First Monday in October

Welcome Back!

It’s the First Monday in October but we only have 8 Justices.  That may change by Friday or we may be starting a new confirmation process.  Too hard to predict with so much happening.

The first case that was heard today dealt with endangered frogs, and two Justices decided to make “drain the swamp” references.  Here’s The NY Times coverage of the argument:

There was no empty chair to mark the absence of a ninth justice, and no mention of the confirmation fight. Instead, Chief Justice John G. Roberts Jr. started the session with a nod toward continuity, noting that it was the 25th anniversary of Justice Ruth Bader Ginsburg’s investiture. “We all look forward to sharing many more years with you in our common calling,” the chief justice said.

Justice Ginsburg, who is 85, smiled and nodded.

Soon afterward, the eight justices turned their attention to the fate of the dusky gopher frog. They discussed draining the swamp, but not as a figure of speech.

The species is in danger of extinction, and the only known remaining frogs live in the De Soto National Forest in Mississippi. In 2012, the federal government came up with a backup plan, designating private land in Louisiana as “critical habitat” for the frogs’ survival. None of the frogs live there now, and the designation could limit the ability of the owners to develop the land, by one account potentially costing them about $33 million.

While we wait for a full Court, here’s your moment of zen from SNL:

Next up, prosecutor Rachel Mitchell. #SNLPremiere pic.twitter.com/13uZEO29Mr

— Saturday Night Live - SNL (@nbcsnl) September 30, 2018

Should Kavanaugh be confirmed if we don’t know who is telling the truth?

That’s the title of the final installment of my trilogy in The Hill on the Kavanaugh hearings.

From the intro:

After Christine Blasey Ford’s testimony, there seemed to be a consensus — including even Republicans — that Ford was credible and that Brett Kavanaugh’s confirmation was in serious trouble.

She was respectful, soft-spoken, calm, and tried to be helpful. She did not interrupt anyone and did not argue with the Senators. Republicans were hoping that she would come off as unsure, politically driven, or even unstable. She came across just the opposite. She was “100 percent sure” it was Kavanaugh, she never mentioned politics, and she came across as likable. President Trump was reportedly upset that Republicans were caught flat-footed by just how credible Ford was.

Then came Kavanaugh. He strode in holding his wife’s hand. She and his mother sat behind him as he began his opening remarks. His demeanor was the opposite of Ford’s — angry, indignant, and emotional. He interrupted the Senators and argued with them. Although very different than Ford, his demeanor was also effective and seemed to reinvigorate his supporters, who during the lunch break had been feeling defeated. He forcefully said again and again that he was 100 percent innocent. Energized Republicans took over the questioning from the prosecutor they had planned to let run the proceeding. The nomination, on life support after Ford’s testimony, seemed to be very much alive.

But what now? It seems we are in no better spot than when we started Thursday morning in terms of figuring out what happened 36 years ago: Those who believed Ford still believed Ford, and those who believed Kavanaugh still believed him.

“Five simple rules for judging Kavanaugh and his accusers“

That’s the title of my latest article in The Hill.  Most of it is an explanation of how Senators who haven’t made up their minds (are there any left?) should use the pattern jury instructions on credibility of witnesses as a guide when listening to the witnesses on Thursday.  Here’s the intro:

The news cycle on the pending Brett Kavanaugh nomination is minute to minute. Despite the many moving parts, Kavanaugh has adamantly denied the accusations even as they continue to come in. Although some Senators have locked themselves into a position of either believing Kavanaugh or of believing his accusers, there are still some who want to see how the hearing plays out. For those open-minded Senators and for those of you who haven't made up your mind yet, below are five simple guidelines to help you judge the credibility of the witnesses who testify.  

Here is one of the questions:

Did the witness have the opportunity and ability to accurately observe the things he or she testified about?  Here, Republicans will question Ramirez about how much she had to drink and whether she can accurately say what really happened. As for Ford, Republicans will also question her about how much she had to drink at the party where she admits that everyone had at least one beer. Regarding Kavanaugh, there are reports that he was a heavy drinker in high school and college, and Ford says that he was "stumbling drunk" at the party.  Democrats are sure to question him about these claims.  

Will the Kavanaugh hearings go forward this Thursday and can they be fair?

The news is happening so fast that it's hard to keep track.

We have Ronan Farrow, Michael Avenatti, new accusers, 30 year old calendars, yearbook entries, and on an on.

Professor Alan Dershowitz posted an article on how the hearings could be fair before a lot of this recent news.   Here is the intro and Rule #1 of 6:

It’s not surprising that each side of the Ford/Kavanaugh he said/she said dispute is seeking different procedures. This is an adversarial high-stakes confrontation between a male Supreme Court justice nominee and his female accuser. Reasonable people could disagree about the appropriate procedural steps, but there are basic rules that must be followed for hearings of this kind to be fair.

Rule 1: No one should presume that either party is lying or telling the truth. There is no gender-based gene for truth telling. Some women tell the truth; some women lie. Some men tell the truth; some men lie. Without hearing any evidence under oath, and subject to cross-examination, no reasonable person should declare psychology professor Christine Blasey Ford to be a victim or federal judge Brett Kavanaugh to be a perpetrator. Nor should anybody declare the opposite. The issue is an evidentiary one and evidence must be heard and subject to rigorous cross-examination, preferably by an experienced and sensitive female litigator.

"[W]e’re going to have to law the heck out of it."

That's Judge Rosenbaum in this opinion, taking off on a reference to The Martian:

There’s no easy way around it. We’re just going to have to science the heck out of this case.* And when we’re done with that, we’re going to have to law the heck out of it.
Defendant-Appellant Jason Alexander Phifer was convicted of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). The substance involved was ethylone.
But as it turns out, ethylone constitutes a controlled substance—and Phifer was therefore convicted of an existing crime—only if ethylone is a “positional isomer” of butylone. Phifer says it’s not. To support his position, he urges that “positional isomer” means what he characterizes as the scientific term of art. The Drug Enforcement Administration (“DEA”) disagrees and contends that its regulatory definition of “positional isomer” governs, and even if it doesn’t, ethylone is a positional isomer of butylone under other scientific definitions. If the DEA is right that the regulatory definition necessarily governs, Phifer’s conviction stands. But if not, we must set aside Phifer’s conviction.
After careful consideration and a crash course in organic chemistry, we conclude that the DEA’s regulatory definition of “positional isomer” does not unambiguously apply to the use of that term as it pertains to butylone and ethylone in this case. We therefore vacate Phifer’s conviction and remand for further proceedings consistent with this opinion.

*We paraphrase Matt Damon’s character, Mark Watney, from The Martian (2015). See The Martian Quotes, IMDb, https://www.imdb.com/title/tt3659388/quotes (last visited Sept. 20, 2018). The movie, in turn, was based on the book of the same name by Andy Weir.

The opinion takes a dive into chemistry and even has pictures.

My piece in The Hill on the differences between the Kavanaugh confirmation hearings and the criminal justice system

Here's the introduction with the first two differences. Please click here to read the whole thing:

Christine Blasey Ford has accused Brett Kavanaugh of serious crimes. Let me start off by saying that if these accusations are true, then Kavanaugh should not be a Supreme Court Justice or a judge of any kind. The Senate proposes to have hearings next week in order to consider whether these allegations are true. As these hearings proceed, though, it is important to remember that they are not to determine whether Kavanaugh will be charged criminally. Multiple factors preclude a criminal prosecution here:

The lack of corroboration. It goes without saying that a criminal charge of attempted rape or sexual assault will ruin a person’s life. For this reason, most prosecutors rightfully do not bring these sorts of cases without some sort of corroboration. For example, in the Bill Cosby prosecution, there was corroboration, from Cosby’s own statements to the physical evidence to the sheer number of women who made the same claims. As of this writing, we are not aware of any corroborating evidence to support Ford’s claims. There is no physical evidence. There is no admission to any portion of Ford’s claims by Kavanaugh. There are no similar claims by other women. There is no contemporaneous complaint. Without such corroboration, it is hard to imagine that a prosecutor would bring this case.

The claims are very old. Most states have statutes of limitations for attempted rape and sexual assault. This means that prosecutors can’t prosecute for these crimes after a certain amount of time has elapsed. There are important reasons to have these limitations on prosecutions. For starters, evidence — including memory — gets stale after time. In this case, more than 30 years have passed since the alleged act took place. Therefore, Kavanaugh could not be prosecuted in many states. Maryland, the state where the alleged attack took place, does not have a limitations period for any felony sexual offense. As a practical matter though, the passage of this much time would make such a prosecution almost impossible.

I would appreciate any feedback on the article.

Ben Greenberg stays on as 1st Assistant

Chief Judge Moore swore in Ariana Fajardo Orshan on Monday. In her remarks, she thanked Ben Greenberg and said he would be staying on as First Assistant.

In other news, there is talk about letting Dr. Ford’s lawyer (Debra Katz) question Judge Kavanaugh at the hearings next week before the Senators get their chance to grandstand ask questions. It’s an interesting proposal. I wonder whether Judge Kavanaugh’s lawyer (Beth Wilkinson) would get to ask Ford questions as well.

I like the idea of having the lawyers ask questions instead of the Senators, who don’t know how to ask real cross-like questions and are not really interested in getting out what happened as opposed to making different political points.

If you were able to cross either Ford or Kavanaugh, what questions would you ask?

Here’s Professor Althouse on what she would ask Kavanaugh:

But the bigger problem is that Kavanaugh can only say he has no memory of something. And Kavanaugh's accuser, Christine Blasey Ford, is telling us that he was very drunk, so maybe a failure to remember could be attributed to drinking. He could honestly testify to no memory of the incident, but still need to establish that he didn't have a memory blanked out by alcohol use. Now, since we're not going to hear of the specific time and place of the incident, Kavanaugh will need to say that he never, in that entire period, experienced alcohol-induced amnesia. (And what if he can only say I have no memory of losing my memory?!).

If Kavanaugh denies ever experiencing alcohol-induced amnesia during that period, anyone who hung out with him back then is a potential source of testimony that they saw him drunk and, especially damning, they had reason to know that he couldn't remember what he had done. Is there anybody who knew Kavanaugh in high school who has tales of things Kavanaugh couldn't remember later? Did Kavanaugh ever have a discussion with anyone about alcohol-induced amnesia?

Once we get this far, you can see that whether Christine Blasey Ford's story is accurate or not, Monday's hearing can be used to trap Kavanaugh in lies, and then it's not a possible attempted rape from 30 years ago but perjury in the present.

Remember, the other person in the room, according to Ford, was Mark Judge, and Mark Judge seems inclined to corroborate Kavanaugh, but Judge is on record as a having been "completely annihilated" in high school.

Some interesting portions of the Manafort plea agreement

Here is the entire agreement.

Some interesting parts:

1. The Government believes that the sentencing guidelines yield a sentence of 210-262 months, even after acceptance of responsibility. That means that if Manafort had gone to trial and lost, the prosecution would have suggested that the guidelines were higher than 20 years for the 69-year old.

2. The agreement limits the sentence to a maximum of 10 years. If he successfully cooperates, that sentence will be greatly reduced. If he gets 40-50% cooperation credit, he wil be looking at 5-6 years. If he can convince the Virginia judge to give him a similar sentence and those sentences are run concurrent, he would be released in the 4 year range. He would get credit for the time he has been in.

3. The Special Counsel agreed not to bring any other charges. But this does not bind any state prosecutors (should there eventually be a pardon).

4. The guidelines as set forth in the agreement say that the laundered funds were in excess of $25 million, it involved sophisticated means, he led 5 or more criminal participants, and that he obstructed justice. Interestingly, Manafort carved out the ability to argue that he was not the leader of 5 or more criminal participants.

5. Manafort agreed that he would not profit off of this case through books, speeches, and the like. (As an aside, there is a debate in the law about whether this provision is enforceable).