Sunday, November 14, 2010

A Futher Word on Black, Posner, Jonas


2. Okay, I looked at Jonas’s piece more closely. When I glanced at it quickly after you sent it to me, it seemed silly and hence a waste of my time to really get into it.

You asked me whether Posner’s opinion was defensible. I esteemed your intellect too much to have thought you were asking me that question on the basis of Jonas’s seeming silliness. So I figured if I just made Posner’s reasoning accessibly clear, your question would in effect answer itself.

But apparently Jonas threw some pixie dust at you and you harbor his column as raising some serious intellectual doubt as to Posner’s opinion. So I just read Jonas’s column more carefully. I’ll give him that it’s spritely and well written. But that’s about it. It’s way off and doesn’t touch Posner’s opinion and I’m surprised you think it does.

The problem with Jonas’s piece is immediately apparent: its premise is fatally flawed. But before I get to that let me note that Jonas himself says he’s writing out of near “apoplexy”—his word—and that writing his column is an alternative to apoplexy and that it’s a “therapeutic column.” This language by him does not amount to an argument against him, of course, but it’s hardly reassuring as to his objective rationality.

Let’s face it: nothing will satisfy Jonas save for Black’s complete exoneration. Therefore, in the guise of critiquing the panel’s opinion—it was a unanimous decision of three judges after all, not just of Posner—he rails irrationally against anything less than that complete exoneration.

The fatal flaw in his premise, which infects his entire column, is given away by Jonas when he self-indulgently says, “All I know is some facts” and “Since I’m not a lawyer and a newspaper isn’t an appellate forum, I’ll review some facts.” That's the equivalent of someone saying, “I know nothing about climate science, so I’ll challenge conclusions X and Y by just spouting off about the change of seasons where I live.” Jonas is audacious and self-revealing in trumpeting what he doesn't know. And it, therefore, is consistent with his ignorance that he says, flat wrongly,

“Appellate lawyers shy away from facts. It has been drummed into them that their forum is about bigger things. As a result, appellate judges get away with murd ... well, let's say with being creative about the evidentiary basis of their opinions.”

What utter nonsense!

Apart from Posner being a vaunted American public intellectual, and, as Jonas admits, a “renowned jurist”, more to the point Miguel Estrada is one of the elite appellate counsel in America. Is Jonas lumping Estrada into his misconceived characterization of the d’ruthers of appellate counsel—that they shy away from evidence/facts because they have been brainwashed—“drummed into them”—that appellate courts deal with bigger things?

Appellate counsel appeal, and have appealed, from findings of fact given the evidence every day in every common law appellate court around the world since the birth of the common law. They do that when they think they have an arguable case to overturn findings of fact given the evidence.

You don’t have to be a lawyer to know that, and understand why, common law appellate courts grant deference to fact finders--juries and trial judges both. It’s, of course, because the fact finders see the witnesses "up close and personal" and in determining credibility can properly take into account how they come across. Plus, and all to the point here, when much of the evidence consists of documents, as I assume it does in Black’s case, appellate courts are more ready to draw factual inferences because they often are as in good a position as the initial fact finder to understand the documentary evidence and draw the appropriate inferences.

What competent appellate counsel does is to review the evidence to see whether a plausible argument can be made to overturn findings of fact, given the evidence, an argument that will meet the tough test for overturning fact finding, given the evidence. Every appeal by competent appellate counsel that doesn’t attack the evidence-become-facts reflects a conscious decision not to, because they think the argument is doomed to failure.

So, if you understand that and think about it, Jonas’s beef isn’t with the panel, it’s with Estrada. The appeal court will deal with the arguments put to it. Any failure to deal properly with the facts/evidence, which forms the crux of Jonas’s column, lays with Black’s appellate lawyer.

So after being completely wrong about what appellate lawyers do concerning evidence, facts and appeals, Jonas says, compounding his misconception, that, in the result, appeal courts get away with “murd...about the evidentiary basis of their opinions.”

Whatever is he talking about? The appellate court takes the case that’s put to it. If there is no appeal from the evidence, then the court deals with the evidentiary record as it exists. It was for Estrada, not the panel, to argue the evidentiary basis of the case. As I explained to you in clarifying Poser’s opinion, no such argument was made.

So, after all this, what does our resident genius say? He says he’ll “review some facts.” So long, long after a months long trial, after an appeal to the 7th Circuit, to Scotus, back to the 7th Circuit, after the accumulation of how many pages of testimony, how many documents, after Estrada took a deliberate decision not to appeal from the evidence as such, Jonas proposes to critique the panel by reviewing some facts.

It's intellectually sad.

Jonas, in an alternate universe in attempting to do so, is unable intellectually to deal with Posner’s legal reasoning. So he makes up a close-ended, hermetically sealed argument out of his own “facts” so as to do nothing less than satisfy his own biases and presuppositions.

Do you need any more from me to understand how off Jonas is in this column?

Just say the word.

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