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jberryhill

Profile Information

Gender: Male
Hometown: Delaware
Member since: Fri Jan 20, 2006, 08:14 PM
Number of posts: 46,850

Journal Archives

Clients Who Follow Instructions Poorly

Any lawyer will appreciate the problems of counseling a client on what, if any, statements to make.


"Okay, now, look, they might turn up evidence of collusion between your campaign and the Russians. So, in order to be able to act surprised and betrayed later on if that evidence turns up, I want you to make sure that any denials you make on the subject of collusion are just about yourself. You need to isolate yourself from anyone in the campaign for whom there is evidence of collusion Be sure to say that you didn't collude with the Russians, but don't take the rap for anyone else. You got that?"

"Sure."

...............

https://www.nytimes.com/2017/05/18/us/politics/trump-fbi-mueller-rosenstein.html

“The entire thing has been a witch hunt,” Mr. Trump said. “There’s no collusion between, certainly, myself and my campaign — but I can only speak for myself — and the Russians — zero.”

HOLD THE PRESSES! Karl Rove says there may be numbers in Ohio keeping Roger Ailes alive!

Someone send Megyn Kelly to check in the morgue.

They are running THIS on a continuous loop on Fox

&t=29s

The "Jeane Dixon Effect"

Jeane Dixon is popularly known as the psychic who "predicted the assassination of JFK", and is probably the best known demonstration of what is known as "confirmation bias".



If you want to do well in the prediction business, you do the following:

1. Make a lot of predictions
2. Promote the ones that "came true" or ones for which you can shoehorn the facts into it "sorta, kinda" happened.
3. Make sure your predictions contain enough "slop" in them that you can more easily do #2.

This has been the stock in trade for psychics and soothsayers for a long time.


https://en.wikipedia.org/wiki/Jeane_Dixon#The_Jeane_Dixon_effect

John Allen Paulos, a mathematician at Temple University, coined the term 'the Jeane Dixon effect', which references a tendency to promote a few correct predictions while ignoring a larger number of incorrect predictions. Many of Dixon's predictions proved erroneous, such as her claims that a dispute over the offshore Chinese islands of Quemoy and Matsu would trigger the start of World War III in 1958, that American labor leader Walter Reuther would run for President of the United States in the 1964 presidential election, that the second child of Canadian Prime Minister Pierre Trudeau and his young wife Margaret would be a girl (it was a boy), and that the Russians would be the first to put men on the moon.

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Demonstrating that someone "is really good at predicting stuff" is not done by rattling off a list of predictions which came true, or which are too vague to have "come true" or not.

Federal Rule of Evidence 803 - Exceptions to Hearsay


The legal definition of "hearsay" is poorly understood by a lot of lawyers, let alone non-lawyers.

Simply defined, with a lot that unpacks, hearsay is an (a) out of court statement, (b) offered as evidence for the truth of what is stated therein.

It includes a lot more than the classic "someone saying what someone else said", but also includes things people wrote down.

The Federal Rules of Evidence, Rule 803, distills judicially-derived and somewhat "common sense" exceptions to things that are hearsay, but under certain conditions will be allowed as evidence of what is asserted. My favorite is the "excited utterance" - "A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused."

That rule is known to a lot of people, for example, police who will shout "stop resisting" when someone isn't actually resisting, as an excuse to rough them up. But, normally, it is for situations where you have a witness who was having a cell phone call with someone who shouted "Holy Shit! That red pickup truck just ran over the naked guy who was jaywalking, ran the redlight, and almost hit me!" if, for example, there was a factual issue over what type and color the vehicle was.

In general, the are things which are hearsay are statements made under certain circumstances of "reilability", and also conditioned on whether the declarant is available to testify. The "dying declaration" is a popular one.

One of the important exceptions to something being considered hearsay, deals with things that people wrote down at the time something happened:

https://www.law.cornell.edu/rules/fre/rule_803

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

This overseas trip is going to be a hoot


Not only does "Trump on Islam" promise to be one humdinger of a speech, but if you like things now, the mice are going to have one hell of a party while the cat's away.

He's going to be more isolated than he already is, since he can't just wander the halls screaming like Caligula. All of his communications have to be made via secure lines, and he's going to be under whatever scrutiny foreign intelligence agencies can apply.

The topper is that he's going to be out of synch with the news cycle and the business day here. He already shows enough signs of mental imbalance, and claims not to get a lot of sleep, but his sleep deficit is going to be a lot worse when he's up late at night catching up on his favorite news shows.

Shiny Objects You Will Soon Be Seeing

There are certain "set pieces" of political horseshit which get recycled over and over in different contexts for the business of "telling people what they want to hear" and/or raising donations.

Since we are already watching the Lucy/football cliffhanger saga, which runs like a "tune in next week" radio show, I'd like to list a few of the others (thanks to onenote) and see which ones I've missed:

1. "CRIMINAL CASE FILED AGAINST X"

This will headline a story about an actual criminal court proceeding filed in an actual court. The catch will be that it is a qui tam case, not actually filed by a prosecutor. That detail won't bother you, because hey, it is a Latin phrase which will make it seem more credible to you. After all, it's a fancy Latin legal phrase! And it was filed by a "private prosecutor" or a "citizen attorney general" or even someone called a "relator" who sounds like an official of some kind. Or, it will be filed "on behalf of the Justice Department". So, it must be real, and the frogs will be a'marching soon.

What you don't know, and won't be told, is that a qui tam filing is an actual thing, but commonly misused as a political stunt. In a nutshell, it is a type of filing in which someone believes there is a prosecutable offence of various kinds, but, for whatever reason - lack of evidence, resources, or investigation - an actual prosecutor has not pursued the case. In this kind of case, which can be filed by anyone, the filer - the "relator" - can obtain a portion of the penalty ultimately recovered.

Anyone can file this type of action by barfing whatever they want onto paper, and paying the court filing fee. Whether to actually pick up the ball and run with it is up to the prosecutor in that jurisdiction. These types of suits were popular vehicles for "Obama is a Kenyan" claims, among other species of assorted nonsense. But getting the DoJ to actually pick up the case, or having any merit to the case, is not really the point. The POINT is to be able to say "CRIMINAL CASE FILED AGAINST X" for media effect and/or to solicit donations because "we need your help to win".


2. "Official Body Charges X", or the Officious Non-Officials

In this one, you will be told that the "US Commission On Judicial Integrity" or the "Federal Corruption Agency" or some other official-sounding group with a fancy title is "holding a hearing", "conducting a trial" or engaging in some other activity that makes it sound like (a) this group actually has any significance and (b) is doing something that's going to lead to some sort of official action.

As a point in fact, the "US Committee On Foreign Election Interference" did indeed meet last night and issued charges against many administration officials. Of course, this committee consists of my wife and I, we talked about it over dinner, and we did indeed charge those officials. But so fucking what? What we didn't do is set up a website or send out mailers asking you for "your important opinion" and your optional donation.

A variation on this is to use a name which sounds kind of like to an existing and larger organization. For example, instead of the "American Bar Association" it will be (and forgive me if these exist for one thing or another, I'm going off the top of my head), the "American Lawyers Association" or something more specific like the "American Bar Association of National Security Lawyers" etc..

My favorite Officious Non-Official groups will include a retired Navy admiral. Because, yeah, I don't believe anything is credible unless it has a retired Navy admiral endorsing it. The "loony ex military person of high rank" is always a good touch, like the former Canadian defense official whom the UFO people adore. One of the great things about retiring from the US military with an officer's commission is that you get a decent pension at an early age, and can pursue any number of odd hobbies as you progress to senility.

3. "Citizen's Grand Jury Issues Indictment"

This one is more popular with right wingers, and is sort of like #2 with an additional (and fraudulent) claim of actual legal authority. While, for example, 9/11 truthers favor things like the "Independent Factfinding Commission", people on the Sovereign Citizen end of things have a complex and bizarre understanding of long-surpassed common law principles under which they believe that a group of yahoos can get together at Clem's place, have a few beers, and issue indictments upon which their local Sheriff is obligated to act.

So the story will be "Podunk County Grand Jury Issues Indictment". Below, in flowery language using legal phrases the way Jackson Pollack used paint, will be obscured the underlying fact that a couple of yahoos at Clem's place had a bender and showed up the next day to yell at their sheriff.

In one of the more colorful instances of this species of shiny object, a birther in Tennessee had become such a nuisance at the courthouse, that he was eventually banned from the place and ultimately arrested with a shitload of weapons on his way to force the court to "obey the law".

4. The Foreign Criminal Charge

This one was very popular during the W administration. The way this one goes is that some foreign jurisdiction or foreign official claims a violation of either their own laws or "international law" and rouses the cheerful celebrants to believe that so-and-so better not go to country X, or they'll be arrested for something. While, needless to say, that is actually true of a lot of Americans with respect to, e.g. North Korea, I'd be willing to bet there are still people at DU who think Dick Cheney or W will be dragged off in chains if they visit Spain (or wherever it was), on charges of war crimes.

I'm not sure what the usefulness of this shiny object is, other than to take hope in the clever trap which has been set if the person in question goes to wherever it is. But, in general, given that foreign legal systems can be very different from our own, and the "facts" get breathlessly passed on and mutilated, it is often difficult to determine whether it is more or less the equivalent to a kegger at Clem's place issuing an indictment.


5. "UN Official Finds/Declares/Charges... Something Really Important"

The UN Human Rights Commission appoints a number of people to report to them on various themes of relevance to the UNHCR in various countries or regions. As the title suggests, these rapporteurs, typically experts of some kind, issue reports to the UNHCR.

What the rapporteurs do NOT do is to "file charges with the UN" or any sort of international court, nor do they have the power to do so. What they do have the power to do, however, is to provide their opinions to the media, and to have wishful thinkers believe that someone is required or empowered to act on them in some official capacity.

I'm sure there are more on this hit parade. If I missed your favorite, let me know. What these stunts ultimately do, is to provide convenient distractions to discredit those enlisted to disseminate them.

Ladies and Gentlemen, Miss Judy Garland:



Where people lack hope, there is always someone willing to fulfill the laws of supply and demand.

Bear Man Strikes Again!


http://www.delawareonline.com/story/news/crime/2017/03/20/police-arrest-man-marijuana-drug-money/99425036/

"A Bear man was arrested Thursday after a drug investigation yielded 600 grams of marijuana and more than $2,000 in cash, according to New Castle County police."

A lawyer for Louise Mensch seems worried that her latest "bombshell" is bullshit.

https://twitter.com/UrbanAchievr/status/863590929336324096

Morgan Lewis Partner Shortlisted For Bharara Replacement


Quid, meet quo.

https://www.law360.com/articles/921556/morgan-lewis-partner-shortlisted-for-bharara-replacement

President Donald Trump’s administration is considering nominating Morgan Lewis & Bockius LLP partner David I. Miller to be the next U.S. attorney for the Southern District of New York, sources said Monday, as the process for replacing Preet Bharara is appearing to heat up.

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The "Russia Firm Of The Year" will get right on those prosecutions in New York. Yesssiree.
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