did someone muck with the backend here

Re: The Recall of Judge Persky

1

https://highline.huffingtonpost.com/articles/en/brock-turner-michele-dauber/

Link to the article.


Posted by: peep | Link to this comment | 06- 6-18 10:45 AM
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Whoops.


Posted by: heebie-geebie | Link to this comment | 06- 6-18 10:50 AM
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Persky would have made a good cat name, but probably not anymore.


Posted by: heebie-geebie | Link to this comment | 06- 6-18 10:57 AM
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The Huff Post article links to this AP article, which says that Judge Persky followed the probation department's recommendation in the Turner case, and consistently in every other case where the probation department had a recommendation. I don't think that completely settles the question of whether Persky did anything wrong, but it's an important starting point.


Posted by: LizardBreath | Link to this comment | 06- 6-18 10:57 AM
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Purrrrrsky. I guess that's why.


Posted by: heebie-geebie | Link to this comment | 06- 6-18 10:57 AM
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4: They go into that in the linked article, too.


Posted by: heebie-geebie | Link to this comment | 06- 6-18 10:59 AM
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Dauber's critics in the California legal community

Honestly, I'm professionally socialized enough that this includes me. I totally get why someone would have voted to recall Persky. I can't even say for sure that's the wrong decision, exactly, and I understand why non-lawyers would vote that way. But I have a deep visceral reaction against a lawyer or law professor advocating for the removal of a judge based on a legally-permissible sentencing decision, particularly an excessively lenient one. Organizing a campaign is worse. It just feels gross.


Posted by: Robert Halford | Link to this comment | 06- 6-18 11:01 AM
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Also, "recall" is such a weird noun in print that it made it hard to write the OP title. I almost was forced to do a gerund, but I really detest the "Boxing Helena" and "Saving Private Ryan" kind of titles.


Posted by: heebie-geebie | Link to this comment | 06- 6-18 11:01 AM
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8.last but that gave us "Shaving Ryan's Privates" and how can you hate on that?


Posted by: Barry Freed | Link to this comment | 06- 6-18 11:02 AM
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I have nothing constructive to add to this discussion.


Posted by: Barry Freed | Link to this comment | 06- 6-18 11:03 AM
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Recalling Shaving Purrrsky.


Posted by: heebie-geebie | Link to this comment | 06- 6-18 11:07 AM
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It looks like Persky did follow a probation department recommendation, but that recommendation itself was pretty lenient compared to what the law stated, and seems to be the kind of thing we expect judges to use charily even they have the authority.

California law states that a person convicted of assault with the intent to commit rape, one of the three felonies Turner was found guilty of, is not eligible for probation "except in unusual cases where the interests of justice would best be served if the person is granted probation."
The probation officer stated that in evaluating the case she weighed the fact that Turner did not have a criminal history, is "youthful," that he scored in the "low-moderate" range on the assessment of recidivism risk relative to other adult male sex offenders, and that he "expressed sincere remorse and empathy for the victim."

Posted by: Minivet | Link to this comment | 06- 6-18 11:07 AM
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7: I'm weirded out by electing judges at all. I'm a litigator, voting in the county where I practice, and I don't know anything about non-incumbent candidates. That just seems like a job that shouldn't be chosen by the lay electorate, and of course in practice it makes it a party patronage job.


Posted by: LizardBreath | Link to this comment | 06- 6-18 11:08 AM
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13 -- Oh my God. We had an election yesterday with maybe 10 separate judicial races on the ballot, all for the court in which I regularly practice, and on which I know several judges. The only basis I had for making a decision were the recommendations (really, just "qualified, well qualified") of the country bar association, and there were a bunch of non-incumbents with the same rating. So I used the heuristic of "vote for the highest ranked, if they're equally ranked for the non-prosecutor, and if they are both equally ranked prosecutors vote for the one whose name I find more vaguely amusing." I am maybe in the top .01% of informed voters in that particular election and it affects me personally but I was left with that as a basis for making decisions. Why are we having these elections again?


Posted by: Robert Halford | Link to this comment | 06- 6-18 11:13 AM
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Let me be the first to suggest the Missouri Plan.


Posted by: Moby Hick | Link to this comment | 06- 6-18 11:15 AM
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Ours aren't party patronage jobs, though, because they're nonpartisan. They're just pure ????????? maybe this guy.


Posted by: Robert Halford | Link to this comment | 06- 6-18 11:15 AM
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Weirdest aspect of the Persky recall is voting in the replacement. Seems like that should be an appointment, not a campaign.


Posted by: fake accent | Link to this comment | 06- 6-18 11:16 AM
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I have a problem with Persky based on what he said at sentencing, which included a statement that Persky wasn't going to hold Turner's failure to accept responsibility against him:

And so you have Mr. Turner expressing remorse, which I think, subjectively, is genuine, and [Jane] not seeing that as a genuine expression of remorse because he never says, "I did this. I knew how drunk you were. I knew how out of it you were, and I did it anyway." And that - I don't think that bridge will, probably, ever be crossed.

Mr. Armstrong offered an explanation for that disconnect, which is that Mr. Turner, in his state of intoxication, sees the events in a certain way. And if he were to, just for the benefit of a lighter sentence or to pacify the Court or the public, come in at a sentencing hearing or any other time and state otherwise, which I'm sure defendants do all the time, he really would be not honest. I mean, I take him at his word that, subjectively, that's his version of events.

Unless I'm misunderstanding the bolded section, that's the judge saying that he believes Turner's defense that he didn't have mens rea -- that Turner did not have the subjective intent to rape a nonconsenting woman. And that seems very inappropriate to me after Turner's been convicted by a jury.


Posted by: LizardBreath | Link to this comment | 06- 6-18 11:16 AM
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Sorry, I meant to link to the judge's full statement: https://www.theguardian.com/us-news/2016/jun/14/stanford-sexual-assault-read-sentence-judge-aaron-persky


Posted by: LizardBreath | Link to this comment | 06- 6-18 11:18 AM
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But I'm still not sure that recall is the right thing to have happened. If I'm not misunderstanding that passage, though, I'd have liked to have seen him at least censured for it somehow.


Posted by: LizardBreath | Link to this comment | 06- 6-18 11:22 AM
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People are always asking me about contested judicial races. Luckily, none of the five races on my ballot this time were contested, so I voted for some I liked and abstained on the others.


Posted by: CharleyCarp | Link to this comment | 06- 6-18 11:23 AM
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I don't see the downside of the recall. Maybe the prosecutor is to blame, but in a just world Turner would have been beaten to death by the victim on live TV, so him only getting six months is a serious miscarriage of justice. it shows how the system conspires to let rapists off the hook. The victim did the right thing, the witnesses did the right thing, the police did the right thing, and yet all it takes is the prosecutor to look at him and see a good boy from a good family and a judge who rubber stamps prosecutor recommendations, and he practically gets away with it.


Posted by: Walt Someguy | Link to this comment | 06- 6-18 11:35 AM
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To keep waffling... short sentences are a good thing generally. Not for sex crimes specifically, but that sentence, if it were part of a general system of imprisoning people only for short periods, wouldn't bother me in the abstract. The problem I have with it is the appearance that it's mercy specifically targeted at good boys from good families, and I'm not sure that that's a valid reading of what happened.


Posted by: LizardBreath | Link to this comment | 06- 6-18 11:45 AM
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Maybe the prosecutor is to blame, but in a just world Turner would have been beaten to death by the victim on live TV

A just world with exciting reality TV!


Posted by: peep | Link to this comment | 06- 6-18 11:49 AM
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Anyway, I agree with LB's waffling here.


Posted by: Moby Hick | Link to this comment | 06- 6-18 11:57 AM
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short sentences are a good thing generally. Not for sex crimes specifically, but that sentence, if it were part of a general system of imprisoning people only for short periods, wouldn't bother me in the abstract.

Short sentences good. Not for sex crimes. But that sentence. If it were part of a general system. Imprisoning people. Short periods.


Posted by: heebie-geebie | Link to this comment | 06- 6-18 12:15 PM
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26: Tarzan?


Posted by: peep | Link to this comment | 06- 6-18 12:17 PM
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27 He's in the jungle primary thread.


Posted by: Barry Freed | Link to this comment | 06- 6-18 12:22 PM
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I don't see the downside of the recall.

The downside of the recall is the same as the downside of elections. We'd rather not have judges looking over their shoulders at a mob of voters and worrying about how decisions might be taken out of context.

Given how shitty human beings are, and how limited the space is to lock them up, sentences are always going to be shorter than justice would seem to demand -- even if we stop doing stupid shit like locking up drug offenders for years and years.

But what the hell. Persky seems to have earned his recall. And since this sort of tactic is used by conservatives all the time, I don't think the recall meaningfully contributes to undermining an important norm.


Posted by: politicalfootball | Link to this comment | 06- 6-18 1:56 PM
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I agree with 22, 23, & 29. I'm happy that Persky was recalled, but I also don't think recall elections are a great way to address problems with the criminal justice system.


Posted by: NickS | Link to this comment | 06- 6-18 2:01 PM
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We'd rather not have judges looking over their shoulders at a mob of voters and worrying about how decisions might be taken out of context.

In light of the millennia-long oppression of women by all the powers of human society, we *should* want for judges to be looking over their shoulders at a mob of women voters and worrying about how their decisions might be properly attributed to their manifest misogyny.

I for one am glad this imbecile got turfed-out. It's the very least, the very least, the very least that could happen to him. This is what the deterrent effect of retribution is all about -- you fuck up this badly, we'll come for you.

Bravo to Ms. Dauber.


Posted by: CHET MURTHY | Link to this comment | 06- 6-18 3:11 PM
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CHET MURTHY, it's pretty clear from the article that his giving a lenient sentence to Turner is part of a career-long pattern of giving lenient sentences to all kinds of defendants for all kinds of crimes. "properly attributed to [his] manifest misogyny" is complete bullshit.


Posted by: Cryptic ned | Link to this comment | 06- 6-18 3:17 PM
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You can't doubt somebody with an all caps pseud. It's like OPINIONATED GRANDMA.


Posted by: Moby Hick | Link to this comment | 06- 6-18 3:20 PM
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7: " Organizing a campaign is worse. It just feels gross."

Sincerity in a society's attitudes and ideals regarding its judicial system is necessary for its judicial system to be independent and just. Not all judicial systems are the same: some are better than others. Judges should be appointed, not elected.

And yet, I can't shake the sense that the purpose of our judicial system is more efficiency than justice. A person who wanted to break the analogy ban might say that our judicial system, in context of the trolley problem, is axle grease.

I wish I didn't feel as if your attitude were precious.


Posted by: FB | Link to this comment | 06- 6-18 3:26 PM
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Cryptic ned: Sure, he's an all-around asshole who doesn't think about victims. But he's also a fackin' misogynist, and if an army of women drum him out of public life, I say that's *progress*.


Posted by: Chet Murthy | Link to this comment | 06- 6-18 4:47 PM
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Also, I find the concern-trolling about the precedent being set her, judges being concerned about mobs going after their jobs, to be a little precious. I'll be happy to entertain such concern-trolling when we have laws on property crime that enforce that the sentence is proportionate to the crime.

I look forward happily to Jaime Dimon being in prison for a millennium (so that a young black man who steals a $100 pair of sneakers, can be imprisoned for a month[1]). Truly I do.

[1] Whereas that facker Jaime gets off scot-free, and the black man gets 10yr.


Posted by: Chet Murthy | Link to this comment | 06- 6-18 4:50 PM
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Whereas that facker Jaime gets off scot-free, and the black man gets 10yr.

This is ironic. You do realize the recall makes it more likely that the black man will get a 10 year sentence for stealing a pair of shoes? Being a judge is a nice gig and there was already a lot of pressure on judges to sentence everyone to prison because who wants to be the judge that gave probation to a guy that goes on to commit a terrible crime.

The blame for this situation lies with the legislature, not Persky. They made the offense probationable.


Posted by: A Prosecutor | Link to this comment | 06- 6-18 5:49 PM
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None are as woke as Chet!

His white knighting aside, aside from certain southern jurisdictions and such we are totally not getting long sentences for property crimes. His "the black man gets ten years" has let his ilk signal their virtue to everyone else in the last few days but they're talking about this guy who didn't get ten years, he took a plea for five to avoid a ten year sentence. Relevant details are also that the sneakers were taken as a robbery with a gun. If it had been something like a kid with no record shoplifts a pair of sneakers, then he would have gotten the sentence Chet wishes for or less. Around here he'd get a suspended sentence and probation.


Posted by: gswift | Link to this comment | 06- 6-18 5:56 PM
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gswift: And yet the banksters walk the earth as free men, instead of going slowly insane in solitary confinement in supermax in Florence. I fail to see your point, my dude.


Posted by: Chet Murthy | Link to this comment | 06- 6-18 5:59 PM
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Finally read the article. Some of the recall opponents seem like genuinely horrible people, or at least people willing to engage in some horrible tactics like trying to relitigate the case itself, and claim Doe didn't even write her own statement. Maybe with a few more weeks they'd have started dabbling in deranged Soros theorizing.


Posted by: fake accent | Link to this comment | 06- 6-18 6:05 PM
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we *should* want for judges to be looking over their shoulders at a mob of women Republican voters and worrying about how their decisions might be properly attributed to their manifest misogyny liberalism.
FTFY. Elections cut every way.


Posted by: Mossy Character | Link to this comment | 06- 6-18 6:44 PM
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Mossy Character: They already are: it's called pay-to-play bribes campaign contributions.


Posted by: Chet Murthy | Link to this comment | 06- 6-18 6:48 PM
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So you want judges to be elected so they will be especially responsive to the interests of the wealthy?


Posted by: Mossy Character | Link to this comment | 06- 6-18 6:50 PM
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||
gswift/anyone: Do you know of some kind of handy index for the quality of police departments in the US? Like training levels, corruption cases, civil liberties cases?
|>


Posted by: Mossy Character | Link to this comment | 06- 6-18 7:18 PM
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44: I've never heard of one.


Posted by: gswift | Link to this comment | 06- 6-18 9:14 PM
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Thanks.


Posted by: Mossy Character | Link to this comment | 06- 6-18 9:28 PM
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44: This is not exactly what you're looking for, but it's good data. The Washington post did some stellar work analyzing ten years' worth of homicide data and mapping it to neighborhoods, breaking it down by race, all kinds of good stuff. % of homicides w/o arrest might serve as a rough proxy for quality of policing, but there are going to be confounding factors.


Posted by: foolishmortal | Link to this comment | 06- 6-18 10:49 PM
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We need to elevate the discourse.


Posted by: Barry Freed | Link to this comment | 06- 6-18 11:03 PM
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How common are successful recalls of judges, anyway? Is it the kind of thing that happens a few times a year, and this one made the news because of the campaign and the case behind it, while most of them are just of local interest? Or is it more like a once a decade thing?


Posted by: ajay | Link to this comment | 06- 7-18 1:39 AM
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I look forward happily to Jaime Dimon being in prison for a millennium (so that a young black man who steals a $100 pair of sneakers, can be imprisoned for a month[1]). Truly I do.

For what crime, fool?

I mean, leaving aside the obscenity of wanting life without parole to be the penalty for any non-violent crime. What specific crime do you think he committed? No googling.


Posted by: ajay | Link to this comment | 06- 7-18 1:44 AM
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You'll probably have more success googling if you spell his name right, btw.


Posted by: ajay | Link to this comment | 06- 7-18 2:05 AM
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49: In a Nebraska, the people recalled a Supreme Court justice who was part of a majority that ordered a new trial for every second degree murder conviction in the state. And they recalled a lower court judge for drunk driving/trying to hide it. That's all I can think of is decades.

California might be different.


Posted by: Moby Hick | Link to this comment | 06- 7-18 3:45 AM
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And they recalled a lower court judge for drunk driving/trying to hide it.

This would happen over here as well; judges who commit criminal offences (or indeed just general misbehaviour) can be disciplined, which could include suspension. It's up to the LCJ and the Lord Chancellor to decide jointly - the US equivalent would be, I suppose, the Interior Secretary and the chief justice of the Supreme Court.

https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/independence/


Posted by: ajay | Link to this comment | 06- 7-18 3:58 AM
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In this case, if I recall correctly, he was disciplined and then recalled. Not really recalled, but failed his retention vote (see the Missouri Plan). The point of discipline seems to be to say to the voters, "It would be a shame if 50%+1 of the voters in the district said 'No' when asked if he should be retained in office because then he wouldn't be a judge anymore."


Posted by: Moby Hick | Link to this comment | 06- 7-18 5:28 AM
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47: Thanks.
51: An easy mistake to make, when one is down with the gente.


Posted by: Mossy Character | Link to this comment | 06- 7-18 6:22 AM
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49 - recall elections of judges are extremely rare. I can't think of another case. We also have "judicial retention" elections, which are more like term elections and aren't usually contested at all, but famously in the 80s three California Supreme Court justices lost their retention elections and were voted out because they had found the death penalty unconstitutional and were viewed as too soft on crime.


Posted by: Robert Halford | Link to this comment | 06- 7-18 6:22 AM
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38: More on virtue signalling and white knighting here.


Posted by: Cyrus | Link to this comment | 06- 7-18 6:24 AM
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Trousers are so tight these days that not virtue signaling requires effort.


Posted by: Moby Hick | Link to this comment | 06- 7-18 6:26 AM
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Looking it up, the Persky recall was the first recall of a California judge since 1932. Yuck.


Posted by: Robert Halford | Link to this comment | 06- 7-18 6:27 AM
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56, 59: ah, thanks.

Safe to assume there will be lots more to come, now it's been shown to work.


Posted by: ajay | Link to this comment | 06- 7-18 6:36 AM
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I don't think that it's a safe assumption. I think everybody might just pretend it didn't happen and only the pedantic will bring it up. At least that's the way I handle things that make me want to waffle.


Posted by: Moby Hick | Link to this comment | 06- 7-18 7:32 AM
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I dunno, to duplicate the circumstances for this one you'd need another cause celeb with a plausible story for judicial misconduct. That doesn't come around much at all -- like, I can't think of another trial court judge who I was aware of being pissed off about for years.


Posted by: LizardBreath | Link to this comment | 06- 7-18 7:34 AM
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I dunno, to duplicate the circumstances for this one you'd need another cause celeb with a plausible story for judicial misconduct. That doesn't come around much at all -- like, I can't think of another trial court judge who I was aware of being pissed off about for years.


Posted by: LizardBreath | Link to this comment | 06- 7-18 7:34 AM
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PLAUSIBILITY MATTERS IN ELECTIONS? SHIT.


Posted by: OPINIONATED REPUBLICAN PARTY | Link to this comment | 06- 7-18 7:39 AM
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It's probably easier to recall a governor, and CA hasn't done that for a while. The more likely trend is legislative recalls in Republican districts for people who vote in favor of things like funding improvements in transportation infrastructure via taxes on uses of that infrastructure. Those are the real corrupt, special interest politicians the recall system was meant to stop.


Posted by: fake accent | Link to this comment | 06- 7-18 8:00 AM
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Yeah, I feel like this outcome required a confluence of a number of unusual factors. Whatever you think about the wisdom of the judicial recall or Persky's sentencing habits generally, the fact pattern here is particularly well suited to the current moment as an outrage machine.


Posted by: Osgood Yousbad | Link to this comment | 06- 7-18 8:00 AM
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Open to being convinced otherwise here, but what strikes me about a recall election is that there is likely to be a real mismatch of enthusiasm; the people who want the judge gone because of one dodgy decision are going to be outraged and will therefore turn out to vote, but you're unlikely to get many people who are fervent partisans of keeping a particular judge in post. I mean, look at Halford in 14; like he says, far more familiar with the issues than almost anyone else who votes, and even he isn't thinking "Ah! What a delight to be able to vote for Judge Smith, MY ALL-TIME FAVOURITE JUDGE! SMITH in 2018! WOOOO!"


Posted by: ajay | Link to this comment | 06- 7-18 8:16 AM
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I always voted "Yes" in judicial retention elections where I knew nothing about the judge as a deliberate counter-weight strategy to what 67 is talking about.


Posted by: Moby Hick | Link to this comment | 06- 7-18 8:25 AM
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I can think of a few English judges I'd be enthusiastic about voting for. Well, enthusiastic given the premise of voting for judges. But not criminal court ones, admittedly.


Posted by: Ginger Yellow | Link to this comment | 06- 7-18 8:28 AM
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The Bird/Reynoso/Grodin CA Supreme Court -retention election was a lot like a recall (they probably would have been recalled if it the retention election hadn't been an easier way to get them out(. I'd say there's still lingering trauma from that election in the California bench/bar. There hasn't been another movement to vote out Supreme Court justices, but on the other hand the Supreme Court has made an effort to be a lot more bland and uncontroversial.


Posted by: Robert Halford | Link to this comment | 06- 7-18 8:45 AM
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I think the point is it's hard to get a recall on the ballot. But once it's there, it probably has a good chance to win.


Posted by: fake accent | Link to this comment | 06- 7-18 8:45 AM
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I wonder what Gray Davis is doing these days?


Posted by: Moby Hick | Link to this comment | 06- 7-18 9:15 AM
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But not enough to type that sentence into Google.


Posted by: Moby Hick | Link to this comment | 06- 7-18 9:15 AM
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Governor Gray, Governor Brown. It's like they're not even trying any more.


Posted by: Mossy Character | Link to this comment | 06- 7-18 9:24 AM
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73: I did. The results were surprising uninformative.

http://www.vipfaq.com/Gray%20Davis.html


Posted by: peep | Link to this comment | 06- 7-18 9:25 AM
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What the fuck?


Posted by: Moby Hick | Link to this comment | 06- 7-18 9:28 AM
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The only thing missing was a Geocities URL and the little "under construction" gif.


Posted by: Moby Hick | Link to this comment | 06- 7-18 9:29 AM
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The Gray David Webring. That should be a thing.


Posted by: Moby Hick | Link to this comment | 06- 7-18 9:35 AM
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Davis.


Posted by: Moby Hick | Link to this comment | 06- 7-18 9:35 AM
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He's @GovernorDavis on Twitter. I suspect it really is just him as his bio mentions "Green House Gases".


Posted by: Minivet | Link to this comment | 06- 7-18 9:45 AM
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75 Hey you can vote for whether you think he's gay, straight, or bi.


Posted by: Barry Freed | Link to this comment | 06- 7-18 9:57 AM
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I don't think he's legally bound by the result.


Posted by: Moby Hick | Link to this comment | 06- 7-18 10:01 AM
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But, what if he was, is what my new reality TV show proposes.


Posted by: Moby Hick | Link to this comment | 06- 7-18 10:08 AM
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I can't fathom viewing what happened here as "a pattern of short sentences" instead of a pattern of the patriarchy and white supremacy looking out for its own. Like, I'm almost incoherent with rage at this conflation. This judge isn't looking to reduce the burden of Justice on the populace, and neither are the prosecutors: they're looking out for what men with means. Full stop. That's what they serve. Bull fucking shit does this bear any resemblance to the cause of justice reform.

This is looking at Trump's pardon of D'Souza and praising it as striking a blow against the stigma of having a felony record. Fuck. That. Shit.


Posted by: JRoth | Link to this comment | 06- 7-18 10:27 AM
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To try and pull you back to my state of waffliness -- the review of the judge's sentences shows him slavishly following the probation department's recommendations. The probation department may be favoring privileged men, but the judge seems to be more going along for the ride.

(I think he's an ass for what he said at sentencing, that I griped about above, but there isn't much evidence that the judge intentionally cut Turner a break on sentencing, as opposed to failing to override the break the P.D. cut him)


Posted by: LizardBreath | Link to this comment | 06- 7-18 10:38 AM
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"him slavishly following the probation department's recommendations"

Odd that the public should expect judgment from someone with his title.


Posted by: Doug | Link to this comment | 06- 7-18 11:41 AM
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He was just a regular judge. You only expect good judgement from "Superior Court" judges.


Posted by: Moby Hick | Link to this comment | 06- 7-18 11:45 AM
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In many states Superior Court is actually one of the lower levels of the court system. It's confusing.


Posted by: teofilo | Link to this comment | 06- 7-18 11:57 AM
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For the best Caucasian judge, look for "VSOP".


Posted by: Moby Hick | Link to this comment | 06- 7-18 12:00 PM
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New York is the most confusing. The "Supreme Court" in New York is a trial court.


Posted by: peep | Link to this comment | 06- 7-18 12:03 PM
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The Supremes Court is where Diana Ross plays tennis.


Posted by: Moby Hick | Link to this comment | 06- 7-18 12:06 PM
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But then Pennsylvania has prothonotaries. My computer doesn't even think that's a word.


Posted by: peep | Link to this comment | 06- 7-18 12:06 PM
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I never can figure out where the stresses are in that word.


Posted by: Moby Hick | Link to this comment | 06- 7-18 12:08 PM
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PRO-thon-O-taries?


Posted by: Moby Hick | Link to this comment | 06- 7-18 12:08 PM
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85: "To try and pull you back to my state of waffliness"

Is that for me or JRoth?

Simplistic, uninformed hot-takes on complex topics can be really frustrating. Demonizing things like safe injection sites makes me have a sad. Is this what you and RH are feeling ambivalent about?


Posted by: FB | Link to this comment | 06- 7-18 12:09 PM
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72 - he works in my building and I see him in the elevator pretty often, carrying a really big briefcase full of papers. People including me say "Hi Governor" and he nods silently.


Posted by: El Presidente | Link to this comment | 06- 7-18 12:25 PM
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If you dress like a cockney street urchin, you can say that to everybody wearing nice clothes.


Posted by: Moby Hick | Link to this comment | 06- 7-18 12:28 PM
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1. Starting from the viewpoint of someone who did criminal defense for about 10-15 years, I am far more concerned about sentencing being too harsh. I can rarely get too worked up about a lenient sentence. Criminal sentences are almost always longer than I think are appropriate.

2. The safe thing for a judge to do is to convict someone and give them a harsh sentence. There is little to no downside. They will rarely lose their seat or face any criticism. (Unless they convict a cop.). Finding someone not guilty or giving them a short sentence is a sure fire way to get in trouble. I hate the idea of elected judges and recalls. I hate the idea of lay people evaluating judges based on one of too cases.

3. Brock Turner was not convicted of rape. Stop repeating that he was convicted of rape. He wasn't. You cant compare his sentence with someone who was convicted of rape. (Obv, objection penetration is still bad and should be punished.)

4. When judges (or sentencing guideline drafters) are overwhelmingly white men, they will usually view people like them as redeemable. Most people do this. Everyone is harsh on criminal defendants until it is their family member or friend. Then it is just a mistake that shouldn't ruin their life. Their family member or friend is always redeemable.

I prefer to think of most people as redeemable. I think we should move more toward viewing other people as redeemable instead of calling for harsher sentences. The bench needs a lot more diversity and compassion.


Posted by: | Link to this comment | 06- 7-18 12:34 PM
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Brock Turner is a rapist. Fuck him.


Posted by: Barry Freed | Link to this comment | 06- 7-18 12:40 PM
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98 was me.

99: Sure. Agreed. I think his sentence was really light for what he did. So is murder. But you dont compare the sentence that a person got for murder with attempted murder or felonious assault.

Larger picture though: I am far more offended by the vast entirely too long sentences than I can ever be by a too light sentence. (I also cant get too worked about him being called a rapist. Poor baby doesn't get to complain.)


Posted by: will | Link to this comment | 06- 7-18 12:54 PM
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98.3: Forced penetration, which he was convicted of, is an act that is conventional in English to call "digital rape" or "rape with an object" even if that's not the word the CA penal code uses. I'm not bothered by calling him a rapist at all.

To Will generally: Look back at my 18 and tell me as someone who works in this area if I'm overreading what the judge said at sentencing? I read that, and it looks to me as if the judge is straightforwardly saying that he takes the defendant at his word as to the defendant's subjective experience of that night: therefore, that the defendant didn't intend to be penetrating a woman without her consent, and didn't have the mens rea to commit the crime. Am I misunderstanding that, and can you walk me through how if I am? If I'm not misunderstanding it, it looks outrageous to me, even if it didn't affect the sentence.


Posted by: LizardBreath | Link to this comment | 06- 7-18 1:17 PM
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101: I dont mind calling him a rapist at all. But if you want to compare convictions, you cant compare convictions of people convicted of different crimes. Right?

Regarding the Judge's comments that you quoted in 18: It sounds like the judge is addressing the question of remorse, and stating that he believe Brock is remorseful now. I don't find it outrageous that the judge found him to be remorseful. I don't think a defendant has to totally agree with the prosecutions case to be remorseful.

The judge wasn't saying that he didn't think Brock had the mens rea. He was saying that Brock does think he had the mens Rea, but he is still sorry. The judge could and should have said it better.

Look, I have a natural bias against being too harsh on someone for how their comments show up in a transcript, having cringed when reading how I phrased something during a heated trial. Certainly, this judge could have been harsher.

But when you are in court every day, you see and hear horrific things every single day. People involved in criminal justice often have a hard time mustering too much righteous indignation. You just cant do it every day. Gallows humor. You become jaded. Prosecutors offer six months in jail as if it is no big deal. Why is the defendant and his family getting so worked up!? Six months is nothing.

Our judges handle criminal and civil. I regularly have to warn clients not to expect too much righteous indignation about whatever happened to them in their divorce or custody case bc the judge spends his weeks hearing about murders, child rapes, and other horrific things.


Posted by: will | Link to this comment | 06- 7-18 1:45 PM
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He was saying that Brock does think he had the mens Rea, but he is still sorry.

Boy, I think you're completely misreading the judge. Whatever he's saying in that quote, he's reacting to the victim's statement that Turner hasn't accepted responsibility, and is saying that it's okay that he hasn't accepted responsibility because he's remorseful anyway.

But I don't need to argue about it, I was wondering if there was some way I was totally misunderstanding the words on the page -- I had something confused about about the structure of the sentences or something. If there's nothing like that, that's all I was asking for.


Posted by: LizardBreath | Link to this comment | 06- 7-18 2:02 PM
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103:
I haven't read the transcript so cant comment too much about the judge or Brock Turner. But that never stopped anyone on Unfogged. But quick thoughts:

I think someone can be remorseful and accept responsibility for the result without agreeing with the victim or the prosecutions theory. (Of course, everyone is remorseful on judgment day.)

In part, the judge was said people fake acceptance of responsibility all the time.

My view on acceptance of responsibility:
1. you can add some time to the defendants who say "F you, judge! I didn't do it. I got railroaded." But that is about it.
2. Beyond that, remorse or acceptance of responsibility does not really change the sentence. The typical sentence is not really changed by scales of remorse.


Posted by: will | Link to this comment | 06- 7-18 2:17 PM
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I guess what I'm reacting to is that the judge's statement that: "Mr. Turner, in his state of intoxication, sees the events in a certain way.... I take him at his word that, subjectively, that's his version of events." Taking the defendant at his word as to his subjective experience of the events, is taking him at his word that he was mistaken (due to intoxication) and believed that the victim consented. At which point the judge is saying that mens rea is lacking and the jury got it wrong.

I don't think the judge thought it through in those terms, but I do think it's incredibly pernicious of him to explicitly buy into the "It was all a drunken misunderstanding" story of how rape happens. He's supposed to accept the jury's findings of fact, which includes accepting that Turner intended to penetrate an unconsenting woman.

But there's no reason to think that this affected the sentence, which came right out of the probation department's recommendation.


Posted by: LizardBreath | Link to this comment | 06- 7-18 2:29 PM
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I am not a criminal lawyer, and also haven't read up on either this particular case or the law, and so only say this here where I am not afraid of saying dumb things, but is it true that if Brock Turner was mistaken (due to intoxication) about the victim's consent, he wouldn't have sufficient mens rea for rape? I thought rape, at least in California, was a general intent crime, meaning that mistake through intoxication doesn't negate the requisite mental state. If that's right, it could be totally true that Turner, while intoxicated, thought she was consenting, while still having the intent necessary to commit the crime.


Posted by: Robert Halford | Link to this comment | 06- 7-18 3:01 PM
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(he wasn't convicted of rape, but I'm assuming (maybe wrongly) that whatever he was convicted of was also a general intent crime, or at least doesn't have a more exacting mens rea requirement than rape)

Anyhow, if all that's true, which is definitely an if, seems to me like that would excuse Persky's comments, or at least not create any inconsistency between Persky's comments and the jury's finding.


Posted by: Robert Halford | Link to this comment | 06- 7-18 3:04 PM
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And some quickie research, thank you Westlaw, says as follows (not gonna spend the time to add blockquote tags, so exccuse ugliness)

*443 Guthreau further charges error in the court's refusal to instruct the jury on diminished capacity set forth in CALJIC 3.35.2 He relies improvidently on People v. Mayberry, supra, 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, in arguing voluntary intoxication is a defense to rape. Guthreau would rewrite the rape law of this state from a general intent to a specific intent crime.
3 "(R)ape and sodomy are general intent crimes . . . ." (People v. Potter, 77 Cal.App.3d 45, 51, 143 Cal.Rptr. 379, 382; cf., People v. Thornton, 11 Cal.3d 738, 765, 114 Cal.Rptr. 467, 523 P.2d 267, cert. den. 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393.)
"Thus, inability by reason of intoxication to form specific intent would not be a defense. If, as a result of self-induced intoxication, appellant believed that the victim was consenting, that belief would not thereby become either 'reasonable' or 'in good faith' . . . ." (People v. Potter, supra, 77 Cal.App.3d at p. 51, 143 Cal.Rptr. at p. 382; cf., People v. Kelly, 10 Cal.3d 565, 575, 111 Cal.Rptr. 171, 516 P.2d 875; People v. Parks, 4 Cal.3d 955, 960, 95 Cal.Rptr. 193, 485 P.2d 257.)
This rule is entirely consistent with the Supreme Court holding in People v. Mayberry, supra, where the diminished capacity defense by virtue of intoxication arose in the context of a charge of assault with intent to commit rape. The latter charge embraces a specific intent crime not present in the prosecution of forcible rape. ( **380 People v. Mayberry, supra, 15 Cal.3d 143, 151, 125 Cal.Rptr. 745, 542 P.2d 1337.) There was no error with the trial court's refusal to give the proffered diminished capacity instruction.
4 In a variation on this same theme, Guthreau asserts the jury should have been instructed on voluntary intoxication as relevant to knowledge. (CALJIC 4.25.) Knowledge is not relevant to the crimes of forcible rape and oral copulation except to the extent knowledge dovetails with reasonable good faith belief the victim voluntarily consented. We again emphasize the general intent nature of these crimes. (People v. Potter, supra, 77 Cal.App.3d 45, 51, 143 Cal.Rptr. 379; see People v. Mayberry, supra, 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337.) The trial court did not err in refusing *444 the three proffered instructions. The trial court correctly instructed the jury " 'no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such a condition' " (CALJIC 4.20; cf., People v. Kelly, supra, 10 Cal.3d 565, 575, 111 Cal.Rptr. 171, 516 P.2d 875) and charged the jury: "If, as a result of self-induced intoxication, the defendant believed that the female was consenting, that belief would not thereby become either reasonable or in good faith. Unless from all the surrounding circumstances you should find that the defendant's belief that the female was consenting, was reasonable and in good faith." This instruction accurately states the law as declared by the Supreme Court in People v. Mayberry, supra, 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337; see also People v. Potter, supra, 77 Cal.App.3d 45, 51, 143 Cal.Rptr. 379.


Posted by: Robert Halford | Link to this comment | 06- 7-18 3:06 PM
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From People v. Guthreau, 102 Cal. App. 3d 436, 443, 162 Cal. Rptr. 376, 379 (Ct. App. 1980)

Now I will stop, I actually don't claim to know this area of the law seriously at all.


Posted by: RH | Link to this comment | 06- 7-18 3:08 PM
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On the internet, nobody knows your clients aren't rapists.


Posted by: Moby Hick | Link to this comment | 06- 7-18 3:31 PM
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OT: So, the head of the EPA sends his staff in search of used mattresses, expensive pens, and "moisturizing lotion". That's one really specific fetish he's got going there.


Posted by: Moby Hick | Link to this comment | 06- 7-18 4:20 PM
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Mens rea is everything wrong with purrsky. WOMENS REA. Or Menstruating rea.


Posted by: heebie-geebie | Link to this comment | 06- 7-18 4:41 PM
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I didn't know birds did that.


Posted by: Moby Hick | Link to this comment | 06- 7-18 5:09 PM
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BUT WE DO EVISCERATE ASSHOLES WHO MISSPELL US.


Posted by: OPINIONATED RHEA | Link to this comment | 06- 7-18 5:21 PM
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That was heebie.


Posted by: Moby Hick | Link to this comment | 06- 7-18 5:34 PM
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112 Menstruating rhea, surely.

||


Leaving for the airport in an hour to head back to NY for 5 weeks. Woohoo!

|>


Posted by: Barry Freed | Link to this comment | 06- 7-18 6:44 PM
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WE ALSO PWN AGGRESSIVELY.


Posted by: OPINIONATED RHEAS | Link to this comment | 06- 7-18 6:49 PM
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I'm just going with the flow.


Posted by: Barry Freed | Link to this comment | 06- 7-18 6:55 PM
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ASSHOLE.


Posted by: OPINIONATED RHEAS | Link to this comment | 06- 7-18 6:57 PM
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What can I say, shit happens.


Posted by: Barry Freed | Link to this comment | 06- 7-18 7:25 PM
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|| The Trump Administration has finally busted a leaker. Let the show trial commence! |>


Posted by: Spike | Link to this comment | 06- 7-18 7:56 PM
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Pretty alarming court case brewing in Texas. A completely inane argument from Texas that now that the insurance mandate exists on paper but with penalty $0, the whole of the ACA should be struck down - and US DOJ is refusing to defend the law.


Posted by: Minivet | Link to this comment | 06- 7-18 8:16 PM
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And this very specifically would mean removing preexisting conditions protection.


Posted by: Minivet | Link to this comment | 06- 7-18 8:19 PM
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I wouldn't say I'm coming around to the heighten the contradictions point of view, but at some point I hope people* start saying "Trumpcare" and not "Obamacare" and making sure blame for the coming failure goes where it belongs. Preventing that failure is still better than not, obviously.

* By "people" I mean public figures, media, etc.


Posted by: fake accent | Link to this comment | 06- 7-18 8:21 PM
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πάντα ῥεῖ καὶ οὐδὲν μένει


Posted by: opinionated menstruating pre-socratics | Link to this comment | 06- 7-18 9:38 PM
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98: But getting a too-harsh or too-light sentence is not a random outcome. There's a reason why it was Turner who got a light sentence.


Posted by: Walt Someguy | Link to this comment | 06- 7-18 9:48 PM
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126:I think we should move more toward viewing other people as redeemable instead of calling for harsher sentences. The bench needs a lot more diversity and compassion.


Posted by: Mossy Character | Link to this comment | 06- 7-18 10:27 PM
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122: Respectable legal opinion seems to be that the suit is without merit, but respectable jurisprudence has never been an issue when adjudicating Obamacare. I wonder if Roberts will have the guts to pull the trigger this time.


Posted by: politicalfootball | Link to this comment | 06- 8-18 7:32 AM
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Or Kennedy, one would hope, despite his bad vote on the mandate, should be able to see through this.


Posted by: Minivet | Link to this comment | 06- 8-18 7:51 AM
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If only they lived in fear of a liberal voter backlash.


Posted by: Mossy Character | Link to this comment | 06- 8-18 8:10 AM
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I wonder if some in the WH/Congress are deliberately trying to overreach and get killed in the midterms since rage is so much easier for them to stoke when it's impotent. (They're apparently arguing to the courts that guaranteed issue and community rating need to be nuked immediately, not even waiting for next January.)


Posted by: Minivet | Link to this comment | 06- 8-18 8:15 AM
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Also, fucking Ontario. (And fucking FPTP - Canada's party system seems to bring its problems into the sharpest relieve, giving the PC 60% of the seats with, in this case, 40% of the vote.)


Posted by: Minivet | Link to this comment | 06- 8-18 8:31 AM
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Relief.


Posted by: Minivet | Link to this comment | 06- 8-18 8:31 AM
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But not in a good way.


Posted by: Mossy Character | Link to this comment | 06- 8-18 8:51 AM
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