Rov_Scam
14d ago
Just because it came off as competent based on initial reporting doesn't mean it was competent. He committed murder in one of the most heavily surveilled parts of the country. His entire stay in New York was known and public within 48 hours of the murder, and he was caught within 4 days. The only thing competent about this murder was that he wore a mask and nondescript clothing and left the area fairly quickly. Just because he wasn't a complete moron doesn't make him a criminal mastermind.
Rov_Scam
14d ago
This creates a conflict of interest between the interests of the individual and the interests of the state, and it comes up much more than you think and probably has affected you at some point. Consider the following: A runs a stop sign, causing an accident that totals B's car. A policeman on the scene finds A at fault and issues a ticket for running the stop sign, the penalty for which is a $100 fine and points on the license. A pleads not guilty because he wants to avoid the points and it's customary for the state to agree to drop the points in exchange for a guilty fee where the defendant only pays the fine. A enters his plea a week after the accident, and the court schedules a hearing for two months after the accident.
Meanwhile, B is without a vehicle and puts a claim into A's insurance company. She is relying on the insurance payout to buy a new car, which she needs to get to work. Since the civil claim is rolled into the criminal claim, however, the insurance company can't pay out until the ticket is resolved, which it won't be for two months. Furthermore, B now has to be ready to present evidence at trial since she doesn't know that A just intends to get a deal and may be arguing that he didn't actually run the stop sign. Plus, there's always the risk that the cop just doesn't show up and she's the only witness available to testify, so she has to show up lest the whole matter be dismissed.
So now B is stuck waiting months for an insurance payout that A's insurer would have just paid, and making things incredibly more complicated than they need to be.
Rov_Scam
14d ago
If over half the jury pool was rejected for spurious reasons then it doesn't sound like it was that easy to get on. I'm assuming you answered the voir dire questions honestly.
Rov_Scam
14d ago
Wrongful death is a creature of statute, and as such the statute defines who has standing to sue. A rough approximation is that you'd have standing if you'd be entitled to inherit under the state's intestacy law.
Rov_Scam
15d ago
My guess is that there were one or two people on the jury who saw Penny as a hero who wouldn't agree to any conviction no matter how minor.
It doesn't look like it played that way. If 10 or 11 of 12 are willing to convict then they aren't going to decide to acquit because of 1 or 2 people, especially not so quickly after the higher charge is dropped. If the jury is mostly willing to convict the guy of manslaughter after days of deliberation, I don't see 2 people turning around the other 10 in a couple of hours. This looks more like most of the jury wanted to acquit but one or two holdouts wanted a conviction. Dropping the manslaughter charges may have signaled to the jury that the prosecution didn't really believe in their case, which may be enough to flip these people.
I would have been one of those people, and would have more than willing to hide my power level during jury selection.
I'm generally curious; what makes you think you could hide your power level during jury selection? How do you think you could accomplish this?
Rov_Scam
15d ago
I'm with @FiveHourMarathon on this. Trust me, a big house isn't all it's cracked up to be, especially if you don't have kids. From 2017 to 2023 I lived in a rather large house and used it thus:
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The entryway led into a large combination living and dining area. The dining side had a sliding glass door that led out onto a patio. The living side was 12 feet from the wall to the back of the couch. While this is actually a little closer than at my current house, I don't think anything is gained by more distance. Actually, a bit is lost because now I have to keep my stereo speakers wider to maintain proper imaging in the sweet spot. The dining side was probably a tad smaller than a standalone dining room would have been, but it was still big enough to fit a sideboard and had the added advantage of making it easy to eat in front of the TV without feeling like a piece of shit.
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There was a reasonably sized eat-in kitchen that the dining area made redundant. I seldom ate in there, and the kitchen table became a pile of junk mail and grocery bags. Having multiple dining areas is redundant; in houses that have both a formal dining room and an eat-in kitchen, the kitchen isn't really a place you can have a dinner party, but I've noticed a trend toward just making a larger kitchen where the dining area can be as formal as it needs to be for most people. I'm not going to complain about having both, but if you have both, one or the other is rarely used for its intended purpose.
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There was another, smaller living area with a small fireplace. I put my bookshelves in here along with a smaller stereo and used it for reading. I entertained people in here on exactly one occasion (excepting larger parties where people can go anywhere) when I invited some friends over for drinks after going out to dinner and I wanted to have a fire.
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The master bedroom wasn't particularly large but since I only used it for sleeping it didn't matter. A king-size bed would have been cramped once you included dressers, BUT it had a walk-in closet the size of a small bedroom. The idea clearly was that all the clothing storage/laundry/dressing would be relegated to the closet, and that's how I used it. With a queen and a couple nightstands the bedroom was quite roomy. Now, some of these larger houses have master bedrooms that are big enough to have their own separate sitting areas with couches and televisions, but I don't really see the point in this. To cosplay living in a studio apartment?
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Bedroom 2 was used as a home office. This was necessary since I was working almost exclusively from home for most of the time I had the house, but if I weren't then I would have preferred to have the computer in the small living room.
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Bedroom 3 was used as a guest bedroom for the once or twice a year I had overnight guests.
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Bedroom 4 was a junk collector.
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There was a powder room off the entryway that was used frequently and a full bath upstairs apart from the master that was used rarely. I once thought about asking my girlfriend to move all of her hair stuff, etc. into the other bathroom but decided against bringing it up because a) she didn't live there so it's not like there was a ton of it and b) the master had a jack and jill so it would seem a bit ridiculous.
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It had a finished basement that contained a couch that the prior owner left there and a bike trainer. I had a small stereo to listen to while on the bike and a 40" TV for Zwift, but that's about it. I only used the bike trainer in the winter. No one ever sat on the couch. The room was primarily used as a way to get from the garage to the upstairs. The basement also had a separate laundry/utility area. I couldn't feasibly use this as a junk collector because if I entertained guests had to go through here to get to the kegerator.
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I had a two car garage that I used for storing my car. I used the other side to work on bikes, except I let my girlfriend park here when she stayed over in the winter.
At the time I was living there, the house seemed entirely too large. Cleaning it was a pain in the ass. Heating it was a pain in the ass. Cooling it was fine, but I only turn my AC on if it's going to be above 85 for more than a few days, which in Pittsburgh is only a couple times a year. If I lived in a hotter area or was more sensitive it would have been a pain in the ass. I was able to find use for all the space, but I'd be lying if I said I used it all that much. I bought the house because the price was well below what one would expect due to certain topographic complications involving the lot. For one person, it felt huge.
How big was it? About 2,000 square feet. For someone with kids, it would have been fine. I could understand going a little bigger. My uncle's house is 2600 square feet and it seemed more than big enough for three kids. But 4,000? Larger living rooms just put you farther away from the TV. Larger bedrooms add nothing. A larger kitchen does nothing once you have sufficient counter space. There are only so many rooms you can hang out in. The house I'm in now is about 1400 square feet and I don't see any appreciable decrease in my standard of living.
When I said that jazz was difficult, I didn't mean to imply that it wasn't easy on the ears. It's difficult in the sense that it's hard for someone accustomed to pop music to appreciate, especially if they don't have any musical training. One common complaint I've heard from friends who listen to rock and try to get into jazz is that they like the part at the beginning where everyone plays together, but they get bored throughout the endless soloing. When I tell them that the solos are more or less the whole point (not entirely true, but you get my drift), they give me an odd look. If you're used to structured music with to-the-point melodies and solos that don't go on for more than 8 bars (giving you a taste of possible variation but not getting off track), it's understandable why someone blowing out 5 choruses followed by another guy doing the same thing may seem tiresome. I don't think it's a coincidence that people who already like jam bands tend to also like jazz.
As for Bright Size Life, I bought that album on vinyl at a used record shop back in the 2000s and when I took it home to play I noticed that someone had stashed ripped out pages from a porn magazine in the sleeve. I decided to hang on to them as an investment and they're still there to this day. And how can you say that this is Jaco's best work and not his solo album? It's obviously very good, but he's clearly a sideman here and doesn't get to show his full potential. Pretty much every track on that Jaco Pastorius exhibits a new possibility for what the bass guitar can be, particularly "Portrait of Tracy". And "Opus Pocus" is probably the only example in recorded music of menacing-sounding steel drums.
Rov_Scam
18d ago
I'm glad you mentioned Laufey because I wanted to make a post about her shortly after that video came out but never got around to it. Anyway, I think that a big part of the problem when it comes to determining whether or not something qualifies as jazz is that, like with most genres, it's hard to define jazz to begin with. Most books on the subject start with a perfunctory description that goes something like this: Jazz is an African American music, is based in the blues, is heavily improvised, and relies on a swing feel. But none of these elements are exclusive to jazz, and none applies to all jazz.
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African Americans were obviously central to the development of jazz throughout its history, and continue to be central in the present day. But people of all races and ethnicities have participated in its development as far back as New Orleans, and since then it has seen continued development from nationalities across the globe, from Euorope to Africa to Japan. And it isn't especially popular among African Americans today, much as it isn't especially popular among any demographic group, at least in the US.
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We associate jazz as having derived from the blues and being closely associated with it, but what is the blues, exactly? A scale? A lyrical style? A feeling? An attitude? Trying to define the blues is fraught with the same problems as trying to define jazz. And whatever the blues is,there's plenty of jazz out there whose incorporation of it is arguable at best, and plenty else with no discernable bluesinfluence whatsoever. Not only that, but pretty much every style of American music, from rock to soul to country, derives from the blues to the same degree that jazz does, so this isn't exactly a unique feature.
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The level of improvisation in jazz runs the gamut from styles that are almost wholly improvised (such as free jazz) to styles with little to no improvisation at all (much of the very early New Orleans stuff wasn't improvised). And there's plenty of other music from around the world that's improvised; even classical music, the composed music par excellence, often includes improvised cadenzas.
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Swing presents even more problems than the blues does when it comes to defining it, and titans such as John Coltrane and Duke Ellington have openly questioned its necessity to jazz.
I'm not going to belabor the point by going into too much detail, but writers have added additional components to this list such as the use of certain forms, certain harmonic devices, a vocalized tone, rhythmic elements, focus on an individualized sound, etc. but it's never clear what role all these features are supposed to play, or whether there's some kind of magical combination which is distinct, if difficult to describe. The focus of more contemporary critics, Neely included, tends to be more on participation in a "jazz tradition", defined by the scene and by the audience. As far as Laufey is concerned, the argument is that she isn't jazz because she isn't part of the community of jazz musicians (she didn't get her start in jazz clubs, she doesn't collaborate with established musicians, etc.) and that she doesn't attempt to appeal to a jazz audience. Her press comes from mainstream publications, not jazz critics. This is all, of course, independent of what her music actually sounds like.
For all of their faults, any of these approaches allows us to come up with a reasonable, or at least workable, definition of jazz. And then someone insists that Kenny G is a jazz musician and the arguments start flying. Mr. G is in fact an acoustic musician who plays the soprano saxophone, a traditional jazz instrument that is most closely associated with Sidney Bechet and John Coltrane, two undisputed jazz legends. His has a distinct sound, at least occasionally plays with a swing feel, has at least some blues "feeling", came up on the edge of the jazz tradition (he got his start as a teenager in Barry White's band), etc. These definitional exercises are useful, but they have their limits.
For the record, I'm not going to argue that Kenny G is a jazz musician; his style is more adequately described as instrumental pop. But his connection to jazz is more direct than one would think. If we trace the lineage back, we find two converging streams. Before going solo, Kenny G played with the Jeff Lorber Fusion, who were peers of the later-period fusion acts like Bob James, Earl Klugh, and Fourplay, who trace their lineage back to people like Joe Sample and Donald Byrd, who played a more smoothed out version of the soul jazz of Shirley Scott and Richard "Groove" Holmes from the late 1960s, who in turn are successors to organ grinders like Jimmy Smith from the early '60s, who came out of the more blues-oriented wing of hard-bop, which is jazz qua jazz. On the other hand, his solo work is the direct successor to the instrumental pop of the 70s, which was popularized by people like George Benson, Maynard Ferguson, and Chuck Mangione. But these people started their careers as straightahead jazz musicians before chasing pop hits. They did this, at least in part, in response to Wes Montgomery's recordings of contemporary pop songs for Creed Taylor's CTI label in the late 1960s. Montgomery is a jazz legend in his own right, though his CTI recordings aren't of any particular interest to most jazz fans. And then there's John Klemmer, whose 1975 album Touch is probably the most direct progenitor of the Kenny G sound (song titles like "Waterwheels" and "Glass Dolphins" say it all), but I don't know where he fits into all of this.
To say that the situation is complicated is an understatement, but when trying to define and discuss genres and influences everything is bound to be complicated, because influences come from all directions. The remarkable thing about the whole Kenny G controversy, though, is that his audience didn't seem to care whether he was considered a jazz musician or not. I grew up during the height of his popularity, and while he was far more mainstream than Laufey will ever be, no one really seemed to love his music. His audience, to the extent that he had one, was the kind of person who didn't pay to much attention to the music they listened to. He was background music for people who only listen to music as background. He was played on radio stations that marketed themselves as "the station everyone at work can agree on", which eventually evolved into a "smooth jazz" format that revolved around Mr. G himself. He was at his most ubiquitous at catered events; anyone who attended a wedding, football banquet, or charity fundraiser in the 90s would be forced to suffer through his mindless wailing during dinner, and on at least two occasions I heard the DJ announce to the room that "this is Kenny G and gosh, doesn't this make great dinner music" in a patently self-congratulatory manner.
The problem with Kenny G, from a jazz fan's perspective, wasn't that his fans were impostors who were misidentifying themselves, but that the music industry was incorrectly marketing him as a jazz musician. It wasn't so much that he was being proclaimed the Savior of Jazz the way Laufey is (he wasn't), or any other active attempts, but the more subtle, lazy stuff. His recordings were sold in the jazz section of record stores. He won Grammys in jazz categories. He appeared on the Billboard jazz charts. Stuff like that. This might not be so much of a problem, but for all of his popularity, there was a significant backlash among jazz fans and non-fans alike. As my friend's dad so eloquently put it when I suggested that if his son could be as famous as Kenny G if he practiced his instrument enough, "Kenny G doesn't play the saxophone; he play the kazoo". Or as my own father put it when I asked the context of his breaking the record for the longest-held note (Did he make a recording of it? Did he bore a concert audience for 45 minutes?): "He was in a music store and got his horn out and started playing it. A crowd started to gather around him, and after 30 seconds they started throwing stuff at him".
This backlash created a concern that jazz would only be marginalized further, as potential fans would be turned off by association. As guitarist Pat Metheny famously put it when describing why jazz wasn't popular in the United States:
Well, I can understand why a lot of people say they don't like jazz because right now sometimes you say the word jazz and people think of some of the worst music on earth, like, for instance, Kenny G. I mena, you know there's nothing more stupid than that. Let's face it, that's the dumbest music there could ever be. In the history of human beings there could never be any music worse than that and now people think that that's what jazz is. Well, that's not what jazz is at all. Jazz is, at it's best, the most incredible music; it's just that like rock and roll 95% of it really sucks. It's just the really good stuff that's really great, and that's exactly the same in pop music... It takes a little bit longer to discover the good stuff in jazz because you go into the record store and there's so many records there you don't even know where to begin. It's good to find somebody to help you learn about jazz, somebody who knows about it.
Metheny (who is, in my opinion, the greatest guitarist of all time, period) made these comments in 1987 as part of an interview for an Iron-Curtain era Polish children's program, so this was well before the mainstream backlash in the US started, and it is unlikely that anyone here would have heard them contemporaneously. But when the video clip was posted to the internet in 2000, Pat was asked about it on his website, and his reponse stands as one of the greatest takedowns in internet history, so brutal that it deserves to be read in its entirety. But when it comes to the question of whether Kenny G is a jazz musician, Metheny writes:
Jazz musicians and audiences have gone so far as to say that what he is playing is not even jazz at all. Stepping back for a minute, if we examine the way he plays, especially if one can remove the actual improvising from the often mundane background environment that it is delivered in, we see that his saxophone style is in fact clearly in the tradition of the kind of playing that most reasonably objective listeners WOULD normally quantify as being jazz. It’s just that as jazz or even as music in a general sense, with these standards in mind, it is simply not up to the level of playing that we historically associate with professional improvising musicians. So, lately I have been advocating that we go ahead and just include it under the word jazz – since pretty much of the rest of the world OUTSIDE of the jazz community does anyway – and let the chips fall where they may.
And after all, why he should be judged by any other standard, why he should be exempt from that that all other serious musicians on his instrument are judged by if they attempt to use their abilities in an improvisational context playing with a rhythm section as he does? He SHOULD be compared to John Coltrane or Wayne Shorter, for instance, on his abilities (or lack thereof) to play the soprano saxophone and his success (or lack thereof) at finding a way to deploy that instrument in an ensemble in order to accurately gauge his abilities and put them in the context of his instrument’s legacy and potential.
Laufey, however, faces the opposite problem. Jazz fans, critics, and musicians don't have a problem with her music. No one is making fun of her music, and it would be hugely surprising if she ever faced the same kind of backlash that Kenny G has faced. Neely isn't concerned that Laufey being categorized as jazz will tarnish the reputation of the genre; he's concerned with definitional integrity. There's a tendency among some groups to view definitional labels as an indicator of quality, or lack thereof. The whole "popitmism" debate of the 2010s was an attempt to rectify what was seen as decades of denigration of pop music. By the 1970s, rock had established itself as serious music for serious people, and anything that didn't meet certain criteria could be casually dismissed as "pop" music and ignored entirely. We don't need to consider the artistic merits of Paper Lace or Bo Donaldson & the Haywoods because it's accepted as axiomatic that they don't have any. When a pop artist does come along that we feel has value, like Madonna, we can retroactively define her as rock and lobby the Rock and Roll Hall of Fame for her induction to legitimize our opinion.
What the poptimism movement sought to do was to remove the idea of genres as value indicators. It may be pop music, but there's nothing inherently wrong with that, and it doesn't excuse the critic from evaluating it on its own terms. In later iterations, the concept was taken as a license by some to assume that popularity was synonymous with quality, and a backlash set in. The ultimate problem was a misinterpretation of the logic; if a critic gives a pop album a bad review, is it because the took it seriously and rejected it, or because they're simply refusing to take it seriously? And how do you show that you're taking pop music seriously unless you're heaping praise on pop albums? It didn't help matters that some "rockist" critics (the term is either proud or perjorative, depending on who is making the argument) stubbornly clung to the old paradigm that pop artists simply weren't deserving of serious treatment. As more serious people like Ted Gioia got involved—he said poptimism had caused music criticism to devolve into lifestyle reporting—poptimism's influence waned. By this time, Zoomers were starting to come of age, wholly influenced by the idea of gatekeeping.
So Neely, or I, or anyone from our generation doesn't understand why Laufey has to be jazz. People born between 1981 and 1995 aren't supposed to view genres as quality indicators. Laufey being jazz does not mean that Laufey is good. Kenny G might not be jazz, but if he is, he still sucks. But there's also a bit of bullshit to this argument. Jazz is difficult. For most people, Dixieland conjures up images of old cartoons, and the big band era brings to mind senior citizens. Prewar jazz has been reified to a degree that makes appreciation among the youth difficult if only due to its cultural connotations. Postwar jazz is too esoteric. It was created at a time when it was moving further away from mainstream musical sensibilities and toward the avant garde. Even at its most accessible, it involves harmonic structures that are quite different from most contemporary pop music, and the centerpiece is long improvisations that require close listening to fully appreciate. The upshot is that if someone who mostly listens to Thelonious Monk and Anthony Braxton tells you that the new Taylor Swift album is good, it carries different weight than someone who listens to Ed Sheeran and Lady Gaga telling you the same thing.
The argument over Laufey is even further complicated by the fact that singers have always had an uncertain status within jazz itself. More recent singers like Diane Reeves have managed to stay firmly within the jazz camp, and older ones like Sarah Vaughan and Blossom Dearie mostly have, but even stalwarts like Ella Fitzgerald have trouble staking a solid claim. Neely places Laufey in the traditional pop category, but pretty much everyone in that category shares the same uneasy relationship. The problem is that most of these singers came to prominence in an era where American musical theater provided most of the repertory, whether it be in jazz or pop music, and the boundaries between the two were much more blurred prior to the mid-60s. The other problem is that improvisation is an important part of jazz and singers are expected to sing composed melodies with composed lyrics. There isn't a ton of room to maneuver. Scat singing was developed as a sort of workaround, but it's still hard to see the voice as an instrument on par with, say, the trombone unless you're willing to make certain allowances.
A singer like Frank Sinatra is a case in point. Is he jazz or traditional pop? He first came to prominence with the big bands of Harry James and Tommy Dorsey, so he has a jazz background. But that was at a time when jazz was America's Popular Music, and the material done with singers was often "sweeter" than the purely instrumental stuff. When he went solo in the 1940s the Axel Stordahl arrangements didn't try to be jazz, and by the early 50s he was largely a novelty act. When he resurrected his career with Capitol beginning in 1953, he was most often paired with either Nelson Riddle or Gordon Jenkins. Riddle favored more jazz oriented arrangements, while Jenkins had a lush, Hollywood style. He'd use a variety of arrangers throughout the rest of his career, some more jazz-oriented than others. But in the 1960s he made a famous string of recordings with the Count Basie Orchestra that are unquestionably jazz, and he'd record an album with Duke Ellington in 1968. He was never a great scat singer. Was Sinatra a jazz musician? Sometimes.
So I've now reached the part of the essay where it's customary to offer my own opinion on whether Laufey is jazz, but I'm not going to do so because I don't know. I will say this: I'm not going to cynically toss her into the deep end of the jazz pool the way Metheney does with Kenny G in order to force comparisons with Diane Reeves or Sarah Vaughan. I don't know what this would accomplish. I'm not going to say she's not jazz as opposed to traditional pop because those lines have always been blurred more than Neely leads his viewers to believe. I'm not going to say she isn't jazz because she isn't part of the jazz community, for the same reason I wouldn't say that Charles Mingus wasn't jazz if I found out that he was similarly disengaged.
I'm not going to say she definitively is jazz, either, because I haven't heard enough of her music to make that determination. From what I have heard, it sounds like she's on the periphery, akin to someone like Norah Jones or Eva Cassidy. But I'm glad that a popular performer is at least taking an interest in jazz that suggests they actually listen to it regularly and not just say they're influenced by it to gain cultural cachet. I'm glad that at least some teenage girls are excited to hear Misty, not as an academic exercise but as a genuine emotional experience. I'm glad that a popular musician is viewing the voice as an instrument to be explored and not as a vehicle for sub-Mariah Carey histrionics. Whatever Laufey is, I think her emergence is a good thing.
Rov_Scam
19d ago
For instance, it's not at all obvious to me as a layperson why accepting a pardon would or should invalidate someone's right against self-incrimination; as I understand it, accepting a pardon is not an admission of guilt, and a person may have perfectly reasonable opposition to testifying as to their factual guilt. If a pardon doesn't stop a pardoned murderer from being compelled to state under oath and before the whole community that they murdered their housekeeper, or something, well... seems like it's a blessing with a curse.
Well, let's look at the actual language of the Fifth Amendment:
No person... shall be compelled in any criminal case to be a witness against himself
The underlying thrust of this, especially when read together with the rest of the amendment, is that the constitution offers protections against prosecution. Not embarrassment, not reputational harm, not even civil liability. Once a pardon is issued, the pardoned individual can't be a witness against himself in a criminal case because there can be no criminal case. Look at what happened with Bill Cosby; the prosecutor dropped a weak criminal case to allow the alleged victim the opportunity to pursue a civil suit. By entering into a non-prosecution agreement, the alleged victim could now depose Cosby and he couldn't invoke the Fifth Amendment privilege because nothing he said could incriminate him. (Ignore the fact that the trial court misapplied the law and he ended up serving prison time for these statements; the clarification from the appellate court upholds the principle.)
Rov_Scam
19d ago
It might not be as hard to catch him as you think. The stories that broke throughout the day were kind of scattershot, but I just saw one on CBS that had a more complete reconstruction of the events. Initial reports said that the shooter escaped on a Citi bike. Assuming at the time that it was a regular pedal bike, you could probably track him down based on that, though it might take quite a lot of legwork. The CBS story said, though, that he arrived to the scene on foot, shot the guy, then ran to a docking station and picked up an ebike, which he then used to escape. These require either an app or a credit card to use, and you can already nail down the station it was taken from and the window of time when it was rented. It gets better, though. While the regular bikes don't have any kind of tracking, the ebikes do. You know know where he returned the bike to, along with the exact escape route. This can be invaluable information if you're looking for clothing, the murder weapon, or any other evidence he may have ditched along the way. I guess there's a chance he could have used a stolen credit card that wasn't cancelled yet, or a stolen phone that happened to have a Citi bike account on it, or some other way of getting the bike, but for all this guy seems to have done right, the getaway plan was fairly stupid.
Rov_Scam
20d ago
I commented about this above, but to reiterate: The lawyers accepted the case on a contingency basis. Since the lawyers take on a considerable amount of risk by working on contingency, they're entitled to compensation beyond what they would get for time and effort expended, defined in terms of a percentage of the settlement. Delaware law provides guidelines for how attorney's fees are to be calculated in these kinds of cases, but attorney's fees are always subject to court approval for reasonableness. A strict reading of one test entitles the attorneys to get (roughly, I'm going from memory) 10% of the amount saved if the case is settled early, 20% if the case is settled after discovery, and the full third if the case goes to trial. By that test, the attorneys in this case would theoretically be entitled to something like 18 billion, but they knew there was no way in hell the judge would ever agree to that, so instead they asked for something like 6 billion, based on some byzantine calculation where they used various discount rates to claim they were entitled to 11% of the total. The judge still disagreed, saying they were nuts to assume that kind of windfall based solely on the unusually high value of the case. The judge did agree that the number was going to be high: She pointed to the fact that the litigation took 6 years and was disrupted numerous times (most notably by COVID and Musk's acquisition of Twitter), that they billed 20,000 hours, that numerous experts were required, numerous people had to be deposed, an inordinate amount of records had to be examined, and the issues involved were incredibly complicated. She then looked at the counterproposal from the defendants, which suggested that they should instead get 15% of some lower number I'm not entirely sure how they arrived that. The judge accepted that proposal.
Rov_Scam
20d ago
Why? Because if we're using the absolute size of the reward as the metric (and not relative size) then the same logic must apply to the plaintiff's lawyers. But it clearly didn't as they stand to be so enriched by this lawsuit that it will rank among the largest awards ever given to a legal team. (Possibly even the highest payment ever for a non class-action suit). Clearly, the judge is not against gigantic rewards in principle.
The judge did apply the same logic to the attorney's fees. The Plaintiffs were originally asking for a contingency fee based on 11% of the amount of money they saved the shareholders, which came out close to 7 billion. It should be noted that they were already applying a significant discount factor to the 33% they would be entitled to under the standard formula. The judge knocked this amount down even further, precisely for the reason that the total dollar amount was so high, even if what they were asking for wasn't a lot in comparison to the total amount at issue. She went on to explain that while courts have adopted various guidelines to determine reasonable compensation, the judge has the ultimate authority to make that determination. She then adopts the alternative valuation formula that Tesla asked for.
There's little doubt that Tesla's market cap is almost entirely dependent on Musk's involvement with the company. Getting 5% of the market cap gains for himself does not seem unreasonable.
The court doesn't doubt this, but the defendants made this argument, and it was rejected nonetheless. The problem the court noted was the absence of any element of bargain from the transaction. In a typical executive compensation package, the idea is that you want the CEO or whoever to have some skin in the game, and at the same time you don't want to lose him to another company, so you offer a compensation package wherein he gets stock options commensurate with increases in the company's valuation. the shareholders benefit because the CEO has skin in the game and they won't lose a good CEO to a better offer. The record in this case doesn't support the contention that that was an issue. The first thing they noted was that since Musk already had a 20% stake in the company, he already had sufficient incentive to meet the benchmarks. But beyond that, he never gave any indication that he'd leave the company or dedicate less time to it without additional compensation. The defense tried to argue that the additional compensation was needed to keep Musk from getting distracted by other ventures, but Musk himself testified that the package had no influence on how much time he spent working on Tesla. The court also noted the absence of any concurrent obligation for him to dedicate any amount of time to Tesla.
Beyond that, though, the biggest problem the court seemed to have with the package is that there was no real negotiation. From the record, it looks like Musk decided what he wanted, drew up the terms for it, asked the board for it, and got it without any pushback. No one on the Compensation Committee ever offered any counterproposals or questioned any of the terms. Musk himself made several changes backing off the amount of compensation, but he admitted that these were of his own volition and not because anyone at the company suggested that his initial proposal was too rich. When you admit that you were "negotiating with yourself" in court, it doesn't create the impression of an arms-length transaction.
But, on another level, it's clearly a miscarriage of justice since there was no harm done to shareholders (in fact, they have done extremely well) and the reward was also clearly what the shareholders wanted (having voted on it).
The defense tried to make this argument, too, and it failed, for reasons related to those above. The fact that the shareholders have done well is irrelevant to the argument since the defense failed to show that the compensation agreement had anything to do with the increase in share price. Musk wasn't even working at the company full-time throughout the relevant time period. If the shareholders would have got rich anyway, then the harm is that 55 billion that could be invested into the company is going to one person who can do whatever he wants with it. As for the stockholder vote, you need to understand the posture of the case:
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If this is a normal company where the CEO and board are independent and no one person holds a disproportionate amount of stock, the deal is going to be presumed valid so long as there is a reasonable business justification. In this case, though, it was clear that everyone in the company was more or less subordinate to Musk, as was evidenced by numerous examples presented in the record. Since he had so much influence, the court has to exercise a heightened standard of scrutiny where it determines if the deal was fair.
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The burden of proving the deal was fair initially rests on the defendant, but it can shift that burden to the plaintiff if it can show that the shareholders approved the deal. This is what Tesla tried to do. The problem was that the company didn't disclose all of the inherent conflicts to the shareholders. This may seem like a petty, technical argument, but the court makes it clear that this isn't some kind of gotcha where they forgot to list one thing and their whole case goes to shit. It finds that there were numerous, material failures to disclose serious conflicts.
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Since they failed to make the required disclosures, the stockholder vote was rendered meaningless, and the defendants retained the burden of having to independently prove that this was a fair business deal. Since, for the reasons stated above, they couldn't do that, they lost the case.
It doesn't fill me with confidence in the supposedly great legal environment of Delaware. Although I do agree with a different poster that a judge trial, even in deep blue Delaware, is likely to have a better result than a jury trial in a case like this.
You need to get the idea out of your head that there's some sort of tribal component to this and that the judge just ignored the law to spite Elon Musk. Corporate law is incredibly complicated and can't be boiled down to a few common sense rules like "if there was a vote then it should stand", because that's not how it works. This level of complexity is precisely why companies choose to not only incorporate in Delaware but usually specify in the corporate bylaws that the Delaware Chancery Court has exclusive jurisdiction over claims arising thereunder, and why they will continue doing so. Yes, you can incorporate in other states, and for smaller companies it makes sense to just incorporate where you do most of your business. But if you get past a certain size or plan on going public then it makes sense to incorporate in Delaware, for the simple reason that the law there is well-developed and the Chancery Court is experienced in handling complex corporate cases. Say you incorporate in Pennsylvania. Venue rules are pretty loose here, and there's a decent chance that that derivative suit will be filed in a remote county and heard by a hick judge who's never handled a corporate case involving a public company before.
In this situation, there's a good chance that he's going to be 100% relying on the information presented in your briefs to educate him on what the law is, and there's a 50% chance that he doesn't actually read them and just asks the lawyers to explain everything to him in open court. If it's filed in a big city then you might get a judge with some corporate experience but just enough to think he doesn't have to read the briefs. He'll also have 7,000 cases on his docket and he'll repeatedly tell you to work something out among yourselves, and in the event the case actually goes to trial he'll ask you if you're going to be finished soon five minutes into your opening statement. I exaggerate, of course, but these are both very different environments than working in a court with a limited docket that handles corporate cases almost exclusively. This case generated a 200 page post-trial opinion. File in state court and you'll get "I rule in favor of the plaintiff" and maybe a brief explanation from the bench if you're lucky. In the rare event that the judge feels the need to issue a written opinion it will be a few double-spaced pages that offer only the barest legal analysis.
As far as Musk is concerned, Texas has tried to remedy this with the Texas Business Court, a similar court that is limited to high-value corporate cases and keeps a light docket, but they just started hearing cases in September and it remains to be seen whether it will develop similarly to the Delaware Chancery Court. The enabling legislation doesn't limit jurisdiction to corporate cases, but to any litigation where the amount in dispute is more than 5 million, so it could certainly become a hellhole for mass torts, but maybe that was the intention. And while you mention that a judge is better than a jury, it's worth pointing out that juries are never used in these types of cases. There are technically two types of courts: Courts of law and courts of equity. Courts of law have judges and juries and the only remedy it can impose is money damages. At common law, courts could only award damages, so if you wanted to force someone to do something (or refrain from doing something), it required an order from the king. Kings delegated this authority to chancellors, who established chancery courts who could do things like issue injunctions, orders for specific performance of a contract, and other so-called "equitable remedies". Most jurisdictions have merged these two courts, but Delaware retains the distinction for some purposes. Given that the remedy sought in this case, recission, is equitable rather than legal, only a judge could award it.
Rov_Scam
20d ago
Well, no, it's not about the quality of the judges. The entire concept of a corporation is underpinned by the idea that the corporation exists as an independent entity from the owners, and that the owners, in turn, have a fiduciary duty to act in the best interests of the corporation. If this concept didn't exist then there would effectively be no corporations at all. Consider the following example: The founders of a company want to expand, and raise money by selling 49% of the company's stock and retaining a controlling interest among themselves. The founders hold key executive positions and the majority of the board seats. The stock sale raises 20 million dollars of investor money. Instead of investing it in the company, however, they split the 20 million among themselves as bonuses. Then, they go even further and vote to liquidate the company's assets and use the proceeds to pay themselves bonuses.
Obviously, if companies could do this nobody would invest in them. The Tesla situation isn't this egregious but the circumstances were enough to trigger additional court scrutiny. It isn't controversial to suggest that Musk has a disproportionate influence over Tesla; no judge is buying the "I just work here" argument. and the amount of the bonus was far, far beyond anything within the realm of what could be considered reasonable. It's easy to lose sight of thing when the numbers get this big and we're talking about the superwealthy, but 54 billion is a lot of money. It's about 25% larger than Ford's total market cap. It's in the neighborhood of the market caps of major companies like Allstate, Target, and Phillips 66. You can understand why the court might be concerned that paying an amount of money that could be used to create a Fortune 500 company from scratch as a bonus might not be in the best interest of the company, and why there might have been a bit of self-dealing involved.
It didn't end there, though. Musk still could have won the suit had he simply disclosed his relationship with certain key players, but he didn't, which raised the question of whether the shareholders were sufficiently informed, and was enough to void the transaction. The fact that the shareholders voted to uphold the deal at a later date is irrelevant, because there's no mechanism in the law for it.
Rov_Scam
21d ago
Why do you think Jackson is overrated? He either leads the league or is close to leading the league in pretty much every relevant statistical category.
Rov_Scam
21d ago
I'm not sure what the semantic difference is between "stop" and "contain", but whatever. Anyway, I'm not too worried about the Steelers' ability to "contain" him. Derrick Henry isn't quite as good as Barkley, but they were able to limit his effectiveness while still having to deal with Lamar Jackson and one of the best passing offenses in the league. If they sell out to contain Barkley and force Hurts to pass, it could be a long day for the Eagles offense. That being said, I don't see the Steelers scoring a ton of points against the Eagles' defense, so I expect this game to be a slugfest that could go ether way.
Rov_Scam
21d ago
Being eventually right isn't the same as being right. My grandmother had dementia in 2014. If I had continually said she had it beginning in 1995, I would've eventually been right, but only after nearly 20 years of being wrong. Additionally, the claims were always beyond anything that's been demonstrated thus far. While he clearly isn't as sharp as he used to be, nothing he's done publicly has shown any indication he has dementia. His debate performance was bad, but the actual answers he gave weren't anything one wouldn't expect from a garden-variety bad debate performance. The criticism was more on his energy and demeanor than anything substantive. From my experience with the disease, this is not what one would expect from someone with that kind of cognitive decline.
Rov_Scam
21d ago
Nah, the dollar amounts are low enough that one month of access wouldn't be a problem. That's the way a lot of court vendors that provide online access work. When the product only costs 50 cents a page or whatever they aren't going to bill each transaction, especially since most of their customers are professionals making a lot of transactions. Instead they just bill monthly, and PACER only charges if you spend more than $30 in a billing period. If this is too risky, then they can always set up a draw-down account where you pay, say, $30 up front and it bills your account until it reaches zero before automatically replenishing.
Rov_Scam
21d ago
It wouldn't work like that. The aggregator would only bill the card monthly, or when it reaches a certain amount.
Rov_Scam
21d ago
I see this mentioned a lot and I want to push back a little bit. As the article notes, the claim was made by Jon Favreau on Pod Save America. I happened to be listening to this shortly after it came out, and it's clear from that context that Favreau wasn't sharing this to show, as we say in the law, the truth of the matter asserted. He was trying to make a point about the Biden campaign and their contention that he still represented the candidate most likely to beat Trump. There is no other source for this number; no one has produced the poll or polls in question, and Favreau isn't likely to have seen them himself. The context was consistent with him casually tossing off a bit of Beltway gossip that wasn't intended to be taken literally.
What I think is most likely is that one poll or set of polls showed Biden losing certain states that correlated to Trump getting 400 Electoral Votes. Unless this is the only polling they did, its mere existence doesn't really say much about Biden's chances of winning. Hell, it doesn't even say much about Favreau's original argument. To the extent that such a poll probably exists, it's probably an outlier and was probably treated as such. It seems highly unlikely that internal polling was repeatedly showing a 400 EV Trump win. If that were the case, it would mean that either they or the publicly available polls were off by an order of magnitude heretofore unseen, or that the internal polls were flawed, and common sense would point to the latter. Paying to much attention to this would be like Trump changing his campaign strategy based on the Selzer poll.
Rov_Scam
21d ago
No, Biden was unfit, physically and mentally. The reason the debate settled the matter is that it was undeniable proof of what people were told wasn't happening (and they had to keep being told because they didn't believe it). Biden hid the extent of this for months upon months not only from the public but from some of his colleagues and the media.
The question is how many months. Remember, we're not talking about whether or not Biden should have dropped out earlier, but whether he should have run in the first place. He announced he was seeking a second term on April 25, at which point there were only two groups of people arguing that any kind of age or cognitive issues should keep him from running. The first was Republicans, but they had been arguing that Biden had dementia since at least 2019 and thus had no credibility on the issue. The second was people like Dean Phillips and James Carville, along with a bunch of rank and file Democrats, but their arguments were just that he was too old generally and not that he was experiencing any kind of specific decline. If he had instead announced that he wasn't seeking a second term then he would have been a lame duck immediately and all the problems I mentioned above would have come into play. Hell, his cognitive decline wouldn't have even been noticed, for precisely the same reason that no one is looking over his appearances from the past four months to find signs of further decline.
And he did so for explicitly racial reasons.
I don't know what the big deal is about this. It's not exactly a secret that running mates are chosen more due to political considerations than anything else. Hell, Trump's choice of Mike Pence over the more well-known Newt Gingrich and Chris Christie was pretty much a naked ploy to shore up his unsteady support among the Christian Right, yet I never hear criticism that he was chosen for religious reasons. By your criteria, he's an even worse choice than Harris, as his chances of winning a national election as second in line are roughly on par with Rick Santorum or Mike Huckabee. Harris, for her part, chose a white guy after only considering white guys and after pretty much every commentator said she should pick a white guy, yet I never heard any criticism of her for choosing Tim Walz for racial reasons.
I also reject the self-serving notion that Bernie is what did in Hillary. She's always been unpopular and Bernie being relevant at all was the public desperately begging Democrats to take their money. Democrats didn't lose in 2008 because someone actually challenged at a primary instead of letting the party grandee be anointed.
I agree with you there; Hillary was a bad candidate, and the Democrats should have seen that in 2008, but you go on to conclude
The party could also have leaned on Kamala to allow an open primary.
First, it wasn't Kamala's decision but that's not my main point. For all the talk I've heard about about having some kind of contested primary, I don't see any scenario in which it wouldn't have made the situation worse. Suppose Biden drops out immediately after that debate; what then? The convention is in less than two months and the election in just over four. The mechanics of scheduling new primaries in all 50 states less than a month after the last ones were completed is a tall order in and of itself, but even assuming the problem could be overcome it only distracts from the real issue. Who is going to jump of the couch to contend for a presidential nomination with that kind of lead time? Remember, nobody other than Biden has any fundraising apparatus or campaign staff at this point. You're asking candidates to start from scratch on short notice. And for the winner, what are the spoils, exactly? The opportunity to run an abbreviated campaign as part of a reclamation project.
Even if they were to dispense with actual elections and simply have a contested primary where candidates would lobby delegates, I doubt the party's best and brightest would be the ones signing up. Do you really think that an up and comer like Josh Sapiro or Gretchen Whitmer is going to waste political capital to take over the presidential bid of an unpopular incumbent? Why not wait a few more years to become more seasoned and make a normal bid where, if nominated, you have the time to run the campaign you want and you're going against a GOP running someone other than Trump for the first time in a dozen years? A contested primary or convention that only attracts b-listers and also-rans only makes the party look even more incompetent, in addition to exposing the internal divisions I spoke of above. Is Deval Patrick or Marianne Williamson a stronger general election candidate than Kamala Harris? Is Kamala a stronger candidate after beating one of those two? Easier to just endorse her and lobby for support rather than open up the clown car.
Rov_Scam
21d ago
Then there was Biden’s decision to run again.
I really don't like how commentators act like this was a choice when there was no political reality where he could conceivably not run for reelection. The only way this could conceivably make sense is if there was some obvious candidate who wouldn't draw any opposition and who would be running as a continuation of the present administration. In other words, they would have had to name Kamala Harris as heir apparent and hope nobody credible wanted to challenge her. They weren't going to get that. The administration's shortcomings were manifest enough and Kamala's popularity weak enough that at least one squeaky wheel would emerge who would seriously threaten to derail the whole thing. At that point you're just guaranteeing a repeat of 2016 or any incumbent who faced a serious primary challenge.
On the other hand, you could (probably) keep Harris out and have an open primary with the usual large cast of candidates. But when do you start this process? Most candidates announce in the spring or early summer of the year prior to the election, and the first primary debates are held in the late summer or early fall. But the candidates need time to form exploratory committees and the like and get their campaigns together before they announce, so add an additional month or two of lead time. It's worth noting that Trump's nomination was not a fait accompli at this point, so there was a reasonable concern that the GOP candidate would have an advantage in the general if given more lead time. The latest Biden could have realistically waited to announce that he wasn't running would have been May or June of 2023, but more realistically it would have been made in March or April.
At this point, his presidency effectively ends. any new legislative proposals or foreign policy initiatives are now political hot potatoes that are discussed more in terms of their effect on the primary election than on their own terms. Support from his own party is no longer guaranteed, so better just to ditch anything the least bit controversial. This isn't good for the party, either, since changing candidates doesn't exactly guarantee a Democratic victory. This is put more starkly when you consider that the second half of Biden's presidency went much better than the first. Inflation cooled, the border crisis subsided somewhat, and COVID and Afghanistan were increasingly in the rear view mirror. Any attempts for the party to win back voters or simply do what they feel is right go up in smoke; they've effectively conceded to half a term. And to compound the error, Biden's tenure as president is frozen at that point, and it becomes the record that Democrats are running on, including those who would be willing to question Biden's decision making.
A Biden candidacy wasn't ideal, but he had already beaten Trump once and there weren't any candidates who could step in and make an obvious improvement. If Biden has a normal, boring performance at the first debate then he doesn't drop out and, who knows, maybe he wins. Conversely, if Biden doesn't run and Trump wins anyway then the pundits are writing articles about how the Democrats sacrificed 2 years of power in order to expose intraparty divisions and nominate a candidate who was stuck with Biden's record anyway and had no real chance of winning. So pick your poison.
Rov_Scam
27d ago
It's not illegal unless you're in a position that prohibits disclosure, which none of the trio were. Based on what's available they didn't really know any details, just that there was a rumor about it.
Rov_Scam
27d ago
Political Quick Hits
A few scattered thoughts that don't merit separate posts:
The Nancy Mace Capitol Hill bathroom saga has come to an unceremonious close. Sarah McBride issued a public statement that she came to Washington to legislate, not to wage personal battles, and that she'd abide by whatever the House wanted. Trans activists were predictably disappointed, not only wanting a more forceful response from McBride but a unified response from House Democrats, but they weren't going to get it. The only notable public statement came from AOC, who pointed out that neither Mace nor Mike Johnson could tell you how they planned on enforcing such a rule, unless they planned on posting a guard who would check the genitals of anyone who looked suspicious. She also cynically accused Mace of trying to exploit the issue to get her name in the papers. Mace responded by calling AOC dumb and her suggestion disgusting, but she didn't offer any alternative enforcement mechanism. Johnson himself sided with Mace, but only to the extent that he believed existing rules favored her interpretation, and he never said that he'd be bringing Mace's resolution to a vote.
This whole tack seems like it's part of a new strategy for the Democratic Party. Five years ago an incident like this would have resulted in mass condemnation from the entire party, including those in leadership positions. The sum total of opposition in this case came from three people, and all three seem like they were hand-selected. Two were LGBT themselves, and the only one with any national profile was AOC, easily the most liberal member with any credibility. And even then, the comments were unusually focused. All three reps managed to hit just two themes: That the suggested rules were unenforceable, and that Mace is doing this as a publicity stunt. No long jeremiads about trans rights or anything. It's almost as if they've finally become aware that the issue is a loser, and rather than engage they'd rather let the issue quietly die while letting the least vulnerable members of the party get a few potshots in.
Meanwhile, in the wake of the Gaetz withdrawal, the center of attention among Trump's controversial cabinet picks has shifted to Pete Hesgeth. In addition to falling woefully short of the traditional qualifications for Defense Secretary, Hesgeth is taking heat for sexual misconduct allegations in his past and for comments suggesting that women shouldn't serve in combat. Once again, Democrats have been unusually silent, with the exception of Senator Tammy Duckworth, whose legs were blown off in Iraq. I suspect this whole thing is part of an exercise in time biding. There is serious doubt as to whether Hesgeth will survive the confirmation process. But a sex scandal and some controversial comments won't be enough to sink his nomination on their own. The biggest knock against Hesgeth is that he's written books where he essentially says that conservatives should aim for complete victory over liberals, whom he describes as enemies of America, and suggests that it may ultimately be appropriate to use the US military in pursuit of that goal.
If Democrats bring this up now then he gets to respond on his own terms, and by the time confirmation hearings roll around the results become predictable. On the other hand, if they start hammering him about predictably dumb shit now then he spends his energy responding to predictably dumb shit that he gets predictably hammered about during confirmation hearings, only for Democrats to change tack in the middle and start asking him about all the controversial opinions in his book. I wouldn't expect him to be caught totally off guard, but he won't have had weeks to rehearse his responses. How he responds to this kind of grilling could be the difference between whether the requisite number of Republican senators vote against him or not.
One other notable figure Democrats have been eerily silent about is RFK, Jr. I suspect this is because while rank and file Democrats hate him for his dumb woo woo opinions on vaccines and other things, actual politicians realize that he's the most liberal cabinet member they're likely to get. Hell, he's probably more liberal than anyone Kamala Harris would have appointed to the post. So Democrats won't challenge him, just lob softball questions at him asking him to expound on his opinions of abortion, single payer healthcare, dangerous chemicals, and big bad pharmaceutical companies. If the guy is going to be confirmed anyway, and is likely the best you're going to get, then why not throw your support behind him in a way that makes Republican senators squirm? Worst case scenario his nomination fails due solely to opposition from the party that nominated him.
After Hesgeth, Tulsi Gabbard seems to be the nominee that the smart people seem to think has the least likelihood of being confirmed. I don't think it behooves Democrats to back her in the way it behooves them to back RFK, but her nomination presents an interesting conundrum. A large part of Trump voters supported him, at least in part, because he was perceived as an America First isolationist who wouldn't get us into any new wars and try to get us out of existing ones. Yet Tulsi is the only cabinet nominee who seems to embody that vision. Everyone else—Rubio, Walz, Hesgeth, Ratcliffe—are all traditional conservative hawks. Her presence in the cabinet would only serve to foment the same kind of dysfunction that riddled Trump's first cabinet. As a former Democrat and tepid member of the GOP, Republicans might prefer a more united front when it comes to foreign policy and sweep her aside as the Democrats did, and for the same reasons. That being said, I've always been skeptical of Trump's supposed dovishness, as I've never met a Republican who didn't want to bomb Iran at the first opportunity. But I still think it's odd that he hasn't just gone full neocon.
It's not so much that we don't want smart people or independent thinkers as it is that we don't want overly opinionated people who will fuck up the deliberation process. A jury full of relative simpletons isn't a good thing because they won't want to pay attention, won't be able to understand the testimony or jury instructions and will instead just rely on whatever biases they have. The Chauvin jury was composed almost entirely of people with professional or managerial backgrounds. What we're trying to avoid is the kind of person who is overly opinionated and is unwilling to work with the other jurors. We need people who can deliberate, not just voice their opinions. If 1 juror gives the other 11 the impression that he isn't fully invested in deliberating and has already made an unchangeable decision, all it's going to do is piss of the other jurors and increase the chances of a hung jury.
That brings me to another aspect of your plan that was faulty: The presumption that you would be able to hang the jury on your own. Hung juries are almost always fairly evenly split. If you find yourself in a room with 11 people who are voting to convict after several days of deliberation, then it's unlikely that they're doing so purely for political reasons. If you haven't turned at least a few members around in that time, then you're probably wrong, and unless you're a total moron, you'll probably come around yourself. In a high-profile case such as this, there is going to be a lot of pressure for a verdict, and the judge isn't going to send everyone home just because you say you're deadlocked; the system is willing to keep you there a lot longer than you think they will.
I can't speak for big cases, and there are differing theories, but a few general truisms hold. Basically, I aim to have a discussion with prospective jurors, not an examination. In big trials they might interview the jurors individually, but most of the time they bring them in 10 or 20 at a time. I'll start by making a general statement that I expect most people to agree on, just to get people comfortable with raising their hands. There will inevitably be someone who doesn't raise their hand, so I'll pick on that person first to see why they don't agree with everyone else (it's usually because the person is incredibly shy). From there, I try to focus on open-ended questions that don't suggest an answer and give the prospective juror a chance to elaborate on their views. I try to avoid anything that can be answered with a simple yes or no.
For example, in this case I might ask "In the past several years there has been a lot of discussion about how people are increasingly feeling unsafe on public transit. What do you think about that?" And this is where @ArjinFerman's comment ties in. Most people will speak freely about controversial subjects during voir dire. Most people will offer opinions that have the potential to get them booted. You don't know what my trial strategy is or what evidence is going to be presented. You haven't read all of the other jury questionnaires. You don't know where I'm going with my questions. If you think that straddling the line between both sides is going to work, you'd better be sure that you know what the sides actually are. If I'm the prosecutor on this case, I'm not trying to get a bunch of woke-ass do-gooders on the jury, because that isn't going to happen. I've probably accepted the fact that the jury pool is frustrated about erratic behavior on the subway and is sick of having to deal with it. Yeah, some people are more liberal, but they're going to be outspoken and probably get the boot from the defense. I'm trying to craft an argument at trial that acknowledges Mr. Penny's right to intervene but that the problem was in the execution. The only question is whether I think you're willing to accept my argument, and you don't know my criteria for that.
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