Rocky Ford a.k.a. Bad Copville

Rocky Ford is not a town with a good track record of quality control.

For the past few years, until a few months ago, the small town in Southeast Colorado was known for the disastrous listeria ridden cantaloupes called “Rocky Ford Sweets” from Jensen Farms that killed thirty-three people in 2011.

Now, it has another claim to infamy.  It turns out that the town made it its business to hire cops who had already been discovered to be bad apples.  Four out of ten officers on the force have prior serious criminal records or histories of discipline in previous law enforcement jobs.

In November of 2014, one of those bad cops with a history of using excessive force shot an unarmed man in the back, killing him, and then pepper sprayed the man and fled, while on duty.  Unlike most cases of this type, the bad cop who did it was fired and charged with second degree murder in a prosecution that is currently in progress.

This “second chance” hiring policy may have been modeled on the Vatican’s policy of relocating priests who sexually abused children to new posts where families of new potential victims didn’t know about the priests’ prior crimes.  The policy didn’t work out well for the Roman Catholic Church.  It turns out that their second chance priests (and often there were many “second” chances), had a strong tendency to reoffend and require the church to engage in more cover ups.

It also doesn’t turn out to be working that well for Rocky Ford.

There is absolutely room in the world for giving people second chances in life.  But, giving someone a second chance in life doesn’t mean that one should give that person who has proven himself to be ill suited for a task a second chance in a position of public trust ripe for a repeat of the mistakes that this person made the last time.  A second chance like that is just another name for corruption.

If you give a priest who abused children a second chance (and that second chance should come only after the priest and the church apologizes to the victims, tries to compensate the victims, reports the incident to authorities and punishes the priest), that second chance should be an a monastery or a prison ministry, not a parish serving young families or a youth camp.

If you give a cop who screwed up a second chance, it should be in a position that doesn’t involve giving him a gun, or putting him in a position of authority over others, like driving a truck, working on a farm, or framing new apartment buildings.

Of course, as the Denver Post’s excellent investigative journalism on this story (credit where credit is due in an increasingly understaffed newspaper) points out, the Colorado Board of Peace Officer Standards and Training, the licensing body for state and local law enforcement officers in the state, is also to blame.  At least 39 other states make it harder for bad cops to remain licensed as law enforcement officers and at least 18 other states require employers of bad cops to inform state authorities when police officers are fired or resign.  In contrast, “Colorado will not even share the employment history it does have with the chiefs wanting to know about an applicant’s background.”

If the state licensing authority for law enforcement tells law enforcement offices that an individual meets state standards to do the job, it is natural that offices with tight budgets, like Rocky Ford, are going to hire bottom of the barrel candidates in order to make it possible for them to pay bottom of the barrel salaries.

Yet, when the government puts someone on the street with expanded authority relative to an ordinary person to use deadly force, qualified immunity from civil liability, and deadly weapons, privacy should take a back seat to public safety.

Not all tragedies can be prevented.  Some are inevitable.  But, we need to do a better job at preventing the tragedies that are eminently predictable.

from Wash Park Prophet
via Denver News

The Odd Case Of The Vigilant Tourists

A Texas couple sold thousands of tons of alfalfa for more than $1.5 million to Colorado farmers, bought a big boat and sailed away to the Bahamas with their seven children. The seemingly idyllic family adventure didn’t end well, however, because Donald and Karlien Winberg didn’t actually grow alfalfa. They’re con artists. 

After federal fraud charges were filed in April 2014, the Winbergs went on the run for several months. FBI agents tracked them to a 40-foot sailboat near the Staniel Cay Yacht Club in the Bahamas in October. . . . A federal grand jury in Denver indicted the Winbergs on April 22, 2014. After going on the run, the family surfaced in the Houston area in October and bought a sailboat with $20,000 cash using fake names, the Houston Chronicle reported. They lived aboard the boat at a local marina until shortly before setting out Oct. 29. Galveston Bay authorities rescued the family from the sinking boat. 

Shortly afterwards, the Winbergs bought a larger boat and sailed to the Bahama islands, court records say. Tourists from Louisiana on vacation in the Bahamas recognized the fugitives and called the FBI.

Via The Denver Post.

I’ve litigated many cases against con artists big and small, and have had to turn as many down because it wasn’t possible to identify and locate the perpetrators who were operating under false names and claimed to be working out of non-existent office addresses.

It is rare for law enforcement to be willing to step in and take action.  But, the fairly large dollar amounts involved, the multiple victims, and the fact that the case had strong ties to Colorado, Texas and Idaho at the time that it was filed, and the fact that the perpetrators apparently didn’t use false names.

Far more remarkable, however, is the fact that even though “Galveston Bay authorities” who rescued the family of con artists from their sinking sailboat didn’t recognize them and turn them in, tourists from Louisiana on vacation in the Bahamas did!

Seriously, how many are so alert that, even when they are on a beach vacation in the Bahamas, they were aware of the existence of someone who conned some farmers out of money in states where they don’t even live, and then connected the dots to know it was them in the Bahamas?  Even determined private investigators are rarely able to find fugitives in cases like these.  But, perhaps because a family of fraudsters with seven kids on a sail boat in the Gulf of Mexico are so different from the run of the mill “most wanted” poster criminals, they may have been more memorable.

This case wasn’t national news (rightfully so, it isn’t that big), but presumably, the FBI or federal marshals must have figured out in October that they had just missed their quarry in Galveston and that they had fled via another sailboat, and then put out the word in marinas, in local news broadcasts across the Gulf Coast, and maybe even in Caribbean news outlets, shortly afterwards.  People who frequent marinas may be more attentive to wanted criminals who could crop up in the boat next to them than to run of the mill thugs reported on the nightly news, for example.

Still, even then, the tourists rate as incredibly vigilant.  There seems to be an endless barrage of missing persons and most wanted criminals in post offices, grocery stores and news stories (most for serious violent crimes), that it is very hard to keep track of.  And, it is also rare for someone to have the certainty that these people are the suspects, the sense of civic duty to take action on that knowledge while on vacation, and the familiarity with the criminal justice system to know how to report this knowledge to someone capable of securing international cooperation to have them arrested in a foreign country.  Many a small town cop in the jurisdictions where the farmers who were victimized by these crimes lived would not have known how to manage such a bureaucratic feat.

Indeed, the mores I think this through, the more likely I think it is that these tourists may have been vacationing law enforcement officials of some type who were alerted to these fugitives through official channels and been able to take action on that information because of their professional expertise.

I guess I’ll never know how this extraordinary tip was really made possible, but it would be fascinating to know.  Still, whatever the circumstances, it does illustrate a recurring theme.  Sharing information about suspected wrongdoers with the public routinely results in them being apprehended or thwarted, while keeping this information secret makes it much easier for suspects to remain at large.  Secrecy rarely makes us more secure, and this is just as true in cases where the suspects are suspected terrorists or national security threats as it is when they are mere common con artists as in this case.

Once arrested, the couple eventually pleaded guilty to federal wire fraud and conspiracy charges. Yesterday, about ten months after they were arrested, they were sentenced in federal court in Denver, although the report that I link to doesn’t say what sentences were imposed.  Given the amount stolen, both parents will likely face many years in prison, leaving their seven kids in the lurch, either to be placed with extended family, or in foster care, something that they presumably did nothing to deserve.  But, it is hard to see any way to avoid that outcome while appropriately punishing the parents.

The short news report also doesn’t make clear how much of the stolen funds were recovered or repaid in a restitution award from other sources, or whether the victims of the fraud were able to recoup any of their theft losses from insurance.  While homeowner’s and business insurance policies routinely cover stolen tangible personal property, it is much less common to be able to recover money paid as a result of someone else’s fraudulent conduct with an insurance claim.

One of the unfortunate realities you face as an attorney trying to secure justice for a client who has been defrauded is that your client is usually better off with the fraudster out of prison where he or she can earn funds to make settlement payments, even though this exposes the public to the risk that the perpetrators will merely find new marks (and perhaps even use the funds secured from those victims to pay your client).  Likewise, as a private attorney helping one fraud victim, it is often in your interest to act in a way that doesn’t tip off other victims (and fraudsters almost always have more than one victim) that you have located the fraudster and brought him or her to justice, because then the limited funds available to compensate your client (which are almost never sufficient to secure a full recovery) will have to be shared with other victims.

Similar moral conflicts arise when your client is the victim of some systemic business conduct or administrative behavior of a government agency.  Attorneys defending the business or government will often offer your client a settlement in exchange for confidentiality and an end to your lawsuit or threatened lawsuit, even though, had you prevailed on the merits (as you are likely to have done in cases that the other side is willing to settle), your win would have given other victims a binding precedent that they could have used to win easy victories of their own, and would have made the perpetrator much more likely to discontinue what is typically an ongoing pattern of improper conduct.  Unless your client is independently wealthy and has an extreme sense of moral duty, your client will usually direct you to take an offer that provides compensation to them, even if that means allowing the repeat perpetrator to escape justice for harms to other past and future victims.

One of the important reasons that businesses so vehemently oppose class action lawsuits is that it denies them the ability to grease the squeaky wheels, while unjustly screwing over everyone else that they have wronged without facing any consequences for their actions.

As an attorney representing a private client who has been victimized by fraud, your duty to put your client first, even if other victims will be left worse off, is clear.  But, this is certainly one of the otherwise more morally ambiguous imperatives imposed upon attorneys as a matter of professional ethics.

In private litigation, restitution almost always trumps retribution or justice viewed at the level of the entire course of conduct by the wrongdoer.  But, while this is almost always the right micro-level decision for the victims who you represent, it is not at all clear this the incentives our legal system creates to take this approach make sense as a matter of public policy.

from Wash Park Prophet
via Denver News

Arbitration And State Constitutional Rights To A Jury Trial And To Civil Remedies

Somehow, I missed the notably case of Atalese v. U.S. Legal Services Group, LP, decided by the New Jersey Supreme Court on September 23, 2014 (certiorari was denied by the U.S. Supreme Court). In that case, a consumer contract contained an arbitration provision, but failed to clearly state in language that “a reasonable consumer” would understand that the consumer “was having her statutory right to seek relief in a court of law,” so it held that the provision was unenforceable.

While the ruling made little difference in the long term “war” to limit the pernicious effects of arbitration clauses in consumer contracts, because the objection raised by the New Jersey Constitution is simple enough to draft around, it did have the effect of invalidating many, probably thousands, of existing contractual arbitration clauses in New Jersey which lacked the requisite language – freeing consumers under these existing contracts which are often hard to renegotiate from its constraints in the event of a dispute.  And, it did create a trap for the unwary that could invalidate future arbitration contracts, particularly those written into national agreements by non-New Jersey counsel who are unaware of the new New Jersey rule.

The ruling was also colored by the existence of Article I, Paragraph 9 of the New Jersey Constitution, which guarantees that “[t]he right of trial by jury shall remain inviolate.”

A Long Digression On The Right To A Jury Trial With An Emphasis On Colorado

The 7th Amendment to the United States Constitution guarantees the right to a trial by jury in civil cases in federal court where the right to a jury trial existed at common law at the time that the Bill of Right was adopted (i.e. 1791) and in the case of causes of action that didn’t exist then, if a right to a jury trial existed in analogous cases at the time. See, e.g., Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990).  But, the 7th Amendment is one of a handful of provisions of the Bill of Rights which does not apply to state and local governments for rather intricate reasons of constitutional law collectively known as the incorporation doctrine, see, e.g., Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916), except that the scope of the right to a civil trial by jury (although not necessarily its existence) is controlled by the 7th Amendment in cases that are brought in state court under federal law, Dice v. Akron Canton & Youngstown R.R., 342 U.S. 359 (1952).

But, in practice, almost every U.S. state generally makes civil jury trials available to litigants in substantially the same circumstances in which they are available in federal court, except for Louisiana whose courts follow the French tradition established before the Louisiana Purchase of this territory from France in civil procedure and private law.  Many states do have isolated statutory carve outs from the general rule which most commonly include exceptions for small claims courts and courts of claims against state governments.  But, the general federal rule in the norm, despite its quirky, arbitrary, and sometimes hard to apply provisions.

No country in the world other than Canada makes such wide use of civil juries.  Countries outside the Anglo-American legal tradition never had them, and the United Kingdom and most other countries in the British Commonwealth have abolished them outside some very isolated circumstances (the few exceptions often include eminent domain condemnation cases and defamation cases).

In my home of Colorado, however, unlike New Jersey, the right to a civil jury isn’t found in the state constitution. See, e.g. Continental Title Company v. District Court, 645 P.2d 1310 (Colo. 1982).  The right to a civil jury trial in Colorado used to be statutory, but that changed when the authority to make state court rule was (wisely) transferred to the Colorado Supreme Court.  See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964).

So, subject to a handful of isolated exceptions (e.g. in eminent domain cases), the right to a jury trial isn’t a statutorily created right in Colorado either. Indeed, there are some classes of cases where jury trials are expressly prohibited by statute.

For example, in all cases arising under Colorado’s dissolution of marriage act, “All issues raised by these proceedings shall be resolved by the court sitting without a jury.” Section 14-10-107(6), Colorado Revised Statutes.  See also, e.g., In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003) (“All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury.”).  Most issues is divorce cases wouldn’t include a right to a jury anyway (even though judicial divorce didn’t exist in Anglo-American jurisprudence in 1791), but some issues commonly decided in divorce cases.  But, some issues decided in divorces (e.g. a request that a soon to be ex-spouse turn over a painting that is allegedly the separate property of the spouse requesting itwhere ownership of the item is disputed), look a great deal like issues where there would ordinarily be a right to a jury trial outside of the divorce context.

Instead of arising via the state or federal constitution or a statute, in Colorado, the right to a civil jury trial in Colorado is almost exclusively a creature of Colorado Rules of Civil Procedure 38(a) (in District Court and Denver Probate Court) and 338(a) (in County Court). These rules are enacted by the Colorado Supreme Court and may be amended by it administratively without legislative or executive branch involvement.

By the terms of these rules, the right to a jury trial in Colorado exists in “actions for the recovery of specific real or personal property, with or without damages, or for money judgment claimed as due on contract, or as damages for breach of contract, or for injuries to person or property[.]”  C.R.C.P. 38(a) and C.R.C.P. 338(a).

In practice, however, the scope of the jury trial right in Colorado has been interpreted in Colorado to be essentially identical in broad outline to the 7th Amendments many esoteric provisions.  As under the 7th Amendment, the right to a civil jury trial in Colorado hinges on whether or not the claim asserted would have historically been brought in “courts of equity” or in “courts of law”, even though Colorado had merged the two parallel English legal systems more than a century ago, as have the federal courts and all but a handful of state court systems (one notable exception is the State of Delaware).  See, e.g., Kaitz v. District Court, 650 P.2d 553 (Colo. 1982).

Similarly, as under the 7th Amendment, the right to a jury trial is determined on the face of the Complaint filed by the plaintiff (or third party plaintiff in the case of a third party complaint, or a cross claim filed by one defendant against another), without regard to any defenses or counterclaims brought by a defendant (or third party defendant or cross claim defendant). See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964) (complaints and cross claims) and Simpson v. Digiallonardo, 29 Colo. App. 556,. 488 P.2d 208 (1971) (third party complaints).

For example,  there is no right to a trial by jury in Colorado in a case to have a trust declared invalid. Ayres v. King, 665 P.2d 594 (Colo. 1983).  But, there is a right to a trial by jury in Colorado in a claim for personal injury arising out an automobile accident.  Suppose that Margaret wants to sue her uncle Fredrick to have a trust that he established that denies her a right to benefit if she marries a man who is not white (such as her current fiance) declared invalid, while Fredrick wants to sue Margaret for injuries he suffered when she carelessly backed into him while leaving his office a few months ago after discussing the trust issue.  Suppose further that Colorado’s mandatory counterclaims statute (sometimes called the “entire controversy doctrine” when implemented via case law rather than by court rule) requires that if one of them sues the other, that any possible lawsuit that the person sued could bring against the person suing them is waived if not raised as a counterclaim.  Cf. Colorado Rule of Civil Procedure 13(a) (which might or might not actually apply to this fact pattern).  (Note, however, that, in part to preserve jury trial rights, the general rule that certain kinds of counterclaims are forever forfeited if they are not filed in a pending current lawsuit between two parties, does not apply to divorce actions in Colorado. Simmons v. Simmons, 773 P.2d 602, 605 (Colo. App. 1988)).

In this scenario, it Margaret files her lawsuit before Fredrick files his lawsuit, then Fredrick is not entitled to a jury trial on his counterclaim against Margaret for personal injuries arising from the car accident.  But, if Fredrick is the first to court and Margaret files her trust claims as a counterclaim, then Fredrick would be entitled to a trial by jury.

There is an exception to this general rule in the case of a fairly trivial loophole utilizing this rule under federal 7th Amendment law that threatened to swallow the rule, and has probably been adopted by many states facing the same issue.  While declaratory judgment actions were traditionally decided by courts of equity, and hence were not tried by juries, you cannot simply rush to court seeking declaratory judgment that you did not commit the federal tort for which there is a right to a trial by jury that someone else has threatened to sue you for, in order to turn their lawsuit into a counterclaim in an equitable action where a jury trial is not available.  Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (1959).  The court reached its decision by relying on the doctrine that equitable remedies like declaratory judgments are not available as a remedy in cases that can be adequately and fully resolved in a court of law in a lawsuit over the underlying tort claim.

This is on the most odd and arbitrary rules of civil procedure that aptly illustrates the curious and problematic results of taking a quite strictly originalist approach to constitutional interpretation.  A well titled law review article on the subject, summed up the situation: Martin H. Redish, “Seventh Amendment Right To Jury Trial: A Study In The Irrationality Of Rational Decision Making“, 70 Northwestern U. Law Rev. 486 (1976-1977).

But, despite the fact that states are under no legal obligation to follow the federal example in this situation, Colorado and almost every other state except Louisiana does just that.  It is a stunning example of how often state legislatures do not act as the “laboratories of democracy” that they are often described as in superficial civics class descriptions of federalism, and instead slavishly act based upon inertia and imitation of federal or uniform law models, even when they are under no obligation to do so and the status quo is one that no one would design if they were starting from scratch.

Back To State Constitutional Rights To Jury Trials

As the recent Atalese case in New Jersey illustrates, state constitution protections of the right to a trial by jury, which are common (adopted in imitation of the federal bill of rights) but not ubiquitous, frequently end up doing much more than supplying a rule of civil procedure for cases pending in state courts.  Indeed, few kinds of state constitutional rights have a history of a more varied and creative mix of applications.

For example, quite a few state constitutional provisions were utilized by state appellate courts to invalidate state tort reform legislation imposing caps on money damage awards on the theory that a constitutional right to a jury trial makes it the prerogative of the jury to determine the amount of money damages that may be awards in cases in which there is a right to a jury trial, which state legislatures may not invade. See, e.g., Lucas v. United States, 757 S.W.2d 687 (Tex. 1988); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989), modified, 780 P.2d 260 (Wash. App. 1989).  Other state courts with a state constitutional right to a jury trial, however, have concluded that their right to a civil trial by jury is procedural and does not extend to the substantive scope of the remedy. Jordan v. Long Beach Community Hosp., 248 Cal. Rptr. 651 (Cal. App. 1988) (review denied and ordered not to be officially published (Sept. 15, 1988)); Yates v. Pollock, 239 Cal. Rptr. 383 (Cal. App. 1987).

A handful of other states have gone even further, holding that a state constitutional right to a jury trial protects not just the procedural right of parties in certain kinds of cases to have their cases decided in a particular kind of way, but also the substantive right to a civil remedy in the form of a legally recognized cause of action for the kinds of injuries where there was historically a right to enforce though a lawsuit in which a civil jury had the power to authorize relief.

But, as often as not, these case actually hinge on one of the thirty-four or so state constitutional provisions which, in imitation of Section 29 of the Magna Carta, guarantee not just a procedural right to a jury trial, but a substantive right to seek redress through the civil courts for any injury of the type described. A typical example of such a provision states that:

Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property or character[.] 

Vermont Constitution, Chapter I, Article 4. See generally The Right of Access to Civil Courts under State Constitutional Law: “An Impediment to Modern Reforms, or a Receptacle of Important Substantive and Procedural Rights.”, 13 Rutgers L.J. 399 (1982) (a “Note” authored by a law student on the staff of the law review without public acknowledgement of authorship).

These two kinds of provisions, combined, have been considered to be potential barriers to tort reforms and civil procedure reforms, such as no fault liability regimes, for example, in worker’s compensation systems, for car accidents or for medical malpractice cases.

These state constitutional provisions are generally of little use in the context of arbitration, because the Federal Arbitration Act, 9 U.S.C. Sec. 1, et seq., because Section 2 of the Act pre-empts state law, including state constitutions, in circumstances, are prohibits states from invalidating arbitration clauses in circumstances where the FAA applies (which it does to any transaction involving interstate or international commerce, which is that term that has expansive scope, and to any maritime transaction).

But, Section 2 of the FAA does have an exception in cases where the arbitration clause would be invalid under generally applicable principles of state contract law such as those invoked by the New Jersey Supreme Court in Atalese.  There, while the state constitution colored how those state law contract principles were applied to a contract containing an arbitration clause, the contract law principles applied were sufficiently neutral and universally applicable to all contracts, that the decision to invalidate the arbitration clause escaped FAA preemption.

from Wash Park Prophet
via Denver News

Reality Bites

* The public defender’s system in one Georgia judicial circuit was so profoundly broken that one man sat in jail for 110 days for a crime for which he had already been convicted and served his sentence.  The officials in charge of making the system work and operating the local judicial system, including the judges, willfully defy the constitution in myriad way and have worked very hard to prevent it from having any effect in their four countries.  Alas, this situation is Georgia isn’t that unusual elsewhere in the country.  Turning court rulings into adequate funding for public defenders isn’t something that happens automatically or naturally, although funding for incarceration seems to have no such problem.  Kudos to the Southern Poverty Law Center for its tireless and never ending work to secure justice in a part of the country that isn’t interested in it.

* Kevin Drum artfully makes the case that the Donald Trump’s supporters are most motivated because they are angry white men (and more than a few women cut from the same cloth) sick of political correctness.

[F]or most people their real issue with it is that it forbids them from delivering casual slurs—that everyone knows are true—about blacks or women or Muslims or gays or whatever. They’ve been doing it all their lives, and they think it’s ridiculous that they have to watch themselves in public lest someone think they’re racists. Trump appeals to that sentiment. . . . At a gut level . . . they think “normal” American culture is under attack. . . . no one is even allowed to tell the truth about what this really means. Mexicans come pouring across the border but you get in trouble for just plainly saying what everyone knows: most of them are criminals and should be sent back. Muslims blow up the World Trade Center, but woe betide anyone who makes the common sense observation that we should keep a close eye on mosques because most of them are terrorist breeding grounds. Blacks commit violent crimes at higher levels than whites, but we all have to pretend this is only because whites have been keeping them down for so long. And if you make a harmless joke about some woman having a great body? It’s a compliment! But the feminazis will be all over you like bees in a hive.

They want carte blanche to act in ways that they think makes common sense, even if that common sense is mostly dead wrong. About a quarter of likely Republican voters support Trump, and Kevin Drum has accurately captured one of the predominant reasons why this is so.  Plenty of Republicans who ultimately support other candidates feel the same way.  The fact that you are reasonably affluent doesn’t mean that you are well informed.

Is it possible to change the hearts and minds of these people?  I’d like to think so, but I’m not sure what means would be most effective or how such a campaign could be financed.  Until we do, however, we are going to be stuck with powerful regressive cultural forces playing a powerful role in our political system.

* In the last couple of days Colorado has had floods that sent cars floating down the streets in Colorado Springs, snow at Eisenhower Tunnel, a tornado in metropolitan Denver, and three million gallons of toxic mine waste loaded with heavy metals flowing down the Animas River into Durango and beyond.  We even had a wildfire triggered by recreational target shooting.  So far, however, we haven’t had any major earthquakes or volcanoes, so that’s something.

from Wash Park Prophet
via Denver News

Remembering Arne Blomquist

His daughter, Kathy Blomquist, announced that my uncle, Arne Blomquist, died yesterday, an old man, although death always comes too soon.

My mother who died of breast cancer shortly after retiring, and my Aunt Kay, who died in middle age of M.S. that manifested itself while she was in college, have predeceased him, as did his sister’s husband, my uncle Dale, who died from a condition known as “Pick’s Disease.” He is survived by his wife, Mary, his sister Rose, his brother Roger and his brother’s wife Trish, his brother-in-law, my father, and his two daughters, Kathy and Chris, as well as nieces, nephews, other relatives on his wife’s side whom I don’t know, and a lifetime of friends, mostly in the Upper Peninsula of Michigan, in the Twin Cities of Minnesota, and in Tanzania.

It would be wrong to say he was my “favorite uncle”, for I have loved all of my uncles in their own ways. But, of my four uncles and five aunts, he was the one most similar to me who I understood best. Like my late mother, who was his sister, he was vigorously engaged in the world of ideas and cared greatly about the larger world beyond his own personal experience.

To a greater extent than any of his siblings (not unlike my father who grew up in similar circumstances in rural Ohio but then moved on to academia), he fully acclimated into cosmopolitan big city life in the larger world beyond his rural home as if he had been born to it. But, he was never a stranger to the place he grew up and always retained strong ties there.

He was an independent critical thinker who had a tendency to dominate discussions through intelligence, knowledge and force of will. It rankled him just a little sometimes, that my father was older than him, after he had spent his life being the eldest in a large family and the leaders of the Blomquist children, a position in which my lower key father never really challenged him in truth. He didn’t worry about offending people he thought were in the wrong, which isn’t to say that he lacked social skills. Far from it. He could and did lead people to get things done.

He was the oldest of the two boys and three girls who lived to adulthood in the family, all children of a lumber jack without a college education whose home grown potatoes and vegetables, as well as his fishing and hunting, made the difference between having enough food and not for the family. His father had had an arranged marriage, but Arne and all of the other children married chose their own mates for love. They grew up in a small house his father helped build himself from a mail order catalog design, with an outhouse, clothes that were dried on a clothesline in the back yard, a washing machine was a hand cranked wringer, and a party line rotary phone.  The house’s roof was (and still is) aligned with the North Star.

They were grandchildren of poor Swede-Finn immigrants who picked up only bits and pieces of the Swedish language used at home and at church (mostly expletives, aphorisms, and religious phrases, along with a few names of simple household things). But, he and the other children were, at least in adulthood, were in contact with many our Finnish relatives (the Finn’s a great genealogists, our family has roughly 100,000 relatives documented in privately prepared Finnish genealogies, a substantial share of the entire nation’s population and an even larger share of the particular region from which our ancestors emigrated; one is even a Finnish Knight in honor of his life saving work overhauling Finland’s water and sewer systems).

Despite tough economic circumstances, Felch in Dickenson County, where they lived, an hour from the nearest decent grocery store in Iron Mountain, has an idyllic character not unlike Garrison Keillor’s Prairie Home Companion radio show that I always related to as a child. Life seemed to revolve around coffee cake and weak brewed coffee after services at the local Swedish Lutheran church, the omnipresent forests of firs and birches that surrounded their homes and the lonely rural roads, and hunting stories. So far as I can tell, none of the family has ever perceived themselves as disadvantaged, even though they undoubtedly wanted for a great deal in their youth.

Still, four of the children, including Arne, graduated from college. Rose married young, stayed close to home and had four children in the world she grew up in where she still lives today, where her family has provided Felch and Dickenson County with pillars of the local community.

Arne made a comfortable living for himself and his family in an engineering business and then lost a great deal in a turn of business misfortune. He and his wife Mary paused to reflect and decide what he wanted to do with his life.  Then, they did it, reviving the business and leading a group of committed Minnesotan Lutherans to establish Tanzania’s first private university, which is affiliated with the Evangelical Lutheran Church in America (the mainline Lutheran denomination). They found books and professors, guided the students to literally make the bricks with which they then built its buildings, and as much as anything, provided know how and leadership free of the corruption that infects most African bureaucracies. Christian churches are powerful across sub-Saharan Africa, we learned, because they mobilize communities to take positive action and improve their parishioner’s lives.  During his time in Tanzania, he was a U.S. counsel, a position for which the main qualifications in this part of the world are a secure home to keep critical records about Americans and a stable familiarity with the community.  They built a grand cabin and Christmas tree farm in the UP to retire to in their old age, in substantial part with their own labor, the labor of their children and their children’s partners, and other family. Then, they persevered when much of it was destroyed in a fire, so that it is now usable again.

His two daughters have displayed similar initiative. He tried to teach them to hunt, although neither was very excited about it. Time sent working for Habitat for Humanity gave them valuable skills. Kathy became an engineer, restored multiple houses with her life partner Mike, and until just recently  when her job was relocated, worked for a Japanese company selling technical equipment. Chris married her high school sweetheart, college best friend and co-adventurer in life, also restoring homes along the way. Chris and her husband now make a living running a non-profit they established in college. Arne wouldn’t necessary have made or recommended some of the choices that his daughters made in life, but in the end, he respected their independence, their initiative and their prerogative to make their own decisions, so long as they carried them out purposefully and competently (which they did).

Arne suffered no fools, and understood what it took to make things happen and how the world worked in ways that most people only think they understand. He had a sharp wit until his psychologically agonizing final days when diseases of old age preyed upon this as well as his body over many years.  This was agony for those of us who loved him, especially Mary who always faithfully supported him and advocated for the best possible care for him sustaining him much longer, and much better in the quality of his life, than he would have managed otherwise.  We looked on helpless to prevent the inevitable, which finally arrived in fully, yesterday.  The slow progression of the ailments was painful for all, but it has also left us mostly as peace with the inevitable now that it has arrived.

We value the lessons that he taught us over the years, as much by example as through formal instruction. He taught us that you can make your own fate and are not a prisoner of your circumstances. He taught us that ideas and the greater world matter and that you should play a part in shaping that world. He taught us that physical assets and money are inconsequential in importance relative to your own human capital. He taught us that much can be accomplished with hard work, resourcefulness, know how and clarity of purpose. He taught us that having purpose in life and engaging with the world makes your life meaningful and worth living. He taught us how to raise children to be independent, self-directed and effective, yet caring, themselves.

We will all miss him sorely.

This remembrance is prepared solely from my own recollection and memories of my own family’s history, and if there are inaccuracies, I apologize. They are all mine.

from Wash Park Prophet
via Denver News

Yesterday’s Post-Debate GOP Presidential Race Poll

Post-Debate Poll (NBC) 

Trump 23% 

Cruz 13% 

Carson 11% 

Fiorina 8% 

Rubio 8% 

Bush 7% 

Walker 7%

Via a Facebook post.

Great news for Democrats, if true.

from Wash Park Prophet
via Denver News

Quote of the Day

The Republican Presidential candidate debate held by Fox News in Ohio yesterday was mostly a game of hand grenade volleyball, as the “moderators” made every effort to bait the candidates to attack each other and offer intemperate answers.  But, there was one small moment of decency in the affair, which is the source of today’s quote of the day.

At about 8:10 p.m., New Jersey Governor Chris Christie was asked if former Arkansas Governor Mike Huckabee is lying when he say that Social Security and Medicare can be saved without significant overhauls.  Christie replies:

He’s not lying.  He’s just wrong.

Like Colorado Pols from whom I obtained the report of the debate, I think it is a great line.*

One of the real foundations of civility in the practice of law, which applies equally well to politics and business, is to recognize that there is a difference between saying something that you do not believe to be true, and lying.

When you accuse someone of lying you are making an ad hominem attack directed at their character that poisons the well of any future communication or cooperation.  Sometimes, someone is so bad that it is appropriate to poison that well because you don’t want to communicate or deal with someone like that.

But, usually, giving someone, particular a potential powerful ally in future dealings, the benefit of the doubt is the better course of action.  People like politicians, diplomats, businessmen and lawyers (professional negotiators all) frequently have repeat dealings with each other related to a wide variety of issues, both in the matter they are currently working together upon and in future completely unrelated matters.

So, crossing the line from giving the other side the benefit of the doubt and continuing to try to deal with someone in a civil matter to determining that the other person is an untrustworthy individual who should be shunned or dealt with through demands imposed by force or threat of force (physical or legal), is a grave one that should be taken only when absolutely necessary.

Also, assuming that someone is not lying is wise because in the worlds of politics, diplomacy, business and law, often someone who says something that seems obviously false to you, really isn’t lying. When you are lying, you know that the statement you are making is false and you make it with the intent that someone else will be deceived by your statement.  In contrast, if you actually believe that what you are saying is not false, you are simply mistaken.

In real life, and in particular, in matters of government policies, it is not at all uncommon for people to have inaccurate but sincere beliefs that are deeply colored by cognitive biases, attitudes about which purported experts you trust.  Few people know enough about these policy issues, and nobody knows enough about all of these policy issues, to form their own independent opinions based upon the raw facts.  Everybody, even the people who look at the raw facts, receives expert opinions about which policy is right and often, more than one expert who superficially seem to both be qualified, provide contradictory advice for a whole host of reasons that go into the complicated process of analyzing complex questions like “Can Social Security and Medicare be saved without significant overhauls?”

Questions like these almost always themselves contain inherent ambiguities (what changes to the program count as “significant overhauls”) and potentially false assumptions (Social Security and Medicare are broken in a way that will cause some serious but unstated consequence, unless they are “saved”).  One of the key elements of analyzing policy is making sure that you are asking the right question and that the question is a valid one, and not just that you are giving the right answer to the question asked.

This is why, in defamation law and the law of fraud, the law recognizes that opinions are never inherently false, which recognizes, basically, the inherent complexity of how opinions (which most statements about policy matters amount to) are formed.

There are some narrow exceptions to this rule that are pertinent to accusations of lying in debates as well.   An opinion that you claim to hold, when you don’t actually hold that opinion is false.  For example, if I said that I believed that my neighbor’s German shepherd was cute and adorable, I would be lying.  It might be a “white lie” that is justified under the circumstances and couldn’t easily be disproven, but it would still be a lie.  (I personally believe that dogs are for soup.)

Also, some statements in the form of opinions so strongly imply a factual basis, for instance, because they would be almost impossible to sincerely hold if a person had knowledge of certain facts, that the statement of opinion implies a statement about those facts which can be false.  If I say that it is my opinion that a company is financially sound, that statement might mean a multitude of things, but it is probably inconsistent to the extent that it would be a lie, with me having personal knowledge that the company had billions of dollars more of debt than assets, was far behind in paying all of its bills many of which had been referred to collections, and had just lost the contract that was to have provided two-thirds of its revenues for the next six months.

Finally, there are statements that are not meant to be taken literally which a reasonable listener should understand were not offered in that sense from context.  If an ordinary health person in the United States says in casual conversation that, “It would kill me to learn my son wasn’t going to graduate on time.”, the speaker is using a figure of speech, and not lying, even if he is actually certain that he would go on living if he learned that fact.

In sum, there are few more important lessons to learn than that someone can be wrong and say something that you believe to be untrue, without lying.  And, acknowledging that this is true can transform the way that you deal with other people for the better.

The fact that the sentiment and the speaker’s attitudes about civility in political tactics, that I’ve just discussed in this fairly long blog post, can be summed up in a six word sentence delivered on the fly (albeit probably with long hours of preparation and coaching before hand), is what makes today’s quote of the day so great.

It also enhanced my respect for Chris Christie whose candidacy was tarnished almost on day one from aspersions on his character arising from “Bridgegate”.

* I couldn’t have watched it live if I wanted to, because I don’t have a television that receives cable television or broadcast television and don’t subscribe to a screening service that provides it.

from Wash Park Prophet
via Denver News

My 2016 Presidential Election Predictions (National)

The first Presidential debate of the 2016 election is tonight, so it is time to make my predictions:

* There is at least a 95% chance that the next President of the United States will be (from left to right politically), with relative percentage chance of winning approximately as shown:

Bernie Sanders (D) (20%)
Hillary Clinton (D) (40%)
Mike Huckabee (R) (2%)
Jeb Bush (R) (22%)
Donald Trump (R or I) – Trump could run as an independent if his partisan run fails (6%)
Scott Walker (R) (9%)

A crash in support for one of these candidates in favor of their same party competitors by the end of February, is more likely than a surge in support for someone not on the list at this point that brings that candidate into the viable candidacy odds of prevailing.

* In the Democratic primary, Clinton has about a 65% chance of winning the nomination and Sanders has about a 34% chance.  The odds of anyone else winning the Democratic primary is about 1%.  The most likely scenario in which that would happen would be the premature death of Hillary Clinton very early in primary season or before the first primary.

* In the Republican primary, Jeb Bush is most likely to win (55%), followed by Scott Walker (23%), followed by Donald Trump (14%), followed by Mike Huckabee (5%) (with percentage chance of winning shown).  The combined odds of any of the other 12 GOP Presidential candidates winning the Republican primary is about 2% (Rubio is the front runner of the also rans, but not decisively enough to give him a 1% chance of winning the nomination).  The odds of someone not currently in the GOP race winning the Republican race is about 1%.

* The Democratic primary will probably be resolved by late March or sometime in April in 2016.

* The Republican primary will still have at least three serious candidates left at the end of May 2016, and won’t be resolved to a near certain outcome until June or July, 2016.

* There is a roughly 1% chance that whoever becomes the major party nominee and wins the election, that a Vice Presidential candidate not on this list will end up being President.

* All other possibilities combined for the next President of the United States have a less than 0.5% probability.  This includes third party candidates other than Donald Trump (if he drops out of the GOP primary but runs anyway), and succession to someone other than the person nominated as President or as Vice-President, due to two post-nomination, pre-inauguration deaths, and the possibility of a coup or significantly postponed election.

* There is roughly a 37% chance of a Clinton v. Bush race in 2016, which is the most likely possibility.  There is a roughly 18% chance of a Sanders v. Bush race in 2016.  There is roughly a 17% chance of a Clinton v. Walker race in 2016.  There is roughly an 8% chance of a Sanders v. Walker race in 2016.  There is a roughly 8 out of 9 chance that there will be one of these four possible general election line ups in the 2016 Presidential election.

* In a Clinton v. Bush race, the odds of Clinton winning are about 60%.
* In a Sanders v. Bush race, the odds of Sanders winning are about 55%.
* In a Clinton v. Walker race, the odds of Clinton winning are about 65%.
* In a Sanders v. Walker race, the odds of Sanders winning are about 60%.
* In a Clinton v. Trump race, the odds of Clinton winning are about 50%.
* In a Sanders v. Trump race, the odds of Sanders winning are about 55%.
* In a Clinton v. Huckabee race, the odds of Clinton winning are about 60%.
* In a Sanders v. Huckabee race, the odds of Sanders winning are about 60%.
* In a three way race involving Clinton (D) v. Walker (R) or Bush (R) v. Trump (I), the odds of Clinton winning are about 75%
* In a three way race involving Sanders (D) v. Walker (R) or Bush (R) v. Trump (I), the odds of Sanders winning are about 70%.
* The overall odds of a Democrat winning the Presidential election are about 60%.

* If Bernie Sanders wins the election, the odds that the Democrats will also control the U.S. House and U.S. Senate is about 65%.  If Clinton wins the election, the odds that the Democrats will also control the U.S. House and U.S. Senate is about 55%.
* If a Republican wins the election, the odds that Republicans will also control the U.S. House and U.S. Senate is about 65% for a candidate other than Scott Walker and about 70% for Scott Walker.

* The odds of a Democrat winning the Presidency and controlling majorities in both houses of Congress is about 35%.

* The odds of a Republican winning the Presidency and controlling majorities in both houses of Congress is about 26%.

* The odds of a Democrat winning the Presidency but not controlling majorities in both houses of Congress is about 24%.

* The odds of a Republican winning the Presidency but not controlling majorities in both houses of Congress is about 15%.

* Thus, there is a roughly 50% chance that we will get at least another two years of divided government.

* There is roughly at 8% chance of a race too close to call on election night.  This is more likely if Sanders is the Democratic nominee and is more likely if Scott Walker is not the GOP nominee.  If it is a close race, there is probably at least a 25% chance that Colorado will be one of the make or break states that is still in play on election night.

* I am not making state by state general election predictions at this point, although the general election favorites in each state are pretty obvious for at least 35 or so states.

* State by state primary/caucus results are too close to call, but will be dominated by the front runners listed above.

* The least predictable outcome is the name of the Vice Presidential nominee, which I will not attempt to predict.  This will most likely be a Presidential candidate of the same party who does not win the nomination, but the odds of someone chosen from that group are only about 55%.  The odds that a Vice Presidential candidate will be announced before the national convention is about 55% in each of the respective major parties.

All percentages in this post are rounded to the nearest percentage point so as not to convey an impression of spurious accuracy, at the cost that some totals may not add up to 100% due to rounding errors.

OFF TOPIC:  Windows 10 has updated once already in a decent sized update, even though it is brand shiny and new.  Not sure what to make of that.  No problems with Windows 10 so far (and it is at least better than my old Windows 8).

from Wash Park Prophet
via Denver News

Reforming Absolute Immunity For Prosecutors and Judges

In general, criminal prosecutors and judges have absolute immunity from liability for acts conducted in the furtherance of their judicial system functions.  Normally, if you feel that you have been harmed by the conduct of a prosecutor or judge in the judicial process, you appeal their rulings or collaterally attack their judgment in state or federal court (e.g. habeas corpus petitions in federal court).

There is good reason for this immunity.  Both criminal prosecutors and judges are routinely grieved for alleged ethical violations by dissatisfied litigants in complaints that are almost never sustained following an investigation (usually because the complaints are “appellate in nature”), and only 1-2% of so of habeas corpus petitions (and prisoner’s petitions generally) are found to have merit.

On the other hand, there are instances in which serious misconduct by prosecutors and judges, in blatant disregard for their legal duties, results in serious harm to litigants that is not easily remedied through appeals of a conviction.

In the case of prosecutors, the most common issue is that prosecutors fail to disclose exculpatory evidence that they are constitutionally required to turn over to defense attorneys under the U.S. Supreme Court’s Brady decision resulting in wrongful convictions (which are defended beyond all reason once the mistake is discovered about half the time).

While this is an ethical violation for prosecutors, in addition to a violation of a clearly established constitutional right, the proportion of cases where a Brady violation is found to have occurred in connection by an effort to vacate a criminal conviction that result in attorney regulation officials commencing cases against the prosecutors who violated the constitution in the case resulting in the wrongful incarceration is only about 1 in 1000.  It is a striking example of the capture of an agency by the people who are supposed to be regulated by it.

In the case of judges, the most typical situation is for a corruption investigation to result in a criminal prosecution of a judge or a judicial ethics investigation of a judge to find wrongdoing.  Not too infrequently, these cases involve improper sexual or financial relationships with prosecutors or other criminal justice system participants.

There is a very sensible compromise between absolute immunity under current law, and the qualified immunity standard that applies to police officers, that would minimize litigation of groundless and frivolous cases against prosecutors and judges from their participation in the judicial process, while allowing the most glaring cases of injustice to give rise to civil liability.

Under the compromise solution, actions against judges and prosecutors currently barred by absolute immunity would continue to be barred except in cases where there was a final judicial determination that the official had violated a rule of professional ethics in connection with the Plaintiffs’ case, or there was a final judicial determination in an underlying criminal action or collateral appeal of a criminal judgment, or in a separate criminal prosecution, that a constitutional right, ethical rule, or other legal duty of that official was committed by that official.

The cause of action would begin to accrue for statute of limitations purposes when the Plaintiff learned of, or should reasonably have discovered with reasonable diligence, the final judicial determination and all other elements of the cause of action.

Thus, individuals harmed by a judge taking bribes from a private prison operator, or having an affair with the prosecutor in a case where the individual was a party, or a prosecutor who violated someone’s Brady rights, could be sued at that point for civil rights violations and any other applicable causes of action related to the misconduct by the public official.

Such violations by judges are very rare, and cases of prosecutors being judicially determined to have committed ethical violations, crimes or to have violated Brady in a post-conviction collateral attack on a judgment, are still quite rare, and would surely become more rare if violating these constitutional rights gave rise to any reasonable possibility of civil liability for prosecutors (many of whom would probably suddenly decide that it was a good time to institute an “open file” system for the lion’s share of criminal prosecutions, implementing Brady institutionally in the way that most countries protect similar interests).

The earlier judicial determinations would often have collateral estoppel effect in the suit for civil liability, effectively establishing on day one a key element of the claim, which is the existence of wrongdoing in a case involving a Plaintiff.  Not all of these decisions would have collateral estoppel effect (e.g. if the prosecutor who violated constitutional rights didn’t participate in the collateral attack on the judgment proceeding), and not all of these claims would prevail.  But, this rule would identify a group of cases in which there is a very high proportion of meritorious cases, for which civil lawsuits would be allowed, while continuing to screen 99.9%+ of all cases (overwhelmingly without merit, on average) in which the absolute immunity rule would continue to apply.

The new rule, would by definition, limit civil liability to pre-established “bad apples”, whom defenders of the system constantly claim that they want to remove from the system.

It is also particularly glaring and injust for the legal system to openly and definitively after due process is had acknowledge that criminal laws, ethical rules or constitutional rights or other legal duties were violated, and yet still deny the victim of this wrongdoing any remedy, even then.

Prosecutors who have been proven to have secured wrongful convictions by violating the constitution, and judges whose corruption has been determined to have taken place in courts of law who have harmed litigants, should normatively have civil liability for their wrongdoing.  It isn’t even a hard call from a moral perspective, and the systemic and bureaucratic need to screen non-meritorious cases can be easily addressed with this compromise rule.

from Wash Park Prophet
via Denver News

Bad Cops At Large In Pennsylvania

Collingdale, Pennsylvania policeman Carl White whose conduct is recounted in a recent federal court opinion is yet another glaring example of what is profoundly wrong with police conduct in the United States.

On February 22, 2014, Defendant Officers Carl White and William Eckert went to Plaintiffs’ home in response to a call made by their next-door neighbor, who allegedly complained that Mr. Gaymon’s mother (a guest in their home at the time) had parked her car so that the front tire was on the curb in front of the neighbor’s house. Upon arriving, the Defendant officers confronted Plaintiffs as they were leaving for a family outing. According to the Complaint, Defendant White began yelling at them in an aggressive manner, asking who spit at their neighbor. 

Plaintiffs Mrs. and Mr. Gaymon explained that they had done nothing wrong, and that their neighbor falsely accused them of spitting at her. Defendant White then allegedly approached Mr. Gaymon in an antagonistic way, placing his face within inches of Mr. Gaymon’s face while yelling at him. 

Mrs. Gaymon, concerned about the officer’s aggressive conduct, took out her cell phone and began making a video recording. Officer White approached Mrs. Gaymon, at which point she moved inside her home, continuing to video White by either leaning around the storm door or through the window in the door. 

According to the Complaint, White ordered Mrs. Gaymon to stop videotaping him, and declared that her doing so violated Pennsylvania’s wiretap statute. Her husband and daughter, who were standing in front of their home, told White he was incorrect, and Mrs. Gaymon had a right to record. White told Mrs. Gaymon that if she did not stop taping him, he would enter her house, seize her phone, and arrest her. 

Mrs. Gaymon told White he was not permitted to enter her home. He walked up the stairs to the front entrance, but before entering, he grabbed her daughter Sanshuray, handcuffed her, placed her under arrest, and threatened to deploy his Taser against her. Officer Eckert then removed Sanshuray from the scene. 

Officer White is next alleged to have entered Plaintiffs’ home and ordered Mrs. Gaymon again to stop videotaping him. Mrs. and Mr. Gaymon reiterated that they did not consent to his entry, and he was not permitted to be in their home. Ignoring them, Defendant White allegedly grabbed Mrs. Gaymon, pushed her up against the wall, and held his Taser to her chest. 

At this time, Defendant Officers Eckert and others identified as “John Does” joined Officer White and placed Mrs. Gaymon under arrest. They removed Mrs. Gaymon from her home, placed her in a separate police vehicle from her daughter, and drove both women to the Collingdale Police Station.

Criminal disorderly conduct charges were summarily dismissed after the magistrate heard Office White’s testimony, and this suit followed.

People like Carl White have no business wearing a badge or carrying a gun or taser. They are a disgrace to our country. In cases like these, civil liability is almost secondary to the relief that we as members of the general public really need, which is to permanently black list people like him from bearing arms in any capacity, or serving in a law enforcement or security position, public or private.

An across the board ban on gun possession to people found civilly liable for civil rights violations akin to the current prohibition on individuals with restraining orders against them, misdemeanor convictions, felony convictions, and people who have been involuntarily committed would be completely appropriate.

Law enforcement officers do not have to be the enemy.  But, in the United States, a lot of them are trying damn hard to be.  The reasonable, law abiding civilians need to be back in charge.

from Wash Park Prophet
via Denver News