Justice And The Law Do Not Mix

15 07 2013

 By Timothy D. Naegele[1][2]

Justice is in the eye of the beholder, and not some absolute standard that is clearly and quantifiably definable or identifiable.  However, human beings have a sense of what is just and what is not, which is often governed by their belief systems and experiences in Life.  The law, on the other hand, is an imperfect discipline governed by grossly-inflated egos and political considerations, and flavored by incompetence and arrogance.

Is the law ever just?  Perhaps this question is the proper starting point.  “The law” is not some idealistic and intellectually pure result, resting on a cloud somewhere.  Rather, it is a hard-edged and hard-fought amalgam of competing ideas and biases, dictated by judges who are imperfect at best—and often egotistical, callous, mean-spirited, power-hungry, self-righteous, condescending and, yes, incompetent and arrogant.  They can smile at you, just as easily as they can slit your throat and never think twice about doing it.

How on earth can the dispensers of that magical ingredient, justice, do so when they are “unsavory” themselves?  How can they judge another person when they often bring distorted realities and moral visions to the process?  Many of them, at least in the United States, are former prosecutors who seemingly have never laid eyes on an innocent criminal defendant.  To put on black robes does not change their mindset.  Indeed, many seem to relish the power trip.  Shakespeare’s famous quotation—“The first thing we do, let’s kill all the lawyers”—must have been written in some light-hearted moment with the dark and sinister characteristics of judges in mind.

Having been a lawyer for more than 45 years, and having received two law degrees from prestigious American law schools, I can honestly say that the thought of becoming a judge has never crossed my mind.  Indeed, when I arrived at Berkeley for my first year of law school, I was stunned by how many of my classmates had dreamed of becoming lawyers most of their lives.  The pinnacle was to become a judge, which was repulsive to me.  While I read many learned and well-written opinions in law school, I never figured out why anyone would want to be a judge.

We had fine law professors who taught the best of the law; and they instilled in us a belief in the purity and sanctity of the law.  Forty-five years later, I do not doubt their sincerity at the time, but I have never encountered a sitting judge who met their expectations.  The best reason for being a judge was told to me one day in chambers by a California Superior Court judge, who said that it was easier than practicing law.  I respected him for his honesty and candor, and his willingness to tell the unvarnished truth.  Most judges would never do that.  It was refreshing.  He smiled when he said it, and did not slit my throat or even come close.  In fact, he decided in my favor.

If the law is little more than decisions made by judges based on whether they got up on the wrong side of their beds or not, or took umbrage with a lawyer or client, then is there any rhyme or reason to it, which makes sense judicially?  I concluded ages ago that the proceedings in most American courts are remarkably close to “Law West of the Pecos by Judge Roy Bean,” the hanging judge.  In Bean’s court, the law was what he said it was, and nothing else mattered.  Too often in U.S. courts today, very little has changed.  Judges have become the law unto themselves.  Any citation of legal precedents is met by judges whose eyes glaze over, because many of them were taught in law schools where the purity and sanctity of the law did not matter.  Brute force governs far too many courtrooms.

State courts—certainly those in California—are a total joke. Judges routinely ignore the applicable law, or twist the law to suit their desires. It is a travesty, and really no law at all.  Our federal courts are somewhat better, only because federal judges have law clerks who actually research the law; and federal judges are mindful of the fact that they can be overruled on appeal.  Owing to the fact that our Supreme Court takes so few cases these days, and most of its cases are heard for political reasons, our federal courts of appeal become the only real checks on the actions of District Judges.

At the U.S. Supreme Court building in Washington, D.C., there is a statue of “Justice” with blinders on her eyes to depict the impartiality and objectivity that the word justice is supposed to represent.  However, another interpretation can be given to the statue; namely, blindness to injustices that occur each and every day in our legal system.  More than eight thousand petitions for certiorari are filed with the Court every year, yet the number of cases that are heard is usually less than one hundred.  Justice William Brennan was the last jurist to read such petitions.  They are now read exclusively by the individual justices’ law clerks, who decide which cases the Court hears and those that are never heard.

As a practical matter, the American system of justice no longer exists—because the presumption of innocence no longer exists.  In U.S. courts, even though it is not articulated—certainly by the judges themselves—there is a presumption of guilt instead of innocence in criminal cases.  Any appearance of bending over backwards to help the defense is window dressing and largely form over substance.  Many judges are courteous, but their long knives come out before the process is completed.  Others do not mince with words, and are tyrants from Day One.  Still others defy one’s imagination with respect to how they got there.  They do not understand the law or facts of the cases, nor do they care; and they seem to be political appointees who have overstayed their welcome.

 The United States is a nation where rogue prosecutors reign, whose goals in life include the prosecution of even the innocent. Federal, State and local prosecutors ruthlessly and gleefully pursue countless numbers of innocent Americans for a multitude of crimes that were never committed; and the judiciary has allowed this to happen.  Corruption is rampant among federal prosecutors and those who work with them, such as FBI agents.  No amount of rational thinking or discourse can be applied to a system that is inherently and systemically corrupt.

A federal official with reason to know told me that between 15-20 percent of the indictees in our federal courts are probably innocent.  Some are elderly who have been charged with cheating the Social Security system—America’s retirement benefit program—and they are scared to death, so they agree to plea bargains rather than fight for their innocence.  The latest figures indicate that 97 percent of convictions in federal courts were the result of guilty pleas.  In 2006, the last year for which data was available, the corresponding figure for State courts was 94 percent.

Indeed, Justice Anthony M. Kennedy wrote for the majority in a recent U.S. Supreme Court opinion—quoting other sources:

[Criminal justice today] is for the most part a system of pleas, not a system of trials. . . .  [Plea bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system.[3]

He added—again quoting other sources: “[L]onger sentences exist on the books largely for bargaining purposes.”[4]

What Kennedy neglected to mention is that “criminal justice” today in the United States is not a system of justice at all, at least for many Americans.  It is appalling that so many innocents are swept up in our criminal system.  Even if they do not go to prison, the mere fact that a prosecutor comes after them and they have to deal with the system is brutal and tragic.  Lives are wrecked in the process by zealous prosecutors and callous judges, who should be consigned to prison life themselves—where they would come to understand the true meaning of justice.

Fortunately, America has a very good public defender system, at the federal, state and local levels; and this helps a great deal, although far too often its lawyers are burdened with very heavy caseloads, and the accused may not understand that they can avail themselves of such assistance.  Anyone who thinks that prosecutors are advocates of truth and justice is living in a “Mary Poppins” fantasy world, and knows nothing about how our legal system really operates.  It is seldom if ever discussed or written about, yet it is often said—by lawyers—that the only thing separating prosecutors from guilty criminals is the “badge.”

Also, in criminal prosecutions, there is often the systematic concealment of significant exculpatory evidence, in some instances intentionally, which gave rise to the guilty verdicts against former United States Senator Ted Stevens of Alaska being set aside, and a dismissal of the case against him.  It is another travesty and miscarriage of justice that three years after the federal judge set aside the verdicts, the wrongdoers within America’s Justice Department have not been subjected to criminal prosecution, convicted, and sent to prisons—where true justice would be meted out—instead of getting “slaps on the wrist” for their criminal misconduct.[5]

To be fair and put things into perspective, victims of criminal conduct need and deserve protection as well; and the guilty must not be sheltered or coddled if there are to be deterrents against the commission of crimes, especially those of a violent nature.  Also, many crimes are not reported or dealt with, such as rampant fraud that is occurring over the Internet each and every day, and bilking sophisticated and unsophisticated Web users out of billions of dollars.  Clearly, none of us would like to be a “jailed innocent,” but similarly we do not want to be harassed by vicious or other criminals either.  Those people who are truly innocent should not enter the criminal system; and innocent victims must be protected at all costs.

It has been noted that if we want to be 100 percent certain that no innocent will end up in jail, the inevitable result is that nobody will be in jail.  There is no such thing as perfect evidence or a perfect judge.  Indeed, as noted at the beginning of this article, the law is an imperfect discipline and process.  Also, it must be recognized that the cost of criminal and civil litigation in the United States and globally is staggering; and it takes years to resolve complex litigation.  The cost of business litigation in America’s federal courts often exceeds $1 million on each side of the action; and this figure does not include the cost of a trial or appeals.

Lawyers are trained in law schools to be advocates, and sometimes this becomes a curse.  When they represent clients in divorce proceedings, the last thing that estranged couples need is their respective lawyers “stirring the pot” to earn greater fees, and increasing the acrimony that exists already.  However, it happens, which is why lawyers are ill suited to handle such proceedings.  Also, male lawyers prey sexually on their distraught and emotionally vulnerable female clients, which should give rise to automatic disbarments.  Both the American Bar Association and State bar associations “turn a blind eye” and do little or nothing to curb such abuses.  Like rogue prosecutors who are sheltered from discipline, so too are lawyers in divorce proceedings who abuse their positions and power.  This is among the many reasons why non-lawyers in the United States and elsewhere view lawyers with such contempt and disdain—not dissimilar to how they view leeches and vermin.

Without the law though, we would have anarchy and chaos.  Yet, there is a certain amount of inherent anarchy and chaos within the legal system itself.  Harsh economic times produce demands on lawyers and courts, and bring citizens in contact with the system who otherwise might not be there except for their economic plight and hardships.  Whether the issues involve housing foreclosures or evictions, or the loss of jobs or dissolution of marriages, the American legal system is taxed like seldom before.  Budgetary constraints dictate shorter court hours and over-burdened judges, and closed courthouses and furloughed prisoners to ease overcrowding.  What is certain is that the situation will become worse between now and the end of this decade, at least in the United States.

Perhaps the only saving grace about the American legal system is that it may still be the best in the world, albeit very imperfect and flawed.  Indeed, it is the only legal system that I can address with a modicum of understanding and authority, having spent my entire career thus far dealing with it.  Unfortunately, too few lawyers are willing to speak out and criticize the profession, and “tell it like it is.”  The judiciary is almost completely blind to the problems, because its members are at the root of many of these issues.  Also, the American Bar Association is essentially worthless; and State bar associations are not much better.  I am a member of the District of Columbia Bar, which I have always been proud of though.

These are a few of the very serious problems that face our system of justice and fairness for all, which demand attention.  They are not easily fixable or remedied, yet they are at the tip of an enormous iceberg of problems.  There is a real question as to whether our system can be “fixed.”  Much like family members or loved ones of alcoholics or drug addicts, it is arguable that we cannot fix or change our legal system.  All we can do is take care of ourselves, and hope that we never come in contact with it.  There are even those who believe that quantitative and qualitative analyses can and must be applied to “redesign the judicial structure . . . into a practical process with an understood functionality and imperfection”—in the words of one engineer with a keen sense of justice.

© 2012, 2013, Timothy D. Naegele

Twill Magazine version of the article 

Justice And The Law Do Not Mix

(Image: Andrè Azevedo)


[1] Timothy D. Naegele was counsel to the United States Senate’s Committee on Banking, Housing, and Urban Affairs, and chief of staff to Presidential Medal of Freedom and Congressional Gold Medal recipient and former U.S. Senator Edward W. Brooke (R-Mass).  He practices law in Washington, D.C. and Los Angeles with his firm, Timothy D. Naegele & Associates, which specializes in Banking and Financial Institutions Law, Internet Law, Litigation and other matters (see www.naegele.com and http://www.naegele.com/naegele_resume.html).  He has an undergraduate degree in economics from UCLA, as well as two law degrees from the School of Law (Boalt Hall), University of California, Berkeley, and from Georgetown University.  He is a member of the District of Columbia and California bars.  He served as a Captain in the U.S. Army, assigned to the Defense Intelligence Agency at the Pentagon, where he received the Joint Service Commendation Medal.  Mr. Naegele is an Independent politically; and he is listed in Who’s Who in America, Who’s Who in American Law, and Who’s Who in Finance and Business. He has written extensively over the years (see, e.g.,www.naegele.com/whats_new.html#articles), and can be contacted directly at tdnaegele.associates@gmail.com; see also Google search:Timothy D. Naegele

[2]  This article was published originally in Europe and distributed globally by Twill Magazine; see http://www.twill.info/wp-content/uploads/2013/03/justide_and_the_law_do_not_mix.pdf (issue #15, pp. 8-11); see also http://www.twill.info/ and http://www.twill.info/?p=1850

The author wishes to thank Fosco Bianchetti, Twill‘s Editor In Chief and Manager, for publishing it.  He was a pleasure to work with, always.

[3] See Missouri v. Frye, Case   No. 10–444. Argued October 31, 2011—Decided March 21, 2012 (emphasis in original); see also http://www.supremecourt.gov/opinions/11pdf/10-444.pdf

[4] See id.

[5] See also https://naegeleblog.wordpress.com/2012/03/21/the-united-states-department-of-injustice/


Actions

Information

21 responses

15 07 2013
PalomaGenios

Loved it.
There is however one perfect Judge: Jesus Christ.

Like

15 07 2013
Timothy D. Naegele

Thank you so much.

Yes, I agree . . . and God. 🙂

See, e.g., https://naegeleblog.wordpress.com/2010/05/12/what-and-where-is-god/

Like

15 07 2013
g stiles

Bravo

Like

15 07 2013
Timothy D. Naegele

Thank you. 🙂

Like

15 07 2013
Mary Orth

I think justice was served in the Zimmerman case. It probably never should have gone to trial.

Like

15 07 2013
John R Hanson, Sr.

Thank you for this well written and I might add timely article. I could be wrong but in today’s courtroom it appears promotion (whether political or otherwise) is more important than getting to the truth and justice. Since our nation’s birth, what has separated the United States from other countries in the world has been our justice system. It has to be fair and equitable for everyone or we ALL lose. I fear for our country.

Like

15 07 2013
Timothy D. Naegele

Thank you, John, for your comments.

Yes, I agree with your second sentence. “Promotion” is the name of the game, sadly. The legal profession has gone astray, and has become “mesmerized” by TV and movie portrayals of lawyers.

The judges also view themselves as “mini-gods,” which is tragic as well.

As I concluded in another article:

Can our legal system be fixed, and will the American people come to trust and respect lawyers and judges again, and believe that justice not only exists but prevails in this great nation? Maybe . . . if the profession is restructured, and if it attracts those people who believe that the law is sacred, sacrosanct and pristine—truly a shining city upon a hill—and they put such principles into practice. The profession does not require saints, but it does need something different than “Law West of the Pecos by Judge Roy Bean.” And it needs people who are different than it has been attracting: who are often driven, ruthless, unprincipled, money-hungry, and power-hungry.

See https://naegeleblog.wordpress.com/2011/01/03/the-american-legal-system-is-broken-can-it-be-fixed/

Like

17 07 2013
Timothy D. Naegele

VIOLENCE

If we want to reduce or eliminate violence, then Hollywood should not make and distribute any violent films and TV shows; such violence should be banned from TV programming; violent video games should be banned; advertisers that support violent media undertakings should see their products boycotted; parents who allow their children to commit violence should be prosecuted; and those who advocate violence should be prosecuted as well.

Like

20 07 2013
Timothy D. Naegele

Judges Are The Worst Of The Legal Profession

Judges

As I have written in my article above:

[J]udges . . . are imperfect at best—and often egotistical, callous, mean-spirited, power-hungry, self-righteous, condescending and, yes, incompetent and arrogant. They can smile at you, just as easily as they can slit your throat and never think twice about doing it.

. . .

I can honestly say that the thought of becoming a judge has never crossed my mind. Indeed, when I arrived at Berkeley for my first year of law school, I was stunned by how many of my classmates had dreamed of becoming lawyers most of their lives. The pinnacle was to become a judge, which was repulsive to me.

. . .

I concluded ages ago that the proceedings in most American courts are remarkably close to “Law West of the Pecos by Judge Roy Bean,” the hanging judge. In Bean’s court, the law was what he said it was, and nothing else mattered. Too often in U.S. courts today, very little has changed. Judges have become the law unto themselves. Any citation of legal precedents is met by judges whose eyes glaze over, because many of them were taught in law schools where the purity and sanctity of the law did not matter. Brute force governs far too many courtrooms.

Judges go out of their way to hurt people, and to wield their power to accomplish this. They rewrite laws, even though that is the domain of legislatures. In short, there is not much of a redeeming nature that can be written about judges . . . although I have some friends who are judges, but I knew them before they became judges.

In a democracy like ours, courts and judges must serve the people, not the other way around. Judges are not mini-gods, or anything remotely close.

Former prosecutors should be barred from becoming judges. They spend their lives hurting people—often in ‎masochistic ways—many of whom are innocent; and the worst thing to happen is that they become judges.

See also https://naegeleblog.wordpress.com/2011/01/03/the-american-legal-system-is-broken-can-it-be-fixed/#comment-7386 (“Why Doctors And Lawyers Quit“) and http://www.wsj.com/articles/SB11614593350830634792804581047743451728306 (“A group of judges, attorneys and law professors recently voted to make tapping the shoulder of a Muslim woman to ask for directions potentially punishable in a U.S. court of law. This group, the American Law Institute, is an elite private organization that includes the justices of the U.S. Supreme Court, the chief judges of the U.S. Courts of Appeal and the highest state courts, most law school deans, some law professors and private attorneys”)

Like

7 01 2014
Timothy D. Naegele

Don’t Talk to the Police Under Any Circumstances

Food for thought

Like

25 01 2014
Timothy D. Naegele

Imagine If The Internet Went Down: Court System Hit With Cyberattack

Internet

POLITICO has reported:

Unidentified hackers took aim at the federal court system Friday, blocking access to its public website while preventing lawyers and litigants from filing legal documents online.

The incident affected uscourts.gov, the federal court’s public hub, as well as most if not all federal court sites—not to mention the federal court system’s electronic filing system and its access page, PACER, a spokesman for the Administrative Office of the U.S. Courts said Friday.

The aide described the incident only as a denial-of-service attack, and that the court system, which manages its own cybersecurity, is still investigating the exact nature of the incident and who’s responsible.

Earlier Friday, a federal court clerk from Arkansas indicated in an email obtained by POLITICO that it appeared to be a “new national cyberattack on the judiciary,” but he did not provide any additional information about the type of attack or who might be behind it.

The Justice Department, for its part, did not comment for this story. The Department of Homeland Security, which plays a key role monitoring federal networks and disseminating information about cyber threats, could not be reached for comment.

See http://www.politico.com/story/2014/01/cyberattack-federal-courts-102594.html

I can personally confirm that certain courts could not be accessed yesterday.

A bigger question involves: could any documents be changed or deleted as a result of a Cyberattack?

Anything is possible. However, the federal court system maintains hard copies of recent filings, which are also available online. Thus, it is unlikely that hacking would make a difference in that regard.

Because America’s court system is already burdened by budget cuts (e.g., shorter hours, layoffs), hacking’s immediate effect is to create chaos in the system.

It seems that this hacking episode was relatively short lived. A sustained and effective hacking effort could bring the legal system to a screeching halt. So many filings are made online these days.

Yet, one must realize that the federal system is way ahead of State systems. Docket sheets and individual filings are not available online in many if not most States. However, as the States transition to fully online systems, they will become vulnerable too.

Obviously, all of this raises the larger question about efforts to bring down the Internet itself:

Imagine if someday we went online and there was nothing except a blank screen.

Worldwide terrorism is growing, not receding; and anything is possible.

Clearly, an EMP Attack would bring this country to a screeching halt . . . killing millions of Americans in the process.

See https://naegeleblog.wordpress.com/2010/01/19/emp-attack-only-30-million-americans-survive/ (“EMP Attack: Only 30 Million Americans Survive“)

Like

29 07 2014
Timothy D. Naegele

Arbitration Is An Unmitigated Disaster In Most Instances.

Arbitration is a disaster

In a fine article entitled, “Big Risks and Disadvantages of Arbitration vs. Litigation,” Aaron Foldenauer writes for Corporate Counsel:

Three recent high-profile arbitral awards highlight the risks of arbitration and demonstrate that, contrary to widespread belief, arbitration is often not cheaper, faster or more predictable than litigation. These three awards, as well as emerging trends in arbitral proceedings, call into question the common practice among corporations of including contractual provisions mandating arbitration in the event of any disputes.

In May of this year, in arbitration proceedings that have been pending for nearly eight years involving a patent license agreement between the technology companies Amkor Technology and Tessera Technologies, Tessera was awarded $145 million. And this was on top of $64 million Amkor had already paid to Tessera in connection with a prior, related ruling. These adverse awards far exceeded even Amkor’s publicly disclosed worst-case estimates of its possible exposure. The Amkor proceedings present a recent example of the delays, costs and unpredictability often associated with arbitration. But they are by no means a worst-case scenario. The dangers of arbitration hit two prominent retail corporations on a far greater scale.

Specifically, Starbucks Corporation and Tiffany & Co. were recently on the wrong side of decisions by arbitrators who imposed massive awards against each—awards that were expected by neither management nor by shareholders. Coffee giant Starbucks lost an arbitral award totaling $2.76 billion, including $527 million in interest and legal fees, to Kraft Foods Group Inc. in connection with a dispute related to the termination of an agreement that allowed Kraft to distribute Starbucks coffee in grocery stores. Even for a successful corporate stalwart like Starbucks, the size of the arbitral award was of enormous significance. Starbucks’ net profits for the years 2011 and 2012 were $1.2 billion and $1.4 billion, respectively. Thus, standing alone, the award wiped out two years’ worth of Starbucks’ profits.

And late last year, jeweler Tiffany lost $449.5 million, plus interest, costs and attorney fees, in an arbitral proceeding to Swatch SA concerning a failed partnership in which Swatch was to develop watches for Tiffany’s brand. Tiffany’s loss surpassed the profits it had earned during all of 2012.

As is commonly the case in arbitrations, neither Tiffany nor Starbucks apparently has the ability to effectively appeal the decisions, and in fact, Starbucks was forced to issue $750 million of additional debt to help raise money to satisfy the adverse award.

That risk-averse, well-represented corporations would willingly put such large sums of money in the hands of ultimately unaccountable arbitrators, whose decisions are almost always nonappealable, is surprising. The instinctive decision to do so should be revisited. This is particularly so given that the oft-touted benefits of arbitration—that it is cheaper, faster and more predictable than litigation—are routinely untrue in practice. In fact, the disputes that caught Starbucks, Tiffany and Amkor off guard each have taken years to resolve, caused each side to incur significant legal fees and yielded unpredictable results.

Arbitration Is Problematic for Risk-Averse Corporations

That these three major corporations were taken aback by the size of the awards may surprise those, including many corporate in-house counsel, who believe that arbitration is inherently more predictable than litigation. Although corporate defendants are often concerned about “runaway juries” in the context of cases in which there is a sympathetic victim, in contractual and other business-related disputes juries may, in fact, be less likely than an arbitrator to award unreasonable damages or issue an unexpected, highly lopsided verdict.

In other words, in connection with business-related disputes, an experienced arbitrator in the industry may be more inclined than a jury to view the parties’ conduct in black-and-white terms and thus rule in a way that overwhelmingly favors one side over the other. Indeed, the arbitrator in the Kraft-Starbucks dispute apparently did precisely that. In that dispute, Kraft asserted that it was owed $2.9 billion, plus attorney fees. The arbitrator ultimately awarded Kraft a total of $2.76 billion, thus giving Kraft just about everything it wanted. In other words, after considering the underlying agreements and the parties’ positions, the arbitrator read the contract and calculated damages in a way that essentially mirrored Kraft’s demands.

One-sided awards in arbitration underscore what are ultimately larger concerns for risk-averse corporations: The absence of meaningful checks and balances in arbitration proceedings and the extraordinarily wide latitude that arbitrators have in rendering decisions. For instance, arbitrators have broad discretion to decide disputes and may disregard the factual evidence presented by the disputing parties. Furthermore, unlike judges and juries, arbitrators are typically unconstrained by statutes, case law or the rules of evidence. The consequence is that an arbitrator’s subjective notion of fairness in a given case can easily translate into a lopsided award against the losing party, even when the facts and the law are on the losing party’s side. For risk-averse companies seeking some semblance of predictability concerning their legal affairs, the very nature of arbitration—which some have called “ad hoc justice,” given the lack of accountability and predictability—renders arbitration a highly precarious prospect.

To be sure, the fact that some parties are less successful than others says little about the intrinsic merits of the process. After all, the results of arbitration were favorable for Tessera, Kraft and Swatch, the prevailing parties. The difficulty is that, for companies looking to manage their business and legal risks, it is impossible to know, ex ante, on which side of the win-lose column they will ultimately end up following an arbitration—and how much it will cost them if they end up on the wrong side.

Arbitration Is Often More Expensive Than Litigation

It is routinely argued—often without empirical support—that arbitration is cheaper than litigation. Although litigation can be costly, many of the costs incurred in litigation are also incurred in arbitration, and additional costs are incurred during the course of a typical arbitration to pay for what is essentially a private judicial system.

The Tiffany-Swatch arbitration provides concrete evidence of the often-significant costs associated with arbitration. Not only was Tiffany required to pay the $449.5 million award, plus interest, to Swatch, but Tiffany was also required to pay two-thirds of the cost of the arbitration and two-thirds of the reasonable attorney fees and expenses incurred by Swatch. As a publicly listed U.S. company, Tiffany publicly disclosed these amounts, lifting the veil on how both attorney fees and forum costs (including arbitrator fees) can be surprisingly high in arbitration proceedings.

Swatch alone incurred approximately $13.3 million in reasonable attorney fees, costs and other expenses (of which the arbitral panel required $8.8 million to be paid by Tiffany). For an arbitration that lasted less than three years, $13.3 million in attorney fees and related expenses is striking, particularly in comparison to reported legal fees in complex litigations in federal court. For example, patent litigations—which are among the most complex litigations that are adjudicated in federal court—are often reported to result in legal fees averaging approximately $4 million to $5 million per side through trial.

The amount of legal fees that Swatch incurred in arbitration—a supposedly cost-effective venue—was more than twice that of the average total fees for patent litigation in federal court, again showing that the common contention that arbitration is inexpensive is often plain false. Indeed, features of arbitration that once may have made it a less-costly alternative to litigation are increasingly a thing of the past. In many arbitrations today, for instance, discovery is as common as it is in litigation, increasing both the cost of arbitration and the time required to complete it. And recalcitrant parties to an arbitration can often employ dilatory and other tactics that result in significant attorney fees to both sides as the parties spar over procedural and other issues. In contrast, many courts and judges have established, routinely enforced rules that parties must follow and which are not subject to challenge. But in arbitrations, more flexible rules often apply, which give litigious parties and their attorneys more things to argue about, thus further increasing the cost of arbitral proceedings. Furthermore, litigations (sic) often can be dismissed at a preliminary stage, such as decisions on motions to dismiss or motions for summary judgment, but such preliminary determinations are less-frequently used in arbitration.

On top of attorney fees, the parties to an arbitration must pay fees to the arbitral tribunal and to the arbitrators themselves. In the Tiffany-Swatch arbitration, the costs of the arbitration, which was heard by a panel of three arbitrators pursuant to the rules of the Netherlands Arbitration Institute, totaled $1.2 million ($800,000 of which was paid by Tiffany). In comparison, had the parties used a court in the United States, these costs would have essentially been nonexistent, given that courts and judges are paid for by the public. Indeed, a 2013 study described in the Global Arbitration Review found that costs for the arbitrators themselves and the arbitral tribunal with respect to one type of arbitral proceeding have risen by 56 percent in just the past eight years. Contributing to the growing cost of arbitration is the fact that unlike in litigation, for which judges are appointed to preside over a case, in an arbitral proceeding the parties will first have to decide on mutually acceptable arbitrators, which often takes time and runs up the attorney fees of the parties. Once an arbitrator is agreed upon, the parties then have to pay for their services. Since arbitrators are often top lawyers or retired judges with steep hourly rates, this is almost always a significant expense.

Concerns about the costs of arbitration and the time it takes to arbitrate disputes are not limited to high-stakes and international arbitrations. A 2012 study of single-plaintiff cases found that, on average, arbitration is significantly more expensive than litigation and results in each side’s incurring significantly higher attorneys’ fees. The study found that even in these less prominent cases, the average attorney fees incurred by parties in arbitration were 25 percent greater than those incurred in equivalent litigation. Factoring in total cost and outside counsel fees, arbitration was 31 percent more expensive than litigation in these small-scale cases. In fact, corporate clients are beginning to appreciate the potential costs involved in arbitrating disputes. A 2013 survey by PricewaterhouseCoopers found that the top two reasons corporations avoid arbitration were the costs and the delays associated with arbitration.

The Bottom Line

Despite the disadvantages of arbitration, there always will be circumstances under which arbitration is preferable and perhaps even required. For example, an arbitral proceeding may be the only venue in which a party can secure an enforceable judgment against the assets held by a counterparty in a given country. The fact remains, however, that even as arbitration can, in theory, offer some advantages over litigation, in practice it is often an inefficient method of dispute resolution. Arbitration, despite its promise of efficiency, often drags on for years and results in substantial fees and costs—which can add up to more than the parties would have spent in traditional litigation.

Most worryingly, for companies seeking to effectively manage their legal risks, arbitration places their financial fortunes in the uncertain hands of arbitrators bound by only their own sense of the proper outcome, and which may have only a tenuous connection to the law. The lesson for corporate parties is that, instead of agreeing to arbitrate disputes as a matter of course, they should carefully consider whether arbitration will actually be beneficial in a particular instance. As companies like Amkor, Starbucks and Tiffany have discovered, the downsides of choosing arbitration can be significant indeed.

See http://www.corpcounsel.com/id=1202665052210/Big-Risks-and-Disadvantages-of-Arbitration-vs-Litigation%3Fmcode=0&curindex=0&curpage=ALL (emphasis added)

Like a hurricane, arbitration is an unmitigated disaster in most instances.

The arbitrators consist of lawyers, who come with their usual biases, or retired judges who are even worse—and have not had their fill of the power trip they were on. And there is no right of appeal.

Also, in one instance that I know of, the ultimate losing party went to its friendly state court judge and obtained an injunction to prevent an expert witness from testifying, which distorts the arbitration process completely, and effectively turns it into litigation in two forums.

Like

12 11 2014
Timothy D. Naegele

Why Innocent People Plead Guilty [UPDATED]

No Justice

Jed S. Rakoff, a United States District Judge for the ­Southern District of New York, writes in The New York Review of Books:

The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.

To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.

In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.

While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.

It was not always so. Until roughly the end of the Civil War, plea bargains were exceedingly rare. A criminal defendant would either go to trial or confess and plead guilty. If the defendant was convicted, the judge would have wide discretion to impose sentence; and that decision, made with little input from the parties, was subject only to the most modest appellate review.

After the Civil War, this began to change, chiefly because, as a result of the disruptions and dislocations that followed the war, as well as greatly increased immigration, crime rates rose considerably, and a way had to be found to dispose of cases without imposing an impossible burden on the criminal justice system. Plea bargains offered a way out: by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials.

The practice of plea bargaining never really took hold in most other countries, where it was viewed as a kind of “devil’s pact” that allowed guilty defendants to avoid the full force of the law. But in the United States it became commonplace. And while the Supreme Court initially expressed reservations about the system of plea bargaining, eventually the Court came to approve of it, as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work. Similarly, academics, though somewhat bothered by the reduced role of judges, came to approve of plea bargaining as a system somewhat akin to a regulatory regime.

Thus, plea bargains came to account, in the years immediately following World War II, for the resolution of over 80 percent of all criminal cases. But even then, perhaps, there were enough cases still going to trial, and enough power remaining with defense counsel and with judges, to “keep the system honest.” By this I mean that a genuinely innocent defendant could still choose to go to trial without fearing that she might thereby subject herself to an extremely long prison term effectively dictated by the prosecutor.

All this changed in the 1970s and 1980s, and once again it was in reaction to rising crime rates. While the 1950s were a period of relatively low crime rates in the US, rates began to rise substantially in the 1960s, and by 1980 or so, serious crime in the US, much of it drug-related, was occurring at a frequency not seen for many decades. As a result, state and federal legislatures hugely increased the penalties for criminal violations. In New York, for example, the so-called “Rockefeller Laws,” enacted in 1973, dictated a mandatory minimum sentence of fifteen years’ imprisonment for selling just two ounces (or possessing four ounces) of heroin, cocaine, or marijuana. In addition, in response to what was perceived as a tendency of too many judges to impose too lenient sentences, the new, enhanced sentences were frequently made mandatory and, in those thirty-seven states where judges were elected, many “soft” judges were defeated and “tough on crime” judges elected in their place.

At the federal level, Congress imposed mandatory minimum sentences for narcotics offenses, gun offenses, child pornography offenses, and much else besides. Sometimes, moreover, these mandatory sentences were required to be imposed consecutively. For example, federal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them.

In addition to mandatory minimums, Congress in 1984 introduced—with bipartisan support—a regime of mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities. Since these guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands of prosecutors.

One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since.

The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.

The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.

Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.

Although under pressure to agree to the first plea bargain offered, prudent defense counsel will try to convince the prosecutor to give her some time to explore legal and factual defenses; but the prosecutor, often overworked and understaffed, may not agree. Defense counsel, moreover, is in no position to abruptly refuse the prosecutor’s proposal, since, under recent Supreme Court decisions, she will face a claim of “ineffective assistance of counsel” if, without consulting her client, she summarily rejects a plea bargain simply as a negotiating ploy.

Defense counsel also recognizes that, even if she thinks the plea bargain being offered is unfair compared to those offered by other, similarly situated prosecutors, she has little or no recourse. An appeal to the prosecutor’s superior will rarely succeed, since the superiors feel the need to support their troops and since, once again, the prosecutor can shape the facts so as to make his superior find his proposed plea acceptable. And there is no way defense counsel can appeal to a neutral third party, the judge, since in all but a few jurisdictions, the judiciary is precluded from participating in plea bargain negotiations. In a word, she and her client are stuck.

Though there are many variations on this theme, they all prove the same basic point: the prosecutor has all the power. The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a “contract of adhesion” in which one party can effectively force its will on the other party.

As for the suggestion from some academics that this is the equivalent of a regulatory process, that too is a myth: for, quite aside from the imbalance of power, there are no written regulations controlling the prosecutor’s exercise of his charging power and no established or meaningful process for appealing his exercise of that power. The result is that, of the 2.2 million Americans now in prison—an appalling number in its own right—well over two million are there as a result of plea bargains dictated by the government’s prosecutors, who effectively dictate the sentences as well.

A cynic might ask: What’s wrong with that? After all, crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result?

The answer may be found in Jefferson’s perception that a criminal justice system that is secret and government-dictated ultimately invites abuse and even tyranny. Specifically, I would suggest that the current system of prosecutor-determined plea bargaining invites the following objections.

First, it is one-sided. Our criminal justice system is premised on the notion that, before we deprive a person of his liberty, he will have his “day in court,” i.e., he will be able to put the government to its proof and present his own facts and arguments, following which a jury of his peers will determine whether or not he is guilty of a crime and a neutral judge will, if he is found guilty, determine his sentence. As noted, numerous guarantees of this fair-minded approach are embodied in our Constitution, and were put there because of the Founding Fathers’ experience with the rigged British system of colonial justice. Is not the plea bargain system we have now substituted for our constitutional ideal similarly rigged?

Second, and closely related, the system of plea bargains dictated by prosecutors is the product of largely secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no review, either internally or by the courts. Such a secretive system inevitably invites arbitrary results. Indeed, there is a great irony in the fact that legislative measures that were designed to rectify the perceived evils of disparity and arbitrariness in sentencing have empowered prosecutors to preside over a plea-bargaining system that is so secretive and without rules that we do not even know whether or not it operates in an arbitrary manner.

Third, and possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. For example, of the approximately three hundred people that the Innocence Project and its affiliated lawyers have proven were wrongfully convicted of crimes of rape or murder that they did not in fact commit, at least thirty, or about 10 percent, pleaded guilty to those crimes. Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. For example, the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent) involved false guilty pleas.

It is not difficult to perceive why this should be so. After all, the typical person accused of a crime combines a troubled past with limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it “rational” to take the plea.

Every criminal defense lawyer (and I was both a federal prosecutor and a criminal defense lawyer before going on the bench) has had the experience of a client who first tells his lawyer he is innocent and then, when confronted with a preview of the government’s proof, says he is guilty. Usually, he is in fact guilty and was previously lying to his lawyer (despite the protections of the attorney–client privilege, which many defendants, suspicious even of their court-appointed lawyers, do not appreciate). But sometimes the situation is reversed, and the client now lies to his lawyer by saying he is guilty when in fact he is not, because he has decided to “take the fall.”

In theory, this charade should be exposed at the time the defendant enters his plea, since the judge is supposed to question the defendant about the facts underlying his confession of guilt. But in practice, most judges, happy for their own reasons to avoid a time-consuming trial, will barely question the defendant beyond the bare bones of his assertion of guilt, relying instead on the prosecutor’s statement (untested by any cross-examination) of what the underlying facts are. Indeed, in situations in which the prosecutor and defense counsel themselves recognize that the guilty plea is somewhat artificial, they will have jointly arrived at a written statement of guilt for the defendant to read that cleverly covers all the bases without providing much detail. The Supreme Court, for its part, has gone so far (with the Alford plea of 1970) as to allow a defendant to enter a guilty plea while factually maintaining his innocence.

While, moreover, a defendant’s decision to plead guilty to a crime he did not commit may represent a “rational,” if cynical, cost-benefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an innocent defendant to make a less-than-rational appraisal of his chances for acquittal and thus decide to plead guilty when he not only is actually innocent but also could be proven so. Research indicates that young, unintelligent, or risk-averse defendants will often provide false confessions just because they cannot “take the heat” of an interrogation. Although research into false guilty pleas is far less developed, it may be hypothesized that similar pressures, less immediate but more prolonged, may be in effect when a defendant is told, often by his own lawyer, that there is a strong case against him, that his likelihood of acquittal is low, and that he faces a mandatory minimum of five or ten years in prison if convicted and a guidelines range of considerably more—but that, if he acts swiftly, he can get a plea bargain to a lesser offense that will reduce his prison time by many years.

How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.

What can we do about it? If there were the political will to do so, we could eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys.

Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.

I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.

As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.

The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.

Would a plan structured along these lines wholly eliminate false guilty pleas? Probably not, but it likely would reduce their number. Would it present new, unforeseeable problems of its own? Undoubtedly, which is why I would recommend that it first be tried as a pilot program. Even given the current federal rules prohibiting judges from involving themselves in the plea-bargaining process, I think something like this could be undertaken, since most such rules can be waived and the relevant parties could here agree to waive them for the limited purposes of a pilot program.

I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?

See http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/?insrc=hpma (emphasis added); see also http://www.nysun.com/national/federal-judge-rips-the-system-as-american-justice/88924/ (“Federal Judge Rips System As American Justice Itself Is Put in the Dock“) and http://www.economist.com/news/leaders/21679472-suspects-japanese-police-cells-are-far-too-vulnerable-abuse-forced-confess (“Forced to confess”—”Suspects in Japanese police cells are far too vulnerable to abuse”)

America’s legal system is an abomination; and this is especially true of our “criminal justice” system, as discussed in my article above.

As Justice Anthony M. Kennedy wrote for the majority in a recent U.S. Supreme Court opinion—quoting other sources:

[Criminal justice today] is for the most part a system of pleas, not a system of trials. . . . [Plea bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system.

He added—again quoting other sources: “[L]onger sentences exist on the books largely for bargaining purposes.”

Conrad Black adds: “Judge Rakoff reckons that between 2% to 8% of defendants are innocent. . . . [T]he number is probably between 10% to 15%.” A federal official with reason to know told me that between 15-20 percent of the indictees in our federal courts are probably innocent. Whatever the number, it is a travesty that this should happen in America today.

Lives are ruined; families are broken; and prosecutors take satisfaction that they have done their jobs. And judges, many of whom are former prosecutors, encourage plea bargaining and ignore prosecutorial misconduct, which simply underscores how terribly corrupt and abusive the system is today.

See also https://naegeleblog.wordpress.com/2012/03/21/the-united-states-department-of-injustice/ (“The United States Department of Injustice“)

Department of Injustice

Like

13 03 2016
Timothy D. Naegele

Ohio Judge Who Released Trump Attacker Must Be Removed From Office [UPDATED]

Yesterday’s attack on Donald Trump by Thomas Dimassimo in Dayton, Ohio—like those on President Ronald Reagan by John Hinckley, Jr. in Washington, D.C. and on President Gerald Ford in Sacramento and San Francisco, California, and on presidential candidate George Wallace by Arthur Bremer in Laurel, Maryland—warrants the maximum punishment possible.

Yet, a totally-incompetent judge in Montgomery County, Ohio released Dimassimo. In doing so, the judge has encouraged others to attack Trump or the remaining presidential candidates of both political parties, which could produce tragic consequences for our great nation and its democratic process. The election is highly charged enough, without having assassination attempts occur—or God forbid, actual assassinations.

Trump and Secret Service agents

Can our great nation endure assassinations like those of John F. Kennedy, Robert Kennedy and Martin Luther King, Jr. again?

The judge must pay a very heavy price; and removal from office is the very least that must occur.

As stated in the article above, “judges . . . are imperfect at best—and often egotistical, callous, mean-spirited, power-hungry, self-righteous, condescending and, yes, incompetent and arrogant.”

See http://www.nbcnews.com/politics/2016-election/secret-service-rushes-stage-protect-donald-trump-ohio-rally-n537181 (“Secret Service Rushes Stage to Protect Donald Trump at Ohio Rally“) and http://www.whio.com/news/news/local/protester-rushes-stage-at-dayton-donald-trump-even/nqjjg (“Security jumps stage at Donald Trump event“) and https://naegeleblog.wordpress.com/2015/12/11/boycott-the-gop-and-ignore-foreign-naysayers/#comment-8497 (“Security Scare At Trump Rally“); see also https://en.wikipedia.org/wiki/Attempted_assassination_of_Ronald_Reagan (“Attempted assassination of Ronald Reagan“) and https://en.wikipedia.org/wiki/Gerald_Ford#Assassination_attempts (“Gerald Ford: Assassination attempts“) and https://en.wikipedia.org/wiki/George_Wallace#Democratic_presidential_primaries_of_1972_and_assassination_attempt (“George Wallace: Democratic presidential primaries of 1972 and assassination attempt“)

Dimassimo and Secret Service agents

It has been reported that “Dimassimo is an avid supporter of Vermont Senator and Democratic presidential candidate Bernie Sanders on social media, as well as being active with the Black Lives Matter movement.”

See http://www.dailymail.co.uk/news/article-3489576/Trump-left-visibly-shaken-Ohio-rally-scare-SS-agents-race-surround-stage-minutes-brushed-night-s-Chicago-racist-violence-planned-attack-professional-wiseguys.html (“Pictured: The moment a protester tries to rush Trump on stage in Ohio – leaving him visibly shaken – just minutes after he brushed off last night’s Chicago violence as a ‘planned attack by thugs’“); see also http://theconservativetreehouse.com/2016/03/12/shock-video-attempted-physical-attack-on-donald-trump-in-ohio-thwarted-by-secret-service-suspect-identified/comment-page-2/#comment-2249887 (“A student of Wright University in Dayton Ohio, Tom Dimassimo is a progressive leftist thug who has participated in various protests including flag burning”) and https://naegeleblog.wordpress.com/2015/12/11/boycott-the-gop-and-ignore-foreign-naysayers/#comment-8494 (“‘Black Lives Matter’ Thugs In Chicago”) and http://www.allenbwest.com/2016/03/breaking-we-just-learned-who-attacked-trump-this-morning-it-explains-everything/ (“Thomas Dimassimo turns out to be a ‘professional’ protester with a history of anti-American demonstrations”—”[H]e first came to national attention for holding ‘a protest’ where students stepped on the American flag on the grounds of Ohio’s Wright State University”) and http://www.atlantaga.gov/index.aspx?page=672&recordid=4006

Presidential aspirant, Dr. Ben Carson—who recently endorsed Trump—is quoted as having said: “If your expression is shutting down somebody else’s planned expression, you’re interfering with their rights.” Of course, Carson is correct.

Like

16 03 2016
Timothy D. Naegele

Trump Attacker Charged Federally [UPDATED]

Dimassimo and Secret Service agents

WDTN.com in Dayton has reported:

Thomas DiMassimo, the man accused of rushing the stage during Donald Trump’s rally on Saturday in Vandalia is facing federal charges.

The 22-year old has been charged in federal court with entering a restricted building without lawful authority, according to court documents.

It was announced Tuesday afternoon that he will be represented by local attorney, Jon Paul Rion.

According to court documents, DiMassimo knowingly entered a restricted area “cordoned off and otherwise restricted area where a person protected by the Secret Service [was temporarily visiting, without lawful authority to do so].”

DiMassimo is due in federal court March 23rd at 10:30 a.m. before Judge Sharon Ovington.

Local charges are being reviewed but haven’t been officially filed in the Dayton Municipal Court.

See http://wdtn.com/2016/03/15/accused-donald-trump-stage-runner-charged-federally/ (“Accused Donald Trump stage runner charged federally”) (emphasis added); see also http://www.inquisitr.com/2888758/thomas-dimassimo-22-year-old-receiving-death-threats-following-ohio-trump-rally/ (“Thomas DiMassimo: 22-Year-Old Receiving Death Threats Following Ohio Trump Rally“) and https://naegeleblog.wordpress.com/2013/07/15/justice-and-the-law-do-not-mix/#comment-8503 (“Ohio Judge Who Released Trump Attacker Must Be Removed From Office“)

The pending count of the complaint against DiMassimo:

18 U. S.C. Section 1752(a)(1 )- Knowingly enter and remain in a restricted building and on grounds at Wright Bros. Aero, 3700 McCauley Drive, Vandalia, Ohio, which was then a posted, cordoned off and otherwise restricted area where a person protected by the Secret Service was temporarily visiting, without lawful authority to do so.

However, this case is in its preliminary stages, before Magistrate Judge Ovington; and additional counts may be added.

As presently charged, DiMassimo could face a year in federal prison.

See USA v. DiMassimo, Case #: 3:16-cr-00037-SLO, U.S. District Court for the Southern District of Ohio (Dayton); see also http://www.mydaytondailynews.com/news/news/trump-protestor-faces-a-year-in-prison/nqmCw/ (“Trump protestor faces a year in prison“)

Like

16 03 2016
Timothy D. Naegele

President Trump Must Fill The Supreme Court Vacancy [UPDATED]

Donald Trump

Cracks are emerging already in the Senate’s GOP “establishment” with respect to filling the vacancy on the U.S. Supreme Court created by the death of Justice Antonin Scalia.

The Hill has reported:

Senate Majority Leader Mitch McConnell (R-Ky.) on Wednesday shot down the idea of Supreme Court nominee Merrick Garland getting a hearing.

McConnell insisted in a floor speech that the vacancy should be filled by the next president.

“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction,” he said.

“The Senate will continue to observe the ‘Biden Rule’ so the American people have a voice in this momentous decision. The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy.”

Speaker Paul Ryan (R-Wis.) stood by McConnell’s decision.

“This has never been about who the nominee is. It is about a basic principle. Under our Constitution, the president has every right to make this nomination, and the Senate has every right not to confirm a nominee.

“I fully support Leader McConnell and Chairman [Chuck] Grassley’s [R-Iowa] decision not to move forward with the confirmation process. We should let the American people decide the direction of the court.”

President Obama on Wednesday nominated Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia, to the Supreme Court.

Obama animatedly called on Republicans to allow a hearing and vote on the nominee.

“It is tempting to make this confirmation process simply an extension of our divided politics, the squabbling that’s going on in the news every day,” he said. “But to go down that path would be wrong. It would be a betrayal of our best traditions and a betrayal of the vision of our founding documents.

“This is precisely the time when we should play it straight.”

McConnell said just hours after the death of Justice Antonin Scalia last month that the vacancy should be filled by the next president.

As he has done repeatedly, McConnell on Wednesday cited remarks Vice President Biden made when he was Senate Judiciary Chairman in 1992. At the time, Biden said a hypothetical Supreme Court opening should not be filled during a presidential election year, and that it was acceptable for the court to only have eight justices temporarily.

“President Obama and his allies may now try to pretend this disagreement is about a person, but as I just noted, his own vice president made clear it’s not,” McConnell continued. “The Biden Rule reminds us that the decision the Senate announced weeks ago remains about a principle, not a person.”

McConnell implored his colleagues to focus on bipartisan legislation to combat drug abuse.

“We just passed critical bipartisan legislation to help address the heroin and prescription opioid crisis in our country. Let’s build on that success. Let’s keep working together to get our economy moving again and make our country safer, rather than endlessly debating an issue where we don’t agree.”

See http://thehill.com/blogs/blog-briefing-room/news/273230-mcconnell-no-hearing-for-garland (“No hearing for Obama’s Supreme Court nominee, McConnell says“) (emphasis added)

Since when has Barack Obama “play[ed] it straight” with the GOP or the American people? He has governed by executive orders, which must be reversed on Day One of the Trump presidency.

Mitch McConnell is one of the GOP “establishment” Neanderthals. However, realizing that the “Trump Revolution” is underway, he seems smart enough so far to block any consideration of Barack Obama’s pick to fill the vacancy.

His GOP Senate colleagues are as “dense” as ever. Indeed, POLITICO has reported:

Majority Leader Mitch McConnell may be holding the line, but a handful of Senate Republicans say they would meet with Supreme Court nominee Merrick Garland — a sign of emerging cracks in the brick wall the GOP has presented thus far.

New Hampshire Sen. Kelly Ayotte, who’s facing a tough reelection fight, said that while she still opposes moving on a nomination ahead of the presidential race, she would take the time to explain her position to Garland. When the nomination was still conceptual, Ayotte had said she would not meet the nominee.

Sen. Jeff Flake, a Republican who sits on the Judiciary Committee, said he would also meet with Garland. And Sen. Susan Collins, a Maine Republican, added that she’d take a meeting with Garland.

“He’s a current appeals court judge and out of courtesy and respect we will certainly meet with him if he would like to meet with me,” Ayotte said. “I would want to explain my position to the nominee. . . . I would want to give him that courtesy.

Ayotte is gearing up for a close reelection race against New Hampshire Gov. Maggie Hassan, a Democrat who has been hammering Ayotte as obstructionist.

Other Republican senators indicated they’d be at least willing to talk to the nominee.

Iowa Sen. Chuck Grassley, who chairs the Judiciary Committee, is expected to talk to Garland on the phone at 3 p.m. Collins told reporters “I view it as my job,” when it comes to meeting with Obama’s pick.

Illinois Sen. Mark Kirk said he had “reaffirmed my commitment to represent and people of Illinois in an independent and thoughtful manner, free from the partisanship and political rancor that too often consumes Washington” and would therefore “assess Judge Merrick Garland based on his record and qualifications.”

Pennsylvania Sen. Pat Toomey tweeted that he would “happy to carefully consider” Garland’s nomination if his name were submitted by the next president.

Other leading Republicans, meanwhile, sought to hold the line.

Utah Sen. Orrin Hatch, appearing on Fox Business Wednesday, said that during a “toxic year” like 2016 it is not acceptable for Obama’s pick to be confirmed.

“This is not the way that there are Supreme Court nominations. It isn’t the person, it isn’t the person that we’re against,” Hatch said.

The process was “reducing the respect of the court,” Hatch added. “This is important stuff and it shouldn’t be brought up when people are screaming and shouting.”

See http://www.politico.com/story/2016/03/kelly-ayotte-to-meet-merrick-garland-220868 (“GOP Supreme Court blockade showing early cracks“) (emphasis added); see also http://www.nysun.com/national/hamilton-saw-senate-power-to-block-a-nomineeas/89503/ (“[Alexander] Hamilton Saw Senate Power To Block a Court Nominee As an Antidote to Kings”—”The topic of Federalist 69 [one of the columns he wrote back in 1788 under the pen-name Publius] is the ‘real character of the executive.’ It makes it clear that in filling the seat once held by Justice Antonin Scalia, President Obama is at the complete mercy of the Senate — and should be”)

As a historical footnote to all of this, no autopsy was performed on Scalia; and it is clear that his death was handled improperly.

Also, the court over which Obama’s nominee Garland presides—the U.S. Court of Appeals for the District of Columbia Circuit, reputedly the second highest court in the nation—is one of America’s most “lawless” courts. It does not follow binding precedents of the U.S. Supreme Court, or even previous decisions that the D.C. Circuit has issued itself.

To elevate a judge from this court to the U.S. Supreme Court would be a monumental travesty.

Americans are angry enough already. However, if they knew how corrupt our legal system really is, their anger would grow exponentially. As I have written in the article above:

[T]he proceedings in most American courts are remarkably close to “Law West of the Pecos by Judge Roy Bean,” the hanging judge. In Bean’s court, the law was what he said it was, and nothing else mattered. Too often in U.S. courts today, very little has changed. Judges have become the law unto themselves.

. . .

See also http://humanevents.com/2016/03/16/voters-deliver-subtle-message-die-donor-scum/ (Ann Coulter, who worked on the Senate Judiciary Committee: “Voters Deliver Subtle Message: Die Donor Scum”—”One would have to search the history books to find a party establishment so emphatically rejected by the voters as today’s Republican Party has been”—”Trump and Cruz have totally rejected the Bush/Ryan/Rubio/Fox News/WSJ/RNC establishment position on immigration”—”After Mitt Romney lost an election he should have won in 2012, . . . the party was dead”—”Only Ted Cruz was smart enough — or hated the Republican establishment enough — to adopt Trump’s pro-American immigration policies”—”They’ve crushed the rest of the field — winning large majorities of Hispanics along the way, incidentally. Between them, Trump and Cruz have won 77 percent of the delegates (1,067). The donor-approved, mass immigration advocates, John Kasich and the (late, lamented) Marco Rubio, have 23 percent (313)”—”Rubio lost every single county in Florida to Trump but one. He went 1 for 66 in a state where he is not only a U.S. senator, but also a former house speaker. He outspent Trump by about 500 percent and still lost his home state by 20 points”—”On Tuesday night, Kasich barely won his own state, making him 1 for 29 in GOP primaries. The one and only primary he’s won is in the state where he’s the sitting governor”) and http://www.nytimes.com/interactive/2016/us/elections/primary-calendar-and-results.html?_r=0 (“2016 Delegate Count and Primary Results“)

Like

1 04 2016
Timothy D. Naegele

Trump Attacker Federal Trial Date Set

Dimassimo and Secret Service agents

Magistrate Judge Sharon L. Ovington set an expedited schedule today with respect to Thomas DiMassimo, who tried to attack Donald Trump at a campaign rally in Dayton, Ohio on March 12, 2016.

See https://naegeleblog.wordpress.com/2013/07/15/justice-and-the-law-do-not-mix/#comment-8503 (“Ohio Judge Who Released Trump Attacker Must Be Removed From Office“) and https://naegeleblog.wordpress.com/2013/07/15/justice-and-the-law-do-not-mix/#comment-8517 (“Trump Attacker Charged Federally“)

Discovery is due by April 11, 2016; a status conference has been set for April 15, 2016 at 10:30 a.m. in the judge’s chambers; pre-trial motions are due by April 25, 2016; a final pre-trial conference is set for May 23, 2016 at 10:30 a.m. in the judge’s chambers; and a jury trial set for May 31, 2016 at 9:30 a.m. in Courtroom 5 – Dayton before Judge Ovington.

See http://www.sent-trib.com/news/trial-set-for-ohio-student-who-rushed-trump-rally-stage/article_e3d7dafc-f760-11e5-8a05-bff60f0f794c.html (“Trial set for Ohio student who rushed Trump rally stage“)

Like

5 07 2016
Timothy D. Naegele

There Is No Justice In America: FBI Won’t Recommend Criminal Charges Against Hillary Clinton [UPDATED]

Hillary

The Wall Street Journal has reported:

FBI Director James Comey said Tuesday that Hillary Clinton was “extremely careless” in handling classified information while secretary of state and added scores of emails on her personal server contained highly classified information—but he said the FBI won’t recommend criminal charges against the presumptive Democratic presidential nominee.

In a 15-minute statement at FBI headquarters, Mr. Comey said that after an exhaustive, apolitical investigation, the FBI found that “no reasonable prosecutor would bring such a case.”

The final decision on charges will be made by top Justice Department officials, but the FBI recommendation is likely to carry great weight in the case. Mr. Comey began his remarks by saying no one at the Justice Department or any other government agency knew what he was about to propose.

While the announcement is a major positive development for the Clinton camp, Mr. Comey’s comments were hardly uncritical of Mrs. Clinton, saying she and her State Department colleagues were irresponsible in their handling of national secrets.

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information,” Mr. Comey said.

The FBI director also insisted that the recommendation was made without outside influence. Mrs. Clinton’s husband, former President Bill Clinton, met several days ago with Attorney General Loretta Lynch, leading to widespread criticism that such a meeting was inappropriate. Mrs. Lynch later said she regretted the meeting and intended to accept the recommendation of the FBI and professional prosecutors regarding any charges.

“Only facts matter, and the FBI found them here in an entirely apolitical and professional way,” Mr. Comey said.

The recommendation against charges could help bring to an end a political drama that has dogged Mrs. Clinton’s campaign for nearly a year and a half.

Still, Mrs. Clinton’s ratings on trustworthiness have been damaged by the email matter, and Republicans have made it clear they’ll make ethics a central part of the fall campaign. Presumptive Republican presidential nominee Donald Trump has taken to calling Mrs. Clinton “Crooked Hillary” on the campaign trail, saying her alleged lapses on the email issue make her unfit for the White House.

Within minutes of Mr. Comey’s announcement, Donald Trump said in tweet: “The system is rigged” adding, “FBI director said Crooked Hillary compromised our national security. No charges. Wow!”

House Speaker Paul Ryan (R., Wis.), said in a statement: “While I respect the law-enforcement professionals at the FBI, this announcement defies explanation. No one should be above the law.”

Mr. Comey’s comments lambasting the handling of sensitive information by Mrs. Clinton and her colleagues—due to her decision to use a personal email server for her government work—could provide plenty of grist for such attacks.

A leading Republicans said Mrs. Clinton’s conduct was irresponsible even if she was not charged. “This is still very troubling,” House Majority Leader Kevin McCarthy (R., Calif.) told reporters. Mr. McCarthy said Mr. Comey’s statement undermined Mrs. Clinton’s claims that she was not mishandling classified information. “We know now that was not true,” he said.

Several organizations have filed their own lawsuits in to obtain emails and other government documents from Mrs. Clinton’s tenure as secretary of state, and those could still yield new information.

Even so, the conclusion of the FBI investigation helps lift some of the clouds hanging over the Clinton campaign. Coupled with the recent report of a House committee on the terrorist attacks on Benghazi, which provided few significant new details, it allows Mrs. Clinton to head into her party’s convention with the high-profile official probes into her record seemingly over.

Mrs. Clinton is expected to campaign with President Barack Obama in North Carolina on Tuesday, flying with the president on Air Force One in their first joint campaign appearance of the year.

See http://www.wsj.com/articles/fbi-won-t-recommend-clinton-be-indicted-over-private-email-use-1467731774 (“FBI Won’t Recommend Criminal Charges Against Hillary Clinton Over Private Email Use“) (emphasis added); see also https://naegeleblog.wordpress.com/2015/12/11/boycott-the-gop-and-ignore-foreign-naysayers/#comment-8963 (“Not Surprisingly, The Clintons Are Racists And Anti-Semites“) and (“https://naegeleblog.wordpress.com/2010/09/24/washington-is-sick-and-the-american-people-know-it/#comment-7185 (“Clinton Fatigue”)

This is a travesty and shameful.

Massive indictments of Hillary Clinton and her co-conspirators must be handed down on Day Two of the Trump presidency, with charges leveled at Comey and others for obstruction of justice.

Either our legal system works or it doesn’t. If not—which seems clear—then it is time for sweeping reforms that will include getting rid of the “dead wood” that permeates our judiciary.

The American legal system today is essentially on a par with that of Russia.

Like

8 07 2016
Timothy D. Naegele

Will Americans Elect The Criminal Hillary Clinton As Their President? [UPDATED]

Hillary

Pat Buchanan—an adviser to Presidents Richard Nixon, Ronald Reagan and Gerald Ford, and a former GOP presidential aspirant himself—has written:

Does Hillary Clinton possess the integrity and honesty to be president of the United States? Or are those quaint and irrelevant considerations in electing a head of state in 21st-century America?

These are the questions put on the table by the report from FBI Director James Comey on what his agents unearthed in their criminal investigation of the Clinton email scandal.

Clinton dodged an FBI recommendation that she be indicted for gross negligence in handling U.S. security secrets, a recommendation that would have aborted her campaign. But Director Comey dynamited the defense she has been offering the country.

Comey all but declared that Clinton lied when she said she had State Department approval for the email server in her home.

He all but declared that she lied when she said she had only one server, and that no classified or secret material was transmitted. He also implied that she lied when she said she had used only one device and had turned over all of her work-related emails to State. The FBI found “several thousand” more.

Clinton said her emails were stored in a secure area. This, too, was false. Hostile actors and hostile regimes, said Comey, had access to email systems of those with whom she communicated.

Comey said he found no criminal “intent” in what Clinton did.

Yet, he charged her with having been “extremely careless” with U.S. national security secrets, a phrase that seems synonymous with the gross negligence needed to indict and convict.

While recommending against prosecution, Comey added, “This is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequence. To the contrary, those individuals are often subject to security or administrative sanctions.”

Translation: Were Clinton still the secretary of state and were such recklessness with secrets to be discovered, she could have been forced to resign and stripped of her security clearance forever.

Yet if Clinton is elected president, our commander in chief for the next four years, and her confidantes Huma Abedin and Cheryl Mills, will all be individuals the FBI has found to be reckless and unreliable in the handling of national security secrets.

We will have security risks running the armed forces of the USA.

Nor is this the first time Clinton’s truthfulness has been called into question. Twenty years ago, she fabricated a tale about crossing a tarmac in Bosnia “under sniper fire,” and running with “our heads down.” Photos showed a peaceful arrival featuring a smiling little girl.

Family members of the dead heroes of Benghazi’s “13 Hours” say Clinton told them she would see to it that the creator of the anti-Islamic video that incited the mob that killed their sons would be run down, all the while knowing it had been a planned terrorist attack.

In 1996, the New York Times’ William Safire went over all of the statements Clinton had made in Whitewater and related scandals of Bill Clinton’s first term, compared them with subsequently revealed truth, and pronounced Hillary Clinton a “congenital liar.”

She has claimed she tried to join the Marines in 1975, and long contended she was named for famed mountaineer Edmund Hillary, who conquered Mount Everest. Only Sir Edmund climbed Everest when Hillary was 6 years old. The perfect running mate for this serial fabricator would be the Cherokee lass Elizabeth Warren.

Still, a question arises as to Comey’s motives in airing the findings of an FBI investigation. Normally, the bureau passes on the evidence it has found, along with its recommendation, to the Justice Department. And Justice decides whether to prosecute.

Instead, Comey called a press conference, documented the charge that Clinton was “extremely careless,” contradicted, point by point, the story she has told the public, then announced he was recommending against prosecution.

What was behind this extraordinary performance?

By urging no prosecution, but providing evidence for a verdict of criminal negligence in handing classified material, Comey was saying:

I am not recommending prosecution, because, to do that, would be to force Hillary Clinton out of the race, and virtually decide the election of 2016. And that is not my decision. That is your decision.

You, the American people, should decide, given all this evidence, if Clinton should be commander in chief. You decide if a public figure with a record of such recklessness and duplicity belongs in the Oval Office.

Comey was making the case against Clinton as the custodian of national security secrets with a credibility the GOP cannot match, while refusing to determine her fate by urging an indictment, and instead leaving her future in our hands.

And, ultimately, should not this decision rest with the people, and not the FBI?

If, knowing what we know of the congenital mendacity of Hillary Clinton, the nation chooses her as head of state and commander in chief, then that will tell us something about the America of 2016.

And it will tell us something about the supposed superiority of democracy over other forms of government.

See http://www.wnd.com/2016/07/will-americans-elect-a-congenital-liar-president/#! (“Will Americans elect a ‘congenital liar’ president?”) (emphasis added; italics in original); see also https://www.washingtonpost.com/opinions/comey-a-theory/2016/07/07/297f9bd0-4478-11e6-8856-f26de2537a9d_story.html (“FBI Director James Comey spent 14 minutes laying out an unassailable case for prosecuting Hillary Clinton for the mishandling of classified material. Then at literally the last minute, he recommended against prosecution. Under the statute (18 U.S.C. section 793(f)), it’s a felony to mishandle classified information either intentionally or ‘through gross negligence.’ The evidence, as outlined by Comey, is overwhelming”—”Clinton either sent or received 110 emails in 52 chains containing material that was classified at the time. Eight of these chains contained information that was top secret”—”These were stored on a home server that was even less secure than a normal Gmail account. Her communications were quite possibly compromised by hostile powers, thus jeopardizing American national security”—”She meant to do what she did. And she did it. Intentionally”—”[T]he Clintons are treated by a different standard. Only little people pay. They are too well-connected, too well-protected to be treated like everybody else. Alternatively, the explanation lies with Comey: He gave in to implicit political pressure, the desire to please those in power”)

Comey must be driven from the FBI and prosecuted himself.

The agency has been corrupt for decades; however, he may be the most corrupt official in its history.

Also, Clinton must be indicted at the outset of the Trump presidency, and spend the rest of it in an orange prison jumpsuit. Only a presidential pardon by Barack Obama may save her from this fate.

Like

15 07 2016
Timothy D. Naegele

Who Gave Us Justice Ginsburg?

Ruth Ginsberg

This is the tile of an article by Pat Buchanan—an adviser to Presidents Richard Nixon, Ronald Reagan and Gerald Ford, and a former GOP presidential aspirant himself:

“Her mind is shot.”

That was the crisp diagnosis of Donald Trump on hearing the opinion of Justice Ruth Bader Ginsburg on the possibility he might become president.

It all began with an interview last week when the justice was asked for her thoughts on a Trump presidency. Ginsburg went on a tear.

“I can’t imagine what this place (the Supreme Court) would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

Yet she had contemplated the horror of it all, as she quoted her late husband as saying of such a catastrophe, “It’s time for us to move to New Zealand.”

This week, Ginsburg doubled down.

“Trump is a faker,” she vented in chambers on Monday, “He has no consistency about him. He says whatever comes into his head. … He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

Sounding like Democratic Party Chair Debbie Wasserman Schultz, Ginsburg attacked the Senate for not voting on Judge Merrick Garland to fill the seat of the late Justice Antonin Scalia.

“That’s their job. There’s nothing in the Constitution that says the president stops being president in his last year.”

True, your honor, but there is also nothing in the Constitution that says the Senate must vote expeditiously, or at all.

Ginsburg hailed Justice Anthony Kennedy as “the great hero of this term” for his votes upholding abortion rights and affirmative action.

“Think what would have happened had Justice Scalia remained with us,” she added, which comes close to saying the death of the great jurist was not entirely unwelcome to the leading liberal on the court.

“I’d love to see Citizens United overruled,” Ginsburg volunteered, which gives us a pretty good idea how she will vote when that question comes before the court again.

As the Wall Street Journal notes, under Section 28 US Code 455, “(a)ny justice, judge or magistrate judge of the United States must disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Since “himself” and “his” refer to men, perhaps Ginsburg does not think the rules apply to her.

The federal code of judicial conduct for U.S. judges, says the Chicago Tribune, states that a “judge should not … publicly endorse a candidate for public office.”

But does not Ginsburg’s relentless trashing of Trump constitute a political attack on him, to help his opponent Hillary Clinton?

Ginsburg “should resign from the Court before she does the reputation of the judiciary more harm,” says the Journal.

There is a precedent. Justice Abe Fortas resigned in 1969 in a scandal when his ties to a convicted swindler became known.

But a dissent here. Why should Ginsburg resign? Did anyone doubt she held these views? Did she hide her radical liberalism from the Senate that confirmed her 96-3 in 1993, with only three Republicans dissenting, led by the venerable Jesse Helms?

Ginsburg was an ACLU lawyer and feminist-activist when she was named to the appellate court by Jimmy Carter. Her views were no secret to anyone when the Senate confirmed her.

Let us not pretend we did not know. Thus, why should she step down for airing political and ideological views everyone knew she held?

Liberal angst is understandable. Ginsburg is giving away the game.

How can liberals credibly uphold the pretense that Supreme Court decisions, where the left is the majority, represent judgments based on the Constitution, when Ginsburg, the leading leftist, has revealed herself to be a rabid partisan who can’t wait to use her judicial power to impose her ideology upon the United States?

Ginsburg detests Trump. She wants to kill super PACs. She thinks discrimination against white males is fine if it advances diversity. She thinks Republican Senators are blockheads who do not know their duties.

She thinks the death penalty is barbaric, and that abortion on demand and same-sex marriage are progressive. She is waiting for a case to come before her so she can restrict gun rights.

In a democratic republic, she has a right to hold and air these views.

But a democratic republic no longer exists when justices of the mindset of Ginsburg, who have never been elected, but serve for life, can impose these views, anti-democratically, upon the country.

Since the Earl Warren era, the Supreme Court has usurped the legislative power and imposed social policies, and Congress, which has the power under Article III to shackle the Ruth Bader Ginsburgs and restrict the court’s jurisdiction, has lacked the courage to do so.

This is the problem, not Ginsburg. She does what leftist ideologues do. The problem is elsewhere.

Pogo said it best, “We have met the enemy — and he is us.”

See http://buchanan.org/blog/gave-us-justice-ginsburg-125436 (emphasis added); see also http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_GINSBURG_TRUMP?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2016-07-14-10-16-40 (“GINSBURG APOLOGIZES FOR “ILL-ADVISED” CRITICISM OF TRUMP“)

While many of us oppose abortions, it is a shame that Ginsburg was not aborted.

Like

23 07 2016
Timothy D. Naegele

Efforts To Destroy Hershey Must End [UPDATED]

Hershey bar

The Wall Street Journal has reported:

Hershey Co.’s largest shareholder—a trust that oversees billions of dollars for a local, nonprofit school—has agreed to make significant governance changes that could affect the future of the chocolate company, according to people familiar with the matter.

Hershey Trust Co. has agreed on terms of a settlement with Pennsylvania’s top law-enforcement officer, which has been investigating the trust board over allegations of excessive compensation and conflicts of interest.

The parties are in the process of drafting a legal document outlining the terms, which would lead to resignations of some trust board members, these people said. The settlement would include enforcing a cap on compensation and term limits of board members, according to these people.

With its roughly 30% stake in Hershey and 81% of its voting power, the Hershey Trust plays a key role in the future of the chocolate company.

A few weeks ago, Mondelez International Inc., maker of Oreo cookies and Ritz crackers, made a $23 billion bid for Hershey. The offer was rejected unanimously by Hershey’s corporate board, which includes three members of the trust’s board.

“We have reached an agreement in principle and are working on the final details in productive discussions with the Office of the Attorney General,” a spokesman for the trust said Friday.

First Deputy Attorney General Bruce Castor said in an email Friday that he met with board members and a lawyer for the trust on Thursday and agreed “in principal to a series of changes.” He declined to give further details on the proposed deal.

Industry experts say the upheaval, and a nearly entirely new 10-person board, could give Mondelez or other potential bidders an opening to try to buy the company.

Any future offers for Hershey that are accepted by the corporate board would require the approval of the trust as well as the Pennsylvania Attorney General’s Office, which has oversight powers over the trust and can take it to court to stop a sale if it thinks it will hurt the local economy.

The Hershey Trust has opposed efforts to sell the company in the past, as it has been under pressure by the local community to keep Hershey independent. In 2002, the trust ultimately rejected an offer by Wm. Wrigley Jr. Co.

The trust’s board has a legal obligation to act in the best interest of the Milton Hershey School for underprivileged children. Proceeds from the trust’s investments provide the revenue to run the school, which has about 2,000 students, many of whom get jobs and internships within the Hershey empire, including the chocolate factory in town, the Hershey resort and the local theme park.

But the trust’s roughly $12 billion endowment is largely tied up in Hershey stock, making its portfolio heavily concentrated. Some say selling the company would benefit the school by diversifying the trust’s assets and generating higher returns.

At issue in the current investigation by the attorney general’s office were concerns about alleged overpayments for board members, reimbursements for exorbitant travel expenses and term limits that exceed 10 years, according to internal memos from the attorney general’s office reviewed by The Wall Street Journal.

Under the settlement, several board members would resign at the end of the year, according to people familiar with the matter. This would be in addition to the four who have resigned in the past several months.

See http://www.wsj.com/articles/hershey-trust-to-reach-settlement-with-pennsylvania-attorney-generals-office-1469224460 (“Hershey Trust to Reach Settlement With Pennsylvania Attorney General’s Office“) (emphasis added)

Government does not work, at any level. It is a vast wasteland of bureaucracy, inefficiencies, petty yet gigantic egos and abuses of power, and everything bad that the American people think it is, and far worse.

For those of us who have worked in and with governments at all levels in the United States, the time-tested axiom—the government that governs least governs best—rings with amazing clarity. The American people are wise, and they know this intuitively, which undergirds the Trump and Sanders movements.

Second, Hershey is an American institution. Many of us have eaten Hershey bars since we were kids; and while fancier chocolate bars have emerged in the market, we still choose Hersheys because we love them. The idea that this great company could be torn asunder by some hack AG’s office is an affront to everything we believe in.

The Hershey Trust has opposed efforts to sell the company in the past, and rightly so, which must continue.

Hands off Hershey! Get rid of the AG instead!

. . .

Perhaps the most egregious example of AGs’ corruption has involved the extortion of America’s banks, shareholders and customers, to the tune of $110 billion. As I have written:

The prosecutors must be held personally responsible as well, and their legal careers must be ended. They are a vicious and unprincipled lot anyway. The same is true of the corrupt politicians who were involved in this wholesale fleecing of America’s banks.

Each of these lawless monsters should be imprisoned, where true justice will be meted out by the inmates.

See https://naegeleblog.wordpress.com/2016/01/16/the-obama-great-depression/#comment-8469 (“Extortion: Big Banks Paid $110 Billion In Mortgage-Related Fines“)

Like

What do you think?

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




Follow

Get every new post delivered to your Inbox.

Join 228 other followers

%d bloggers like this: