Category: Law

How’s the Derek Chauvin trial going?

by philg

How’s State v. Chauvin going? I haven’t been paying attention to this trial because I assume that conviction is guaranteed. If nothing else, since the judge denied a change of venue to somewhere outside the city, jurors who live in Minneapolis will have to convict Chauvin or risk having their houses burned down in a wave of post-acquittal mostly peaceful demonstrations (see also the 1992 Los Angeles riots, which followed an unwelcome acquittal).

Readers: Has anything new been learned?

It is a little unclear why taxpayers must fund this trial. Mr. Chauvin has already been convicted here in Massachusetts. From the Harvard Art Museum director, in an email regarding “Anti-Asian racism”: “It feels only moments ago that I was writing to you about the murder of George Floyd and so many others and the importance of banding together in support of our black and brown communities.” From our town’s “Selectmen” (one of whom is named “Jennifer”, so don’t take the “men” part literally): “Embedded in our town vision statement is a commitment to fostering economic, racial, ethnic, and age diversity within ***Happy Valley***. This longstanding commitment was brought into sharper focus and scrutiny last spring after the murder of George Floyd.” (the 2-acre zoning minimum is the cornerstone of our commitment to economic diversity, enabling us to welcome anyone able to afford a $1 million vacant lot) From the school superintendent: “Following George Floyd’s murder you received messages from [a diversity bureaucrat], me, and recently a statement from the School Committee expressing a commitment to focusing on race, inclusion, equity, and diversity in all aspects of our schools.”

Mr. Chauvin was also quickly convicted by our best and brightest nationwide. An email received July 4, 2020: “… more than 200 years of systemic racism. And just weeks ago, the murder of George Floyd. … We have a chance to rip the roots of systemic racism out of this country. … Happy Fourth of July, Joe Biden.” An email received February 9, 2021: “Black History Month is a time to celebrate, reflect, and be inspired to action. … from the wrongful murders of George Floyd and Breonna Taylor, to the treatment of peaceful Black Lives Matter protesters, to the attempts to diminish Black votes and Black voices in last year’s elections. … Happy Black History Month! Jaime Harrison, Chair, Democratic National Committee.”

[Regarding the unfortunate Breonna Taylor, note that a Grand Jury came to the opposite conclusion.]

Update, 4/20/2021: In case the jury is confused regarding the correct verdict … “President Biden calls George Floyd’s family and says evidence for a guilty verdict is ‘overwhelming.’” (NYT).

Related:

  • a 2015 post in which I noted that “Boston Marathon bomber Dzhokhar Tsarnaev has been convicted by an impartial jury of 12 locals wearing ‘Boston Strong’ T-shirts.” (the trial judge’s and prosecution’s failure to agree to the seemingly obvious need for change of venue has now resulted in years of litigation all the way up to the Supreme Court and, 8 years after Mr. Tsarnaev’s jihad, his fate remains uncertain)

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Raping by lying

by philg

“You Were Duped Into Saying Yes. Is That Still Consent?” (New York Times, March 5):

Imagine the following hypothetical situation: Frank and Ellen meet at a night course and end up getting drinks together after class several times. The drinks start to feel like dates, so Ellen asks Frank if he is married, making it clear that adultery is a deal-breaker for her. Frank is married, but he lies and says he is single. The two go to bed. Is Frank guilty of rape?

To many feminist legal scholars, the law’s failure to regard sexual fraud as a crime — when fraud elsewhere, such as fraud in business transactions, is taken to invalidate legal consent — shows that we are still beholden to an antiquated notion that rape is primarily a crime of force committed against a chaste, protesting victim, rather than primarily a violation of the right to control access to one’s body on one’s own terms.

The author, Roseanna Sommers, is a law professor and she essentially concludes that Frank did rape Ellen.

If the goal of “feminist legal scholars” is to help those who identify as “women”, I wonder if lying = rape will actually be helpful. Perhaps the theory is that this will be good for those who identify as “women” eager to file rape lawsuits because it is almost exclusively those who identify as “men” who lie to obtain consent. But the hypothetical example isn’t comprehensive. If Ellen is having sex in order to turn a profit via child support, for example, Frank being married actually improves her chances of getting consistently paid for 23 years (if Frank can’t pay, his beleaguered spouse will work and pay). What if Ellen were to say “It’s okay because I’m on the Pill”? She still has a good claim for $2 million in tax-free child support, but now Frank can file a civil lawsuit against her for rape and receive some of that money back (and then Ellen can file a child support modification lawsuit saying that Frank’s new wealth entitles her to higher monthly checks?).

Let’s tweak the story a little, to align it with a common lie…

Frank asks Ellen if she has previously slept with more than 100 sex partners, making it clear that being a Tinder super user is a deal-breaker for him. Ellen is Tinderlicious, but she lies and says she hasn’t had sex with anyone since the Obama years. The two go to bed. Is Ellen guilty of rape?

Would it be a positive, from a feminist perspective, for Ellen to face a lawsuit in which sexual history is a legitimate subject for cross-examination?

How about financial matters? “Do Americans marry for love or money?” (MarketWatch):

Some 56% of Americans say they want a partner who provides financial security more than “head over heels” love (44%), a recent survey released by Merrill Edge, an online discount brokerage and division of Bank of America Merrill Lynch BAC, +1.18%, found. This sentiment is held in almost equal measure by both men and women (54% and 57%).

Should someone who identifies as a “woman” be exposed to a rape lawsuit because she purportedly told someone at a club that she expected to be promoted to a lucrative executive position that, in fact, did not materialize and that a reasonable person should not have expected? After a year of sex without the promotion materializing, the “duped-at-the-club” person now has a rape claim?

What about people who have difficulty remembering what they said years ago? “New state law extends the statute of limitations for rape in New York” (CNN):

New York Gov. Andrew Cuomo signed legislation Wednesday that extends the statute of limitations for certain cases of rape and other sex crimes. He was joined at the signing by actresses… And under the law, victims now have 20 years in which to bring a civil suit for the offenses.

(and maybe Governor Cuomo was joined by some of those actresses after the signing as well?)

Suppose that a plaintiff sues Dianne Feinstein, alleging that the 87-year-old senator committed rape by lying in 2000, when she was 67 years old. That’s within the statute of limitations for rape, but are 20-year-old statements within the likely memory of an 87-year-old? Unless Feinstein is much sharper than the average 87-year-old and can testify convincingly, the $88 million that she acquired via marriage can be mined out by the plaintiff?

The good news is that the taxpayers of Michigan paid Professor Sommers to think about these issues! (or, if $billions for universities is buried somewhere in the latest $1.9 trillion spending package, perhaps taxpayers nationwide paid for this idea)

The scales of Justice, Gainesville, Florida, January 2021:

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Could coronashutdown help people forget old scandals?

by philg

“Former Sequoia Partner Wins Extortion Suit Against Ex-Mistress” (Bloomberg, January 3, 2020):

A salacious three-year legal battle involving a former partner at Sequoia Capital, a onetime exotic dancer and a promised $40 million hush money payment has come to an end.

A California Superior Court judge ruled in favor of venture capitalist Michael Goguen, finding his former mistress Amber Laurel Baptiste committed fraud and extortion when she threatened to publicize false claims, including that he gave her a sexually transmitted infection. The judge ordered Baptiste to pay back the full $10.25 million she got from Goguen. After a three-day trial that Baptiste didn’t attend, the court also approved a restraining order to protect Goguen and his current wife, Jamie Goguen.

She said she has already spent nearly $5 million of the money Goguen gave her on legal fees…

How complex is the case?

Goguen and Baptiste have said they met in 2002 at strip club in Dallas where she was working, and they began spending time together. In 2014, Goguen paid Baptiste $10 million in what was to be the first of four installments to sever communication and keep details of their affair and other allegations under wraps.

In her 2016 complaint, Baptiste alleged that Goguen sexually abused her for more than a decade, infected her and then reneged on a promise to pay the full $40 million. Goguen countersued, calling the affair consensual and accusing her of extortion. Goguen claimed he stopped paying her because she violated their contract by continuing to contact him and then broke their confidentiality agreement with her suit.

Stripping and sex can be complex, no doubt, but $5 million would ordinarily be considered a reasonable outcome in compensation for a wrongful death. If we assume that his fees were twice hers, that’s $15 million in transaction costs.

Leaving the question of why we’re happy with a legal system in which it costs $15 million in fees to settle a seemingly straightforward dispute of how much someone should be paid for having sex, does coronashutdown help people such as Mr. Goguen (his site is goguentruth.com and suggests that he is still lying low)? Can people who’ve been locked into their apartments for a year get excited about an old scandal?

Related:

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Julian Assange cannot be held in isolation, rules a judge in the locked-down UK

by philg

“Julian Assange cannot be extradited to US, British judge rules” (Guardian):

Julian Assange cannot be extradited to the US to face charges of espionage and of hacking government computers, a British judge has decided.

Delivering her ruling the judge said said the WikiLeaks founder was likely to be held in conditions of isolation in a so-called supermax prison in the US … “I find that the mental condition of Mr Assange is such that it would be oppressive to extradite him to the United States of America,” she said.

But she accepted the evidence of prominent medical experts, including details of how Assange had suffered from depression while in prison in London. “The overall impression is of a depressed and sometimes despairing man who is genuinely depressed about his future,” said Baraitser.

My Facebook friends assure me that government-imposed isolation is no hardship whenever the person who is isolated has access to Zoom. Perhaps the U.S. could obtain Assange if we promised the UK that we would let him have access to unlimited video chat?

Separately, Jan Steen’s painting of Londoners (those fortunate enough to live in a multi-person household) trying to make it through their Nth lockdown… (from the (real) National Gallery)

From London, 2017, #AheadOfTheCurve:

And a Messerschmitt car to keep you safe while traveling solo during COVID-19 (London 2007):

The Sitting Ducks of St. James’s Park (2007):

Related:

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Facebook reminds us how lucky we are

by philg

A post from Donald Trump, edited by Facebook:

I’m not sure how the identity of the president who takes over in January 2021 is relevant to a post regarding a coronaplague vaccine, but it is comforting to be reminded how lucky we are to have Joe Biden. #ThankYouFacebookEditorialDepartment

(The above was highlighted by a friend: “This is like AT&T listening to your call and editing.”)

From our local supermarket, Joe Biden is already an “American Legend”:

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COVID-19 kills courthouse fun

by philg

“Kentucky ‘frat house’ judge kicked off the bench” (New York Post, August 31) is an article that may cause some future readers to wonder how it was ever possible that humans mixed at such close quarters in our legal system, now mostly moved to Zoom (for the entertainment of the Chinese?).

From the article:

A Kentucky judge accused of using sex and booze to turn her courtroom into a virtual frat house was kicked off the bench by a judicial panel on Monday.

A five-member judicial commission voted unanimously to remove Kenton County Family Court Judge Dawn Gentry, who was suspended with pay in December pending a misconduct probe, the Cincinnati Enquirer reported.

Gentry, 39, was accused of creating a rowdy atmosphere at the courthouse, hiring her boyfriend and bandmate, allowing drinking during work hours, and using sex, coercion, and retaliation against lawyers and court employees who didn’t back her political campaigns, the outlet said.

Courthouse custodians, clerks, and other staffers testified to finding empty liquor bottles inside the chambers, and would also hear singing and guitar playing coming from behind the door.

One attorney, Katherine Schulz, told the panel that Gentry kissed her in a courthouse bathroom and also propositioned her for a threesome, which the lawyer said she turned down.

Will these kinds of activities ever be possible again in our age of shutdown and masks?

Related:

  • Kentucky family law (child support profits capped at around $15,000/year, even for plaintiffs who had sex with a billionaire)
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Tsarnaev appeal might go to the Supreme Court

by philg

In April 2015, I wrote the following:

Boston Marathon bomber Dzhokhar Tsarnaev has been convicted by an impartial jury of 12 locals wearing “Boston Strong” T-shirts. Now they are deciding what to do with him.

In July, the appeals court agreed with me that a local jury was unlikely to be impartial (NPR):

The higher court noted that the judge who presided over Tsarnaev’s trial had rejected the defense team’s request for a more distant trial venue where prospective jurors might be less likely to be prejudiced against the Chechen immigrant. That judge did so, the ruling maintained, promising that local jurors would be adequately screened.

But the three-judge panel ruled that the trial judge had failed to impanel an impartial jury.

In another part of the opinion, Judge Juan Torruella wrote that the District Court judge relied on “self-declarations of impartiality” by prospective jurors, calling that “an error of law and an abuse of discretion.”

Today we learn “Justice Department asks Supreme Court to review decision to vacate Boston bomber death sentence” (CNN). The Marathon bombing was more than 7 years ago and featured a governor’s “shelter-in-place” request:

Readers: Does the epic length of proceedings against/related to Mr. Tsarnaev reveal a defect in the U.S. legal system? From the Wikipedia page on the trial:

Tsarnaev’s attorney, Judy Clarke, opened by telling the jurors that her client and his older brother, Tamerlan, planted a bomb killing three and injuring hundreds, as well as murdering an MIT police officer days later. “There’s little that occurred the week of April the 15th … that we dispute,” Clarke said in her 20-minute opening statement

In other words, the defense and the prosecution actually agreed regarding most of the facts. Shouldn’t we have had a resolution long before now?

Related:

  • “Boston Marathon Bombing Trial: Why Are Judges Loath To Change The Venue?” (Harvey Silverglate, 2014)
  • “Brothers’ Classic Immigrant Tale Emerges as Relatives Speak Out” (NBC, 2013): Tamerlan Tsarnaev was an outspoken athlete who spoke three languages, played the piano, studied engineering, was a devout Muslim and aspired to represent the United States at the Olympics. … The brothers were part of a family refugees who fled the war-torn Chechnya region of Russia and immigrated to America a decade ago. … “They immigrated and received asylum,” Ruslan Tsarni, the brothers’ uncle, told reporters outside his home in suburban Maryland.
  • “Russia’s Warning on Bombings Suspect Sets Off a Debate” (NYT, April 2013): In March 2011, the Russian security service sent a stark warning to the F.B.I., reporting that Tamerlan Tsarnaev was “a follower of radical Islam” who had “changed drastically since 2010” and was preparing to travel to Russia’s turbulent Caucasus to connect with underground militant groups. Six months later, Russia sent the same warning to the C.I.A. … F.B.I. officials have defended their response to the Russian tip, which prompted agents to interview Mr. Tsarnaev and his parents and check government databases and Internet activity. The bureau found nothing.
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Supreme Court spreads a big rainbow flag over the word “sex”

by philg

“Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules” (NYT):

The Supreme Court ruled Monday that a landmark civil rights law protects gay and transgender workers from workplace discrimination, handing the movement for L.G.B.T. equality a stunning victory.

“An employer who fires an individual merely for being gay or transgender defies the law,” Justice Neil M. Gorsuch wrote for the majority in the 6-to-3 ruling.

Until Monday’s decision, it was legal in more than half the states to fire workers for being gay, bisexual or transgender. The vastly consequential decision extended workplace protections to millions of people across the nation, continuing a series of Supreme Court victories for gay rights even after President Trump transformed the court with two appointments.

Personally, I think that any law like this actually reduces employment opportunities for the category of people whom such a law purports to help. The law highlights to employers the inferior nature of workers in this category and that, if the employer is unwise enough to hire someone from this category, a lawsuit is an ever-present possibility. Absent a substantial discount, therefore, a rational employer, even one who is completely without prejudice, should thus do everything possible to avoid hiring someone who might fit into the protected category.

In our neighborhood… (“Love is Love” in a larger font than “Black Lives Matter”; significant?)

Gary Drescher, an MIT computer science PhD who is also interested in cognition and philosophy, posted this analysis on Facebook:

Today’s 6-3 Supreme Court ruling on sex-discrimination is encouraging, and not only because the outcome is good (and not only because Trump’s appointee Gorsuch wrote the opinion rebuking the Trump administration’s position). It’s encouraging because the legal reasoning is correct and straightforward: discrimination against someone for being gay or transgender is an instance of sex discrimination, even if Congress did not understand it as such when they banned sex discrimination in the Civil Rights Act of 1964. That is, it’s sex discrimination to fire someone for, say, wearing a dress or having a male spouse, if those same behaviors would not be penalized if the person’s own sex were different than it is.

By fanciful analogy, imagine if Congresspersons were all numerologists who in the 1960s passed a law saying that a person must pay an income-tax surcharge in any year for which the person’s taxable income was a prime number of dollars, due to some mystical property of primes. But imagine that at the time, 23,069 was widely believed to be a prime number, so Congress expected the surcharge to apply to that income. Nonetheless, upon discovery of the factorization of 23,069, a court today would have to hold that income exempt from the prime surcharge, even though the exemption contradicts Congress’s expectation when they passed the law. It’s not that Congress was using the term ‘prime’ differently back then–rather, they had a factually incorrect belief about a particular number’s primality. Even originalism regarding the meaning of a legal text does not necessarily bind us to false beliefs held by the text’s framers.

Gary has persuaded me! Readers: what about you? Is this the dawning of a great new era in American employment litigation?

(Separately, I wonder if the new interpretation of the law leads to a logical contradiction among some American religious beliefs. Transgenderism is as “real” as science, per the sign above. Belief 1: If Joe Linebacker decides to identify as a “woman” starting tomorrow, she immediately becomes a completely successful 6’3″ tall, 275 lb. woman, indistinguishable from a cisgender woman. Belief 2: Employers, being more interested in after-work sexual activities and gender IDs than in profit, will ferret out the transgendered and, as the NYT says, “fire workers for being gay, bisexual or transgender”. How can Beliefs 1 and 2 be consistent? According to Belief 1, absent a DNA kit, nobody can discern the difference between a transgender woman and a cisgender woman. If that is true, how does the prejudiced employer figure out whom to fire?)

Finally, what if the Equal Rights Amendment had been passed?

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

With this new interpretation of “sex”, what else would change had the ERA been ratified?

Finally, what is the practical effect of the righteous elites passing laws like these? Here’s a private text message from a small business owner, responding to the NYT article:

Except transgender is mental illness. Do you really think a company should be forced to hire a 6 foot tall man who thinks he is a woman?

From an immigrant physician, near the beginning of coronapanic:

We have a transgender psychiatrist health secretary. We r f**ked

(she is from a conservative culture)

Will these people (Deplorables?) be persuaded to abandon their prejudices via threat of litigation? Or will they just hide behind Silicon Valley-style “not a culture fit” (regarding an over-35 applicant) cover stories?

To sum up: I am persuaded by Gary and think the Supreme Court made the right legal decision, but I also think this decision will end making it harder for a transgender person to get a job in the U.S.

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American courts during the Coronashutdown

by philg

People sometimes ask how work as an expert witness (mostly in software patent cases, but also in some aviation matters) is going during the coronashutdown. I tell them that things are slow and deadlines are typically pushed back by six months because most courts have shut down except for emergencies, though sometimes hearings will be held via Zoom. “The Chinese must be laughing their asses off when they see how Americans spend their time,” was one response to this news.

Related:

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