Wednesday, November 24, 2021

Arbery Convictions: the Felony Murder Rule

Two of the defendants in the Ahmaud Arbery murder case were convicted of felony murder. 

The concept of felony murder has a long and consistent history in this country. It is also one of the first criminal law concepts taught in law school. Simply stated, you do not need to be the person pulling the trigger in order to be convicted of murder. The fact that a felony was committed during the time surrounding the murder is enough for the conviction. 

One of the classic examples of felony murder is the driver of the getaway car during a bank robbery where a person was killed. The rationale for the rule is that all people involved in the planning and execution of a felony are responsible for everything that results from that felony. 

Although the rule has been criticized in the past as being unduly harsh, it ensures that nobody is excused from egregious and horrible conduct. The rule also has the deterrent effect of discouraging others from following along with conduct they should have known was improper.

Saturday, November 20, 2021

More Rittenhouse: Why Prosecutors Brought a Case They Wouldn’t Win

When prosecutors lose a high-profile case such as the murder trial of Kyle Rittenhouse, the blame game kicks into high gear. 

Following Rittenhouse’s acquittal, some are pointing at Judge Schroeder’s sometimes questionable actions during the trial. Other are dissecting what they see as prosecutorial missteps during the trial. There is plenty of fodder for discussion in both instances. 

However, the biggest problem is that prosecutors brought a case that they had little chance of winning and failed to amend the charges before trial when it was clear that there would be problems. 

The context of the Rittenhouse case was emotionally charged. This was the third night of chaotic and violent protests that occurred in the context of the shooting of Jacob Blake. Kyle Rittenhouse, a 17-year-old from Illinois, inexplicably walked into the area with a semiautomatic rifle. During the ensuing hours, Rittenhouse shot three people, killing two. 

There was no middle-of-the-road reaction. These deaths were emblematic of a much deeper societal divide. 

Attorney L. Lin Wood (who is currently facing disbarment proceedings for his abuse of the legal system in the 2020 election contest cases) stepped in for the defense and argued that Rittenhouse should be kept in custody for his own safety rather than being released on bond, due to what he described as the “impending Armageddon” that would follow the 2020 election results. 

On the other side, prosecutors were being bombarded by calls for justice due to the apparently random vigilante actions of Rittenhouse. Justice, in this context, meant to charge Rittenhouse with murder. For prosecutors to do anything other than to file the most severe charges possible would have resulted in an outcry of favoritism towards a white defendant. 

Prosecutors charged Rittenhouse with five felonies that were equivalent to murder charges. They also charged him with a misdemeanor that was later dismissed by agreement of the parties. 

Within the next few months, Rittenhouse fired Wood as his attorney and was released on bond. At the same time, prosecutors began sorting through the volume of evidence. 

In the process of gathering evidence, prosecutors soon realized that this was not an open-and-shut murder case. Rather, it was apparent that defense would be able to argue self-defense to show “reasonable doubt.” We know that from later trial testimony. 

For example, videographer Richie McGinness described Rosenbaum chasing Rittenhouse and lunging for Rittenhouse’s gun. When pressed by the prosecutor about Rosenbaum’s intent, McGinniss quickly answered: “Well, he said ‘F--- you.’ And then he reached for the weapon.” 

The key moment in this case may have actually occurred at the final pre-trial conference. This is a meeting of the judge and attorneys where the guidelines for the trial are all set. 

If the prosecutors were to change what they were charging Rittenhouse, this would be the time. Prosecutors could have elected to reduce the charges against Rittenhouse, substituting charges where self-defense claims would be irrelevant. This was a winnable case. But this would have taken murder off the table, an option that would have caused a tremendous outcry from those who thought that a murder conviction was the only acceptable outcome. 

Prosecutors held firm and rolled the dice. 

The Rittenhouse case is a cautionary tale. We all have our own ideas of what justice looks like. However, what you can prove legally may not match those ideas. The prosecutors in the Rittenhouse case were pushed to prove a certain result, not to produce the best result with the evidence they had.

We know the result.

Friday, November 19, 2021

Rittenhouse Redux: Not Guilty Does Not Mean Innocent

Emotions from the just-released verdict in the Kyle Rittenhouse trial are, of course, running high. A few things should be kept in mind from a legal standpoint. 

Nothing in the verdict says that Rittenhouse was without blame for his conduct. Being found “not guilty” is not the same as a finding of innocence. Rittenhouse was charged with specific violations of Wisconsin state law. What the jury found was that the state did not find him guilty of those SPECIFIC charges beyond a reasonable doubt. Our system of justice says that when 12 people agree, their decision controls. 

Although there has been much focus on the conduct of the judge in this case, my second-guessing would rest with the prosecution. The claim of self defense (in the context of “reasonable doubt”) applied directly to all of the charges brought. That same defense would not apply to some charges that the prosecution did not, but could have, brought. I’m still confused why those lesser charges were not promoted sufficiently. Simply put, the jury was not provided a way to convict without considering the self defense testimony. 

The criminal trial may be over, but do not be surprised if Rittenhouse is not later sued for civil damages. Think back, for example, to the O.J. Simpson case where he was acquitted criminally but held liable for damages civilly. In a civil case, “reasonable doubt” does not apply. “Preponderance of the evidence” is the standard, making it much easier for a plaintiff to prevail. 

Rittenhouse’s sign of relief may therefore be short lived.

The New Facebook/Meta Rule That Doesn’t Exist

Perhaps you’ve seen a recent Facebook post that starts: 

The new Facebook/Meta rule starts tomorrow where they can use your photos. Don't forget the deadline is today! This could be used in lawsuits against you. Everything you've ever posted is posted today - even messages that have been deleted. It doesn't cost anything, just copy and post, better than regretting later. 

You are urged to: 

Hold your finger anywhere in this post and a copy will appear. Click on Copy. Then go to your page, start a new post and place your finger in an empty field. ′′ Insert ′′ will appear and you will click on it. This will pass the system.

I'm not giving Facebook/Meta permission to share my information posted on their website. PHOTOS, CURRENT or PAST, PUBLICATION, PHONE NUMBER OR POST... Absolutely nothing can be used in any form without my written permission. 

The post sounds scary but it is basically a rehash of unnerving posts that have been appearing sporadically for years. However, the “facts” are wrong and the advice is useless.  The reason is basic contract law. 

When you sign up for Facebook, you are essentially entering into a contract with them. In exchange for using this social media platform, you are agreeing to the dreaded “terms and conditions.” As with any contract, one person may not simply decide to ignore or change the terms of the agreement without getting the consent of the other party. This is what you are being urged to do by the post. 

If you are concerned with how Facebook uses your personal information or shares your posts, there are a number of privacy options you may select in your profile. If you do not like any of those options, your remedy is to decline to participate. 

Many people have raised legitimate concerns about the Facebook/Meta and other social media platforms and how they accumulate and share information. My intention is not to diminish those misgivings. Some are truly serious. 

The point is simply this: take whatever action you deem appropriate, but you accomplish absolutely nothing by posting a privacy declaration.

Thursday, November 18, 2021

Why Filing Identical Election Defamation Lawsuits Is a Shrewd Move

Last week, Smartmatic filed suit against attorney Sidney Powell in the U.S. District Court for the District of Columbia , claiming damages for false statements she allegedly made against the voting machine company in connection with the 2020 presidential election. The suit is virtually identical to the one they had previously filed against her in New York. 

Was this a crazy thing to do? No, it is quite the opposite. The reason relates to two issues: jurisdiction and the statute of limitations. 

As we saw in all of the failed election challenge lawsuits, your first step to succeed in a lawsuit is to make sure that you are suing the proper defendant in the proper court. Sometimes it is easy for the court to agree to accept or reject jurisdiction claims. In other cases, the answer is not so easy. 

In the first suit by Smartmatic against Sidney Powell in New York, there is some question whether that court has “personal jurisdiction” over Sidney Powell. If jurisdiction over Powell is denied, the case is over in that court. 

An attorney who loses a case on jurisdictional grounds might well decide to then file in another court where jurisdiction is clear. That option is not available to Smartmatic. The reason is due to the statute of limitations. 

The purpose of a statute of limitations is to make sure that an injured party acts promptly to claim damages. So, for example, if I am injured in a traffic accident, I cannot wait 10 years to decide to sue. Individual state laws set the maximum time period to file suit. In election defamation cases, that period is generally one year. 

The one-year statute of limitation period is quickly coming to an end for Smartmatic lawsuits. If they were to lose in New York on jurisdictional grounds, they would have no place to go to get relief because time had expired, unless … 

Unless they file what is called a “protective lawsuit” in another court where jurisdiction is assured. This is exactly what Smartmatic did. Interestingly, Smartmatic told the D.C. court exactly why they were filing the lawsuit at this time. They went so far as to tell the court that they fully expected (and wanted) the case to continue in New York and would not take any further action in D.C. until the jurisdiction question in New York was settled. If New York accepts jurisdiction, the D.C. court will be dismissed. 

The protective action by Smartmatic is smart legal practice. 

You might be asking how Smartmatic filing suit in different courts is different from the election contest cases. In the election contest cases, almost identical cases were also filed in different courts. 

The difference is that Smartmatic is not filing spurious claims in multiple courts, hoping that, like spaghetti thrown against the wall, maybe something will stick. In other words, the goal of the Smartmatic cases is to actually win, not simply to keep unfounded claims in the news.

Saturday, November 13, 2021

Rittenhouse Trial – Is the Judge on Trial Too?

The Kyle Rittenhouse trial concluded this week and will likely go to the jury on Monday. Interestingly, those who are following the case have asked me more questions about the judge than the case itself. Specifically, some have suggested that the judge had shown bias towards the defendant in a way that could sway the jury in its deliberations. 

If you have followed the case from the beginning, you likely have a personal opinion of Rittenhouse’s guilt or innocence—an opinion that was formed prior to the trial itself. I really do not care what that opinion is, but I suspect that it has colored your reaction to the trial strategies, demeanor of witnesses and the actions of the judge.

My goal here is to break down some segments of the trial process and, because I’m putting on my lawyer hat, to do that somewhat dispassionately. 

Let’s start with the rules for this trial. If you read my October 22 post entitled Sex Trafficking and Pre-trial Maneuvers, you will remember that a judge often sets special rules that will apply to a particular trial. In Ghislane Maxwell’s case, as here, there was much discussion about what words may be used to describe the parties involved. In Ghislane’s case, focus was on words such as “victim” and “minor victim.” In the Rittenhouse case, examples are “victim” and “looter.” 

It is immaterial whether or not you agree with what the judge decides before the trial about using those words. Those are the rules. The GOOD news for the lawyers is that they know what the rules will be before the trial begins. That gives plenty of time in trial prep to develop workarounds. 

Preparation for the trial also includes knowing the judge. Although there are generally defined rules for the conduct of a trial, much discretion is left to the judge in controlling the flow of the trial. Judges’ personalities are all over the board. Some are dour and sticklers for detail. Others take a more hands off attitude. Some even have a sense of humor. 

The point is that you know in advance how this particular judge runs their court. Consequently, if you know that particular actions or argumentation techniques bother the judge, you try to avoid them. 

Judge Schroeder who is presiding over the Rittenhouse trial is, to say the least, a character. He also tends to be a bit of a loose cannon, meaning that you can’t predict from one day to another what might set him off. It is what it is. 

I won’t detail here the things the judge has said or done during the trial. Strictly speaking, some of his remarks or actions may have crossed the line of impartiality. That is another example of “it is what it is.” Judges are given tremendous latitude in the conduct of their trials. Verdicts are overturned on appeal only in the most exceptional cases of judicial misconduct. Whether you like Judge Schroeder or not, it is unlikely that an appeals court would find his conduct to be that egregious. 

Back to the trial. As a prosecutor, you knew the special rules and you know the judge. By the conclusion of the trial, you also now have a fairly good grasp about how well the trial went. The prosecutors initially charged Rittenhouse with the severest charges possible, believing that they could prove these charges beyond a reasonable doubt. At the end of the trial, where we are today, they have the opportunity to review whether they gauged the strength of their case correctly.

From all appearances, the prosecutors aimed a bit too high. This is not unusual. Once a trial begins, it is too late to increase the severity of the charges, so overcharging is a protective measure. What the prosecutors CAN do at the end of the trial is to request jury instructions that cut back on what they are requesting. I anticipate this is what they will do on Monday. 

The jury will likely be presented with a number of guilty options. On a scale of 1 to 10, the prosecutors are probably hoping that the jury will convict at a level of 7 or 8. These guilty options prevent the worst case scenario for a prosecutor—the choice between all or nothing. 

The saddest part of the Rittenhouse case is that, regardless of the outcome, many people will be outraged. Confirmation bias. And Judge Schroeder? He’ll conduct another trial next week that virtually nobody will notice.

Friday, November 12, 2021

Well, We Agree About the Beer

When a complaint is filed, the defendant helps to set the parameters for the lawsuit by either admitting or denying each individual allegation. For example, “The defendant admits the allegations contained in paragraphs 1, 3, 5, 7 and 8 of the complaint.” 

Introductory paragraphs to the complaint are not considered to be “allegations” and therefore no response to them is required. However, in an ongoing case in North Carolina, defense counsel could not resist a touch of humor. Here is how he begins the answer to the complaint: 

No response is required to the introductory statement in Plaintiff’s Complaint. However, Defendants admit that George Washington brewed beer, that the Founders drank beer after drafting the Constitution, that Supreme Court Justice Kavanaugh loves beer, and that President Obama invited Sgt. Crowley and Professor Gates to the White House Rose Garden for beers. All other allegations contained in these paragraphs are denied. 

We unfortunately hear all too much from self-aggrandizing lawyers such as Rudy Guiliani, Lin Wood and Sidney Powell, who are facing disciplinary actions for their lack of civility and respect for the legal profession. 

This little North Carolina case illustrates that attorneys can disagree without being disagreeable. It says something positive about their clients as well. 


Wednesday, November 10, 2021

Injunction Junction, What’s Your Function?

As part of the Congressional special committee’s examination of the facts relative to the January 6 attack on the Capitol, they have requested the National Archives to release a tranche of information related to Donald Trump’s potential involvement. As a surprise to nobody, Trump filed suit to stop the production of these materials. 

The term “injunction” is being used in so many contexts here that it might be helpful to outline the different kinds of injunctions that are involved. 

When Trump’s lawsuit asked for an injunction to prevent the National Archives from producing materials, it claimed that, although records are readily available, the Congressional committee simply should not be allowed to have them. Ever. The ultimate goal of the case is to permanently prevent the committee from receiving access to these documents. This is a permanent injunction

It takes a lot of time and legal proceedings for a permanent injunction to take effect. The Court must consider a variety of facts and also determine whether there is a legal basis that would allow an injunction to be issued. 

In this case, time is not a luxury that Trump has. According to the timetable for producing documents (which is outlined by statute), the National Archives are required to produce the first tranche of these documents by Friday of this week. 

Because the proceedings necessary to receive a permanent injunction will take so long, Trump asked for the process to stop in its tracks until all of the arguments can be presented. He did this by asking for a preliminary (or temporary) injunction. When confronted with a preliminary injunction request, the court considers a number of factors, including irreparable harm to the requesting party. 

Yesterday, the court denied Trump’s request for a preliminary injunction. The next step for Trump, then, is to appeal this decision, asking a higher court to reverse the denial of the preliminary injunction (which he did). However, there is one step that occurs before the appeal ever takes place. 

Trump was required to ask for a different injunction, one where the lower court, on its own, stops the process until the appellate court can weigh in. This is called an injunction pending an appeal or an administrative injunction. This is what is being argued today. 

If that injunction request is denied, Trump will immediately ask the appellate court to stop the proceedings while it considers whether the preliminary injunction was properly denied. 

Confused yet? Try this. 

Trump requests a permanent injunction (ongoing as part of the complete case)

Trump requests a temporary injunction concerning production of documents (denied)

Trump files an appeal (pending)

Trump requests an injunction pending appeal with the lower court (pending)

If that is denied, which is likely, Trump will ask the appellate court to reverse the denial of the temporary injunction. In other words, the appellate court will be asked to order the lower court to grant a preliminary injunction until the full case is heard. 

Considering the case law on the subject, it is likely that the committee will eventually be given access to some, if not all, of the National Archives records they have requested. This is especially true because the National Archives do not contain confidential (privileged) communications of a former president. 

The question, then, is how long Trump will be able to drag out the process. We will learn that shortly.

Tuesday, November 9, 2021

There’s a Problem with My (hic) Bombay Gin

Here’s the setting. Having been invited to a small party, you stop at the Winn Dixie and pick up a bottle of Bombay gin. The party ends up not being as exciting as you had anticipated, so at some point you start reading the contents label on the bottle of gin (apparently between the time you think this might be interesting and when you can no longer focus.) This literary foray leads you to ask “What the heck is ‘grains of paradise’ and what is it doing in a bottle of gin?”

Your buddy does a quick google search and finds out that this is a spice from west Africa that many years ago was thought to be poisonous and could “morph drinkers into suicidal madmen.” By this time the bottle has been drained and you all had a good laugh.

The next morning you have a hazy recollection of the prior evening’s conversation and wonder how this drug ever got into the gin. Being a lawyer, you do a little research and find that an 1858 Florida statute prohibited the use of grains of paradise in alcoholic beverages. The dollar signs go off in your head when you realize that you could make a lot of money based on a technicality.

We do not know if this is exactly how the lawsuit started, but it is probably close enough. Uri Marrache filed a class action against Winn Dixie and Bacardi. The plaintiffs claimed that Bombay violated the archaic statute by including grains of paradise in its liquor and that they were entitled to damages as a result.

Although the allegations were technically correct as far as they went, plaintiffs failed to note that Congress amended the Federal Food, Drug and Cosmetic Act in 1958 and listed grains of paradise as “generally recognized as safe,” giving us the delightful acronym of GRAS. Therefore, since grains of paradise is GRAS, it is can no longer be considered the harmful ingredient identified in the 1858 statute.

Even if there was some sort of conflict between state and federal laws (which the court was easily able to dismiss), plaintiffs had one additional problem: they knew the ingredients before polishing off the bottle. You cannot claim damages without having, well, damages. The lawsuit was dismissed.

Technicalities often matter. But as the Bombay lawsuit demonstrates, finding a technicality is not necessarily enough. Sometimes the GRAS is greener on the defendant's side of the fence.

Saturday, November 6, 2021

The brilliance of My Pillow’s Mike Lindell

In the olden days, hucksters sold snake oil by the bottle. Televangelist Jim Bakker sold it by the bucket. Give people something they desperately want to believe and you can sell them anything. After all, rubes deserve to be fleeced. Consider W.C. Fields’ famous “Never give a sucker an even break.”

Mike Lindell is not your garden variety huckster. He is brilliant. Here’s why. Many charlatans are able to drag true believers along even after promised events do not occur. Consider, for example, the apocalypse preachers who predict the end of the world and then, um, recalculate. True believers still follow.

If that scenario sounds a lot like Lindell, it should. He has been predicting dates when Trump will be reinstated all year, including my birthday (which, coincidentally, is the date the Berlin wall went up). That people continue to believe isn’t surprising. Snake oil sells.

Lindell’s brilliance is that he has taken his show to a higher level. A recent posting on his website urges visitors to “Sign the Petition!” Specifically, “Sign this petition to encourage the Supreme Court to accept the bill of complaint brought by patriotic states to save our country.” The required fields are your first name, last name and email address.

There are couple of wee problems with what is encouraged here and this is the legal stuff. First, there is no mechanism for the Supreme Court to accept a petition as he describes it. That is not how the court operates. Second, there is no “bill of complaint” filed anywhere, much less by “patriotic states,” whatever they may be. So, if a petition means nothing and there is no bill of complaint, why is he asking you to sign the petition?

Unless you’ve already signed the petition, you know why. He is assembling a sucker list who will later be urged to contribute to his cause (as he has done before). Brilliant.

One more thing. Lindell’s latest prediction is “We will have this before the Supreme Court before Thanksgiving. That's my promise to the people of this country. We're all in this together. We worked very hard on this!"

Don’t let your turkey get cold.

Friday, November 5, 2021

Gimme a Head with Hair – What Is This, the 60’s?

The Magnolia, Texas 2021-22 student handbook states that hair must “be no longer than the bottom of a dress shirt collar, bottom of the ear, and out of the eyes for male students.” Hair also cannot “be pinned up in any fashion” or “worn in a ponytail or bun for male students.”

Nine boys of various ages have been suspended for violating this dress code and the ACLU has filed suit, claiming that the policy is improperly gender based.

The Texas school board defendants will have a couple of problems defending this suit. They are related to how the policy has been enforced. First, although the policy has been on the books for a number of years, it has never previously been enforced. Second, all of the disciplined students are members of minority groups or have different gender orientations. This would indicate ulterior motives for the new enforcement measures. Most notably, since this is Texas, members of the football team with long hair have not been bothered.

As recently as 2020, a federal judge in Houston found that two Black students were not required to cut their hair, which they wore in dreadlocks, to meet the school district’s dress code policy. In that case, which is ongoing, there were also indications that the dress code requirements were race related.

Some people are shaking their heads about the basis of the suit, suggesting that this part of a disturbing trend to blur the line between men and women. They miss the point.

The reason the ACLU used sex discrimination as the basis for the litigation is that this assures that the suit will not be dismissed for jurisdictional reasons. As the lawsuit proceeds, the true reason for enforcing the code—selective enforcement against particular groups—will come out. THAT is the point. This is well thought out litigation.

As an aside, I apologize that you had to read this with the tune from Hair going through your head.

UPDATE: Since this post was originally written last week, the defendants have agreed to an injunction that they will not enforce the questioned policy until the matter is resolved by the courts. This is an early indication that there may be some weaknesses in their original position.