This blog is young, yet we have already begun to see strands of inordinate, extravagant, and consumptive bias converging in Jon O. Newman's Opinion for the United States Court of Appeals for the Second Circuit in the case of Robert J. Groden v. Random House, et al. One is almost tempted to define it, after the fashion of law professor Cass Sunstein, as a "crippled epistemology".
We have seen it in Judge Newman's presiding over Mr. Groden's appeal despite its subject matter and his past relationship with the late Chief Justice Earl Warren, who chaired the Warren Commission's inquiry into the assassination of President Kennedy.
We have seen it in the highly selective, and at times misleading, reporting of the facts of the case. Most egregiously, this included the total omission of any mention of Groden's competing book and video products, the harm to which motivated his seeking vindication of his rights in the first place.. This was no mere "out-of-sight, out-of-mind" self-deception but a deliberate refusal to acknowledge the anti-competitive nature of Random House's ad campaign for Case Closed.
We have seen that the campaign stemmed from purely commercial motives, e.g., Random House's inability to promote their book without sensationalizing their pitch, and their awareness of the impending publication of Groden's "The Killing of a President."
It is fair to conclude that Newman was unhappy with the nature of the case before him, so here is one of the ways he simply changed it: Imposing a black out of Groden's competing products enabled Newman to opine disingenuously that Random House's ad campaign said nothing false about Posner's book, while he neutralized its false attack against Groden through the complete omission of inconvenient facts. As our examination of the quote issue (here and here) revealed, this was not a conclusion reached in good faith but only by refusing to honestly and fully engage Groden's fundamental standpoint in the argumentative discourse. (In a future discussion, I will show how, according to Second Circuit and Supreme Court precedents that were raised on Groden's behalf, where an advertisement conveys two or more meanings, one of which is true and the other false. then it shall be construed against the advertiser and in favor of the complaining party, so that, even if the Random House campaign boldly stated Posner's thesis, and even if it conveyed the nature of his own book, it was nonetheless a misleading attack against a competitor and a misrepresentation of the latter's views. This is a foundational concept, a major underpinning of Groden's argument, that warrants extensive exposition.)
We have seen contradictions in the factual assertions contained in the Record on Appeal which, under circumstances involving different parties, would have mandated a reversal of the lower court's grant of summary judgment in favor of the defendants. These included evidence regarding the quote that Random House attributed to Groden in its ad campaign, and conflicting copyright notices that Newman never deigned to acknowledge.
We have seen some of the legal arguments incongruent with the Opinion omitted from the judge's discussion, while others were cavalierly dismissed by him as "fanciful" or inapposite.
We have seen some of the lower court's purported findings of fact adopted by the Second Circuit without the de novo scrutiny that the Court of Appeals' own standards of review required.
Even at this early stage, one is impelled toward grave doubts about the personal and professional ethics, character, honesty, integrity, and wisdom of Judge Jon Newman in presiding over an appeal that, while serving as Chief Judge of his court, he could well have assigned to another member, if not for any concerns over substantive fairness to Mr. Groden, then solely for the sake of public confidence in his institution. Through selective perception of a case that has not been assigned to him, but which he has specially reserved for himself to decide, a man possessed of certitude in his own prestige and credibility may nonetheless render himself vulnerable to the savagery that I am now only too pleased to perform. Mr. Groden's case came before then-Chief Judge Newman neither at random, nor in the normal course of his court's business. He reached for it, grabbed it, and held it closely to his seething breast. As we shall continue to see, this man intended to inflict grave and irreparable harm upon both Robert Groden and the attorney who represented him. He meant to make a statement about what Mr. Groden represented to him -- a howling wail of outrage against a powerless individual who had deeply offended his affection and loyalty toward a valued mentor and benefactor, Earl Warren -- a statement that betrayed his pernicious and irresistible bias.
This February 2010 cycle of “The Lies of the Second Circuit” blog has also suggested a frightening reality about the real-world functioning of the federal courts and the practice of law, one that I introduced in my “opening statement.” What happens when judges lie? When they knowingly, intentionally, and deliberately falsify the facts of their reported decisions for the purpose of deceiving the public, the press, and other courts? Beyond the obvious effects upon those entities, we must consider the effects upon the parties and attorneys immediately involved in the dispute at bar, regardless of which has emerged victorious, and upon the law profession as a whole. I have pointed to a dark secret that no trial attorney who values his license to practice law can afford to publicize, let alone protest. It is a type of official malfeasance so blatant, so obvious, as to impart a clear warning signal to attorneys that a judge's decision is neither mere error nor abuse of his discretion, but is actually intended to foreclose any attempt at remediation. It is a form of coercion. It requires the tacit acquiescence of lawyers appearing before such a judge, who realize his purpose, but who also recognize that exposing him as a liar would entail social costs that the federal judiciary is averse to to absorbing, and would further entail serious risk to their careers. Just as there are princes of Wall Street, so are federal judges the life-tenured princes of the law profession. Just as some financial institutions are deemed "too big to fail," the institution of the federal judiciary is bigger than any single party, attorney, or judge, and some judicial proceedings are too warped to be corrected without the risk of embarrassment, ridicule, and derision. Without the aid of significant political and financial resources, it is practically impossible to accuse a life-tenured federal judge of intentionally lying to shape the outcome of a case, even if an incontrovertible black-and-white court record proves that he or she did lie.
Still, we have far to go, and I regret to forewarn readers that the trend will only worsen. I have merely scratched the surface of the mentally and morally sick frolic that the federal judiciary made out of thrashing a well-known critic of the Warren Commission. The studied craftsmanship -- the self-absorbed assurance of their own excellence -- that they dedicated to this enterprise clearly entailed much advance brooding and creative energy. The case on the whole offers a master class in judicial evasion and obfuscation. It demands commensurate patience and care to dissect and expose the anatomy of a cruel hoax, and to understand that its import ranges beyond the specific outcome of one man's lawsuit. For this reason, I posted hyperlinks to the "Justice at Five Points" video series on the sidebar of this blog so that those who are impatient to confirm their fears of a conspiracy in President Kennedy's assassination may gratify themselves on that score without further delay. Since I will get to the assassination itself in due course, there is no need for haste in exposing this sham. What I am documenting here is no mere perversion of critical discussion in the context of adjudication, but a calculated scheme which, in future history's overview of the assassination controversy, may well be regarded as having deprived the survivors of that event our last opportunity to obtain a small measure of closure.
For now, I prefer to dwell upon the method, the cunning, and the preening conceit of these pompous, life-tenured pigs who sit on our most powerful courts. Having mixed the cocktails and passed around the hors d'oeuvres, having served slivers of their diseased brains for an appetizer, my intention -- figuratively speaking, of course -- is to marinate them, rub their skins with many freshly crushed cloves of garlic, roast them slowly to conserve their juices, baste them with a fruity sauce , prepare a generous array of side dishes, concoct a flavorful sherbet to refresh the palate between courses, carefully peruse my cellar to select a fine wine, ensure that the cupboard is well-stocked with after-dinner mints. I have set the table for a long and elaborate affair. Hannibal Lecter or Rachel Ray? I am merrily preoccupied with my hosting duties, so you decide. In any case, let us banquet together.
These are people who lied to you. These are people who, by consciously blocking you from discovering the difference between truth and fantasy, represent in microcosm the triumph of a secular faith over reason and discourse. These are people who, like thieves in the night, stole your right to know, to think for yourselves, to decide, and to act. In other words, they stole from you the right of self-determination that our democracy supposedly guarantees.
To this very day, they refuse to acknowledge the wrong that they did and the harm that it caused -- quite to the contrary, they proudly flaunt their little gem of legal bunkum and continue to extol the dissembler who showed them how it's done.
The Constitution of the United States provides that, once federal judges are appointed by the President and confirmed by the Senate, they may continue to serve for the duration of their lifetimes. Once confirmed, it is nearly impossible to remove them from office.
"The Lies and Fallacies of the Second Circuit" blog will return during late March 2010.
Relevant Links:
Sunstein and Vermeule, “Conspiracy Theories” (monograph)
Guilty of Misleading the American Public
"We'll Be Here For the Rest of Our Lives", Part Two
The Confession of Sir Harold Evans, Former President of Random House
What Did They Know, and When Did They Know It?
Video Exhibit 22
Copy-Right, Copy-Wrong, and Intentional Fraud by the U.S. Court of Appeals
Subscribe Now
About Me
- Roger Bruce Feinman, J.D.
- New York, New York, United States
- Roger Bruce Feinman practiced law in New York for 18 years after having worked for WPIX-TV News and CBS News, whose top executives he challenged over the journalistic ethics of their Warren Report documentaries. He worked closely for many years with Sylvia Meagher, late author of "Accessories After the Fact," who also indexed the published hearings and exhibits of the Warren Commision and the House Select Committee on Assassinations; he waged FOIA battles against government agencies; and he wrote "Between the Signal and the Noise," a study of popular conspiracy theories that has been assigned reading in college courses. As an attorney, he focused on insurance, reinsurance, and media errors & omissions litigation in trial and appellate courts. His views on the medical evidence in John F. Kennedy's assassination have been published in the Congressional Record, and he has lectured on the case before large audiences in Chicago, Dallas, Pittsburgh, and Washington, D.C. He studied the vibraphone with the late Ray Alexander, a former George Shearing sideman; played professionally for several years; and still dabbles in electronic musical remixing.