Slaying one's hobgoblins and all that

>> Wednesday, February 19, 2014

I confess to being a little but baffled by this Gallup Poll about the war in Afghanistan. What I think it means is that the war has gone on for too damn long, to no damn purpose, and that the American people are tired of dealing with a country whose people seem bound and determined to slaughter each other as a kind of statement of national identity. And it's not as though the margin of difference is overwhelming; the difference is one percentage point after 12 years of fighting. But what puzzles me is this. Fifty-nine percent of Democrats, and 36 percent of Republicans, think that sending troops into Afghanistan was a bad idea in the first place. This indicates to me that some serious historical amnesia is at work here.
The Politics Blog, Esquire, February 19th, 2014.

I love Charlie Pierce's politics blog, but I confess to being confused by his confusion.  I don't think there's historical amnesia at play so much as there's an ongoing sober reevaluation of America's longest war.

Pierce is absolutely right, I think, when he points out that any American President--even Al Gore--would have done something to Afghanistan after the September 11th, 2001 attacks.  If anything, he may actually understate the case, seeing as how Democrats have a long and dubious history of not wanting to look like wusses in Foreign Policy--see also Truman, Harry S. and Korea; Johnson, Lyndon B. and Vietnam, et al..  Not only that, but Democrats also have a bit of a history with military adventurism in the service of international interventionism--see also Wilson, Woodrow and pretty much his entire foreign policy; Roosevelt, Franklin D. and Lend-Lease, Roosevelt, Franklin D. and Panay Incident, etc..  (I might hasten to add a "for-better-or-worse" to that last bit, seeing as how Wilson was an asshole but FDR ultimately on the side of the angels.)

So it's kind of a given, I think, that any President would have done something retaliatory to Afghanistan after 9/11, and I'd add that a Democrat would be more likely to do it with some chest-thumping and extreme prejudice than a Republican for assorted historical and political reasons, notwithstanding how bloody well that worked out for poor Lyndon Baines.  But once the blood cools and things settle down, why is it any surprise that Americans would look back and say, "Oh... oops," about how that played out?

There's actually two takes on that.  The first is that there were certainly Americans who thought going into Afghanistan was a mistake from the get-go; my Dad, for one, thought the whole thing was a mess from the moment President Bush delivered an ultimatum to the Taliban to turn over al Qaeda or else, when the Taliban had exactly no chance of being able to comply even if they wanted to.  Those folks have been consistent and vindicated.  One suspects from his headline that Charles Pierce might be one of them--"Why Didn't We Listen To Alexander The Great?" (or to Queen Victoria or to Leonid Brezhnev, for that matter?), indeed.  The second is that there were those--I'm embarrassed, now, to count myself amongst them--who thought doing something about the festering wound Afghanistan had turned into following the Soviet withdrawal might actually be a good idea, only to have that idea blow up in their--our--faces.

I think it's that second category that represents the great and gradual shift that appears to baffle Pierce.  It's basically moot at this point whether the Afghanistan intervention failed because it was always a bad idea (right, Vizzini?) or because the Bush Administration turned right around and spread the country thin by invading Iraq for no legitimate reason.  I can say that there was a window of time, there, where hearing news reports on NPR (for instance) about how Afghan movie theatres were opening for the first time since 1996 and about how girls were being allowed to go to school for a change made one feel a little good about the use of force in Afghanistan.  One doesn't want to go off the rails and compare the awful Taliban too closely to the even-awfuler you-know-whos who rhyme with "Yahtzee", although the Taliban was and is pretty damn awful; but, anyway, it felt like this country was part of a liberation, on the right side of history, finally risking blood and treasure on something worthwhile that would improve the general lot of humanity and the specific lots of all the people who were no longer in the yoke of a tyrannical theocracy.

It's just that, you know, that window--which really was wonderful, and even a leftie like me had to give Bush grudging credit for his role in prying it open--closed.  And hard.  With our fingers in the damn thing.  So naturally you wonder if it was worth opening in the first place, especially since it appears that all that wonderful freedom has blown away like so much smoke on the wind and the Afghans and Americans who had to die for it remain dead with little, maybe even no, lasting benefit to anybody.

Deciding you were wrong and admitting it isn't amnesia.  It's learning.  I screwed the proverbial pooch on Afghanistan.  (Dad, you were right, okay, don't rub it in.)  Our intentions may have been good, but, you know, the road to Hell and all that.  There may have been some good out of it for just a little while, and maybe things will eventually sort out better for everyone (though it hardly seems likely), but yeah, I can't say the price was worth it.  The last grudging defense I can offer for my prior position is that maybe a better President wouldn't have invaded Iraq, and maybe would have planned out the war in Afghanistan a little better, and maybe a better Congress would have taken whatever necessary steps--actually budgeting for a war and occupation, for instance--to make the thing work.  I write that, but for all I know there's nothing anyone could have done to make the thing work out right, and so no point in trying to draw up a list of hypotheticals that leads to an imaginary alternate history where little girls in Afghanistan ride genetically-engineered rainbow unicorns to film school or whatever and nobody shoots anybody or blows them up into tiny pieces.  I can up my cliché count by mentioning that whole thing about wishes and beggars and horses.  You go to war with the President you have, anyway.  More wishes and horses.

If there's anything puzzling, it's not that increasing numbers of liberals who supported the war in Afghanistan now have completely justified buyer's remorse and admit we should never have made a down payment and probably ought to be looking to dump the lemon we stuck ourselves with.  (Sorry, little girls in Afghanistan.  We wish we could give you shiny new schoolhouses and could stick all the religious zealots into some kind of colony ship for morons like the one in Restaurant At The End Of The Universe.  But we're exhausted and sad and can't count each fallen sparrow anymore.)  What might be puzzling is that there are so many Republicans who surely must know the country got itself a lemon but, goddammit, they're going to drive that thing until the bottom falls out and then they'll Fred Flintsone it if they have to, and the whole time they'll insist it's the best goddamn car in the world, runs like a piece of Heaven on Earth, everyone ought to be so lucky as to have a set of wheels (or wheel--or, you know, like a millstone round the neck, but vulcanized) like this one.  Might be puzzling, except there's a large contingent over there--not all of them, but way too many--who apparently wouldn't admit a mistake even if doing so would get them a cash prize and a medal for humility.  I.e. it's not that puzzling, even if it's the kind of thing you can't help shaking your head over no matter how often you see it happening.  These are folks who don't just have small minds haunted by foolish consistencies: these are folks who have been known to dress those hobgoblins up in purple and gold finery and parade them around like the surly gnomes are Oberon and Titania undertaking a grand tour of the Athenian countryside.

For my part, I made a terrible mistake.  Maybe I was just doomed to make it, maybe I should have known better, maybe I was a dumbass.  Could be I still am, though I'd like to think I learned enough not to stick my pecker in the fire next time.  (Sorry, trying to channel LBJ, master of the vulgar metaphor, with that one.)  Anyway, I remember what I said then, I know what I'm saying now.  (And if I knew then what I know now....)  There shouldn't be anything puzzling about a man admitting he got it wrong and people died who shouldn't have; I wish it could be undone.


The truth is a chain, one end 'round your neck and the other 'round your sins

>> Monday, February 10, 2014

I'm so mad at Emily Bazelon right now, I could chew through a railroad spike.

She has a longform piece up in Slate this week about Patricia Esparza, "Who Killed Gonzalo Ramirez?"  There's the link, though I can't decide if it's worth reading or not.  The story, in a nutshell, is a tawdry and horrific one: in the mid-1990s, while still a college student, Dr. Esparza had some kind of alleged involvement in the torture and homicide of Gonzalo Ramirez; Dr. Esparza says that Ramirez raped her, and that when she told her then-boyfriend about this, her then-boyfriend and several of his associates staged a traffic accident with a vehicle Ramirez was in, abducted Ramirez from the scene of the collision, and then took Ramirez to his friends' auto shop, where Ramirez was chained up and beaten to death.  Gods only know what to make of the whole affair, whether it's just deserts for a sexual predator, a lesson in the horrors of vigilantism, or some other scenario occurred that will be revealed when the state of California makes its case-in-chief against the various codefendants, including Dr. Esparza, who have pleaded not guilty.

I'm not angry at Bazelon for her credulous acceptance of Dr. Esparza's side of things; for all I know, Dr. Esparza's account is absolutely true and accurate.  If things are the way they've been framed by Bazelon, it's not completely clear to me that Dr. Esparza committed a crime, unless she obstructed justice during her initial interviews with police.  I feel somewhat obligated to qualify all of this, however, because it does strike me as possible that there's some evidence against Dr. Esparza--perhaps the statement of a codefendant who's pleaded guilty to a reduced charge of manslaughter in exchange for truthful testimony, for instance--that might put Dr. Esparza into a more culpable position; much more depends on what she knew and when she knew it, I think, than upon what she did or didn't tell police.

Which gets to the heart of why I'm pissed at Ms. Bazelon.

You see, at some point in the saga, Dr. Esparza apparently got some incredibly good legal advice from a now-deceased attorney who she consulted several times, first for assistance in getting a divorce from one of her codefendants--

Dammit.  I suppose I need to explain: Dr. Esparza ended up marrying one of her now-codefendants in an attempt to invoke spousal privilege (which leaves one wondering if she knew more about Ramirez's death than she has let on).  Nevermind.  The important thing is that she apparently never had more than a sham marriage with this alleged co-conspirator, but she ended up falling in love with someone else and needing a divorce.  The man who wanted to be her fiancee put her in touch with the legendary Leonard Weinglass--which is, like, damn.  Most people would be lucky if their fiancee could put them in touch with the geezer who kept their grandma's will current, and Dr. Esparza's beau puts her in touch with the man who won cases for lefty causes célèbre like Daniel Ellsberg and Angela Davis, among others.

Here's how I know Weinglass was a good lawyer, aside from his CV: Dr. Esparza talks to Weinglass about why she wants her divorce, and Weinglass tells Esparza's future husband, "she’s right, it’s better for you not to know."  Which is exactly right and proper.  Dr. Esparza's situation is exactly why attorney-client privilege is a thing: "I need to end my sham marriage that I got into because my current husband was involved in the brutal unsolved slaying of a dude in California."  This really isn't something your new future husband needs to know about, seeing how mucked and muddled spousal privilege really is in the jurisdictions where it's even recognized.  This is the lawyer saying, "We talked about it, and I can't talk about it and she shouldn't talk about it, 'nuff said."

Anyway, that wasn't the last time Dr. Esparza spoke to Weinglass.  Bazelon writes (and I hope this will make enough sense; if not, you just need to go read the whole article):
 In 2010, a pair of new Santa Ana detectives, Dean Fulcher and Frank Fajardo, launched a new chapter in the investigation of Ramirez’s murder. When I emailed Fajardo to ask why, he put me in touch with the public affairs officer for the Orange County Police, who would only say the police had "new leads" at the time. But I can’t find any new evidence from that moment in the record. Maybe Fulcher and Fajardo were just interested in this old case. They did know that Esparza and Van had divorced, and that she no longer had a marital privilege to assert if she wanted to avoid testifying. Fajardo found her online and emailed her in September 2010: "I merely wish to speak with you regarding the incident, which occurred in 1995,” he wrote after introducing himself. “I hope you believe me when I tell you that you are NOT a person of interest NOR ARE YOU A SUSPECT in this case. ... You hold vital pieces of this puzzle and I hope you choose to help me." (The bolding is his.)

Esparza sent the detective’s message to Weinglass, who offered to talk to Fajardo on her behalf. After that conversation, Weinglass emailed Esparza counseling caution about talking herself to the police. Fajardo, he said, seemed interested in information she had already given the police in 1995 and 1996—specifically, about what she had told Van about Ramirez. "My impression is that they're not being totally honest with us and that this could become a kind of cat and mouse game where they're seeking more than they let on," Weinglass wrote.

Weinglass didn’t try to make a deal for Esparza—like immunity from prosecution in exchange for her full story of the events leading up to the murder. Instead, he wrote back to Fajardo saying that Esparza had already provided the police the information they now sought. "Hopefully, this answers your question and no further effort will be necessary to have her repeat what she has already twice said before," Weinglass wrote. "As you can well imagine recalling these events is very stressful to her. She is now a married woman, a mother, a professor and a resident of Europe. There is no intention here to impede your investigation; but, as you may well imagine, it's my obligation as her attorney to curtail any unnecessary intrusions into her new life." Weinglass died a few months later. Mancillas, meanwhile, says that while he knew the police wanted to talk to Esparza, she and Weinglass still wouldn’t tell him why. In hindsight, it's hard to believe or understand—for Mancillas, too. "In retrospect, now that I know the whole story, I think, how could I have not pushed?" he says. "I feel terribly guilty." But he trusted Weinglass, and the police inquiry coincided with a difficult period for him at work. "I was pulled by external demands," Mancillas told me, his voice breaking. Later, he emailed, "As I looked back at the last few years, I have just been unable to put aside that most corrosive of thoughts: what if?"

Gods bless you, Mr. Weinglass, wherever you are tonight.  Bazelon goes on to characterize Weinglass' advice as "bad", several times and repeatedly, and this is why we must be glad that Ms. Bazelon took her law degree into journalism instead of into the sordid trenches of the law.

So, let's see, where to begin unpacking the quoted passage?

First of all, we may safely presume Detectives Fulcher and Fajardo were lying to Dr. Esparza.  Because this is what cops do; indeed, the quoted e-mail is textbook Cops Lying To Perps 101: claim that the person being investigated isn't a "suspect" or "person of interest"?  Check.  Pleading for "help," claiming to the suspect that she's merely needed to "fill in puzzle pieces" or "shed some light" or some such happy horseshit?  Check.  "Trust me, I'm your friend"?  Check.  "You're the only person who can help (even though we're talking to twenty-eight other people already)"?  Check.  This is the same line of crap they've fed to almost every confessing defendant I've represented over the past sixteen years and change.  I feel like I could probably quote the e-mail Bazelon happily cites verbatim, sight unseen.  (The boldface is a nice touch: it makes up for the inability to lean in confidingly or to give a reassuring smile, eh?)

People, I think I've said this before, let me say it again: if the police are talking to you, you're a person of interest.  If they weren't interested, they wouldn't be talking to you.  The police assume you're as suspect until they've picked someone "likelier".

The first rule of talking to the cops is, you don't talk to the cops.  The second rule of talking to the cops is, what are you, some kind of fucking moron?  Seriously?  A more polite way to put that is something I often tell clients: you never lie to the police, because that will cause you worlds of harm, but you never tell them the truth, either.  And if you aren't going to lie and you aren't going to tell them the truth, what is it you're going to say?  Exactly.

Now, there is one thing you can say to the cops: "Talk to my lawyer."  Which, to her credit (though a little belatedly, having already run her mouth back in the mid-'90s when she first came to the cops' attention), is what Dr. Esparza did.  And Weinglass--I want to hug this man.  I want to go to the cemetery in Chicago, if that's where he's buried, and go to his grave and fall down on the ground and hug the ground where he's interred--Weinglass talks to the cops, and--since he isn't a complete idiot, and is indeed a veteran defense attorney who, for instance, got Daniel Ellsberg's charges of leaking government documents all dismissed even though Ellsberg was guilty as fuck (granted, the Nixon Administration's criminal conduct towards Ellsberg was a huge help), Weinglass smells the rat.  "Hey, yeah, they're screwing with you, keep your mouth shut, kiddo."

Which they are.  The cops.  Screwing with you.  They're looking for inconsistencies in your prior statements, that they can use to rope you into a confession or that they can turn over to the State so that whole "anything you say can and will be used against you" bit can come into play, impeaching you if you choose to testify, so the State can call you a big fat liar.  (Don't think those statements are coming into evidence?  Ms. Bazelon might want to reacquaint herself with the rules of evidence applying to prior inconsistent statements: that shit's admissible, baby.  (In most states, such admissibility is supposedly confined to impeachment purposes, although some quick surfing suggests California may allow prior inconsistent statements to be introduced during cross-examination for substantive purposes: anyone with a Cali law license who wants to opine on that in the comments, please do.  But let's be honest: even in states where prior inconsistent statements are only allowable for impeachment purposes, everybody knows that a jury, even when instructed that a prior statement is allowed for limited purposes, is going to take the prior statement at face value.))

I gotta tell you, Weinglass did a beautiful thing, next: he apparently phrased the kiss-off letter to the police so that his client's refusal to cooperate was entirely about her having moved on and himself being a cautious prick: "Go read your notes you already took, jagoff," he smoothly says.  "Stop bugging my client, who's a mom and a white collar professional and who you're not going to be able to hassle anyway unless you figure out extradition paperwork, asshole.  But don't get mad at her, P.S., because she's just doing what I'm telling her to do like we cocksucking bottom feeders like to do because we're difficult."  Did I say I could kiss this man?  I could kiss this man.  I tell my clients all the time, don't talk to the cops, tell them to talk to me, and make me the asshole, because that's my job.  "Gosh, officer, I'd really like to help, but my attorney is a total dick and he said I can't.  You'll need to go to him."  Bingo: you're cooperative and completely useless, exactly like you should be when you're a criminal suspect, which you are, because, duh, a cop is talking to you.

Bazelon makes something of Weinglass not securing some kind of nebulous deal for his unindicted client.  Like, um, what?  I don't see a prosecutor offering immunity unless he knows what he's getting, and he doesn't know what he's getting because, remember, we don't talk to cops.  Plus, that's kind of a fucked dance to get into: "My client doesn't know anything she didn't already tell you, so stop hassling her, but if you promise she isn't really going to prison, maybe she'll tell you the other stuff she doesn't know and you're supposed to stop hassling her over."  Really?  I've got a better idea: instead of making a deal where my client probably gets screwed in the end, how about she stays in Europe and the DA's office goes and does something anatomically improbable that's illegal everywhere except certain parts of Thailand?

Dammit, the only thing Weinglass did wrong was dying, and I doubt he did that on purpose.  Wikipedia says his pancreas went feral and ate him, which is a helluva horrible way to go and not on anyone's top ten list of ways to kick off.  I hope he exited gently.

Meanwhile the worst thing Bazelon has ever written in her career might be this paragraph in her summation:

Maybe Esparza is a figure of so much suspicion because it’s hard to square the 20-year-old she says she was—a young woman whose judgment was obliterated by fear—with the 39-year-old articulate professional she has become. Esparza is not always her own best advocate on this front. If she’d come clean in 2010, based on better legal counsel, and tried to right this old wrong from her past by telling the police the whole truth, she might have spared herself the ordeal of her arrest and prosecution. And by emphasizing the degree to which she has been a victim, she sometimes seems to lose sight of the greater magnitude of Ramirez’s suffering and death.

Feckin' hell, seriously?  She's not her own best advocate, so she ought to have spilled her guts to people whose job it is to send murderers and accessories to murderers to prison for a very long time?  Bazelon feels noble sympathy for Dr. Esparza, and for all I know it's well-placed: it may well be that Gonzalo Ramirez was a son-of-a-bitch who had it coming and Dr. Esparza no more than Ramirez's victim who played a small and should-have-been-innocent part in what happened to him.  (I'm not a fan of vigilante justice, nor of the death penalty for anything, but the world is a hard place, grey and dismal and we are all blind and stumbling in it.)  But that sympathy is married to a horrifying naivete: the foolish belief that the police are your friends, and just telling them the truth will straighten everything up and let you live your happy life with all your sins atoned for and your mistakes so far behind in the rearview they're not even closer than they appear anymore.  Gods only know what the whole truth would have been, even: for all I know, the whole truth is that Dr. Esparza's then-friends took her down to the garage and let her get a few good shots in, and maybe the truth is she had a right to them.  I'm not immune to the charms of Hercule Poirot's "alternative solution" to the Murder On The Orient Express.  But I know this (funny--the fictional M. Poirot knew it, too, hence his "real" solution to the death in compartment number 2): the truth was never going to set Dr. Esparza free.


Dumb quote of the day: into the Woods edition

>> Tuesday, February 04, 2014

The damnably difficult thing about all of this, of course, is that you can't presume that both are innocent at the same time. One of them must be saying something that is not true. But "he said, she said" doesn't resolve to "let's start by assuming she's lying," except in a rape culture, and if you are presuming his innocence by presuming her mendacity, you are rape cultured. It works both ways, or should: if one of them has to be lying for the other to be telling the truth, then presuming the innocence of one produces a presumption of the other's guilt. And Woody Allen cannot be presumed to be innocent of molesting a child unless she is presumed to be lying to us. His presumption of innocence can only be built on the presumption that her words have no credibility, independent of other (real) evidence, which is to say, the presumption that her words are not evidence. If you want to vigorously claim ignorance–to assert that we can never know what happened, in that attic–then you must ground that lack of knowledge in the presumption that what she has said doesn’t count, and we cannot believe her story.
- Aaron Bady, "Woody Allen's Good Name", The New Inquiry,
February 2nd, 2014.

The damnably difficult thing, actually, is that you can all-too-easily presume that two people telling diametrically opposed stories both believe they're recounting actual events.  That one of those accounts might not jibe with what a third party would have observed if they'd been there, or might not accord with whatever consensual reality might be agreed to by a dozen observers, or might not accord with other evidence, doesn't mean that a party is "lying" in any meaningful sense of the word.

Woody Allen is a creep,* but I have my doubts about the accusations that have been made by his ex-girlfriend, Mia Farrow; his daughter, Dylan; and other estranged family members.  That doesn't mean accusing Dylan Farrow of being a "liar"--indeed, much like blogger Chez Pazienza, I think Farrow believes what she's written and said; I'm just not sure that what she's saying is objectively true, to whatever extent anything is objectively true.  (We could have a nice little ontological debate about how much of reality is objective and how much of it is made up of consensual subjectivity, but I'm not in a coffee shop with a cuppa and some decent light fusion playing in the background.)  I can very easily say I have no idea what, if anything happened between them, and that it's possible both are innocent: that Woody Allen didn't molest Dylan Farrow, but Dylan Farrow sincerely believes that he did.  It's possible she's both honest and wrong.

That happens quite a lot.  The brain isn't a mechanical recording device that absorbs input and locks it into a physical form like a stylus carving an acoustic vibration into one of Edison's wax cylinders where it can be reproduced and duplicated over and over again.  The brain is a piece of charged meat steeped in a chemical brew--in most ways, it resembles a pot roast more than it does a VCR, despite our chronic insistence on treating it more like the latter.  A pot roast that is still in the oven, no less, undergoing constant physical changes over time in response to external stimuli.  Just don't eat it, you'll get kuru.

I have had arguments with friends and family members over things they or I happen to remember.  My mother has frequently insisted we saw Star Wars in 1976, a year before the copyright office thinks it was released.  I have never admitted to my father that a family vacation we took when I was a teenager happened the year he said it did and not the year I clearly remember it, despite having gone over it in my mind and concluded he must be objectively right (or more right); perhaps more interestingly and relevant to the topic at hand, even though I'm intellectually certain he's probably right (or more right), my memory continues to place the trip in what is almost certainly the wrong year and wrong age.  Similarly, my friends have photographs of events and gatherings that my brain claims never happened or happened differently or involved different participants or other locations; and no, alcohol wasn't involved (nor other controlled substances), and I think it's extremely improbable they would have bothered creating an extremely convincing artifact just to screw with me, though one can do amazing things with computers these days.

I have bad meat in my can.  So do you.  Or it's great meat: it's probably better to observe that it's really amazing what a brain can pull off when it evolved to perform entirely different tasks that have nothing to do with the things we ask of it.  There's probably no reproductive advantage in being able to recite the Gettysburg Address from memory, nor in being able to name all fifty American state capitols, or in knowing even one digit of pi.

It's just that this bad--or wonderful--meat can get us into trouble.  When Jennifer Thompson mistakenly identified Ronald Cotton as her rapist in 1984, she wasn't acting from malice or being dishonest: Thompson's efforts to bring her assailant to justice were heroic and heart-wrenching.  Unfortunately, the tasks of identifying another person seen at intimate proximity in a terrifying situation and then repeating the identification to law enforcement officers, prosecutors, jurors and other parties to a criminal prosecution are tasks that the brain really simply isn't very good at.  Thompson shouldn't be condemned; for that matter, ironically, the judicial system that did the best it could with the tools it had and still managed to deprive Cotton of nearly eleven years of his life can't really be condemned, either.  The whole thing is a tragedy and a lesson in our own limitations, not an excuse for some kind of sanctimonious finger-pointing.

It is well within the realm of possibility that Dylan Farrow is recounting something that really did happen to her in an attic in Connecticut; but it's just as within the realm of things-that-have-happened-before-and-could-happen-again that a child immersed in an environment in which her father was castigated as a villain and a predator, her mother cast as a victim, and in which she was asked to repeat and clarify and relive an alleged assault came to accept that assault as a set of facts she really experienced.  That it's as real to her as if it had happened, regardless of whether it did happen.

Lest someone draw a stupid conclusion from the foregoing paragraph: the second possibility wouldn't make Dylan Farrow "sick" or "deluded" or "crazy", it would make her normal.  Her brain would be operating within normal operating parameters, doing the stupid things brains do.

Do I know what really happened?  No more than you do.**

*While I understand the physical attraction a nineteen-year-old might have for a man creeping up on sixty (Allen was fifty-seven), I have no idea what they'd talk about when the lights are on.  I already have a difficult time understanding people half my age, and I'm merely in my forties.  Add in the fact that he was his girlfriend's mother's boyfriend, and the whole thing strikes me as a bit icky, notwithstanding my attempts not to judge the consensual relationships of adults; the vaguely paternal status of "mom's boyfriend" indeed strikes me as the kind of thing that where there's a power imbalance that makes consent a dubious proposition.  That said, they've been married close to seventeen years now.  Still, it does smell a bit dodgy to me, personally, y'know?

**Admittedly, I do know something else: I know that probable cause is an extremely low burden for a prosecutor to satisfy--as the saying goes, a good prosecutor could indict a ham sandwich--and that a district attorney saying he has probable cause to indict a suspect for an extremely serious sex offense but is declining to do so is really, really odd.  If he has probable cause, cooperative witnesses, and a possible child molester on the loose--all of which Litchfield County DA Frank Maco seemingly claims to have had--then a far more typical practice in my own experience would be to indict the hell out of the suspect, and if you're concerned about the victim's sensitivity, offer a tough but fair plea that gives the defendant plenty to lose if he goes through with a trial.

Indeed, that's more or less what Los Angeles County DAs did in the Roman Polanski case: the victim and her family were cooperative but expressed through their lawyer that they would simply prefer an acknowledgement of guilt and respect for his victim's privacy over the rigors of a trial and probable incarceration for the defendant, the evidence against Polanski was compelling (and certainly exceeded the standards needed to indict Polanski--which LA County prosecutors did), and the initial plea offer and sentencing recommendations were merciful and seem fair under the circumstances (the way everything went to hell at the eleventh hour notwithstanding).

Frankly, it's the prosecutor's puzzling and incoherent statements about the case that are the source of most of my doubt.  If you have PC, indict, unless you have a really compelling reason not to.  Compelling reasons might include the difficulty of proving the case beyond a reasonable doubt, but that would tell you a great deal right there: I am speculating in an effort to understand, but if Dylan Farrow's credibility was questionable in the immediate aftermath of the alleged events, if there was a dearth of corroborating evidence, or if there was perhaps even an issue of possible witness tampering by Mia Farrow, those causes for doubt grow stronger, not weaker after twenty-something years.

One other relevant contextual matter: in the late 1980s and early 1990s, when the assault on Dylan Farrow allegedly occurred, it's not as if American prosecutors were gun-shy about pressing child sexual abuse cases where the credibility of extremely young witnesses was questionable and corroborating evidence scant: in fact, there was a wave of daycare prosecutions across the country sufficient to merit its own Wikipedia entry.  Prosecutors across the country appeared to have remarkably little difficulty convincing Grand Juries that children don't lie and wouldn't make up a story about sexual abuse if it wasn't true, and the sole difficulty in finding an expert witness to testify about the veracity of child witnesses and the efficacy of therapy in bringing out repressed memories was merely one of opening an office window at the courthouse and throwing a wadded-up piece of paper at an expert to get his or her attention.  And judges weren't especially reliable gatekeepers of admissibility, keeping pseudoscientific testimony from self-anointed "experts" out of jurors' ears.

In short, if Frank Maco didn't think he could prosecute Woody Allen, I have to assume it was a really, really shitty case for the State Of Connecticut, regardless of Maco's poor--and subsequently sanctioned by the state Bar--decision to talk through both sides of his mouth about it.



>> Monday, February 03, 2014

I listen to the Slate Political Gabfest podcast every week.  Some weeks, it's an entertaining bit of inside baseball, some weeks I'm not sure why I bother.  Slate contributors David Plotz, Emily Bazelon and John Dickerson gab a bit, mostly about politics, occasionally about things they don't seem to know anything about, sometimes about things they've written articles or books about, and then after approximately an hour they wrap everything up with "cocktail chatter" about things that are interesting them or bugging them.

I mention this because the most recent installment featured a return to a subject they apparently don't understand well enough to talk about, namely disgraced ex-journalist Stephen Glass and his failed attempts to become a lawyer, first in New York and subsequently in California.  Glass became infamous for a journalistic career in which he routinely fabricated quotes, sources and events, going so far as to fabricate materials purporting to back up his fictions.  It's a subject that's personally relevant to Slate editor Plotz: Glass was a Slate contributor and Plotz's wife, the journalist Hanna Roslin, was friends with Glass and Glass was a guest at their wedding.  Rosin, indeed, was collateral damage in Glass' ugly exit from The New Republic, where they both worked, jeopardizing her own credibility sticking up for Glass when his deceptions came to light.  Yet Plotz is self-righteously offended that the California State Bar doesn't think Glass is good enough to join their ranks, has written a column in Slate saying as much and ranted about it a bit on the most recent Gabfest.

Plotz writes:

The decision is long and citation-filled. It claims to make a rational, precedential case that Glass has not met the legal standard for being a lawyer in California. But reading it as a non-lawyer and a non-Californian, I’m instead struck by its anxious snobbishness. The Committee of Bar Examiners and the Supreme Court justices—every one a lawyer—don’t want to let Glass be a lawyer because they’re embarrassed that anyone could possibly think that he’s like them. He’s not one of us, dear.
Indeed.  The opinion, which you can read here (PDF link), does in fact contain a lengthy factual basis for the Court's decision, citations of the cases the Court uses to reach their citations, and an analysis of how the applicable precedents have shaped their decision making process.  In these regards, the California State Supreme Court opinion isn't so much filled with "anxious snobbishness" as it is typical of jurisprudential writing at the beginning of the Twenty-First Century.  It's true that the Court could have put things much more simply, if it weren't customary to state the facts, state the precedents, then state how the facts are interpreted in light of the precedents.  If legal custom weren't what it is, the Court very well could have said it all in two short sentences:

So, needless to say, I don’t like Steve. And I don’t trust Steve.  

In case you couldn't guess, that would be Mr. Plotz proffering his own personal thoughts about Stephen Glass before going on to castigate the legal profession for not liking and trusting a guy who serially lied to Plotz's wife and then, we're told by Mr. David Plotz, portrayed her as "conniving, sleazy, and disloyal" and Plotz himself as "even worse".
Plotz is certainly correct that the legal profession has a great deal to be ashamed of, that there are plenty of dishonest and crooked lawyers, he may even be right that the California Supreme Court's statements about a lawyer's requisite honesty are "a claim that only lawyers could make about law with a straight face".  I'm not particularly interested in defending my profession today, thinking that such defenses might seem self-serving at worst, or at best might make me sound like somebody who has a beam in his eye.  (I've always found that a weird image: I can't help wondering if there were people staggering around First Century Palestine with chunks of wood sticking out of their faces.)
But one might say such things about any number of professions, including journalism, the profession that exiled Stephen Glass when they caught him engaged in chicanery.  There are two differences, however between the law and most (not all) other professions when it comes to this subject, however.
The first would be that the law is a field in which dishonesty can have immediate and lasting damages that are unmatched in most other fields.  A dishonest journalist may damage someone's reputation, which is undeniably awful, and embarrass his editors and publishers, which... enh, probably isn't that big a deal, sorry.  Such things are fairly recoverable: the defamed victim can sue for libel, for instance, and a publication that has a generally good reputation is likely to recover from one single bad contributor.  The victims of a dishonest lawyer, however, are not the legal profession, which is frequently equated with prostitution and remains the subject of jokes about the greed and prevarication of attorneys, but the dishonest lawyers' clients: the person whose appeal was not filed when the lawyer claimed it was, the person whose money wasn't properly handled when the lawyer was supposed to place it in a trust account, and so on.  The victim of a dishonest journalist may face years of explaining how a false story was recanted, and that's a hellish thing, make no mistake; the victim of a dishonest lawyer may be pauperized or worse: it's possible for the victim of a dishonest lawyer to face the loss of liberty and perhaps, in the right (i.e. wrong) circumstances, life.

In the past, Plotz has pointed to Glass' pro bono work and pronounced that Glass is at least honest enough for that, even while suggesting Glass isn't to be trusted enough to invite over for dinner.  But no state--not California, not New York, nor any other--admits practitioners to specific and limited practices of law.  To say that Stephen Glass is honest enough to do one kind of work is, unfortunately, to pronounce him to be fit for all kinds of work.  To be honest, I'm not sure I'd trust Glass to help a homeless person with a housing application or whatever else he might be assisting them with; but the point is that it seems quite strange to say that you don't trust someone enough to break bread with them but you can't see any problem with this person helping a little old lady craft a will, or prosecuting a teenager for murder, assisting in a real estate transaction, representing a parent in a child custody case, or whatever.  That Glass has no apparent interest in any of these other practice areas at this time is completely meaningless: a person with a law license is licensed to practice law in the broadest, most generic way, whether or not he's qualified for that practice area.  (Perhaps things should be different, and lawyers should be admitted only to fields they can demonstrate proficiency in, but that's a whole 'nother subject.)

The second thing is that the law is a regulated field, and concerns with honesty and integrity and competency (you know, the kinds of things discussed in the previous two paragraphs) are the ostensible purpose for the regulation.  It's absolutely fair, of course, to suggest that the fact the law is allowed to self-regulate creates a conflict of interest and that lawyers ought to be regulated by a governmental body if at all.  And it's also more than fair to accuse the legal profession of using self-regulation to perpetuate an oligopoly in which legal costs are inflated by standards that are calculated to limit the number of attorneys competing against each other.  But these critiques, however valid, don't address whether there's a need to make sure that people who might be drafting wills for little old people, or who might be representing the State or the defendant in a capital case, or who might otherwise be dealing with serious matters of solvency, of life, of death, are qualified to do so.

Journalism ejected Stephen Glass, but there's not a central body of journalists who can keep Glass from writing.  Every competent editor who cares about her publication's integrity can refuse to hire him, which may amount to the same thing, but there's not a regulatory body charged with maintaining the industry's standards.  For better (and I think it's mostly for the better) or worse (and I concede it's sometimes for the worse), the law, like medicine, does have a regulatory body that tries to keep out people who could harm the people seeking its services.  Which is where we came in.

I have no idea whether Stephen Glass is rehabilitated or not.  I suspect, however, that his rehabilitation doesn't require a law license to endorse it or further it: Glass has worked as a clerk for quite a while, and nothing in the law's self-monitoring prevents Glass from helping people in ways that fall short of the unauthorized practice of law.  If a law firm wants to hire Glass as a researcher, investigator or clerk, they may do so: and then the responsibility for Glass' integrity falls upon the lawyer who supervises his work and can be sanctioned for any missteps Glass might make.  (Frankly, I wouldn't be likely to hire someone with Glass' history, and I'm not sure the ability to sanction a lawyer who supervised Glass is a fair remedy if the lawyer who relied on Glass' work gets a client jailed or killed, but that's where we are.)
One last matter that we can't let past before we wrap this up.  Plotz's most bizarre comment might well be this one:
The Supreme Court also worries that Glass would fabricate documents and deceive clients, a bizarre and backward conclusion. The very first thing anyone knows about Glass is that he was a liar and a fraud. Any judge he appears before will know: This is that lying journalist. Any opposing counsel will be aware: This is Shattered Glass. He’s not trying to sneak into courtrooms under a new name: He’s Stephen Glass. He is a flashing red highway sign. This is what happens when you Google him. Glass is far less likely than most lawyers to try to sneak something past a judge, because he’ll know that every single word he speaks and document he signs is suspect.

In other words, instead of the usual situation where a lawyer who has passed the screening process of the Bar is presumed fit until he demonstrates otherwise, the Bar should rubber stamp Glass and everybody who ever has to work with him should beware.

This is a bizarre argument for all sorts of reasons.  For one thing, this is exactly how the system isn't supposed to work: a prudent lawyer might take a Russian proverb approach to opposing counsel's submissions, but a reasonable amount of trust is what oils the system's wheels and keeps court cases from getting bogged down in endless nested cycles of fact-checking the checked facts.  This is also the reason judges get very, very angry if they discover somebody playing fast and loose: judges simply don't have time to go through every brief with a fine-toothed comb, and a filing that has a casual relationship to truth is a waste of the court's time, and of opposing counsel's.  Time that might be expensive, whether that expense is measured in money or life.  (Something I haven't mentioned that's also worth recalling: expenses aren't just borne by the parties.  A courtroom isn't just lawyers, a judge, and parties: it's the bailiff who opens and closes the court, the clerks who actually run the place, the court reporters who record it all, and assorted other administrators.  Putting a hearing on hold because a litigant's counsel is a big fat liar is literally a waste of taxpayer dollars: it's other cases that aren't being heard, it's clerks having to pull minutes from previous hearings and other filings to figure out what the hell is going on, it's jurors cooling their heels in a waiting room, etc..)

If a court is going to have to basically do the same amount of work researching Stephen Glass' filings that Glass was supposed to put into doing the filings in the first place, because it's Stephen Glass who made the filings and can't be trusted, it seems an enormous time-and-money saver simply to not let him do the filings in the first place.

Nor does one quite comprehend why Glass will be extra careful since he's Stephen Glass and knows how bad his reputation is.  It's not as if Glass seemed to have terribly good reasons for lying when he was writing news stories.  In at least one case, the amount of work he seems to have been willing to  perform "fabricating what he would assert were his reporter's notes from interviews, fake business cards, a voicemail box, a Website, and newsletters" (from page 7 of the California Supreme Court opinion) seems to have possibly been a bit harder than actual proper research would have been.  One cannot know what Glass' mental state was when he lied all those times, but it's troubling that there appear to have been times he lied when telling the truth would have been easier.

Plotz clearly has a low opinion of lawyers, and he's probably justified in this.  Many of us are nasty pieces of work.  But its this very fact that drives the profession's aspirational striving: rather than accepting and condoning the fact that so many of us are horrible human beings, the profession makes a special point to try to do something, however ineffectual and often hypocritical, about it.  Many lawyers are dishonest, but they aren't supposed to be, and rather than laugh about it or shrug our shoulders, rather than say, "Well what did you expect from a lawyer?" the way a non-lawyer might say it, we will slam you, sanction you, and possibly eject you from the entire profession if we catch you.  Plotz doesn't take our aspirations seriously, perhaps because we can be fairly called out for not being very good at living up to them; but he's being stupid not to take our aspirations as seriously as we do.  We don't want Stephen Glass, not because "he's not one of us," but because he isn't supposed to be.  We regard our own, our people who are just like Glass as a cancer to be excised from the body; it's foolish to think we'd transplant a tumor just on the hope it's turned itself benign.

Perhaps the California State Bar should reconsider its position, however, after Mr. Plotz has invited Mr. Glass over to his house to discuss a freelance writing decision for Slate over cocktails.  Before asking Californians to assume the risk of Stephen Glass, Esquire, he can put his money where his mouth is by letting Glass demonstrate his rehabilitation through a series of bylines, eh?


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