Charleston, South Carolina

The other night a 21 year old white male shot up a church and killed 9 people, all of whom were black.  Reports soon followed that depicted the shooter as a white supremacist.  He favored decorative license plates bearing confederate flags and is said to have expressed concern about black men raping white women as a reason for why he felt compelled to shoot up a black church.

It is not surprising an event like this has happened.  If a shooting spree can happen in an elementary school attended by mostly white children it can surely happen in a historically black church.   The Sandy Hook shooting is the new normal so they say.  Until something fundamental changes in the way the country regulates firearms or commits violence in the name of its citizens events like last night’s shooting only bring us one step closer to another Sandy Hook-like massacre, except this next one will be even more horrific.

But what do you expect from  a country whose leaders care more about their bank accounts than for the welfare of their communities?  This goes for communities of all races and colors.  Whites don’t have a monopoly on corruption and moral failings.  They are just better at getting away with it than blacks are.  But blacks of course pay a much heavier price than whites do when they are thrown under the bus by their leaders, and that will remain the case for a long time to come.

Right now our country has no idea who its enemies are.  One would think that with the kind of sweeping data mining and surveillance programs our government has put into place that this question would not be such a hard one to answer.  We like to blame the brown and yellow as the ones who pose the gravest threat to our national security.  For the brown, American- and foreign-born alike, we offer drones and Hellfire missles.  For the less vulnerable yellow we simply snipe and saber rattle.  But mostly we act like the high school bully — you know, the one who will never get it together to leave home and will end up flipping burgers until he is 35, at which point he will spend increasingly more and more time drunk, stoned and in jail.

A Spirit of Prudence

When I was a kid, I had a small, portable radio that looked like a hamburger.  I took it everywhere with me: to the bathroom, in the car, on family outings.  During the summer, I would put it under my pillow as I went to sleep so I could listen to the tail end of Mets games.  Back then, Gary Cohen and Bob Murphy called the games.  Gary Cohen is still calling Mets games but for the team’s flagship television station.  Bob Murphy is dead, whose many years as a smoker finally got the best of him.  I have tried many times to find out where Bob Murphy has been buried so I could tell him how much I miss hearing his voice on the radio but to no avail.  Maybe Gary Cohen wouldn’t mind sharing that information with me.

I used to get excited during Mets games in ways that seem strangely foreign to me now: cursing at opposing players and their fans; mimicking the hitting or pitching motions of various players (Orlando Hernandez a.k.a. El Duque was a popular option); and once, swinging an umbrella — the Mets were up at bat — so hard that its barrel went flying through a wall (good thing I was at a friend’s house without the friend; I don’t’ think I’ve told him to this day about the hole).

As another baseball season is set to begin, I wanted to write about all the things I dislike about baseball today.  And trust me, there’s a lot to say on that subject.  But so what?  No one who is worth a damn in professional baseball is going to change the way the game is presented and played, for me, or anyone else with a gripe.  To most of them, baseball might as well be NASCAR given the way they have turned the game into a slow-motion, ear-splitting, commercial extravaganza.  Of course, I say this without having ever watched a NASCAR race up close and personal, but I’m not sure that really matters.  Who knows, maybe one day I will give up my interest in baseball entirely.  I certainly wouldn’t  be the first one to do so.

But then I would be admitting defeat.  Why should I be the one to abandon the game when it is the game, and its purveyors, that have abandoned me?  As with all things fundamental to one’s way of life, we don’t know what we’ve lost until we’ve lost it.  Tony Judt, the late historian, taught me this in one of his last books.  Of course, there, he was making a case for the defense of social democracy.  But baseball is also an institution deserving of what Judt referred to as “a spirit of prudence”.

If anything needs to change it is the belief that baseball cannot be played in much the same ways that it was played at the turn of the century.  The last time I checked umpires didn’t have  replay machines back then, and I’m not sure the fans would have even stood for such nonsense, given the disruption it creates in the flow of the game.  Not all change is bad, of course.  But, as I again borrow from the Tony Judt playbook,  “incremental improvements upon unsatisfactory circumstances are the best that we can hope for, and probably all we should seek.”  As the famous song goes:

Take me out to the ball game,
Take me out with the crowd;
Just buy me some peanuts and Cracker Jack,
I don’t care if I never get back.
Let me root, root, root for the home team,
If they don’t win, it’s a shame.
For it’s one, two, three strikes, you’re out,
At the old ball game.

Hernandez: Eleventh Circuit Accepts Allegations of Bad Lawyering under Padilla v. Kentucky; Case Sent Back for an Evidentiary Hearing

The question of when a criminal defendant is entitled to a do-over because his lawyer failed to correctly advise him of the immigration consequences of a conviction in light of the Supreme Court’s decision in Padilla v. Kentucky is getting more attention from the federal appeals courts.  Today the Eleventh Circuit Court of Appeals decided the case of Rodolfo Hernandez v. United States, No. 13-10352 (decided Mar. 2, 2015).  In a brief, nine-page decision, the court concluded that Mr. Hernandez who made allegations about shoddy lawyering against his former attorney  should not have had his case summarily dismissed by a lower court; instead, the appeals court ruled, Mr. Hernandez should have been given a chance to build his case and climb what is almost always the very steep hill toward post conviction relief.

The story behind the alleged bad lawyering although pretty typical has some interesting twists.  Mr. Hernandez claimed that his former attorney did not give him correct legal advice about whether he would be deported back to Cuba — his home country —  if he pled guilty to a federal drug trafficking charge.  The lawyer had mixed opinions about the issue.  Because of the lack of diplomatic relations between the United States and Cuba it was not unusual for Cuban nationals convicted of crimes in the United States to remain in a sort of immigration limbo; technically subject to deportation but never actually being deported.  At one point, because of this unique situation, the lawyer asked the judge for his insight, but the judge refused to get involved.  Mr. Hernandez ultimately entered a plea — notably to every charge that was filed against him by the Government — and while he was serving time on his conviction received a letter from the Department of Homeland Security telling him that he may be subject to deportation.

The standard for proving a claim of ineffective assistance of counsel is a high one.  Even if a lawyer did give his client bad advice, the client, in order to secure post conviction relief, must still have to prove that the outcome of the proceedings would have been different “but for” counsel’s poor performance — the so-called prejudice test.  This is where most ineffective assistance claims run into trouble, as was the case with the Rasheed case, recently discussed in this blog.

But in a departure from how other appeals courts have ruled on the issue of prejudice — generally finding no prejudice because, among other reasons, there existed in the words of those courts overwhelming evidence of guilt —  the appeals court in this case sided with the defendant.  It did so because it accepted Mr. Hernandez’s claim that had he known about the risk of deportation that he, in fact, faced, he would not have pled guilty but instead would have opted  to fight the charges at trial.  Of course, had Mr. Hernandez  gone to trial and lost, he would have received a much stiffer penalty than the one he received following his guilty plea.  But to the court this trade off would have been a “rational” one for someone in Mr. Hernandez’s position whose main interest was avoiding deportation.

It will be interesting to see how the case unfolds now that Mr. Hernandez has been given the green-light to fully present his case to the trial judge.  I expect that this won’t be the last time we hear from the Eleventh Circuit on Mr. Hernandez’s plight, although I fear that the next time the Eleventh Circuit speaks on this matter, it will not be in Mr. Hernandez’s favor.

The decision in Hernandez v. United States, No. 13-10352 can be accessed here.

The Character of Man

Here is something from Mark Twain’s Autobiography which he wrote and dictated in bits and pieces over the course of many years, and completed in December 1909, four months shy of his death on April 21, 1910.  The piece is entitled The Character of Man, which was dictated by Twain on January 23, 1906.

The Character of Man

Concerning Man — he is too large a subject to be treated as a whole; so I will merely discuss a detail or two of him at this time.  I desire to contemplate him from this point of view — this premiss: that he was not made for any useful purpose, for the reason that he hasn’t served any; that he was most likely not even made intentionally; and that his working himself up out of the oyster bed to his present position was probably matter of surprise and regret to the Creator. **** For his history, in all climes, all ages and all circumstances, furnishes oceans and continents of proof that of all the creatures that were made he is the most detestable.  Of the entire brood, he is the only one — the solitary one — that possesses malice.  That is the basest of all instincts, passions, vices — the most hateful.  That one thing put him below the rats, the grubs, the trichinae.  He is the only creature that inflicts plain for sport, knowing it to be pain.  But if the cat knows she is inflicting pain when she plays with the frightened mouse, then we must make an exception here; we must grant that in one detail man is the moral peer of the cat.  All creatures kill — there seems to be no exception; but of the whole list, man is the only one that kills for fun; he is the only one that kills in malice, the only one that kills for revenge.  Also — in all the list he is the only creature that has a nasty mind.

Shall he be extolled for his noble qualities, for his gentleness, his sweetness, his amiability, his lovingness, his courage, his devotion, his patience, his fortitude, his prudence, the various charms and graces of his spirit?  The other animals share all these with him, yet are free from the blackness and rottennesses of his character.

****  There are certain sweet-smelling sugar-coated lies current in the world which all politic men have apparently tacitly conspired together to support and perpetuate.  One of these is, that there is such thing in the world as independence: independence of thought, independence of opinion, independence of action.  Another is, that the world loves to see independence — admires it, applauds it.  Another is, that there is such a thing in this world as toleration — in religion, in politics, and such matters; and with it trains that already mentioned auxiliary lie that toleration is admired, and applauded.  Out of these trunk-lies spring many branch ones: to wit, the lie that not all men are slaves; the lie that men are glad when other men succeed; glad when they prosper; glad to see them reach lofty heights; sorry to see them fall again.  And yet other branch-lies: to wit, that there is heroism in man; that he is not mainly made up of malice and treachery; that he is sometimes not a coward; that there is something about him that ought to be perpetuated — in heaven, or hell, or somewhere.  And these other branch-lies, to wit: that conscience, man’s moral medicine chest, is not only created by the Creator, but is put into man ready-charged with the right and only true and authentic correctives of conduct — and the duplicate chest, with the self-same correctness, unchanged, unmodified, distributed to all nations and all epochs.  And yet one other branch-lie, to wit, that I am I, and you are you; that we are units, individuals, and have natures of our own, instead of being that tail-end of a tape-worm eternity of ancestors extending in linked procession back — and back — and back — to our source in the monkeys, with this so-called individuality of ours a decayed and rancid mush of inherited instincts and teachings derived, atom by atom, stench by stench, from the entire line of that sorry column, and not so much new and original matter in it as you could balance on a needle point and examine under a microscope.  This makes well nigh fantastic the suggestion that there can be such a thing as a personal, original and responsible nature in a man, separable from that in him which is not original, and findable in such quantity as to enable the observer to say, This is a man, not a procession.

*****  Consider that first mentioned lie: that there is such a thing in the world as independence; that it exists in individuals, that it exists in bodies of men.  Surely if anything is proven, by whole oceans and continents of evidence, it is that the quality of independence was almost wholly left out of the human race.  The scattering exceptions to the rule only emphasize it, light it up, make it glare.  The whole population of New England meekly took their turns, for years, in standing up in the railway trains, without so much as a complaint above their breath, till at least these uncounted millions were able to produce exactly one single independent man, who stood to his rights and made the railroad give him a seat.  Statistics and the law of probabilities warrant the assumption that it will take New England forty years to breed his fellow.  There is a law, with a penalty attached, forbidding trains to occupy the Asylum street crossing more than five minutes at a time.  For years people and carriages used to wait there nightly as much as twenty minutes on a stretch while New England trains monopolized that crossing.  I used to hear men use vigorous language about that insolent wrong — but they waited, just the same.

We are discreet sheep; we wait to see how the drove is going; and then go with the drove.  We have two opinions: one private, which we are afraid to express; and another one — the one we use — which we force ourselves to wear to please Mrs. Grundy, until habit makes us comfortable in it, and the custom of defending it presently makes us love it, adore it, and forget how pitifully we came by it.  Look at it in politics.  Look at the candidates whom we loathe, one year, and are afraid to vote against the next; whom we cover with unimaginable filth, one year, and fall down on the public platform and worship, the next — and keep on doing it until the habitual shutting of our eyes to last year’s evidence brings us presently to a sincere and stupid loyalty — a snare invented by designing men for selfish purposes — and which turns voters into chattels, slaves, rabbits; and all the while, their masters, and they themselves are shouting rubbish about liberty, independence, freedom of opinion, freedom of speech, honestly unconscious of the fantastic contradiction; and forgetting or ignoring that their fathers and the churches shouted the same blasphemies a generation earlier when they were closing their doors against the hunted slave, beating his handful of humane defenders with Bible-texts and billies, and pocketing the insults and licking the shoes of his Southern master.

If we would learn what the human race really is, at bottom, we need only observe it in election times.  A Hartford clergyman met me in the street, and spoke of a new nominee — denounced the nomination, in strong, earnest words — words that were refreshing for their independence, their manliness.  He said, “I ought to be proud, perhaps, for this nominee is a relative of mine; on the contrary I am humiliated and disgusted; for I know him intimately — familiarly — and I know that he is an unscrupulous scoundrel, and always has been.”  You should have seen this clergyman preside at a political meeting forty days later; and urge, and plead, and gush — and you should have heard him paint the character of this same nominee.  You would have supposed he was describing the Cid, the Great-heart, and Sir Galahad, and Bayard the Spotless all rolled into one.  Was he sincere?  Yes — by that time; and therein lies the pathos of it all, the hopelessness of it all, when he perceives, by the general drift, that that is the popular thing to do.  Does he believe his lie yet?  Oh, probably not; he has no further use for it.  It was but a passing incident; he spared to it the moment that was its due, then hastened back to the serious business of his life.

And what a paltry poor lie is that one which teaches that independence of action and opinion is prized in men, admired, honored, rewarded.  When a man leaves a political party, he is treated as if the party owned him — as if he were its bond slave, as most party men plainly are — and had stolen himself, gone off with what was not his own.  And he is traduced, derided, despised, held up to public obloquy and loathing.  His character is remorselessly assassinated; no means, however vile, are spared to injure his property and his business.

The preacher who casts a vote for conscience’ sake, runs the risk of starving.  And is rightly served; for he has been teaching a falsity — that men respect and honor independence of thought and action.

Mr. Beecher may be charged with a crime, and his whole following will rise as one man, and stand by him to the bitter end; but who so poor to be his friend when he is charged with casting a vote for conscience’ sake?  Take the editor so charged — take — take anybody.

All the talk about tolerance, in anything or anywhere, is plainly a gentle lie.  It does not exist.  It is in no man’s heart; but it unconsciously and by moss-grown inherited habit, drivels and slobbers from all men’s lips.  Intolerance is everything for one’s self, and nothing for the other person.  The main-spring of man’s nature is just that — selfishness.

Let us skip the other lies, for brevity’s sake.  To consider them would prove nothing, except that man is what he is — loving toward his own, lovable, to his own, — his family, his friends — and otherwise the buzzing, busy, trivial enemy of his race — who tarries his little day, does his little dirt, commends himself to God, and then goes out into the darkness, to return no more, and send no messages back — selfish even in death.

In Front of Your Nose

In 1946 George Orwell wrote a piece called In Front of Your Nose in which he famously said that “[t]o see what is in front of one’s nose needs a constant struggle.”  This is so, Orwell thought, because people have a habit of  “ignoring facts which are obvious and unalterable, and which will have to be faced sooner or later.”  As Orwell explained:

[W]e are all capable of believing things which we know to be untrue, and then, when we are finally proved wrong, impudently twisting the facts so as to show that we were right.  Intellectually, it is possible to carry on this process for an indefinite time: the only check on it is that sooner or later a false belief bumps up against solid reality, usually on a battlefield.

We all know what it looks like when false beliefs bump up against solid reality on a battlefield.  Paris is but one example of that.  Others that come to mind are Ferguson and Hong Kong.  In Paris the false belief was that terrorist watch lists and “intelligence” were effective tools in keeping a check on disenchanted, frustrated and angry youths.  In Ferguson, it was that blacks would be content living  in poverty and ignominy for the rest of their lives, under a power structure dominated mostly by non-blacks.  And in Hong Kong, it was that everyone who wasn’t rich wouldn’t also like the chance to become rich or at least level the playing field for those who weren’t rich.

But little seems to change even when the battle between myth and fact makes it way from the sterile confines of the internet and the legislature on to the streets.  If anything, it is the status quo that has  prevailed in most places.  In Paris, as in the United States, post-September 11th, the talk, no doubt, is of bulking up the security state to further marginalize those who “hate the values of the freedom-loving West.  In Ferguson, blacks have gone back to living their miserable lives  hoping that they won’t end up like Michael Brown even though that may be a fate better than what is surely in store for most of them, being  poor and black in the United States.  And in Hong Kong the Chinese Communist party had its way with the protestors, giving not one inch to their demands and barely acknowledging their months-long existence.

It may be that we have not yet reached the battlefield to which Orwell referred in his essay.  That the events in Paris, Ferguson and Hong Kong are simply a preview of what is to come: more hardening up of positions, more violence, and more deaths.  But it may also be that none of what Orwell feared will ever come to pass.  Not because we will have finally come face to face with the brutal facts but because the governing class will have succeeded in eliminating all unpleasant facts; in fact, we are already halfway there given the current size of the surveillance apparatus.  That would be the scariest proposition of all.

Rasheed: Divided Fifth Circuit Panel Finds Counsel Ineffective Under Padilla But No Harm

Now that the Supreme Court has decided that Padilla cannot be applied retroactively, the lower courts are, as expected, trying to figure out what set of circumstances merits relief under Padilla — that is, when does a foreign national have a claim for ineffective assistance of counsel under the Sixth Amendment because his attorney did not give him the correct or any advice on the immigration consequences of pleading guilty to a criminal offense?

The Fifth Circuit Court of Appeals recently took up this issue in the case of United States v. Kayode, and, in a 2-1 decision, ruled against the petitioner, a federal prisoner who brought the appeal without the help of an attorney.  The majority concluded that while the petitioner might have, in fact, received ineffective assistance of counsel — the petitioner told the court among other things that his attorneys failed to tell him he would be subject to deportation once he pleaded guilty to the charges brought against him by the Government —  he did not show that his attorneys’ bad lawyering harmed him in any way.  The fact that the petitioner resided in the country for 30-plus years, while relevant to whether the petitioner would have opted for a chance to fight his criminal charges at trial rather than succumb to a plea — his victory at trial would have presumably saved him from deportation — was, by itself, not enough to show he had been harmed by his lawyers’ shoddy work.  Instead, the majority focused on what it believed was the strong case the Government had against the petitioner and the petitioner’s failure to rebut any of this with evidence of his own.

If this result seems unjust to you, you are not alone.  Judge Dennis dissented from the majority decision, accusing the majority of short-circuiting the petitioner’s case.  For one, Judge Dennis wondered, how could the petitioner have given the majority what it wanted when he was housed under lock-and-key for the duration of the appeal and prepared the entire appeal on his own without the help of an attorney?  It is also puzzling, although Judge Dennis doesn’t make mention of this in his dissent, that the petitioner won’t be given a do-over, which is really what these kinds of postconviction cases are all about, when he has already demonstrated to the satisfaction of the entire court the grossly incompetent lawyering he received up until he pleaded guilty.

The opinion in United States v. Rasheed Kayode, No. 12-20513 (5th Cir. decided Dec. 23, 2014), can be found here.

UPDATE (2/24/2015): I have since learned that the petitioner in this case, Rasheed Kayode, had asked the appeals court to reconsider its decision.  He is, surprisingly, still representing himself, and he prepared and filed his own petition for rehearing, which relies, exclusively, on Judge Dennis’s dissent, for the reasons why he should be given a rehearing.

UPDATE (4/17/15): On March 2, 2015, the Fifth Circuit denied Mr. Kayode’s petition for a rehearing by the panel and by the en band court.

The Other Side of the Wind

The following is a “reluctantly dissenting” opinion written by a federal appellate judge in a case  that concerned the voluntariness of incriminating statements made by a 19-year old to detectives in an interrogation room.  The opinion is notable most of all for its honesty and is worth a read for lawyers and laypersons alike.  It gives one faith that the cards are not always stacked against the down and out and that sometimes just results are the order of the day even if it means the law, at least as it is currently written, will not be followed to a “T”.

Chief Judge KOZINSKI, reluctantly dissenting:

This is a sad and troubling case. There can be no doubt that Tio Sessoms meant to ask for a lawyer. Nor is there any doubt that detectives Woods and Keller understood exactly what he was asking for—and used their hefty leverage to divert him from that purpose. It was hardly a fair contest: a boy in his teens, held in custody and cut off from friends and family, pitted against two police detectives with decades of experience in overcoming the will of recalcitrant suspects and witnesses.

But what we must decide is not what Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an attorney. This is the kind of question only lawyers could love—or even understand—and perhaps not even most of them. I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison, half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam) (“[T]he inevitable consequence of [AEDPA] is that [federal] judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.”); see also Brown v. Payton, 544 U.S. 133, 148-49 (2005) (Breyer, J., concurring) (stating that even though he likely would have found a constitutional violation “[w]ere [he] a California state judge,” the state court’s denial of habeas relief was reasonable).

Under this unforgiving standard, Judge Murguia has the better of the argument. This is not a case where the state judges were confused about the law or overlooked key evidence, as in Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004). No, the Court of Appeal’s opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager. Another uneven contest that Sessoms was bound to lose.

While I agree with Judge Murguia’s analysis and join her dissent, it’s just as well that our view doesn’t command a majority. If the State of California can’t convict and sentence Sessoms without sharp police tactics, it doesn’t deserve to keep him behind bars for the rest of his life. I have seen far too many cases where police extract inculpatory statements from suspects they believe to be guilty, then stop looking for evidence, confident that the courts will uphold the interrogation, no matter how tainted. See, e.g., Milke v. Ryan, 711 F.3d 998, 1001-02 (9th Cir. 2013)Taylor,366 F.3d at 996-97. This can lead to wrongful convictions, as innocent interrogation subjects confess with surprising frequency. See Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 3-5 (2009); Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 88-89 (2008). When courts bend over backwards to salvage evidence extracted by questionable methods, they encourage police to take such shortcuts rather than doing the arduous legwork required to obtain hard evidence.

The state courts should have been far more vigilant in correcting and condemning the detectives’ improper conduct, particularly since it involved a naïve teenager who clearly tried very hard to invoke his constitutional right to have a lawyer present during questioning. The state courts having failed Sessoms, I’m glad that a majority of our en banc court is able to conclude that the state courts were unreasonable. I hope their view prevails in the end.

The case is Sessoms v. Grounds, No. 08-17790 (9th Cir. decided Sept. 22, 2014) (en band).  The full opinion can be downloaded here.