Something to be avoided in the best of circumstances, and a particularly bad idea here. Judge Easterbrook testified yesterday as a witness, as did Judges Posner and Bauer, in the threat prosecution of Hal Turner. Turner had written a blog post saying that Easterbrook, Posner, and Bauer should be killed for their panel decision holding that the Second Amendment does not apply to the states — the case that the Supreme Court reviewed yesterday. Law.com has the story, via ATL, on the attempted cross-examination of Judge Easterbook by defense counsel Michael Orozco:
The turning point came when Orozco challenged Easterbrook, 61, on the merits of the decision in National Rifle Association v. Chicago, the opinion that spurred Turner’s alleged threats and which was written by Easterbrook.After suggesting that the U.S. Supreme Court had heard the National Rifle Association’s appeal of the case Tuesday morning, Orozco asked the judge, “If it’s overturned, doesn’t that mean Hal Turner is correct?” At that point, laughter was heard through the courtroom.
Judge Easterbrook said no, for two reasons. First, the central issue — whether the Second Amendment applies to the states — is one for the Supreme Court, the judge said. Therefore, a reversal would in fact confirm that the case had been rightly decided.
“Secondly,” Easterbrook, now piqued, said, “What Mr. Turner’s blog post says is that anybody who decides a case incorrectly should be assassinated. That is not the way the system is supposed to work.” When Orozco complained to the presiding judge — visiting Judge Donald Walter, from the U.S. District Court for the Western District of Louisiana — about the extended answer, Walter replied, “You’re the one that asked the ‘why’ question.”
Orozco then followed up with another argument regarding the merits of National Rifle Association v. Chicago, citing the supremacy clause. “No, you simply are not grasping the case,” Easterbrook said, a line he repeated throughout his cross-examination. The judge then went on to give an extended history of the Fourteenth Amendment and its relationship to the Second Amendment, and U.S. Supreme Court precedent regarding both amendments dating back to 1873.
I wonder what the jury was thinking.
Guy says:
I’m confused, why did Orozco think it mattered whether the case was correctly decided? Shouldn’t he have been arguing that the blog post was not intended as a “literal” death threat or something like that? Was he hoping he could get jury nullification by convincing them the decision was bad?
March 3, 2010, 8:33 pmDan says:
The jury was probably thinking the judge was a pompous jerk. I love Judge Easterbrook, but super smart people like him make terrible jury trial witnesses precisely because they are prone to give extended histories and other such things. Give me a normal person of average intellect who can just answer yes or no and be done with it. The point about not assassinating judges who make wrong decisions was good, but the professorial discussion of the merits of the Second Amendment case was at best a waste of time. Keep the focus on the crime not the cause!
March 3, 2010, 8:40 pmEx parte McCardle says:
I agree with Dan. My experience is questioning jurors after trial is that they don’t like either too-aggressive lawyers or pompous know-it-all witnesses.
March 3, 2010, 9:17 pmDavid Schwartz says:
It sounds, from the description, like the defense attorney played his hand extremely well.
March 3, 2010, 9:20 pmrpt says:
Will there be a Liz Cheney ad targeting this “terrorist defense lawyer”?
March 3, 2010, 9:29 pmbailey says:
Yes, it sure hurts the defense to have a witness talk down to people and sound like a pompous know it all. I’m sure Bauer did a much better job.
March 3, 2010, 9:32 pmThreeSheets says:
I’m with Dan. I’ve appeared before Easterbrook, and while he was nice to me and in general I like him, he’s not exactly a people person. He comes off a bit gruff, to say the least. I don’t think a jury would like him at all.
March 3, 2010, 9:44 pmgeorge weiss says:
agree with first point…
also everyone knows (generally) not to ask why questions on cross….esp when the witness is a genius…this is why…
March 3, 2010, 9:55 pmcboldt says:
– I wonder what the jury was thinking. –
Probably that the argument before them was irrelevant.
I wonder if any of them have a clue regarding the Presser case, or if they accept what are cherry-picked phrases as being honest summaries of the holdings. If “the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms” is dicta [it is], so is “This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look [elsewhere] for their protection against any violation by their fellow-citizens …”
March 3, 2010, 10:14 pmAnderson says:
What Mr. Turner’s blog post says is that anybody who decides a case incorrectly should be assassinated. That is not the way the system is supposed to work
I dunno, guys, I think even a Mississippi jury could (1) grasp and (2) sympathize with that statement. After appropriate voir dire, of course.
March 3, 2010, 10:55 pmSuperSkeptic says:
I’m sure these judges, who were testifying openly (one apparently relishing the opportunity to lecture the jury) were oh so very scared by the “threat” in this guy’s blog post. Better lock him up for that blog post…
March 3, 2010, 10:58 pmmls says:
Possibly the defense counsel couldn’t resist the opportunity to cross examine a federal judge on the merits of his decision. Also, as a former Easterbrook student, I have to agree with the suggestion that getting him to pontificate in front of the jury was probably not a bad defense strategy.
March 3, 2010, 10:59 pmanonymous says:
I’ve also heard that Judge Easterbrook isn’t exactly a people person, but I’d like to think he’s bright enough and/or was well-prepped enough, that in summing up what his panel held in the NRA case, he could simply say in a direct and punchy manner something to the effect of “all we concluded was that the NRA’s position might or might not be correct, but because the Supreme Court had already ruled on the Second Amendment issue many years ago, and because we can’t overrule the Supreme Court or predict that it would overrule itself, the decision was above our pay grade; all we could say was “there’s nothing we can do for you except tell you ‘okay, you’ve preserved your issue for Supreme Court review.’”
The point about how the Supreme Court ruling in the NRA’s favor wouldn’t remotely make the person who had advocated the assassination of the lower court judges “correct,” was obvious, but worth delivering forcefully. It was a ridiculous question to ask; unless the lawyer was trying the plant the record with a basis to attack a conviction on ineffective-assistance grounds, I can’t imagine why someone would ask that question.
March 3, 2010, 11:06 pmcboldt says:
– were oh so very scared by the “threat” … –
What happened to “sticks and stones can break my bones, but words can never hurt me.”?
March 3, 2010, 11:08 pmanonymous says:
Besides advocating their imminent assassination, the blog posted pictures of the judges and their chambers’ addresses and indicated that a soon-to-be-forthcoming post would disclose and provide directions to their home addresses. (That was when Turner was arrested.) Even if another judge in the same Chicago courthouse hadn’t recently had a deranged former litigant break into her home and murder her husband (and mother, if I recall correctly), it would be difficult to imagine that they wouldn’t have been seriously afraid that their safety was at risk.
March 3, 2010, 11:14 pmBuddy Hinton says:
Isn’t it legal to say: “Anybody who decides a case incorrectly should be assassinated”?
I thought it only got illegal when one started stating or implying a specific individual(s) who should be killed. Parsed literally it sounds from the quote like Judge Easterbrook is saying in essence:
It is not correct for Defendant to make a threat against me personally for a perceived wrong decision because that could lead to a bad, new system where everybody kills all judges who make perceived wrong decisions.
This concern sounds both unrealistic and misplaced in context of a criminal trial. It seems like what he should have said was:
It is not correct for Defendant to make a threat against me personally for a perceived wrong decision because that makes me personally afraid for my safety, which hurts my feelings and degrades my quality of life. That is not correct from a moral standpoint even if I had somehow wrongly decided the case.
March 3, 2010, 11:14 pmcboldt says:
The best answer for Easterbrook, to “If [the Circuit Court decision is] overturned, doesn’t that mean Hal Turner is correct?,” would have been “Of course.” Laypeople look at court cases through the lens of ultimate winners and losers. At bottom, the public doesn’t recognize the difference between a District, Circuit and Supreme Court.
March 3, 2010, 11:18 pmcboldt says:
– it would be difficult to imagine that they wouldn’t have been seriously afraid that their safety was at risk. –
March 3, 2010, 11:21 pmTheir actions speak louder than words. The read the blog post, they are entitled to security details, and they didn’t request any additional security. Claims now that they were in fear are risible.
cboldt says:
Another way that a jury might view the testimony is by imagining the judge deciding the Turner case. No doubt, thinks the jury, this judge would put Turner in jail, and that’s the end of the line for Turner. That calculus will be made on a pure emotional sympathy basis. Does the jury respect judges, in general? Because this judge would put this talker in jail.
March 3, 2010, 11:26 pmKirk Lazarus says:
They might have believed that ordering additional security details would have been interpreted as evidence that efforts to coerce them in this way were, if not effective, at least on the right track. It would have allowed the malefactor to impose an additional cost on the public. Politically it would have been a concession to him. There are numerous reasons why a person in public office would not want to appear to be cowed by verbal intimidation other than a belief that there was no substantive threat.
March 3, 2010, 11:45 pmcboldt says:
– They might have believed that ordering additional security details would have been interpreted as evidence that efforts to coerce them in this way were, if not effective, at least on the right track. –
March 3, 2010, 11:57 pmHow would Turner know, one way or the other? If the judge is in fear for his life, then he should act on the fear. No reasonable person ignores a credible threat on his life. Who the hell is going to buy “don’t want to obtain security to protect my life, because I am not a wimp.”? He’s a federal official. They all have access to discreet, professional security.
Separate from your post, another reason that Easterbrook should have answered the “you were wrong” question in the affirmative, instead of his knee-jerk answer that amounts to “judges are NEVER wrong.” By telling the jury he might be wrong (on the law), he supports the prosecution argument in the area of motive. Said another way, Easterbrook gains nothing, in a venue that aims to punish Turner, by defending his McDonald decision.
Steve P. says:
Or it may be that the individual was arrested before the judges had heard much about the threat (and thus the risk was reduced). There are many reasons why they didn’t request additional security, including that they might not believe that this person was serious.
I’m not sure that it’s really their place to determine whether this guy was serious. That’s a law-enforcement issue, not something to be decided by the potential victims.
March 3, 2010, 11:59 pmHadur says:
Easterbrook and Posner are really contrasts in different kinds of genius.
Easterbrook puts the “learned” in the phrase “the learned judge”. He’s well-educated, cultured, and not afraid to tell you about it. He would feel comfortable among British nobility, perhaps even more comfortable than he feels among average lawyers. Posner, on the other hand, is more of the rainman type. Pure brilliance not always adulterated by social conventions.
March 4, 2010, 12:06 amanonymous says:
Agree, and also agree with Steve P. In the wake of the murder of the husband of the Chicago federal district judge a few years ago, I thought I read that Judge Bauer — who I think was once either the State’s Attorney or the U.S. Attorney in Chicago (he may have held each position) — on at least one occasion responded to threatening phone calls by telling the caller his usual arrival time at work and which building entrance he typically used, and daring the caller to come and get him if the caller were such a tough guy. It wasn’t because Judge Bauer wasn’t concerned or afraid, or because he had a death wish, but because he was more concerned about keeping the wackos away from his home and family.
March 4, 2010, 12:17 amJay says:
So Easterbrook should have thought out some kind of tactical answer that your pop-psychoanalysis of the jury suggests was more likely to secure a conviction? I thought witnesses were sworn to tell the truth. If he was doing so to the best of his ability, he has nothing to answer for.
March 4, 2010, 12:23 amthecabbage says:
Imagine what Vinny Gambini woulda done with dat guy.
March 4, 2010, 12:26 amcboldt says:
Well, I guess I have to take back my thought that it would be difficult to imagine they were seriously afraid. Two posters here are asserting that their imaginations support that conclusion.
March 4, 2010, 12:29 amImagination is not bound by reality, nor by rational test.
cboldt says:
– So Easterbrook should have thought out some kind of tactical answer that your pop-psychoanalysis of the jury suggests was more likely to secure a conviction? I thought witnesses were sworn to tell the truth. If he was doing so to the best of his ability, he has nothing to answer for. –
March 4, 2010, 12:34 amThis is hindsight. I can be as critical as I want to be. That Easterbrook has no mind for the venue is his problem, not mine. As far as telling “the truth” goes, law is nothing but opinion, and Easterbrook admits it by asserting that the opinion of the Supreme Court is superior to his opinion.
Of course he has nothing to answer for, he’s a judge. He’s always right and he’s never improvidently rude. My thoughts pertained to how that reality would impress a jury.
subpatre says:
It’s a case where Posner describes others emails (hearsay), cracks jokes about pronouncing his name, and claims to have “considered this to be a serious threat. It’s bothersome . . .”
Judge Bauer said the posts were “a threat to kill me,” but that “somebody else should do it, though.” LOL
All three judges incited the jury by describing their ‘close relationship’ to Judge Lefkow, whose family actually was murdered. Not by a nutter who posted about it though.
Race supremacist Matthew Hale, losing a case in her court, had posted and talked about her imminent “extermination”; and after the murders got 40 years. Lefkow testified to Congress for more judgicial security, placing blame for the murders on rhetoric against judges from people like Pat Robertson.
The actual murderer, Bart Ross, never threatened anyone. But Ross didn’t make good political fodder.
This case is an upstart against power and privilege. It doesn’t matter what procedures are skipped, evidence ignored, or justice short-circuited. The trial will provide small-talk for court-watchers before the jury is instructed to convict.
March 4, 2010, 12:38 amJohn Herbison says:
I am reminded of a law school joke. What is the greatest difference between a federal judge and God?
God doesn’t think that He is a federal judge.
March 4, 2010, 12:55 amFub says:
I’d be inclined to answer, “No. It might mean that I didn’t say I’d pop some caps on ‘em if they overturn it.”
March 4, 2010, 12:55 amJohn Herbison says:
I wonder whether it would be appropriate to instruct the jury on the clear and present danger test–including Judge Learned Hand’s formula for applying the test: the gravity of the threatened evil, discounted by the improbability of its actual occurrence.
March 4, 2010, 12:57 amMark N. says:
I wonder why the presiding judge permitted this line of questioning at all, especially in what appears to have been a pretty extended back and forth. It doesn’t actually matter for the purposes of the present trial whether the 7th Circuit’s decision was correct, does it?
March 4, 2010, 1:25 amMike McDougal says:
True. Federal judges think they are federal judges.
March 4, 2010, 1:28 amMatthew Carberry says:
What do the judges in Chicago really have to worry about? They could always just start carrying a…
Never mind. =)
March 4, 2010, 1:52 amcboldt says:
– What do the judges in Chicago really have to worry about? They could always just start carrying a…
March 4, 2010, 2:09 amNever mind. =) –
Judges are exempt from the law. Plenty carry under their robes.
Steve says:
Apparently you can threaten all the federal officials you like, as long as they don’t actually become fearful for their lives. That’s an element of the offense not to be found in the statute, to be sure.
March 4, 2010, 4:07 amcboldt says:
– Apparently you can threaten all the federal officials you like, as long as they don’t actually become fearful for their lives. That’s an element of the offense not to be found in the statute, to be sure. –
March 4, 2010, 4:30 amROTFL. Evidence of fear goes to proof of an element of the crime. Presence of fear isn’t an element of the crime; but presence of fear tends to show presence of a (credible) threat.
DNJ says:
I suppose it’s before Judge Walter to avoid a conflict of interest, since I daresay the District Judges in this District all know the Circuit Judges who the threat was made against. Presumably if the defendant is convicted and appeals, the whole Court of Appeals will recuse and Judges from elsewhere will be designated to hear the case.
March 4, 2010, 5:16 amMike S. says:
My guess is that the jury was thinking: “Must keep awake … must keep awake.”
March 4, 2010, 6:42 amDjDiverDan says:
March 4, 2010, 7:33 amanonymous says:
The district judge, who after his designation changed the venue to the Eastern District of New York, is from one of Louisiana’s two districts — the Western District of Louisiana, I think. (You have a federal judge from Louisiana presiding over a trial in a Brooklyn courtroom, the trial arising from threats against three Chicago-based appellate judges, the threats made by a blogger from New Jersey.) I’m not sure there has yet been any opportunity for the remaining judges of the Seventh Circuit to recuse themselves, but if Turner is convicted, the appeal will unquestionably be decided by a panel of three judges from another circuit or circuits. A few years ago, someone was tried and convicted of planning to blow up the federal courthouse in Chicago, where the district court and the Seventh Circuit are headquartered. The appeal was decided by three judges of the Sixth Circuit, who were designated for service on the Seventh Circuit for purposes of the appeal, the Seventh Circuit having ruled that all judges of the Seventh Circuit were disqualified.
March 4, 2010, 7:47 amIlec says:
“In questioning the generally jovial Easterbrook, Orozco initially followed the same line of questions he and his co-counsel, Sanan, asked of the first two judges: Did the judge ever seek a security detail? (No.) Did Judge Lefkow have one following the attack on her family? (Yes, Easterbrook said, though he discounted his own testimony as hearsay).”
Priceless. Easterbrook should be appointed to SCOTUS for the entertainment value alone.
March 4, 2010, 8:36 amSmallholder says:
I’m a little surprised at the tenor of some of the posters. Do folks really think it is okay to advocate the assassination of judges?
I wonder whether Cboltd would be so eager to defend Harold Turner if Turner had threatened judges for any other ruling. Is passion over the Second Amendment driving the sympathy for the defendant?
March 4, 2010, 8:42 amruuffles says:
So … one appellate judge from each Ct, excluding the 7th?
Curiously, he’s only 61, so he was of prime age for all three Republican presidents (Reagan, H. W, W. Bush). Any reason he wasn’t on any short short lists?
March 4, 2010, 9:30 amJay says:
I don’t really think it’s anyone’s “problem,” whatever that means. You’re the one who seems to have a massive chip on your shoulder about judges. What I do find pretty silly is your claiming, with supreme self-confidence and based entirely on news reports, to be able to read the minds of both the jurors (with respect to their reaction to Easterbrook) and threatened judges (with respect to whether they were really afraid).
Also, I’m impressed again that lawyers who spend their time lecturing other lawyers about the importance of not seeming too smart in front a jury, etc., like to fancy themselves men of the people, but are actually far more arrogant and condescending about laypeople than the “elitist” lawyers/expert witnesses they’re criticizing.
March 4, 2010, 10:02 amLTR says:
Easterbrook’s confirmation to the 7th Circuit was very tough by pre-Bork standards. ABA rated him barely qualified and Senate Democrats decided to make an issue out of it. Kozinski had the same problem, in the end they were confirmed by the Republican Senate in 1985, but they both received a lot of “nay” votes, IIRC. Easterbrook also noted that his Republican home state Senator Charles Percy of Illinois was very unenthusiastic and unsupportive of him. Combination of these factors probably killed his shot of being considered for the Powell vacancy in 1987.
Easterbrook was probably also hurt in the short term by his earlier professional connection to Bork – this could explain his absence from the SCOTUS shortlists during Bush 41 presidency. In the Bush 43 era I suspect he was seen as somebody who can’t be trusted in the executive power cases. It’s really a shame because by 2005 he was really extremely deserving of at least being a top 5 finalist. As far as I know, Bush never even interviewed him.
March 4, 2010, 10:03 amBob White says:
I think part of it is that he’s intimidatingly smart, with an emphasis on intimidating for people he seems to think should know more than they do, to the point where some consider him a bully. He was never abrasive to we law students, as I’ve heard him be to attorneys arguing before him, but then again I don’t think he expected us to really know anything. I like him, and would be happy to see him on the Supreme Court, but you’d almost need a committed 60 to get him confirmed. Not a litigator, but I wouldn’t want him as a witness on my side in any jury proceeding, for reasons articulated upthread.
March 4, 2010, 10:22 amruuffles says:
Too bad really. That, gun cases, and gay marriage probably eliminate the likes of him, Posner, Kozinski, Bork, and Wilkinson for any president of the current GOP. After Alito, I imagine Senate Dems would jump at any of those five when in the minority again.
March 4, 2010, 10:27 amcboldt says:
– I wonder whether Cboltd would be so eager to defend Harold Turner if Turner had threatened judges for any other ruling. –
March 4, 2010, 10:32 amMy first comment was speculation as to what was in the jury’s mind; most of the rest were critical of the testimony as not being (IMO) “the best” for convicting Turner.
ruuffles says:
Also add the likes of Luttig to that list, with his public reprimand of the Bush Admin.
March 4, 2010, 10:35 amcboldt says:
– I don’t really think it’s anyone’s “problem,” whatever that means. You’re the one who seems to have a massive chip on your shoulder about judges. –
March 4, 2010, 10:42 amWhat I mean about “problem” is assuming a conviction is proper, any weakness in testimony from the person who is being threatened tends to reduce the probability of a guilty verdict. Turner isn’t threatening me, he is threatening Easterbrook, and so any “problem” in this case attaches to Easterbrook, not me.
The chip on my shoulder has to do with decisions that make a mockery of the rule of law. Is it out of bounds to complain when decisions are outcome-based and depend on rank dishonesty?
loki13 says:
Yes, it was very problematic of Eastebrook to have the gall to be the victim of a threatened assasination. Clearly, his testimony, elicited by the defense, about McDonald, is much more damaging to the rule of law than targeted killings of judges in response to rulings you don’t like.
March 4, 2010, 11:24 amLawGuy5000 says:
Are you referring to the panel decision that Judge Easterbrook authored, holding that the 2nd Amendment had not been incorporated to the states and that if it were to be, that was a decision the Supreme Court would have to make? Far from rank dishonesty, it was the right decision as a matter of law, well reasoned, and there is nothing to indicate it was outcome-based. Even if you disagree (and there may be principled grounds for disagreement), calling it rank dishonesty is extreme. If it was so rankly dishonest, why didn’t Judges Tinder or Sykes call for a rehearing en banc? Why did no one? Or is it that the entire 7th Circuit is full of “rank dishonest” judges?
I hate to reduce this to an ad hominem attack, but I find your posts, Cboldt, ridiculous. Did you really use the childhood saying “What happened to ‘sticks and stones can break my bones, but words can never hurt me’” to minimize death threats against Federal Judges? Do you really think that the judges refusal of 24-hour details is proof they didn’t fear Turner? Or are you just a gun nut?
March 4, 2010, 11:24 amcboldt says:
– Are you referring to the panel decision that Judge Easterbrook authored, holding that the 2nd Amendment had not been incorporated to the states and that if it were to be, that was a decision the Supreme Court would have to make? Far from rank dishonesty, it was the right decision as a matter of law, well reasoned, and there is nothing to indicate it was outcome-based. –
March 4, 2010, 11:48 amI am referring to that case. The Court below blew off the argument that built on Presser’s “the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms,” as being dicta. Well, if that comment about the 2nd is dicta (i.e., RKBA and/or 2nd amendment isn’t required to decide the case), then so is the remark that the 2nd doesn’t impede the states. It’s intellectually dishonest and outcome-based jurisprudence to pick one remark over the other, and assert it as binding SCOTUS precedent. Presser is about parade permits.
I see the federal government as hostile to the RKBA as written into the constitution, and would expect outcome-based decisions across the board. See too, Scalia and “Miller was convicted” and points following, and the 6th Circuit’s summary disposition of Hamblen’s substantive argument.
– Did you really use the childhood saying “What happened to ‘sticks and stones can break my bones, but words can never hurt me’” to minimize death threats against Federal Judges? –
I’d take that remark back, because it tends to cause others to mistake my opinion. The point I intended to make was that I perceive a disconnect between “I was in fear” and “I didn’t act on my fear.” The childhood taunt was meant as an example of similar, meaningless, ineffective response to a credible threat.
– Do you really think that the judges refusal of 24-hour details is proof they didn’t fear Turner? –
Not proof, just a point of evidence. Again, based on the story, I see a disconnect between harboring fear, and not acting on that fear. The report may be incorrect, or I may be reading too much into the report by concluding that there was no request for additional protective action, etc.
Steve says:
ROTFL. Evidence of fear goes to proof of an element of the crime. Presence of fear isn’t an element of the crime; but presence of fear tends to show presence of a (credible) threat.
A death threat is a death threat (although I note that the “ROTFL” argument is often a compelling one, I may use that in court sometime). If someone is charged with making an assassination threat against the President, do you think the defense is entitled to call the President as a witness to inquire into whether he was really afraid? I’m thinking no.
March 4, 2010, 11:50 amcboldt says:
– Yes, it was very problematic of Eastebrook to have the gall to be the victim of a threatened assasination. Clearly, his testimony, elicited by the defense, about McDonald, is much more damaging to the rule of law than targeted killings of judges in response to rulings you don’t like. –
March 4, 2010, 11:52 amOrdinarily, I don’t respond to posts from you, whether directed to me or others. I’m making an exception here to note that my statements don’t logically precede your comments.
cboldt says:
– If someone is charged with making an assassination threat against the President, do you think the defense is entitled to call the President as a witness to inquire into whether he was really afraid? I’m thinking no. –
March 4, 2010, 11:59 amMy ROTFL was at your insinuation that somehow I thought “fear” was an element of a threat offense.
In the case of a threat against the president, I don’t think the defense is entitled to call the president as a witness. Fear on the part of the target is not an element of the crime. Plus, as a practical matter, I would think the president is not apt to have such a particularized fear, so that he wouldn’t even have any relevant testimony.
In this case, the witness is on the stand at prosecution’s behest, not defense.
threats says:
Some of the people posting should read Watts v. US 394 us 705, and then Virginia v. Black, 538 us 343 (2003).
and then opine on the actual question of is this a threat
otherwise just stick to the fun part of talking about having easterbrook as a cross-x
March 4, 2010, 12:04 pmanonymous says:
His Seventh Circuit confirmation may have been difficult (part of the issue was his age — he was very young to be appointed to the Court of Appeals), but I imagine the main reasons why he was not on the short list even during George W. Bush’s administration are his reputation for abrasiveness (compare Roberts’s people skills) and the fact that presidents are afraid of putting certain kinds of eccentric people on the Supreme Court for fear that they’d be letting a bull loose in the china shop, potentially for decades. The people who vet Supreme Court nominations would have had quite a time trying to go through not only all of Judge Easterbrook’s opinions but his academic writings. That goes double for Judge Posner, whose extrajudicial writing would have given both the social-conservative wing of the Republican Party as well as the economically liberal wing of the Democratic Party reams of talking points to rail about. For similar reasons, I doubt that Judge Kozinski would have been realistically capable of being nominated even if it hadn’t been for the flap over the stuff on his home network server: his libertarian views on certain issues, including the Fourth Amendment, would have been disqualifying, and the Bush administration people responsible for compiling the long and short lists — if Kozinski’s name came up at all — presumably shot his name down quickly with the phrase “brilliant, but crazy; way too much of a maverick.”
March 4, 2010, 12:05 pmruuffles says:
Obviously the bulls in the china shop are Warren, Brennan, and Souter, though I find your statement a bit contradictory. By the time of Rehnquist and O’Connor leaving, Easterbook had served for five presidential terms, ten times the service and papertrail of Roberts. I don’t see any other reason people who didn’t trust Easterbrook et al would trust Roberts other than his service in the executive branch.
March 4, 2010, 12:39 pmsubpatre says:
LawGuy5000 writes: I hate to reduce this to an ad hominem attack, but . . . [here he goes] . . . are you just a gun nut?
Oh so classy.
Well, I’m a ‘gun nut’, and Turner deserves to be punished. But he should also have a real trial —not the kangaroo court happening here— and face a realistic punishment. What he did was a breach of peace; there was no threat, not by any stretch of the language or the law.
By your own standards (LawGuy5000, Loki13, et al) protestors during the last administration were “threatening the President with death” by carrying disfigured signs of him, posting his home address, “inciting others hostile to him”, encouraging assassination with ‘Bush Targets’, etcetera.
Get real; neither political protesters nor Turner were actually threatening others, and none of the Lefties were ever prosecuted for that. Look at SF parade photos for examples of Bush-lynched, BusHitler-targets, and Bush-burning signs. Look to Sheehan’s supporters not only distributing directions, but physically transporting people hostile to Bush to his home. IMO some of that is beyond the pale, but it’s clearly no real threat. Neither was Turner.
Posner, Easterbrook, and Bauer may be fine people in other circumstances, but they are breaking the rules of their own courtroom and joking about it; it makes a mockery of anything called ‘justice’.
March 4, 2010, 12:47 pmruuffles says:
What, you mean 1600 Pennsylvania Ave, Washington DC?
March 4, 2010, 12:51 pmcboldt says:
– What, you mean 1600 Pennsylvania Ave, Washington DC? –
March 4, 2010, 12:55 pmCrawford, Texas.
subpatre says:
ruuffles writes: What, you mean 1600 Pennsylvania Ave, Washington DC?
Cute . . . and smarmy.
March 4, 2010, 12:57 pmWashington DC was not, nor is, his home in Texas.
ruuffles says:
That ranch the teevees show him clearing brush at, or some undisclosed bunker?
Edit: my bad, his new home in racist suburb?
March 4, 2010, 12:58 pmruuffles says:
Both are always shown in the teevee, and as far as I’m aware, neither are blocked out on google earth.
March 4, 2010, 1:00 pmloki13 says:
Gee, subpatre, it’s always nice to be lumped in with the boogeymen in your imagination. FWIW, I think advocating the assassination of any member of our government is despicable, regardless of their policy beliefs. That’s what the ballot box is for.
And cboldt was apparently unaware of the irony in reaching for the sanctity of the rule of law in defending those who advocate assassinating judges who rule in ways he finds disfavorable. Clearly, because cboldt believes the law to be one way, when a panel of judges rules the other way, they must be making “outcome-based decisions.” Clear as an unmuddied stream.
Hey- you think the judges are wrong, that’s your right. Yell, scream, hurl obscenities. But to make death threats and (be about to) post their home addresses…. right after a colleague was gunned down? I’m not a big fan of that. Rule of law, as opposed to rule of disgruntled wackos.
March 4, 2010, 1:36 pmJohn Herbison says:
The facts set forth in the affidavit of complaint, http://www.justice.gov/usao/iln/pr/chicago/2009/pr0624_01a.pdf , suggest (at least to me) a close question as to whether Mr. Turner’s screed is First Amendment protected. It seems to be artfully worded to skirt right up to the edge of abstract advocacy of violence.
Who should determine here whether this rant is beyond the First Amendment pale? Is that a question for the jury? In the event of a conviction, appellate review of the sufficiency of evidence would be highly deferential to the government, and I have real concerns about whether that would adequately protect the free expression rights at stake here.
Should the jury be instructed in substance that, in order to convict, it must find that Turner’s words posed a clear and present danger of imminent lawless action?
March 4, 2010, 1:47 pmJohn Herbison says:
In the alternative, does the principle that whether the inherent character of a statement places it beyond the protection of the First Amendment is a question of law, subject to de novo review on appeal pursuant to Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 498-511, 104 S.Ct. 1949, 1958-1965, 80 L.Ed.2d 502 (1984), apply to criminal cases? I don’t know.
March 4, 2010, 2:00 pmcboldt says:
I haven’t followed Turner’s trial – just learned that this is the second trial for this charge. The first trial ended in early December last year, when the judge declared a mistrial after about two days of jury deliberation. The jury was deadlocked, generally finding the government’s case to be weak, and reportedly coming out 9-3 to acquit.
March 4, 2010, 3:28 pmMistrial in Case of Hate Blogger Charged With Judge Threats
Prosecution use of testimonial evidence from the threatened judges appears to be a strategy designed to strengthen the government’s case.
wfjag says:
Gee, if Turner was an English school boy, they’d put him on a “hate register” and he’d probably lose recess. Pupils aged five on hate register: Teachers must log playground taunts for Government database, http://www.dailymail.co.uk/news/article-1255264/Pupils-aged-hate-register-Teachers-log-playground-taunts-Government-database.html
Being officially known as a “poopie mouth” would fix him.
March 4, 2010, 4:54 pmcboldt says:
Blogger Hal Turner’s retrial may see new evidence, witnesses
I was wondering why the first trial had testimony from half a dozen FBI agents. Turner took the stand in his own defense yesterday. Shock jock Hal Turner takes witness stand
Do the FBI agents have any legal culpability if they request or encourage people to compose and publish the sort of crap that Turner wrote and said? I understand there is a question of degree involved, but why encourage it at all?
March 4, 2010, 4:56 pmJohn Herbison says:
In this case or in general? Here there was no acutal act of violence, and thus no legal culpability in the sense of civil liability.
In the criminal context, I can imagine some theoretical set of circumstances where the over-involvement of government agents in encouraging someone, who was not predisposed to do so, to engage in over-the-top threatening conduct might support an entrapment defense. The agents would not be culpable if they did not share the criminal intent of the accused.
Even with sketchy information about this particular case, I doubt that Mr. Turner would want to put his predisposition at issue. (I suspect that may be one reason that the affidavit of complaint included some detail about the search of the computer.)
March 4, 2010, 5:31 pmwfjag says:
Doubt it. Assuming that you can state a cause of action in negligence in the state in which the act or omission occurred — it’s hard to tell if that would be N.J. or Ill. as a preliminary matter — a couple of the exceptions to the Fed. Tort Claims Act’s limited waiver of soverneign immunity probably would bar an recovery. See 28 USC 2680.
I don’t see a recognized Bivens tort, either, unless you can prove that the FBI agents actually instructed Turner to encourage the murder of the federal judges, vs. Turner turning out to be a publicity hound who’s brave behind his keyboard.
He’s the sort of weasel who makes you long for the reinstatement of the doctrine of fighting words.
Fat chance of that happening. I guess the best that can be hoped for is for the US to adopt something like the UK’s poopie mouth list for school boys.
Meanwhile, he’s getting tons of free publicity and some people will actually start reading his blog. Because of this column, I checked it out to see for myself what he’s like. Playground taunts go virtual. Unfortunately, by doing so, that increases the hits on his site, and that means he’ll earn more ad revenues.
March 4, 2010, 5:40 pmcboldt says:
– In this case or in general? Here there was no acutal act of violence, and thus no legal culpability in the sense of civil liability. –
March 4, 2010, 5:47 pmBoth, this case and in the general. Under 18 USC 115(a)(1)(B), there is no actual act of violence as an element. The threat of violence is itself a crime.
– The agents would not be culpable if they did not share the criminal intent of the accused. –
OK. So the FBI can, with impunity, retain “shock jocks,” bloggers, etc., ask them to post threats, then bust the criminal. The only downside to the government is that the defendant has the possibility of an entrapment defense.
– Even with sketchy information about this particular case, I doubt that Mr. Turner would want to put his predisposition at issue. –
One side or the other would want his predisposition to be an issue, would it not? So if Turner is inclined to hide it, the government would be inclined to highlight it.
I haven’t bothered to get source documents (whatever is filed via PACER), but at least some summary descriptions are available at the Bergen Register.
One other point just not occurred to me. I’m not sure that intent is relevant here. The gist of the case isn’t that Turner was himself planning to do violence, rather, others (unnamed) would be the ones who possessed the intent to carry out any act of violence. In that construction, the intent question is did he intend to publish what he published – and the answer to that is self evident. IOW, he could be “lily white” as to ultimate intent (e.g., wanting to flush out real bad guys with a honey pot), but the publication is still properly a threat, because the action is by others.
cboldt says:
– Meanwhile, he’s getting tons of free publicity and some people will actually start reading his blog. –
March 4, 2010, 5:51 pmNews reports must be false then. They claim he filed bankruptcy, and that income from his blog is NIL, because he is under a gag order. Part of his bail deal is that he cannot publish at any internet site. Or so say the reporters.
I won’t visit his website or any of the other hate sites. Cooties and all that.
cboldt says:
– … negligence … — a couple of the exceptions to the Fed. Tort Claims Act’s limited waiver of soverneign immunity probably would bar an recovery. See 28 USC 2680. I don’t see a recognized Bivens tort, either –
March 4, 2010, 5:58 pmI wasn’t thinking about any private action, I was wondering about criminal culpability.
Say it isn’t the government pulling the strings on the publisher, but some acquaintance of some sort who entices the publisher to publish threats. The publisher is the one in direct violation. What about the puppeteer?
John Herbison says:
Well, isn’t a love for shooting fish in a barrel part of the job requirements for a prosecutor?
March 4, 2010, 6:15 pmwfjag says:
And 6 months after the trial is over, he hits the speaking circuit and his autobiography comes out. Assuming that he’s done a Chap. 7, what he makes is his. Then he goes for a contract to broadcast on SIRUS radio. Even a weasel as low as David Duke was able to milk the speaking and book circuit for about 20 years. If he hadn’t played games with campaign contributions and converted them to personal use, the IRS wouldn’t have been able to touch him. But, he slipped off to Moscow and blogging from there and getting donations from skin heads. Turner only has to be smart enought not to make mistakes that others have made in the past, and continue to be brave behind his keyboard.
As Huey P. Long said “I don’t care what they write about me as long as they spell my name right. In 6 months no one will remember what they wrote about me, but they will remember my name.”
March 4, 2010, 6:17 pmJay says:
I don’t really get why you think it’s a “kangaroo court.” What else is the gov’t supposed to do to ensure he gets a fair trial? They moved it several hundred miles away, brought in a judge from a different region of the country, etc.
March 4, 2010, 8:05 pmGene Hoffman says:
If I was an abortion doctor, I’d be bringing an equal protection claim based on the outcome of Planned Parenthood v. American Coalition of Life Activists…
-Gene
March 5, 2010, 2:17 amcboldt says:
– I don’t really get why you think it’s a “kangaroo court.” –
March 5, 2010, 7:06 amI don’t speak for subpatre, but I think it is abundantly clear that he was referring to the charge, not the conduct of the trial. He followed the use of the incorrect term (“kangaroo court”) with explication. In his opinion, there was no threat, there was a breach of the peace; and that the government appears to be inconsistent in its charging practices, see publications and protests against President Bush.
As for subpatre’s remark that Easterbrook, Posner and Bauer are “breaking the rules of their own courtroom and joking about it,” well, I don’t understand that reference. Seems to me they are being serious witnesses in the government’s threat trial – and as I noted above, I think these judges would find Turner guilty (e.g., if they could be and were on the jury); and so they would be inclined to put on a straight face under examination and cross examination.
SGD says:
It is a bit ironic that the government apparently paid this idiot to incite violence against minorities, and then arrested him when he incited violence against three white guys.
March 5, 2010, 11:33 amcboldt says:
– It is a bit ironic that the government apparently paid this idiot to incite violence against minorities … –
March 5, 2010, 12:38 pmEven more ironic (although one has to believe Turner’s testimony to be true) would be if the government asked Turner to ratchet up the rhetoric against Circuit Court judges in an effort to flush out the person who killed a Circuit Court judge, then arrested him for the rhetoric against Circuit Court judges.
subpatre says:
Jay writes:” I don’t really get why you think it’s a “kangaroo court.” . . .”
The Judge imposed a gag order that not only barred Turner and his lawyers from talking about his case in public but blocked him from returning to his radio show or to his blog commentaries; his sole source of income.
Not a real gag order when it is unenforced against the government.
Undoubtably hilarious to Posner’s admirers, like this article and the giggling over Easterbrook’s lecture on the 14th Amendment; it is funny but totally innappropriate. It’s not amusing to someone facing 10 years in prison.
Make no mistake: Turner is a sleazeball and I would see him convicted of a midemeanor. But a “Kangaroo Court” is a trial that skips over legal protections by leaps and bounds, an accurate description for case.
March 6, 2010, 10:51 amevidentiarist says:
subpatre,
assuming the contents of the e-mails Posner described were “hearsay,” the objection to their introduction was sustained by the judge. I’m not sure how evidence that is kept from the jury upon the defendant’s objection, supports the idea he had an unfair trial.
I do note, however, that unless Posner was quoting the e-mails from others for their truth, they were in fact not “hearsay” at all. The story is too inept on this point to tell us whether this is the case: “At one point, before being cut off by Walter, Posner — the author of more than two dozen books on the law — began to describe the contents of an e-mail he received regarding Turner’s posts, a hearsay violation straight out of the first day of Evidence.”
If someone sent Posner an e-mail saying “Turner was right about you,” or some other gibberish, Posner’s quoting of it wouldn’t actually be in support of its truth- it would be to show that Turner had inspired some nut to harass Posner. The e-mail wouldn’t be hearsay at all.
There might be other reasons to exclude it- for example, a 403 problem of waste of time, confusion, etc, or if the evidence hadn’t previously been given to the defense.
However it looks like it was not “hearsay,” the law.com “first day of Evidence” flourish notwithstanding.
anonymous 7:47 am, Louisiana has three federal judicial districts. Walter is from the Western district, he is in Shreveport.
March 7, 2010, 11:48 pmmouthpiece says:
Only if he gets a job with the Justice Department prosecuting, or influencing policy regarding, threats against government officials.
March 11, 2010, 2:28 pmmouthpiece says:
Actually, to be technical, the proper objection is not hearsay, but lack of personal knowledge.
March 11, 2010, 2:40 pmJohn Herbison says:
I learned in law school that testimony is presumptively admissible, at least in the absence of an objection. I would think that, if no party wishes to object, the witness ordinarily should not do so himself (unless necessary to assert or preserve a claim of privilege, in which case there may be a duty to object).
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March 24, 2010, 1:46 pm