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Notes -
Conspiracy Investigation Done Right
In 1996, TWA Flight 800 exploded and crashed into the ocean off the coast of Long Island, killing all 230 people on board. After an extensive four-year investigation, the NTSB concluded the explosion was caused by a short circuit ignition within the center fuel tank. Or at least that's the official story.
Now normally when you encounter a disclaiming phrase like that it tends to be a klaxon warning to strap in because you're about to hear some crazy shit about what really happened. I'm not going to argue for some crazy shit though, instead I want to showcase a real-life illustration on how to properly investigate and litigate what otherwise would be dismissed and derided as some crazy shit.
Someone (thanks Jim!) brought to my attention this pending lawsuit that aims to challenge the TWA 800 official narrative.[1] The basic summary you need to know is that, in contrast to the official story, the "alternative" narrative claims the airplane was hit by an SM-2 surface-to-air missile launched by the United States government during a weapons testing exercise. You can read the 38-page lawsuit complaint yourself where they allege:
And humorously enough:
TO BE CLEAR: I find the overall claim to be extremely implausible based on Bayesian reasoning I'll get to later, but the focus here is less about delving into the specific allegations[2] and more about showcasing how one should go about uncovering a criminal conspiracy that otherwise sounds kooky on its face.
As far as I can tell, the law firm involved has a reputation for serious lawyers doing serious work. The complaint they filed directly addresses many procedural issues that would normally be a hindrance for these types of claims. For example, the major hurdle would be the statute of limitations given that the explosion took place in 1996 but the lawyers cite the fraudulent concealment exception based on some FOIA foot-dragging:
The legal system relies on attorneys as an (imperfect) screening mechanism to separate valid claims from the torrential garbage. Before an attorney can rouse a court into examining a claim, Rule 11 requires them to affirm that the attorney has made reasonable efforts to investigate it themselves to make sure they're not just re-shoveling whatever bullshit their client dropped on their lap. The lawsuit offers specific allegations about which government agencies were involved in the cover-up, when the cover-up took place, and how it took place. A sample:
They even pontificate on what might have prompted a rush towards testing live warheads over a populated area:
And they managed to track down evidence of missile testing right around the time and place of interest:
I've only picked a sample, there's a lot more details in the complaint. In contrast to the persistent and arguably intentional vagueness found in many disdained conspiracy theories, I'm genuinely impressed by how comprehensive the lawsuit's claims are regarding who/how/why. They explain exactly which organizations are involved in the cover-up and the evidence behind that belief, which missile system brought the plane down and the evidence behind that, specific reasons for why live warhead testing took place in a busy air traffic corridor, and explanations for why it took so long to uncover all this.
If (again, arguendo) TWA Flight 800 was indeed brought down by reckless missile testing involving a live warhead and this was covered-up by the government, then the way this lawsuit is conducted is the best opportunity for legal redress. The legal system has serious and persistent deficiencies with its inability to offer all petitioners the relief they're owed, but certain rules and expectations it has developed over time are worthy of replication.
As a foil, the strengths of how the TWA 800 complaints are presented become more obvious when it's contrasted against another lawsuit whose deficiencies resulted in Rule 11 sanctions for the lawyers that filed it. In 2020, two Colorado attorneys filed a class action lawsuit on behalf of all registered voters in the country, and sought $160 billion in punitive damages, alleging the election was stolen from Trump.[3] Their 84-page complaint (plus a dozen affidavits) alleges that a wide roster of defendants (Dominion, Facebook, various state governors, and "1 to 10,000" as-of-yet unidentified co-conspirators) engaged in unspecified-but-definitely illegal conduct. For example, here's what one of the supporting affidavits claimed:
Contrast this "research and contemplation" with the straightforward allegation of "The Navy and various defense contractors caused an airline explosion by deciding to test live warheads in a highly-populated area". The magistrate who ordered sanctions against the Colorado attorneys noted their conspicuous aversion to investigation:
Pro-tip: don't decide to file a lawsuit after listening to a podcast.
Back to the TWA 800 case, the central claim involving the US accidentally shooting down a passenger airline isn't impossible because it happened once in 1988 with Iran Air Flight 655, killing all 290 people on board. What's least plausible of all with TWA 800 is how the military, the defense contractors, and the law enforcement agencies involved managed a successful cover-up over so many people over such a long period of time.
There's an oft-utilized but facile heuristic that claims that if there was a cover-up, then someone would've leaked it, and so therefore no leak = no cover-up. This is unreliable because there plenty of government cover-ups that were successful, at least for a while. The Tuskegee Syphilis study went on for 40 years until an AP story in 1972. Operation Mockingbird, MKUltra, and COINTELPRO all took place in the 1950s but weren't exposed until the 1970s. Project SUNSHINE which involved collecting body parts from dead children to study radioactive fallout started in 1953, didn't become publicly known until 1956, and the full extent wasn't fully exposed until the 1990s.
However, the common elements with these schemes is that they all involved either a small number of conspirators, or had victims that no one really gave a shit about. None of this is reflected in Flight 800, its 230 dead, and the multiple entities implicated.
The incentive behind the cover-up doesn't make much sense either, because anyone helping with the cover-up has no way of knowing ahead of time whether it will remain under wraps, especially if perpetual silence relies on the cooperation of hundreds or thousands of people. You only need one leak and if the whole thing blows open, no one wants to be left holding the proverbial gun while everyone is pointing fingers at each other. Anyone at the decision fulcrum faces an obvious pay-off from defection that needs a serious countervailing cooperation pay-off to convince them into shouldering that level of culpability.
The lawsuit allegations also rely heavily on eyewitness testimony (though with some video corroboration), which is particularly unreliable and prone to suggestion when it involves widely publicized events like an airline crash. Lay witnesses who lack the appropriate specialized training and background are vulnerable to misinterpreting what they see or hear.
Implausible is still not the same as impossible, and crazier shit has happened before. If there's any validity to these wild claims at all, this lawsuit tees up a stellar attempt at uncovering the truth.
[1] I've long had an aversion to describing anything as a 'conspiracy theory' because it's often wielded as a discussion-terminating cudgel. Once the label is affixed, the very notion of scrutinizing, investigating, or grappling with the underlying claims is dismissed as a waste of time.
[2] The Flight 800 Wikipedia page has lots more of the technical details if you're so inclined.
[3] The two lawyers, Gary Fielder and Ernest Walker, were acting on their own and had no connection to Donald Trump or his campaign.
... I think your perspective is rather badly turned into word games, in a way that is only persuasive to lawyers.
((I also have some big rants about the extreme rarity of sanctions against prosecutors, even in view of high-profile and serious misconduct, but they're often not operating under civil procedures and I expect you have bigger complaints given your vocation.))
As a metaphor, have you ever heard of the Subway Tuna lawsuit? If not, the complaint is here. It's an absolutely fascinating read, filled with bombshell allegations where genetic testing revealed 'tuna' products containing not only no tuna but not even fish...
And which were fake. At best, the plaintiffs depended on a claim of this genetic testing's relevance for this sort of food authentication from some citation laundering out of context; more likely, they had to actively shop (as the New York Times did) to find a lab willing to take their money for a test that they'd have to disclaim was meaningless. And the plaintiffs (or at least their lawyers, did the whole monty of other trumpy behaviors, such that the eventual order about sanctions read:
Of course, there's a punchline:
By any reasonable colloquial (or normal human) use of the terms, they absolutely did. I'll be exceptionally charitable, and perhaps rather than trying to shakedown or embarrass a sandwich shop with false claims, Amin was merely incredibly go-focused and managed to find an unscrupulous lab on the very first try. When this returned chicken in most samples (for those in the audience, American tuna salad is made using mayonnaise, which in turn is made using chicken egg) in a substance that was not chicken to the naked eye, they perhaps genuinely believed Subway somehow had developed secret technology. The inappropriateness of DNA barcoding as a technique in many conditions is not hugely obvious; Derek Lowe rather famously let his preconceptions hit an industry he already (if reasonably) didn't like.
But two years in, faced with masses of documentation consistent with tuna sourcing, the plaintiffs had nothing but a single set of genetic tests. They did not investigate; academic discussion of the inappropriateness of DNA barcoding for canned or vacuum-packed pre-cooked tuna was well-established as early as 2015. They found (laundered) citations offering what they wanted to believe, and fought as hard as possible to obfuscate that.
There's some meaningful difference there, to judges and lawyers. To anyone else, it looks like the plaintiffs just carefully split off the people making hilariously false claims from the people making the lawsuit, despite clear connection in focus and interest.
I don't know what actually happened for TWA800. The official story is far more reasonable than the conspiracy theory, but I'd have said the same for Ted Stevens, Waco, etc. Shootdowns have happened, although the timeline
But I can tell you that this complaint stinks in the same way.
The complaint depends heavily -- in many ways, near-entirely -- on claims made by Thomas Stalcup of private conversations or interpretations of long-public knowledge in implausible ways. Nearly a page (76-82) consists of unnamed persons who supposedly encountered missiles after TWA 800 (and, perhaps more importantly, after the missile theory had been publicized). The named sources are often paraphrased aggressively, in exactly the sort of ways that would be done if attempting to mislead (most critically, "personally aware of at least a dozen Aegis missile tests off the East Coast of the United States around this same overall time period" would be absolutely critical evidence if it meant a dozen live tests near New York City in early 1996, and absolutely meaningless if it was the well-disclosed Wallops Island, VA testing center that the public knew about in September 1996).
Edit: to be clear, this is not a defense of the standard theory for twa800, or of your electionisy lawyers. And I do recognize there are reasons these symptoms are this way. But it looks a lot less like clear duty of candor to the court, or even focus on the dignity of the court; given your two examples, it seems more a matter of the dignity of the judge.
I'm not sure what your criticism is or what word games I'm playing. My post was addressing what is admittedly a very low bar to clear, namely how to present allegations of a conspiracy competently. I'm not denying that lawyers lie or conduct sloppy investigations or do some expert-shopping, but all that is collateral to whether or not the allegations are described coherently and with sufficient detail. Even knowing that the Subway Tuna lawyers shopped around and misrepresented their DNA findings, that doesn't change the fact that their theory was coherent and had enough details. The falsification of my argument would be if the Subway Tuna lawsuit didn't bother with any testing at all and instead filed an affidavit from some rando who said "I have come to believe that Subway Tuna is not in fact tuna" without explaining foundation.
I don't think you're playing word games, so much as you're getting played by word games.
At the trivial level, I think the Krick complaint has a pretty sizable amount of what O'Rouke's final order on sanctions on calls out as :
There's some sunlight between it and O'Rouke, but not much. Quite a lot of the 'specific' citations have nothing to do with the actual legal theory, and even some of the ones you highlight are just pulling statements by randos out of their original context, or taking routine actions as evidence of a dire conspiracy. And while you emphasize affidavits with a lot of padding, there's a number of specific and actual (though false!) claims with connections to violations of law (that the plaintiffs misunderstood or had no standing to challenge).
My deeper objection is that this distinction is pretty uncompelling to normal people, and in ways that undermine your point. The precise legal theory and the relevance of specific claims to it is interesting, and it does genuinely matter when someone submits unmoored claims or specious legal theories to the court, and hurt when people aim pants-on-head-crazy ones at you. There's reason that courts are more likely to assign sanctions for 11(b)2 than 11(b)3 for reason, and it's not just that judges can evaluate those questions more easily and review them more reliably, or even that lawyers can.
But it would be kinda nice to know that the lawyers in question had checked if a Pakistani Airlines pilot had actually seen a missile anywhere near an SM-2 (or even what his or her name was) or what if any conclusion the FBI had pronounced after investigation, or what the relevance of PCR for canned tuna would be, or if Wisconsin drop boxes were operated in violation of state law, in addition to whether this mattered for the underlying question of law and whether they are sufficiently specific. That's the more conventional read of "the attorney has made reasonable efforts to investigate it themselves to make sure they're not just re-shoveling whatever bullshit their client dropped on their lap". This is part of Rule 11 (b3, to be precise), and it's possible to get sanctioned for failing this test, but it's extraordinarily uncommon and the standard is extremely forgiving. (see discussion here under "Reasonable Inquiry").
There are reasons this stance is so forgiving, and I can be persuaded that fair and open access to the courts is worth the costs of spurious lawsuits. But if your selected example of one includes a full pepe silvia of questionable newspaper clippings and depends heavily on a couple bullet points that are little more than "Trust This Rando Pro Se Litigant, he totally has retired navy and FBI people dropping hot tips, bro," it runs into problems. Or where the complaint, across three amendments, launders claims because the PhD biologist must have missed the people citing him.
You're probably even right in the sense that the people with their names on the complaint are totally hands-clear. Krick doesn't have Stalcup on the complaint or submitting an affidavit; Amin merely hired rather than submitted as an honest expert witness Dr. Barber. But it's not like the behavior in O'Rouke was better where it followed that trick: the initial complaint launders several specific factual complaints originating from Johnson v. Benson in Detroit. But we recognize that the plaintiffs were on notice for O'Rouke when we seldom do the same for people with comparably bad factual allegations.
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