Why You Can’t Get Your Day in Court (it’s a New America)

Summary: America’s courts have decayed to a feudal-like system of High, Middle, and Low justice for the rich, middle class, and poor. Federal Judge Jed Radoff discusses this how courts work in this New America. It an example of the Republic’s decreasingly ability to serve us. During the next four years the Republican Party will work to make US courts work even less for us and even more for the 1%.

A Lady Justice for the 21st C, by Zhack-Isfaction
By Zhack-Isfaction at DeviantArt.


Why You Won’t Get Your Day in Court

By Jed S. Rakoff, District Judge
for the Southern District of NY.

New York Review of Books,
24 November 2016.
Posted with the judge’s generous permission.


Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished — with the all-too-willing acquiescence of the judiciary itself.

Some of this may seem surprising to people accustomed to hearing about overburdened courts with overcrowded dockets. These very real burdens partly reflect the decades-old refusal of many legislatures to provide funds for new courts and new judges at a rate remotely comparable to the increase in population and the corresponding increase in cases. But aside from these facts, a closer look at changes in the courts’ dockets reveals some disturbing trends.

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Are our foes returning to the battlefield after their release from Gitmo?

Summary: The War on Terror has brought forth many amazing things. Here we look at an example of the US government’s brazen lies, often debunked but still eagerly repeated by journalists. Our leaders rejoice, as a people so credulous are easily governed. Yet Gallup’s annual confidence in government — and similar surveys — show the foundation of the US political slowly eroding. This will not end well for us.

A general’s childlike justifications, clueless about law.

“We’re the good guys — they’re not. … We can quibble over what they were doing on the battlefield when we took them, but every one of them is a bad guy.” (From NPR.)
— John Kelly (General, USMC, retired). He ran Guantánamo Bay from 2012 to 2016.

No More Lies

We were told that the prisoners held indefinitely at Guantánamo Bay — with only kangaroo court justice — were taken “on the battlefield”. That’s the justification for treating them as “enemy combatants“, a term the Bush Jr. administration created, without even the minimal protections allowed “unlawful combatants” under the Geneva Conventions. It’s been debunked endlessly, to no effect. American’s prefer fun myths to dark truths about our actions past and present. We cannot admit our illegal imprisonment and torture, especially often on flimsy evidence.

As small numbers of prisoners are released from Guantánamo Bay, some of them (logically seeing us as foes) take action against us. The US government doubles down on its lies, describing them as “returning to the battlefield”. Many journalists eagerly repeat the lies, such as Fox News’ “More former Gitmo detainees suspected of returning to battlefield“.

The New York Post joins the chorus. The LA Times asks “who should hold militants taken on the battlefield“. (The NYT again shows its quality: the only story they run about “returning to the battlefield” is about Hajji Ghalib — unjustly imprisoned but returned to fight alongside America against the Taliban.)

There are many studies uncovering the truth of these events, easily done even using the US government’s own data. Here is one of the best.

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Julian Assange trapped & smeared. Wikileaks weakened. Mission accomplished for CIA?

Summary: Never say the US government can’t accomplish anything! Julian Assange of Wikileaks has been smeared with dubious (at best) charges and trapped in Equador’s embassy for the past 5 years by the Swedish and British governments. Coincidence or mission accomplished? Review the story and decide.

“A just city should favor justice and the just, hate tyranny and injustice, and give them both their just desserts.”
Al-Farabi (aka Alpharabius), Islamic philosopher and scientist (872-950).

Lady Justice by sadthree
Lady Justice by sadthree at DeviantArt.

The Swedish government closed the flimsy investigation of sexual assault as the the statute of limitations runs out. The limit on the obviously bogus rape investigation has 5 more years to run.

Both Sweden and Britain refused to guarantee that they would not extradite Assange to the United State — to receive the kangaroo court justice typical of our national security cases.

Assange sought refuge in Equador’s London embassy. They granted him a well-deserved political asylum on 19 July 2012. Since then Britain has spent over $17 million to keep Julian Assange from escaping from the Ecuadorian Embassy. No price is too great for UK taxpayers to pay when serving the needs of the USA! Britain intends to whine about this to Ecuador.

The Swedish government says that their investigation requires an interview with Assange, but they refuses to interview Assange in London. The Guardian describes their sorry excuses and stalling…

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False rape accusations tell us something important about America

Summary: The changes in America are often easily seen in the news, if read analytically (rather than as entertainment). Read about the latest false accusation of rape to see not just a gripping story of injustice and eventual vindication — but also an important trend affecting America.  {2nd of 2 posts today.}

“I interviewed the victim twice, and I believed her.”
— District Attorney Denise Lunsford, explains why she ignored evidence showing that Mark Weiner was innocent (from Slate).

Justice lying down

In Harper Lee’s novel To Kill a Mockingbird all-white jury convicts an innocent black man of raping a white woman in a small 1930s southern town, despite the efforts his lawyer who defies the town’s lynch-mob mentality and proves the victim’s story to be false. It’s a new century, a sequel has just come out — and we have a new surge of men being falsely convicted of rape despite the evidence.

The latest example is Mark Weiner, who on a rainy day gave a woman a ride to her home — ending in a sentence of eight years in jail for abducting a woman with the intent to sexually harm her. There was almost no evidence of his guilt, and considerable exculpatory evidence (some of which was not disclosed to his attorney), but that does not matter to the true believers who increasingly run America. This happened in Charlottesville, home of the infamous fake rape publicized in last November’s Rolling Stone.

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We need a criminal justice 2.0 (the 1.0 is broken)

Summary: Here’s another post about our broken criminal justice system by someone who .understands its weaknesses –Hon. Alex Kozinski, a judge on the Ninth Circuit. His description has little resemblance to what we see on TV in CSI and NCIS, or to what our peers experience in Europe or Japan.  {1st of 2 posts today.}



Excerpt from “Criminal Law 2.0

by Hon. Alex Kozinski (Ninth Circuit judge)
Georgetown Law Journal, 2015

Preface to the 44th Annual Review of Criminal Procedure
Section I (footnotes omited)

… In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense. Here are just a few examples:

(1)  Eyewitnesses are highly reliable.

This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event — which pretty much covers all situations where identity is in dispute at trial.

In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

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News from England on the great experiment about gun rights

Summary: Together the UK and US are running one of the greatest social experiments in history, testing different ways to maintain internal order. The test of capitalism vs. socialism produced definitive results; perhaps this one will as well. If so, let’s hope the cost to the loser will be less than suffered by the socialist and communist states.  {1st of 2 posts today.}

Ask The Police

For decades UK public policy has strived to eliminate from public use guns and knives. Only the State can protect you. Subjects of the crown still have a right to self-defense (here is a clearer explanation). American right-wingers often get this wrong.

Simultaneously the US has gone in the opposite direction by eliminating restrictions on both concealed and open carry of guns — including rifles — and in some States even broadening people’s right to shoot others for flimsy reasons (“stand your ground” laws).

Time will tell which works better. The cost of the American experiment is paid in blood by those shot by accident, those who shoot themselves (a 7 year is the 360th so far in 2015), and those are shot in anger (made easy by our lightly regulated gun markets).

Today we look at developments in the UK, with helpful advice from their police about your right to defend yourself as a subject of the Queen. There is an important limit on your right to self-defense: not with weapons. Red emphasis added in the following excerpt.

Helpful advice brought to you from the website of the Police of England & Wales

Ask the police about self-defnese

The only fully legal self defence product at the moment is a rape alarm. These are not expensive and can be bought from most local police stations or supermarkets.

There are other self defence products which claim to be legal (e.g. non toxic sprays), however, until a test case is brought before the court, we cannot confirm their legality or endorse them. If you purchase one you must be aware that if you are stopped by the police and have it in your possession there is always a possibility that you will be arrested and detained until the product, it’s contents and legality can be verified.

However, accepting there is a lot of concern about street crime, we can try to clarify matters a little by putting forward the following points.

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The real significance of our drone war, and why you’ll hear little about it in Campaign 2016

Summary: Nothing shows the decay of the Republic like our drone wars, almost mindless killing — now including execution of Americans by Presidential decree. To see how accustomed we’ve become to these steps to a new regime, this post looks at a typical story in the New York Times plus an analysis of it by an eminent law professor. Then I draw some obvious but alarming conclusions.  {2nd of 2 posts today.}

The King rules that you must die.

Lettre de cachet

The New York Times gently reports that a new “Terrorism Case Renews Debate Over Drone Hits“. Excerpt:

Mohanad Mahmoud Al Farekh, who was arrested last year in Pakistan based on intelligence provided by the United States, came after a years long debate inside the government about whether to kill an American citizen overseas without trial — an extraordinary step taken only once before, when the Central Intelligence Agency killed the radical cleric Anwar al-Awlaki in Yemen in 2011.

Mr. Farekh’s court appearance also came as the Obama administration was struggling to fashion new guidelines for targeted killings. The decision to use an allied intelligence service to arrest Mr. Farekh has bolstered a case made by some that capturing — rather than killing — militant suspects, even in some of the world’s most remote places, is more feasible than the orders for hundreds of drone strikes might indicate.

… The Obama administration’s discussions about the fate of Mr. Farekh, who used the nom de guerre Abdullah al-Shami, began in earnest in 2012, and in the months that followed the C.I.A. and the Pentagon ramped up surveillance of his movements around Pakistani tribal areas.

… But the Justice Department, particularly Attorney General Eric H. Holder Jr., was skeptical of the intelligence dossier on Mr. Farekh, questioning whether he posed an imminent threat to the United States and whether he was as significant a player in Al Qaeda as the Pentagon and the C.I.A. described. Mr. Holder and his aides also thought it might be possible to capture Mr. Farekh and bring him to trial.

We have to love this nod to the nature of “news” (aka pravda) in New America, where everything we need to know is classified secret — and anyone other than government officials giving us this information is a spy (giving info to the government’s enemies — which includes us). We not only should believe what we’re told but also be content with what little we’re told. They tell us all we need to know.

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