Legal Insurrection: the Chauvin trial

The New Neo Posted on by

Just reminding you that Andrew Branca is reporting in-depth at Legal Insurrection on the Chauvin trial. His first two posts from yesterday are this and this.

I believe the plan is for him to write at least one post every day the trial is in session. It’s probably the most accurate and thorough reportage you’ll get on the subject.

Here’s an excerpt:

The defense narrative of innocence in this case is obviously that what killed Floyd was not Chauvin’s knee but rather the three-fold fatal dose of fentanyl found in Floyd’s body upon medical examination. The belief is that when he realized he was about to be arrested for attempting to pass a bad $20 bill, Floyd ingested meth and fentanyl drugs he had on his person in order to prevent their discovery by the arresting officers. The dose ingested, unfortunately for Floyd, for Chauvin, for all of Minneapolis, and for the United States generally, was more than sufficient to prove fatal.

Almost exactly a year prior to the day Floyd died with a fatal dose of fentanyl in his body he was also the subject of a lawful arrest and also apparently ingested illicit drugs to avoid their discovery by the arresting officers. In that case Floyd received hospital care and did not die as a result of the drug ingestion.

Naturally, with a nearly identical drug ingestion event having occurred with Floyd merely a year prior to his death, the defense would like to get evidence of that prior event in front of the jury. Their prior efforts to get that event admitted into evidence, however, had not gotten traction because the judge perceived the evidence as more prejudicial than probative.

In law, introducing evidence of a prior action in order to establish a pattern of behavior is quite limited:

The defense argued this afternoon that the evidence of the 2019 ingestion event ought to be admitted as proof of a modus operandi, or “method of operation,” in effect that “this is what Floyd does when confronted by police.”

Modus operandi is an exception allowing for the admission of prior bad act evidence when the prior bad acts appear to be a consistent pattern or practice of behavior. So, someone charged with second-story burglary might not have a prior drunk driving conviction admitted as evidence at their trial for second-story burglary, but if they have prior convictions for second-story burglary in their record those convictions might well be admissible as a pattern or practice of behavior in their trial for the newest charge of second-story burglary…

In making this argument before Judge Cashill this afternoon, however, defense counsel met a cool reception…

And if the evidence of the prior dug ingestion event had little probative value, in the context of other available evidence of Floyd’s drug toxicity, it begins to look a lot like it’s being submitted largely to show a propensity for bad conduct—which is not a proper basis for the admission of evidence.

So, there’s a general rule of evidence, termed 404(b), that generally excludes prior bad acts or character evidence that’s offered as proof of unrelated currently charged misconduct, stating:

404(b). Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. …

As those ellipses suggest, however, there are a number of exceptions to this exclusion of admissibility—like the modus operandi exception we discussed above.

… It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

If memory serves me, I believe this is because – as I learned long long ago in a great course in law school on jurisprudence – in our legal system the basic general premise is that we judge the act, not the character of the person. The latter ordinarily comes into play in the sentencing phase, however.

The pro-Biden pro-life evangelicals: promise them anything

The New Neo Posted on by

Apparently there is a group of pro-life evangelicals who supported Biden because he – or some spokespeople for him – indicated there would be wiggle room on abortion and the Hyde Amendment if Biden were to be elected. Now they feel betrayed.

I’m puzzled by how anyone over the age of four can be so gullible. Seriously, why support the Democrats if you’re against abortion? It makes zero sense, but so many things make zero sense these days that I suppose there is no real reason to single out these people for special criticism.

It puts me in mind, though, of what happens quite frequently with tyrants. People who are of the trusting sort can’t tell when they’re being duped, and tyrants take advantage of that. One particularly extreme example is Hitler, who played various German political factions against each other, promising them things he had no intention of delivering on. For example [emphasis mine]:

On 23 March 1933, the Reichstag assembled at the Kroll Opera House under turbulent circumstances. Ranks of SA men served as guards inside the building, while large groups outside opposing the proposed legislation shouted slogans and threats towards the arriving members of parliament. The position of the Centre Party, the third-largest party in the Reichstag, was decisive. After Hitler verbally promised party leader Ludwig Kaas that Hindenburg would retain his power of veto, Kaas announced the Centre Party would support the Enabling Act. The Act passed by a vote of 441–84, with all parties except the Social Democrats voting in favour. The Enabling Act, along with the Reichstag Fire Decree, transformed Hitler’s government into a de facto legal dictatorship…

Having achieved full control over the legislative and executive branches of government, Hitler and his allies began to suppress the remaining opposition. The Social Democratic Party was banned and its assets seized. While many trade union delegates were in Berlin for May Day activities, SA stormtroopers occupied union offices around the country. On 2 May 1933, all trade unions were forced to dissolve and their leaders were arrested. Some were sent to concentration camps. The German Labour Front was formed as an umbrella organisation to represent all workers, administrators, and company owners, thus reflecting the concept of Nazism in the spirit of Hitler’s Volksgemeinschaft (“people’s community”).

By the end of June, the other parties had been intimidated into disbanding. This included the Nazis’ nominal coalition partner, the DNVP; with the SA’s help, Hitler forced its leader, Hugenberg, to resign on 29 June. On 14 July 1933, the Nazi Party was declared the only legal political party in Germany.The demands of the SA for more political and military power caused anxiety among military, industrial, and political leaders. In response, Hitler purged the entire SA leadership in the Night of the Long Knives, which took place from 30 June to 2 July 1934. Hitler targeted Ernst Röhm and other SA leaders who, along with a number of Hitler’s political adversaries (such as Gregor Strasser and former chancellor Kurt von Schleicher), were rounded up, arrested, and shot. While the international community and some Germans were shocked by the murders, many in Germany believed Hitler was restoring order.

On 2 August 1934, Hindenburg died. The previous day, the cabinet had enacted the “Law Concerning the Highest State Office of the Reich”. This law stated that upon Hindenburg’s death, the office of president would be abolished and its powers merged with those of the chancellor. Hitler thus became head of state as well as head of government, and was formally named as Führer und Reichskanzler (leader and chancellor), although Reichskanzler was eventually quietly dropped. With this action, Hitler eliminated the last legal remedy by which he could be removed from office.

It’s like a noose slowly being tightened.

Hitler was an extreme example, but the situation doesn’t have to be that extreme for a tyranny to take over. I believe we are well on our way.

Durham who?

The New Neo Posted on by

Talk about “too little, too late”:

In the second half of the interview (full interview here), Solomon revealed that his sources (which have been excellent) indicate that a senior member of the FBI leadership group around Comey and Strzok has turned state’s evidence. Solomon also believes that Durham will have indictments ready in six to eight weeks.

However, and this is the soul-crushing detail, Durham needs Department of Justice approval before going ahead with indictments.

I would put the odds on such approval coming from the DOJ under A.G. designate Merrick Garland as very low.

Ya think?

I can’t remember how long it’s been since it seemed to me that the Durham investigation might yield anything meaningful. I’m not even sure I ever thought so. Hey, I’d be happy to end up being wrong on Durham. But I can’t even imagine a scenario where his findings or recommendations would end up mattering.

Orwellian “equity”

The New Neo Posted on by

Orwell’s Nineteen Eighty-Four is a work of genius. But I think its greatest element of genius lies in Orwell’s basic insight about the left’s use of language as a tool for leading the public to believe a very bad thing is its opposite and a good thing. Language can’t fool all of the people all of the time, but it can go far, especially when it is wielded by a compliant media well-versed in propaganda and willing to employ it.

That’s the situation we have today with our left. The word “equity” is a shining example:

…[T]he new president is so determined to sell us “equity” that he sometimes can’t get the buzz word off the teleprompter fast enough. One day in his second week in office, Biden misspoke and almost said “equality,” but then backed up and repeated the new magic word: equity.

Why was he so punctilious? Why equity and not equality? Because the difference has become enormous under the Biden administration.

No; it’s been enormous for a long time. Biden (or his handlers) did not invent this.

More:

“Equity” may sound like equality, but in the hands of Biden, his team, and the professoriate dictating the terms from the faculty lounge, it has become its functional opposite. This drives a dagger into any hope of unifying around the foundational principle of equality.

Equality calls for government to treat Americans equally, a standard that, when aspired to, has solved many vicissitudes, but when ignored has led to calamity. Equity, under the corrupted new meaning, calls for government to dispense unequal treatment in order to achieve equal outcomes.

But courts have been dispensing this sort of logic for decades under the principle of “disparate impact.” Remember the old right/left divide between equality of opportunity and equality of outcome? That’s more or less what we’re talking about here. Under the 1964 Civil Rights Act, for example, disparate impact became part of anti-discrimination law:

A violation of Title VII of the 1964 Civil Rights Act may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class as compared with non-members of the protected class. Therefore, the disparate impact theory under Title VII prohibits employers “from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.” Where a disparate impact is shown, the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question. This is the “business necessity” defense.

Much more at the link.

I’m not sure when the word “equity” came into play, but it’s certainly not a new principle.

[NOTE: Thomas Sowell’s wonderful book The Quest For Cosmic Justice contains an analysis of the problems with the attempt to arrive at equality of outcome. Highly recommended book.]

Our gracious CDC overlords are being magnanimous…

The New Neo Posted on by

…and are allowing “fully vaccinated individuals” (that’s me!!) to do the following:

Americans who have received the full COVID-19 vaccine can gather with vaccinated grandparents or friends without wearing masks or keeping their distance, according to new CDC guidance announced Monday, and those grandparents can visit with and hug family members that aren’t vaccinated as long as they don’t have underlying medical conditions that put them at high risk for COVID-19.

Group hug, folks!

Ah, but not so fast:

But getting the vaccine does not mean you should travel or gather in large groups, according to the CDC…

What about those of us – and there are many – with grandchildren so far away that we must travel in order to see them? I can’t imagine there are many who give a rat’s patootie what the CDC says about that.

Looking back at COVID

The New Neo Posted on by

Certain things about COVID should have been obvious early on to anyone who did any research about it and thought about it. For example, take a look at this post from February 27, 2020:

I’ve read that for infectious diseases, lethality and ease of contagion are ordinarily (not always) somewhat in opposition. That makes sense, because if a disease is quickly and highly lethal, the sufferer will have much less opportunity to be walking around with it in his or her most contagious stages, and therefore will tend to infect fewer people.

That’s why many illnesses that are highly widespread – take the common cold, which is called “common” for a reason – are usually mild (although tell that to the cold sufferer). And yet even such seemingly innocuous illnesses have some lethality, in that (for example) a cold can lead in the susceptible to pneumonia, which is far more likely to kill…

Most estimates I’ve seen so far about the death rate in COVID-19 are that it’s around 2.5% of people who are infected (not of the general population). However, there are several possible problems with this. One is that doctors may be missing a large number of mild or even asymptomatic cases, which would make the actual death rate much lower than that. Another is that it’s not just the death rate but the pattern of deaths that’s important. Most of the deaths have occured in the elderly and especially the very elderly…

Despite rumors and even reports of transmission when people are asymptomatic, there’s no hard evidence of it so far.

I think that last sentence is still true, although I’m not 100% sure.

But the most powerful data we had back then was the stricken cruise ship Diamond Princess. I discussed that on February 29, 2020:

…[T]he situation of the Diamond Princess cruise passengers offers an opportunity to learn about both under a sort of worst case scenario, which is confinement of healthy with ill passengers in a closed system, and an especially susceptible population because of a high percentage of people of advanced age…

The total number of people on the ship was 3,711. So the final number testing positive represented about 19% of the whole, or a little less than a fifth. Of that number – in the month since the first person from the ship was diagnosed – 6 have died, which is .16% of the whole, and .86% of those who tested positive. Both figures are under 1%. That only represents a months’ time, of course, two weeks of which involved quarantine on the ship. But it’s a fairly low figure, especially considering the advanced ages of so many of the passengers. Time will tell whether there will be any more deaths of people who were on that ship.

There were more, but not all that many – the total ended up being 13.

I then quoted the fact that only about half of those on the ship who tested positive were symptomatic, and remarked, “That’s…even less morbidity – than has commonly been reported.” I added:

The first two [ship passengers who died of COVID] were 87 and 84, both with underlying pre–existing health issues. The next two were also people in their 80s, and it’s unclear what their previous health status had been. The fifth person was in her 70s, and the sixth was of as-yet unreported age. This is further indication that advanced age is a big factor, just as it is in pneumonia deaths and deaths from most varieties of flu (although not the 1918 flu, where the majority of deaths were of younger adults ).

And I concluded that, “COVID-19 has been hyped by the press and the Democrats, the better to get clicks and/or sell papers, and to criticize and blame Trump.” But it didn’t occur to me at the time that additional reasons would be to kill small businesses, to make people more fearful and dependent on government, and to break down the fabric of society in general.

I did think that COVID would end up hurting Trump’s re-election chances, and I believe it did (whether you think substantial fraud occurred or not, I think it’s clear that his vote total would have been much higher but for the use made of COVID by the left). But I did not foresee the extremes to which Democrats would go to keep us locked up for such a long time, and how meekly so many people would acquiesce to it, driven by fear.

Reaction videos: the Bee Gees “Too Much Heaven” through young ears

The New Neo Posted on by

If you’re unfamiliar with the genre of the reaction video, it involves a song – usually one popular between the 1950s through the 1980s, but it can be any song – which a person listens to for the first time while videoing himself or herself simultaneously reacting to it. The song performance is usually featured in a small square down at the bottom. The reactor is required to stop the recording at intervals and speak, or risk running afoul of the YouTube copyright ax.

One reason I’m so taken with reaction videos is that through listening to them music feels a bit more like a shared experience rather than a solitary one. Another is that I enjoy watching the surprise on the faces of the young people – and they’re almost always young – hearing the “old” music for the first time. In addition, their comments are sometimes poignant expressions of yearning for the sentiments of an earlier day compared to the harshness and vulgarity of today.

As far as I can see, the majority of the YouTubers who make reaction videos are not only young but they’re also black, and although they’re generally listening to classic American rock or pop, they often seen to be from Africa or some other foreign country. I don’t know why that might be.

I’ve mentioned several times that until recently I remembered very little about the Bee Gees, but that about six weeks ago YouTube reintroduced me via a video recommendation. It was a reaction video to the song “Too Much Heaven,” which turns out to be popular with reactors for some reason. The title didn’t ring a bell with me (I really only recalled “Stayin Alive” and “How Deep Is Your Love” of all their compositions), and I idly clicked on it.

That was the beginning of a very deep rabbit hole for me, as you know.

I realized immediately that I was already familiar with the song from over forty years ago. Perhaps it was the fact that for the first time I was listening to it with earphones instead of on an old record player, perhaps it was something about the visuals (I’d never watched the brothers perform it), or perhaps the reactor’s reaction had an effect on me, but I found myself mesmerized.

Watch reaction videos to this song, and you will often see women and men too – young, from every culture and of every race – react to the Bee Gees’ “Too Much Heaven” (written in 1978) with an initial smile, eyes widened in shock at hearing such high voices coming from these masculine-looking men, and then a smile as Barry sings in a falsetto so pure, so sincere, so full of completely controlled tremulo-vibrato, that you understand that they’re starting to fall in love with him or with the song or with something (men and women alike, but especially the women). His falsetto here is nothing like his hyper shriek in the group’s disco songs, which was meant to convey excitement and thrills – here it’s smooth and soothing.

And then there are brothers Robin and Maurice, who have a subsidiary but extremely important role to play in this song. They sway and bob gently, like sea anemones moving in a current of music rather than water. At one point, Barry suddenly enters a different zone. With eyes closed or half closed, or looking up at some imaginary vision, he cuts loose with more power in the falsetto. There’s a look of near-ecstasy on his face, which seems intimate and private even as it’s public, as though he’s making love to the music itself. And his brothers, who form the outer panels of the Bee Gee triptych to brother Barry standing in the middle (yes, he looks a bit like popular drawings of Jesus), glance at him or at each other and smile slightly. They know that the music they’re making together is sublime. The twins get their moment each time they sing the line, “Love is such a beautiful thing” (or “loving’s such a beautiful thing”; I’ve seen it written differently at different sites). Corny? Perhaps, but they pull if off so well that, if you didn’t already believe love is a beautiful thing, watching and hearing them sing that line could make you into a believer. As this guy says – and he speaks for many of the reactors who say something similar:

“Especially when you say it, it sounds more beautiful.”

Here’s another woman who speaks for a great many of these young reactors on the subject of “Too Much Heaven” and of the Bee Gees in general:

Take a look at the woman in this next video reacting to that same Bee Gees’ song. Watch her reaction when she first hears the Bee Gees’ falsettos. It’s not just surprise, it’s a relaxed kind of delight:

Here’s a compilation of short excerpts from reaction videos to the song, to give you an idea of the variety of reactions:

And here’s another reaction; these guys are brothers from Georgia (the country, not the state):

I could go on and on with this, but I’ll stop here and close with quotes from two comments seen at YouTube. The first is by someone whose first language doesn’t appear to be English:

just listen one song of BEE GEES, you suddenly find yourself listening the rest.
Drawn to it…”

I was one of those a-holes who hated everything about disco and the Bee Gees back in the day, but damn, after watching and listening to some of these YouTube videos, I’ve got a whole new respect for the band. S*** happens when you get old.

One more thing – here’s the original video, for you to see for yourself without interruption:

[NOTE: Although they’re singing in the video, you’re hearing multiple tracking they used for the audio of the studio version. They and their crew were production geniuses as well.]

Biden’s ugly betrayal of the Iranian people

The New Neo Posted on by

That’s the title of this article by Mariam Memarsadeghi in Tablet:

It was during the Trump maximum pressure campaign that the demands of the Iranian people—as manifested by protest slogans, dissident letters, social media discourse, and more—traversed unmistakably to an absolute opposition to the totality of the regime and the demand for its wholesale removal. Contrary to the warning of those who supported the Iran deal and opposed the maximum pressure strategy, crippling sanctions did not cause the people of Iran to rally behind the regime’s flag. It caused them to revolt against it.

The Iranian people proved the overwhelming consensus of Iran experts in the United States and Europe to be wrong. Not only did Iranians not protest against the United States or against international sanctions, they made clear in their protest slogans that their enemy is the regime, not America.

Actually, a great many foreign policy events for several decades – starting, for me, with the fall of the Soviet Union – have seemed to prove the “overwhelming consensus” of foreign policy experts to be wrong.

The article also goes into what seems to be the required paragraph of Trump-bashing, with such typical stuff as “The same democratic liberties and institutions which the Iranian people sought to achieve with American support, Trump often seemed to threaten at home.” No examples, naturally. Then it segues into a description of what Biden has done:

For the Iranian people, Biden’s repeat of Obama’s betrayals is made all the worse because of the open failures of the Iran deal—which the new administration is choosing to repeat nonetheless. Appeasement 2.0 is being led by the same Obama team that traded the aspirations for freedom of the Green Movement in Iran and later the people’s uprising against the dictator Bashar Assad in Syria for the phony “peace” of kicking the can of the Islamic Republic’s nuclear program down the road for a few years under U.S. protection.

That Trump’s maximum pressure campaign and the Abraham Accords have provided America with tremendous leverage against its imperial enemy in the Middle East is a fact that is dismissed resentfully by the Biden administration. Reversing the Trump gains because they are Trump gains means more to the appeasers than protecting America or advancing American security interests in the region—let alone giving hope to the people who still look to America as a beacon of freedom.

In the short time since taking office, Biden has already snubbed Iranian dissidents who courageously wrote to him from inside Iran, some writing from prison, urging him to maintain sanctions and other pressures on the regime and to provide support and solidarity for their democratic struggle. Instead, their message was received as an inconvenience by a White House national security team staffed with some of the regime’s leading U.S.-based apologists. The administration then quickly provided other sweeteners to the regime, including the lifting of sanctions on their proxy in Yemen, the lifting of restrictions on its arms buying and selling, the lifting of U.S. opposition to an IMF loan, and the neutering of a pro-freedom public diplomacy initiative from the State Department, which went overnight from being a popular source of information on the regime’s repression and corruption to the butt of jokes among Iranian democracy activists…

Biden’s policy of appeasement has been accompanied by large increases in the number of executions and deaths in custody of political prisoners, the taking of foreign hostages for ransom, and threats to kill dual nationals like Swedish Iranian researcher Ahmadreza Djalali. The new administration has, in effect, taken every opportunity to demonstrate to Iran’s thuggish theocracy that it will give in, even signaling that the regime’s holding of American hostages will not be an impediment to negotiations on the nuclear program.

There was never a moment’s question that this would be the result of a Biden presidency. Those who voted for him – and whether or not you think Biden won the actual vote, there were plenty of people who did in fact vote for him – either did not care about Iran, did not know about Iran, or considered getting rid of Trump the most important thing of all. Trump was a demon, and demons must be exorcised no matter what the cost might be.

In that regard, the gratuitous Trump-bashing by the author of the article is not irrelevant. It’s part and parcel of the retention of the “Trump is evil” mindset even in many of those who should know better, for example those who recognize (as the author does) the good things he did in Iran and the Middle East as a whole, and the bad things the Biden administration is doing.

The Iran policy of the Biden administration was always going to be a return to the glorious days of Obama’s appeasement of Iran, and so it has played out that way. It’s a combination of a kneejerk undoing of anything Trump did – even the good things or perhaps especially the good things – and some twisted leftist geopolitical theory that dictates making things easy for the mullahs. What the American people might want and what the Iranian people might want is not even on this administration’s radar screen.

[NOTE: I tend to write “the Biden administration” rather than just “Biden” because it’s not clear who’s actually behind any of Biden’s policies, and how much input he has in his own presidency.]