-less made up, having no precedent to follow. And that was the end of that.

**************************

I will give you the last word if you want it. This thread is very interesting to me, but blog shelf life is about three days and 20 comments, and we're beyond that. I think we're likely just talking to each other at this point, which is fine with me, but not really the purpose of C&C. So, after you have the opportunity for the last word, I think I'll move on, although I'm sure the Callahan case will come up in the future.

Again, I appreciate your direct answers. The question of honesty in the legal profession is of great but underplayed importance.

I am also happy to move on, though I have a few final thoughts to round out this useful conversation in large part because I share your affinity for honesty/candor in the legal profession, the legal academy and elsewhere.

1. Because I hold honesty in high regard, I also view the label "liar" as a particularly strong criticism and one that I wish to attach only to intentional/knowing misstatements and not just to recklessness with truth. We greatly distinguish reckless and intentional behaviors in all sorts of other settings, and I think we should here, too.

2. Our commitment to an adversarial justice system unavoidably creates pressure on adversaries to "push the envelop" of honesty, and everyone working in our system should be honest about that systemic reality. Perhaps the inquisitorial justice systems of central Europe create a different and better culture of honesty, but I have never worked in those systems, so I do not know. I do know that Callahan's lawyer and every other defense lawyer feels duty bound to paint their client in the very best possible light even when they realize they are doing quite the "paint job." (And, in our capitalist system, the lawyers who can do this "paint job" the best for well-healed clients can/will get very rich. That capitalist reality, in my experience, further contributes to the "push the envelop" pressures in our legal system.)

3. Because our adversarial system creates pressure on adversaries to "push the envelop" of honesty, I respect and welcome your efforts and the efforts of others to champion the importance of honesty in the legal profession. However, I still think it dangerous to imagine criminal prosecutions/investigations based on relatively routine claims/representations in legal filings absent any evidence of intent to deceive.

4. This conversation reminds me of why I continue to be drawn to the notion that Bill Clinton bears unique responsibility for the sorry state of honesty in the White House and throughout the US circa 2017. There is in my mind a direct line between Slick Willie escaping any real consequences for so many of his lies from the Oval Office and the current Prez feeling as though he can say just about anything he wants without any serious concern about whether what he says is true. And I do think it fair to assert and complain that it is hard to expect regular folks to be concerned about honesty when their leaders do not seem to be.

1) You, I suspect intentionally, leave a loophole into your definition of "lie" that I could drive a tractor trailer through. If our children used the same logic, we would punish them.

Imagine if you asked your child in the middle of a hot spell if the dog is OK outside with enough food and water. He replies, the dog is all set and will be fine and you go on your way to work. You later find out that he never checked the food and water, and the dog was ill with dehydration.

Any reasonable person would say the kid "lied" even though he did not KNOW the dog would become ill. By your logic, he did not lie. Such a line of thought is a road to perdition for society.

2) A paint job is admitting the client's past actions and putting them in the best possible light. For example, my client has done some atrocious things but is mitigated by being abused as a child (assuming he has), etc. Lying is pretending his actions never happened. That is what Callahan's lawyer did.

3) Lawyers get paid really good money to not "push the envelope" beyond the actual truth. If they cannot handle it, they should find a new profession.

4) Personally, I consider Bill Clinton a symptom of the problem. We have replaced God with law. We used to refrain from certain actions because they were immoral and because of positive peer pressure, the social price one would pay for acting in ways counter to a higher power. We have removed God and the law stepped in (also why the sheer number of laws has skyrocketed). Instead of refraining from something because it is immoral, we now don't do it because it is illegal but seek out any legal loophole we can. It has gotten to the point that not being convicted of something means what someone did must have been OK (eg. Clinton, Hillary).

1. If the child genuinely thinks the dog is "all set" but did not check, saying the dog is "all set" is not a lie. A lie is a knowing misstatement of fact, not a failure to affirm facts or even indifference to the facts. The child in your scenario may be fairly criticized and punished --- but not fairly criticized and punished for being a liar if he genuinely thinks the dog is "all set" and states his genuine belief.

2. If Callahan's lawyer said he had never before hurt anyone (and knew this was false), then the lawyer would be a liar. But if Callahan's lawyer said even though he hurt people before going to prison, he has been well behaved in prison and on that basis is no longer a danger to the public --- and if Callahan's lawyer believed this --- then he is not a liar.

3. I agree lawyers do not get paid to lie and should not practice law as an excuse to lie. But the "actual truth" concerning many persons in prison is that, as Bill lots to emphasize, there is a significant risk of recidivism. Indeed, data suggests imprisonment may make a person a greater danger to the public. Does this "actual truth" mean that no defense lawyer can ever reasonably advocate that a client can be safely released from prison? Again, absent evidence that a lawyer has made a knowing misstatement of fact, I am disinclined to call that lawyer a liar and especially disinclined to subject him to a criminal investigation.

4. Who is the "we" in the "we have replaced God with law"? My sense is that the US has God much more involved in private and public life than does most of Europe/Asia and yet our crime rates and lies by leaders are seemingly much higher. (And, of course, many in the middle east use God as an excuse to do a lot that seems quite immoral to me.) I share your sense that we have turned the law into a kind of moral backstop to our collective detriment, but I think having leaders who set a much better moral example could and would help matters somewhat.

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