Crime & Federalism

Veteran's Day is a Time for Narcissism

"Oh, thank you so much soldiers for serving and risking your lives.  Yes, thank you.  Oh, sure, I haven't written a single check this year to any veteran's-related charity.  I care, though, dammit!  I support the troops!"

Yes, indeed, you do care.  You care about how people perceive you.  In public, you thank veterans so that others will think, "What an upstanding guy!"  In private, you buy another bottle of wine rather than write a check to charity.  

Your true self does not care about veteran's - especially when caring might mean avoiding materialistic self-indulgence!  The fake self supports the troops and will spend many minutes saying many words proclaiming support for America's soldiers.  We support things most of all when our support costs us the least.

Even on a day that's supposed to be devoting to others, we cannot resist celebrating ourselves.

Bear Stearns Not Guilty

The two former Bear Stearn fund managers have been found not guilty.  Details here.  That is unsurprising.  The prosecution against them was frivolous, for reasons I discussed in this post.

Sometimes It's Better Not to Appeal

In the federal courts, court-appointed lawyers in complex cases must have their fee requests judicially approved.  Spokane lawyer Gerald R. Smith requested a large fee request for a court-appointed case - over $46,000.  The trial court hinted that Mr. Smith's performance was not worthy of $46,000: 

[T]he Honorable Justin L. Quackenbush, Senior United States District Judge for the Eastern District of Washington and the presiding judge in the underlying matter, sent Mr. Smith a letter responding to his claim. The letter explained that, while Judge Quackenbush had previously categorizedthe case as “complex” for excess compensation purposes,18 U.S.C. § 3006A(d)(3), he was hesitant to approve an additional $46,930.80, the full amount Mr. Smith was now requesting. He explained the court’s concerns and ordered that Mr. Smith come to court for a hearing to determine theappropriateness of the fee request.

Mr. Smith didn't take the hint.  When the judge awarded only half of Smith's request, Smith appealed.  Which led to a published opinion that leads one to believe that Mr. Smith isn't a very good lawyer: 

Judge Quackenbush ultimately cut almost half of Mr. Smith’s requested out-of-court hours from the second-interim voucher. This is certainly more than a “haircut.” However, the experienced district judge provided not just lengthy, but also crystal clear, explanations for this deduction in a letter, a sixpage order, and orally on the record when examining the propriety of the fees sought. The court found that Mr. Smith spent very little time cross-examining witnesses during the one-week trial, and in doing so introduced only two trial exhibits. His opening statement was terse, consuming only ten minutes, and he called no witnesses of his own. The court concluded that Mr. Smith had very little to show for the nearly 700 hours of out-of-court preparation sought in the initial and second interim vouchers.

Ouch.

Speciesism and the Death Penalty

Is it intellectually consistent for a death penalty abolitionist to feed her dog?

There are those who claim that the death penalty is always wrong.  It doesn't matter if the criminal tortured his victims for days before killing them.  It doesn't even matter if the criminal enjoyed it.  That view is mere speciesism.  

We say that because a person is a human, he's special.  We don't define what makes a human, human.  We ignore that what separates us from other animals is higher cognitive processes, reasoning, and empathy.  We say, "Humans are special.  That's the end of it."  Meanwhile, we give no second thought to "putting down" a violent dog.  We have, in other words, the death penalty for dogs.

Yet are things so obvious?  Is human life really inherently more valuable than an animal's life?  Is it really wrong to kill a violent person - while it's right to kill a violent dog - because the person is a human?  Seems easy, right?  Well, here's something for you.  

Today I am going to feed my dog.  That costs money.  I spend around $60 a month on my dog's food.  That $60 could save at least one human in Africa.

None of you would say, "Mike, how can you let people die to save a dog?!"  Yet that is exactly what I'm doing.  Through my choices, I am elevating my dog's life over human life.  Through inaction, I am killing a person.

Saying that the death penalty is wrong all of the time ignores very hard philosophical questions.  What are humans?  What moral duties do I owe to humans?  What moral duties does the state owe to humans?  Can a person surrender his humanity?  If so, how?  If not, why not?  Is a human's life always more valuable than a dog's life?  

The obvious rejoinder is that failing to save a life (by doing something as risky as as writing a check) is materially different from affirmatively executing a person.  Yet that rejoinder ignores my entire argument.

We have the death penalty for dogs.  Why not for humans, too?  Because humans are better than dogs; because humans are special?  That argument is circular.

A Christian would answer that we must not execute a person, because the person has a soul.  The soul is redeemable.  We should not interfere with God's work in redeeming a person.  If the person's soul is so important to God, God will find a way to save the person.  Indeed, claiming that allowing the person to live is going to let God do God's work presupposes that God needs man to do God's work.  If that's so, then there isn't much point to God, is there?

If people want to oppose the death penalty, fine with me.  I am friends with pagans, heathens, sinners, Christians, Republicans, Democrats, narcissists, and sociopaths.  Just spare me the moral superiority and moral certainty.  

Disagreements make life interesting.  Moral superiority does not.  Moral superiority is especially irksome when the morally superior are driving expensive cars, eating expensive food, and sending their kids on expensive vacations while actual human beings starving to death.

Should Teenagers be Sentenced to Life Imprisonment?

The Supreme Court will soon decide whether its constitutional to sentence juveniles to prison for life, for crimes less than murder.  Scott Greenfield thinks that constitutional issues aside:

LWOP for kids at all, no less for crimes short of murder, is just nuts. Absurd overkill is not something that any rational, reasonable legislature should ever enact. And yet they do, even though there's no empirical evidence to show that it makes any sense at all.  The problem is that states that have approved of the sentence of LWOP argue their emotional justification, the super-predator fallacy, the harm to victims, the crime wave, the need to stop these children.

What's the point of sending people to prison at all?  To me, it seems that you send people to prison for violating the social contract.  As part of a member of organized society, I do not get to kill people who harm me.  In exchange, the state removes the violent member of person from society.

What people should be removed from society?  As Aristotle taught, the ability to reason is the sine qua non of a person.  It's what separates us from the animals.  Biologically, we are just pieces of meat - not much different from the animals we'll eat at dinner tonight.  What separates humans is the ability to reason.  What also separates us from animals is the ability to empathize, and to recognize the existence of other minds.

One who surrenders his reason has behaved as an animal - and should thus be treated as an animal.  

We give no second thought to putting down a violent pit bull.  Somehow, though, it's the sign of an unjust world when we put down incorrigibly evil human beings.  Why?  Why have this privileged place for violent humans?  Simply because they are humans?  Yet that answer begs the very question of what makes a human, human.

My dog (and my friend's pit bull) are more deserving of life than the teenagers responsible for the Dunbar Village Incident.  My dog - who brings joy to nearly all he encounters - would never do anything like this:  

After dark .. as many as 10 armed assailants repeatedly raped a Haitian immigrant in her apartment at Dunbar Village and then went further, forcing her to perform oral sex on her 12-year-old son. They took cellphone pictures of their acts. They burned the woman’s skin and the boy’s eyes with cleaning fluid, forced them to lie naked together in the bathtub, hit them with a broom and a gun and threatened to set them on fire.

Why do these "children" not deserve life in prison?  Because ten years from now they'll realize, "It was wrong to rape and torture a woman before requiring her to perform oral sex on her own son"?  Because they just made a mistake, and are deserving of a second chance?  Really...Why should these teenagers be released?   

Since teenagers do not have fully-developed brains, they should be excused some youthful indiscretions.  Recognizing that teenagers are different should not excuse torture and gang rape.  Deciding to rape and torture someone is not a cognitive error.  It's not mere inability to control an impulse.  It's an act of unmitigated evil.

The teenagers in the Dunbar Village Incident are privileged to remain alive.  A just society would have put them down like the savage animals they are.  

Oh, I know, but they are human - as if that is a self-proving argument rather than mere speciesism.  If the Dunbar Village teenagers are human, then either human needs redefined; or humanity needs to be taken out by an asteroid.

Prosecutors Should Feel the Chill

Sometimes someone says something so crisp that one can only feel awe and jealousy. Justice Sotomayor put me and everyone else to shame during oral arguments in Pottawattamie County v. McGhee.

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During the oral arguments in Pottawattamie, Chief Justice Roberts and Justices Alito and Breyer kept niggling over the alleged “chilling effect” that allowing a lawsuit to proceed against unethical prosecutors, would have on ethical prosecutors. Do the innocent really become fearful when the guilty are brought to justice?

A Department of Justice lawyer brought up the chilling effect argument: And if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.

Justice Sotomayor showed the wisdom that everyone else is lacking. She replied: 

A prosecutor is not going to flinch when he suspects evidence is perjured or fabricated? Do you really want to send a message ... that they should not merely flinch but stop if they have reason to believe that evidence is fabricated? 

Oral arg. at 21. In other words, yes, prosecutors should feel the chill. If there is reason to suspect that evidence has been fabricated, a prosecutor must not admit that evidence.  We’ve been inside the system too long. We’ve forgotten that prosecutors are supposed to be more than just lawyers. They’re supposed to be administrators of justice.

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In most cases, lawyers take the Pontius Pilate approach to the reliability of evidence: “Let the jury decide.”  Truth is question for the jury to answer. Sure, few admit perjured evidence. If evidence is just merely fuzzy, though, a zealous advocate should seek to admit it.  Let the jury decide.

Prosecutors have been behaving as mere advocates. Yet prosecutors have a special place in the courtroom. A prosecutor is supposed to seek justice. Sending stinky evidence hoping a jury will sniff it out is inconsistent with that role.

A prosecutor who has doubts about the reliability of evidence should feel a chill. The prosecutor should say, “This feels unreliable. It’s not my role to merely advocate before a jury. Rather, I am to exercise my independent judgment. I am not supposed to seek convictions – but to seek justice. It is not just to submit evidence that seems false to a jury.”

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Some had wondered if Justice Sotomayor – a former prosecutor herself – would unduly favor prosecutors. In a sense, she has. She’s reminded prosecutors about their role in the criminal justice system.

If you think evidence is unreliable, you should feel the chill. In fact, you should feel a lot more than a chill. You should feel revulsion. Don’t admit that evidence. You cannot wash your hands by sending unreliable evidence to a jury.

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While Justice Sotomayor is not wise because she is a Latina, she is indeed wise. She gave all of us a primer on prosecutorial ethics. Were we listening?

A Human-Sized Duffel Bag

I laughed out loud at this: 

[The defendant] challenges a number of the district court’s factual findings and argues the findings do not establish that officers lawfully conducted a protective sweep of the garage during which they observed an open duffel bag containing marijuana.

The district court found the following: during a drug investigation at a St. Louis residence, Officer Lankford and his partner observed Jones and another individual leave the residence and enter the garage. The officers followed the men, who fled the garage. After the officers arrested the men for possession of narcotics, the officers entered the garage and observed a tarpaulin covering a large object. Concerned that a person could be under the tarpaulin, Officer Lankford pulled back the tarpaulin, which revealed a large open duffel bag containing several freezer bags of marijuana. We conclude that Officer Lankford’s testimony supports these findings, therefore, the record reveals no plain error in the districtcourt’s findings.

United States v. Jones (here).  That must have been an awfully large duffel bag.

Believing police who say such silly things does nothing to promote police integrity or public justice.  Your honor, they did not really believe that there was a person hiding under the tarp.  Start suppressing evidence based on police lies.  Then police will start telling the truth and following the law.

The police would have found the drugs, anyway.  They had probable cause for a search warrant.  Had they simply applied for the warrant, they would have received one.  

Why fill out paperwork, though, when you have an cadre of judges who'll believe anything you tell them?

Federal Judges Demand DOJ Reform Discovery Practices

Federal judges are standing up to the United States Department of Justice: 

 Judge Paul Friedman of the U.S. District Court for the District of Columbia says he's "radicalized" when it comes to prosecution disclosure obligations. He is a proponent of a federal rule that clearly spells out the government's obligation to turn over favorable evidence to defense lawyers.

Mike Scarcella has the rest of the report here.  

Catholicism Succumbs to the Culture of Narcissism

Section 1983 Blog has a post about Catholic League v. City and County of San Francisco, a frivolous case in our frivolous times.  In Catholic League, the Catholic Church sued because the City of San Francisco hurt Catholics' feelings.  Suing for hurt feelings is only more evidence of our culture of narcissism.  

Thinking about the lawsuit reminded me of a passage from from The Decline and Fall of the Roman Empire:

In the exercise of domestic jurisdiction, the nobles of Rome express an exquisite sensibility for any personal injury, and a contemptuous indifference for the rest of the human species. When they have called for warm water, if a slave has been tardy in his obedience, he is instantly chastised with three hundred lashes: but should the same slave commit a wilful murder, the master will mildly observe, that he is a worthless fellow; but that, if he repeats the offence, he shall not escape punishment.

That's the culture of narcissism.  Hurt someone else...No big deal.  Fail to bend to our whim...Lashings!

Rape children?  No big deal.  Confess your sins, and we'll transfer you to another parish.  Call us bigots?  We're filing a lawsuit!

The Church has become part of the culture rather than something separate from the culture.  Blurring the line between church and state has not turned the United States into a theocracy.  Instead, it's turned Catholicism into the Church of Narcissism.  

It is the Church, not the state, most is need of separation of church and state.

Thinking Like a Scientist

Science is supposed to be more about the memorization of trivial. Instead, science is supposed to be about method, about process – most of all, about thinking. Most scientists, sadly, are weak problem solvers.

Scientists amass a great amount of trivia – often life-saving trivia. Few of them amassed that trivia through another other than rote memorization. Scientists learn through an act of brutal memorization. The latest poster boy for scientists as ignoramuses is Dan Carey, Ph.D., an assistant professor of exercise physiology at the University of St. Thomas in Minnesota.

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Pop quiz: Would you prefer 50% of x or 100% of y? Think about it for a minute.

If you answered the question, you’re not thinking. You can’t say what you’d prefer unless you know the values of x and y. For example: Would you rather earn 50% of $100,000 or 100% of $10,000? Cast concretely, the question is retarded. It’s not even a choice. And yet a scientist who receives taxpayer money to fund research - and tells people how to live their lives - proves that he’s not thinking.

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In a New York Times piece about weight loss, Dr. Carey and others seem perplexed that people who exercise at the pace of a snail, don’t lose fat. You’d think that’d be a silly mystery. If there is 3,500 calories in a pound of fat, and a person only burns 200 calories a day “exercising,” how much weight loss would one expect? Yet dogma clouds clear thinking.

There is a dogma is exercise science that one who wants to lose fat should train in the so-called “fat-burning zone.” Here is the logic: At a low intensity (think brisk walk), a person burns mostly fat calories. Therefore, a person who wants to burn fat should train in the fat-burning zone. Here is how Dr. Carey puts it:

“If you work out at an easy intensity, you will burn a higher percentage of fat calories” than if you work out a higher intensity, Carey says, so you should draw down some of the padding you’ve accumulated on the hips or elsewhere — if you don’t replace all of the calories afterward.

Return to the pop quiz. How does the fat-burning zone – in isolation - make any sense?

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One could burn a greater percentage of calories from fat while actually burning less fat. I would rather have 50% of $100,000 than 100% of $10,000, because a lesser percentage is a greater amount.

Now we can see why Carey can’t think. In an hour-long hard workout (where my pulse is continually between 160-180), I might burn 800 calories. What if only 50% of those calories come from fat? Isn’t that superior to burning 100% of calories from fat if I’m only burning 200 total fat calories in his weak workout?

Clearly 400 is greater than 200. Yet Carey, like most scientists, cannot think. Instead, he tosses around dogma – as if saying “the fat-burning zone” does anything other than make the person seem like a fool.

If Carey were just another idiot with an opinion, we’d pass over his opinion in silence. Carey, however, is emblematic of the scientific profession. Why think when you can rely upon dogma?

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Thus you can see that although this is a poster about exercise, it has nothing at all to do with exercise.

Bill Maher and the Yes-Man Effect

I never understood why Bill Maher was considered funny.  Still, it seems he's imploding.  It's because he's surrounded himself with yes-men:

When Elvis came out of the dressing room for the first time in that sequined white jumpsuit with elephant bells, high collar, and a matching cape, he asked the people he thought were friends, “Ahh , what d’yall think? Ahh picked it for my Hawaii show…”

But everyone lied, and told him that he looked great. He didn’t really have any friends. Just a handful of people making an incredible amount of money working at Elvis Inc. So nobody stood up to him. When a man gets surrounded by a phalanx of assistants, groomers, managers, agents and other members of the entourage whose job it is to tell him how great he is –these things happen.

If everyone agrees with you all of the time, this is the kind of idiot you're going to become:

You Are Your Environment

Why do you do what you do?  Why are your friends your friends?  Why do you listen to the music you listen to, watch the TV shows you watch, and read the books you read?  We often do not ruthlessly weed the garden of our mind.  We should, because we become our environment.

The Last Psychiatrist has an incredible post about the unconscious: 

14 subjects were shown 3000 pictures, 3 seconds each. Then, they were shown pairs of objects-- one was the previously seen, the other never seen-- and they had to pick out which one they saw. 

The pairs were of three types: paired with something completely different; paired with something of the same type; and paired with an altered version of the same picture.

3000 images-- viewed once-- over the course of two to three hours-- and the subjects were able to correctly pick out the previously seen image 87-92% of the time. Absolutely wow.

Just because we don't remember something doesn't mean it's there.  In fact, the evidence suggests that everything we encounter remains - if only for a moment - with us.  

Those commercials you tell yourself that you're ignoring - well, you're not.  Those commercials become part of you.  The characters you see on television or in a magazine become part of you.  Your friends and business associates become part of you.  

You are being rebuilt daily.  Look at that sentence.  "Being rebuilt."  Are you being rebuilt, or are you rebuilding yourself?  Do you fill the moments that belong to you with edification?  Or do "go with the flow" - which really just means allowing others to take you where they want you to go.

Small thoughts become weeds.  Weeds destroy your mind.  From the single greatest collection of wisdom: 

Now there were some terrible seeds on the planet that was the home of the little prince; and these were the seeds of the baobab. The soil of that planet was infested with them. A baobab is something you will never, never be able to get rid of if you attend to it too late. It spreads over the entire planet. It bores clear through it with its roots. And if the planet is too small, and the baobabs are too many, they split it in pieces . . .

"It is a question of discipline," the little prince said to me later on. "When you've finished your own toilet in the morning, then it is time to attend to the toilet of your planet, just so, with the greatest care. You must see to it that you pull up regularly all the baobabs, at the very first moment when they can be distinguished from the rosebushes which they resemble so closely in their earliest youth. It is very tedious work," the little prince added, "but very easy."

Becoming an active builder of one's mind also requires personal responsibility.  I am responsible for what I eat.  I am responsible for what I read, think, and expose myself do.  Thus, if I am watching MTV, that isn't something that is just happening: It's something I am choosing to do.  Why am I making that choice?

Even asking one's self, "Why am I doing this?" has power.  Often the answer is, "This is stupid.  You're right.  I shouldn't be doing this."  Or, perhaps, you really are watching MTV because that's who you are.  If you're happy with that, who am I to tell you otherwise?  Most of us, unfortunately, do not choose to become anything.  Life just sort of happens.  We just sort of end up who we are.  

It's your mind.  You can't control everything in life - probably, we can control very little.  One should take great control over the little things.

Money and Cognitive Bias

Bankrate.com has fantastic article entitled, "12 Hair-Raising Money Tales."  Some of the tales involve banker corruption, deceit ans so-called gotcha capitalism.  Many money mistakes involve decisions.  And thus there are problems with cognitive bias.  Take this example: 

In 1995, my husband's employer in Pensacola, Fla., sold to a company in Bowling Green, Ky. The economy was strong, and we were enjoying our Florida home and thinking about retirement. But my husband took a consulting position with the Kentucky company.

We took equity from our residence in Florida and bought a small home on a large lake in Kentucky. We planned to downsize, sell the Florida home and travel after my husband completed his work.

Isn't that typical?  That's optimism bias. "Optimism bias is the demonstrated systematic tendency for people to be over-optimistic about the outcome of planned actions. This includes over-estimating the likelihood of positive events and under-estimating the likelihood of negative events. It is one of several kinds of positive illusion to which people are generally susceptible."  

Someone gets a promotion: Don't just celebrate with a nice dinner.  Buy a new car!  A new house!  Spend right up to your new salary.  Live as if that new salary is always going to be there.

Let's put aside the spiritually-draining concept of supersizing one's spending.  If you're mostly happy with your current salary, why buy more stuff just because you have more money?  Your lifestyle was fine before your raise.  Plus, money is freedom.  Save enough money that you can tell your boss to go to Hell.  Watch your job-related stress fall.  Oh, you thought it was a coincidence that your boss always tells you to buy a house or to upgrade your car?    

I see optimism bias with friends my age.  Why are you in such a hurry to get into a house?  Besides the fact that owning a house makes one a debt slave: Why do you think you'll be able to keep paying the mortgage?  Is there a guarantee that the money will always be there?  Unless your parents are rich, what's your safety net?  No one needs a safety net, though.  Optimism bias.

Most people, though, underestimate the likelihood of negative outcomes.  It can't happen to me.  Yet another aspect of our culture of narcissism.

What Does a "Hit" Look Like?

"For a second I thought I was dead. But, when I heard all the noise, I knew they were cops. Only cops talk that way. If they'd been wiseguys, I wouldn't have heard a thing. I would've been dead."  Indeed.

On Getting the Democracy We Deserve

After giving Wall Street $2 trillion, there haven't been any reforms.  Even the derivatives "reform" bill is an industry-sponsored joke.  It's clear what is going on.   It's not the politicians' fault.  Instead, its our fault.  We're idiots who deserve the economic asteroid that is about to hit.

Politicians (that includes your favorite Congressperson) care only about one thing - being reelected.  Few in Congress will lose a seat because of the bailouts.  They will, however, get millions in campaign contributions from Wall Street.  Why then would they harm Wall Street, when you won't do anything to punish your Congressman or Congresswoman?

And, yes, that means you.  I love it when a person says, "I hate stupid people."  Everyone in the room nods - as if none of them are among the stupid.  Eventually you need to ask yourself, "Am I the idiot who won't change my vote?" 

If everyone voted against his or her incumbent, do you think there'd be another bailout?  Of course there wouldn't be.  Politicians would get the message.  Their interests would aligned with voters'.

Politicians have gotten the message.  You'll scream and rant, but you won't change your vote.  You have been brainwashed into partisan subservience. 

None of you will change your votes.  Few of you will even look at the facts.  The corruption is bipartisan.

Let's all just pretend that Barack Obama did not receive $1 million from Goldman Sachs.  Let's pretend that the Democrats did not receive more Wall Street money than the Republicans.  Let's all ignore the GOP's failure to capitalize on the populist rage.  Gee, could it be that the GOP hasn't killed the Democrats on Wall Street issues because the GOP is the party of Wall Street, too?  Nah.  Impossible!  There must be some deep strategy in not mercilessly going after Democrats, and reminding everyone that Goldman Sachs owns Barack Obama.  

If I ran the GOP, I'd run this ad for Christmas: [A Christmas tree with no presents underneath it; a disappointed child, who hugs his father.  Narrator says, "His father lost his job when the factory closed."  The child then hugs his father, who has wet eyes but is too salt of the Earth to cry: "It's not your fault, dad."  Juxtapose newspaper headlines announcing record Bonuses for Wall Street.  Announcer says, "Goldman Sachs was Barack Obama's number one source of private-sector campaign contributions.  Obama thanked them: Merry Christmas, Wall Street."  Insert smiling picture of Barack Obama.]  That ad won't run, because the GOP is controlled by Wall Street, too.

We'll all just keep doing what we've been doing.  When nothing changes, we'll blame The System.  We'll treat reform as something too complicated.  We'll do anything except accept responsibility for our votes.

When the United States collapses - despite our cultural narcissism, we are not greater than Rome, and Rome fell - it will be because of us.  That means you, me, and everyone other American who refused to demand change.

Will you change your vote? 

"This Time is Different: Eight Centuries of Financial Folly"

As we live in a culture of narcissism, few realize when we are re in a bubble.  Sure, there have been bubbles in most every other country; and all throughout history.  But we are special.  I am a special.  I would never get caught in a bubble.  Well, of course, this time wasn't different.

Oh, but the recession/depression is over, right?  Even though Japan lost a decade, and the Great Depression lasted years.  We are special.  This time is different.  Narcissism.  

The theme is explored in This Time is Different: Eight Centuries of Financial Folly.  Fantastic radio interview here.  

Book here: 

Psychopaths Can't See Your Fear

From the latest issue of Scientific American Mind:  

Marsh relayed a chilling anecdote about a colleague of hers, University College London psychologist Essi Viding, who was going through a task with a psychopathic murderer in which a series of faces with different emotional expressions were laid out before the woman. When the murderer saw the picture of the fearful face, she scratched her head and said: “I don’t know what that expression is called, but I know it’s what people look like right before I stab them.”

 "The problem with psychopaths: a fearful face doesn't deter them."

Bear Stearns and Dunning-Kruger

Some guys at Bear Stearns ran a hedge fund.  They bet that subprime mortgages would pay off big time.  During the bubble, they were right.  They and their investors made a lot of money.  

Last year everything changed.  The market started tanking.  How did the hedge fund managers respond?

They sent each other some e-mails: "I think the subprime market is completely collapsing."  Because the hedge fund managers didn't immediately pull out of the market, federal prosecutors indicted them for fraud.  Anyone who sent those e-mails must have intended to cheat investors!

The prosecution is collapsing:

As we’ve written before, only two Wall Street executives have been charged with securities fraud stemming from the credit crisis. The two, former Bear Stearns execs, Ralph Cioffi and Matthew Tannin (pictured), are currently on trial now, in Brooklyn federal court....

So what’s happened? According to Slater, government witnesses keep coming unleashed, providing testimony that seems if not exculpatory, at least helpful to the defense. As Slater puts it: “a case built on provocative e-mail excerpts, bereft of context, can teeter when witnesses appear in court to provide a backdrop, for example, or the surrounding context of a seemingly damning e-mail message excerpt is read before a jury.”

Gee; you think?  Who here has never written an e-mail saying something that wasn't a full representation of your beliefs?  Who has never written, "This is an impossible case," before winning the case?   

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You know who lacks doubt?  Stupid people, that's whom.  Yes, really.  This stuff has been studied, and the answer is that the stupider you are, the more confident you are:

The Dunning–Kruger effect is an example of cognitive bias in which "people reach erroneous conclusions and make unfortunate choices but their incompetence robs them of the metacognitive ability to realize it."  The unskilled therefore suffer from illusory superiority, rating their own ability as above average, much higher than actuality; by contrast the highly skilled underrate their abilities, suffering from illusory inferiority.

When it seems like the entire stock market is going to go to zero, who wouldn't have doubts about her hedge fund?  Stupid people wouldn't.  They'd be too stupid to have doubts.  That's the curse of humanity.  The smarter you are, the less confident you are.  Stupid people elbow their way into leadership roles while the smartest people in the room sit quietly and in self-doubt.

In fact, try it: Talk to some lawyers about their cases.  The dumb ones only have fantastic cases.  They are surely going to win the upcoming motion, trial, or appeal.  When possible, avoid working with such people.  There will be immediate IQ and competency barriers that usually aren't worth the effort to break down.  There are few things more frustrating than a stupid person who considers himself brilliant.  Your game suffers when you suffer fools.

At some point a lawyer must put aside doubts.  Live in denial.  You're the man, 'G.  Law is performance art.  Yet the dumbest lawyers never seem to have any doubts.  The smartest lawyers, by contrast, agonize. 

Do you think that the Department of Justice lawyers who are prosecuting the Bear Stearns case are agonizers?

Narcissism

Probably most human behavior would not be surprising if a person understood: social classes; sociopathy; and especially narcissism.  Humans really can be stereotyped.  People are interesting, persons are boring. 

A great place to start is: Narcissism: Denial of the True Self (here). The book's cover is purple, and indicates that an M.D. wrote it - either of which should disqualify it from purchase.  It's good, if you think of it like The Sociopath Next Door - an introduction to the issues and psychopathology.  Once you're done with Narcissism, check out The Culture of Narcissism: American Life in an Age of Diminishing Expectations (here).  

The Culture of Narcissism was first published in 1979.  Three decades have not altered the themes.  Books like The Culture of Narcissism reminds one why it's pointless to watch "the news."  Most news is transitory.  Would anyone who has read Extraordinary Popular Delusions and The Madness of Crowds be surprised to learn about the housing bubble?  Tulips or houses; bubbles are bubbles.  Would anyone who has read Extraordinary Popular Delusions (here) be surprised to learn that we are currently in a higher education bubble; or that we're still in a housing bubble?  No.  

But books take a long time to read.  If it's a good book, closing the covers reminds you that you're now ignorant of 99% of a subject.  And if you only know 1% about something after reading a book: What does that say about your fluency in everything else?  

Reading headlines, though, makes you feel like an informed citizen.  "Did you see the news today?!"  No.  Should I have?

Reading books makes you question everything that a lifetime of headlines have indoctrinated you to believe.  It's better to feel informed than have the ignorance of your true self revealed.  Indeed, that's the curse of narcissism.  

Lacking a true self, you construct the Informed (Wo)Man.  In reality, you're empty.  You know nothing.  You have no wisdom or knowledge.  Reading news is an easy way to protect yourself: How dare you?!  I know stuff!

Of course, learning stuff is a process of manipulation.  Protecting your empty self allows mass media to create an additional self - the Easily Manipulated Consumer.  No.  Not me.  I choose to buy this new car.  That's what they want you to think.

"Because everything I was ever told was a lie..."

Alana Joblin Ain: A Narcissist Joins a Co-op

But I'm special.  How dare the collective treat me like that.  A sign of the times (and of the Times).  A question for those of you made it through all three pages of whining (good reading, actually, when you view it as a narcissist's diary): Did Ms. Ain return to the farmer's market to pay her $4 debt?

"The Last Psychiatrist"

Amazing blog.

Smartest Thing Heard Today

"Most bands sing about what people want to feel.  Pink Floyd sings about what people really feel."

Henry Paulson, the Bobolink Foundation, and Goldman Sachs

Before Henry Paulson become Secretary of the Treasury, he was required by law to sell all of his shares in Goldman Sachs.  He was allowed to sell all of his shares of Goldman Sachs stock tax-free.  Thus, by becoming Secretary of the Treasure, he was paid over $200 million dollars.  Yet it seems that Paulson did not divest himself of all of his Goldman holdings.

It seems, though, that Paulson held millions in Goldman-Sachs-controlled investment funds.  He also held stock in the same companies that his every move as Treasury Secretary would impact.

Paulson, like most rich people, started a family foundation that allows him to donate money in exchange for influence and status.  He put over $100,000,000 into a family foundation, which he called the Bobolink Foundation.

I've uploaded the Form 990 for the Bobolink Foundation here.  Read pages 18-21.  According to the tax records, as of March 31, 2008, the Bobolink Foundation held $13 million Goldman Sachs investment funds.  What would have happened to the value of those funds had Goldman Sachs - like Lehman Brothers - gone bankrupt?  

The Bobolink Foundation also held shares in other banks:

• JP Morgan
• Merrill Lynch
• Morgan Stanely
• The Bank of NY Mellon Corp

Bobolink Foundation was also a major bondholder in several banks.

What would have happened to the share prices of those companies had Paulson not bailed out banks with taxpayer money?   What would have happened to bond values?  What would have happened to Paulson's $100 million family foundation if we taxpayers hadn't been required to bail out Wall Street?

William Welch II is Still a Federal Prosecutor

Remember the laundry list of prosecutorial abuses in the Ted Stevens prosecution?  If not, click here and start scrolling.  William Welch's prosecutor's misconduct was so outrageous that U.S. District Judge Emmet Sullivan initiated contempt proceedings against him.  What has happened to Welch?

Mike Scarcella is reporting that "Welch is taking a post as a prosecutor in Springfield, Mass., where he spent much of his career []."

Is that how the Department of Justice punishes prosecutorial misconduct?  By keeping the unethical prosecutors on the payroll?  By moving the unethical prosecutors to another jurisdiction?  

It seems that the Department of Justice has no respect for the law - at least when it's asked to apply the law to unethical prosecutors.  

Indeed, Assistant Attorney General Lanny Breuer praised Welch: 

Breuer called Welch an "extremely smart and thoughtful lawyer. I think he's a dedicated public servant who's devoted his entire professional life to serving the American people."  The Public Integrity Section, Breuer said, is "one of the greatest jewels" of the criminal division. He said he wants to find a "great leader" through a national search. "Bill's shoes will be hard to fill," Breuer said.

Breuer, incidentally, is resisting efforts to reform the Department of Justice.  

How to Frame a Man

Any police officer who wants to frame a person for child rape without facing any consequences should read this post.  One-sentence summary: Lie well enough, and you'll get a pass.

"Sword and Shield, Third Edition: A Practical Approach to Section 1983 Litigation"

Amazon has weird pricing algorithms.  For whatever reason, "Sword and Shield, Third Edition: A Practical Approach to Section 1983 Litigation," is "on sale" for under eighty bucks.  It's the '07 edition, and the law of Section 1983 often changes.  I use the same edition, though, as it's valuable for issue spotting and harvesting cases.  Anyhow, it's a good deal on a good volume. 

Understanding the Bailouts

News that Henry Paulson held a secret meeting with Goldman Sachs in Russia is not surprising or shocking.  It's banal.  The only surprising aspect is that the public learned about the meeting.  

If you want to have a sage-like understanding of the United States, you need only this mantra: "The system is lawless."  Once you view the system as lawless, everything that's occurred and is occurring makes sense.  

Only when you cling onto you a superstitious belief that we live in a nation of laws, do the bailouts or secret meetings in Russia seem confusing.  Only when you think that there is such a thing as The Law, when Wall Street is involved, does a secret meeting between Goldman Sachs and Henry Paulson shock, awe, and surprise.

Hank Paulson's Secret Meeting with Goldman Sachs

A year ago, you'd have called me a conspiracy theorist if I suggested that the Secretary of the Treasury - the man responsible for doling out $700 billion - was having secret meetings in Russia with Goldman Sachs.  Some of you should start becoming less dismissive of "conspiracy theories."  This one is true: 

When Paulson learned that Goldman’s board would be in Moscow at the same time as him, he had [Treasury chief of staff] Jim Wilkinson organize a meeting with them. Nothing formal, purely social — for old times’ sake.

 For fuck’s sake! Wilkinson thought. He and Treasury had had enough trouble trying to fend off all the Goldman Sachs conspiracy theories constantly being bandied about in Washington and on Wall Street. A private meeting with its board? In Moscow?

For the nearly two years that Paulson had been Treasury secretary he had not met privately with the board of any company, except for briefly dropping by a cocktail party that Larry Fink’s BlackRock was holding for its directors at the Emirates Palace Hotel in Abu Dhabi in June.

Anxious about the prospect of such a meeting, Wilkinson called to get approval from Treasury’s general counsel. Bob Hoyt, who wasn’t enamored of the “optics” of such a meeting, said that as long as it remained a “social event,” it wouldn’t run afoul of the ethics guidelines.

Still, Wilkinson had told [Goldman chief of staff John] Rogers, “Let’s keep this quiet,” as the two coordinated the details. They agreed that Goldman’s directors would join him in his hotel suite following their dinner with Gorbachev. Paulson would not record the “social event” on his official calendar…

“Come on in,” a buoyant Paulson said as he greeted everyone, shaking hands and giving bear hugs to some.

For the next hour, Paulson regaled his old friends with stories about his time in Treasury and his prognostications about the economy. They questioned him about the possibility of another bank blowing up, like Lehman, and he talked about the need for the government to have the power to wind down troubled firms, offering a preview of his upcoming speech.

Felix Salmon has more details.

McSherry v. City of Long Beach

What is going on in the Ninth Circuit Court of Appeals?  On March 30, 2009, in McSherry v. City of Long Beach, 560 F.3d 1125 (9th Cir. 2009) (here) (media coverage here), a unanimous three-judge panel held that a lawsuit alleging a fabrication of evidence claim against the Long Beach Police Department could go forward.  The original McSherry opinion was 12 pages. 

Today, in a 38-page opinion, the same panel withdrew the earlier - published opinion - issuing a superseding opinion.  In today's opinion, the panel dismissed the wrongfully convicted man's lawsuit.

There is substantial commentary about McSherry at Section 1983 Blog.  Click here for coverage.  

Aleynikov Case Continued Again

The Department of Justice is attempting to distract us through boredom: 

ORDER TO CONTINUE IN THE INTEREST OF JUSTICE as to Sergey Aleynikov re: 6 Order to Continue - Interest of Justice. Time excluded from 10/16/09 until 11/16/09. Follows oral order of 10/16/09. (Signed by Magistrate Judge Douglas F. Eaton on 10/16/09)(aba) (Entered: 10/19/2009)

Let's take a quick look at the case chronology.  Sergey Aleynikov was arrested less than 48 hours after Goldman Sachs called the FBI on him.  Goldman Sachs called the FBI on Aleynikov on July 1st.  On July 3, 2009, Aleynikov was in custody.    At a bail hearing, AUSA Joseph Facciponti said: "[B]ecause of the way this software interfaces with the various markets and exchanges, the bank has raised a possibility that there is a danger that somebody who knew how to use this program could use it to manipulate markets in unfair ways."

Since July 4th, DOJ has done nothing with the case.  They haven't even indicted Aleynikov.  Instead, they've kept asking for continuances.  (Here's the docket sheet.)

During Friday's hearing, DOJ received another continuance.  This is the fourth continuance in the case.  So what is going on?  What's the realpolitik of the case?

The United States Attorney's Office made a huge mistake in arresting Aleynikov.  They jumped too quickly for Goldman Sachs.  DOJ wants to dismiss this case - to walk away.  They can't, however, as the Aleynikov prosecution has received too much media attention.

Thus, DOJ wants Aleynikov to cop a plea to something.  Anything.  Please.  

Aleynikov's lawyer is too smart to fall for that.  She knows that DOJ has no case.  She is likely insisting that DOJ indict Aleynikov, or dismiss the criminal case against him outright.

In the meantime, AUSA Joseph Facciponti will keep continuing the case.  He hopes to bore us to death.  AUSA Facciponti misunderstands the legal blogosphere.  Legal bloggers obsess over a case.  We're not like other media - with writers forced to move on to the next story.  Indeed, we didn't even cover "balloon boy."   

Those of us following Aleynikov will dutifully check for case updates.  We're not going anywhere.

Our prior coverage of the Aleynikov case is available here.