Monday, October 10, 2016

A Laugh, and Criticism of Trump for Exploiting a Victim & Voter's Disdain for Constitution



Here is a vital article on where the candidates stand on Bear issues from our friends at Bearmageddeon. You might find some cogent commentary by a certain Bear Celebrity.

Trump's Shameful Exploitation of a Victim & Denigration of the Constitution

Speaking of the debate, Trump is making it really hard to support him. Hillary is making it slightly harder. Here is Bear's beef with Trump.

Parse it however you wish, but Trump flat out played the demagogue with his pathetic exploitation of the poor woman who was sexually abused by someone Hillary defended. Yes, Hillary represented him. She was appointed, but, so what? The Bear would have happily represented him if he could afford the Bear's fee. Guilty or not. Nearly all of them are guilty, anyway, so how does a Bear earn salmon by turning away 99% of his clientele?

The Adversary System: Even the Guilty Get Trials!

It is the glorious Anglo-American adversary system. Them's the rules. If you want an inquisitorial system, go to France, or Italy. Here, both sides make their absolute best cases, and a jury of twelve good and true decides if the prosecution has met its burden: guilty beyond a reasonable doubt. It has much more drama, and gives scope to a flair for the theatrical.

That's the theory, anyway. Most of the time, the Bear thinks it works. Not all. But enough to say there's no better system.

Problem Evidence Gets Suppressed - It Keeps Everybody Honest

Hillary got evidence suppressed. Yes. Defense lawyers do that when their clients' rights have been violated. It was inexcusable for the lab to discard important evidence without allowing the defense to have it independently tested. The Bear would have done the same thing. And ten more things Hillary didn't think of. Don't blame the defense for that. Blame law enforcement, and prosecutors when evidence is successfully suppressed. It's called the exclusionary rule, and is meant to keep law enforcement professional and honest by taking away illegal evidence.

Unless, that is, you trust agents of the state - say, Obama's or Hillary's DOJ - to just do the right thing because their consciences tell them to? Hmm?

Hillary Did Not Laugh at Victim, but Some Aspects of Case

Hillary did not laugh at the complaining witness. She laughed about a few aspects of the trial like losing faith in polygraphs after her guilty client passed one. First of all, she should have known polygraphs are interrogation tools, and are not "lie detectors." Junk science. Inadmissible. Okay, maybe that was not as evident as it is today. Should she have laughed?

The Bear does not think laughing in an interview about a case shows the sober respect one hopes (but, sadly, these days) cannot expect from the legal profession. Too often, it is less Perry Mason and more Better Call Saul. (The Bear cringes at many lawyer ads.) The Bear doesn't think it is the best policy to discuss details of cases, anyway. Otherwise, this ephemeris would be one ripping yarn after another from the Bear's fabulous, indeed embellished, legal career. (Click on Bear's dubious novel link in the sidebar if you want to read all about that.)

The Bear knows you will dismiss Snopes as biased, but they have this one right. It all rings true to the round, fuzzy ears of a veteran defense lawyer.

The Bear did not revel in complaining witnesses' suffering. The last thing a defense lawyer wants to do is be seen doing anything to stress a sympathetic witness. The defense lawyer's access to the witness is nil in Illinois. The only time we have with the complaining witness is when they're on the stand. (The psych eval would not happen today.) Unlike civil cases, we don't get to do depositions ordinarily. (Death penalty exception, when there was a death penalty; a few states allow depos - Florida seems to come to mind, and maybe Indiana.)

The Bear, at least, once a case was over, was able to see the victims as persons, dead or alive. He still is, some of them. Some ghosts the Bear will take to his grave. Without making any comment whatsoever on the guilt or innocence of the defendant (who was found guilty) Sheri Coleman and her two boys are foremost among those victims who make the Bear heartsick to this day.

Sure. Trump's victim is sympathetic. Trump knows the average person is not going to have the Bear's perspective. Deep down, most people do not want criminals to have trials. The Bear knows this because he has done opinion research in connection with change of venue motions. And lived among humans. You think Bears are bloodthirsty? The Bear wishes he had a salmon for every time he has heard, "They ought to just find a tree and hang the S.O.B. instead of wasting money on a trial." (Maybe it's just Illinois.) Trump knew that "she represented a man she knew was guilty!" would sound bad to people.

A Liberal Is a Conservative Whose College Kid Has Been Arrested for Rape

There is one big exception to this.

A liberal is a conservative whose college kid has just been arrested for rape. Amazing how those "technicalities" everybody complains about become the 4th, 5th, and 6th amendments, once it is someone you love facing prison time. And, well, not one of those cases ever went to trial. No class of cases is fraught with more doubt than sexual abuse or assault cases.

It is never a good idea to just assume someone is guilty because he is charged with something. Sometimes prosecutors feel compelled to file charges. They are elected officials, after all.

The Bear had maybe one straight up forcible rape case, to his recollection. All the rest were cases where only consent was at issue. Invariably complicated by conflicting stories, alcohol, delays and other obstacles to learning the truth. This isn't a defense lawyer only perspective. Prosecutors know this too. When a case starts with, "We were all all pre-drinking..." and ends with "..." well, some uncertain scrum on the floor of a crowded apartment, that is not even remembered until a week later, and that goes unreported for two more weeks, the Bear must really indict the culture at his alma mater, Southern Illinois University.

Bear is Proud of his Career as a Defense Lawyer

The Bear could not be prouder of his career representing citizens accused of crimes by their government. He could have made far more money in nearly any other kind of law. But something about defending the underdog against the behemoth of the state appealed to his rebellious streak. He had remarkable success. One innocent young man who faced the death penalty had his shackles removed, and walked out of the courtroom upon being found not guilty by the jury.

The Bear was the only defense lawyer who could actually fit the prosecutor's head in his mouth. Could have had something to do with his success.

23 comments:

  1. If I want Jesus to be Advocate for my sins at Judgment Day - I damn well know what I deserve - then why would I not want a rapist to have an Advocate in Man's Court?

    A rare moment of clarity. It will sadly pass.

    Good post, Bear. Keep up the good work.

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  2. Why are priests assumed guilty once charged then? I know it's a different system, but...is it because so often the guilty ones were passed over in the past? Is it because the innocent ones now pay for the guilty?
    I do agree with what happens on an individual level with justice and liberal/conservative. It is when applied to groups or classes of people that there is a problem.

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    1. There is always a... I don't know what to call it... backdrop against which pure legal cases are handled. You do probably have a glut of cases that were winked at before, and now are getting closer attention. But you can get the opposite effect, too, where authorities are gun-shy about public opinion.

      I have no doubt about the homosexual priest abuse. The numbers match up with what we would expect, according to the Jay Report. They are massively weighted toward adolescent male victims. I would expect non-homosexual offenders to be much younger and not skewed so heavily toward boys. This is the way it is in the general population among child molesters. You have child molesters, who go young -even very young - and homosexual predators, who go after adolescent males.

      However, I have huge problems with adults bringing cases 20 years later, or more. There are reasons we have statutes of limitation. No way is a 20 year old case going to be as good as a 6 month old case. I am seeing the public demanding virtually eliminating the statute of limitations for child sex abuse cases. Then there are the huge problems with so-called "recovered memories." A colleague of mine, Dr. Richard Ofshe has done a lot of research in this field, and concluded cases like the McMartin Preschool case are disasters that ruin innocent peoples' lives.

      So, in summary, I don't know, other than the pendulum swings. I hope these priests are getting experienced counsel who really know the very latest on these kinds of cases, both in administration hearings, civil and criminal cases. Child sex abuse cases are really a specialty of their own, one which I have been extensively involved in. Of all the kinds of cases, they are among the most terrible, when true, but also most subject to manipulation by adults for a variety reasons. I did a lot of them. Unlike many cases, often, I never knew if the defendant was guilty or not. I had very good success with them, though, although often in sentencing, not guilt-innocence, but that, too. Jurors are inherently skeptical of those kinds of cases in a way you don't see with others.

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  3. Jesus is the judge. Your advocate is the Holy Spirit.

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    1. After the moment of death, I don't think that statement stands theologically as there is one Divine Will and it would imply God argues with Himself.

      Yes, after the Ascension, the HS was sent as an Advocate, but that's this life. Furthermore, all Divine actions are trinitarian in nature and an action is only attributed to one Person because of our limits in human comprehension.

      Once the Judgement starts, there aren't any defense attorneys and no excluded evidence--notwithstanding speculation on whether confessed sins are "forgotten".

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  4. I wonder that Hillary is probably proud of her job getting that guy a reduced sentence- time served (2 months). Yes, I thought about that listening to her tapes. It must have been somewhat of a coup. She sounded very smart & clever- especially about getting the New York expert to testify about the evidence on the panties "to prevent this miscarriage of justice!" She herself chuckled over that line. Perhaps in Arkansa it was a bit like Mayberry or Hillsboro where the threat of a big city lawyer or expert witness made everyone scared. That was the bit that rubbed me the wrong way. And further Hillary smearing the girl -having known sexual infatuations and imaginings of older men. It the old blame the victim- whether she was raped or made it up. I heard Kathy Sheldon say she was a virgin before this happened. She also said there some accomplice who spread her legs open. The rape was so brutal she needed stitches 'down there', and was in a coma for 5 days. As a result, she could not have children later on. I could never be proud of getting that guy any breaks as his lawyer.
    I read that the transcripts from this incident have gone missing....???
    So it seems we have Kathy Sheldon's word and Hillary on tape.
    When I first heard a short interview with Sheldon- maybe from the Daily Mail?- I thought she was being exploited. Second one was more detailed and then I was won over. That was a while before the debates. I was glad Trump got her and the others for the press conference and to sit at the debate. Her story should be heard. It's not getting the attention the Trump talk got because the idea is not to see both sides, but to take out Trump and squash opposition.

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    1. I am not sure what story there is that needed to be told. That Hillary represented a man she knew was guilty? That she suppressed evidence that the state had inexplicably thrown away? That the prosecutor concluded that there was significant problems with the case? That the victim was raped? (He did plead guilty, so that is not really disputed.) The only thing at all is that Hillary showed poor judgment in how she talked about a case.

      Of course, Trump was casting a broader net to play on people's sympathy for a rape victim to criticize Hillary for "defending a man she knew was guilty," and somehow sneakily "suppressing evidence."

      Sure, it worked. Because the guy should have been sent to prison for life, if not executed. Because Hillary was sleazy to represent a guilty man - one whom she knew was guilty - and double sleazy to use some trick to throw out evidence that would have convicted him.

      Of course, here we have the 6th and 4th amendments to the Constitution. But Trump counted on everyone processing this on an emotional level. An he was right. Now anyone who sees the need for defending the Constitution is going to be seen as supporting rape.

      Belive me, I get this. I have been tilting at this windmill fot decades, and every time I saddle up, I know I'm goibg to lose and just alienate everyone.

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  5. Bear,
    I don't have a problem with your explanation of Hillary's situation (and I didn't watch the debate).

    I'm not sure I'm keen on the adversarial model from what I hear of it, but then I haven't observed the inquistorial model. I don't question the Bear's professional performance, but I'm not sure how confident I am about lawyers in general on both sides. I too often hear--and actually read a letter to the editor from a lawyer describing trials in a sports analogy with the judge as referee. That comes off as flippant and doesn't generate a sense of confidence.

    a jury of twelve good and true
    And I've heard it cynically said that jurors were people who weren't smart enough to get out of jury duty. I look at SEC proceedings for example and see one large bank/brokerage get off with an arbitrary fine (less than the profit) without admitting guilt. I expect that's because white collar financial fraud is too complicated and lengthy to realistically prosecute in front of a jury. The Microsoft anti-trust suit is another example.

    A conservative is a liberal who's child has been murdered, no?

    I suppose we just have to come to terms with the reality that we can't expect proper justice in this life, and have to hope we don't get it in the next.

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    1. The joke is actually a conservative is a liberal who has been mugged. The Anglo-American adversary system is the way our founders set things up. It absolutely encourages gamesmanship on both sides, but that's a feature, not a bug. Juries take their job seriously and generally get it right. But cases almost never go to trial. In this case, as in 97% of cases, the prosecutor decided that, for whater reason, that is what the case was worth, i.e. Taking it to trial would have carried a substantial risk of losing.

      The analogy of the judge as referee is old. It isn't bad as far as it goes.

      You won't get an argument from me abot Hillary laughing. I am sure the victim feels she were being laughed at. I think the less lawyers say, the better.

      Fact remains that Trump either cynically or ignorantly exploited people's emotions, and their belief that an OJ walks away from a murder every other day. I practiced law for a very long time and cannot recall a single instance of a guilty person being found innocent after trial. Nor an unambiguously innocent person being found guilty.

      But, as I said, Trump was putting on a show designed to whip up public outrage about the normal working of the American criminal justice sytem. It was not limited to Hillary's laugh about the case. The thrust was she knew he was guilty, and the court suppressed evidence. Yes. That is exactly the way things are designed to work. (BTW there is less than a 1% chance of success in suppressing a confession, and I am confident there is a similarly low chance in suppressing other evidence.)

      I did not even get into the flip side, either. Read about Captain Burge in Chicago. Read about "The Wrong Guys" by my colleague Dr. Richard Leo, a case study of false confessions. Or Dr. Richard Ofshe, another false confession expert with whom I have worked closely to secure a not guilty verdict in a capital murder case. Read about the DuPage Co. officials who were disgraced and tried for knowingly hiding evidence and sending an innocent man to prison in the Nicarico rape/murder. The state is in an excellent position to cheat. Agents are smart, convinced that that they are on the side of the angels, and enjoy tremendous institutional protection.

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    2. conservative is a liberal who has been mugged.
      Thanks, I was trying to come up with that and couldn't remember. But my version had that additional emotional punch, right? (I don't always fight fair either).

      To make clear, I don't have a problem with the defense of Hillary on this issue and concede it entirely. A conservative commenter (non-lawyer) gave exactly the same appraisal of this particular issue as you did (before you posted): not a fair poke at Hillary and manipulative of the victim.

      (Though I didn't see it) I also agree it was emotionally manipulative, but then so is 99% of political campaigns. It doesn't make it right to do, but he's also fighting the same manipulation. This is why I think we'd be better off going back to State legislatures picking the electors (which technically they still do). Yes, that introduces other problems, but at least the people of a state have more direct control over selection of state legislatures and it brings it closer to the people. State legislators are more frequently known more personally by the people. The caveat would be to somehow keep out of state money from influencing state elections, and good luck with that.

      I also concede that much of the perception of the court system is created by Hollywood where script writers can manipulate the characters and emotions of the viewers, and don't have to accurately portray legal procedures.

      I've had very few brushes with the justice system and those in a peripheral way (ie not the target nor the victim). The few instances didn't leave me all too impressed by the investigators and DAs either. Maybe I'll email some examples.

      So, at the end of the day, all I can really do is trust the Bear's experience, and the Bear has earned my trust.

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  6. I know very little about that Clinton case, but I think it's too easy to forget a 12 year old child was apparently raped. That children have been, and are, increasingly subject to sexual abuse by adults is one of the more sickening aspects of contemporary culture, and what prevents the arm of God from annihilating us on this basis alone is something I'm sure I don't understand. We should never be complacent about the abuse of a child, because sexual corruption and abuse can destroy them, and often does.
    Personally, I'm glad not to be a defense lawyer. There is no way I would or could defend someone I believed did it. I'd end up being poor and shooting my own clients.
    Would I have brought this poor lady into it? Probably not, but there are so many people who seem not to have very much mental capacity, who are influenced by Kim Kardashian or what some huckleberry on the news says about Donald Trump. Maybe in order to reach the American people now, a politician has to use these cheesy emotional appeals. It does seem to work. I see lots of people who are voting for the obviously corrupt and vile Hillary Clinton, and much of the vitriol against Donald Trump seems to be based on the silliest of rationales. We know she's evil, but these Democrats believe he's evil because of some vulgar things he said ten years ago. Let's face it, we have a bumper crop of just dumb Americans who are ready to keep Obama's demonic presidency going.

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  7. This election is about one thing, Bear. Who determines the composition of the US Supreme Court for the decades to come.

    I cannot abide Donald Trump but I do respect Mike Pence, his running mate.

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  8. I will grumble, and votd for Trump. As for the other, everybody has different talents and capacities. I enjoyed both prosecution and defense. I was good at both. People are of course entitled to their opinion of me on the basis of my chosen profession, which I did in the uniform of my country, in the employ of the government, and in private practice. I was an essential part of the greatest and most citizen-participitory criminal justice system in the world. I loved it. But trials are very rare. Most of the time I was simply using applied psychology against the prosecutor. To remove the death penalty. (100% ssuccess rate in many death eligible trials.) To reduce the charges. To get cases dismissed entirely. I literally made things so difficult prosecutors would preder anything to the tide of motions and complications.

    In short, my job was to inject uncertainty about the outcome of trial.

    I am confident the world is a better place for my work, not least because you cannot put bad guys away without defense lawyers. Then again I obtained a death sentence as a prosecutor. I was a switch hitter.

    I hope my vigorous defense of our system did not offend anyone. And if you kill anyone, you will want me as your defense lawyer. Because I make Hillary look like a Brownie. I will come out of retirement and take your case pro hac vice. I am not cheap, but will give a woodlands creature discount.

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  9. "the poor woman who was sexually abused by someone Hillary defended. Yes, Hillary represented him. She was appointed, but, so what? The Bear would have happily represented him if he could afford the Bear's fee."

    Wow....I have certainly lost respect for you. You display the same kind of obeisance to the law that caused Justice Scalia to aver that if the people in a democracy want abortion, the state should allow it. Ditto for sodomy.

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    1. So, people don't deserve lawyers, or trials, right? Just the knock on the door in the night, the black car, and the suspect is gone, huh? I have had this argument many times, and I know people who process information emotionally have the lynch law in their hearts. But I know what your opinion would be if your son ot you were somehow. charged with a serious felony. Suddenly, the 6th, 5th, and 4th amendments would seem like a good idea. It is a waste of time arguing with people who don't get the built-in protections thr Constitution provides to protect individuals vs the government. But I learned I will never chane anyone's mind.

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  10. Nothing compels you to take the case. Thomas More, you ain't.

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    1. How about duty and professional ethics? Not to mention perhaps the virtue of charity, which is not to say services must be performed pro bono.

      If the police had arrived and shot the rapist and delivered him to the hospital, should the doctors treat him or let him die of the wounds? After all, what compels the hospital staff to treat him?

      He's just a rapist, let him bleed out and save everybody the trouble, right?

      For that matter, why should God give you Grace in order that you might be saved? You're just a sinner after all, born a child of wrath (Cf Eph 2:3).

      Delete
  11. Bear,
    A bit of a tangent, but it's been on my mind. What are your thoughts on no fault divorce, and no fault annulments? I have strong opinions about the subject. The ramifications are enormous, and innocent families are not represented. Just laws matter, and many are harmed through the law due to a lack of representation.

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  12. Keith, I never did any divorce work, except I did do separation agreements as required by legal assistance duties when I was a JAG Lawyer. Never did any divorces. I don't believe in them. And if anyone wants to say I could refuse criminal defense, then, yes, I could. But I do believe in a person's presumption of innocence, and right to a lawyer, and I enjoyed doing a job custom made for me. Not many people are that lucky.

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  13. I suppose my answer was incomplete. Personally, I do not believe getting tired of the person you're married to, or finding someone else who ticks all your boxes, should ever be grounds for divorce. Same with annulments. It is ridiculously easy for one or the other member of a couple to find someone "new and improved." In fact, the whole theme of Judging Angels is how we set ourselves up, and why once we are married the scorecard goes in the pocket - permanently. I guess it is subversive to the popular "supernatural romance" story. What if it isn't a vampire? What if it is someone who really does truly love you, and what if your wife is truly a witch? Do you get the card that lets you out of your marriage? Why not? How does going your way with someone who loves you in a way you cannot imagine totally screw everything up, even though they are certified good? Or are they?

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  14. I hear you. We aren't supposed to judge by our own desires and thoughts. We lie to ourselves and others so often when we don't live by faith. Marriage is all about faithfulness, becoming one, forgiveness, perseverance, for the love of God. There is no mercy in divorce, only infidelity and worldly judgment. God is good, through fidelity to the Father, the Son, and the Holy Spirit we wretched creatures are made a good and new creation, but we have to follow Him, not ourselves. I think we're supposed to help one another get to Heaven, and through Holy Matrimony, mothers and fathers are to teach their children the faith, and set the example. God is good, we are wretched sinners, God Loves us anyway, and will gave us His Life to free us from our wretched selves.

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  15. I wish that our Church would represent those who believe, and help those who don't to find their way back Home. It's not easy to love as Christ loves. Gods Love is not the love of this world. He will make all things new again to those who persevere. We live in very tough times, and our Lord Jesus Christ is with us, He went through it for us. We need to hold on to our cross. In matters of faith and truth, we have an Advocate, even when the whole world gives troubles us.

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