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

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.

Removing the Barriers to Happiness

Linda Greenhouse, the Times’ former Supreme Court correspondent, recently wrote about the shifting views of the public on gay marriage and the prospect of the Supreme Court deciding once and for all whether  the Constitution confers a right on gays to marry.  In her piece, Greenhouse made the observation that where once it was taboo for one to come out in support of gay marriage, now that sentiment is almost  de rigueur.  In Greenhouse’s words:

Twenty years ago, even many well intentioned straight people found same-sex marriage a challenging concept to grasp, if they thought about it at all.  Today, it would take an act of will to ignore the fact that as barriers fall, the sum total of human happiness increases and any theoretical downside remains — as the states have found — impossible to articulate convincingly.

Greenhouse seemed to include herself among the “well intentioned straight people” for whom gay marriage was until recently an afterthought, which is admirable, if only because she tried to level with her intended audience, which most other writers today would never do.

But Greenhouse breaks no new ground in her piece.  She is mostly preaching to the choir when she reveals that even  “well-intentioned straight people” may have at one time denied gays the right to marry.  Discriminatory attitudes are not exclusive to born and bred bigots.  They are held by everyone, and can be shed by them.  But to say that one’s neighbor down the street in left-leaning Park Slope, Brooklyn, might have at one time disliked gays is to say nothing at all.

The more interesting question is what has caused the widespread shift in attitudes toward a greater acceptance of gays and their right to marry and why a similar shift hasn’t taken hold with respect to other groups and their ability to exercise fundamental rights.  Certainly lowering the “barriers” for the poor or even the middle class to affordable housing would increase the “sum total of human happiness”.  But why hasn’t such a change taken place, and with the kind of momentum and fanfare that has accompanied the gay marriage movement?

The answer perhaps lies in the fact that the process of conferring a right upon a group once denied to it to the exclusion of equally deserving groups is itself an exercise in discrimination.  The unspoken truth is that society is making a judgment that one group is more deserving or of greater worth than another.  Nothing has changed in the past few decades for gays or for the poor in terms of each group’s defining characteristics; if anything the destitution that has come to characterize the condition of being poor is even more pronounced today than it was ten, twenty years ago.  What has changed, however, is that the gay community has, as a whole, become more influential and affluent, even before it  started winning in the courts to solidify its status as an equal with heterosexuals.  It didn’t hurt that government officials pursued their anti-gay agenda with a kind of ferocity once reserved for blacks in the Jim Crow south.  Other groups that have not been able to remove the “barriers” to “happiness” that the gay marriage movement has been so effective in removing have failed in their efforts mostly because they remain an afterthought for most people.  The public might sympathize with their condition and their causes but by and large it will ignore these groups just as it once did with gays.

Recognizing that gays have a right to marry is a positive development.  But it shouldn’t be done in a kind of vacuum where the motivation for change is generated by the same kind of hysterics that prompted the government to ban gay marriage in the first place.  This is especially true for those who once rejected gay marriage as a fundamental right.  For  persons who fall into that category, and I imagine there are a lot of them,  it is just as important to figure out why they decided to switch positions.  The answer may not be a pleasant one but it is worth knowing nonetheless, if anything so that we can understand the true character of the society in which we live.

What White Flight Looks Like Today

Below is a letter/article I submitted to my local community paper for publication.  After some back and forth, the paper decided not to publish it, at least in its current form, for reasons that are not worth reciting here.  I have changed the location references but the rest of the article remains unchanged.

*****

My wife and I live in [Springfield], next to an eyesore that is one of the many newly constructed homes in the area. These new housing projects tend to share common characteristics like massive foundations (the one next to our house promotes itself with a sign that says “SIZE MATTERS!”), cheap construction and a confusion of styles (a Craftsman, bungalow townhouse with the vibe of a ski chalet). What often happens is a bulldozer swoops in and makes quick work of an older house – one that had no defects to speak of except perhaps for those that arose out of the developer’s post-purchase neglect. The house is demolished because it is considered too “old” and too small even though countless families have once called it home. It is replaced by a behemoth of a house that is built with blazing speed out of what looks like clapboard, and has an expected lifespan that is a fraction of what was once the standard for newly constructed homes in this area. But the family that ends up buying and moving into this new and “improved” house won’t know any of that. They will be told it is a state of the art home with the best amenities and “green” technology money can buy. There is nothing “green”, however, about demolishing a single-family house only to replace it with another single-family house that is twice and sometimes triple the size of its former self. The only thing “green” about such a process is in the massive sums of money that will change hands, and most of that will be going to only one or two individuals.

Not all new housing projects are objectionable. Some occupy once vacant lots or replace structures that are no longer habitable, and can longer be made so. Some are modest in scope and seek to improve the existing structure without ballooning its footprint and overall size to absurd proportions. But such projects are few and far between. Instead, what one sees in the area with increasing regularity are larger and larger houses that dwarf the 1,200 square foot house that was once a staple of [Springfield’s] housing stock. The houses now being built invariably cost upwards of half-a-million dollars thus making them prohibitively expensive for almost everyone except the rich. These are the same people who once fled the city to the suburbs only to realize that their distaste or fear of city life was no match for their frustration of having to crawl along the interstate at five miles an hour on a Friday afternoon. So they decided to import a piece of suburbia into the city.

And we are now forced to suffer the consequences. Many who have considered moving to [Springfield] are forced to look elsewhere, depriving [Springfield] of the diversity that is necessary for a vibrant community, not one that just cares about keeping “suspicious looking youths” off its streets. And for those who chose to stick around [Springfield] and brave the “white flight” that has, strangely enough, contributed to all this development craziness, all I can say is: my condolences. Your neighborhood is quickly becoming just another gated community.

Justice Roberts’s Humpty Dumpty Court

As the Supreme Court ends another Term the attention continues to be on the Justices themselves and their voting patterns.  This past Term featured a higher than average number of unanimous opinions.  But as Adam Liptak from the Times has noted, these opinions seemed to mask disagreements among the Justices.  Why then the unanimity?  One hypothesis is that the Justices are trying to shore up the institutional integrity of the Court having become more sensitive to or cognizant of the charge that the Court with its numerous sharply divided opinions along idealogical lines is a nakedly political institution.  But does this sort of unanimity (some might call it unanimity for the sake of unanimity), if that is what it appears to be, really enhance the legitimacy of the Court in the long term?

One can argue that it does not.  In its most benign form, the Court is simply “kicking the can down the road” in its refusal or inability to grapple with sensitive legal issues, even if doing so would lay bare the ideological fault lines within the institution.   Another more cynical  interpretation is that the “conservatives” on the Court, having made institutional integrity the central focus of the Court’s agenda, are challenging their more liberal colleagues to be the ones to blink first.  “Dissent if you dare” may now be a common refrain by Chief Justice Roberts, the supposed architect of the Court’s recent approach toward greater unanimity.  And the conservatives can afford to wait since they, more so than their liberal colleagues, are the ones who have prevailed in cases which have presented the most contentious issues of the day.  Why fix it if it ain’t broke? or so the saying goes.

The downside of all this is that Court deprives the country of the guidance it needs to govern its affairs.  Fostering unanimity means declining more cases or accepting more “easy” cases — ones that perhaps don’t carry the kind of political baggage that cases about gay marriage or contraception do — or delaying to another day a ruling on a broader but more contentious issue in a case that the Court has accepted  in favor of a more narrow but less contentious point.  There are sound reasons for these approaches, the details for which are beyond the scope of this post.  But institutional legitimacy is not one of them.

It is foolish to think that fractured decisions deprive the Court of credibility.  The cases that reach and are accepted by the Court are often ones that have already split the lower courts.  Add to this the fact that judges by nature have their own predispositions and prejudices, it should come of no surprise that cases often end up being decided by a bare majority.  And this is as it should be since fractured opinions also foster healthy debates among the justices themselves and in the public at large on the correctness of one view over another.

The Court’s legitimacy comes not from the actions of the Court itself but from the views and beliefs of the people whose rights and duties are the subject of  the Court’s decisions.  So long as the Court stays true to its duty of interpreting and when necessary making law that best reflects its view of what the Constitution requires, then its legitimacy as a governmental entity is sound.  This is so even if one or more members of the public disagree with how the Court interprets the Constitution.

What is more important from the standpoint of the Court’s legitimacy is the public’s understanding and acceptance of the decisions that are actually issued.  This  necessarily takes time and it requires the involvement (in the form of outreach, education and so forth) of individuals and groups who often  have no relation to the Court.  But none of this is possible if the Court makes an effort to decide fewer cases or skirts an issue in a case just because it is one whose resolution would divide the Justices.

As I Please (George Orwell Birthday Edition)

George Orwell was born on this date in 1903 in the city of Motihari which was located in what was then British India (now India).  Aside from having written 1984 and Animal Farm, he also produced a great deal of journalism, some of which he fashioned into novels, like Homage to Catalonia.  Orwell also liked the outdoors and for a period of time grew and raised his own food on the desolate island of Jura in the Inner Hebrides.  When he had a brush with death nearly drowning in a whirlpool along with his young son, Richard, one of his first remarks upon returning to the safety of land concerned the remarkable features of a bird he had just seen.  The Tribune is one of the publications to which Orwell contributed articles when he was still working as a journalist.  After Orwell died on January 21, 1950, at the age of 46, the editors of the Tribune published in place of an obituary about his death what they considered to be their favorite piece by Orwell from among the many he wrote for the paper.  The piece was part of a long running column by Orwell entitled As I Please; this one happened to be the 68th installment and was dated January 3, 1947.  Here it is in full:

Nearly a quarter century ago I was traveling on a liner to Burma.  Though not a big ship, it was a comfortable and even a luxurious one, and when one was not asleep or playing deck games one usually seemed to be eating.  The meals were of that stupendous kind that steamship companies used to vie with one another in producing, and in between times there were snacks such as apples, ices, biscuits and cups of soup, lest anyone should find himself fainting from hunger.  Moreover, the bars opened at ten in the morning, and, since we were at sea, alcohol was relatively cheap.

The ships of this line were mostly manned by Indians, but apart from the officers and the stewards they carried four European quartermasters whose job was to take the wheel.  One of these quartermasters, though I suppose he was only aged forty or so, was one of those old sailors on whose back you almost expect to see barnacles growing.  He was a short, powerful, rather ape-like man, with enormous forearms covered by a mat of golden hair.   A blond moustache which might have belonged to Charlemagne completely hid his mouth.  I was only twenty years old and very conscious of my parasitic status as a mere passenger, and I looked up to the quartermasters, especially the fair-haired one, as godlike beings on a par with the officers.  It would not have occurred to me to speak to one of them without being spoken to first.

One day, for some reason, I came up from lunch early.  The deck was empty except for the fair-haired quartermaster, who was scurrying like a rat along the side of the deck-houses, with something partially concealed between his monstrous hands.  I had just time to see what it was before he shot past me and vanished into a doorway.  It was a pie dish containing a half-eaten baked custard pudding.

At one glance I took in the situation — indeed, the man’s air of guilt made it unmistakable.  The pudding was a left-over from one of the passengers’ tables.  It had been illicitly given to him by a steward, and he was carrying it off to the seamen’s quarters to devour it at leisure.  Across more than twenty years I can still faintly feel the shock of astonishment that I felt at that moment.  It took me some time to see the incident in all its bearings: but do I seem to exaggerate when I say that this sudden revelation of the gap between function and reward – the revelation that a highly-skilled craftsman, who might literally hold all our lives in his hands, was glad to steal scraps of food from our table — taught me more than I could have learned from a half dozen Socialist pamphlets?

A news item to the effect that Yugoslavia is now engaged on a purge of writers and artists left me to look once again at the reports of the recent literary purge in the U.S.S.R., when Zoschenko, Akhmatova and others were expelled from the Writers’ Union.

In England this kind of thing is not happening to us as yet, so that we can view it with a certain detachment, and curiously enough, as I look again at the accounts of what happened, I feel somewhat more sorry for the persecutors than for their victims.  Chief among the persecutors is Andrei Zhdanov, considered by some to be Stalin’s probable successor.  Zhdanov, though he has conducted literary purges before, is a full-time politician with — to judge from his speeches — about as much knowledge of literature as I have of aerodynamics.  He does not give the impression of being, according to his own lights, a wicked or dishonest man.  He is truly shocked by the defection of certain Soviet writers, which appears to him as an incomprehensible piece of treachery, like a military mutiny in the middle of a battle.  The purpose of literature is to glorify the Soviet Union; surely that must be obvious to everyone?  But instead of carrying out their pliant duty, these misguided writers keep straying away from the paths of propaganda, producing non-political works, and even, in the case of Zoschenko, allowing a satirical note to creep into their writings.  It is all very painful and bewildering.  It is as though you set a man to work in an excellent, up-to-date, air-conditioned factory, gave him high wages, short hours, good canteens and playing-grounds, a comfortable flat, a nursery-school for his children, all-round social insurance and music while you work — only to find the ungrateful fellow throwing spanners into the machinery on his very first day.

What makes the whole thing somewhat pathetic is the general admission — an honest admission, seeing that Soviet publicists are not in the habit of decrying their own country — that Russian literature as a whole is not what it ought to be.  Since the U.S.S.R. represents the highest existing form of civilization, it is obvious that it ought to lead the world in literature as in everything else.  “Surely,” says Zhdanov, “our new Socialist system, embodying all that is best in the history of human civilization and culture, is capable of creating the most advanced literate, which will leave far behind the best creations of olden times.”. Izvestia (as quoted by the New York paper, Politics) goes further: “Our culture stands on an immeasurably higher level than bourgeois culture … Is it not clear that our culture has the right not to act as pupil and imitator but , on the contrary, to teach others the general human morals?”. And yet somehow the expected thing never happens.  Directives are issued, resolutions are passed unanimously, recalcitrant writers are silenced: and yet for some reason a vigorous and original literature, unmistakably superior to that of capitalist countries, fails to emerge.

All this has happened before, and more than once.  Freedom of expression has had its ups and downs in the U.S.S.R. , but the general tendency has been towards higher censorship.  The thing that politicians are seemingly unable to understand is that you cannot produce vigorous literature by terrorizing everyone into conformity.  A writer’s inventive faculties will not work unless he is allowed to say approximately what he feels.  You can destroy spontaneity and produce a literature which is orthodox but feeble, or you can let people say what they choose and take the risk that some of them will utter heresies.  There is no way out of that dilemma so long as books have to be written by individuals.

That is why, in a way, I feel sorrier for the persecutors than for the victims.  It is probable that Zoschenko and the others at least have the satisfaction of understanding what is happening to them: the politicians who harry them are merely attempting the impossible.  For Zhdanov and his kind to say, “the Soviet Union can exist without literature,” would be reasonable.  But that is just what they can’t say.  They don’t’ know what literature is, but they know that it is important, that is has prestige value, and that it is necessary for propaganda purposes, and they would like to encourage it, if they only knew how.  So they continue with their purges and directives, like a fish bashing its nose against the wall of an aquarium again and again, too dim-witted to realize that glass and water are not the same thing.

From The Thoughts of Emperor Marcus Aurelius:

In the morning when thou risest unwillingly, let this thought be present — I am rising to the work of a human being.  Why then am I dissatisfied if I am going to do the things for which I exist and for which I was brought into the world?  Or have I been made for this, to lie in the bed-clothes and keep myself warm?  — But this is more pleasant — Dost thou exist then to take they pleasure, and not at all for action or exertion?  Dost thou not see the little plants, the little birds, the ants, the spiders, the bees working together to put in order their several parts of the universe? And art thou unwilling to do the work of a human being, and dost thou not make haste to do that which is according to nature?

It is a good idea to print this well-known exhortation in large letters and hang it on the wall opposite your bed.  And if that fails, as I am told it sometimes does, another good plan is to buy the loudest alarm clock you can get and place it in such a position that you have to get out of bed and go around several pieces of furniture in order to silence it.