site banner
PaperclipPerfector  5mo ago (text post)   27978 thread views

Culture War Roundup for the week of May 27, 2024

This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.

Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.

We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:

  • Shaming.

  • Attempting to 'build consensus' or enforce ideological conformity.

  • Making sweeping generalizations to vilify a group you dislike.

  • Recruiting for a cause.

  • Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.

In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:

  • Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.

  • Be as precise and charitable as you can. Don't paraphrase unflatteringly.

  • Don't imply that someone said something they did not say, even if you think it follows from what they said.

  • Write like everyone is reading and you want them to be included in the discussion.

On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.

10
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

I mean, I've quoted -- in this very thread, just a couple comments up! -- those same jury instructions. It's not like the FECA part is better, and both the jury instructions and trial transcript point out the fine details of the terms for that, either.

I think I've made it very clear that I'm arguing about the law, not the jury's determinations on facts. I get that you're trying to juggle a lot of conversations, here, but just repeatedly asserting that the question of intent papers over any questions of what the law does or can prohibit this way isn't very compelling or engaging well with my claims.

I apologize for any confusion I may have caused, but I'm not exactly sure what you're arguing here. The court laid out the necessary intent standard in the jury instructions. If you think that instruction was incorrect, you need to tell me what the court should have said. I'd look myself but I don't happen to have a copy of the New York jury instruction manual in my office. If that standard is appropriate then whether the prosecution met it is a factual issue, not a legal one.

I've been pretty explicit about my problems with the scienter requirements revolving around what the jury was instructed to find, not whether they found it:

"Yes, if the jury were adequately instructed."

Trivially, FECA requires "willful" violations: the jury instructions contain no definition for 'willful' at all, and discussions in the courtroom with the jury present were minimal. This has overturned convictions for far more egregious conduct on very similar textual lines before (or see this, where the 'ignorance' of the law itself bordered on the intentional if not schizophrenic).

Conspiracy (as in election law 17-152) itself is likewise complex: some jurisdictions do recognize ignorance of the law as a defense in some cases. See Massachusetts (requiring that for an offense that is "malum prohibitum only", "both must have had knowledge of the existence of the law and knowledge of its actual or intended violation") or federal law (where "we have such substantial difficulty in understanding how Alston can be convicted of a conspiracy to defraud by structuring when he cannot be guilty of a conspiracy to structure or of structuring itself" by reason of ignorance of the law for a 'willful' violation statute, or see a case where supplemental jury instructions repeating that everyone should be treated as knowing the law were error). New York state's caselaw on the matter is (somewhat surprisingly) underdeveloped, at least from a quick search, but it's not showing anything on the level of California (which has a bunch of bookies regulation cases, generally favoring conspiracy prosecutions with ignorance of the regulation), either.

The prosecution does not need to prove the underlying offenses, or even that they occurred, yes. But neither can courts duck the question of whether the underlying offenses could actually be criminal, as a matter of law, simply by informing that the immediate offense requires merely that someone intended to do something illegal.

Thanks. I understand what you're getting at but this falls more into the category of bad defense strategy than anything that's going to get overturned on appeal. The defense argued for the inclusion of the "willfully" language in the jury instructions and the court granted their request. If they felt the need to define willfully then they could have made that argument, but they didn't. I agree that the explanation of FECA was insufficient considering how complicated the law is, but my impression is that both sides were trying to keep things as simple as possible for the jury to avoid confusion. Unless Trump plans on mounting a quixotic ineffective assistance of counsel defense, I doubt this will be an effective line of appeal. In the case you cited the problem wasn't that they didn't define a term but that they materially misstated the men's rea requirement.

Do you have a copy of the defense's proposed draft for jury instructions? Because I've not found them anywhere online, and I'm really not sure where you're so certain that they did not argue in favor it of anywhere. The defense didn't even get their request that the "willful" requirement be copied from FECA to the state election law conspiracy (from 4392, page 98 here).

See here. The highlighted sections are the defense's proposed additions to the instructions.

That looks like it's just the discussion on FECA, and it doesn't even include all of the stuff that was openly discussed during the trial transcript, where the judge quoted proposed draft from the defense with the words:

"Thus, a person acts with intent of conduct constituting a crime be performed, when the person acts willfully that a conscious objective or purpose that such conduct be performed."

And the defense highlighted :

And so, our position is that that needs to be imported up into the 17-152 mens rea. That is, the mental state required to join the conspiracy.

Our cite, this is in Footnote 25 of our request to charge, People versus Caban, C -A -B -A -N , New York Court of Appeals, 2005. This is an individual who is prosecuted for conspiracy and necessarily is an individual that must have the prescribed mens rea, the requisite intent to join others and commit a substantive crime.

The PDF I posted was only the specific section dealing with the FECA violations. There is one of these for each section of the jury instructions, and posting all of them would be a bitch on mobile.

Here's the one for Election Law 17-152, which includes the defense's request for instructions on it requiring "willful", and does not show up in the final jury instructions, so at least for the conspiracy leg it's missing completely, the objection is documented, and the error is sufficient enough that.

More broadly, while I agree that the defense should have and would have a stronger case if they'd publicly pushed harder for better instructions on FECA, and perhaps they'd have had more luck getting the EL 17-152 part if they'd only pressed to include "willful" only if the underlying predicate were the federal laws, I think you're reading preservation for appeal rules here more strictly than even the federal processes, nevermind the more permissive New York ones.

((See US v Curran for a federal example that was both considered plain error, not that much more severe in its prejudicial effect, and also where the court was "satisfied that the [oral] discussion between the trial judge and counsel following the charge was adequate to preserve the point".))

More comments

What is this place?

This website is a place for people who want to move past shady thinking and test their ideas in a court of people who don't all share the same biases. Our goal is to optimize for light, not heat; this is a group effort, and all commentators are asked to do their part.

The weekly Culture War threads host the most controversial topics and are the most visible aspect of The Motte. However, many other topics are appropriate here. We encourage people to post anything related to science, politics, or philosophy; if in doubt, post!

Check out The Vault for an archive of old quality posts. You are encouraged to crosspost these elsewhere.


Why are you called The Motte?

A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.


New post guidelines

If you're posting something that isn't related to the culture war, we encourage you to post a thread for it. A submission statement is highly appreciated, but isn't necessary for text posts or links to largely-text posts such as blogs or news articles; if we're unsure of the value of your post, we might remove it until you add a submission statement. A submission statement is required for non-text sources (videos, podcasts, images).

Culture war posts go in the culture war thread; all links must either include a submission statement or significant commentary. Bare links without those will be removed.

If in doubt, please post it!


Rules


Recommended Posts And Communities

Recommended Realtime Chats