This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
Loay Alnaji Will Not Be Going To Prison
He might go to jail. VCStar reports:
This isn't quite the standard plea deal, because the prosecutor's office doesn't want it, either. It's an indicated sentence or judicial plea bargain, depending on how cynical you are, but don't take that court case saying 'judicial incentives for plea are unlawful' to mean judicial incentives for a plea actually get the judge in any hot water, or likely result in the plea bargainer getting screwed. There is, as far as I can tell, nearly zero information on how prevalent indicated sentences are, in California, nor how typical this case is, nor what the normal outcome would be in a comparable case, or even if indicated sentences have been used ever in a comparable case. There's even less information on how fucked up one has to be to actually get sent back for another try, and spoiler alert: this ain't it.
So it's probably weird, you can't prove how weird, and gfl for caring about it.
The reporting says up to a year in jail, but that's phantasmal. There's only a moderate chance Alnaji will receive the maximum end of that probation offer, only slightly better chance he'll end up toward the top of that scale, and if I'm understanding the (admittedly convoluted) good conduct credit rules he's very likely to only serve half of whatever sentence he does get. Alternate custody arrangements are on the table for this class of sentence, such as work release or partial home confinement, though I've got no idea what the chances of it getting granted here are. Do the math, and there's nontrivial chance he'll spend less time in jail than Kyle Rittenhouse did.
So on one hand, Alnaji is pleaing guilty to everything in the case; on the other, he's getting a massive discount, quite plausibly a ten-fold reduction in custodial sentencing (again, dependent on me understanding California's fucked up good behavior credit system, but I think the plea keeps his charge as a 50:50 good credit where a prison sentence would be 85:15).
It's also worth spelling something out :
That's a defense attorney, and not the judge, saying that, to be crystal clear. And he's talking to a reporter, so there's a minimum of two professional liars involved. Even if it's not made up wholesale, there's a lot of ways this could have been taken out of context, or misrepresented, or had some other reasonable explanation.
I would be very fascinated to know if the judge pushes back against a defense attorney, if that defense attorney is aggressively mischaracterizing the judge's on-the-stands statements about the merits of an existing case to the public. Because if not, there's a very fascinating problem here.
There are two theories of the case. The prosecutor theory is that Kessler stood near Alnaji, Alnaji hit Kessler in the head, and Kessler died. There is pretty strong evidence, here: Alnaji's megaphone has blood matching Kessler's on it, and injuries to the front of the face inconsistent with the fall. The defense's theory, and I quote the reporting: "Bamieh [defense lawyer] said that during the protest, Kessler aggressively put his cell phone in Alnaji’s face and when Alnaji swatted the phone away, he unintentionally hit Kessler’s face with a megaphone. Bamieh said Kessler had a brain tumor, which exacerbated the injuries when he fell." Alnaji's lawyer also claims that Kessler fell down eight feet away from where Alnaji unintentionally hit Kessler's face, or perhaps the tumor caused the fall. The gymnastics involved I will leave as an exercise for the reader.
Unfortunately, there is no video of the strike or fall itself. It's not even clear, from public information, if Kessler approached Alnaji or Alnaji approached Kessler, first.
Note, however, that there is also no theory of the case where Alnaji did not commit every necessary component to the charges. As a matter of law, in California, if someone runs into your personal space waving a camera, you can't lawfully smack it out of their hands. If you try, and in doing so you wave a heavy rigid object near their head, hit them unintentionally, you are committing an unlawful and negligent act. If you do so, and they turn out to have a skull made of eggshells, you have committed manslaughter. There is no theory of the case where Kessler committed to mutual combat, or put hands on Alnaji; there's no exception for oopsies. Had this case gone to trial, the defense would have rested on nothing deeper than playing to the jury's sympathies and confusions.
"[A]n accident happened" is, in this framework, a very specific unusual claim for a judge to be making, if a judge made it. It's simultaneously disavowing specific responsibility and minimizing any conduct. I mean, yes, there's also a justice matter about whether judges can or should be accepting pleas where there's signs that the plea is insincere, but that's not going to matter in a case where the judge is presenting the not-a-plea-deal.
Sentencing is at the end of June, assuming it doesn't get delayed. I'll leave spelling out the various comparisons to other high-profile cases for then, but this is a pre-registration that the comparison does matter, whether my predictions are correct or wrong. Even had this case gone to trial and he received a maximum sentence, Alnaji would never face a sentence as long as Adamiak, or Dexter Taylor will have spent in prison before they got their fair day in court. I'd be willing to bet cash at very steep odds that Alnaji will not spend as long in jail as the Hammond's did in federal prison before they got a pardon, at steep odds that Alnaji's sentence will not be as long as the year-and-a-day that Steven Hammond's original pre-bonus sentence, before Alnaji doesn't have to serve all of it.
And none of them killed anybody!
There's a morbid post, here, but it's all the more morbid where the original advice was "For Reds specifically". Kessler was not a Red. As I said two years ago, "It's not about X as a principle goes to this."
A few things. First, the Eggshell Skull Doctrine, strictly speaking, does not apply here, as it's a tort law doctrine that prohibits the defendant from limiting damages to what was foreseeable. In the first example, A punches B and causes a black eye, which is the foreseeable consequence of his action. In the second example, a punches B, but B has a medical condition that A doesn't know about that causes severe medical consequence. In both examples A is liable for battery, but in the second he can't argue that his damages should be limited to those for a black eye because he didn't know about B's medical condition. The criminal law regarding manslaughter seems analogous, but that the defendant cause the victim's death is an element of the offense, and the law doesn't require that such a death be foreseeable.
With that out of the way, it's clear he's guilty of involuntary manslaughter. There may be a chance that a jury views the whole situation as an accident, but it's a small chance. The problem for the prosecutor is that once you strip away all the culture war bullshit, there isn't a compelling case for pursuing this as aggressively as the prosecutor seems to be. The underlying battery was trying to knock the phone out of the guy's hand, which is about as minor as it can get. The blow that proved fatal was the result of inadvertent contact, the defendant had no criminal history, and he apparently cooperated with the police afterward. If I were the judge in this case I'd seriously consider excluding any evidence regarding the subject matter of the confrontation because I wouldn't want jurors deciding the outcome based on where they stand on the Israel-Palestine issue.
When it comes to sentencing, judges in California appear to have more discretion than in most places. I'm neither a criminal lawyer nor barred in California, but from reading the relevant statutes it looks like confinement to state prison was never on the table. I'm not going to list them here, but defendants convicted of involuntary manslaughter only go to state prison if certain factors are in play, none of which appear to be. Beyond that, the term of imprisonment is a maximum of either 2, 3, or 4 years. If certain other mitigating factors that don't apply here are in play, 2 is the max, and if certain aggravating factors that do apply here are in play, the max is 4. However, while the case for involuntary manslaughter is airtight, the case for the aggravating factors the prosecutor alleged wasn't. Taking them individually:
Personally inflicted great bodily injury True, but this is an element of the involuntary manslaughter charge; in any event, it's hard to imagine a case of involuntary manslaughter that wouldn't involve severe bodily injury. This would therefore only be applicable to the battery charge.
Defendant armed with and used a weapon Possible, but would require the jury to find that the defendant used the megaphone as a weapon, i.e. he intentionally struck Kessler with it.
Victim was particularly vulnerable Also possible, but would require that the jury find that Kessler was unusually susceptible to the attack in a manner which made the defendant's conduct distinctly worse than an ordinary example of the crime. I'm not sure what evidence the prosecution planned to present that would suggest Kessler was unusually vulnerable.
None of this ultimately matters because of the guilty plea, but I point it out here because there's a pretty good chance that the judge had more leeway with sentencing than he would have if the case had gone to verdict. If the jury hadn't found that any of the aggravating factors applied, then 3 years would be the default maximum sentence. But those are only maximum sentences. California doesn't offer any real guidelines, but when searching for the statutory text I came across a California defense attorney's website that says a conviction can mean:
I can't vouch for the guy, but I'm assuming he didn't just put this up today to trick people into thinking the Alnaji decision was justified, so I'm going to assume that this is more or less accurate. I also took a look at PA's guidelines, to see how they compare. Here, Involuntary Manslaughter is a First Degree Misdemeanor with a theoretical maximum sentence of 5 years. For someone without a record, the recommended sentence is 5–8 months in county. In fact, statutory maximum aside, the maximum under the guidelines is 22 months. California isn't Pennsylvania, but the point is that a sentence of one year (6 months) plus three years of probation doesn't seem excessively lenient for the crime he was convicted of. You'd struggle to find a state where it's typical for someone with no priors to get four years in the state pen for involuntary manslaughter.
As to the disposition of the case, that's definitely strange. Whether this is an illegal judicial plea offer or not, I don't know. What I will say is that in the case you cited the judge knocked out enhancing factors before making the offer while in the present case the defendant pleaded guilty to all the counts in the indictment, but there could be other deficiencies I'm not aware of. But the procedural posture of this case is strange in general. The current judge was just assigned in March, after the original judge died. Yesterday's hearing only appeared on the calendar at the last minute. The case had already been listed for trial several times, but each time was continued at the last minute. And each trial date had requests for media presence and cameras. Judicial involvement in settlement negotiations is common in civil litigation but most states prohibit it in criminal matters. California, though, is one of the exceptions, though I don't know to what extent the practice is encouraged. The article says there were several meetings with the judge, and assuming these were similar to civil mediations, here's my theory on what transpired:
The judge knew that the matter was likely to become a media circus, and wanted the parties to settle. The prosecutor might not have been willing to make a deal, or wasn't willing to offer a deal that was acceptable to the defense. Over the course of the meetings it became clear that the judge's view of the case was that while a conviction was likely, the evidence the prosecution was giving him didn't support the sentence they were asking for. The prosecutor doesn't determine the sentence, and if a defendant thinks that he can get a better deal than what the prosecutor is offering by just pleading guilty and throwing himself at the mercy of the judge, there's nothing the prosecutor can do to stop him. In other words, the "offer" the judge made was the same as the sentence he would have given had the defendant been convicted at trial. The benefit to the defendant is not having to endure a two-week media circus with him as the star that is likely to yield the same result. They're scheduled to be in court in less than two weeks, but the media will be there, so they schedule an immediate hearing with little notice so that they can resolve the matter as quietly as possible. They still have to go back for formal sentencing in July, but unless something unusual happens that will be a formality that nobody cares about. Some people will still complain, but a lot fewer people are following the case now than would be if it goes to trial, and advocates for the prosecution have to deal with the elation of the guilty verdict followed by the disappointment of the sentence. The prosecutor, meanwhile, doesn't have to own anything. Everything is wrapped up in a nice little package.
With a hand holding a megaphone, aka a heavy rigid object. Beyond that, you seems to be taking the defendant's theory of the case entirely at face value, and then giving them a little bit of grace on top of that. That's maybe relevant as an understanding of what the defense might want, but it's not the only plausible or even likely read on the story.
... unless, to spell it out, the judge has taken the defense's theory of the case at face value, before the trial has begun.
If I'm reading it correctly, California Penal Code Section 1170(h)(3) says that a "has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7" shall be served in prison. 1192.7(c)(8) specifically includes "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice," -- that's the specific enhancement on the case page twice.
Yes, the propensity for progressive groups to successfully argue that any politically-charged actions involving a Blue Tribe are just confusing the matter or an outright alleviating factor, while any politically-charged actions involving a Red Tribe matter are evidence of clear ill intent, is well-perceived, thank you for spelling it out.
Personally inflicts great bodily injury is the enhancement. It's specifically to separate where the accused did the thing themselves, rather than caused it to happen through an intermediary. (this gets goofy for duty-of-care or group-assault scenarios, but neither are relevant here.) For an example, there's a ripped from the headlines case that clearly couldn't have involved the defendant.
The enhancement is armed with or used a weapon, but more critically, Alnaji already admitted to the very requirements. The defense's theory of the case is that "Alnaji accidentally struck Kessler when he swatted away Kessler’s phone". But that "accident" in the defense's claim is only trying to separate the injury to Kessler's face; swatting at Kessler's phone does not make the megaphone phase through Kessler's hands.
That is the enhancement most likely to run into trouble with a jury, but it's still not very weak.
Kessler was an elderly and fairly frail man. Age alone can't support that enhancement if it's an element of the crime, but it's not, and Kessler is in the 65+ range where it's a common enhancement and readily supported.
Yes, lower-end cases end up at the lower end of the sentencing range. That's kinda begging the question. Involuntary manslaughter's lower-end includes some pretty far-reaching stuff! In this case, it's "hit a guy, didn't expect to kill him". That's not exactly some unpredictable consequence, even if it's an uncommon one, nor is it a low-culpability situation. And while it's not the definition of enhancement to be non-typical, it's pretty standard for a case involving several enhancements to be nontypical.
And, of course, this just ropes back to the broader point about inconsistency of the law, where you can just go and crack a man's head open, it result in his death, say oops, and then get a shorter sentence than if you had done something really evil, like attach a shoulder stock to an antique gun or buy an unlicensed barrel.
In this case, the problem I'm motioning toward is more "... whether the sentence proposed by the trial court reflected what it believed was the appropriate punishment for this defendant and these offenses, regardless of whether defendant was convicted by plea or following trial, or instead reflected what it believed was necessary to induce defendant to enter a plea."
That seems like a really detailed description to say 'the judge didn't want to sentence the guy hard, and wanted less publicity when doing it'. Which, to be fair, would make it a genuine indicated sentence rather than a judicial plea bargain!
EDIT: okay, that was unfair snark.
But it depends on some pretty strict assumptions to get to the indicated sentence, and they're pretty unfalsifiable. We can't, by tautology, know what the judge would do at the end of a trial that isn't going to happen. He doesn't know, and doesn't have the evidence! (And some of that evidence, like the relative credibility of witnesses talking about who initiated the verbal confrontation or started touching the other, probably should matter.) The evidence you're using like the multiple conferences is just, or more, compatible with a judge really not wanting a media circus in a controversial case, and slowly shaping what he indicates as an appropriate sentence to something he knows the defendant will want to take, or even outright updating his model of an appropriate sentence until the defendant takes it. There's very little chance we'd be able to prove if the judge did outright offer a bargain, not least of all because the sudden change in judge and sudden (and media-free) hearing and various procedural annoyances mean we don't know even what other judges that were on this same case would have offered, or if they did offer anything. I don't have infinite free time to figure out if this particular judge has weighed this particular way in other high-profile cases, and it's quite possible that there haven't been enough to do any serious statistics on, or even any comparable cases.
The strongest testable evidence I can motion toward is whether the judge her takes any umbrage at being misquoted to the public in a way that minimizes the guilt of a man supposedly pleading guilty -- but while that happens in some politically-charged cases, you can reasonably object that there's a million reasons it might not happen in this case or publicly.
So whether or not this is a judicial plea bargain, it doesn't matter in any realistic sense. It's not getting overturned if it can't even be conclusively demonstrated.
Which would be one thing were this is just some Pepe Silvia-style theory-from-nowhere, but we do have the stuff that would push the sentence up, and the evidence to support it, and a lot of the defense's past arguments either falling or only admitting to the elements of the charge, and then months after much of the information has been formalized -- months after the trial was first scheduled! -- then the judge announces what an appropriate sentence would be?
And, even if it gets to the presumption of an indicated sentence, it still doesn't actually provide persuasive evidence that it's just or reasonable. If the final story is that the judge just wanted to get this out of his court house, and a short sentence was the sort of appropriate that he could live with, that's kinda a problem all of its own in the "Justice is not, under present conditions, the presumed outcome of a process" sense. Again, Rittenhouse's pretrial jail time was a quarter of this guy's maximum theoretical sentence, that maximum just isn't happening, and Rittenhouse was innocent (and had a vastly higher bond). People regularly receive greater sentences for paperwork crimes.
More options
Context Copy link
More options
Context Copy link
Is this something the DOJ could consider federal charges for? I'm pretty sure "state law enforcement or judiciary deciding to look the other way at hate crimes" is something we've written laws about in the past, but no clue if even the current DOJ would be interested in this case specifically.
In theory, yes. There is no constitutional protection against being tried and even punished for the same crime in both state and federal courts.
In practice, no. The relevant district attorney (kinda) is a Red partisan, but he couldn’t get indictments in several other cases and his position is in weird near-limbo. The feds have a presumption against retrial in this sort of case called the Petite Policy, and while it can be overridden, this isn’t the same category as anti-abortion protesters trespassing. Ventura Count is Blue, if not as Blue as California gets. And the federal nexus would be genuinely weak.
More options
Context Copy link
More options
Context Copy link
It seems like everyone (except the victim) basically got what they wanted here. The defendant got a very lenient deal, the prosecutors are making a show of protesting but still get to count this as a successful conviction for their stats, and the state of California can use a limited prison spot on a criminal who poses an actual danger to the public. It's not like this guy is going to make a habit of murder by megaphone. It's hard to muster up much outrage when this was a one in a million unlucky outcome from a typical scuffle at a protest.
How is this case any different than the guy who got life in the United the Right accident. People protesting, chaos, scuffle followed by a dead guy.
The one who plays for the right team gets a month in prison. The one who plays for the wrong team gets life.
I don't know what video you're looking at that shows his car was struck before he accelerated, but in any case I don't see how that's relevant. There's no universe where you have a legal justification for starting a block away before driving into a crowd at 30 miles an hour.
This is one of those things from the great awakening that people just never knew.
Perhaps he should be guilty. Maybe it wasn’t enough of an attack to justify plowing. The case though wasn’t as clean cut as white supremacists plows thru crowd for no reason.
Personally I don’t see how they got reasonable doubt. No way to know what he thought was happening and sounded to me like he acted innocent after the incident.
@Rov_Scam
You guys know that the pedestrian who died, died by because he crashed into a vehicle which then struck her, not because he actually hit her with his car, right? And that in order to crash into that vehicle, he had to steer between a sizable crowd on either side of his vehicle?
Also, at some point I'd love to hear from someone who knows better what the grounds were for removing his defense attorney and assigning him a new one, apparently of the court's choosing.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
While it is effectively LWOP, he officially got a sentence more than twice as long as the guys that did the 1993 WTC bombings, which killed 6 and injured over a thousand. Absolutely absurd, radicalizing sentencing.
Some of them have even had sentence reductions and could die as free men if they make it to 100, assuming they don't get more reductions over the next couple decades.
To be clear, they weren't given sentence reductions because the judge felt sorry for them, but to comply with an esoteric Supreme Court ruling regarding what evidence is required for robbery under the Hobbs Act to qualify for mandatory minimum sentences.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
No but if the state government says "You can attack people at protests and get away with it as long as we like you and it's plausibly ambiguous," the mob can make a habit of it.
Plus the whole 'if this happens with political spectrum reversed the dead guy is a national martyr and there's riots if there's no meaningful charges filed' aspect
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Well done on following this up. A lot of these culture war flare ups don't get continuing coverage. I worry about losing track of a lot of these court cases as they take years to move through the system.
I don't think @FCfromSSC was wrong. I still think we're in a place where Blue tribe gets different treatment within the justice system for similar 'crimes'. The defendant here codes more Blue, while the deceased Paul Kessler codes more Red.
I looked at @FCfromSSC's post and the list "on the other side" looked rather weak as evidence for Red disadvantage. CHAZ - unless I am misremembering it, didn't they shoot some unarmed black kids joyriding in the area? (Between them and a quite possibly middle-class anarchist LARPer, who is higher on the progressive stack?) Reinoehl - he got killed by federal law enforcement; Dolloff - "punching and pepper-spraying" seems like it would rise to the standard of lethal self-defense in a lot of places, since it suggests both severe physical violence and an intention to incapacitate that would make it hard to decide to defend yourself later if the threat were escalated to obviously murderous.
More options
Context Copy link
Yeah. I wish he was wrong, but I think the most the coda can say is ‘insufficiently pessimistic’
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link