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Closing arguments haven’t been made yet, but after

Aside

Closing arguments haven’t been made yet, but after the close of Zimmerman’s defense, my prediction is a manslaughter conviction, by a slight margin, with acquittal the next most likely option, and Murder 2 trailing as the least likely result. Call it a 45/40/15 split.

As far as I am aware, Zimmerman’s defense didn’t present any testimony or evidence concerning how the fight started. Their entire story of the shooting starts about halfway through the fight — call it the “Zimmerman is a fat and slow Dudley Do-Right who was getting his butt kicked” defense. Which is kind of a double edged sword for Zimmerman, because it means his case didn’t introduce any evidence that Trayvon started the fight. It’s counting on the jury to focus on the fact that, at the moment of the shooting, Zimmerman may have genuinely been in fear for his life — while steering the jury away from closely examining his conflicting police statements. The defense’s story is that Zimmerman is bumbling and quixotic, but too inept to be culpable for any harm that resulted.

So if there’s a conviction, it’s more likely to be manslaughter. The state’s strongest case for Murder 2 was always being able to show that Zimmerman intentionally deceived investigators about how the fight started, and that he used his knowledge of self-defense law to deliberately craft a story about why he was justified in killing Trayvon. But since the defense opted to avoid all together Zimmerman’s statements about who threw the first punch, Zimmerman’s veracity didn’t really come into play. The jury could buy that Zimmerman is a reckless fool, who was oblivious of his own limitations and too in love with the idea of playing the hero, but the state wasn’t able to show Zimmerman as calculating and malicious.

In a nutshell: if the jury believes Rachel Jeantel testified truthfully about what she heard on the phone that night, Zimmerman will be convicted of manslaughter. If they’re unsure of what she heard, then the odds are much less likely.

-Susan

Zimmerman’s Statements are the Defense’s Own Worst Enemy

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As I discussed in my previous post, there are two plausible scenarios that fit the undisputed evidence in the Zimmerman trial. Zimmerman’s defense is now presenting their case in support of scenario 1: that Trayvon decided to commit murder and beat Zimmerman to death with his bare hands, as revenge for Zimmerman having “disrespected” Trayvon. In making their case, however, Zimmerman has two problems they face. The first is that there is very little they can do to directly disprove the prosecution’s case, as the prosecution’s evidence is largely circumstantial and based on known parts of the record. The second is that the evidence of their version of events all comes from a single witness, George Zimmerman himself — and there are so many points of question and confusion over his testimony that it is difficult, if not outright impossible, to accept his version as being wholly accurate. The prosecution’s job will therefore be to argue that even if Zimmerman’s story cannot be completely relied upon, it reliable enough to create doubt to prove one central point: that perhaps Zimmerman doesn’t know what happened that night, but the events were so confusing that no one else can know either.

I’ve provided below a run-down of the central points for both problems that the prosecution will face.

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The Undisputed Facts in the Zimmerman Trial, and the Competing Scenarios of the Prosecution and the Defense

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The prosecution is wrapping up its case against George Zimmerman today, after presenting nearly forty witnesses in total, and having provided the jury with a fairly comprehensive overview of the available evidence. The defense has not gotten a chance to make its own case yet. From the trial so far, we have a rough idea of the facts that are agreed to by both parties. And, based only on the agreed-upon facts, there appear to be two possible scenarios for what occurred on the night Trayvon died.

The first, the defense’s scenario, is that Trayvon, while walking home from the store, decided to kill Zimmerman in order to defend his honor, after Zimmerman offended Trayvon by following him. And the second, the prosecution’s scenario, is that, when Zimmerman followed Trayvon and encountered him in the grassy area between the houses, Zimmerman tried to detain Trayvon, and Trayvon resisted, resulting in the fight that lead to Trayvon’s death.

By my reckoning, these are the facts that both the prosecution and the defense would agree to:

  1. On the night of the shooting, Trayvon stated that he was going to walk to the store to get skittles and a drink. Trayvon did in fact get those items from the store, and he was walking directly home from the store at the time that Zimmerman first saw him. There is no evidence to indicate that, prior to the moment of the fight, Trayvon was engaged in any form of unlawful behavior. Zimmerman was correct in that he did not recognize Trayvon as being a resident of the community, as Trayvon had only been there one week at the time of his death.
  2. Zimmerman pursued Trayvon for a period of approximately four minutes, while Zimmerman was in his car and Trayvon was moving on foot. Trayvon and Zimmerman did not speak or attempt to speak to each other at any point during this time period.
  3. Based on the fact that Trayvon was walking in the rain, and that Zimmerman did not recognize him, Zimmerman believed that Trayvon was either on drugs or in the middle of committing a criminal act. Concerned that Trayvon was a criminal, Zimmerman called the non-emergency number to request that police be dispatched to investigate Trayvon.
  4. Trayvon was on the phone with a friend, Rachel Jeantel, for the duration of his walk home from the store. Call records show that the phone call began before Zimmerman first observed Trayvon. The records also show that, at approximately 7:12pm, the call’s connection was dropped unexpectedly, but that the call was resumed 20 seconds later.
  5. At some point during the four minute period that Zimmerman was following Trayvon by car, Trayvon became aware that he was being followed. After realizing he was being followed, Trayvon continued to walk in the direction of the house where he was staying.
  6. After Zimmerman had watched Trayvon walk for approximately four minutes, Trayvon’s pace changed. Trayvon had previously been walking, but at approximately 7:11:42, Trayvon began either to run, or to skip. Zimmerman, who was on the phone with the police dispatcher, stated “shit he’s running” while opening his car door. Zimmerman, now on foot, moved out into the “dog walk” area, moving in the same direction that Trayvon had ran or skipped away a few moments before.
  7. After Zimmerman exited his vehicle, he could not see Trayvon, who had started running before Zimmerman could get out of his car. There is no evidence that Trayvon saw that Zimmerman had left his vehicle. Both Zimmerman and Trayvon state in their respective phone calls, to dispatch and to Jeantel, that they have lost the other individual. Zimmerman ended his call with the police dispatcher two minutes after he got out of his car, and he remained on foot in the “dog walk” area. Trayvon remained on the phone with Jeantel while continuing to walk through the neighborhood, on an unknown path, and he did not return to his house.
  8. At approximately 7:15:40pm, Trayvon and Zimmerman came into close proximity with one another, while both were moving on foot in the “dog walk” area. Trayvon was still on the phone with Jeantel, but after an initial exchange of words between Trayvon and Zimmerman, the call was dropped.
  9. The fight between Trayvon and Zimmerman lasted between a minimum of 60 and a maximum of 100 seconds. For the last 45 seconds of the fight, there is a continual yelling of “help,” in a desperate and panicked manner, from one of the two individuals involved.
  10. All witnesses and parties agree that, at some point prior to the gunshot, the fight involved both participants on the ground, with one on top of the other.
  11. At 7:16:56pm, Zimmerman fired a single  round into Trayvon’s chest, immediately incapacitating him and leading to his death shortly thereafter.
  12. Approximately one* to three minutes later, the first law enforcement officers arrived at the scene. Trayvon was face down in the grass. Zimmerman was standing nearby, with his gun in his holster. Zimmerman identified himself as the shooter, and was taken into custody.

Based on the above facts, then, either of the following scenarios is plausible:

Scenario 1: Zimmerman sees Trayvon walking home from the store. Zimmerman is a concerned neighbor, and because he does not recognize Trayvon, he comes to the possibly mistaken — but understandable and well-intentioned — conclusion that Trayvon is “on drugs” and “up to no good.” Zimmerman follows Trayvon, and calls the police to come question Trayvon and investigate the situation. When Trayvon skips away and out of sight from Zimmerman, Zimmerman leaves his car. Zimmerman does not intend to follow Trayvon after he loses sight of him, but Zimmerman believes he can gather better information for the police if he is on foot.

After Trayvon observes that a man in a car is following him through the neighborhood, Trayvon decides to skip away from the car, and he heads into the “dog walk” area behind the house where he is staying. Approximately four minutes after having skipping away from Zimmerman, Trayvon makes a decision to go back and find the man in the car. Trayvon does not know who his pursuer is, but he feels “disrespected” that the man followed him. Trayvon decides that he will attack the man, in revenge for being followed. Trayvon either announces this intention to Jeantel, and Jeantel later lies about it, or else Trayvon decides to attack Zimmerman without informing Jeantel of this plan. Although Zimmerman is no longer where Trayvon last saw him, Trayvon eventually manages to find Zimmerman at the “T” junction. Trayvon goes in to attack Zimmerman, while angrily demanding “Do you have a problem?” Zimmerman tries to back away, because Zimmerman did not want to encounter Trayvon. As Zimmerman is trying to avoid confrontation, Zimmerman does not identify himself to Trayvon, and responds only that “I don’t have a problem.” Although Trayvon does not at first take any action against Zimmerman, Zimmerman believes that he is in danger, and immediately attempts to call 911 when he sees Trayvon.

Seeing that Zimmerman is trying to call the police, Trayvon punches Zimmerman in the face. After getting punched, Zimmerman stumbles 40 feet southwards until falling to the ground, and Trayvon straddles him. For at least 60 seconds, Trayvon punches Zimmerman between 20 and 30 times, attempts to bash Zimmerman’s skull in with the sidewalk, and uses his hands to suffocate Zimmerman, who is unable to breathe and about to black out. Zimmerman does not fight back, but does try to protect his head from the concrete by repeatedly squirming away. Zimmerman also yells continuously for “help.” Witnesses on the scene ask what’s going on, during the course of the fight. When Zimmerman begs for assistance, they tell Zimmerman they are calling for help, but refuse to intervene in the fight themselves. After a minute or so of punching Zimmerman in the face, and otherwise attempting to kill Zimmerman with his bare hands but being unsuccessful in the attempt, Trayvon notices that Zimmerman has a gun. Trayvon tries to grab the weapon, and he informs Zimmerman that he intends to kill him with it. Zimmerman manages to draw the gun first, and fires once into Trayvon’s chest, killing him. * * *

Scenario 2: Zimmerman sees Trayvon walking home from the store, and comes to the mistaken conclusion that Trayvon is “on drugs” and “up to no good.” Zimmerman pursues Trayvon, from his car, and calls for police to come investigate. Zimmerman frequently calls police when he observes strangers walking through his neighborhood; on the five prior occasions when he has done so, it has always been to report unknown black males who are walking through the gated community. Recently, a skinny black teenager is believed to have committed a crime in the neighborhood, and Trayvon matches that description. While following Trayvon, Zimmerman expresses his frustration  to the dispatcher that assholes like Trayvon always “get away.” When the “fucking punk” then decides to run from him, Zimmerman, who is armed, leaves his car to follow Trayvon on foot.

After Trayvon observes that a man in a car is following him through the neighborhood, Trayvon is initially apprehensive. He is on a phone call with a friend, and he informs her that a “creepy ass cracker” is following him. The friend, either as a joke or as a warning, says to be careful, because the stranger might try and rape him. Trayvon tells her not to joke about that, and expresses nervousness. Trayvon’s friend then tells him to run when the man keeps watching him, and at first Trayvon says he is only going to “walk fast.” The man continues to pursue Trayvon in his car, however, and eventually Trayvon agrees with the suggestion to get away. He heads back through a cut-through, where the car cannot go, and Trayvon believes that he has lost the man in the car. Trayvon’s precise direction is unknown, but he does not  make it inside his home. Thinking that he lost Zimmerman back on the street, Trayvon remains outside in the “dog walk”, talking on the phone with his friend.

After Zimmerman loses sight of Trayvon, Zimmerman leaves his car, and continues to keep a lookout for Trayvon while walking through the neighborhood. Zimmerman is searching for Trayvon, hoping to be able to find Trayvon’s location so that the police will be able to apprehend him when they arrive in the neighborhood. A couple minutes later, Trayvon and Zimmerman run into each other in the “dog walk” area. Trayvon says, “Why are you following me?” Zimmerman says, “What are you doing here?” Zimmerman moves to question Trayvon, hoping to keep him there until police show up. Trayvon doesn’t know Zimmerman, and in fact minutes earlier Trayvon had been discussing with a friend how creepy this guy was, and how he might be a rapist, or have other bad intentions. Trayvon freaks out and resists Zimmerman’s attempts to detain him. A fight then breaks out in earnest, initially with both parties upright and moving around through the grassy area, and then with both parties wrestling on the ground. Neither Trayvon or Zimmerman sustain significant injuries, but Trayvon, having seen Zimmerman’s gun during the struggle, screams in terror, trying to prevent Zimmerman from getting off a shot. The two are locked in place on the ground for nearly a minute, until Zimmerman finally overpowers Trayvon and draws the gun, firing once into Trayvon’s chest, killing him. * * *

In order to prove scenario 2, the prosecution’s job, in addition to familiarizing the jury with the known facts of the case, was to convince the jury of two basic facts: the only evidence that Trayvon tried to kill Zimmerman is Zimmerman’s own words, and that nothing Zimmerman says about that night can be believed. To bolster this case, the prosecution also tried to demonstrate Zimmerman’s vigilante, hero-wannabe tendencies, thus explaining both his skewed perception of events, and the likelihood that he would try to detain Trayvon.

If the prosecution succeeded, the defense has a big problem on its hands, as Zimmerman has few available options for rebutting the prosecution’s case — because there is no way that he can take the stand to present that evidence himself, and there is no one else who can present it for him. Meanwhile, the prosecution has already presented a witness that was, quite literally, in the middle of a conversation with Trayvon at the time the fight occurred. Rachel Jeantel was, indisputably, a witness to Trayvon’s descriptions of what he subjectively experienced in the moments leading up to the fight. Her testimony is consistent with all the available physical evidence, and she provides direct evidence that, at the time the fight occurred, Trayvon did not have the slightest intention of committing homicide.

The doesn’t leave much middle ground: either Rachel Jeantel is lying, or George Zimmerman is lying. They cannot both be telling the truth. But Zimmerman’s defense won’t focus on Jeantel, because there is nothing more to be covered there. Jeantel’s testimony is itself wholly consistent with the available physical evidence, and the defense won’t gain any ground by trying to contradict it that way. Jeantel may have been lying, but the defense has no way of disproving her words, other than by attacking her credibility in general. And for better or for worse, that part of the trial is done with.

Which means Zimmerman’s defense — assuming, that is, that it is not based on trying to destroy Trayvon’s character — a defense that would be unlikely, because it would open the door for the prosecution to try to do the same to him — has the job of trying to convince the jury that it is at least possible that Zimmerman isn’t lying about Trayvon attacking him.

This post is long enough for now, but in my next post I’ll give a run through of all the problems with Zimmerman’s testimony that the prosecution has tried to highlight. It will be interesting to see how the defense is going to try to rebut those attacks on Zimmerman’s credibility, without introducing either character evidence or Zimmerman’s own testimony.

-Susan

The Attempted Impeachment of Selene Bahadoor/Witness 1: What Part of Her Testimony was Zimmerman’s Defense Truly Worried About?

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The highlight of today’s round of witness testimony in the Zimmerman trial appears to have been the defense’s attempted impeachment of Selene Bahadoor — a.k.a., Witness 1, or W01. Her testimony was that, on the night Trayvon was killed, she was at home cooking when she heard screaming or yelling from the ‘dog run’ behind her townhouse. W01 was to the east and slightly south of where Trayvon’s body eventually ended up, and prior to the shooting, she could see figures in the dark outside her porch window, with arms flailing. She initially thought the shouting came from children squabbling, and heard shouts of either “no” or “yo.”

On cross, Zimmerman’s counsel attempted to impeach W01 by asking why she had not previously stated, on the record, that she thought the noises of the fight had moved from south to north. The defense also attempted to show her as biased for “liking” a Justice for Trayvon status on Facebook. Although the claims of bias were easy targets for the defense to pick up, I’m left somewhat confused about the defense’s aim in attempting to impeach W01 over inconsistent (or at least previously left unspecified) testimony.

From reports of her testimony at trial, it does not seem that she said anything inconsistent with her police interviews. And her testimony could hardly come as a surprise: W01’s sister, W02, who watched the altercation from upstairs, stated in her initial interviews with police that she saw a chase that occurred from south to north outside their townhouse. (March 9, 2012 interview: Q: “The direction in which you saw these two individuals running, was it towards your house or away from your house — towards the “T” or towards the street?” A: “Towards the T.”)

So the fact that the witnesses at 2841 Retreat View Circle describe the sounds as moving from south to north isn’t some new and previously unknown revelation. It was known within two weeks of the killing (although the Sanford PD failed to immediately interview W01 and W02 as they should have, a fact that Zimmerman’s defense will now benefit from). But it is not clear precisely why Zimmerman’s defense so stridently attacked that specific portion of her testimony. Because the fact that running noises were going from south to north is not damaging to Zimmerman’s defense, and in fact supports his claim that Trayvon ambused him. Zimmerman claims he was attacked after Trayvon headed north from outside W01’s house towards the “T.” If anything, W01’s testimony is consistent with Zimmerman’s story, in that regard.

But the part of W01’s testimony that is hugely inconsistent with Zimmerman’s story is her statement that, after hearing the start of the altercation, W01 saw flailing arms from two standing figures. W01 was consistent in that part of her story at all times, and Zimmerman’s defense did not actually challenge that part of her testimony. But perhaps the defense is hoping that, by pseudo-impeaching W01’s claims regarding the direction of the fight, the jury will also disregard the rest of her testimony.

To me, though, the biggest question regarding W01’s testimony is why on earth did no one think to ask her in depositions which direction she heard the noises going in? Sheesh. It’s hardly W01’s fault if the attorneys deposing her failed to ask such basic questions.

-Susan

The Defense’s Opening Statement Fails to Address George Zimmerman’s Contradicting Claims of How the Altercation with Trayvon Martin Started

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Today was the start of the George Zimmerman trial, and what I have seen so far of the recaps from the defense’s opening arguments have been painful to watch. Even ignoring Don West’s cringe-inducing “knock knock” joke, the defense appears to have done little more than offer the jury a rambling and incoherent summary of the case. West’s attempts to recount a timeline of events leading up to the shooting was, in particular, a confusing mess. He managed to both overload the jury with a torrent of disconnected facts, but also failed to provide the jury with the specific bits of information that would allow the jury to understand the narrative that the defense is trying to sell to them.

One particular item that stood out to me, however, was the defense’s failure to outline the specifics of Zimmerman’s self-defense claim. In his opening statement, West provided the jury with an aerial view of the infamous “T” junction where Trayvon died, and a timeline of various phone calls made by witnesses, the victim, and the defendant. But in describing where exactly the shooting occurred, West can only vaguely gesture to the general area, circling an approximately 1600 square foot area to indicate the location:

The reason for this vagueness is obvious: the precise location of where the altercation between Zimmerman and Trayvon began is going to be a significant problem for Zimmerman’s defense, as Zimmerman’s statements concerning how the fight began are not reconcilable with the actual crime scene.

I have included full excerpts and links to the relevant transcripts below the jump, but Zimmerman’s initial police statements and interviews are all clear, direct, and consistent with one another. Zimmerman states, in three separate statements given in the days following the shooting, that after Trayvon punched him in the nose he “immediately” “fell backwards.” Those statements were Zimmerman’s 2/26 written statement, (“the suspect punched me in the face. I fell backwards onto my back. The suspect got on top of me”), the 2/26 Singleton interview (“And he punched me in the nose. At that point I fell down.”; “I fell to the ground when he punched me the first time.”; “As soon as he punched me, I fell backwards, um, into the grass”; “He punched me in the face and I fell backwards”), and the 2/27 Serino interview (Zimmerman: “… And then he punched me in the face.” Serino: “Oh, so he said, OK, you have a problem now. OK, he punched and you fell?” Zimmerman: “Yes, sir.”; “He punched me in the face and I fell backwards.”).

On the afternoon of February 27, after the interview that occurred that morning, Zimmerman then performed a walkthrough with police. During that walkthrough, Zimmerman started to describe the altercation with Trayvon in the same way as in his first three statements. Zimmerman describes that he was on the west prong of the “T” junction, walking west towards his car, having hung up with the non-emergency number approximately 1.5 minutes prior. Zimmerman then describes that Trayvon was to the south of him, and walking north along the path towards the junction, towards Zimmerman.

Also of interest is the fact that this description directly contradicts Zimmerman’s prior claims that “[Trayvon] jumped out from the bushes.” There are no bushes Trayvon could have come out from, and Zimmerman never mentions the bushes again. But there is a bigger inconsistency with Zimmerman’s statement: as seen in the walkthrough video, Zimmerman’s claim that he “fell backwards” after Trayvon “sucker punched him” cannot be true.

This is where Zimmerman claims to have been standing when he was punched and fell backwards:

There’s a problem here. Trayvon’s body was found 40 feet south of where Zimmerman is standing in this screenshot – and in front of him, not behind him. Shown below (and please forgive the MS Paint diagramming) are two pictures of the “T” junction, demonstrating how Zimmerman claims he was punched. The blue block is where Zimmerman says Trayvon came from, and the direction he approached in. The red blocks are where Zimmerman says he was standing. In his statements, Zimmerman states that he was facing Trayvon when the punch occurred, and therefore facing south. The red arrows thus indicate the direction that Zimmerman alleges to have “fallen back,” in his prior interviews. Also marked in both photos is the location where Trayvon’s body was found, face down in the grass, several feet away from any concrete:

So in Zimmerman’s walkthrough interview on 2/27, when he started to repeat the same version of events he’d given in his earlier statements, it quickly became apparent to Zimmerman that he could not actually have fallen backwards, as he previously claimed. Zimmerman tries to compensate for this newly apparent discrepancy, and for the first time, Zimmerman changes his story of how Trayvon punched him. No longer does Zimmerman claim to have been punched, and then to have immediately fallen onto his back. Instead, confronted with the actual geographical setting of where Trayvon was killed, Zimmerman tells a new version of events: he was punched, and then he stumbled forward 40 feet, at which point he fell on his back (after having stumbled forward) and Trayvon then got on top of him. Significantly, even with this new version of events, Zimmerman’s walkthrough of the altercation still comes up 20 feet short of where Trayvon was actually shot.

Following the walkthrough interview, Zimmerman stops telling his initial version of events, given in the first three days following the shooting. Zimmerman instead switches to an amended, and much vaguer, story. In the 2/29 interview, the only interview to take place after the walkthrough, Zimmerman describes a version of events that is inconsistent with the version he gave the first three times he told the story. In describing what happened after Trayvon sucker punched him, Zimmerman states the following:

When he first punched me. I don’t know if I immediately fell down, he threw me down. I was stumbling, I ended up on my back.

The reason for the sudden change is obvious: after performing the walkthrough with the police, Zimmerman had realized it was impossible for his first version of events to be correct. He could not have “fallen backwards” after he was punched, so instead he claims that after he was punched, he fell down, was thrown down, or stumbled forward 40 feet. Zimmerman is unable to provide specifics as to how he was transported forty feet from where the first punch occurred — or whether he fell, was thrown, or stumbled to get there — but unlike his prior statements, it is vague enough to not be demonstrably impossible.

-Susan

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Identifying Dogs by Name: The Supreme Court’s Unequal Treatment of Aldo and Franky

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This term, the Supreme Court handed down two opinions regarding whether a dog’s sniff is constitutionally admissible evidence. Although the sample size is small, there is an apparent distinction between the two opinions with regards to how the Court has handled the identities of the narcotics dogs that were responsible for the underlying sniffs: dogs who sniff in a constitutional manner are named, while dogs who violate the Constitution with their sniffing are not.

In Harris v. Florida, the Supreme Court sided with the canine, finding that the Constitution does not guarantee a right to cross-examine a narcotics dog to assess its reliability. A dog’s sniffing skills cannot be impugned on the basis of a few false positives — because, after all, drugs have great noses, so the doggy was probably just detecting trace amounts of the defendant’s past crimes, or something. And in the 9-0 Harris opinion, the Court waits only until the second paragraph before naming case’s the four-legged protagonist:

William Wheetley is a K–9 Officer in the Liberty County, Florida Sheriff’s Office. On June 24, 2006, he was on a routine patrol with Aldo, a German shepherd trained to detect certain narcotics[.]

Good boy, Aldo.

But in the opinion handed down today, in Florida v. Jardines, the Court was much less pleased with the dog in question. That dog, the Court concludes, was prone to knocking people over; his sniffing was very impolite, too, and involved the dog running and “‘tracking back and forth,’ … ‘back and forth, back and forth.'” (The dog’s behavior was even contrasted, unfavorably, against the polite behavior of Girl Scouts and trick-or-treaters.) In the end, the Court held that it constitutes a ‘search’ within the meaning of the Fourth Amendment for the government to use nameless, hyperactive police dogs to investigate a home and its immediate surroundings.

In contrast, Justice Alito’s dissenting opinion in Jardines adamantly disagreed with the majority, finding that the drug dog in Jardines was, in fact, a very good boy. In doing so, the dissent immediately identifies the dog in question:

According to the Court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent’s house by his dog, Franky.

Justice Alito thereafter remains on a first-name basis with Franky throughout his dissent. Rather than referring to what “the dog” did, as does the majority opinion, Alito carefully notes that “Franky remained on respondent’s property”, “Franky approached the front door”, “Franky was on the kind of leash that any dog owner might employ”, and that Franky’s handling officer “wait[ed] for Franky to find the strongest source of the odor”.

Alito’s personification (so to speak) of Jardines’ drug dog is entirely absent from the majority’s opinion. Scalia, writing for the majority, not only fails to name poor Franky, but in fact goes out of his way to constantly stress what a bad dog Franky was, noting that the dog had to be “on a six-foot leash, owing in part to the dog’s ‘wild’ nature,” as well as that the other detectives present at the drug bust were at risk of being “knocked over” by Franky’s antics. Poor Franky.

-Susan

R v McCormick: The ADE651 on Trial

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James McCormick, the British businessman behind ATSC Ltd. and its phony bomb detectors, was finally brought to trial this week in London, facing charges of criminal fraud for his role in selling the ADE651. McCormick is only the first of six individuals who will be tried for their involvement with at least three different companies that have been involved in the distribution of fake bomb detectors. I have been following the activities of these companies for some years now, and although it is is depressing it took so long for these scams to be shut down, this will hopefully be the end of the ADE651, the GT200, the Alpha 6, and the XK9.

…this will hopefully be the end of the ADE651, the GT200, the Alpha 6, and the XK9.

The manufacturers of all four of those devices are among those currently facing charges that have been brought under the Fraud Act (2006). I hope, although I have not been able to confirm, that some of them will also face charges under the UK’s Bribery Act (2010), as these devices appear to have been primarily sold through kickback schemes arranged with foreign officials who were aware of the device’s inability to operate as advertised. Jim McCormick’s devices, the ADE651 and its predecessors, were frequently sold to foreign government agencies in countries that included Iraq, Niger, Georgia, and Bahrain. Other devices, such as Gary Bolton’s GT200, specialized in markets in Thailand, Kenya, and Mexico. At a price tag of up to $60,000 per a device, then, Bolton and McCormick had plenty of overhead to allow them to pay out a bribe to foreign officials, and still make a sizable profit.

The kickbacks do not appear to have been insubstantial, however. In Iraq, the Special Inspector General for Iraq Reconstruction (SIGIR) reported in the January 2011 Report to Congress that, of the $122 million spent by the Iraqi government on the ADE-651 devices, McCormick paid as much as $92 million of that back to Iraqi officials in bribes:

This quarter, Iraq’s IGs continued to examine allegations of corruption within their ministries. SIGIR reported in October that an investigation into the MOI’s purchase of ineffective bomb detectors from a British company was quashed by the invocation of Article 136(b)of the Iraqi Criminal Procedure Code, which allows for a minister to halt judicial inquiries into the activities of personnel working in that ministry. This quarter , the MOI IG announced his intention to conduct a joint investigation with British authorities into the circumstances surrounding the acquisition of these devices. According to the MOI IG, 75% of the value of the contract went to kickbacks received by GOI officials.

The harm caused by the ADE-651 has not been merely financial, however. The ADE-651 continued to be used by Iraqi forces for years after the scam was publicized, and in SIGIR’s October 2010 report, it was noted that “many lives have been lost due to the wands’ utter ineffectiveness.”

In Thailand, where Global Technical’s GT200 and Comstrac’s Alpha 6 are more widely prevalent, deaths have also resulted when the devices failed to detect bombs that later exploded. The devices have also been used to carry out widespread human rights abuses, and hundreds of individuals have been imprisoned based on the devices’ “detection” of their possession of unlawful substances. In Thailand, the fake bomb detectors were slightly cheaper than they were in Iraq, selling at up to $48,000 US dollars a piece — but the price paid for individuals devices varied widely among different Thai government agencies, with some agencies paying up to 150% more than others. (Corruption in Mexico would appear to be cheaper — GT200s bought by Mexican agencies appear to have been sold for around $20,000 each. In contrast, GT200s that were apparently sold to purchasers that were duped and not bribed, including a UN program, were sold for as little as $5,000 a piece.) In Thailand, there were also widely reported “procurement irregularities” associated with the acquisition of the GT200 and Alpha 6, which were bought by Thai military agencies using “special funds” with little to no political oversight.

Leaked cables from the U.S. Embassy in Thailand also noted the ineffectiveness of the GT200 devices, as well as the corruption surrounding their procurement:

Criticism of the GT200 came to a crescendo in Thailand in January when the British government banned export of the device after arresting an executive from the manufacturer of another bomb detection device on fraud charges. [Thai Prime Minister] Abhisit also ordered an investigation into the purchase of the GT200 by various state agencies, following Thai press reports that some agencies had paid more than twice as much for the units as others (note: the first Thai purchases of the GT200 occurred by the Thai Air Force in 2004, when Thaksin Shinawatra was PM). …

Thai human rights activists and their political allies, including Democrat Party deputy leader/MP Kraisak Choonhavan, have been raising the alarm about the GT200 for months, and had engaged us in mid-2009 to see if there were any way we could share US bad experience with such equipment. Kraisak’s primary concern was that innocent civilians were being detained and in some cases charged with assisting insurgent efforts solely based on GT200 readings….

To most people, the GT200 appears to be a glorified dousing rod: it claims to detect explosives at long range, powered by static electricity from the user, without any more complicated sample analysis conducted. The bomb detection squad in Yala told us that they never thought it worked, but they were ordered to use it. The squad passed the GT200 to Emboff to hold; it looked and felt like a toy. In contrast, the GT200’s defenders insist the device was effective when used by properly trained personnel. Failures of the device have been explained away as a byproduct of user error; operators were too tired, sick, fatigued, or otherwise impaired to operate the device properly.

At trial against McCormick, the prosecution provided evidence that McCormick’s original inspiration for the ADE651 was not a bomb detector, but rather a gag gift that purported to locate lost golf balls:

The first device marketed by Mr McCormick, the ADE100, was not the result of extensive research and development but a relabelled golf ball finder on sale in the US for less than $US20, the court heard.

A brochure for the ball finder found at Mr McCormick’s farmhouse home said: “Please don’t ask us for the theory of its operation. We just know it works for most people when used properly. It’s a great novelty item that you should have fun with.”

The businessman bought 300 of the “golf-finders” in 2005 and 2006 and rebadged them as the ADE (advanced detection equipment) 100 with the claim that they could detect drugs and explosives, the court heard.

Mr Whittam said: “In reality, save for a different sticky label, the items are indistinguishable.”

Although the Golfinder was not quite as sophisticated of an enterprise as its British bomb-detector variants were — and lacked the use of technical mumbo-jumbo terms such as “electromagnetic attraction” to explain how the device operated — the essential premise of the business was the same. The devices also looked strikingly similar:

golfinderACTUALLY IT’S A DEVICE THAT HELPS YOU LOCATE YOUR GOLF BALLS. DON’T LAUGH! IT WORKS WHEN USED PROPERLY. ACTUALLY WE UNDERSTAND THE SCIENTIFIC PRINCIPLES INVOLVED. MANY SKEPTICS AND DISBELIEVERS TO WHOM WE HAVE SHOWN IT TO ACKNOWLEDGE IT WORKS IF THE INSTRUCTIONS ARE FOLLOWED CLOSELY. …

IT IS NOT COMUPTER DRIVEN, CONTAINS NO CHIPS OR ELECTRONICS. IT USES YOUR NATIVE ENERGY TO ENERGIZE ITS ACTION. PLEASE DON’T ASK US FOR THE THEORY OF ITS OPERATION THAT’S OUR BUSINESS AND THE MAIN REASON WE HAVE NOT APPLIED FOR PATENTS WHICH WOULD EXPOSE THE TECHNOLOGY. WE JUST KNOW IT WORKS FOR MOST PEOPLE WHEN USED PROPERLY. IT’S ALSO A GREAT NOVELTY ITEM THAT YOU SHOULD HAVE FUN WITH ESPECIALLY FOR THE GOLFER WHO HAS “EVERYTHING”!

The manufacturer of the original Golfinder had other handy products for sale as well — such as its ground microwaving Microwave Units, which could be used either to defrost cemetery plots for easier digging or to nuke fire ant nests. The abilities of these fantastic machines, it would seem, are only limited by the creativity of their manufacturers.

…proving that McCormick originally bought his ‘bomb detectors’ from a company that sold ‘golf ball detectors’ … demonstrate[s] that McCormick was fully aware that his devices were completely incapable of operating as advertised.

In any event, proving that McCormick originally bought his ‘bomb detectors’ from a company that sold ‘golf ball detectors’ will provide a convenient way for the prosecutor to demonstrate that McCormick was fully aware that his devices were completely incapable of operating as advertised. McCormick’s attorneys might try and raise the defense that McCormick was a fool rather than a charlatan, and that he genuinely bought into the hocus pocus of his own product, but that is going to be a hard sell. His devices were so ridiculous in their design that McCormick, who designed the ADE651 and arranged for its manufacture, could not have thought that they might actually work.

Unfortunately for McCormick, he will not be able to try to spin that to his advantage, by trying to claim that his devices were so absurd that there is no possibility that any of his customers genuinely believed the devices worked. Because McCormick was not charged with committing fraud, but rather with “[m]aking or supplying articles for use in fraud”.

The UK probably brought charges relating to the use of fraudulent devices — rather than fraud through use of misrepresentations — because most of McCormick’s customers seem to have been foreign officials who either received kickbacks from McCormick in exchange for arranging for procurement of the fake bomb detectors, or received some similar compensation for their role in the distribution of the devices. As such, McCormick’s acts of fraud by misrepresentation may have been outside the jurisdiction of the Fraud Act (2006), at Section 15, concerning the Act’s “Commencement and extent”:

(2)Subject to subsection (3), sections 1 to 9 and 11 to 13 extend to England and Wales and Northern Ireland only.

(3)Section 8, so far as it relates to the Armed Forces Act 2001 (c. 19), extends to any place to which that Act extends.

In the UK, then, the crime of fraud for misrepresentation applies only to domestic crimes, and does not have any extraterritorial reach. In contrast, per Section 15(3), in cases of fraud arising from “[p]ossession etc. of articles for use in frauds” or “[m]aking or supplying articles for use in frauds,” criminal liability “extends to any place to which [the Armed Forces Act 2001] extends.” The territorial force of the prohibition on possession or supplying of fraudulent devices would therefore extend to “where any body of the [UK] regular forces is on active service” — i.e., Iraq and Afghanistan.

So to the extent that McCormick’s crimes occurred overseas, his sales to Iraq and Afghanistan were still unlawful under UK law.

-Susan

Thinking Like a Lawyer and the Inverted Scientific Method

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In Michael’s last post, he covered Brian Leiter’s histrionic reaction to an e-mail that challenged Leiter’s knowledge of what it means to “think like a lawyer,” due to Leiter’s lack of experience at actually being a lawyer. But, as has been noted elsewhere, nowhere in Leiter’s response did he actually address the e-mail’s subject: can a non-practicing law professor know how to “think like a lawyer?”

But before you can answer that, there’s a more definitional question that needs to be resolved first: how does one “think like a lawyer,” anyway? There is rarely a concrete definition provided for this phrase; it is usually given the Justice Stewart treatment, in that one simply knows it when they see it. What is the thought process, then, that evokes this description?

In my own experience as an attorney, I have often had clients accuse me of “thinking like a lawyer.” Good-natured accusations, of course; after all, that’s what they’re paying me for. I was also once accused of “thinking like a lawyer” by a judge — but the judge, unlike my clients, did not intend it as a compliment. (More the opposite, really.) And I’ve gotten accused of “thinking like a lawyer” by other lawyers, too, albeit most often when I’ve come up with a legal theory that is too clever by half.

And from thinking back on my own experiences, and trying to identify the common thread in all of those incidents, the best definition I can come up with is this: to “think like a lawyer” is to engage in an inverted version scientific method. It is the art of identifying the plausible, and then portraying it as the logical. In short, people accuse you of “thinking like a lawyer” when you find a way to depict a given set of facts and law, in an accurate but deliberately emphasized fashion, so that the data compels a conclusion that has been pre-established by the lawyer.

It is an inversion of the scientific method, in that the data does not — and, I would argue, cannot — compel the conclusion. The conclusion is predefined, and the lawyer’s job is to sift through the data and construct an explanation that results in the conclusion. But the steps followed in the scientific process are not all that different from the steps of the legal process, it is just that the legal method follows those steps in a slightly different order.

In defining the scientific method, Wikipedia provides the following methodological process:

  1. Define a question
  2. Gather information and resources (observe)
  3. Form an explanatory hypothesis
  4. Test the hypothesis by performing an experiment and collecting data in a reproducible manner
  5. Analyze the data
  6. Interpret the data and draw conclusions that serve as a starting point for new hypothesis

Both the scientific method and the legal method begin at the same place, and Step 1 for both methods is the same: define the question. For the legal method, the starting point is, What is my client trying to achieve? What is the client’s win condition? (Or, if you happen to be a law professor: what is a journal article conclusion that is likely to be published?)

But after the first step, the scientific and legal methods diverge sharply. Whereas the scientist proceeds to Step 2, the lawyer instead skips right ahead to Step 6: what are the possible results of the legal process that come the closest to achieving my client’s objectives? There are almost always a few different legal outcomes that would satisfy at least some of the goals of the representation, although there are usually trade offs between them. Luckily for the lawyer, she is not hindered by the scientist’s need for a single, unified result. The lawyer can have multiple possible results, and, at least if you are litigator, there isn’t even a requirement that those results not be mutually exclusive results.

Once you have your result(s), the lawyer then goes back again, and moves on to Step 2. Although, for the lawyer, Step 2 is actually a two-parter: Step 2(a): gather and identify all the relevant facts, and Step 2(b): gather and identify all the relevant law. “Relevant” in this context means “could be useful,” either for the lawyer or the lawyer’s opponent. Trying to efficiently identify the most important factual and legal data is a skill in itself, but as a starting point, you need to establish the important factual matters that can be proven by admissible evidence, and then to determine the statutes and case law that will be directly relevant to the case.

And then it is on to Step 3 — and the point in the legal method where “thinking like a lawyer” really kicks in. In the legal method, the lawyer examines the relevant facts and the relevant laws, and identifies all the plausible methods by which the two can combined to achieve one or more of the results that was defined previously in Step 6.

Luckily for attorneys, law is not science; it is not defined by reference to a pre-existing reality, and it is not limited to formulations that are consistent with this pre-existing state. It only has to be consistent within itself. Which means there are lot of plausible ways that those facts and laws can be combined. The question for the lawyer, then, is what are the possible hypotheses that might be consistent with the relevant factual record? You are not looking at what did happen, you are looking for everything that could have happened. Then, taking the resulting class of possible hypotheses, you examine each of them in turn for their consistency with the results defined in Step 6.

And, also luckily for attorneys, “consistency” in this context is defined broadly. Oftentimes, a given statute can be both consistent and inconsistent with a desired result, depending on how you emphasize a word or two in its provisions. “Consistency” can also mean constructing a revisionist version of history — leaving aside what an actor’s subjective motivations were, what are all of the plausible explanations for that actor’s behavior given the post hoc data set you have established?

Then it is on to Step 4, which is creating experiments to test your arguments — or, as we call them in law school, hypotheticals. In short, you test the plausibility of your own explanations, by examining their consistency with existing case law, and by comparing the plausibility of your explanations against the plausibility of your opponent’s, and trying to make sure your explanations are always the more plausible option. And, finally, we arrive at Step 5. For the scientist, Step 5 is analysis; for the lawyer, Step 5 is advocacy. The scientists examines the data they have acquired from Steps 2-4, and then determines how that data might contribute to our understanding of the world, and so arrives at Step 6. The lawyer does not need to bother with that part, because they’ve already established Step 6; to the lawyer, Step 5 involves demonstrating why your explanation of the data is more believable than everyone else’s rival explanations.

And that, in a very large nutshell, is how I would describe the process of lawyering.

So, now that I’ve provided my own definition of what it means to “think like a lawyer,” we return to the original question that so enraged Prof. Leiter: can a law professor who has never been a practicing attorney “think like a lawyer?”

Absolutely. The basic method of thinking like a lawyer is the same for both a law professor and a lawyer. The primary distinction is that the two have very different objectives, but the process they use is more or less the same.

The law professor is different from the lawyer in that — at least ideally — the law professor’s motivation is to identify the most plausible construction of the data that supports a conclusion intriguing enough to be published, whereas the lawyer’s motivation is to identify a plausible construction of the data that best supports their client’s win conditions. In other words, because the law professor’s Step 1 is less bound to the goal of achieving a specific real-world objective, the law professor has a lot more wiggle room on how to define the possible results at Step 6 of the legal method.

So Prof. Leiter was right in that the ability to “think like a lawyer” is not limited to practicing lawyers. Unfortunately for Prof. Leiter, he was not himself thinking like a lawyer when he chose to respond to the e-mailer’s question by being a sesquipedalian bully, instead of by following the legal method and constructing an actual argument.

-Susan

Why Won’t Romney Explain His Tax Plan? Because the Romney Tax Plan is the Enactment of a VAT

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The contents of Romney’s tax plan, like the contents of Romney’s personal tax returns, have been a continuing enigma throughout Romney’s election campaign. All the tax policy issue has taken a backseat to the tax returns issue, recently it has been the subject of renewed attention, from objections lodged by economists skeptical of the tax policy’s soundness, to Obama operatives who, sensing blood in the water, have taken to ridiculing Romney’s Lucy-with-the-football routine regarding the specifics of the tax plan.

These criticisms are fair. Although some economists do support Romney’s claims in theory — noting that there are “possible” explanations that could result in Romney’s tax plan actually working out — none have admitted to actually having had a chance to look at the details. But other economists have taken to pointing out that the emperor has no clothes. William Gale, the co-director of the Urban-Brookings Tax Policy Center, has gotten publicity from both sides of the aisle for his own derision of Romney’s tax plan, due to his attempt at debunking Romney’s claim that his plan is revenue neutral. In attempting to evaluate ‘the full Romney tax plan’ — a tax plan “which, by the way, does not exist,” Gale is quick to note — Gale and two other economists concluded that

a revenue-neutral plan that met five specific goals that Governor Romney had put forth (reducing income tax rates by 20 percent, repealing the estate tax, the alternative minimum tax, and capital income taxes for middle class households, and enhancing saving and investment) would cut taxes for households with income above $200,000, and—as a result of revenue-neutrality—would therefore necessarily have to raise taxes on taxpayers below $200,000.

Michael Graetz has also attacked Romney’s claims that broadening the tax base would be sufficient to pay for his tax cuts:

“You can’t get enough base-broadening to finance his rate reductions,” says Michael Graetz, a Columbia Law School professor who was a top tax official in President George H.W. Bush’s Treasury Department. “Romney says what he will do on tax cuts but he’s not prepared to say what he would do on the hard stuff.”

But Romney continues to be coy regarding any details of his tax plan, as he has been throughout the election. The only specific points that Romney has offered in defense of his plan’s claim to revenue neutrality are that “[the] tax cuts would be paid for through a combination of reduced tax breaks and the economic growth his plans would generate.” But these ‘specifics’ are really more like ‘vague generalities.’

In that vein, a recent Fortune article examined where these two items could actually result in a revenue neutral tax plan:

The debate over the Romney fiscal plan has gotten stuck on the revenue side of the equation, namely, how the tax cut would impact the amount of money coming into the Treasury. The Romney campaign insists that the tax cut is what they call “revenue neutral,” meaning that it would essentially pay for itself. There are only a few ways that this could be possible: 1) If taxes will ultimately be going up for certain tax payers through the elimination of deductions or 2) If the amount of economic growth generated by the tax cuts would increase revenue as more people start paying into the system or 3) A combination of both.

Fortune concluded that “[e]ven under the most generous economic assumptions, Mitt Romney’s tax plan simply doesn’t work.” Although, in theory, increased economic growth and elimination of income tax deductions could offset — at least to some degree — the effect of the Romney tax cuts, Romney won’t provide any of the supporting details that are necessary to bolster that conclusion. Namely, (1) Romney refuses to actually identify what deductions would actually be eliminated, and (2) Romney’s reliance on “economic growth” to explain how his tax plan could pay for itself is maddeningly circular — it is self-justifying and impossible to evaluate in the absence of specifics.

But the Fortune article overlooks the third possible mechanism by which the Romney Tax Plan could actually be revenue neutral; through the implementation of a new, non-income based form of taxation.

In other words, the missing piece of the Romney Tax Plan puzzle is the VAT.

If the VAT is the secret ingredient of the Romney Tax Plan, it would explain why Romney has continued to insist that his tax plan really can lower the income tax rate across the board while also remaining revenue neutral, and why Romney has refrained from actually identifying which deductions he is going to axe in order to pay for his tax cuts. Because Romney knows that his plan doesn’t actually need to get rid of deductions — the Romney tax cuts are not offset by increasing the proportion of household income that is subject to income tax, the Romney tax cuts are offset instead by another tax.

Romney has previously admitted, during the primary-era of the 2012 election cycle, that he was drawn to a VAT-style taxation system that, for reasons of political expediency, was layered onto the existing income tax system:

He notes that “my 59-point modest plan are immediate steps I’ll take on Day One and that the steps I will take Day Two include moving toward a Simpson-Bowles-style lower tax rate, a broader base tax system. . . . People say, ‘Well, let me see that plan.’ It’s like, ‘That’s going to take a lot more analysis and modeling than I have the capacity to do in the confines of a campaign.’ But I will campaign for lower tax rates and a broader base of taxation.”

What about his reform principles? Mr. Romney talks only in general terms. “Moving to a consumption-based system is something which is very attractive to me philosophically, but I’ve not been able to sufficiently model it out to jump on board a consumption-based tax. A flat tax, a true flat tax is also attractive to me. What I like—I mean, I like the simplification of a flat tax. I also like removing the distortion in our tax code for certain classes of investment. And the advantage of a flat tax is getting rid of some of those distortions.”

Since Mr. Romney mentioned a consumption tax, would he rule out a value-added tax?

He says he doesn’t “like the idea” of layering a VAT onto the current income tax system. But he adds that, philosophically speaking, a VAT might work as a replacement for some part of the tax code, “particularly at the corporate level,” as Paul Ryan proposed several years ago. What he doesn’t do is rule a VAT out.

There is ample evidence out there that that the apparent voodoo employed by the Romney tax plan, in reaching the conclusion that the plan is revenue neutral, can in fact be explained by the plan’s previously unmentioned inclusion of a VAT, or some other form of consumption tax. Romney’s own policy documents frequently reference studies based on consumption taxes. See, for instance, the Romney Program for Economic Recovery, Growth, and Jobs — a policy plan which the Economist described as “like ‘Fifty Shades of Grey’ without the sex.” Although the Romney Program for Economic Recovery does, indeed, splash out a lot of sensational language while remaining totally devoid of any substance, the documents isn’t notable for the specific policy proposals it contains (because, well, there aren’t any) but rather for the specific authority it relies upon in support of its disjointed claims of accelerated GDP growth and increased job creation.

True, the main text of the Program does not directly allude to a consumption tax, but it doesn’t provide for any other sort of concrete policy proposals either — the document reads like a horoscope, or an ad for a pay-per-call psychic, explaining how Romney will “unlock[] the potential for innovation, investment, and initiative in America’s dynamic economy” through the enactment of “four main economic pillars.” One of those pillars is Tax Reform:

Reform The Nation’s Tax Code To Increase Growth And Job Creation.
 

    Reduce individual marginal income tax rates across-the-board by 20 percent, while keeping current low tax rates on dividends and capital gains. Reduce the corporate income tax rate – the highest in the world – to 25 percent.
    Broaden the tax base to ensure that tax reform is revenue-neutral.

Romney then argues that enactment of this pillar will result in fantastic gains for the American economy, as “[a] significant body of economic research concludes that fundamental tax reform could increase real GDP growth over the next decade by 0.5 to 1 percentage point per year. Kevin Hassett and Alan Auerbach surveyed the literature and found that tax reform could increase output by between 5 and 10 percent.” The article referenced is Hassett and Auerbach’s survey, Toward Fundamental Tax Reform (2005), and the following excerpt from that article appears to be the source of the Program’s projected numbers:

Based on results from a fairly large number of different models, the literature suggests that a wholesale switch to an ideal system might eventually increase economic output by between 5 and 10 percent, or perhaps a slightly wider range.

There are two glaring points to be made here. First, the studies that Romney is relying on for his projected GDP growth are based upon an assumption of a “wholesale switch” from the current tax system to an “ideal system” — but these studies almost uniformly conclude that such a “wholesale switch” would be politically impossible. Not to mention the fact that these projections require Romney to address the trillion dollar question of what the “ideal system” is — a question for which most of the authors he cites to have contradicting answers.

But the research Romney’s Program uses to justify his projected numbers all have something in common. Although the survey explores a variety of differing and contradicting proposed tax reforms, almost all of the proposals include, to some degree, a consumption tax component — despite the fact Romney’s own platform has never alleged that he too is proposing a tax plan containing a consumption tax.

From what we know of Romney’s tax plan, however, there do appear to be a number of similarities with the VAT proposal set forth by Michael Graetz in chapter three of the Hassett and Auerbach survey, “A Fair and Balanced Tax System for the Twenty-first Century”:

The Corporate Income Tax. Lower the corporate rate to 25 percent, and more closely align book and tax accounting. …

Enact a Value-Added Tax. To replace the revenues just lost, enact a value added tax at a 10–14 percent rate. … In order to keep the tax rate as low as possible, the VAT tax base should be broad, covering nearly all goods and services. A broad VAT tax base with a single tax rate would minimize its economic distortions, and limiting exemptions would simplify compliance and administration

Hmm. Lower the corporate tax rate to 25%, and then use a broadened tax base to offset to ensure that the tax reform is revenue neutral? Now where could I have possibly seen that before…

One key point where Graetz’s plan and Romney’s proposal apparently differ is that, for personal income taxes, Romney has proposed that we “[r]epeal the Alternative Minimum Tax (AMT),” while Graetz, in apparent contrast, has proposed that we

“[l]ower the [Alternative Minimum Tax] rate to 25 percent and repeal the regular income tax. Everybody seems to want to repeal the AMT; let’s repeal the regular income tax instead. … Most of the special income-tax credits and allowances that now crowd the tax code and complicate tax forms would be repealed. But the deductions for charitable contributions, home-mortgage interest, and large medical expenses would be retained.”

But on a second look, Romney’s plan to repeal the AMT could in fact be equivalent to Graetz’s suggestion that we replace the current tax system with a modified AMT. We know that Romney has stated he would keep his tax plan revenue neutral by eliminating deductions — but we also know that Romney has a snowball’s chance in hell of touching the politically popular deductions for charitable giving, home-mortgage interest, and medical expenses. But if Romney’s plan to “eliminate the AMT” involves cutting marginal income taxes 20% “across the board” while “reduc[ing] tax breaks” — then, well, it would look a lot like Graetz’s plan.

Romney’s plan also bares some resemblances to William Gale’s discussion, at chapter two of the Hassett and Auerbach survey, of what a consumption tax ought to look like, even if Romney avoids specifically identifying the consumption tax component of his plan:

A well-designed consumption tax would (a) collect adequate revenues to cover expenditures over time and avoid reducing national saving through higher government deficits; (b) broaden the base to lessen interference in the economy; (c) tax already-existing capital—that is, concentrate any revenue relief on new saving or investment; and (d) treat interest income and expense in a consistent manner.

The irony is that Gale and Graetz have both gone on the record decrying Romney’s tax plan as a sham, noting that the disclosed details of Romney’s plan don’t add up. But what Gale and Graetz may have failed to consider — and what Romney’s justification for citing to Gale and Graetz’s work as support for his tax policy — is Romney’s plan only appears to be nonsensical because Romney is refusing to disclose the plan’s linchpin component: a consumption tax that offsets the income tax cuts.

Further support for a consumption tax component to the Romney tax plan is also found in the Program’s Appendix, where it references a study that

found that [tax] reform proposals would increase GDP by between 5 and 9 percent over the long run, using a dynamic economic simulation model. (Altig, David, Alan J. Auerbach, Laurence J. Kotlikoff, Kent A. Smetters, Jan Wallsier, “Simulating Fundamental Tax Reform in the U.S.,” University of California, Berkeley, September 29, 1999).

The source of the Appendix’s numbers seems to be from the following excerpt from that article:

We use our model to examine five fundamental tax reforms that span the major proposals currently under discussion. Each reform we consider replaces the federal personal and corporate income taxes in a revenue-neutral manner. The reforms are a proportional income tax, a proportional consumption tax, a flat tax, a flat tax with transition relief, and the X tax.

The proportional income tax applies a single tax rate to all labor and capital income, with no exemptions or deductions. The proportional consumption tax differs from the proportional income tax by permitting 100 percent expensing of new investment. One may think of it as being implemented via a wage tax at the household level plus a business cash-flow tax. The flat tax differs from the proportional consumption tax by including a standard deduction against wage income and by exempting implicit rental income accruing from the ownership of housing and consumer durables. The remaining two proposals modify the flat tax to address distributional concerns. The flat tax with transition relief aids existing asset holders by permitting continued depreciation of old capital (capital in existence at the commencement of the reform). The X tax aids lower-income taxpayers by substituting the flat tax’s single-rate wage tax with a progressive wage tax. To recoup the lost revenue, its sets the business cash-flow tax rate equal to the highest tax rate applied to wage income. Alternatively, one can think of the X tax as a high rate flat tax with a progressive subsidy to wages.

…

The proportional income tax raises the long-run level of output by almost 5 percent… [and] [t]he proportional consumption tax raises long-run output by over 9 percent.

So, to recap: Romney’s Program for Economic Recovery bases its exuberant claims regarding the effectiveness of Romney’s tax plan on an article which looked at possible GDP benefits of five “fundamental tax reform” proposals — four of which involved a consumption tax component.

If Romney is claiming that his “fundamental tax reform” will result in rampant GDP growth, and Romney uses these studies to prove the alleged economic advantages of the Romney Tax Plan, then, it may be presumed, that Romney’s tax plan is one of the proposed tax reforms that these studies examined. Because the tax plans considered by the studies were overwhelmingly based on the implementation of a consumption tax — and because Romney’s tax plan does not appear to have any overarching similarities to the proportional income tax reform plan — Romney’s tax plan contemplates the implementation of a consumption tax.

This conclusion is hard to avoid, at least without accusing Romney of being a liar. Either Romney’s tax plan contains a consumption tax component — or else Romney has been deliberately relying upon irrelevant and unrelated studies as support for his fantastic claims about the economic benefits of his tax proposal.

Take your pick.

-Susan

Susan’s Theory of the Secret Fifth Amendment in Kiobel, as explained via gchat

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Michael:
I had a thought
The entire United States argument against extraterritorial application in this case is built around something like act-of-state doctrine.
Why don’t we just apply act-of-state doctrine?

Susan:
You could, and it should be part of it. But even Nigeria didn’t actually make a law saying human rights abuses is totes okay.
And also “but the country said it was okay” is not a get out of jail free card once you start with the genocide stuff.

Michael:
Well, wait.
Act of state is just the judgment of the legality of another nation’s conduct, right?

Susan:
Yes, but we’re not (necessarily) judging another nation’s conduct, for one — it’s a Kirkpatrick situation. And second, I don’t think the purposes of the act of state doctrine are supported if it’s interpreted to require a court to go “whelp, it’s not my place to say that another country shouldn’t commit genocide.”

Michael:
No

Susan:
Act of State = choice of law.

Michael:
Pause
I’m saying that the United States’ argument is built around an idea that seems roughly equivalent to act-of-state.

“HERE, ALTHOUGH PETITIONERS’
SUIT IS AGAINST PRIVATE CORPORATIONS ALLEGED TO
HAVE AIDED AND ABETTED HUMAN RIGHTS ABUSES BY THE GOVERNMENT
OF NIGERIA, ADJUDICATION OF THE SUIT WOULD NECESSARILY
ENTAIL A DETERMINATION ABOUT WHETHER THE NIGERIAN
GOVERNMENT OR ITS AGENTS HAVE TRANSGRESSED LIMITS IMPOSED
BY INTERNATIONAL LAW”

Susan:
Ohhh, no I’d disagree with you. I have a half-written post on it, but I’d argue the U.S.’s position incorporates the international component of the 5th amendment.

Susan:
Yeah, but that’s foreign affairs stuff. Act of State requires a court to select the foreign sovereign’s law for the court’s rules of decision.

Michael:
?!

Susan:
So it’s kinda where jus cogens comes into play. Nigeria can’t make a law saying “lol genocide is okay.”

Michael:
This is the definition I’m familiar with:
“This doctrine says that a nation is sovereign within its own borders, and its domestic actions may not be questioned in the courts of another nation.”
Wait
I understand now

Susan:
That’s the one sentence version, but it doesn’t mean that U.S. courts are categorically forbidden from questioning foreign countries’ acts.

Michael:
We’re talking about two conceptions of the act-of-state doctrine.
Mine was the broader one.
Yours is the more limited Supreme Court version.
Fair.

Susan:
“As we said in Ricaud, “the act within its own boundaries of one sovereign State …
becomes … a rule of decision for the courts of this country.” 246 U.S. at 310. Act of state
issues only arise when a court must decide–that is, when the outcome of the case turns upon–
the effect of official action by a foreign sovereign. When that question is not in the case,
neither is the act of state doctrine.”
I agree with you, I think, as far as aiding and abetting cases go.
Maybe for different reasons, though.

Michael:
I’m not saying that I think Kiobel actually implicates act of state.
I’m just saying that the U.S. position sounds much like act of state, such that there is no need to make new law if the U.S. is correct.

Susan:
Yeah, agreed.
I think the U.S. is 100% right.

Michael:
But…
Ugh
The U.S. thinks that there IS a need to make new law DESPITE the fact that we have act of state doctrine to solve the very problem that the U.S. uses to support the supposed need for new law.

Susan:
Okay wait I’m misunderstanding, then. What new law does the US think is needed?

Michael:
1) The U.S. believes that the Court should hold that the ATS does not apply extraterritorially in cases involving corporations.
2) It substantiates that position at least in part by invoking a notion that sounds just like act of state doctrine.

Michael:
See the United States’ distinction between “individual foreign perpetrators” and corporations

Susan:
When found residing in the United States.
An individual foreigner abroad (that somehow still had sufficient US contacts) would be in the same place.

Michael:
Maybe it would be more accurate to say that the U.S. is against ATS liability for the extraterritorial acts of corporations that do not have their principal place of business or headquarters here

Susan:
Yeah, part of the equation is subsidy-to-parent jurisdictional veil piercing.

Michael:
Maybe I was over-emphasizing the U.S.’s use of the word “individual.”

Susan:
This is why it’s all a 5th Amendment Due Process issue. The reasonableness of the US’s adjudicative jurisdiction here is both unconstitutional and in violation of international law.

My take was that individual humans can usually only really “be” in one spot at one time. Corporations are in many places at once. So a corporation’s existence in the US is not dispositive, like a human’s is.

Michael:
I see.
An interesting argument, but the U.S. is making that argument as a matter of international law and foreign policy, not from a Fifth Amendment perspective, no?

Susan:
Okay so maybe they don’t specifically say it, but it’s in there if you squint hard enough.

Michael:
Hahaha.
The “secret” Fifth Amendment argument?

Susan:
The Fifth Amendment in Exile.
Basically, the ATS is open ended, and hands out causes of action for int’l law violations like candy (pretend all of this is true)
But the court, before exercising jurisdiction, still has to consider: Personal jurisdiction, exhaustion of remedies, forum non conveniens,
Act of State, international comity, choice of law, political question doctrine, foreign affairs/case-specific judicial deference, and in corporate cases, corporate/subsidy-parent veil piercing issues.
All of these doctrines have some Due Process consideration behind them. (Separation of powers for a lot of them, too, but due process is a biggie.)
Even if the text of the ATS creates an opening for these suits, it’s just a grant of subject matter jurisdiction. All of the Due Process jurisdictional questions must be considered separately.
Like they would in any foreign-defendant case, but because of the subject matter, the judicial due process doctrines are firing on all cylinders.
So when you have a pirate residing in the U.S. being sued for torture and genocide he did abroad, and his home country says “fuck that bastard, you can sue him,” and the U.S. political branches are going, “fuck that bastard, you can sue him,” then the due process concerns evaporate.

Michael:
Interesting.
I still don’t think the United States is making that argument
But ok.

Susan:
I think in section C they are getting at it,
even if they don’t invoke the magic words of Due Process. But everything the US is counseling the court to consider is a doctrine that was invented either to serve due process, separation of powers, or both.

Michael:
You should write a post
A quick post.

Susan:
Maybe at lunch I’ll play around with getting my other post to work in WP.
Or maybe I’ll be uber-lazy and just copy and paste the chat.

Michael:
There you go.