The Daily Parker

Politics, Weather, Photography, and the Dog

Ruling seasons begins

The Supreme Court began its early-summer ruling season a bit early this year, starting with an opinion from Justice Thomas (R) that will make it easier for the state to kill innocent people:

[The] opinion claimed that a law restricting the power of federal courts to toss out convictions in state courts prevents Jones from seeking relief. But Thomas’s reading of this law is novel — his opinion had to gut two fairly recent Supreme Court decisions to deny relief to Jones.

Before Monday, the Supreme Court’s decisions in Martinez v. Ryan (2012) and Trevino v. Thaler (2013) should have guaranteed Jones a new trial. Both decisions deal with what should happen in the unusual circumstance when someone accused of a crime receives ineffective assistance of counsel, twice.

In Strickland v. Washington (1984), the Supreme Court held that a conviction must be tossed out if defense “counsel’s performance was deficient” and if this “deficient performance prejudiced the defense.” This safeguard against constitutionally inadequate lawyering would be meaningless if people who received ineffective assistance of counsel at trial could not challenge that conviction, either on appeal or in some other proceeding.

Martinez and Trevino established that someone convicted of a crime must have at least one shot at challenging their conviction on the grounds that they received ineffective assistance of counsel at trial.

“The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial,” [Justice] Sotomayor (I) writes in the first line of her dissent. She continues that “this Court has recognized that right as ‘a bedrock principle’ that constitutes the very ‘foundation for our adversary system’ of criminal justice.”

Thus in Sotomayor’s mind, and in the minds of the two other justices appointed by Democratic presidents who joined her opinion, the purpose of a criminal trial is to determine whether or not someone is actually guilty of a crime — and to do so through an adversarial process where both sides are represented by lawyers who can present the best possible legal and factual case for the prosecution and the defense.

This is consistent with Thomas’s longtime position. As far back as Herrera v. Collins (1993), Thomas joined an opinion by Justice Antonin Scalia, which claimed that there is “no basis” in the Constitution for “a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” At the time, however, Thomas was the only justice who joined Scalia in this view.

Scotusblog also has its doubts:

Thomas spent the first 11 pages of his 22-page opinion recounting the grisly facts of the murders the defendants were convicted of, extolling the states’ authority to enforce criminal laws, and emphasizing the importance of the finality of convictions. Finally arriving at the issue at hand, Thomas cited cases holding that defendants are generally held responsible for their attorneys’ errors, and noted that while that general rule does not apply when counsel is constitutionally ineffective, the Sixth Amendment does not guarantee a right to counsel at the post-conviction stage – therefore, at this stage, the defendants were “at fault.”

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, dissented. Her opinion was striking, even for a justice who is known for passionate dissents. She called the majority opinion “perverse,” “illogical,” and said it “makes no sense.”

The dissent zeroed in on the court’s prior holdings that the procedural default rule only applies to defendants who are “at fault” for failing to raise a claim, and that a defendant represented by a constitutionally ineffective lawyer cannot be held to be “at fault” for his lawyer’s errors. This requirement underscored what Sotomayor saw as the core absurdity in the majority’s reasoning: “A petitioner cannot logically be faultless for not bringing a claim because of postconviction counsel’s ineffectiveness, yet at fault for not developing its evidentiary basis for exactly the same reason.”

The debate between Thomas and Sotomayor in Shinn has reverberations beyond the cases of Barry Lee Jones and David Martinez Ramirez. Sotomayor argued that the majority opinion “tellingly” relied on dissents in Martinez and Trevino to support its reasoning. While the conservative majority’s explicit overruling of precedent has recently captured the public’s attention (albeit through a leaked draft), the practice of citing dissents to “hollow out” past precedents has garnered less scrutiny. But Sotomayor’s opinion subtly emphasized the danger that practice poses for the legitimacy of the court’s decision-making. Noting that the court in this case “resuscitates” an argument “that previously was relegated to a dissent,” Sotomayor contended that the argument “is just as unavailing now that it has captured a majority.”

Finally, one procedural quirk is worth mentioning in a case all about whether death row defendants are “at fault” for the failures of their constitutionally ineffective lawyers. In Ramirez’s case, Arizona did not object to the evidentiary hearing in the district court and did not raise AEDPA’s bar on developing new evidence until the case reached the U.S. Court of Appeals for the 9th Circuit. Ordinarily, an argument not raised in the district court is forfeited. But here, in a footnote, Thomas stated that the Supreme Court has “discretion to forgive any forfeiture” and because deciding the issue would reduce the likelihood of future litigation, “we choose to forgive the State’s forfeiture before the District Court.”

We will no doubt see a series of rulings like this, shielding the state from its errors while making life much more random and unforgiving for people already at a disadvantage economically or socially. As I hinted yesterday, authoritarians don't accept dissent of any kind, no matter how obviously stupid their own positions. Thomas wants to live in the world of Inspector Javert and Brazil. So, clearly, do the other four Republicans on the Supreme Court, and for some reason in this case, the Chief Justice.

We're in for a decade or so of really bad judicial outcomes. Let's hope we can get the pendulum swinging the other way soon.

Theocratic rumblings in America

Two stories that bear connecting. First: the Southern Baptist Convention found in an internal investigation that its leaders had covered up sexual assaults and other bad behavior throughout the hierarchy:

The SBC is the nation’s largest Protestant denomination, by far. It is the nation’s most powerful and influential evangelical denomination, by far. Its 14 million members help define the culture and ethos of American evangelicalism.

Last June delegates, called “messengers,” to the SBC’s annual convention responded to proliferating reports of inadequate or corrupt responses to sex-abuse allegations by voting overwhelmingly to commission an external review of their own leaders. The executive committee hired a firm called Guidepost to conduct the investigation.

The report is a calamity. My friend Russell Moore, a former president of the SBC’s Ethics and Religious Liberty Commission, called it an “apocalypse.” The report says that “for almost two decades, survivors of abuse and other concerned Southern Baptists” contacted its executive committee “to report child molesters and other abusers who were in the pulpit or employed as church staff.”

Page after grim page reveals crushing scandal after crushing scandal. One abuse survivor, a woman named Christa Brown, said that an executive-committee member turned his back to her when she addressed the committee in 2007. Another member allegedly chortled at her.

I highlight reports of abuse in the nation’s largest Protestant denomination, in one of its largest Christian camps, in one of its largest Christian universities, and in its most prominent apologetics ministry because it is past time to recognize that the culture of American evangelicalism is broken at a fundamental level. How many times must evangelicals watch powerful institutions promote and protect sexual predators before we acknowledge the obvious crisis?

Meanwhile, these same religionists have slowly but surely imposed their (need I bother to say hypocritical?) version of morality on the majority of Americans who disagree with it, culminating, we all expect, in the reversal of a secular view of abortion that has been law for 49 years:

In deciding Roe, the court made its commitment to secularism explicit. It had to. The question of when human life began and the exact status of a fetus were essentially religious questions. Different religious groups took divergent positions on abortion. Taking a stance within the dispute would involve the court in a religious debate, which it was loath to do because such a decision would violate the separation of church and state that it had earlier proclaimed.

[C]onservatives...became aggressively hostile to the ideal of secular legislation and to the notion that the state has any role in protecting the individual from religious groups. In recent years, the conservatives on the court have used the notion of religious freedom to carve out larger and larger institutions in American life — including for-profit corporations — that are able to make religious determinations limiting the choices of others. In doing so, they have helped unleash the religious authority that the court tried to contain in the 1960s and early 1970s.

With this history before us, the next steps may be easier to see. The invalidation of Roe, and of women’s right to an abortion, is not really an end but a beginning. Just as the court’s original decision in Roe v. Wade represented the apotheosis of a secular order through the privatization of religious sentiment, the court’s coming decision to overturn Roe represents a straightforward attack on the American secular ideal. It will probably be the first of many developments, as the wall of separation crumbles and as conservative religious authority floods American life.

You don't need a Ph.D. in psychology to understand why, either. The Christianist mindset is authoritarian, teaching that there is only one correct answer to any question. I'm not even sure that the abortion "debate" really matters to Christianist leaders except that they don't want anyone to challenge the authority they believe comes to them from their imaginary sky friend.

The end of Roe may wake up a few more people to the creeping Christianism coming from the Right, but maybe not. The revanchists will lose, but it may take a long time.

Texas: where the 1860s meets the 1960s?

Today's head-scratcher comes from Loving County, Texas, population 57, where state authorities have arrested the county judge for—wait for it—cattle rustling:

Judge Skeet Jones, 71, the top elected official since 2007 in the least populated county in the continental United States, is facing three felony counts of livestock theft and one count of engaging in criminal activity, accused of gathering up and selling stray cattle, authorities said.

Officials with the Texas and Southwestern Cattle Raisers Association, the lead agency on the case, offered few specifics about the alleged crime. Commissioned through the Texas Department of Public Safety, the association has “special rangers” —  certified peace officers — who investigate livestock theft and other agriculture crimes. 

Jeremy Fuchs, a spokesman for the association, said the yearlong investigation is ongoing and more charges are possible.

Skeet Jones has gotten into trouble before, but nothing like this. In 2016, the state Commission on Judicial Conduct determined Jones failed to follow the law by charging steep fees — about $600 to $750 — for reducing tickets including speeding and marijuana possession down to parking tickets.

The judge denied any involvement in negotiations over tickets and told the commission he just approved the plea deals presented to him. He was issued a public warning and ordered to take 10 hours of additional education.

Read the whole story. Texas just ain't like most places.

Waiting for the cold front

It's mid-July today, at least until around 8pm, when late April should return. The Tribune reported this morning that our spring has had nearly three times the rain as last spring, but actually hasn't gotten much wetter than normal.

Meanwhile:

Finally, via The Onion, Google Maps now shows you shortcuts through people's houses when they're not home.

Covid isn't like the flu. It's like smoking

The Atlantic makes a solid case for treating Covid-19 as a behavior problem, not a virus:

The “new normal” will arrive when we acknowledge that COVID’s risks have become more in line with those of smoking cigarettes—and that many COVID deaths, like many smoking-related deaths, could be prevented with a single intervention.

The pandemic’s greatest source of danger has transformed from a pathogen into a behavior. Choosing not to get vaccinated against COVID is, right now, a modifiable health risk on par with smoking, which kills more than 400,000 people each year in the United States.

The COVID vaccines are, without exaggeration, among the safest and most effective therapies in all of modern medicine. An unvaccinated adult is an astonishing 68 times more likely to die from COVID than a boosted one. Yet widespread vaccine hesitancy in the United States has caused more than 163,000 preventable deaths and counting. Because too few people are vaccinated, COVID surges still overwhelm hospitals—interfering with routine medical services and leading to thousands of lives lost from other conditions. If everyone who is eligible were triply vaccinated, our health-care system would be functioning normally again.

We haven’t banned tobacco outright—in fact, most states protect smokers from job discrimination—but we have embarked on a permanent, society-wide campaign of disincentivizing its use. Long-term actions for COVID might include charging the unvaccinated a premium on their health insurance, just as we do for smokers, or distributing frightening health warnings about the perils of remaining uninoculated. And once the political furor dies down, COVID shots will probably be added to the lists of required vaccinations for many more schools and workplaces.

It's time to cough up a better strategy for getting people jabbed.

Two thoughts about the world

First, I believe this might be the greatest gaffe* of the 21st century:

Second, for everyone whinging on about paying $5 per gallon of gas, why not take this opportunity to finally switch to the metric system? Then you'd only be paying $1.29 per liter** of gas!

* And I do mean "gaffe" in the sense that it's an absolutely true statement made absolutely unintentionally.

** Of course, they're used to this way of pricing petrol in London, where they're today whinging on about 159p per liter ($8 per gallon).

Spring, Summer, Spring, Summer, who knows

This week's temperatures tell a story of incoherence and frustration: Monday, 26°C; Tuesday, 16°C; yesterday, 14°C; today (so far), 27°C. And this is after a record high of 33°C just a week ago—and a low just above 10°C Tuesday morning.

So while I'm wearing out the tracks on my window sashes, I'll have these items to read while my house either cools down or warms up:

And finally, Ian Bogost feels elated that cryptocurrencies have crashed, particularly because he doesn't own any.

Stuff I didn't have time to read today

I had to put out a new version of the Inner Drive Azure tools for my day job today, and I had more meetings than I wanted (i.e., a non-zero number), so these kind of piled up:

There were other things I'll read later, but it's past 6pm and someone is staring at me because she needs a walk.

The IQ of the House will go up a bit in January

US Representative Madison Cawthorn (R-NC) goes down in history as one of the worst one-termers since the founding of the Republic:

Chuck Edwards, a three-term state senator and business owner, has edged out Representative Madison Cawthorn in the Republican primary for a House seat representing North Carolina’s 11th District.

Luke Ball, a representative for Mr. Cawthorn, said late Tuesday that the congressman had called Mr. Edwards to concede. Mr. Edwards’s narrow triumph was called by The Associated Press.

The outcome served as a rebuke of Mr. Cawthorn, a right-wing firebrand and the youngest freshman in Congress, who was once seen as a rising star of the Republican Party.

Mr. Cawthorn, who has been in a wheelchair since a car crash that almost took his life at 18, struggled to overcome a series of old and new personal and political errors. He previously faced accusations that he had lied about key parts of his background and that he had been sexually and verbally aggressive toward women.

In recent months, he also has been accused of engaging in insider trading, charged with driving with a revoked license and stopped for trying to bring a gun through airport security — a second time. Photos and videos of him partying and emulating sexual antics circulated.

I had lost hope that Republican voters would ever lose patience with people like Cawthorn, and yet they did. Good riddance—in 8 months, anyway.

What did we say about crypto?

Don't. Just don't. Tulips look like a better investment than cryptocurrency.

First, the Justice Department has launched a prosecution against an unnamed defendant for allegedly laundering $10 million in Bitcoin:

U.S. authorities filed charges in March after allegedly discovering that a sanctioned country had set up a PayPal-type payment platform system with the defendants’ help, according to Friday’s ruling. It said investigators were able to use sophisticated blockchain analysis tools to trace that person’s actions, since despite cryptocurrencies’ anonymizing features, all transactions to individual accounts are recorded in public ledgers that can be amassed into large data sets.

The $10 million in bitcoin payments originated from the United States and were transmitted for customers of the payment platform, according to a U.S. law enforcement affidavit cited by the ruling. The platform advertised its services as designed to evade American sanctions, and the defendant “proudly stated” it could do so using bitcoins while knowing the country was blacklisted, the ruling said.

The US Magistrate Judge overseeing the case reminded the defendant that despite the mythology surrounding them, cryptocurrencies are traceable and are considered cash for the purposes of international sanctions. They are, in other words, not the perfect vectors for bribing foreign dictators that their proponents promote.

Economist Paul Krugman makes (as you'd suspect) the economic argument against cryptocurrencies (sub.req.), if the legal and moral arguments didn't persuade you:

By now, we’ve all heard of them, but what exactly are cryptocurrencies? Many people — including, I fear, many people who have invested in them — probably still don’t fully understand them. Saying that they’re digital assets doesn’t really get at it. My bank account, which I mainly reach online, is also a digital asset, for all practical purposes.

In any case, as we look forward, the value of cryptocurrencies will have to rest on their underlying economic uses, which are …

Well, that’s just the thing. I’ve heard many discussions in which crypto supporters have been asked exactly what economic role crypto can play that isn’t more easily and cheaply achieved through other means — debit cards, Venmo, etc. Other than illegal transactions, in which crypto may sometimes offer anonymity, I have yet to hear a coherent answer.

As it is, cryptocurrencies play almost no role in economic transactions other than speculation in crypto markets themselves. And if your answer is “give it time,” you should bear in mind that Bitcoin has been around since 2009, which makes it ancient by tech standards; Apple introduced the iPad in 2010. If crypto was going to replace conventional money as a medium of exchange — a means of payment — surely we should have seen some signs of that happening by now. Just try paying for your groceries or other everyday goods using Bitcoin. It’s nearly impossible.

Those who question crypto’s purpose are constantly confronted with the argument that the sheer scale of the industry — at their peak, crypto assets were worth almost $3 trillion — and the amount of money true believers have made along the way proves the skeptics wrong. Can we, the public, really be that foolish and gullible?

Well, maybe the crypto skeptics are wrong. But on the question of folly and gullibility, the answer is yes, we can.

As Julia Ioffe pointed out yesterday in reference to ordinary Russians believing the Kremlin's propaganda, in a country where 30% of the population believe in "replacement theory," our folly and gullibility have no limit.