Recently in Notorious Cases Category

Each time we have one of these horrific mass shootings, many people shake their heads and ask, "What on earth could make somebody want to do something like this?"  In most cases, the perpetrator is dead and did not plan to survive the attack.  This time we have a living perpetrator, so perhaps we will learn more.

I suspect that a strong desire to be in the headlines is part of the motivation.  Too many young people place too much emphasis on being "famous" and have lost the distinction between being famous and being infamous.  There is even a television series titled, "Murder Made Me Famous."

In December 1941, President Roosevelt famously declared that the 7th was "a day that will live in infamy."  He didn't say "fame," and everyone knew the difference.  The perpetrators would go down in history, but as villains, and that was universally regarded as a bad outcome for them.
Larry Nasser, the one-time physician for the USA Women's Gymnastic Team, spent years sexually abusing young girls.  He had at least 150 victims.  He recently got 40 to 175 years in prison, all of it earned.

The judge's behavior at Nassar's sentencing, however, was another reminder of why jurists should be bound by rules and not by taste.  My friend Paul Mirengoff at Powerline explains it with his typical surgical clarity:


[T]the judge, Rosemary Aquilina, meted out the sentence in a disturbing, over-the-top performance. She couldn't stop talking about herself. We heard about her family, her dogs, her ethnic background (Maltese and German, in case you were wondering), her military service, her soccer coaching. We heard boasting: "I'm not vulnerable, not to you," "I am well trained," "I know exactly what to do," "I've done my homework, I always do," "I look at myself as Lady Justice." On the other hand, "I'm not special" and "I'm not nice." And "I don't have many friends."

The judge couldn't stop saying "I." To an excessive degree, this was about her. "It is my honor and privilege to sentence you," she declared

Judge Aquilina signaled her virtue by assuring us she believes in rehabilitation. She found, however, that Nasser is beyond rehabilitation.
Larry Blandino of O'Fallon, Missouri has this letter to the editor of the St. Louis Post-Dispatch:

Regarding the editorial "Clemons folds" (Dec. 20):

Now that Reginald Clemons has finally admitted his guilt in the 1991 rape and murder of Julie and Robin Kerry, I think a sincere apology should be forthcoming from the ACLU, Amnesty International, actor Danny Glover and anyone else who claimed the innocence of Clemons. Because of their arrogance, the pro-Clemons advocates prolonged the pain of the surviving family members. How shameful.

It takes strength to admit to one's folly. It takes empathy to issue a sincere apology. I hope the pro-Clemons supporters can swallow their pride and discover these admirable traits very quickly. Perhaps, the old Chain of Rocks Bridge can be viewed not as a bridge too far, but as a bridge that can somehow lead to the start of family and community healing.
See Wednesday's post on this case for the background.

Yet Another Cause Célèbre Really Did It

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The tent has finally folded on the Reginald Clemons circus.  As with so many other poster boys for the anti-death-penalty crowd, he is indeed guilty.  Robert Patrick and Joel Currier report for the St. Louis Post-Dispatch:

Reginald Clemons, who was sentenced to death for the 1991 killings of two sisters at the Old Chain of Rocks Bridge before his conviction was overturned in 2015, pleaded guilty to murder and other charges Monday in exchange for multiple sentences of life in prison.

Clemons, 46, pleaded guilty to five counts in all: two counts of second-degree murder, two counts of rape and one count of first-degree robbery.

Clemons admitted that he and three others met Julie Kerry, 20, and Robin Kerry, 19, and their cousin on the closed bridge late on the night of April 4, 1991.

They robbed the cousin, Thomas Cummins, of cash and a watch, Assistant Attorney General Gregory Goodwin said in court. They then raped the Kerry sisters, forced all three through a manhole and onto the substructure of the bridge and pushed the Kerrys off, he said. They forced Cummins to jump from the bridge at gunpoint, Goodwin said, but Cummins survived.
Special Counsels, and Independent Counsels before them, were created because the Nixon era showed us that the public cannot attain the high degree of confidence in investigations of powerful officials, particularly the President, that is needed to entrust those investigations to the Justice Department.  DOJ's highest officers are, of course, themselves politically appointed, and thus accountable, in a potentially unwholesome way, to the man in the Oval Office.

The question has now been raised whether this tradeoff  --  an increase in independence bought at the price of a decrease in political accountability  --  has its own problems.  The answer is:  Sure it does.  Tradeoffs always do.  This is why they're called tradeoffs rather than windfalls.

The Special Counsel tradeoff is an important question that has not received sufficient discussion, cf. Justice Scalia's dissent in Morrison v. Olson. But another question has surfaced as well, one we should have expected:  Whether, in avoiding a political slant in one direction, the appointment of a Special Counsel has a natural momentum to create a slant in the other.  That question is usefully explored in this morning's USA Today op-ed.

Preview:  The op-ed's answer is "yes."  I agree, but would suggest a remedy different from the one proposed.

Client Uber Alles a/k/a Women Have It Coming

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The criminal defense bar continues to amaze.

Readers will recall Brock Turner's submission at sentencing  --  the letter that called his defilement of a defenseless (because drunk) woman "20 minutes of action." 

Not content with the scandalously low sentence he received after this "argument," he has appealed his conviction:

In his appeal, Turner argued that contrary to what Deputy District Attorney Alaleh Kianerci repeatedly told jurors, the sexual assault happened near a three-sided trash bin, but not behind it, according to the Mercury News. Saying the assault happened behind the dumpster is "prejudicial" and implied that Turner was trying to hide what he was doing.

Not mentioned in counsel's appeal is that little Brock attempted to run away when spotted.

In response to the anticipated question of "What do you expect the defense to do?" my answer is, "Develop a sense of decency."  But perhaps the more realistic answer, given the Almighty Fee, is, "This is the attitude we should expect from the same bunch who write non-disclosure agreements to silence the women their clients have raped."

Anyone still wondering why lawyers have the reputation they do?

"Travel Ban 3.0" Injunction Stayed

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From the U.S. Supreme Court in Trump v. Hawaii, No. 17A550:

The application for a stay presented to Justice Kennedy and by him referred to the Court is granted, and the District Court's October 20, 2017 order granting a preliminary injunction is stayed pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch.

Justice Ginsburg and Justice Sotomayor would deny the application.
Essentially the same order was entered in the Fourth Circuit case, 17A560.

Note that, unlike "Travel Ban 2.0," the stay is not selective.  The preliminary injunctions are stayed in their entirety.
Max Greenwood reports for The Hill:

A federal warrant has been issued for the arrest of a Mexican immigrant acquitted Thursday evening of murder charges in the 2015 killing of Kate Steinle.

Steinle's death has been taken up by opponents of so-called sanctuary cities. They argue that stricter immigration enforcement would have kept Jose Ines Garcia Zarate, who is residing in the U.S. illegally and was deported five separate times before the 2015 shooting, off the streets.

The arrest warrant unsealed in the Western District of Texas by the Justice Department on Friday accuses Zarate of violating his supervised release.

Given his record, once he is safely in federal custody he can surely be charged with federal weapons violations which can put him away for a long time.
Another shooting, this one from a remote area of Northern California.  Jim Schultz reports for the Record Searchlight in Redding.

Five people are dead, including the suspect, in a mass shooting at and around a school some 15 miles southwest of Red Bluff, where at least another 10 people have been hospitalized -- some of them children.
*      *      *
The Rancho Tehama Reserve -- a subdivision home to about 1,485 people -- is described on its website as a "quiet private country community" located 12 miles west of Interstate 5 between Red Bluff and Corning. The community is a place "where people are friendly and the pace is relaxed," the website reads.
*      *      *
Resident Brian Flint said he got a call in the morning that his roommate was injured and that his truck had been stolen. It turned out his neighbor was the gunman, Flint said.

"The crazy thing is that the neighbor has been shooting a lot of bullets lately, hundreds of rounds, large magazines," Flint said. "We made it aware that this guy is crazy and he's been threatening us."

Living near the gunman was "hell," Flint said, and the man was a known felon who often harassed him and his neighbors.

If the as-yet-unidentified man was a known felon and neighbors notified law enforcement that he was armed, shooting hundreds of rounds, and threatening people, why wasn't he in jail?  It is much too early to point fingers, of course, but this is a question that needs answering.

Update:  Fox News reports that the murderer was Kevin Neal, who was free on bail after stabbing his neighbor last January.  Since then neighbors had reported several times to police that he had been firing guns in his yard.  The day before the shooting rampage, police had responded to his home on a domestic violence call.  Domestic violence is not considered a serious crime under California's Realignment.  In a different state, It is likely that he would have been in jail for his prior offenses and illegal possession of firearms.     

The Legal Profession Enabling Rape, Part II

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In this entry, I took issue with lawyers who write non-disclosure agreements (NDA's) to furnish to clients for the purpose of helping them muzzle women they have sexually abused or, sometimes, outright raped.  The Harvey Weinstein scandal was the occasion for that entry.

Things have gotten worse.  Yesterday, the New York Times ran a story about a previously very highly regarded lawyer, David Boies, who  --  to translate the somewhat opaque language in which the story is written  --  hired a "private investigative firm" to dig up dirt on one of Weinstein's numerous victims in order to bludgeon her into silence.

The reason the Times is angry about this, as it full well has a right to be, is that Boies was trying to prevent the Times, which was at the time also a client of his, from getting what would have been a fantastic scoop.  The Times is correct in viewing this as a betrayal.

But to my way of thinking, there is something else much more appalling about Boies' behavior:  It's another instance of a lawyer's not merely seeking, through a contractual clause, to suppress truthful information about his client's vile (and criminal) behavior, but of promoting a blackmail scheme to threaten the victim.

"Zealous advocacy," embrace your true name.


First Do No Harm?

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This story just keeps getting weirder.  Friday, Sen. Rand Paul, a medical doctor, was attacked by a neighbor, who is also a doctor.  The extent of his injuries and the reason for the altercation is a story that keeps dribbling out.

Manafort Indicted

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Aruna Viswanatha and Del Quentin Weber report for the WSJ:

WASHINGTON--Former Trump campaign manager Paul Manafort was taken into custody Monday on charges that he laundered more than $18 million in funds from his work for a pro-Russia party in Ukraine through offshore accounts.

In a separate plea deal in court documents that were unsealed Monday, George Papadopoulos, a foreign-policy adviser to the Trump campaign, admitted to lying to the Federal Bureau of Investigation about his contacts with a professor connected to Russian government officials.

The Legal Profession, Enabling Rape

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I haven't said anything up to now about Hollywood mogul Harvey Weinstein and the multiple sexual assault scandal that's enveloping him, and  --  much more importantly  --  the Holier-Than-Thou entertainment industry culture of which he has been a mainstay for decades.  As with the narrative we often hear repeated in court, the rapist, Mr. Weinstein,  isn't the victimizer; he's the victim  --  the victim of an environment of indulgence, excessive drinking, "sex addiction" and so forth.

For generations, this way of thinking has massively contributed to, and excused, rape.  Indeed, rape has been all but accepted in Hollywood with the blase' phrase "casting couch," which was (and remains) a euphemism for powerful men forcing sex on women (or, in the case of director Roman Polanski, girls).

Of course, the enabling has its defenders and facilitators, to wit, lawyers.  The legal profession's stultifying self-justification towards its own "standards," and snickering indifference to victims, is all too obvious in this article from the very aptly named Above the Law.

LAPD Investigating Harvey Weinstein

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Richard Winton and Victoria Kim report for the LA Times:

An Italian model-actress met with Los Angeles police detectives for more than two hours Thursday morning, providing a detailed account of new allegations that movie mogul Harvey Weinstein sexually assaulted her at a hotel in 2013.

She is the sixth woman to accuse Weinstein of rape or forcible sex acts. Los Angeles police Capt. Billy Hayes confirmed that the department has launched an investigation into the matter.

It is the first case related to Weinstein to be reported in Southern California. New York police already have two active sex crime probes and London's Metropolitan Police is investigating allegations made by three women.

Collateral Consequences

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Some companies are largely driven by one person or a small number of people.  What happens to a company when one of those people turns out to be a serial sexual harasser and possibly a rapist?  Ben Fritz reports for the WSJ:

Weinstein Co. is exploring a sale or shutdown and is unlikely to continue as an independent entity, a person close to the company said.

The film and television studio's board of directors has been talking to possible buyers as it mulls how to move forward after firing co-chairman Harvey Weinstein on Sunday amid dozens of accusations against him of sexual assault and harassment.
I hope they find a buyer.  It would unfortunate if regular working folks found themselves unemployed due to a company collapse.

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