#it's only fair that i document them in a form that does their complexity justice

[pidgefudge]

i'm full of disjointed poetry fragments that don't have beginnings or middles or ends and aren't very well written but nevertheless they are records of the many faces of my rapidly-shifting sense of self

[dwellordream]

“...We can dispense with the first question fairly quickly: is violence the supreme authority from which all other authority derives in actual societies? After all, we keep encountering historical models predicated on that premise and they keep being pretty bad, inaccurate history. But even shifting from those specific examples to a more general appraisal, the answer is pretty clearly no. Reading almost any social history of actual historical societies reveal complex webs of authority, some of which rely on violence and most of which don’t. Trying to reduce all forms of authority in a society to violence or the threat of violence is a ‘boy’s sociology,’ unfit for serious adults.

This is true even in historical societies that glorified war! Taking, for instance, medieval mounted warrior-aristocrats (read: knights), we find a far more complex set of values and social bonds. Military excellence was a key value among the medieval knightly aristocracy, but so was Christian religious belief and observance, so were expectations about courtly conduct, and so were bonds between family and oath-bound aristocrats. In short there were many forms of authority beyond violence even among military aristocrats. Consequently individuals could be – and often were! – lionized for exceptional success in these other domains, often even when their military performance was at best lackluster.

Roman political speech, meanwhile, is full of words to express authority without violence. Most obviously is the word auctoritas, from which we get authority. J.E. Lendon (in Empire of Honor: The Art of Government in the Roman World (1997)), expresses the complex interaction whereby the past performance of virtus (‘strength, worth, bravery, excellence, skill, capacity,’ which might be military, but it might also by virtus demonstrated in civilian fields like speaking, writing, court-room excellence, etc) produced honor which in turn invested an individual with dignitas (‘worth, merit’), a legitimate claim to certain forms of deferential behavior from others (including peers; two individuals both with dignitas might owe mutual deference to each other).

Such an individual, when acting or especially speaking was said to have gravitas (‘weight’), an effort by the Romans to describe the feeling of emotional pressure that the dignitas of such a person demanded; a person speaking who had dignitas must be listened to seriously and respected, even if disagreed with in the end. An individual with tremendous honor might be described as having a super-charged dignitas such that not merely was some polite but serious deference, but active compliance, such was the force of their considerable honor; this was called auctoritas. As documented by Carlin Barton (in Roman Honor: Fire in the Bones (2001)), the Romans felt these weights keenly and have a robust language describing the emotional impact such feelings had.

Note that there is no necessary violence here. These things cannot be enforced through violence, they are emotional responses that the Romans report having (because their culture has conditioned them to have them) in the presence of individuals with dignitas. And such dignitas might also not be connected to violence. Cicero clearly at points in his career commanded such deference and he was at best an indifferent soldier. Instead, it was his excellence in speaking and his clear service to the Republic that commanded such respect. Other individuals might command particular auctoritas because of their role as priests, their reputation for piety or wisdom, or their history of service to the community. And of course beyond that were bonds of family, religion, social group, and so on.

...So while it is true that the state derives its power from violence (as in Mao’s famous quip that “Political power grows out of the barrel of a gun”), the state is not the only center of authority within a society. And indeed, even the state cannot run entirely on violence; this is the point that Hannah Arendt makes in the famous dichotomy of violence and power. In many cases, what Heinlein’s premise does is mistake violence for power, assuming that the ability to violently compel action is the same as the power to coordinate or encourage action without violence. But in fact, successful organizations (including, but not limited to, states) are possessed not of lots of violence but of lots of power, with much of that power rooted in norms, social assumptions, unstated social contracts and personal relationships that exist entirely outside of the realm of violence.

And so in both theory and practice, Heinlein’s premise fails to actually describe human societies of any complexity. There are no doubt gangs and robber-bands that have functioned entirely according to Heinlein’s premise (and presumably some very committed anarchists who might want such a society), but the very march of complex social institutions suggests that such organizations were quite routinely out-competed by societies with complex centers of authority that existed beyond violence, which enabled specialization (notably something Heinlein disapproves of generally, ‘specialization is for insects’) and thus superior performance both in war and in peace. Kings and empires that try to rule purely with force, without any attention paid to legitimacy or other forms of power (instead of violence) fail, and typically fail rapidly. As with almost any simple statement about complex societies, Heinlein’s premise is not merely simple but simplistic and so fails.

...The Cult of the Badass, as expressed here, lives in what we might call the “cult of tradition,” “dreaming of a revelation received at the dawn of human history” about a certain set of warrior values which were both expressed by famous historical warriors and which now provide a blueprint for life. This point of explicit in Pressfield’s set of videos, and implicit in the Fremen Mirage’s strong men/hard times model of history. This “cult of tradition” is quite selective, of course; Pressfield makes functionally no effort to engage with actual ancient value systems in a sustained way, limiting himself mostly to ‘badass’ aphorisms from Plutarch (himself hardly the most intellectually sophisticated or morally challenging author in the classical canon). It is tradition as imagined dimly in the present, not tradition as uncovered by careful historical research.

Consequently, the cult of the badass must engage in “the rejection of modernism;” this is no accident because the cult of the badass is an “appeal to a frustrated […] class” – this too is explicit in that Pressfield frames his ideology was a way for individuals who are held back or stagnated to unleash their true potential and overcome their limits, through the explicit rejection of modern values and the embrace of what are at least presented as traditional, even timeless values. That sort of appeal is also explicit in a lot of the fitness marketing that trades on the cult of the badass (and it seems notable that Pressfield himself lists “anybody that is heavily into fitness” first among his people living out the ‘warrior archetype.’), calling on people to work out like the Spartans. Consequently, it is a “cult of action for action’s sake” often focused on doing rather than asking what should be done (it is striking that Pressfield, despite nearly all of his video examples coming from the Greek and Roman world, engages not at all with the extensive Greek and Roman philosophies of justice).

Instead, this ideology, because it positions the capacity for violence as the highest human value, presents the thesis that “life is lived for struggle.” Pressfield reframes all of life’s struggles, including struggles of motivation and self-discipline, in terms of violence, in terms of a war against the ‘inner enemy,’ and consequently “life is permanent warfare.” And I think this goes a long way to explaining the obsession of this philosophy on warrior elites, because there is an inherent element of “popular elitism” in the cult of the badass, an insistence that at least it should be the case that “everybody is educated to become a hero” and thus not only develop the capacity for violence but also orient themselves towards “heroic death, advertised as the best reward for a heroic life.”

Thus the outsized influence of Thermopylae, a ‘heroic’ Greek defeat over other battles; Pressfield, again, is explicit on this point that it is at Thermopylae in particular that the Spartan warrior ethic is best and most perfectly displayed. If these are held to be the highest ideals, then anyone who falls short of them or refuses to engage with them must be weak, perhaps even “so weak as to need and deserve a ruler” (a point that often emerges in the sheep/wolves/sheepdog metaphor used by many ‘warrior cops,’ an ideology Pressfield explicitly appeals to, lumping in law enforcement as exemplars of ‘warrior’ ideology).

And of course, as is I think obvious in these readings, there is an undercurrent of anxiety about masculinity here. It is, after all, strong men in the strong men/hard times trope (and that is no accident as the trope is deeply connected to concerns about masculinity throughout its history). ...While Pressfield insists in some of his videos that his life philosophy is equally applicable to men or women, it is hard not to notice that his historical examples of warriors are all men (no Molly Pitcher, no Deborah, no Hua Mulan, etc. Not even Empress “Imperial Purple is the best burial shroud” Theodora; he does discuss the legend of the Amazons with rather less historical rigor than I might like). Where actual historical women fit in to his narrative, it is mostly as the mothers and nurturers of warrior men. While Pressfield does his best to paper over this (and to be fair, I think he is sincere in trying to present his ideology as non-gender-specific, unaware of the ways in which the broader framework of that ideology is aggressively unwelcoming to women), I think it is fair to say this is an ideology created largely by and for men, which values a hypermasculine ideal – we might even say “machismo.”

And by now readers are beginning to wonder where all of these little quotations are coming from (apart from the bit from Theodora). But first I want to note that we have a name for an ideology that fits these main points – where “life is permanent warfare,” “lived for struggle”, such that “everyone is educated to become a hero” to participate in a “cult of action for action’s sake” in a “cult of tradition” seated in a “rejection of modernism.”

And it’s fascism. Because all of those little quotes are from Umberto Eco’s famous essay “Ur-Fascism” (1995) which presented one of the most compelling classifications of the foundational DNA that all of the various, disparate forms of fascism share in common. ...Now I think it is important to back up here and be fair to Steven Pressfield. I don’t think Steven Pressfield is a fascist; ...What I do think is that the ideology that Pressfield is advancing has fascist tendencies (that he is, I suspect, unaware of, having not interrogated the nature of Spartan society as carefully as he might have). The ideology he is advancing shares most of the DNA of Ur-Fascism and it is not hard to see how the remaining handful of elements might easily be bolted on to this framework.

It is also, in a way that Pressfield never really addresses (and I suspect has never really realized), an ideology which is fundamentally at odds with the democratic values he also holds. If only some people are ‘warriors’ and developing that warrior capacity towards violence it the primary or principle virtue, it follows – and literally any Spartan could have and would have told Pressfield this – that everyone else is merely fit to be ruled. Sparta’s brutal oppression was not incidental to its ideology or social structure (as we’ve discussed!) but essential to it. As Eco points out (in his 10th point), it does no good to suggest that everyone ought to be equally a warrior; this is after all a cult of violence for its own sake and in violence there must be winners and losers. No complex society is composed only of warriors; for there to be kings and knights, there must be serfs too.

...Put more bluntly, the ideology of the Cult of the Badass is so easily falsifiable that the act of disagreement itself, rather than the content of arguments, must be rejected). The rejection of disagreement in turn demands the fear of difference because the ideology requires consensus and an absence of criticism. And once the ideology fails – and it will, because it is disconnected from the real world – conspiratorialism is the natural response for true believers unwilling to reject the ideology. If your ideology tells you that you are superior, and yet you do not produce superior results, what recourse is there but to conspiracy? As Eco memorably quips, “Fascist governments are condemned to lose wars because they are constitutionally incapable of objectively evaluating the force of the enemy” which is also, by the by, why so many authoritarian armies, theoretically filled with supposedly highly motivated, ultra-badass super-soldiers, tend nevertheless to lose more than they win. We saw this with Sparta; the very ideology of the place made them bad strategists, in precisely the ways that Eco suggests it would.

In short, the ideology of the Cult of the Badass – which is easy to see in any number of modern films, books and TV (and occasionally read into films that explicitly reject it by their viewers; I suspect everyone of at least a certain age has known that guy who watched Fight Club and then wanted, entirely unironically, to start his own fight club) – is a gateway to authoritarian thinking which, contrary to the name, is based in violence rather than authority. The supremacy of action, of violence, of the warrior and his ‘ancient’ (but actually quite modern) values are the foundation stones on which fascist ideologies (and I’d argue, other non-fascist authoritarianisms, but that’s a debate for another day) are constructed.

And, as Eco notes, “The Ur-Fascist hero craves heroic death, advertised as the best reward for a heroic life. The Ur-Fascist hero is impatient to die. In his impatience, he more frequently sends other people to death.” This is not a good ideology. As I noted in the first post in this series, a free society has no need for warriors. Not among its soldiers, not among its police, not among its civilians. At times, a free people may need to become soldiers, or police officers, but always to return to being civilians again, either at the end of the day or at the end of the war.”

- Bret Devereaux, “The Universal Warrior, Part III: The Cult of the Badass.”

[rasoir-national]

This was bound to happen : I’m talking about immigration law

@ghostplantss i don't know v much about french immigration law would you tell me about it? i'm v curious?

Oh wow. First tea, and now this ? Either you are my secret Santa, or my enabler.

So let me tell you about the passion of my life, Immigration and refugee law, and the fuckery this country has made of it.

The way a city, community, country treats the “other” is one of the oldest legal questions in the History of Humanity. From Antique Greek cities to the Jus Gentium of the Roman Empire, laws concerning foreigners might be the first form of international law known to man. In many ways, it’s by acknowledging the existence of “others”, by giving and restricting their rights, that a social group both truly asserts itself as a “political community”, yet acknowledges the transcending quality of “humanity” of the outsider.

Nowadays, this question is as politically charged as ever : the way a country regards foreigners, welcomes them, rejects them, is one of the most interesting ways you can define the country, one of the ways the country sees itself. By the way we treat the one who is not “us”, we highlight which rights we consider to be inherent to humanity in and of itself, as well as which ones we consider intrinsically rooted in our identity as “citizen”.

And all this proud History, all this contemporary tension, makes Immigration law fascinating to FUCKING NO ONE.

Look, one thing you have to know about lawyers is how much they love intellectual wankery. A nicer way to put it would be to say lawyers love systems. And theory. And generalisation. And categorizing. They like to look at a set of rules and see a pattern, a logic, a paradigm. They like to be able to neatly present it in two titles, each divided in two subtitles, each divided in two sections, and repeat that until they run out of microsoft font points.

And Immigration law... It’s not that. It’s not that at all. It’s the opposite of that. It’s a law that’s almost entirely dictated by conjoncture, by what a government needs it to say, by whichever concept they’re going to twist then to suit their needs. Whatever few theoritical concepts Immigration law might have been based on have been destroyed by years of either haphazardous or plainly malignant reforms, often both.

And not only does that mean that this at this point is an intensely, punitively complex law, it has also become - if it hasn’t always been - illogical and incoherent. The only “logic” behind it anymore is how much it can be weaponized against its subjects - foreigners. Because that’s the only thing that politicians care about, and because lawyers and especially academics have pretty much given up on it, leaving the terrain free for the former. You have to realize, in terms of pure numbers, Immigration law is the most practiced law in the country. It represents almost a third of all disputes. Yet it is taught in NO university in France. Not a single one. There are no courses, no grad school, no thesis program about immigration law in all of France. There is no money in Immigration law : almost all involved subjects are destitute. There is no intellectual curiosity, because the discipline, from a theoretical point of view, is pretty uninteresting. There isn’t even public interest, because deceptively, the general public hears so much about immigration from either ignorant or ill-intentioned people, that getting through the complexity of the topic is immensely complicated and unrewarding.

Lawyers, for the most part, have deserted the topic for selfish reasons, despite the fact that this is perhaps where they were most needed to make sure fundamental rules were enforced, that politics didn’t come in the way of good justice. They abandoned the most vulnerable subjects of law to the whims of lawmakers and political interests. That’s unforgiveable.

So as a result, Immigration law today mostly resembles a cat-and-mouse game where the law sets up as many traps as possible for the immigrant to fall into, with dozens of obstacles to navigate to finally, finally be able to legally settle in a country you might be have been living in for several decades. There are specific stay rules for retirees. That’s a thing. Every rule is meant to exclude as many people as possible. As a result, immigrants must get increasingly creative or even downright shifty in order to qualify for a stay. And in turn, public opinion will yell and say they are manipulating the system - well, duh. We’ve made a system in which it’s impossible to win fair and square and then we criticize immigrants for trying to game it.

Let’s have just one example : demands of admission because of sickness. French law categorizes different reasons for an immigrant to be admitted to live on french soil for a little while : study, work, family matters, and health. France has a very good health system compared to the worldwide standard, so many people come here to receive treatment they might not be able to benefit from in their country of origin for various reasons. Some people already don’t think that’s a reason for welcoming them, but fuck those people. Anyway, there are many, many people who will ask for permission to stay on the grounds of an “invisible” illness : depression, PTSD, personality disorder... all of which are very difficult to prove. Before 2017, the prefect had to decide based on the opinion of a doctor from the regional authority after they’d met with the author of the request. But the administration quickly realized that doctors tend to have that pesky thing called deontology or even - perish the thought ! - empathy. So there was a reform, and now the way it works is the ill immigrant goes to a doctor who writes a report, then mails it to the person’s lawyer, who then mails it to a doctor that will do a second report based on that report, and will send that second report to a group of 3 doctors who, on the sole basis of that document, will advise the prefect on whether or not the person is ill, and whether or not they could have access to treatment in their country. And when I say advise, I mean they mail a form with boxes checked. That’s it. No text. So we have a prefect, who’s not a doctor, making a decision about the health situation of a person based on a box-based form filled by doctors who have never met the person, who themselves are judging based on the report of another doctor who has no met the person either, this last doctor writing based on the report of another doctor who might have met the person once. And all of this can take up to a year. That’s time during which the immigrant cannot work, or receive benefits. And then, if the prefect decides against letting the immigrant stay, then they have only 2 months to challenge that decision, otherwise after those 2 months have passed, they can be arrested, incarcerated and deported at any time.

So given all that, is it any wonder that immigrants tend to “discover” illness after illness and constantly ask for stays based on that ? This system is so random and unfair, that all you can really do is try and try again hoping something will eventually stick. So now you have people complaining that immigrants are faking mental illness in mass, causing prejudice to the “real” mentally ill immigrants. And yes, that’s the effect. But make no mistake : the cause is how difficult it is for an immigrant to have their illness acknowledged when it’s not something “extreme” enough to have you cross the border on a gurney. Because it’s not enough to google “availability of x medication in x country” to make sure the person can actually access treatment in their country of origin.

So that’s the hypocrisy infusing (haha, tea joke) the whole system. And on top of that, the procedure is getting more complicated with every reform : miss one deadline, fill out one form wrong, and you’re out. And please remember we’re dealing with people who for the vast majority do not speak french (the ONLY language allowed in administrative matters according to the Constitution) and know nothing of our administrative system. It’s up to the person’s lawyer to basically map out the life of each of their client. And because there is no money in immigration law - you only get paid in judicial aid from the state - there aren’t many immigration lawyers. You have to do this out of conviction, cuz you’re certainly not doing it for the money or career opportunities. In the practice I interned at last year, each lawyer would at all times manage on average 50 to 80 active cases. And let’s be clear, a lot of them are assholes, because lawyers in general tend to be assholes. But the work they do in downright heroic.

So that’s where I come in to fix it all, right ? Yeah, no. This entire system is fucked, and given what the world looks like right now, it might be for a while. I’m under no delusion that I can do anything to change that. My goal is to help the way I can : I want to become an administrative judge, the ones who are in charge of examining administrative decisions regarding immigrants. This type of challenge represents roughly 50% of the activity of any administrative tribunal : every chamber, no matter their specialty, has to do a little of it, otherwise the system is so backed up it would collapse. Some of those judges do amazing work, and are some of the most compassionate people I’ve ever met. Some of them are not. Most of them are plain bored by this type of claim, because they’re repetitive, not really technical from a legal standpoint and always depressing. And a handful of them have ties to the far-right and are there just to expel as many immigrants as possible. So yeah, if all goes well I’ll be a judge in a few years, and I’ll be one of the only ones who came to the job because of immigration law, not in spite of it. It’s not bragging on my part, it’s just a sad fact. Judges at the tribunal where I’ve worked had a schedule for who was supposed to be in charge of new immigration claims arriving, and some judges would hide from court reporters in order not to get attributed cases that arrived right before their shift was over. So yeah, if I can be a small drop in the bucket and be someone who actually looks at these cases with the explicit intent of finding a reason to approve the claim, that’ll be good enough for me. Because Immigration law, or at least what we’ve made of it, might not be “interesting” but it’s goddamn important, and people should pay attention to it.

[manggojooz]

Bona Fide (Prologue)

main pairing: Namjoon x Kyungsoo x reader

word count: approx. 2,500

genre: lawyer!au, drama, slice of life, romance 

summary: They say good and bad as though it is black and white, but through whose eyes do we see whether it is black or white? 

warnings: none

comments: I’m back guys... i’ve missed y’all T.T just a little prologue to force start my lawyer au fic..

“You are called to the what?”, “A bar?”, “What’s a bar?”

The two most common assumptions of why the legal qualification is termed ‘the bar’ are that 1. all lawyers require alcohol to function, or 2. it is a metaphorical reference that the people who practice the law has met an undefined (but presumably higher) standard of certain qualities.  

So how high is this ‘bar’? Apparently not that high.  

---

You rather disliked the fact that it is a common assumption that whoever wanted to study the law should have an altruistic mission.  

The age-old question at law school interviews almost never deviates from the conundrum of “why do you want to study the law?”. And here, you faced the first paradox of your legal life – if you wanted to be a member of the bar, you should always act honestly, but if you always acted honestly, you will never make it into the bar.  

You tried to recall what generic idealistic answer you had given at your own law school interview. Meanwhile, the new batch of interviewees waited nervously outside the seminar rooms for their turn to be called in. “Look at them... bright-eyed and bushy-tailed... were we once like this too?”, Doyoung cringes as he turns to look at Lucas and you, and he pretended to be taken aback, “whatever happened to you guys man, you look like zombies now?”  

“As if you look any more alive. It's almost finals time and... I feel like I aged ten years in the span of three weeks”, Lucas gripes, dragging his feet along the squeaky floor.  

---

The years in law school taught you a lot. One of the first was that the law does not exist for an altruistic purpose.  

“The law is fair”, the professor said stoically, then abruptly breaks out into a chuckle, “if someone told you that... check to see if they have eyes that are bright and a tail that is still bushy.”  

To add on to that, law school was ‘university’ after all, and ‘university’ teaches you about life. So other than the occasionally disillusioning lessons about what the law actually serves, the characters whom you encountered in law school were more even more educational.  

Sure, maybe there were a handful of law students who truly intended to pursue justice. But most of them were just mortal. There were those who hail from a family of lawyers, there were those who only came because their grades were good enough, there were those who liked beer, there were those who slept around, there were those who wanted the mirage of prestige and pride, and there were those who only wanted a stable job.  

Most, if not all of these people will eventually make it into the “bar” one day.  

---

You carried a bag of stuff into the monochrome office. The cubicle walls and the chairs were a nasty shade of old navy blue. It was unusual not to have Doyoung and Lucas to cling on to but there was a slight flutter in your stomach. Graduation was a while ago, and now you were embarking on the arduous journey known as legal training, pupilage, or whatever they preferred to call it – basically you had to fulfil a slavery term before you could reach that seemingly prestigious end goal known as “the bar”.  

The office manager was a no-nonsense lady who quickly briefed you and all the other trainees about the office policies before showing each of you to your dingy little seats.  

Half the morning was spent with you setting up your work station, the cubicles around you were occupied by a handful of trainees just like you and your neighbour was a charming and cheery girl named Chaeyoung. After a round of awkward introductions, you settled back into your seat only to have the ringing of your phone make you almost jump back up.  

Did someone call the wrong number? Was the call actually for you? You picked up the receiver and uttered in a hushed voice, “Hello?”

“Is this Y/N?”, the caller spoke rather quickly.  

“Yes, I am.”  

“Grab your notepad, pen, whatever you need and come over to my room now”, a low husky voice commanded.  

“Ok, sure... I-”, your hands somehow started to tremble a little and you started looking around for your stationery but the man on the other side slams down his phone.  

Wait, wait... who is he? How would you know who to look for? “Shit”, you mumbled softly as you put down your phone and Chaeyoung peeps out from her cubicle next to you. “You okay?”, she asked.

“Yeah, I better try to figure this out...”, you replied with a sigh and an awkward smile.  

You quickly grabbed your things and walked towards the larger office area, where all the qualified lawyers were housed. Loitering around the printers tentatively, you were just dragging out each second trying to ponder what is your best way out of this. Unfortunately for you, because you were such a nervous wreck, you didn’t even catch the extension number which would have showed up on your phone.  

“Are you alright?”, a voice startles you as you leaned against one of the printers, fingers poking your temple harshly, lamenting your stupidity.  

His voice was deep and a little husky too, but it wasn’t that voice. You turn around to face him and he gives you a customary smile, a tiny dimple forming on his cheek. It was the first familiar face you saw that day. Kim Namjoon, a fairly well-known senior from your law school because he was always one of the top students and had been Law Club President for a year. Everyone was shocked when he rejected the offers from all the bigger law firms and joined this not so famous one instead.  

“If you are alright, could you please let me take my print out?”, he said with a curious expression and pointed at the printer you were hoarding with your body.  

“Oh I’m so sorry!”, you immediately jumped aside.  

“Are you one of the new trainees?”, he asked in a friendly demeanour.  

“Yeah, I am...”  

“You look lost, are you looking for something?”

“Uhh, actually I’m looking for someone”, you answered sheepishly.  

“Who?”, he looked up at you.  

“Somebody called me just now and told me to go look for him but he didn’t give me his name and I didn’t catch his extension number”, you slurred your words, trying to hide your embarrassment.  

“There’s a call-log function on the phone, you can use that to see who called you earlier”, he said matter-of-factly as he flipped through the pages of paper he just took from the machine, looking back down at the papers now.  

“OH! Is there? Thank you so much”, you gasped at your own dumbness, and you were prepared to run back to your seat to try just that when he stops you.  

“I’m Namjoon by the way. What’s your name?”, he introduced himself quickly.  

“Yeah I kind of know you... I mean I’m two batches below you, so we haven’t spoken before... I’m Y/N. Thanks so much for your help, I better go-”, you were processing your words as systematically as you could.  

“Oh nice... so you are from my school too? And you said you are Y/N?”  

You nodded. “If you are Y/N, then don’t bother running back to your phone, I think I know who called you, follow me”, he smiled a little bigger at you this time, his dimples becoming more visible. Guess this is why you always heard that he was popular back in school – nice and cute, what’s not to like?  

---

Namjoon kicked the door open, the other occupant looked up at him in annoyance.  

“You are going to break that door someday”, he tosses the remark at Namjoon.  

“Hopefully before they break my sanity... I can’t believe this, this guy just sent me a document that isn’t even marked up. How can they not even know to mark up the changes?”, Namjoon huffed while throwing the document onto a desk.  

The room was occupied by two tables, Namjoon saunters in and sits down at the one further from the door. He sees you still standing at the door and flicks his head to gesture towards the other guy in the room.  

“He’s the person you are looking for”, Namjoon said to you before turning to his roommate, “Kyungsoo-ya, next time could you at least say who you are when you call someone? How do you expect a newbie to know that it is you?”

“Why didn’t you ask if you didn’t know?”, the guy named Kyungsoo stared at you with his intensely huge eyes.  

“I... umm...”, what were you supposed to answer? Because you didn’t give me a chance to? Because I was too nervous?

He just continues to stare you down until Namjoon cuts in again, “Stop terrorising the trainee, our team is only getting one this year, don’t drive her away please. Plus, she’s my junior from school”, Namjoon said with a lop-sided smile.  

“Kim Namjoon, rule number one, never reveal your weakness first, how many times do I have to...”, Kyungsoo sighs and closes his eyes in frustration.  

When he opened his eyes again, he just looks back at his computer screen, “come in, leave the door open, we don’t want a ‘me too’ situation to arise here”.  

---  

Soon you found out that as a trainee, you stood in the most awkward position.  

There were the qualified lawyers, like the partners, the senior associates, the associates –  these people would treat you like their slave and not a comrade who was fighting alongside with them. It was understandable, after all being called to the bar as a practising lawyer seems to make them think that they were above everyone else.  

On the other hand, you have all the secretaries, the paralegals, the supporting staff – there was always an undercurrent of hostility between them and the lawyers, which transposes onto all the trainees. Some of them obviously had an inferiority complex while other more capable ones felt it was unfair that their status were always beneath the qualified lawyers when in reality, they probably played a more important role than those “lawyers”.  

Thankfully for you though, at least one of the paralegals on your team was amiable. Eunji graduated from a not-so-great law school and didn’t get through the bar exams, which is why she is slogging away at her paralegal job, trying to make a living while studying to retake the exams.  

---

“Namjoon, you must bully your intern a lot. She would rather hang out with your paralegal than with you and Kyungsoo”, Steven, a senior associate from the corporate team joked as you entered the staff lounge after lunch with Eunji.  

“Looking at them reminds me of when I first started practising, always looking so bright-eyed and bushy-tailed everywhere I went. Are you afraid of us? Do we scare you?”, Steven taunts while talking to you as though he was cooing at a baby.  

Namjoon only quietly sips on his coffee, momentarily contemplating whether to correct Steven on his use of the term “intern” since you were actually a “trainee”. He decided against it ultimately, lest he be called pedantic again.  

Eunji squeezed her lips together preparing her words to retort Steven but you beat her to it. “We are all colleagues in the same office, why is there a need to differentiate?”, you replied in an amicable manner.  

Namjoon raises an eyebrow approvingly, not of the point you made, but of your guts to say something back to the senior associate.  

“Lesson one for our new intern, in this industry, qualification is king. One day when you are qualified too, you will see the difference”, Steven’s tone was sarcastic to say the least.  

Namjoon subtly rolls his eyes and was deciding whether he should extricate you from this when someone else enters the lounge.  

She reminded you of the stereotypical lawyer portrayed in all legal dramas. There will be at least one character like her. Power aura, power heels, power red lips and just powerful all around. Namjoon looked up to see her entering and he seems to be affected by something. She too, looked at Namjoon fleetingly.  

Whatever Namjoon was feeling it obviously made him uncomfortable because he abruptly calls out to you, “Y/N, we have a new matter coming in later, Kyungsoo and I need your help with some research. The meeting starts in two hours, let’s go... there's not much time”, his words were fast and pointed, and he quickly stood up to leave.  

---  

You sat across from Eunji and Chaeyoung in the pub on the first Friday since you joined the firm. The three of you were already slightly drowsy. “What’s so great about getting called to the bar? Does that make them as powerful as the President? As great as the Gods? I don’t care about being called to that stupid bar... I would rather have a handsome guy call me to a bar”, Eunji slurs and giggles.  

That's right, what is so special about this ‘bar’ which you are striving towards, you asked yourself?  

You suddenly recalled what happened that afternoon. You were standing at attention in the associates’ room. Namjoon was looking worried while Kyungsoo was lashing out and demanding an answer from you. The words Kyungsoo spat in your face is still freshly etched in your mind, “if you are going to act like this, don’t bother becoming a lawyer!”

Tears start to form in your eyes again but you held it back. “It’s not great at all! And the standards aren’t even that high!”, you exclaimed loudly to cover up your emotions. Your volume was loud enough to startle the table next to you and Chaeyoung sheepishly apologises on your behalf.  

“As my best friend, Google, will tell you... the ‘bar’ actually used to refer to a physical barring thingy which separated the common people from those who were part of the court of law...”, you blabbered on in a tone mimicking your professors, but dropping to a whisper now as if this was a secret.  

It is a secret – the bar does not denote a certain caliber, standard or quality. The bar is but a demarcation of territory – that this is ‘us’, and they are ‘them’.  

“How can a law, that differentiates between people like that ever be fair? How can it?”, you whined. Chaeyoung uses her hand to cover your mouth, almost suffocating you in the process of trying to stop you from causing more disturbance. Eunji nodded furiously at you as she pours herself another glass of the alcohol, “It never is”, she whispers.  

[aidulcex]

Religion Headcanons:

So this post is really just going to be me explaining a couple of concepts around Aiyanna and two other OCs that I have. This is just me dumping all my ideas down so here you go! 

-The religion that Aiyanna practices is called Horia, and essentially focuses on the principles and ideologies of 3 “goddesses” also known as the Trio of Horae. -These goddesses are actual Greek goddesses, so if you want you can look up their names, but they’re minor gods. Not that much is known about them (which leaves a lot of room to play with). The religion also incorporates a bunch of Wiccan religious aspects as well (specifically the Triple Goddesses). -Unlike other island deities which were only worshiped in one area, this religion became popular, since not only did it solve the origin story dilemma, but it also did not have every day to day practices. Instead, the religion taught worshipers about the essentials to creating a society; what should be grown, what foundations should be put into place regarding law, and general moralities. It was a basic civilization starter package in a sense. -The three goddesses themselves are referred to as the wandering goddesses, said to travel from island to island in order to spread their teachings. However, it was stated that each goddess was only one side of a coin, and the opposite side reflected a completely different personality and belief. Such as Eirene representing peace, and Polemos being her other side, which represents war. Dike representing justice and fair judgments, and the other side being Adicia who represents injustice. And Eunomia representing good order and lawful conduct and the other side being Dysnomia who represents lawlessness. -When an event occurred, some said that it was because one of these sides was “flipped”, meaning that the goddess was angry at them for something. Some would give sacrifices of food and others would try to reevaluate their situation. If the crops were not growing for example, it was said that a celebration needed to be held and farmers needed to stay away from that area completely. -Religious holidays focused around the celebration of the start of spring, summer, the harvest, and the start of winter, since the trio is said to be the goddesses of the land. Each celebration had a primary goddess of focus, so spring would be Eirene, summer would be Dike, and fall would be Eunomia. This was because they believed that each goddess would come at their own time one by one, with Eirene arriving first and Eunomia coming last. -The start of winter was seen as a “parting of ways” where the goddesses would leave the lands and return to each other. When it was time for life to resume, Eirene was the first to leave. In a similar manner, Eirene is supposed to represent the maiden, Eunomia represents the mother, and Dike represents the crone. -In the beginning, these goddesses were not completely worshiped in the way Greek gods were. People didn’t live in fear of upsetting them, in fact, most believed for them to be beings that were watching over them. They believed that the goddesses allowed humans to do their own thing, but if something were to occur, then they would lash out and put their foot down. -However, with the World Government essentially destroying all documents in regards to these teachings, some goddesses were forgotten (Dike and Eunomia), and others became revered in tiny sections (Eirene). Some of these sections survived, but only because of special circumstances. -Aiyanna’s home island of Kinoshima is an example of this special circumstance, since the Grand Dent emerged from the restless souls of  slaughtered priests. It was believed that Eirene, saddened by her followers fiery deaths, brought them back. However, this had its downsides, as the incident itself was said to have turned the goddess from Eirene to Polemos, and with it, brought the people the goddess was trying to “save” into a hellish state of living. -It is believed that despite the World Government wiping out the religion, the three goddesses still walk the earth to this day. However, they are said to be reincarnated. Their reincarnations are usually females who grew up on one of the islands that worshiped this religion. -There are many indicators that one could use in order to figure out if a woman is a reincarnation. Their first name could literally give it away (Aiyanna's biological is Irenea which is a literal language variation for the name Eirene) or the reincarnations could also have incredibly similar attributes to their respective goddess. For example, a reincarnation of Dike could (in Gabriella’s case) mean that the child is incredibly strong academically, and has an amazing sense of memorizing and interpreting laws. -Another strong indicator is if these people have eaten the devil fruit that is related to their goddess. It is said that that the devil fruit will appear to the person in some form, and they will be able to use it in order to “channel” their goddesses abilities. For example, Aiyanna was given her devil fruit by the Grand Dent, who had sealed the fruit away. Gabriella received hers after her father had snuck it over from their home island and given it to Gabriella in hopes that it would make her become powerful. Epi got hers indirectly when the plague that wiped out the inhabitants of her island consumed it, and then started to have a symbiotic relationship with her (I realize that it sounds a lot like Venom I’m sorry). Some have event speculated that the goddesses themselves are not actual deities, and instead are the 'demons trapped inside the devil fruits that tend to interact more with their users than others'. -A key thing to note about these three goddesses is that there is a sort of a checks and balance system between them. Neither one can over power the other two; Eirene can defeat Dike, Dike can defeat Eunomia, and Eunomia can defeat Eirene. Eirene represents emotion while Dike represents knowledge and Eunomia represents will. So essentially emotion can beat knowledge (heart vs. mind), knowledge can beat willpower (working smart not hard), and willpower can beat emotion (determination to keep going vs. emotions that might tell you to give up). -The awakening of their devil fruits is said to be them reaching their full potential and being able to use all the abilities of their respective goddess. Not every reincarnation can do this though because several reincarnations do not live to this point. -It isn't all peachy for the reincarnations though; most of them either die by their own hands or because of their circumstances before they can reach their full potential. It is supposed to be a ''test of strength'' and ''worthiness''. All reincarnations usually start out with a horrible life and their struggles are to overcome what their goddesses' respective aspect is. For example, Aiyanna's aspect that she needs to overcome is emotion, and trying to not let it overrun her. Gabriella's is knowledge, to where she should not allow for her intellect to get the better of her and give her a superiority complex that makes things only black and white. Epidemic's would be willpower, and that she needs to continue to be determined even in unfortunate dark times, but she needs to learn when to relax. Sometimes these aspects overwhelm a reincarnation and cause them to develop issues that they need to overcome as they come with the strain of their aspect. These issues can develop as mental illnesses; such as Aiyanna's survivor's guilt and PTSD, and Gabriella's perfectionism/OCD, and Epidemic's postpartum depression and grief. -Although the goddesses are said to look and appear in pictures and scriptures as being elegant women, the reincarnations of the goddesses see a totally different side. This plays on the fact that they start to interact with their reincarnation more after the said person eats their respective devil fruit. Even though they never fully get to see the goddess, some reincarnations report being able to hear them speak (Gabriella in particular suffers from auditory hallucinations associated with her goddess), feel their emotions (Aiyanna when she interacts with the Grand Dent experiences absolute anguish that she can only describe as 'a mother watching her children die in front of her'), or 'see' them (Epidemic usually has dreams where they can see certain parts of the goddess but they're all contorted/combined with the Zoan aspects of her devil fruit). -After Aiyanna returns back home to Kinoshima, she helps the Grand Dent to pass on, and because of her official status as an awakened reincarnation, several of the islanders try to worship her as the deity or claim that she needs to stay with them to offer guidance. Although she does try to offer guidance, she immediately rejects any proposals that try to nail her down to one place ( especially one bizarre rule that was made that the head of the island needs to marry the reincarnation if she ever returns). For several years she works with the other two reincarnations to try to help clean up islands that got destroyed by the World Government and in the process helps to revitalize the religion. Eventually she returns to Kinoshima to serve as a Head Priestess (basically becoming royalty) and leads the islanders in an effort to transform Kinoshima into an open and developed island.

[dustedmagazine]

Gurdy Hurding Men: An interview with Renaldo and the Loaf

“Isn’t this exciting …” Brian Poole’s voice manages to be simultaneously hushed, expectant and playful. He’s waiting for David Janssen, the other half of Renaldo and the Loaf, to be added to our Skype interview, a first for this technically challenged writer. “Hello, yes, I can hear both of you …” Janssen doesn’t have quite the same smile in his voice, at least superficially; he’s the more deliberately spoken of the two yet ready with a laugh and a witty aside as our conversation progresses. The voices alternately drifting laconically and rising in mirth as they exit my speakers give the impression of both as English gentlemen, which is certainly accurate on one level but which is a vision somehow also antithetical to the music they make.

The interview is precipitated by Gurdy Hurding, the English duo’s most recent album, which was released by Klanggalerie in October of 2016, capping off the Austrian label’s deluxe and absolutely superb program to reissue the group’s entire catalog. More on that presently, but even the seemingly simple fact of a new album’s existence is not quite as straightforward as it appears to be. Remarkably, Gurdy Hurding is the duo’s first disc in nearly 30 years. “For a while, until about 18 months before it was released, we weren’t even sure we were actually going to make an album,” smiles Janssen. “We were just working on various tracks, and at some point, there it was.”    

Gurdy Hurding by RENALDO & THE LOAF

Brian Poole (Renaldo Malpractice) and David Janssen (Ted the Loaf) met as teenagers in 1970, but, at this point, their shared musical tastes and long collaboration history have been documented in such detail that our interview almost entirely avoids the subject. Some brief musical context does, however, seem appropriate, so that the duo’s soundworlds can be fully appreciated. Just as jazz was supposed to have moved up the Mississippi in the very early part of the 20th century, progressive rock was supposed to have given way to the totally antithetical punk scene and associated genres in the middle to late 1970s. As with all mythologies, there are kernels of truth amidst what is really a wide-ranging and confusing multivalent narrative of non-linear developments. Renaldo and the Loaf straddle various portions of that narrative complexity. They neither reject nor accept convention and form out of hand. It might be fair to say that they tiptoe into the waters of whatever musical trends abound at the moment but only submerge ankle-deep, and the rest is unique to them.

In order for their accomplishments to make anything approaching teleological sense, a word or two elucidating the duo’s relationship to the Residents is in order. Superficial comparisons based solely on the weirdness factor are too often posited and parroted, and the music made by both groups suffers. True, their song structures could be described as harmonically and melodically simple, but timbral complexities abound, repetitions vying for prominence amidst tape manipulations, synthetic colors and voices tweaked out of all facile recognition. The two groups demonstrate relationships to popular music analogous to This Heat’s to punk or to Harry Partsch’s inhabitation of spaces near classical music. This Heat exploded conventional song form while never completely abandoning it, and their paint-peeling take on the late 1970s rock zeitgeist was similar in spirit to Partsch’s supposedly theoretical but actually sensually corporeal and often downright snarky approach to the classical tradition. Janson and Poole were timbral explorers from their earliest collaborations—more on these presently--and it was only a matter of time before Poole and Janson discovered their kindred spirits across the pond. The Residents’ independent label, Ralph Records, was distributed in England by Chris Cutler’s Recommended Records, now RER Megacorp.

“The first of their albums I bought was Duckstab,” remembers Poole.

“For me,” muses Janssen, “It was Third Reich and Roll.”  

The multiple cans of worms opened by that title lie beyond the scope of this article, but suffice it to say that the Residents’ radically dark yet whimsical take on many familiar 1960s pop tunes caught Renaldo and the Loaf, hereafter RatL’s collective ear. “There was something about the naivety of the early stuff,” reminisces Janssen. “It was catchy. They obviously couldn’t play their instruments all that well, but they didn’t let that stand in their way; they had a lot of interesting ideas, an interesting approach to arranging, and there was an appeal in that, and it was weird,” he smiles. It was Ralph that made RatL material available to a wider public as it was released in the late 1970s and through the 1980s. They even made a trip to the United States to meet the Residents, out of which came the collaborative Title in Limbo album. 

However, beyond a penchant for repetition, homebrewed technological wizardry and a taste for the bizarre, the too-often made Residents comparison really does RatL’s music little justice. To get an idea of the rich transgenerational vistas opened up in the group’s early aesthetic, listen to “A Sob Story” from 1980’s Songs for Swinging Larvae, with those crystalline bells fading into a humorous but unsettling mélange of vocal and choral snippets, skewed rhythms, shrill eruptions and sci-fi descents, all supporting the rustic falsetto Poole has made ubiquitous to any fans of the band. It’s as if a baroque chamber choir has been caught in a holding pattern set to a soundtrack of ethereal drummers. Amidst it all, a dramatically sobbing woman, disconcertingly looped, takes center stage, and it was this emotionally raw titular nod that caught my attention in 1988, when I first heard the track. Only later did I learn that she was, in fact, Cathy Berberian, snipped unceremoniously out of Luciano Berio’s stunning electroacoustic 1960 masterpiece “Visage.” 

Poole and Janssen are somehow nonchalant as they discuss their exposure to Classical music. After all, their mill was given grist from so many disparate sources, from the cross-cultural references of a late 1980s track like “Hambu Hodo,” awash in the samples and mechanical beats that would parallel the various genres related to world-music-driven electronica, to the more folky and pastoral elements on 1984’s Arabic Yodeling. They demonstrate no dogmatic bias, taking it all in stride, especially the so-called period practice movement that would play an integral role in Gurdy Hurding’s conception and execution.  

When the duo decided to take a break in 1988, there was a project in the works that involved an at-that-point undefined use of medieval instruments. “I saw the New London Consort on a television show,” Janssen says of the initial idea. “They were performing music from the Carmina Burana manuscript.”  While many are familiar with Orff’s loose reconstruction, Philip Pickett and company were performing a scholarly take on what survives from those bawdy, religious and political medieval melodies. RatL had found transgenerational kindred spirits, as Poole makes abundantly clear.

“We were drawn especially to some of the vocalizations, where they would imitate drunkards, make animal sounds, and it was quite inspirational in that way; the rhythms were very dancy, very catchy.”

“You could say that it was the pop music of its day,” Janssen agrees. “Very simple, fun, and we loved the repetition!”  

Nothing came of the project, at least not at that time. “It was just pub talk, you know,” grins Poole. Janssen offers further explication. “We’d kind of run out of steam; after all, we’d been making music together for 18 years, but it was more than that. At the time, we had neither the equipment nor the instruments to make the music work.”

Sampling technology was in such an early state, as the duo explain, that even to create a melody necessitated jumping through hoops of multi-tracking akin only to those brave souls in the late 1940s involved in the disc manipulations of the first Musique Concrète compositions. Everything was exacerbated by the fact that their small studio moved from Janssen’s to Poole’s flat, forcing Janssen to forgo the sonic experimenting so vital to RatL’s unique soundworld.

Fast-forward to the early 2000s, when the two musicians resumed collaboration, first sporadically, supplying music for films, a medium in which both have long been interested. Walter Robotka, the mind and spirit behind Klanggalerie, takes up the narrative via Email:  

“I approached Brian Poole a few years ago about the idea of RatL doing a remix for UK band Section 25. They agreed, and the next step was asking about reissuing the material (in their back-catalog). During the process, the band spent time together again, and so it was quite a logical step to record new material.”

The collating of so much RatL material was a gargantuan effort. The group’s devotees now have some of their earliest recorded collaborations, their single live performance along with a reflective remix of it and all of the original albums and Eps in seven deluxe packages. Poole and Janssen became heavily involved in these reissues, remastering and sonically refurbishing the albums where possible but also adding a RatL fan’s treasure-trove of extra material on bonus discs that sometimes resemble new albums in their cinematic programming and diversity.

The lion’s share of these radically different alternate versions and unheard music was preserved in Poole’s cassette archive. “Before it lived in my flat, our studio lived in David’s. He would make cassette copies for me of whatever we’d done that day, so that I could take them home, listen, rehearse, that sort of thing. That’s why we still have all of the bits, used and unused, as well as works in progress.”  

Far beyond the often uninteresting hodgepodge of outtakes and alternate mixes usual for devotee satisfaction, the bonus discs recontextualize tracks die-hard fans have heard numerous times, taking on a double life as sketchbook and newly minted artistic statement. RatL’s breakthrough album, Songs for Swinging Larvae, is a case in point; the bonus disc bears the quasicryptic title Songs from the Surgery.

Many of its tracks are both brief and obviously incomplete compared to their released counterparts, but one such fragment would prove foundational to the new album’s opener. “Henry Lies” begins Songs from the Surgery with a militaristic drum beat and guitar with clarinet in open fifths, containing only the lyrics “Henry lies, never to die.”  Thirty-five years later, the track was sampled and morphed into Hurdy Gurding opener “Henri Rise.”  “Yeah,” laughs Janssen, “Henri’s been with us for a long time.”  

While the new track’s rhythmic undercurrent is similar, we are immediately aware of the passage of time and how it has shaped the creative process. In listening to the new RatL material, I keep remembering a line from David Bowie’s song “Sunday,” where he reflects, “Nothing has changed, everything has changed.”  

It’s all still RatL; the quirky rhythmic displacements are all there, as are the jump-cuts, the catchy tunes and the timbres that seem as if they are just on the point of orbiting recognition. On one level, the album picks up where 1987’s The Elbow is Taboo left off, and it’s all made infinitely easier by the technological advances of 30 years. Software manipulation has allowed the 1982 fragment to be transformed into what sounds like a big band in some huge swinging bachelor pad. The crooner is still at the helm, Tiny Tim falsetto at the ready, but Henri has become some sort of shepherd, struggling with his goats, sheep and the daily grind of rising too early and food preparation.

By way of nearly complete contrast comes “A Convivial Ode,” a study in electro-acoustic chopping and reordering. The delightfully medieval harmonies float gently along to a voice that I only now learn is Poole’s singing a syllabically scrambled folk song, a bit of reinventive fun mirroring the track’s title. “It’s an anagram for the working title, which was Viola and Voice,” he explains. Yet, there are continual nods to various genres associated with electronic dance music, and the disc is replete with infectiously varied beats. “I like dancing, though I don’t have the physique for it anymore,” giggles Poole. “I’m not so sure you can really dance to our music though …”  

“Reminds me of the time I smuggled “Hambu Hodo” into Brian’s wedding,” remembers Janssen, and they both burst out laughing. Janssen was Poole’s best man, but the prank seems to have been unexpected.

“It kind of sounds like a dance tune,” Poole explains, “but it’s actually quite complicated, and there are all my friends and business associates trying to dance to it!”  The two are perfectly happy to discuss the merits of techno, house and the like, its infectious groove, its connection to the heartbeat, and they’re clearly excited about it, but it certainly does not dominate the album.  

Gurdy Hurding’s title track brings the medieval references into clear focus, delivered in what sounds like a Middle English dialect and even quoting “Miri It Is,” a song of the period. The musicologist in me, the one whose interest in Berio was sparked so long ago by these same musicians, senses completion of the circle. It is irrepressibly tempting to see Gurdy Hurding as a unification, solidifying everything RatL has done before, their corpus now unified and the reissue series presenting an equally complete and parallel history. “If you say so,” drawls Janssen gently. They’re smiling but really having none of it. To them, for whom music has been a life-long hobby, these synchronicities simply occurred. Poole encapsulates it all with concision. “We just get together and make music, like people get together and play squash.”  While they are pleased with the disc’s reception, it is clear that they have no theoretical axes to grind. I ask if they plan to make another album. “Sure, it’s possible,” reflects Janssen, “But it might be better if we didn’t wait 30 years to do it.”

Marc Medwin 

[wizardofpawswildlife]

Service animals, ESA’s, & Therapy animals

Many of you who follow me or pop in from time to time know that I’ve been an animal trainer for over 20 years. I lost my Service animal a few years ago because she was attacked and killed by someone with a fake service animal. I miss her dearly and wanted to make sure that people everywhere have the right information.

I know I normally post photos of my animals but today I want to touch on a bit of a grey area with service animals. A few weeks ago a man on Facebook was trying to claim his f0x was a service animal when she cannot legally be a service animal; service animals can only be dogs, mini horses, & cats (depending on state laws). He also proceeded to post photos of his fake certificate saying she was a ‘certified’ service animal. It takes 2 years or longer to go through training a service animal and his f0x was only 5 months old at this time.

BUT any animal including a domesticated f0x CAN be an emotional support animal.

Here are a few things you should consider before you go claiming your animal is a service animal.

Do I qualify for a service animal?

The answer to this question may be more complicated than you expect. First, there are different definitions of disability in different federal laws. The definition for Social Security Disability Income is not the same as that in the Americans with Disabilities Act (which determines whether you qualify to use a service animal in public places where animals are not generally permitted). It is possible for an individual to qualify for SSDI and not qualify for a service animal and vice versa. You must evaluate your situation separately for each context.

The definition of disability under the ADA is a legal, not medical, definition. Since a lawyer generally can't diagnose medical conditions and a doctor generally can't interpret the law, you may get stuck somewhere in the middle trying to figure it all out.

You may want to review the legal definition as written by Congress for yourself, or review the entire Americans with Disabilities Act which includes some additional fine points you may need to know.

Ultimately, what we recommend is that you take a flow chart or the written definition with you and discuss it with any doctor who is treating you or has treated you for your disability to get his opinion and to have his opinion entered into your permanent medical records.

What's the difference between "work" and "tasks" in the ADA definition of "service animal"?

There is overlap between the two terms. Legally it is not relevant which the service animal does, so long as he does one or the other or some of both. A service animal’s legitimacy is not determined based on whether he does one or the other or both. It's a little puzzling why I get so many requests for an explanation of the differences between the two when the differences aren't what matters.

First, what they have in common:

1. Must be individually trained (not natural behaviors of animals such as needing to be walked or turning their head when they hear a sound, emotional support, or companionship)

2. Must mitigate the person's disability (ie be something the person's disability prevents or substantially limits them from being able to do for themselves)

A task is an individual, discrete (a complete stand alone unit), specific thing that needs doing. It has one cue and one result. It might be a simple behavior or a complex one with multiple steps, but there is always a single objective. Examples of tasks include: opening doors, picking up dropped items, and notifying the handler of the sound of the doorbell.

Work is a broader term that may include any of the following:

1. A group of related tasks (such as hearing work consisting of signalling for several different individual sounds with a different response for each sound)

2. A trained behavior that has a decision ladder/tree where the outcome is not always the same but requires the animal to evaluate different options and choose the correct one (such as guiding around obstacles)

Here are some examples to demonstrate the differences:

Housekeeping tasks include: doing the dishes, taking out the trash, washing the windows, doing the laundry, doing the dusting, cleaning the toilet. When you take all of these tasks together or some random assortment from the list, you call them "housework." The term "housework" is more broad than "house keeping tasks," but they're both still about the same thing which is cleaning the house.

Secretarial tasks include: filing, answering the phone, typing, making appointments for clients, sending out billing statements. Secretarial work is some combination of the above. It describes generally what a secretary does during the day without listing off what that secretary did on that one specific day in detail.

Notice the item "making appointments for clients?" Depending how that is executed and viewed by the person making the appointments, you could make a case that it is a task with a single result (an appointment is made) or that it is work because it involves a decision ladder/tree (when the appointment is made is going to depend on several different factors unique to each appointment that is made). That's because there is no concrete, black and white, hard line between the two terms. They are similar and they overlap. And that's why it makes very little sense to try to determine whether an individual service animal does work or does tasks. The vast majority probably do some of each along a spectrum that has guide animals doing work nearer one end and wheelchair animals doing tasks nearer the other.

What's the difference between a therapy animal, psychiatric service animal and an emotional support animal?

A psychiatric service animal is individually trained to perform tasks that the owner cannot perform because of a disability as defined by the Americans with Disabilities Act.

Psychiatric service animals, like all other service animals, assist their disabled handlers by performing these tasks for psych illnesses. These animals have access rights.

However, while the owner of an emotional support animal must also be disabled by something like anxiety for example, the emotional support animal is not trained to perform tasks to mitigate the owner's disability. These animals do NOT have access right but DO have housing rights.

Therapy animals are sometimes confused with psychiatric service animals or emotional support animals. However, therapy animals are something entirely different.

A therapy animal is one that is trained, tested, registered, and insured to visit people in hospitals and nursing homes. A person with a therapy animal has no particular right under the ADA to take their animal anywhere pets are not permitted. If the owner wishes to visit a facility like a hospital or nursing home, they must first seek out and receive the permission of administrators at the facility they wish to visit.

According to the U.S. Department of Justice, which regulates and enforces the Americans with Disabilities Act (ADA):

"The Department is proposing new regulatory text in § 36.104 to formalize its position on emotional support or comfort animals, which is that ''[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional wellbeing are not service animals.'' The Department wishes to underscore that the exclusion of emotional support animals from ADA coverage does not mean that persons with psychiatric, cognitive, or mental disabilities cannot use service animals. The Department proposes specific regulatory text in § 35.104 to make this clear: ''[t]he term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities.'' This language simply clarifies the Department's longstanding position."

The ADA gives the disabled owner of a service animal the right to be accompanied by his or her service animal to most places where the public are permitted, even if dogs are not generally allowed.

However, the owner of an emotional support animal has no particular right to public access and must ask permission of the management to enter with an emotional support animal.

Under the Fair Housing Amendments Act, a qualified person with a disability may request a reasonable accommodation in the form of a modification of rules against the keeping of pets in order to keep EITHER a service animal or an emotional support animal.

Under the Air Carrier Access Act, a qualified person with a disability may be accompanied in the cabin of an air craft by either a psychiatric service animal or an emotional support animal if they have the proper documentation from their doctor.

I often get asked; How do you certify, license or register a service animal?

------------------------------------

Certification means that the animal has been tested and shown to meet certain minimum standards.

Most countries only recognize service animals from approved programs. In those countries the programs certify their own animals.

There are ABSOLUTELY NO standards or procedures for certifying a service animal under U.S. federal law.

Certification is NOT required as a condition of using an animal as a service animal.

Disabled people CAN go through training their own service animals.

However, the person using the animal must meet the legal (not medical) definition of "disability" and their animal must be individually trained to perform tasks that mitigate the owner's disability.

They must also have sufficient training to behave appropriately in public (no barking, making unwanted contact with other members of the public, or disrupting business by misbehaving). Service animals who pose a direct threat to others by growling, lunging, or otherwise menacing people CAN AND SHOULD be barred from public access.

Fake certification is for sale over the Internet. You can check whether a certificate is from a legitimate service animal program or a scam business selling fake certification by doing a Google search on the name of the certifying agency. If it's a scam, it will be apparent from a quick review of their website because they will sell their certification to anyone for a fee without ever actually training or evaluating the animal themselves. These organizations prey on the disabled, selling them something they don't need for $40-$250 that they could produce at a copy center for under $5 (if they did need it, which they don't).

They are a haven for pet owners wanting an easy way get a pet into motels, on planes, or to take Fifi shopping on a lark.

These businesses do a great disservice to real service animal teams by bluffing business owners into accepting ill-behaved pets as trained service animals and by taking money out of the pockets of the disabled themselves. These fakers in turn diminish the reputation of real teams by behaving inappropriately.

Real service animals don't need certification. A business may verify an animal is a service animal by asking whether it is required because of the person's disability and what the animal is trained to do to mitigate that disability. They may ask this regardless of whether a animal is "certified," and an owner who refuses to answer can be barred from the facility.

A pet license is something that most all animals are required to have. Individual states, counties or cities may provide licenses in accordance with their own laws or ordinances. Service animals are not exempt from any licensing requirements of local authorities. If dogs residing inside the city limits are required to wear a city license tag, then this also applies to service animals. In some states, counties, or cities, special service animal licenses are available in lieu of a regular animal tag, but they cannot be required as a condition of access. Some localities also waive the licensing fees for service animals, but this varies.

Service animal registration is a scam. It is a for profit business. It's purpose is to make a profit at the expense of gullible people with disabilities and those who just want it easier to break laws. Registration means nothing because the animal is never evaluated, never even seen by the agency issuing the registration. It's just a piece of paper that any idiot can buy for between $40 and $250 dollars and that could just as easily be printed on a home computer for a few cents. Registration scams exist primarily to help pet owners pass off their pets as service animals so they can get them on airplanes, into motels, and into stores with them. Real service animals don't need this kind of registration.

FOR THE RECORD I APOLOGIZE FOR TUMBLR AUTOMATICALLY CHANGING SOME OF MY WORDS TO EMOJI’s. It doesn’t give me the option to turn it off and I didn’t even notice it changing them until after I hit post. When I edit the post they become words again.

[veyrahlaw]

CONSIDERING LITIGATION IN INDIA | PART I – BEWARE OF WHAT YOU WISH FOR!

It is a common view among members of the business community that engaging in litigation is a time consuming and distracting exercise. It takes away precious resources from the business and management, which can instead be productively deployed in enhancing business value. But, sometimes litigation is inevitable. From an Indian context, in many cases, it is unavoidable. However, it should ideally only be a means to achieve a larger commercial objective. But, all foreign investors and businesses should bear in mind that the realities of enforcement in India are very different from a developed market. The Indian judicial system is agonizingly slow and eventually if one does obtain a final decision from the first level courts, they may still have to contest the verdict through multiple appellate levels. The World Bank’s 2019 report for “Doing Business” ranks India at 163 out of 190 countries for enforcement of contracts. On an average, it takes 1,445 days to enforce a contract in India! But, that is just an average. In reality, commercial disputes depending on their complexity can meander within the judicial system for much longer. In this backdrop, it is important for all parties to approach disputes in India from a resolution standpoint as opposed to a ‘winner takes all’ approach.

This write up is part of a series through which we will discuss the dispute scenario in India, examples of pain points within the system and some practical recommendations to navigate the system. This is of course for those people who are not accustomed to the realities and nuances of the judicial system in India. Usually, apart from large domestic corporations, most businesses in India or foreign businesses operating in India have seldom encountered a commercial litigation with the Indian judicial system.

Present Day Challenges

But, before we delve into navigating the challenges within the system, it may be useful for domestic and foreign business persons to firstly understand the present challenges.

Structure of litigation practices: Litigation practice in India is usually separated from the transactional or advisory side of legal practice. Hence, litigators normally have only a peripheral knowledge of the workings of a transaction and the processes involved in concluding it. For instance, when a dispute does arise from a concluded M&A deal, it is not just the final agreements that matter. But many a times the dispute could involve aspects from while the deal was being structured. The documents that were reviewed in the due diligence process could provide vital clues in an M&A litigation. A detailed understanding of the transactional side can offer invaluable insights in a litigation scenario; to ask the right questions and probably raise the relevant issues. But, litigation teams rarely combine the expertise of transaction teams who could provide such assistance during the planning stages of a litigation.

General approach to litigation: Most litigation practices across India handle commercial litigation under the general civil litigation area of practice. While many commercial disputes are contractual disputes on property or supply of goods or services, the nature of the commercial dispute is becoming more nuanced. Complex disputes around specialized sectors have been reaching the judicial system and the lack of sectoral specialization at a trial level is evident.

Counsels are not invested in the outcome: Another challenge is the current compensation structure for litigation. Unlike some developed markets where litigation financing and success-based fee structures are common, Indian litigators are paid for their appearances in court. They are rarely engaged while formulating a strategy when the dispute arises. More often than not, litigators are given a mandate by clients only once the matter is about to reach the judiciary. The litigation solicitors would mostly chalk out the litigation strategy and would have themselves been involved only when a court case becomes imminent. Commercial litigation in India, unlike other forms of litigation, should be approached from a standpoint of attempting to drive the best possible settlement for the litigating parties. Of course, each client may have a different objective which needs to be borne in mind. But, when the counsels handling the litigation are unaware of the commercial aspects and rationale, it becomes a challenge to provide a holistic view keeping the commercial objective in sight.

Clients need to be apprised on the merits of the dispute: Clients need to understand that no lawyer can guarantee the outcome of a case in court. But, a reasonably competent lawyer should be able to review the facts of the case and provide a fair assessment regarding the merits of a commercial dispute. This brings us back to the importance of chalking out a strategy for the litigation before jumping into it headlong. Clients must be sensitized on the costs involved and actual duration for any possible outcomes. This would allow clients to make an informed decision to pursue the best course of action. But, given the incentive structure for litigation, the task at hand can become counterproductive for litigation lawyers.

Absence of costs & Penalty regime: Another pressing problem within the judicial process and especially for commercial disputes is the lack of a proper costs and penalty regime. Although recent amendments in the procedures for commercial courts have introduced the ‘costs to follow the event’ principle, the large number of courts and tribunals that decide on commercial disputes are not bound by any rules regarding costs. The judges have discretion to award costs in favour of the prevailing litigants, but it is rarely done. The lack of any costs on the party that has lost the case has a serious impact across the litigation process. This allows a free hand to the parties in a litigation to raise any number of frivolous issues bereft of any merit. This is also used as a strategy to delay the case by draining the resources or frustrating the party seeking a relief. The more the number of issues raised, the longer the trial and proceedings continue, to decide upon each of the points of dispute.

Low Threshold for Admission: Flowing from the above, is another troubling aspect that one encounters. There is a seemingly low threshold in most courts to admit a claim and initiate civil proceedings. While the law prescribes certain safeguards that a judge should adhere to before admitting a claim and commencing proceedings, judges rarely delve into great detail during the preliminary stages. They merely go by the arguments advanced by the appearing counsels and the semblance of a legitimate issue would admit the claim for proceedings at the first level courts. Further, the presence of a senior counsel arguing the merits of a case would enhance the chances of the matter being admitted for trial irrespective of the quality of evidence supporting the claims. This also creates a perverse incentive for litigants to make all sorts of unsubstantiated claims in proceedings just to get the matter admitted. To compound matters further, the offence of perjury (false statements before court) is not treated with the seriousness that it demands.

Perjury is not sufficiently penalised: Perjury is rarely penalised in Indian courts. The judge deciding upon an issue will rarely penalise a party who is found to have made incorrect or untrue statements in their affidavit submitted during the proceedings. The lack of a deterrent for such an offence means that litigating parties rarely worry about including conjectures and wild unsubstantiated claims in their court documents. Many a times, certain inaccurate statements are deliberately included to build a compelling case for admission and to commence trial. During or upon conclusion of the trial, the judge merely denies claims based on inaccurate statements but rarely ever penalises the concerned party.

Training at Trial Courts: Many of the judges and adjudicating officers appointed in the various trial courts and tribunals are not specialists in the field of subject they decide cases on. They usually tend to learn on the job. Unfortunately, as they gain experience over the years, they may end up being transferred to an entirely new area of judicial practice. This creates challenges within the system for continuity and lack of sectoral expertise to encounter the range of specialised issues brought up to them.

Tribunalisation of Justice: Another factor that warrants attention is the rampant tribunalisation of many areas of judicial discipline. While originally tribunals were set up to expedite the service of justice, the results of the tribunals have not matched the expectations. The tribunals are not necessarily bound by the conventional rules of procedure that govern Indian courts, but they are manned by the same cadre of judges trained within the conventional procedural system. Hence, they tend to continue to follow the rules of procedure practiced in general courts, albeit with certain relaxations. The other pressing concern with respect to the tribunals are the lack of sufficient infrastructure. The tribunals have poor infrastructure and severe shortage of manpower. They suffer from the usual infirmities that plague the general judicial system and have hence, just created an added layer of judicial process.

Procedural Challenges: The procedural rules followed in India were originally incorporated more than a 100 years ago and continue to be the bedrock on which justice is administered in the 21st century. This is an obvious concern and does not warrant further elaboration. One can only imagine the challenges faced by applying rules prescribed in 1900’s to the commercial realities of the 21st century.

Interim relief practice: Given the systemic deficiencies in achieving finality before Indian courts, litigation in India has developed a lucrative area of practice in the nature of interim reliefs. Interim reliefs are essentially special discretionary powers that a court has for awarding certain reliefs by way of orders pending final decision on the claim. Under Indian conditions, the utility of the interim relief is that it can determine the dispute midway, since the interim relief could be either temporary or permanent. Once a party has secured an interim relief that goes in its favour it can compel the other party for a settlement. This works as a strategy since finality of the dispute may take years in an Indian court.

The above issues are not an exhaustive list of the challenges that affect the Indian judicial system, but are meant to offer an insight into the various bottlenecks that one should be mindful of when pursuing litigation in India. Also, these are not issues that the Indian government is unaware of. Multiple law commission reports have been generated by various committees highlighting many of the above detailed pitfalls with recommendations for reform. The entire judicial system and the litigation set up in India requires radical overhaul and sustained efforts to transform itself into a modern, efficient judicial system that can deliver on the ideals of justice for all. Successive governments have taken steps to try and improve the system; but like with all things in India, they are too few and too slow. Therefore, for people and businesses looking to avail of Indian courts to secure reliefs, they must learn to navigate the existing system and opt for the best course to achieve desired objectives.

In the next part of this series, we will offer certain practical solutions to try and work within the system and achieve the desired objective. As mentioned at the outset of this article, one should not seek to litigate a commercial claim in India with an aim to achieve a final outcome. It would at best end up becoming a self-defeating victory or at worst, years of time and precious resources spent with no tangible outcome. Litigation in India as on date can at best be used as one of the means to achieve a commercial objective and should not be considered the sole means to address commercial grievances. Parties to commercial disputes in India must always seek to achieve the most plausible form of settlement possible, rather than squander each other’s resources and time within Indian courts.

Ajay Joseph | Partner, Veyrah Law; Anshu Bhanot | Of Counsel, Veyrah Law

[dorisphamus]

Nigel Pascoe’s Guide For Young Advocates: Essential reading for all aspiring advocates

Nigel Pascoe QC – whom I have been proud to call a colleague for more years than I care to remember, which is still only a fraction of the time that he has been at the height of his profession – adopts Norman Birkett’s definition of advocacy:

“Harnessing your personality in support of a cause.”

Pascoe: “be yourself or risk being a phoney.”

His advice to young advocates is the not uncommon advice given to nervous interview candidates: “be yourself.”

“If you try to be someone else,” says Pascoe, “it will sound phoney. It is phoney.”

I am not so sure. Being yourself works very well if you have the personality of Pascoe: warm, open and sympathetic to almost everyone. It is hard to imagine that he could have any enemies.

Other advocates, I fear, have done very well from being phonies. George Carman, acknowledged in Pascoe’s book as one of the greatest advocates of modern times was – if we are to believe the account of his son Dominic – an insecure, frequently drunk, violent, sexually inadequate womaniser. His was a personality best kept concealed.

Like many very good people, Pascoe may occasionally have difficulty in detecting or believing anything but the best about others. I remember attending a court centre intermittently over the course of many months where he was involved in a seemingly interminable case, the details of which are (fortunately) of no consequence. One of his opponents was particularly gritty and determined, and was given to somewhat dubious techniques; the sort who hands you a 20 page skeleton argument 15 minutes before the court is due to sit, and then does the same thing the next day. And the next. And then two skeleton arguments the next day. During the first two or three weeks Pascoe shrugged off these flaws as minor peccadilloes and could not have been more effusive in his praise for his opponent:

“Brilliant legal mind … superb cross-examiner … future Lord Chief Justice.”

After 6 weeks he had been worn down:

“Very determined … rather stubborn …a little inclined to miss the wood for the trees.”

Finally, after the trial had all but ground to a halt under the weight of his opponent’s abuse of process arguments, a rare flash of impatience suddenly appeared:

“That [name and very mild expletive deleted], can be rather tiresome at times.”

Other advocates would have been swearing and cursing by the second day, but that is emphatically not Pascoe’s style. As a result, he is one of those rare people who is liked by everyone he meets, and that, I am quite sure, includes jurors and judges.

Unless you share such a personality simply being yourself may not take you very far, but don’t worry because the rest of this slim volume is full of practical hints that will.

He is good on organising your papers, a dull task indeed, but one that almost all exceptional advocates excel at. Nothing is more important in preparing a case than than being able to find the vital document, and nothing is more irritating in court than to be unable to do so. Rightly, he makes the often overlooked point that a chronology is an essential part of any serious case preparation, and he sets out a simple and easy to understand system that any young advocate would be well advised to follow. Pascoe was an early enthusiast for voice activated software, and his enthusiasm has not dimmed:

“It is astonishingly useful for advocates and I do not understand today, when it really works, why more of them do not use it.”

Important skill though it is, the young advocate needs to know a lot more than organisation of the ring-binder, and Pascoe’s book helps, though whether every piece of advice always works if you don’t share his sunny personality may be arguable.

Do not, he advises, suggest to complainants in sex cases, “You’re lying about that.” Instead advocates should politely ask the “more courteous and effective ‘I do suggest that on that point you are not right / correct.’” I’m not so sure this is always sound advice: courtesy has its place in advocacy, but so, on occasion, does bluntness. Asked that question by the transparently decent Pascoe perhaps a few witnesses will say “Now you’ve put it as politely as that, you may well have a point, I’m really not at all sure it is correct.” The bigger gain, though, is that a courteous approach is less likely to lose the sympathy of the jury.

Sometimes, though, an over-polite approach is disastrous: I can think of at least one case in which a scrupulously polite cross-examiner framed all her important questions to the complainant in a rape case in this courteous style, studiously avoiding use of the word “lie,” even though lying was the only plausible reason why her account could be untrue. Maybe Pascoe could have carried it off, but with this advocate courtesy felt like cowardice; like a diver on a rock, going to the edge but never quite plucking up the courage to jump into the heaving water below. Worse still, it created a dilemma for her client when he came to give evidence – if he chose to be as polite as his counsel, why was even he afraid to accuse the complainant of lying? If he did accuse her of lying, why then had his barrister not done so?

In a short and largely practical book, Pascoe does not go into great detail about the ethics of advocacy. Integrity, he rightly says, should be at the top of the list of the qualities of an advocate, something that members of the public sometimes fail to grasp, given that of necessity a barrister spends much of his or her working life trying to persuade people that things that have happened haven’t, or vice versa. Pascoe emphasises that integrity is a practical as well as an ethical virtue: in order to persuade an advocate must be trusted.

Of course, says Pascoe,

“there is a clear distinction between glossing over the more difficult aspects of your submissions and misleading a court. For example, in a plea in mitigation, it is not your duty to put forward every daft suggestion of your client. Many a sex offender actually believes it is important to tell you that the child led him on assault. It is, of course, utterly wrong, completely irrelevant and counter-productive. That sort of admission against interest can be left in the backsheet and need not see the light of day.”

All well and good; but how about if the same client has told you something along those lines that flatly contradicts what he told to the writer of the pre-sentence report? Does the honest advocate allow the judge to sentence on the basis of the remorseful penitent described in the report, knowing that it is in fact a false picture. Advocacy has a habit of throwing up difficulties of this sort that do not admit of easy, or necessarily comfortable answers.

Indeed, the whole notion of one advocate being better than another – and whatever the ideal may be that often happens – is rather uncomfortable for the concept of justice. Why should a court’s decision depend at all on the quality of the advocates? There are two possible answers. First, to prevent a person from putting forward their case as powerfully as possible would be itself to create an injustice. Secondly, and more fundamentally, the better the advocacy, the more likely it is that the court will arrive at the correct decision; but that is only the case if the advocates themselves are honest and fair and observe the same rules.

Pascoe is known as a jury advocate par excellence, and he is disarmingly – and quite misleadingly – modest about his effectiveness in front of the Court of Appeal. He writes about “the Reading factor,” a sinking feeling that those Grounds of Appeal that looked so unanswerable at Taunton tend to look threadbare by Reading. The key to effectiveness, he advises, is to ruthlessly pare Grounds of Appeal down to the minimum. That is certainly true, as is his equally important, and easier to practise, point that you should always use a large font. Some judges have become remarkably, testy about font size and in recent years rules about fonts have even started to creep into Practice Directions. 12 seems to be the generally accepted minimum, but 14 is easier to read.

Pascoe is also right to warn against the infuriating tendency of some advocates to number their paragraphs 1.1, 1.2 etc (and sometimes with an even more complex system), instead of a simple 1, 2, 3, 4 etc. Advocacy is a difficult art, but it is possible for even a beginner to get that right, and common for the experienced to get it wrong. Simplicity, whether it be in plain numbering or clear unadorned language will get you a great deal further in advocacy than oratorical ornamentation, although (as Pascoe acknowledges) there is occasionally scope for a few judicious linguistic flourishes. But the best advocates are almost always those who somehow make everything seem simple. They make it look easy, even though it isn’t.

Pascoe’s book won’t make advocacy easy, but it will give young advocates plenty of guidance. It demonstrates his own point that brevity can be a virtue: you should be able to finish it in half an hour, including the extract from Julius Caesar in the final few pages (which might have been made even more interesting with Pascoe’s annotations of the rhetorical techniques deployed, as he says, in “unforgettable and glittering form” in Mark Anthony’s famous speech). But the value of a book is not to be measured by its length. Pascoe’s short primer is a classic. At just £5.99 – or £1.99 as an e-book – every aspiring advocate should read it.

The post Nigel Pascoe’s Guide For Young Advocates: Essential reading for all aspiring advocates appeared first on BarristerBlogger.

from All About Law http://barristerblogger.com/2018/07/17/nigel-pascoes-guide-for-young-advocates-essential-reading-for-all-aspiring-advocates/

[daizybethea-blog]

So There’s Been Some Buzz About Legal Data Lately …

It seems that interest in legal data has reached such a level of hype that people have started asking me about it unprompted, which is an interesting development. I had assumed that when I spoke to people about this I was buttonholing them, and that they wanted to be anywhere else and talking about anything else (except of course for Tim Knight, but that’s part of the reason we’re friends). It does make sense that it’s happening now. Legal data is interesting: it describes rules and systems that affect all our lives, it is commercially valuable, and it hasn’t been analyzed as much as other similar datasets like medical information have been. Given this surge of interest I thought I would share a few thoughts on the matter here. One particular area of interest for research is applying artificial intelligence techniques to case law for various applications, especially predictive analytics. I have written about this before here: “Like Moneyball for Lawyers?” on October 17, 2016, and generally my opinions haven’t changed in the last year and a half. There is not enough data in court decisions to provide good analytics for individual judges in particular areas of law. To adequately assess a prospective professional ball player requires thousands of swings in an activity with relatively simple inputs and results. Most judges will not write more than several hundred decisions in a long and active career with complex inputs and outputs, only some of which are available for analysis, as many court activities don’t leave a readily available written record. It’s not impossible to quantify human interactions like this, but it leaves out important nuance. Aside from publicity materials and hype induced press coverage, I have not heard positive stories about the application of artificial intelligence in law. In fact what I hear from people trying to apply AI to legal materials is that they experience general frustration. Start-ups are pivoting away from legal analysis to subject areas that have more accessible datasets and less complicated source material, and those that haven’t frequently struggle to answer simple questions. There are many applications for automated analysis of legal documents, but as far as I can tell so far they tend toward extracting particular information such as judges’ names, and, as the field has moved on, this is no longer considered “AI”. Even something as simple as saying what a case is about turns out to take nuance that computer programs struggle with (in fairness on occasion I have struggled with that too). The application of AI to legal data also suffers from the paired issues of restricted access to raw data and access to the required computing power being generally available. In the first week of studies doing an MBA they teach that for a business to be successful long term there needs to be some kind of competitive advantage, and using third party resources to parse a dataset is readily replicable. I recently heard Geordie Rose speak, and what he said is that AI is hitting the limit of what can be accomplished with free text analysis, because the programs have no context for what they are analyzing, i.e. it has no frame of reference for what an apple is, only that it associated with “pie” and “tree” strings of text. He believes that the emergence of true artificial intelligence is imminent (and is quite alarming on the subject), but that this will likely require building robots for it to explore the world. Current AI systems are looking at a series of binary encoded text and trying to find patterns, but they have no conception of which of that text is significant or what any of the words mean. Legal documents are some of the most complex writing in English, and it is unlikely that the nuance of what they mean will be an easy target. “Binary Code”. https://commons.wikimedia.org/wiki/File:Binary_Code.jpg. David Runciman recently explained this rather well in the London Review of Books: Alpha-Zero may have overcome thousands of years of human civilisation in a few days, but those same thousands of years of civilisation have taught us to register in an instant forms of communication that no machine is close to being able to comprehend. Chess is a problem to be solved, but language is not and this kind of open-ended intelligence isn’t either. Nor is language simply a problem-solving mechanism. It is what enables us to model the world around us; it allows us to decide which problems are the ones worth solving. These are forms of intelligence that machines have yet to master. (Diary, 25 January 2018, https://www.lrb.co.uk/v40/n02/david-runciman/diary) Another area of interest in legal data is to look at statistical elements of the justice system. As an example, the question I’ve always wanted the answer to is how much more likely people accused in criminal cases are to plead guilty based on longer distances between their residences and the court point given the increased difficulty involved in traveling so far—in fact I would be thrilled to know the answer if anyone does the research. The problem is that this isn’t an easy thing to extract from published legal literature. Not all court decisions are published, especially in routine matters in lower levels of court. And this kind of data that would be interesting to social scientists is not generally recorded for analysis. In the cases that are published there is usually something unusual about them which makes them worth writing up. For the traditional practice of law this doesn’t matter, because the outlying cases define the range and that’s what practitioners and courts are looking for. There are several legal research tools that are based on this principle especially for sentencing and personal injury awards. This data is not suitable to predict actual rewards based on a statistical distribution because the majority of the data points are not included in the set. Most statistical tools assume normal distribution of the data with most of the data points grouped in the middle of the range, and either a random sample or complete set of data points. “A selection of Normal Distribution Probability Density Functions (PDFs). Both the mean, μ, and variance, σ², are varied. The key is given on the graph.” https://commons.wikimedia.org/wiki/File:Normal_Distribution_PDF.svg. But court judgements aren’t a random sample. To get one would require manually compiling outcomes from court files. In British Columbia and Quebec this could be assisted by the online court document systems that are available for those provinces, but in other jurisdictions it would likely require physically traveling to a courthouse to access physical files or doing a live collection of data over a period of time. There is room to bring techniques from the social sciences into the legal system, but expect the data collection required to be onerous. For all those intrepid legal researchers, criminologists, and others who are trying to do this, I salute you and wish you well, but I think you should expect it to be difficult. That said it’s a good opportunity to look for insights no one else has had before. A notable exception to this lack of data is the First Nations Court in British Columbia, which has been collecting statistics on outcomes for their clients to better describe the value of their approach. I wrote about the First Nations Court here, but I’m sure there are better sources if you care to look for them. If there are others, I invite you to add them in the comments below. Just because it’s going to be difficult doesn’t mean it’s not worth doing. Consider John Snow’s manually compiled map of cholera deaths from 1854: “Original map made by John Snow in 1854. Cholera cases are highlighted in black”. 1854. https://commons.wikimedia.org/wiki/File:Snow-cholera-map-1.jpg. He saved millions of lives in his pioneering work on disease transmission by looking at the patterns of distribution. There is great work that can be done in law, but the ease of getting there has been overstated. http://www.slaw.ca/2018/03/29/so-theres-been-some-buzz-about-legal-data-lately/

[jenniferramona1]

Wrongful Incarceration

The criminal justice system is complex. On one hand, it aims to hold those who have committed criminal acts accountable for their behavior. On the other hand, it aims to hold ill-behaved law enforcement agencies and prosecutors accountable for their behavior. By ensuring that the rights of accused persons are respected, the system strives to achieve justice through fair and predictable means.

Unfortunately, even a skillful criminal defense does not always lead to the acquittal of wrongfully accused and wrongfully convicted persons. Sometimes law enforcement agencies and prosecutors are not held accountable for illegal practices on their part and individuals who should otherwise be released are incarcerated.

In fact, data compiled by the highly esteemed advocacy group the Innocence Project indicates that as many as 110,000 individuals are currently wrongfully incarcerated. That translates practically to nearly 5 percent of the current prison population. Some of these individuals are completely innocent of wrongdoing and even more should have had their charges dropped due to having certain rights infringed upon during the investigation and prosecution of their cases.

It is critical that the justice system operates in a fair and predictable way. Otherwise, similarly situated individuals will have no idea whether or not they will be prosecuted or granted their rightful release at any given time. Judges, lawmakers and concerned advocacy groups should give the problem of wrongful incarceration in America the urgent attention it deserves. Such attention will benefit both those directly affected by the trend and the health of the system as a whole.

Woman Accused Of DUI Forms Criminal Defense Against More Charges

A woman who was initially pursued by Enoch police on suspicion of DUI has been arrested relating to additional charges. Upon her arrest, Utah police discovered that she had a warrant from another state relating to theft charges. The woman must now begin forming her criminal defense against the various charges that she faces.

According to the report, at around 6:15 p.m., Utah police responded to a call about a potentially impaired driver on Midvalley Road. The caller claimed that a Ford Ranger was driving on the wrong side of the road, and the vehicle’s headlights were not on. When police attempted to pull the vehicle over, the driver supposedly initiated a brief chase before running into a light pole and coming to a halt.

During her arrest, officers learned that the woman was missing from California, and she was noted as suicidal. When the officers contacted California to report that the woman had been found and is in police custody, they learned that she also had a warrant out for her arrest on theft allegations. Utah police claim that they searched the car and found approximately $60,000, which they believe to have been stolen.

The woman was arrested on charges of DUI, attempting to evade police and failing to stop at a stop sign. She was also accused of failure to maintain the proper lane and driving on revocation. Utah police are working with law officials in California investigating her theft charges. Since the woman is from another state, it would be advisable for her to learn about our policies and procedures to strengthen her criminal defense as her proceedings move forward.

Free Consultation with a Criminal Lawyer

When you need a criminal defense attorney, please give our office a call for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC8833 S. Redwood Road, Suite CWest Jordan, Utah 84088 United StatesTelephone: (801) 676-5506

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from Michael Anderson http://www.ascentlawfirm.com/wrongful-incarceration/

from Utah Bankruptcy Law https://utahbankruptcylaw.wordpress.com/2018/03/10/wrongful-incarceration/

[vodsel-prime]

Wrongful Incarceration

The criminal justice system is complex. On one hand, it aims to hold those who have committed criminal acts accountable for their behavior. On the other hand, it aims to hold ill-behaved law enforcement agencies and prosecutors accountable for their behavior. By ensuring that the rights of accused persons are respected, the system strives to achieve justice through fair and predictable means.

Unfortunately, even a skillful criminal defense does not always lead to the acquittal of wrongfully accused and wrongfully convicted persons. Sometimes law enforcement agencies and prosecutors are not held accountable for illegal practices on their part and individuals who should otherwise be released are incarcerated.

In fact, data compiled by the highly esteemed advocacy group the Innocence Project indicates that as many as 110,000 individuals are currently wrongfully incarcerated. That translates practically to nearly 5 percent of the current prison population. Some of these individuals are completely innocent of wrongdoing and even more should have had their charges dropped due to having certain rights infringed upon during the investigation and prosecution of their cases.

It is critical that the justice system operates in a fair and predictable way. Otherwise, similarly situated individuals will have no idea whether or not they will be prosecuted or granted their rightful release at any given time. Judges, lawmakers and concerned advocacy groups should give the problem of wrongful incarceration in America the urgent attention it deserves. Such attention will benefit both those directly affected by the trend and the health of the system as a whole.

Woman Accused Of DUI Forms Criminal Defense Against More Charges

A woman who was initially pursued by Enoch police on suspicion of DUI has been arrested relating to additional charges. Upon her arrest, Utah police discovered that she had a warrant from another state relating to theft charges. The woman must now begin forming her criminal defense against the various charges that she faces.

According to the report, at around 6:15 p.m., Utah police responded to a call about a potentially impaired driver on Midvalley Road. The caller claimed that a Ford Ranger was driving on the wrong side of the road, and the vehicle’s headlights were not on. When police attempted to pull the vehicle over, the driver supposedly initiated a brief chase before running into a light pole and coming to a halt.

During her arrest, officers learned that the woman was missing from California, and she was noted as suicidal. When the officers contacted California to report that the woman had been found and is in police custody, they learned that she also had a warrant out for her arrest on theft allegations. Utah police claim that they searched the car and found approximately $60,000, which they believe to have been stolen.

The woman was arrested on charges of DUI, attempting to evade police and failing to stop at a stop sign. She was also accused of failure to maintain the proper lane and driving on revocation. Utah police are working with law officials in California investigating her theft charges. Since the woman is from another state, it would be advisable for her to learn about our policies and procedures to strengthen her criminal defense as her proceedings move forward.

Free Consultation with a Criminal Lawyer

When you need a criminal defense attorney, please give our office a call for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC8833 S. Redwood Road, Suite CWest Jordan, Utah 84088 United StatesTelephone: (801) 676-5506

Ascent Law LLC

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Source: http://www.ascentlawfirm.com/wrongful-incarceration/

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Battlefield America Is the New Normal: We’re Not in Mayberry Anymore

http://uniteordiemedia.com/battlefield-america-is-the-new-normal-were-not-in-mayberry-anymore/ Battlefield America Is the New Normal: We’re Not in Mayberry Anymore “Police” in Ferguson Missouri By John W. Whitehead August 29, 2017 “If we’re training cops as soldiers, giving them equipment like soldiers, dressing them up as soldiers, when are they going to pick up the mentality of soldiers? If you look at the police department, their creed is to...

“Police” in Ferguson Missouri

By John W. Whitehead August 29, 2017

“If we’re training cops as soldiers, giving them equipment like soldiers, dressing them up as soldiers, when are they going to pick up the mentality of soldiers? If you look at the police department, their creed is to protect and to serve. A soldier’s mission is to engage his enemy in close combat and kill him. Do we want police officers to have that mentality? Of course not.”— Arthur Rizer, former police officer and member of the military

America, you’ve been fooled again.

While the nation has been distracted by a media maelstrom dominated by news of white supremacists, Powerball jackpots, Hurricane Harvey, and a Mayweather v. McGregor fight, the American Police State has been carving its own path of devastation and destruction through what’s left of the Constitution.

We got sucker punched.

First, Congress overwhelmingly passed—and President Trump approved—a law allowing warrantless searches of private property for the purpose of “making inspections, investigations, examinations, and testing.”

For now, the scope of the law is geographically limited to property near the Washington DC Metro system, but mark my words, this is just a way of testing the waters. Under the pretext of ensuring public safety by “inspecting” property in the vicinity of anything that could be remotely classified as impacting public safety, the government could gain access to almost any private property in the country.

Then President Trump, aided and abetted by his trusty Department of Justice henchman Jeff Sessions and to the delight of the nation’s powerful police unions, rolled back restrictions on the government’s military recycling program.

What this means is that police agencies, only minimally deterred by the Obama administration’s cosmetic ban on certain types of military gear, can now go hog-wild.

We’re talking Blackhawk helicopters, machine guns, grenade launchers, battering rams, explosives, chemical sprays, body armor, night vision, rappelling gear, armored vehicles, and tanks.

Clearly, we’re not in Mayberry anymore.

Or if this is Mayberry, it’s Mayberry in The Twilight Zone.

As journalist Benjamin Carlson stresses, “In today’s Mayberry, Andy Griffith and Barney Fife could be using grenade launchers and a tank to keep the peace.”

You remember The Andy Griffith Show, don’t you?

Set in the fictional town of Mayberry, N.C., The Andy Griffith Show portrays the two stars of the show—Sheriff Andy Taylor and his bumbling deputy Barney Fife—as peace officers in the truest sense of the word as opposed to law enforcers.

Both Sheriff Taylor and Deputy Fife dress in khaki uniforms, a far cry from the black, militarized Stormtrooper getups worn by police today. Andy refuses to wear a gun and only allows Barney to wear his gun on the proviso that he keep his single bullet out of the chamber and in his shirt pocket. Most of all, the two lawmen relate to those under their protection as equals, rather than as enemy combatants or inferiors.

Contrast the idyllic Mayberry with the American police state of today, where local police—clad in jackboots, helmets and shields and wielding batons, pepper-spray, stun guns, and assault rifles—have increasingly come to resemble occupying forces in communities across the country.

As Alyssa Rosenberg writes for The Washington Post, “[The Andy Griffith Show] expressed an ideal that has leached out of American pop culture and public policy, to dangerous effect: that the police were part of the communities that they served and shared their fellow citizens’ interests. They were of their towns and cities, not at war with them.”

That’s really what this is about: a war on the American citizenry waged by local law enforcement armed to the teeth with weapons previously only seen on the battlefield

If you thought the militarized police response to Ferguson and Baltimore was bad, brace yourselves.

As investigative journalists Andrew Becker and G.W. Schulz reveal, “Many police, including beat cops, now routinely carry assault rifles. Combined with body armor and other apparel, many officers look more and more like combat troops serving in Iraq and Afghanistan.”

Thanks to Trump, this transformation of America into a battlefield is only going to get worse.

To be fair, Trump did not create this totalitarian nightmare. However, he has legitimized it and, in so doing, has also accelerated the pace at which we fall deeper into the clutches of outright tyranny.

Everything America’s founders warned against—a standing army that would view and treat American citizens as combatants—is fast becoming the norm. Certainly, this lopsided, top-heavy, authoritarian state of affairs is not the balance of power the founders intended for “we the people.”

Yet in the hands of government agents, whether they are members of the military, law enforcement or some other government agency, these weapons of war have become accepted instruments of tyranny, routine parts of America’s day-to-day life, a byproduct of the rapid militarization of law enforcement over the past several decades.

As Becker and Schulz document in their insightful piece, “Local Cops Ready for War With Homeland Security-Funded Military Weapons”:

In Montgomery County, Texas, the sheriff’s department owns a $300,000 pilotless surveillance drone, like those used to hunt down al Qaeda terrorists in the remote tribal regions of Pakistan and Afghanistan. In Augusta, Maine, with fewer than 20,000 people and where an officer hasn’t died from gunfire in the line of duty in more than 125 years, police bought eight $1,500 tactical vests. Police in Des Moines, Iowa, bought two $180,000 bomb-disarming robots, while an Arizona sheriff is now the proud owner of a surplus Army tank.

Under this recycling program, small counties and cities throughout the country have been “gifted” with 20-ton Mine Resistant Ambush Protected (MRAP) vehicles.

MRAPs are built to withstand roadside bombs, a function which seems unnecessary for any form of domestic policing, yet police in Jefferson County, New York, Boise and Nampa, Idaho, as well as High Springs, Florida, have all acquired MRAPs. Police in West Lafayette, Indiana also have an MRAP, valued at half a million dollars.

Universities are getting in on the program as well.

The Ohio State University Department of Public Safety acquired an MRAP, which a university spokesperson said will be used for “officer rescue, hostage scenarios, bomb evaluation,” situations which are not common on OSU’s campus. In fact, it will be used for crowd control at football games.

Almost 13,000 agencies in all 50 states and four U.S. territories participate in the military “recycling” program, and the share of equipment and weaponry gifted each year continues to expand.

In 2011, $500 million worth of military equipment was distributed to law enforcement agencies throughout the country. That number jumped to $546 million in 2012.

Since 1990, $4.2 billion worth of equipment has been transferred from the Defense Department to domestic police agencies through the 1033 program, in addition to various other programs supposedly aimed at fighting the so-called War on Drugs and War on Terror. For example, the Department of Homeland Security has delivered roughly $34 billion to police departments throughout the country since 9/11, ostensibly to purchase more gear for their steady growing arsenals of military weapons and equipment.

Police departments are also receiving grants to create microcosms of the extensive surveillance systems put in place by the federal government in the years since 9/11.

For example, using a $2.6 million grant from the DHS, police in Seattle purchased and setup a “mesh network”throughout the city capable of tracking every Wi-Fi enabled device within range. Police claim it won’t be used for surveillance, but the devices are capable of determining “the IP address, device type, downloaded applications, current location, and historical location of any device that searches for a Wi-Fi signal.”

Now ask yourself: why does a police department which hasn’t had an officer killed in the line of duty in over 125 years in a town of less than 20,000 people need tactical military vests like those used by soldiers in Afghanistan?

Why does a police department in a city of 35,000 people need a military-grade helicopter?

For that matter, what possible use could police at Ohio State University have for acquiring a heavily-armored vehicle intended to withstand IED blasts?

It’s a modern-day Trojan Horse.

Although these federal programs that allow the military to “gift” battlefield-appropriate weapons, vehicles and equipment to domestic police departments at taxpayer expense are being sold to communities as a benefit, the real purpose is to keep the defense industry churning out profits, bring police departments in line with the military, and establish a standing army.

It’s a militarized approach to make-work programs, except in this case, instead of unnecessary busy work to keep people employed, communities across America are finding themselves “gifted” with unnecessary drones, tanks, grenade launchers and other military equipment better suited to the battlefield in order to fatten the bank accounts of the military industrial complex.

Not surprisingly, this trend towards the militarization of domestic police forces has also opened up a new market for military contractors.

You know who gets stuck with the bill for all of this unnecessary military gear, don’t you?

“We the taxpayers,” of course.

First, taxpayers are forced to pay millions of dollars for equipment which the Defense Department purchases from megacorporations only to abandon after a few years. Then taxpayers get saddled with the bill to maintain the costly equipment once it has been acquired by the local police.

It’s like the old adage: “never look a gift horse in the mouth.” The catch is that this gift horse is an expensive and deadly boondoggle.

For instance, although the Tupelo, Miss., police department was “gifted” with a free military helicopter, residents quickly learned that it required “$100,000 worth of upgrades and $20,000 each year in maintenance.”

In addition to being an astounding waste of taxpayer money, this equipping of police with military-grade equipment and weapons also gives rise to a dangerous mindset in which police adopt a warrior-like, more aggressive approach to policing.

The results are deadly.

As a study by researchers at Stanford University makes clear, “When law enforcement receives more military materials — weapons, vehicles and tools — it becomes … more likely to jump into high-risk situations. Militarization makes every problem — even a car of teenagers driving away from a party — look like a nail that should be hit with an AR-15 hammer.”

The danger of giving police high-power toys and weapons is that they will feel compelled to use it in all kinds of situations that would never normally warrant battlefield gear, weapons or tactics.

This “if we have it, we might as well use it” mindset, by the way, is also used to justify assigning SWAT teams to carry out routine law enforcement work such as delivering a warrant. That’s how you end up with SWAT tactics being employed when police are tasked with searching for a stolen koi fish and enforcing barber licensing laws.

Suffice it to say, we’re long past the days of Mayberry when cops were peace officers and recognized their role as public servants, a marked contrast to the climate of entitlement that has cops today acting like overlords and authoritarians.

Change will not come easily.

As I make clear in my book Battlefield America: The War on the American People, the police unions are a powerful force and they will not relinquish their power easily. Connect the dots and you’ll find that most, if not all, attempts to cover up police misconduct or sidestep accountability can be traced back to police unions and the police lobby.

Just look at Trump: he’s been on the police unions’ payroll from the moment they endorsed him for president, and he’s paid them back generously by ensuring that police can kill, shoot, taser, abuse and steal from American citizens with impunity.

Still, the responsibility rests with “we the people.”

As author Ta-Nehisi Coates reminds us:

The truth is that the police reflect America in all of its will and fear, and whatever we might make of this country’s criminal justice policy, it cannot be said that it was imposed by a repressive minority. The abuses that have followed from these policies—the sprawling carceral state, the random detention of black people, the torture of suspects—are the product of democratic will. And so to challenge the police is to challenge the American people who send them into the ghettos armed with the same self-generated fears that compelled the people who think they are white to flee the cities and into the Dream. The problem with the police is not that they are fascist pigs but that our country is ruled by majoritarian pigs.

Read More: https://www.rutherford.org/publications_resources/john_whiteheads_commentary/battlefield_america_is_the_new_normal_were_not_in_mayberry_anymore

[96thdayofrage]

First, Congress overwhelmingly passed—and President Trump approved—a law allowing warrantless searches of private property for the purpose of “making inspections, investigations, examinations, and testing.”

For now, the scope of the law is geographically limited to property near the Washington DC Metro system, but mark my words, this is just a way of testing the waters. Under the pretext of ensuring public safety by “inspecting” property in the vicinity of anything that could be remotely classified as impacting public safety, the government could gain access to almost any private property in the country.

Then President Trump, aided and abetted by his trusty Department of Justice henchman Jeff Sessions and to the delight of the nation’s powerful police unions, rolled back restrictions on the government’s military recycling program.

What this means is that police agencies, only minimally deterred by the Obama administration’s cosmetic ban on certain types of military gear, can now go hog-wild.

We’re talking Blackhawk helicopters, machine guns, grenade launchers, battering rams, explosives, chemical sprays, body armor, night vision, rappelling gear, armored vehicles, and tanks.

Clearly, we’re not in Mayberry anymore.

Or if this is Mayberry, it’s Mayberry in The Twilight Zone.

As journalist Benjamin Carlson stresses, “In today’s Mayberry, Andy Griffith and Barney Fife could be using grenade launchers and a tank to keep the peace.”

You remember The Andy Griffith Show, don’t you?

Set in the fictional town of Mayberry, N.C., The Andy Griffith Show portrays the two stars of the show—Sheriff Andy Taylor and his bumbling deputy Barney Fife—as peace officers in the truest sense of the word as opposed to law enforcers.

Both Sheriff Taylor and Deputy Fife dress in khaki uniforms, a far cry from the black, militarized Stormtrooper getups worn by police today. Andy refuses to wear a gun and only allows Barney to wear his gun on the proviso that he keep his single bullet out of the chamber and in his shirt pocket. Most of all, the two lawmen relate to those under their protection as equals, rather than as enemy combatants or inferiors.

Contrast the idyllic Mayberry with the American police state of today, where local police—clad in jackboots, helmets and shields and wielding batons, pepper-spray, stun guns, and assault rifles—have increasingly come to resemble occupying forces in communities across the country.

As Alyssa Rosenberg writes for The Washington Post, “[The Andy Griffith Show] expressed an ideal that has leached out of American pop culture and public policy, to dangerous effect: that the police were part of the communities that they served and shared their fellow citizens’ interests. They were of their towns and cities, not at war with them.”

That’s really what this is about: a war on the American citizenry waged by local law enforcement armed to the teeth with weapons previously only seen on the battlefield

If you thought the militarized police response to Ferguson and Baltimore was bad, brace yourselves.

As investigative journalists Andrew Becker and G.W. Schulz reveal, “Many police, including beat cops, now routinely carry assault rifles. Combined with body armor and other apparel, many officers look more and more like combat troops serving in Iraq and Afghanistan.”

Thanks to Trump, this transformation of America into a battlefield is only going to get worse.

To be fair, Trump did not create this totalitarian nightmare. However, he has legitimized it and, in so doing, has also accelerated the pace at which we fall deeper into the clutches of outright tyranny.

Everything America’s founders warned against—a standing army that would view and treat American citizens as combatants—is fast becoming the norm. Certainly, this lopsided, top-heavy, authoritarian state of affairs is not the balance of power the founders intended for “we the people.”

Yet in the hands of government agents, whether they are members of the military, law enforcement or some other government agency, these weapons of war have become accepted instruments of tyranny, routine parts of America’s day-to-day life, a byproduct of the rapid militarization of law enforcement over the past several decades.

As Becker and Schulz document in their insightful piece, “Local Cops Ready for War With Homeland Security-Funded Military Weapons”:

In Montgomery County, Texas, the sheriff’s department owns a $300,000 pilotless surveillance drone, like those used to hunt down al Qaeda terrorists in the remote tribal regions of Pakistan and Afghanistan. In Augusta, Maine, with fewer than 20,000 people and where an officer hasn’t died from gunfire in the line of duty in more than 125 years, police bought eight $1,500 tactical vests. Police in Des Moines, Iowa, bought two $180,000 bomb-disarming robots, while an Arizona sheriff is now the proud owner of a surplus Army tank.

Under this recycling program, small counties and cities throughout the country have been “gifted” with 20-ton Mine Resistant Ambush Protected (MRAP) vehicles.

MRAPs are built to withstand roadside bombs, a function which seems unnecessary for any form of domestic policing, yet police in Jefferson County, New York, Boise and Nampa, Idaho, as well as High Springs, Florida, have all acquired MRAPs. Police in West Lafayette, Indiana also have an MRAP, valued at half a million dollars.

Universities are getting in on the program as well.

The Ohio State University Department of Public Safety acquired an MRAP, which a university spokesperson said will be used for “officer rescue, hostage scenarios, bomb evaluation,” situations which are not common on OSU’s campus. In fact, it will be used for crowd control at football games.

Almost 13,000 agencies in all 50 states and four U.S. territories participate in the military “recycling” program, and the share of equipment and weaponry gifted each year continues to expand.

In 2011, $500 million worth of military equipment was distributed to law enforcement agencies throughout the country. That number jumped to $546 million in 2012.

Since 1990, $4.2 billion worth of equipment has been transferred from the Defense Department to domestic police agencies through the 1033 program, in addition to various other programs supposedly aimed at fighting the so-called War on Drugs and War on Terror. For example, the Department of Homeland Security has delivered roughly $34 billion to police departments throughout the country since 9/11, ostensibly to purchase more gear for their steady growing arsenals of military weapons and equipment.

Police departments are also receiving grants to create microcosms of the extensive surveillance systems put in place by the federal government in the years since 9/11.

For example, using a $2.6 million grant from the DHS, police in Seattle purchased and setup a “mesh network”throughout the city capable of tracking every Wi-Fi enabled device within range. Police claim it won’t be used for surveillance, but the devices are capable of determining “the IP address, device type, downloaded applications, current location, and historical location of any device that searches for a Wi-Fi signal.”

Now ask yourself: why does a police department which hasn’t had an officer killed in the line of duty in over 125 years in a town of less than 20,000 people need tactical military vests like those used by soldiers in Afghanistan?

Why does a police department in a city of 35,000 people need a military-grade helicopter?

For that matter, what possible use could police at Ohio State University have for acquiring a heavily-armored vehicle intended to withstand IED blasts?

It’s a modern-day Trojan Horse.

Although these federal programs that allow the military to “gift” battlefield-appropriate weapons, vehicles and equipment to domestic police departments at taxpayer expense are being sold to communities as a benefit, the real purpose is to keep the defense industry churning out profits, bring police departments in line with the military, and establish a standing army.

It’s a militarized approach to make-work programs, except in this case, instead of unnecessary busy work to keep people employed, communities across America are finding themselves “gifted” with unnecessary drones, tanks, grenade launchers and other military equipment better suited to the battlefield in order to fatten the bank accounts of the military industrial complex.

Not surprisingly, this trend towards the militarization of domestic police forces has also opened up a new market for military contractors.

You know who gets stuck with the bill for all of this unnecessary military gear, don’t you?

“We the taxpayers,” of course.

First, taxpayers are forced to pay millions of dollars for equipment which the Defense Department purchases from megacorporations only to abandon after a few years. Then taxpayers get saddled with the bill to maintain the costly equipment once it has been acquired by the local police.

It’s like the old adage: “never look a gift horse in the mouth.” The catch is that this gift horse is an expensive and deadly boondoggle.

For instance, although the Tupelo, Miss., police department was “gifted” with a free military helicopter, residents quickly learned that it required “$100,000 worth of upgrades and $20,000 each year in maintenance.”

In addition to being an astounding waste of taxpayer money, this equipping of police with military-grade equipment and weapons also gives rise to a dangerous mindset in which police adopt a warrior-like, more aggressive approach to policing.

The results are deadly.

As a study by researchers at Stanford University makes clear, “When law enforcement receives more military materials — weapons, vehicles and tools — it becomes … more likely to jump into high-risk situations. Militarization makes every problem — even a car of teenagers driving away from a party — look like a nail that should be hit with an AR-15 hammer.”

The danger of giving police high-power toys and weapons is that they will feel compelled to use it in all kinds of situations that would never normally warrant battlefield gear, weapons or tactics.

This “if we have it, we might as well use it” mindset, by the way, is also used to justify assigning SWAT teams to carry out routine law enforcement work such as delivering a warrant. That’s how you end up with SWAT tactics being employed when police are tasked with searching for a stolen koi fish and enforcing barber licensing laws.

Suffice it to say, we’re long past the days of Mayberry when cops were peace officers and recognized their role as public servants, a marked contrast to the climate of entitlement that has cops today acting like overlords and authoritarians.

Change will not come easily.

As I make clear in my book Battlefield America: The War on the American People, the police unions are a powerful force and they will not relinquish their power easily. Connect the dots and you’ll find that most, if not all, attempts to cover up police misconduct or sidestep accountability can be traced back to police unions and the police lobby.

Just look at Trump: he’s been on the police unions’ payroll from the moment they endorsed him for president, and he’s paid them back generously by ensuring that police can kill, shoot, taser, abuse and steal from American citizens with impunity.

Still, the responsibility rests with “we the people.”

As author Ta-Nehisi Coates reminds us:

The truth is that the police reflect America in all of its will and fear, and whatever we might make of this country’s criminal justice policy, it cannot be said that it was imposed by a repressive minority. The abuses that have followed from these policies—the sprawling carceral state, the random detention of black people, the torture of suspects—are the product of democratic will. And so to challenge the police is to challenge the American people who send them into the ghettos armed with the same self-generated fears that compelled the people who think they are white to flee the cities and into the Dream. The problem with the police is not that they are fascist pigs but that our country is ruled by majoritarian pigs.

Join the debate on Facebook

[nancydhooper]

Lawsplainer: How Federal Grand Juries Work, Part One

I have good news!

I doubt it.

I was going to ask you how federal grand juries work, but now I don't need to!

That is good news.

I'm just going to learn about them on Twitter!

wat

Newt Gingrich is posting some very informative stuff!

This is low. This is low, even for you.

So now you don't have to explain anything! You can just let people rely on what they read about grand juries on social media!

Damn you. Damn you to the depths of Hell.

Fine. What's your question?

Well, it's kind of a dumb question.

Believe me when I say I have thoroughly prepared myself for that eventuality.

ORIGINS

What is a grand jury, anyway?

That's actually not a dumb question at all.

A grand jury is a group of citizens brought together to determine whether to bring criminal charges against someone suspected of a crime. Here's how the Supreme Court described the grand jury and its origins in 1956:

The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people, and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge, and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings, the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And, in this country, as in England of old, the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.

So the Constitution requires grand juries?

It requires federal grand juries. The Fifth Amendment says "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . . ." So, the Constitution requires that the federal government get an indictment from a federal grand jury before charging you with a federal felony.

What about states?

That's a long separate discussion. The Bill of Rights, by its terms, only limits the federal government. But early in the 20th Century courts decided that the Fourteenth Amendment made parts of the Bill of Rights applicable to the states through a process called "incorporation." The Fourteenth Amendment provides that states can't "deprive any person of life, liberty, or property, without due process of law," and courts gradually decided that various rights in the Bill of Rights (like the right to free speech or the right to remain silent) were "incorporated" in the notion of due process of law and thus made applicable against the states. But the right to indictment by grand jury has never been incorporated, and at this point is unlikely ever to be. So states can charge you with a felony without a grand jury indictment.

FORMATION

So how are federal grand juries formed? I saw a bunch of headlines that Special Counsel Robert Mueller had impaneled a federal grand jury to investigate President Trump.

Those headlines are almost certainly misleading.

Here's how it works. The Unites States' federal court system is divided into 94 districts. Some states have multiple districts — here in California there are four. Some states have only one, and the District of Columbia has some. Each district has its own United States District Court and its own United States Attorney. Each district has its own grand juries.

In the early days of America, courts convened federal grand juries when needed. But now each district has a grand jury operating all the time, and most district have multiple grand juries. Federal grand juries tend to meet anywhere from once a week to once a month, so in big districts you'll have at least one grand jury operating every day of the week.

There are some federal laws allowing new grand juries to be impaneled for special purposes. But it's extremely unlikely that's what Robert Mueller did. Rather, most likely he just started to use an existing federal grand jury in the District of Colombia, one that already existed and was formed to hear a variety of cases. That's what he previously did in Virginia.

SELECTION, TERM OF SERVICE, AND TRAINING OF GRAND JURORS

So how do you become a federal grand juror?

Federal courts select potential jurors from records of the voters in their federal judicial districts. Then the courts divide them into potential trail jurors and potential grand jurors.

The court then screens potential grand jurors to see if they are able to serve for the length of time required.

How long do federal grand jurors have to serve?

Commonly federal grand jurors serve for anywhere from a year to 18 months, meeting anywhere from once a week to once a month. It's a lot of time, which is why the court screens out the people who can't do it.

Do the lawyers get to challenge grand jurors, like at trial?

No. There's no voir dire, so prosecutors and defense lawyers don't get to ask questions and excuse people who seem to have a bias.

How are the federal grand jurors trained?

The courts commonly provide handbooks and training materials for federal grand jurors, but often federal prosecutors hold training sessions to teach them their duties.

Wait a minute. Federal prosecutors, the advocates who are going to be asking the grand jurors to agree that they've established probable cause that a crime has been committed, get to train the grand jurors in what probable cause means?

Yup. Convenient, huh?

How many grand jurors on a grand jury?

23. And 16 need to show up for there to be a quorum allowing them to operate. It doesn't always happen.

DAY TO DAY OPERATION AND PROCEDURE

So what do federal grand jurors do all day?

Well, first you need to understand that by custom and practice, federal prosecutors divide grand juries up into two types: accusatory and investigatory.

The feds have a lot of common, uncomplicated, reactive criminal cases that don't involve lengthy investigations — things like bank robberies, straightforward drug crimes (like a guy caught with a kilo of cocaine, for example), immigration crimes, and so forth. Prosecutors present those cases to accusatory grand juries for indictment. When I was a federal prosecutor on grand jury duty, I might present between four and eight simple cases to an accusatory grand jury on its day of service for indictment.

Federal grand juries use investigatory grand juries to develop complex cases over long periods of time — to subpoena documents, to bring in witnesses to testify, and to seek indictment only after many months or years.

What does accusatory grand jury practice look like?

Quick and dirty.

Federal prosecutors walk into the accusatory grand jury with the indictment they're asking the grand jurors to approve. They read the indictment to the grand jury and may or may not tell them the elements of the charged crime — that is, the legal requirements defining the offense. Then they call a case agent — an FBI agent, for instance — as a witness and ask them to summarize the investigation and the evidence. You can present hearsay and double- and triple- and quadruple-hearsay to the grand jury. So, for instance, the federal prosecutor can ask the case agent to summarize reports he or she read that contained another agent's report of that other agent's interview of a witness. The prosecutor then asks for questions, and if there are none, leaves the room with the witness and the court reporter and waits outside for the grand jurors to vote on whether to indict. It's usually a very short wait. Once they're done, the foreperson signs the indictment, the defendant is charged with a federal crime, and you move on to the next case.

What are the grand jurors deciding?

They're supposed to decide whether the charges in the indictment are supported by probable cause — that is, enough evidence to make a reasonable person believe that the defendant committed the crime. 12 grand jurors have to vote to indict to return what's called a "true bill."

What about an investigatory grand jury? What does it do all day?

It does whatever the prosecutors want it to do.

Federal prosecutors use investigatory grand juries to build cases over a long period of time. Practically speaking the grand jury is typically not an active participant in this process until the very end when it votes to indict; it's more of a bystander. The federal prosecutors decide whom to investigate, what documents to subpoena, what witnesses to call, and what to ask them. They decide the pace and the focus. Federal prosecutors may share very little with an investigative grand jury about whom they want to indict, how they plan to get there, and why any particular witness has been called or how that witness fits into the scheme of the case. The federal prosecutor may have a meticulous strategy, but generally the grand jurors are not in on it. Effective prosecutors may give brief summaries of the nature of the investigation and how a particular witness fits into it, but it's not mandatory. Federal prosecutors subpoena documents with grand jury subpoenas, but they rarely review those documents with the grand jurors or explain them or their significance — they just periodically call a federal agent as a witness and say "Federal agent, did we subpoena documents on behalf of this grand jury? Did you receive documents? Will you keep custody of them on behalf of this grand jury? Thank you."

Add to that the fact that an investigative grand jury may be hearing many different cases over their term. On a given day one prosecutor may take all of their time, but more commonly two or three or four prosecutors may be calling witnesses in different investigations. The grand jurors have notebooks, but they can't keep track of the cases in other ways, and practically speaking it would take a very unusual grand juror to keep track of all the different investigations and the flow of information and evidence and how it all fits together. I don't think I could do it, and I've been doing federal criminal law for 23 years.

(By the way, this is one of the few things that tends to disrupt the camaraderie of a U.S. Attorney's office — you have to sign up for grand jury time, and competition for the time can be fierce, and some prosecutors have bad habits like signing up for all the time for months just in case they have a witness they want to call, and so forth.)

Think of it, then, from the perspective of a federal grand jury on an investigatory grand jury. They don't have any training in federal criminal law. They don't know, until they're instructed at the time they're asked to approve an indictment, what the relevant federal criminal laws are or what the elements of those crimes are. Men and women in suits show up and call witnesses and ask those witnesses questions — often boring questions about dates and documents and such — but they have very little idea what the context is for those questions or how they connect with anything or how they build towards anything. Different men and women in different suits call witnesses and talk about documents from different cases, and it's all a blur.

Can't the grand jurors ask questions? Don't they?

They can and they do — at least occasionally. But if you're not trained in law, let alone federal criminal law, it's hard to know what to ask. The questions don't tend to be probing ones into the adequacy of probable cause. They tend to be general requests for reminders, idle curiosity, or odd tangents.

Some grand juries and some grand jurors develop reputations for being "active" — for asking a lot of questions. Then prosecutors tend to avoid those grand juries and take their cases to a different grand jury meeting another day. But in my experience, the "active" grand juries were never "active" in the sense of vigorously assuring that the government showed probable cause — they were "active" in the sense of a public meeting gadfly, asking lots of bizarre questions.

So what about when a federal prosecutor finally wants an indictment from an investigatory grand jury?

In the end it works much like an accusatory grand jury. The prosecutor drafts the indictment, reads it to the grand jury, perhaps reads them the criminal statutes or the elements of the crimes, and asks them to vote. They prosecutor may first ask an agent to summarize what they've already heard, or may discuss a summary himself or herself (though that's not evidence, since it isn't sworn.)

Bear in mind that at this point the investigatory grand jury is voting based on its memory of witnesses and evidence over the course of as much as 18 months. In fact, sometimes an investigation can last over the term of more than one grand jury — if it goes for more than 18 months, more than one investigatory grand jury may continue hearing it. In that case, sometimes the new grand jury is given the transcripts of the old grand jury proceedings and invited to read the transcripts as part of its probable cause determination. I'm sure they read it very thoroughly.

That sounds like the grand jury's probable cause determination is a sheer legal fiction.

In my opinion, at least in the case of investigatory grand juries, it often is. Now, some prosecutors will very responsibly outline all the past testimony and ask the agent to summarize it under oath and point the grand jury to relevant parts in the transcripts and diligently answer questions. But that sort of conduct is an outlier.

So why do federal prosecutors use investigatory grand juries at all? Why not just show up and ask to indict?

That goes to the strategy and tactics of grand jury practice. And that's for the next lawsplainer.

When?

When I damn well feel like it.

This week, though.

Copyright 2017 by the named Popehat author. from RSSMix.com Mix ID 8247012 https://www.popehat.com/2017/08/07/lawsplainer-how-federal-grand-juries-work-part-one/ via http://www.rssmix.com/

[kennethmullins]

Lawsplainer: How Federal Grand Juries Work, Part One

I have good news!

I doubt it.

I was going to ask you how federal grand juries work, but now I don't need to!

That is good news.

I'm just going to learn about them on Twitter!

wat

Newt Gingrich is posting some very informative stuff!

This is low. This is low, even for you.

So now you don't have to explain anything! You can just let people rely on what they read about grand juries on social media!

Damn you. Damn you to the depths of Hell.

Fine. What's your question?

Well, it's kind of a dumb question.

Believe me when I say I have thoroughly prepared myself for that eventuality.

ORIGINS

What is a grand jury, anyway?

That's actually not a dumb question at all.

A grand jury is a group of citizens brought together to determine whether to bring criminal charges against someone suspected of a crime. Here's how the Supreme Court described the grand jury and its origins in 1956:

The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people, and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge, and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings, the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And, in this country, as in England of old, the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.

So the Constitution requires grand juries?

It requires federal grand juries. The Fifth Amendment says "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . . ." So, the Constitution requires that the federal government get an indictment from a federal grand jury before charging you with a federal felony.

What about states?

That's a long separate discussion. The Bill of Rights, by its terms, only limits the federal government. But early in the 20th Century courts decided that the Fourteenth Amendment made parts of the Bill of Rights applicable to the states through a process called "incorporation." The Fourteenth Amendment provides that states can't "deprive any person of life, liberty, or property, without due process of law," and courts gradually decided that various rights in the Bill of Rights (like the right to free speech or the right to remain silent) were "incorporated" in the notion of due process of law and thus made applicable against the states. But the right to indictment by grand jury has never been incorporated, and at this point is unlikely ever to be. So states can charge you with a felony without a grand jury indictment.

FORMATION

So how are federal grand juries formed? I saw a bunch of headlines that Special Counsel Robert Mueller had impaneled a federal grand jury to investigate President Trump.

Those headlines are almost certainly misleading.

Here's how it works. The Unites States' federal court system is divided into 94 districts. Some states have multiple districts — here in California there are four. Some states have only one, and the District of Columbia has some. Each district has its own United States District Court and its own United States Attorney. Each district has its own grand juries.

In the early days of America, courts convened federal grand juries when needed. But now each district has a grand jury operating all the time, and most district have multiple grand juries. Federal grand juries tend to meet anywhere from once a week to once a month, so in big districts you'll have at least one grand jury operating every day of the week.

There are some federal laws allowing new grand juries to be impaneled for special purposes. But it's extremely unlikely that's not what Robert Mueller. Rather, most likely he just started to use an existing federal grand jury in the District of Colombia, one that already existed and was formed to hear a variety of cases. That's what he previously did in Virginia.

SELECTION, TERM OF SERVICE, AND TRAINING OF GRAND JURORS

So how do you become a federal grand juror?

Federal courts select potential jurors from records of the voters in their federal judicial districts. Then the courts divide them into potential trail jurors and potential grand jurors.

The court then screens potential grand jurors to see if they are able to serve for the length of time required.

How long do federal grand jurors have to serve?

Commonly federal grand jurors serve for anywhere from a year to 18 months, meeting anywhere from once a week to once a month. It's a lot of time, which is why the court screens out the people who can't do it.

Do the lawyers get to challenge grand jurors, like at trial?

No. There's no voir dire, so prosecutors and defense lawyers don't get to ask questions and excuse people who seem to have a bias.

How are the federal grand jurors trained?

The courts commonly provide handbooks and training materials for federal grand jurors, but often federal prosecutors hold training sessions to teach them their duties.

Wait a minute. Federal prosecutors, the advocates who are going to be asking the grand jurors to agree that they've established probable cause that a crime has been committed, get to train the grand jurors in what probable cause means?

Yup. Convenient, huh?

How many grand jurors on a grand jury?

23. And 16 need to show up for there to be a quorum allowing them to operate. It doesn't always happen.

DAY TO DAY OPERATION AND PROCEDURE

So what do federal grand jurors do all day?

Well, first you need to understand that by custom and practice, federal prosecutors divide grand juries up into two types: accusatory and investigatory.

The feds have a lot of common, uncomplicated, reactive criminal cases that don't involve lengthy investigations — things like bank robberies, straightforward drug crimes (like a guy caught with a kilo of cocaine, for example), immigration crimes, and so forth. Prosecutors present those cases to accusatory grand juries for indictment. When I was a federal prosecutor on grand jury duty, I might present between four and eight simple cases to an accusatory grand jury on its day of service for indictment.

Federal grand juries use investigatory grand juries to develop complex cases over long periods of time — to subpoena documents, to bring in witnesses to testify, and to seek indictment only after many months or years.

What does accusatory grand jury practice look like?

Quick and dirty.

Federal prosecutors walk into the accusatory grand jury with the indictment they're asking the grand jurors to approve. They read the indictment to the grand jury and may or may not tell them the elements of the charged crime — that is, the legal requirements defining the offense. Then they call a case agent — an FBI agent, for instance — as a witness and ask them to summarize the investigation and the evidence. You can present hearsay and double- and triple- and quadruple-hearsay to the grand jury. So, for instance, the federal prosecutor can ask the case agent to summarize reports he or she read that contained another agent's report of that other agent's interview of a witness. The prosecutor then asks for questions, and if there are none, leaves the room with the witness and the court reporter and waits outside for the grand jurors to vote on whether to indict. It's usually a very short wait. Once they're done, the foreperson signs the indictment, the defendant is charged with a federal crime, and you move on to the next case.

What are the grand jurors deciding?

They're supposed to decide whether the charges in the indictment are supported by probable cause — that is, enough evidence to make a reasonable person believe that the defendant committed the crime. 12 grand jurors have to vote to indict to return what's called a "true bill."

What about an investigatory grand jury? What does it do all day?

It does whatever the prosecutors want it to do.

Federal prosecutors use investigatory grand juries to build cases over a long period of time. Practically speaking the grand jury is typically not an active participant in this process until the very end when it votes to indict; it's more of a bystander. The federal prosecutors decide whom to investigate, what documents to subpoena, what witnesses to call, and what to ask them. They decide the pace and the focus. Federal prosecutors may share very little with an investigative grand jury about whom they want to indict, how they plan to get there, and why any particular witness has been called or how that witness fits into the scheme of the case. The federal prosecutor may have a meticulous strategy, but generally the grand jurors are not in on it. Effective prosecutors may give brief summaries of the nature of the investigation and how a particular witness fits into it, but it's not mandatory. Federal prosecutors subpoena documents with grand jury subpoenas, but they rarely review those documents with the grand jurors or explain them or their significance — they just periodically call a federal agent as a witness and say "Federal agent, did we subpoena documents on behalf of this grand jury? Did you receive documents? Will you keep custody of them on behalf of this grand jury? Thank you."

Add to that the fact that an investigative grand jury may be hearing many different cases over their term. On a given day one prosecutor may take all of their time, but more commonly two or three or four prosecutors may be calling witnesses in different investigations. The grand jurors have notebooks, but they can't keep track of the cases in other ways, and practically speaking it would take a very unusual grand juror to keep track of all the different investigations and the flow of information and evidence and how it all fits together. I don't think I could do it, and I've been doing federal criminal law for 23 years.

(By the way, this is one of the few things that tends to disrupt the camaraderie of a U.S. Attorney's office — you have to sign up for grand jury time, and competition for the time can be fierce, and some prosecutors have bad habits like signing up for all the time for months just in case they have a witness they want to call, and so forth.)

Think of it, then, from the perspective of a federal grand jury on an investigatory grand jury. They don't have any training in federal criminal law. They don't know, until they're instructed at the time they're asked to approve an indictment, what the relevant federal criminal laws are or what the elements of those crimes are. Men and women in suits show up and call witnesses and ask those witnesses questions — often boring questions about dates and documents and such — but they have very little idea what the context is for those questions or how they connect with anything or how they build towards anything. Different men and women in different suits call witnesses and talk about documents from different cases, and it's all a blur.

Can't the grand jurors ask questions? Don't they?

They can and they do — at least occasionally. But if you're not trained in law, let alone federal criminal law, it's hard to know what to ask. The questions don't tend to be probing ones into the adequacy of probable cause. They tend to be general requests for reminders, idle curiosity, or odd tangents.

Some grand juries and some grand jurors develop reputations for being "active" — for asking a lot of questions. Then prosecutors tend to avoid those grand juries and take their cases to a different grand jury meeting another day. But in my experience, the "active" grand juries were never "active" in the sense of vigorously assuring that the government showed probable cause — they were "active" in the sense of a public meeting gadfly, asking lots of bizarre questions.

So what about when a federal prosecutor finally wants an indictment from an investigatory grand jury?

In the end it works much like an accusatory grand jury. The prosecutor drafts the indictment, reads it to the grand jury, perhaps reads them the criminal statutes or the elements of the crimes, and asks them to vote. They prosecutor may first ask an agent to summarize what they've already heard, or may discuss a summary himself or herself (though that's not evidence, since it isn't sworn.)

Bear in mind that at this point the investigatory grand jury is voting based on its memory of witnesses and evidence over the course of as much as 18 months. In fact, sometimes an investigation can last over the term of more than one grand jury — if it goes for more than 18 months, more than one investigatory grand jury may continue hearing it. In that case, sometimes the new grand jury is given the transcripts of the old grand jury proceedings and invited to read the transcripts as part of its probable cause determination. I'm sure they read it very thoroughly.

That sounds like the grand jury's probable cause determination is a sheer legal fiction.

In my opinion, at least in the case of investigatory grand juries, it often is. Now, some prosecutors will very responsibly outline all the past testimony and ask the agent to summarize it under oath and point the grand jury to relevant parts in the transcripts and diligently answer questions. But that sort of conduct is an outlier.

So why do federal prosecutors use investigatory grand juries at all? Why not just show up and ask to indict?

That goes to the strategy and tactics of grand jury practice. And that's for the next lawsplainer.

When?

When I damn well feel like it.

This week, though.

Copyright 2017 by the named Popehat author.