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October 24, 2023
Jenna Ellis latest attorney to plead guilty (and avoid jail time) in Georgia election case
Serious students of the modern criminal justice system know that many, many more criminal charges get resolved through plea deals than through full trials, and the high-profile Georgia election fraud case is now showcasing this reality in recent weeks. Specifically, after three other recent guilty pleas to reduced charges, this new AP article reports on another plea from another lawyer. Here are some details:
Attorney and prominent conservative media figure Jenna Ellis pleaded guilty on Tuesday to a reduced charge over efforts to overturn Donald Trump’s 2020 election loss in Georgia, tearfully telling the judge she looks back on that time with “deep remorse.”
Ellis, the fourth defendant in the case to enter into a plea deal with prosecutors, was a vocal part of Trump’s reelection campaign in the last presidential cycle and was charged alongside the Republican former president and 17 others with violating the state’s anti-racketeering law.
Ellis pleaded guilty to a felony count of aiding and abetting false statements and writings. She had been facing charges of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act and soliciting the violation of oath by a public officer.
She rose to speak after pleading guilty, fighting back tears as she said she would have not have represented Trump after the 2020 election if she knew then what she knows now, claiming that she she relied on lawyers with much more experience than her and failed to verify the things they told her. “What I did not do but should have done, Your Honor, was to make sure that the facts the other lawyers alleged to be true were in fact true,” the 38-year-old Ellis said.
The guilty plea from Ellis comes just days after two other defendants, fellow attorneys Sidney Powell and Kenneth Chesebro, entered guilty pleas. That means three high-profile people responsible for pushing baseless legal challenges to Democrat Joe Biden’s 2020 election victory have agreed to accept responsibility for their roles rather than take their chances before a jury.
She was sentenced to five years of probation along with $5,000 in restitution, 100 hours of community service, writing an apology letter to the people of Georgia and testifying truthfully in trials related to this case.
The early pleas and the favorable punishment — probation rather than jail — could foreshadow similar outcomes for additional defendants who may see an admission of guilt and cooperation as their best hope for leniency....
Before her plea, Ellis, who lives in Florida, was defiant, posting in August on X, the social media platform formerly known as Twitter, “The Democrats and the Fulton County DA are criminalizing the practice of law. I am resolved to trust the Lord.” But she has been more critical of Trump since then, saying on conservative radio in September that she wouldn’t vote for him again, citing his “malignant, narcissistic tendency to simply say that he’s never done anything wrong.”...
Powell pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties. Powell will serve six years of probation, will be fined $6,000 and has to write an apology letter to Georgia and its residents.
Chesebro pleaded guilty to one felony charge of conspiracy to commit filing false documents just as jury selection was getting underway in his trial. He was sentenced to five years’ probation and 100 hours of community service and was ordered to pay $5,000 in restitution, write an apology letter to Georgia’s residents and testify truthfully at any related future trial.
A lower-profile defendant in the case, bail bondsman Scott Graham Hall, pleaded guilty last month to five misdemeanor charges. He was sentenced to five years of probation and agreed to testify in further proceedings.
Because I do not know Georgia law well, I am unsure if it means much that Ellis and Cheseboro pleaded guilty to felonies, while Powell and Hall pleaded guilty to multiple misdemeanors. For the attorney criminals, one concern has to be whether they might lose their law licenses (though I am unsure where any of these lawyers are barred).
In addition to law licenses, I cannot help but wonder about the full range of collateral consequences — both formal and informal — that these particular convicted individual now face. As a matter of federal law, I do know that the felony/misdemeanor distinction is quite important with respect to gun rights: under federal criminal statute 18 USC 922(g)(1), felons are forever prohibited from possessing a firearm (or ammunition). So Ellis and Cheseboro have now lost forever any and all gun rights (except maybe in the Third Circuit given its Second Amendment Range ruling), whereas Powell and Hall can keep their gun under federal law.
October 24, 2023 at 10:44 AM | Permalink
Comments
Doug, did you even read what the actual alleged wrongdoing is? She allegedly made false public statements. That's it, and something that is constitutionally protected. To call Jenna Ellis a "criminal" is a disgusting affirmation of tyranny.
The Vote for Hillary meme guy got seven months. If there were any justice in this world, Merrick Garland, the judge and every prosecutor involved would either accept permanent exile or spend the rest of their lives in prison.
Posted by: federalist | Oct 24, 2023 1:35:37 PM
federalist: she pleaded guilty to and has now been convicted of a crime, and I am not aware that she asserted a constitutional defense. In other settings, that is enough for me to think the label "criminal" is a fair descriptor. I know the VERA Institute and some others say that we ought not be using labels like criminal or felon to describe anyone, but I do not sense that is the point you are making. Do you think "convict" would be a better descriptor?
Posted by: Doug B | Oct 24, 2023 2:12:23 PM
She was faced with a politicized prosecution and a bad judge/jury pool. She caved. This reeks of tyranny. And we have dutiful law profs toeing the party line. It's repulsive.
You can call the Hillary meme guy a convict too, and that would be like calling Alexander Solzhenitsyn a convict.
Posted by: federalist | Oct 24, 2023 4:08:40 PM
Not toeing any line, just trying to report the facts. I get that you do not like the facts, and you should write an article or a law journal piece explaining why you think this is tyranny but why the decision by other persons to plead guilty in the face of a politicized prosecution and a bad judge/jury pool is not.
I'd always be eager to see a fuller accounting of your views somewhere more fitting for extended elaboration than blog comments. And yet, it seems, federalist, that you only want to make your points in this limited forum. Too bad.
Posted by: Doug B. | Oct 24, 2023 4:27:52 PM
Doug, this case if so obviously political it screams so. Just "reporting the facts" is baloney. The statute in question is O.C.G.A. 16-10-20:
A person who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.
Claiming the election was ripe with fraud (i.e., "the matter") shouldn't result in a criminal conviction for anyone.
Posted by: justme123 | Oct 24, 2023 8:02:33 PM
Thanks for citing the felony statute applied here, justme123. So you know, I consider all criminal charges as political in some sense, and I agree that this case is more "political" than most. But even a political case that results in a guilt plea still produces a criminal conviction.
Is it your view, justme123, that this criminal statute is inherently problematic or is it how it was employed in this case? Do you share federalist's view that this prosecution was unconstitutional? Do you think Ellis and other others should have pressed constitutional claims rather than plead guilty? Do you acknowledge that there may be some (many?) people currently in prison who pleaded guilty to suspect and even unconstitutional charges because they feared the system would not treat them fairly?
Posted by: Doug B | Oct 24, 2023 9:13:36 PM
“People who shut their eyes to reality simply invite their own destruction, and anyone who insists on remaining in a state on innocence long after that innocence is dead turns himself into a monster.”
This is a quote by the late-great writer James Baldwin. It is particularly relevant to those who assail the prosecution of Ms. Jenna Ellis as purely political. That the people who share this viewpoint think that her prosecution is political and that she is somehow innocent, or a victim, but take a completely alternative view of the political nature of the 'War ob Drugs' and the carnage that it left behind in the inner-cities only serves to validate the dangerously delusional state of the people who share this ideology.
Posted by: Eric A. Hicks | Oct 25, 2023 8:14:14 AM
Eric, you are a moral pygmy. Drugs are really really bad for society. That people may not have the perfect answer for the scourge is not the same as prosecuting someone for pure speech. I see those who peddle poison to our children as worthy of punishment--you may not, but only fascist thugs believe that Ellis' prosecution is at all legitimate. And to see a law prof dutifully reporting the facts (while ignoring the real issue here) is repulsive. I challenge ANYONE in here to find ANYTHING I've ever said that points to a conviction as an argument against innocence. I don't do it.
And Eric, how do you get around the First Amendment? What if DJT gets to be president and prosecutes you for cheerleading the abuse of Ellis' 1A rights on some flimsy reading of a statute?
Posted by: federalist | Oct 25, 2023 10:00:42 AM
Federalist, casting insults at those with whom you disagree is boorish to the say the least and does nothing to further your arguments. I think you need to reread "How to win friends and influence people" by Dale Carnegie.
Posted by: anon14 | Oct 25, 2023 10:13:14 AM
Federalist writes that Ellis in not really guilty of anything and took a plea because she "was faced with a politicized prosecution and a bad judge/jury pool [so] she caved." I have represented thousands of clients over the years. Many of those who have pleaded guilty have given the same pathetic excuse for doing so.
Posted by: public defender 22 | Oct 25, 2023 10:22:19 AM
When undertaking a comparative analysis of moral and legal outrages, cases such as that of Jenna Ellis and others who choose to hook their wagons to those of famously amoral, scurrilous frauds, so as to gain personal power, fame and fortune, justifiably reap their own whirlwind.
In a previous post on October 19, 2023, Jim Gormely commented upon and cited the Allen case (Allen v. Illinois, 478 U.S. 364 (1986)), in which a citizen was accused of sexual assault, which ultimately resulted him being subjected to a lifetime of 'civil committment' and imprisoned in what we laughingly call a 'hospital'. He was provided no trial and the prosecutor admitted that there was a clear absence of evidence, and refused to prosecute. I find that case to be far, far, far more legally egregious and morally reprehesnible than that to which poor, crying Attorney Ellis has been subjected. My heart does not bleed for Atty. Ellis, a trained legal professional who should have known better, but instead, chose to enter the MAGA/Trump universe at her own peril. I believe that Ms. Ellis entered into Mr. Trump's circle with eyes wide open. Her claim that she was 'duped' or 'misled' is quite suspect.
We should all wonder aloud and often why 'federalist' and others of his ilk remain eerily silent on these other far more egregious examples of moral and constitutional outrage, such as the examples provided by myself above as well as that provided by Mr. Hicks, re: the War on Drugs.
Posted by: SG | Oct 25, 2023 10:33:38 AM
One can try to spin this as a First Amendment case, but the First Amendment is not absolute. One of the things that is not protected by the First Amendment is criminal conduct. So claiming the First Amendment as a defense in this case is really circular reasoning. Further, there is no First Amendment right to knowingly make false statements.
Taking this out of the election context, if an average person were to make a comment that Jim Beam Construction is spending all of their money on alcohol for the top executives and thus is unable to meet its contracts, that would potentially be slander, but not a crime under the Georgia statute. If, on the other hand, representatives of a another construction construction company which was bidding for a contract against Jim Beam were to submit false information regarding the financial solvency of Jim Beam to the government agency awarding the bids in an attempt to influence that agency's decision, that would seem to fit within the terms of the statute.
Taking it back to the charges against Ms. Ellis, the allegations (which she now acknowledges were true) are closer to that second. The false information was being given to government officals with some degree of supervisory authority over the election. That seems to bring that conduct within the statute and take it out of any claim of First Amendment protected speech.
Posted by: tmm | Oct 25, 2023 10:41:08 AM
anon14--just responding in kind.
public defender: This is a prosecution for protected speech. That you seem to be ok with that because (you assert) that a lot of people get caught in the maw of the criminal justice system says a lot more about you than it does about me. I don't like prosecutorial abuse against anyone. And I have said so forcefully here.
tmm: "One can try to spin this as a First Amendment case, but the First Amendment is not absolute. One of the things that is not protected by the First Amendment is criminal conduct. So claiming the First Amendment as a defense in this case is really circular reasoning. Further, there is no First Amendment right to knowingly make false statements."
This is so blindingly stupid. First of all, there is a First Amendment right to make false statements (and that's assuming that anything that Jenna Ellis said is provably false). There's you know, that case about stolen valor. There's also that Ohio election case, where some 'rat tried to silence speech. Under your argument, the state could criminalize any statement, and voila, no First Amendment right. You are an idiot.
Posted by: federalist | Oct 25, 2023 10:53:32 AM
Thank you SG. You are correct in the need for "wondering aloud" the positions taken by federalist and others who spew the foolishness while trying to garb it in some kind of constitutional righteousness. These positions are not normal and we need to collectively call it out for what it is. So, again, thank you.
federalist merely validated the point that I was making. We all can agree that drugs are reprehensible. However, where we seem to (dangerously) part ways is that trying to conspire with others to thwart a democracy is not reprehensible.
Who poses the greatest threat to the life of someone such as Ms.Ruby Freeman or Ms.Shaye Moss---those peddle a dangerous lie which, has completely uprooted the lives of these women and many others who only did their jobs by exposing them to constant danger, or the drug dealer? What federalist and others conveniently and willfully ignore is that the irresponsible actions of Ms. Ellis exposed these people to constant danger and/or possible death.
There is a 'sleight-of-hand' played by individuals such as federalist where only 'certain' crimes matters and those who share a 'certain' belief are victims of political persecution when they spout this nonsense and engage in criminal behavior.
This is the worst kind of delusion. It's not only extremely dangerous, it is very reckless. Then again, I know perfectly well the America that they envision or would like to return to.
Posted by: Eric A. Hicks | Oct 25, 2023 10:58:55 AM
Eric, that really is a tour de force.
"However, where we seem to (dangerously) part ways is that trying to conspire with others to thwart a democracy is not reprehensible." Where were you when the DOJ and the intelligence apparatus were suppressing information about Hunter's laptop? Where were you when Joe Biden was egging on a Logan Act investigation of Michael Flynn? Where were you when ballot integrity laws were being tossed out the window? Where were you when the FBI was getting bogus FISA warrants to spy on a campaign? Or when the Al Gore campaign was attempting to toss military ballots on the flimsiest of excuses?
And where were you when Chuck Schumer was issuing veiled threats to SCOTUS judges?
Posted by: federalist | Oct 25, 2023 11:28:26 AM
federalist, if there is such a clear First Amendment defense in this case, why did Ellis and others plead guilty and not raise and pursue such a legal defense? Are you asserting that Georgia courts cannot be trusted to protect clear constitutional rights?
Posted by: Doug B | Oct 25, 2023 12:19:50 PM
1. Why should she be different than any other lawyer who lies for her client (in other words, all of them)? Sure she is a moral reprobate, but that’s not illegal or we would have a a world free of defense attorneys. 🤔
2. anon14-You just happened to miss the word “delusional,” eh?
3. Doug, this strikes me a lot like the Derek Chauvin case. He was clearly innocent, but the fix was in. Even the jury admitted, unknowingly, that Chauvin is innocent.
Posted by: TarlsQtr | Oct 25, 2023 12:39:11 PM
Doug, that is a non-argument argument. Given the reality of facing prison time and the time it takes to be vindicated, a small fine and no time is just what the doctor ordered. The allegation was that she made false statements. That's it. Bogdan Vechirko took a deal too, and even you admitted that the prosecution was ridiculous.
Like I said, people belong in prison, and one of those people is not Jenna Ellis. Fani Willis should be put in prison for the rest of her life.
Posted by: federalist | Oct 25, 2023 12:52:13 PM
Master Tarls: I am sure I have heard Senator Warren, Michelle Alexander and others assert that our criminal justice system is rigged against certain persons, and it now seems you share their view. I believe federalist and Bill Otis have both indicated they view Chauvin as guilty, though I may mis-recall their prior comments. But if Chauvin is "clearly innocent," is this a matter on which you would urge the Supreme Court's intervention?
Posted by: Doug B | Oct 25, 2023 12:58:21 PM
Tarls,
Come on… you can not be serious. You’re specious ‘statement’ is an all too-obvious attempt to change the subject and side-step any defense of federalist’s weak and legally dubious argument. You can do so much better.
Posted by: SG | Oct 25, 2023 1:02:10 PM
federalist: Ellis will carry the stigma for life and all sorts of collateral consequences with a felony conviction. She is subject to being disbarred, to losing her gun rights, her voting rights and facing all sorts of other lifetime problems. And asserting a First Amendment defense could and would be done while free via a motion to dismiss and she could possibly get the same deal if this motion were denied. I have not followed the litigation closely, but why not at least seek a legal ruling via a motion to dismiss if there is a clear legal/constitutional defense? Among other things, a plea precludes her from mounting such a claim on appeal (or perhaps in other setting). If she brought the motion an lost --- or maybe plead while reserving the right to pursue a 1st A claim on appeal --- she could have sought to vindicate these rights. Are you suggesting that the coercive powers of the CJ system lead people to give up obvious and winning constitutional defenses?
Finally, it is telling that, as you decry political prosecution of lawyers, you also call for the prosecution of lawyers you dislike (with LWOP punishment).
Posted by: Doug B | Oct 25, 2023 1:09:53 PM
When you violate First Amendment rights via prosecution, you effectively commit armed kidnapping. Seems like a fair punishment to me.
Doug, she was prosecuted for making public statements deemed to be false by a partisan prosecutor. If you're ok with that, own it. Don't obfuscate.
Posted by: federalist | Oct 25, 2023 1:53:28 PM
Tarls, you write "Why should she be different than any other lawyer who lies for her client (in other words, all of them)? Sure she is a moral reprobate, but that’s not illegal or we would have a a world free of defense attorneys" You forgot to say that we would also have a world free of prosecutors.
Posted by: anon | Oct 25, 2023 1:57:38 PM
Tarls--what is your basis for saying Chauvin is "completely innocent." That drugs contributed? Recall that he did have a handcuffed Floyd on the ground and was putting a significant amount of weight on him.
The real injustice was the prosecution of the other cops.
Posted by: federalist | Oct 25, 2023 2:53:05 PM
Not trying to obfuscate, federalist. Trying to understand why someone with a strong First Amendment claim would not want to press it rather than be subject to an (unconstitutional) felony conviction. In part because I do not know Georgia law or all the facts, I have not followed the case closely so far and I figured any strong constitutional defenses would be subject to motions and briefing. But I am not aware of any such motions, and I am trying to understand why if there were strong arguments available. Do you have an answer? I read that Ellis raised $200K for her defense, which seems like plenty for bringing a motion to dismiss. Why did she not do so? That's what I am trying to figure out before making any assessments -- other than that she has now pleaded guilty to a crime and is a felony convict.
Posted by: Doug B | Oct 25, 2023 2:56:40 PM
It takes a lot of time and fortitude to fight. The process can be the punishment, and the exit door was easy. She was prosecuted for making allegedly false public statements. This is a problem, and we have law profs just casually calling someone subjected to this a criminal. It's like calling Alexander Solzhenitsyn a criminal.
Would you want to fight for your 1A rights after giving up your home (for legal fees) while sitting in a prison cell?
Why don't you look at what the allegation of wrongdoing is? This isn't hard.
Posted by: federalist | Oct 25, 2023 3:38:05 PM
And you can also read what Andrew McCarthy has to say about this . . . .
Posted by: federalist | Oct 25, 2023 3:40:32 PM
McCarthy's column is paywalled from me. Does he claim she has a winning 1st A claim? Does he compare Ellis to Solzhenitsyn? I also see there is a WSJ editorial piece on the topic also paywalled from me. Does the WSJ claim she has a winning 1st A claim? Does the WSJ compare Ellis to Solzhenitsyn?
And why would Ellis have to sit in a prison cell to raise a 1st A defense to these charges? She was free on bail and would not be imprisoned simply for raising a constitutional defense to the charges. I am not a First Amendment expert or Georgia law expert, but I want to believe that Georgia courts would take soberly and seriously a First Amendment defense (and allow it to be litigated without putting her in prior while pending). But Ellis did not bring the claim, she instead decided to plead guilty to a felony and suffer the significant consequences of a guilty plea rather than just make a motion to dismiss. Do you think the defense counsel was ineffective? Might you author an amicus brief to the judge to explain your view that the conviction is unconstitutional?
If this is not hard, why did the lawyers blow this?
Posted by: Doug B | Oct 25, 2023 4:47:40 PM
Also, federalist, was I right to remember that you disagree with the view that Chauvin is "clearly innocent"?
Posted by: Doug B | Oct 25, 2023 4:48:52 PM
Brother federalist:
You asked 'Master' Tarls the following:
Tarls--what is your basis for saying Chauvin is "completely innocent" ?
We should note that that, at least til now, Tarls has chosen not to answer. (Perhaps he'll chime in soon). I suspect his posting was merely an attempt to lead others away from your original argument re: Atty. Ellis, with the hope that others would follow him down the ol' rabbit hole. I doubt that he truly believes that Chauvin was innocent. That would be crazy. And this ploy only lends credence not to you, but to your detractors. It's as if he is saying "federalist...you're losing so let me give you a hand". But you do not need his assistance. You do a perfectly fine job all on your own, although totally wrong.
Posted by: SG | Oct 25, 2023 6:13:53 PM
Federalist,
Well, first, the jury said they found him guilty for what he “didn’t do,” CPR after he became non-responsive.
The DA’s own expert (Dr. Baker) said he would have written in the autopsy that he died from the fentanyl if found in other circumstances, such as in an apartment. There was no damage to his airway.
Video has shown Chauvin wasn’t on the neck.
Baker told a reporter in a deposition that he felt pressure, as this was a case that “ends careers.”
The judge has said that every case before a judge is about “racial justice.”
The fact alone that Floyd had a lethal dose of fentanyl is “reasonable doubt.”
Posted by: TarlsQtr | Oct 25, 2023 7:06:04 PM
Master Tarls, contending that a jury might have had a factual basis to have "reasonable doubt" is a lot different that asserting someone is "clearly innocent." Just sayin'.
Posted by: Doug B | Oct 25, 2023 8:17:13 PM
He is, Doug. When the state’s witness says he would have declared it an overdose in any other setting, says there was no damage to the airway, and that he felt public pressure to do what was expected because it “ends careers,” what other conclusion can you come to?
That’s cheesy, Doug. I said the overdose ALONE was enough for “reasonable doubt.” (Do you disagree?) I believe it all together cinches it.
When the jury goes on Don Lemon and states unequivocally that they found him guilty of what he “didn’t do,” it’s clear they were not finding him guilty of what he was accused of doing, killing a man. I’ve watched the video.
Put this in a different situation, where the races were reversed and the cop was the murdered one, you and the defense attorneys here would be screaming.
Posted by: TarlsQtr | Oct 25, 2023 9:50:56 PM
SG,
You suspect a lot, with a perfect record of being wrong. You are worse at it than correcting grammar.
Posted by: TarlsQtr | Oct 25, 2023 9:52:08 PM
Here are the videos.
https://www.dailywire.com/news/new-revelations-prove-yet-again-that-derek-chauvin-was-an-innocent-man-railroaded-in-the-name-of-racial-justice
Posted by: TarlsQtr | Oct 25, 2023 9:54:17 PM
I almost never scream, Master Tarls, so I doubt your prediction of my screaming is sound in any legal context.
As for law, when one create a peril and/or has a duty to aid, criminal liability for failing to act has a long legal history. But I am not sure a juror's talk-show sound bite conclusively proves anything about the jury's decision-making (especially if the juror meant getting off Floyd's neck was what he criminally "didn't do" so he could get medical aid). Also, juror comment may reflect view that failure to aid Floyd served as proof to them of the key mental state under Minn law of "evincing a depraved mind, without regard for human life."
I know Matt Walsh (and apparently you) long claimed the only proper verdict would have been an acquittal, but the unanimous jury and multiple judges (and federalist and Bill Otis) have reached a different conclusion. (Quoting Bill from C&C: "The state put on enough evidence that the major (or possibly the only) cause of death was asphyxiation.") I have not reviewed all the evidence nor heard all the witnesses myself, so I lack the complete factual basis to make a conclusive judgment.
Lots of folks certainly share your view, in a variety of settings, that racial biases and public pressures produce wrongful convictions, so your lack of faith in our criminal justice system is not unique. I trust your view here makes you more understanding of many others' claims of innocence and criminal justice errors and dysfunction even in the face of a guilty verdict.
Posted by: Doug B | Oct 25, 2023 10:27:33 PM
Doug,
I expected a law professor to get hyperbole.
It wasn’t a juror. It was several stating that it was a “light bulb.” Sure, it may show a “mental state,” but merely being a bad person doesn’t equal murder. Did his actions kill Floyd? There is no such conversation if the jury had a reasonable belief that he did.
But the state’s own doctor says he would have called it an overdose in any other setting. How is that possible? We can discuss “clearly innocent,” if you want, but tell me how such a statement is not ten times more reasonable doubt than needed?
Bill and federalist are wrong.
Posted by: TarlsQtr | Oct 26, 2023 12:10:13 AM
Tarls,
In respect to your analysis of the Chauvin case (which is not the subject of this thread, but rather is in regards to poor, weepy Atty. Ellis and her self-destruction): It is clear that you suffer from confirmation bias, which as we all know is the tendency of people to favor information that confirms or strengthens their beliefs or values. Once you have reached your misguided conclusion, it is difficult to dislodge once affirmed. Clearly, the "state's own doctor" did not convince the jury beyond a reasonable doubt that Mr. Floyd died of an overdose, nor that the level of his intoxication was the primary cause of death, nor contributed to his death moreso than Mr. Chauvin's actions.
Posted by: SG | Oct 26, 2023 7:37:44 AM
SG, You deserve a standing ovation for, at least, trying to pull the likes of Tarls and federalist from that dangerously delusional reality that plagues what I would imagine to be otherwise decent men.
James Baldwin once said,
“I know that people can be better than they are. We are capable of bearing a great burden, once we discover that the burden is reality and arrive where reality is.”
The dangerous aspect of this ideology, even though I suspect that both know that most of their claims are absurd, is that there are those who harbor these beliefs and embrace them as a core of their very existence. I truly suspect that the two of them know better but the task for them is to join the realm of reality where sensible people reside and leave 'that place' of historical fiction behind.
Posted by: Eric A. Hicks | Oct 26, 2023 8:21:29 AM
Tarls, we'll have to agree to disagree--there can be other causes to a death that a jury is allowed to consider, unless the evidence negates causation so that no reasonable juror could find causation.
Doug, she was indicted for, in part, lobbying state legislators to issue a slate of electors. That's protected activity. It cannot form the basis of a conspiracy. You're being an ostrich.
Posted by: federalist | Oct 26, 2023 9:25:19 AM
Totally OT, but emblematic of the lying scum that populate the Biden Administration: https://www.powerlineblog.com/archives/2023/10/the-sullivan-rewrite.php
Posted by: federalist | Oct 26, 2023 9:27:58 AM
Master Tarls, the jury did not convict Chauvin of for "merely being a bad person." They convicted him of killing Floyd after a multi-week trial that centered on a video showing him unnecessarily having his knee on the neck of Floyd, who was handcuffed and lying face down on the street, for more than nine minutes. During that time, as I recall the evidence, Floyd stopped breathing while many people on the scene were actually screaming at Chauvin that Floyd had stopped breathing and needed medical attention.
The statement of the medical examiner at trial, as I recall, was that if Floyd had been found dead alone in a room, he would have concluded that the drugs in his system were the cause. But that statement does not contradict, nor demand having doubt about, his conclusion that, under the actually circumstances of Floyd's death, Chauvin's actions were a “substantial causal factor” in Floyd's death. In addition, I believe the prosecution presented other medical experts who stated the Chauvin's actions substantially contributed to the death. Many, many persons have been convicted (and even executed) on murder charges based on causation evidence much weaker than the evidence presented to the jury here.
In lots of advocacy about wrongful convictions, lots of advocates argue strenuously that the evidence has to raise doubt. The Richard Glossip case in Oklahoma is a good recent example, and he has been on death row now for 25+ years and has another execution date. But we generally trust juries to sort out these matters. Juries certainly have gotten judgments wrong, and I sense you and Matt Walsh and Tucker Carlson will always view the Floyd case as an example. I hope that gives you and them more respect for Glossip supporters, the BLM crowd, and so many others who more regularly complain about the biases and mistakes they see in our justice systems.
Posted by: Doug B | Oct 26, 2023 9:30:16 AM
federalist: lots of people get indicted on potentially unconstitutional charges (including now Hunter Biden). I have not commented on Ellis' full indictment, in part because the Georgia case seems like a mess with all sorts of defendants and all sorts of charges. But when a defendant pleads guilty to a charge, knowingly and intelligently, my first reaction is to assume that they have decided to admit they did something criminal in part because they (and their lawyers) do not think they have any winning defenses to the charge.
You, federalist, say she has a clear winner 1st A defense. Okay, I want to understand then why she did not assert this defense. Lots of CJ reform advocates reasonably say that people give up their rights under the pressure of time in jail --- that is a big part of the movement to end cash bail and even all pre-trial confinement. But Ellis was not in jail, and she could have readily brought a 1st A motion to dismiss without fearing being sent to jail. The collateral consequences of a plea to a felony seem MUCH worse than the challenge of seeking to assert her constitutional rights in a motion to dismiss, especially since she surely would have a former Prez and perhaps a whole national political party on her side. And they Georgia courts, I assume, would take constitutional claims seriously (and she could appeal all the way up to SCOTUS if needed, perhaps with help from the ACLU which is already complaining about the Trump gag orders).
Please know, I think there is a lot hinky (as well as political) in a lot of criminal justice systems' responses to recent political brouhahas. (And, as I trust you know, I think there is a lot hinky --- as well as political --- in a lot of criminal justice system's response to all sort of other matters of public concern.) But if someone like Jenna Ellis really cannot even raise what you consider winning constitutional claims simply in a motion to dismiss from the comfort of her home, how could you have any faith in any aspect of our criminal justice systems for those less fortunate and less popular than her?
Posted by: Doug B | Oct 26, 2023 9:43:16 AM
Doug, just read the indictment. There are two main issues: (1) notice that conduct is criminal and (2) that the 1A forbids prosecution. These are not hard concepts. Jenna Ellis has the right to make false statements (and it's unlikely that any of them are provably false). Post hoc justification (i.e., why didn't she do X) isn't a thing that saves the prosecution.
And if you think some Fulton County judge was going to take these issues seriously, you have another thing coming.
Posted by: federalist | Oct 26, 2023 10:13:25 AM
Why wouldn't Georgia judges take first amendment claims seriously? Are judges there, and elsewhere, so beholding to prosecutors that they provide no brake of the coercive powers of the state even for relatively powerful, prominent and wealthy defendants?
I am not trying to "save" a prosecution. I am trying to understand why you think even a defendant very well positioned to assert constitutional rights would (falsely?) plead guilty to a felony rather than even try to assert those rights. If you really think the power of prosecutors are so extreme and overwhelming that nothing can possibly balance that system --- even in the prosecution of a lawyers, former prosecutor, not in jail, with the support of a former Prez and a $200K defense fund --- then you really should be on the "abolish" team for all causes and all purposes since obviously nobody can hope to get a fair shake from this system. Put another way, how can any prosecution (or any guilty plea) be "saved" if this one should be abolished?
Posted by: Doug B | Oct 26, 2023 10:20:24 AM
Argh. Doug, the decision to charge is INDEPENDENT of the guilty plea, which may have been done for any reason. (Loss of nerve, whatever.) I am not in a position to know why Ellis pled guilty. And I think we both can agree that a prosecution that is based on 1A privileged acts (such as Mr. Novak's prosecution) is appalling. And can she trust a Fulton County judge? (You keep saying Georgia judges, but the trial court judges are subject to the voters of the county.) You are trying to talk about the "system" and what this case means for it. A question for another day--I will say this--no free society can last if there are prosecutions like this. Maybe Jenna Ellis isn't a believer in Second Amendment remedies, but others surely are. And once that genie is out of the bottle, heaven help us.
But you're here, being agnostic about the charges and putting up some weak defense of them. Do you think that lobbying state legislators to vote a slate of electors is the proper basis for a criminal charge?
Posted by: federalist | Oct 26, 2023 10:46:28 AM
I am not seeking to defend the charges, federalist, since I have not even read them. But if I were indicted by a prosecutor for what I say on this blog or for what I say in class or to a state legislator, I would seek dismissal based on the First Amendment before pleading guilty. And if I decided to instead plead guilty rather than assert an obvious constitutional defense, folks might quite rightly wonder why.
That is what I am asking and that you are not trying to answer, other than to suggest that we live in a police state with biased prosecutors and judges who care not a whit about the Constitution (and hinting that armed violence would be a justified response). For that reason, this seems exactly the time to discuss "the system" -- indeed, that seems the only thing that make this little case important among the million+ felony convictions prosecutors secure by pleas every year.
Posted by: Doug B | Oct 26, 2023 12:38:14 PM
Have not read them, but yet you label her a "criminal" . . . . obfuscate/evade all you want . . . .
There are people who simply aren't going to tolerate BS prosecutions . . . . it's that simple. Didn't say it was justified . . . .
Posted by: federalist | Oct 26, 2023 12:45:19 PM
Federalist, Ellis pled guilty to a felony. In my book that makes her a criminal. If you have another book, please share it with me; my clients would love to read it.
Posted by: anon13 | Oct 26, 2023 12:58:29 PM
Federalist, you write, "There are people who simply aren't going to tolerate BS prosecutions." What are they going to do, stamp their feet?
Posted by: Amy | Oct 26, 2023 1:00:01 PM
federalist, Jenna Ellis labelled herself a criminal by freely and voluntarily pleading guilty to a felony crime. I take her at her word, entered in open court, that she is acted in a criminal way. If you are deeply troubled with that label, you should inquire of her why she freely and voluntarily took it on. (Better yet, offer to be her lawyer to seek vacating her felony criminal conviction. As always, you love to talk a lot of bold ideas deep in blog comment behind a pen name, and yet never make any effort to write them up with any rigor or accountability.)
Posted by: Doug B | Oct 26, 2023 1:27:04 PM
Anon13--so when prosecutors deal with actual evidence of innocence by pointing to a guilty plea, that's ok? Not in my book. Was Bogdan Vechirko a criminal?
Amy, we live in a country awash with guns. People may, you know, decide to fight lawlessness with violence. We've already seen it, right? How close was Brett Kavanaugh to being murdered?
Posted by: federalist | Oct 26, 2023 1:28:35 PM
federalist: Bogdan Vechirko never pleaded guilty to any crime (his charges were dismissed, I believe), but Jenna Ellis did plead guilty and to a felony that carries all sort of collateral consequences. That seems like a notable and significant distinction to me.
Posted by: Doug B | Oct 26, 2023 1:57:26 PM
First of all, Doug, if a prosecution never should have been brought in the first place, it's hard to fault the defendant subjected to an unfair government action for cutting his or her losses. It's not a voluntary choice at all. So are you telling me that people who pled guilty who are proven innocent should you know, stay in jail?
Vechirko took a diversion and handed over some restitution. You comfortable with the actions that led him to make that wise choice? I am not.
Posted by: federalist | Oct 26, 2023 2:53:42 PM
I see plenty of prosecutions that should never have been brought for a wide variety of reasons. And I favor all sorts of CJ reforms --- no MMs, broad jury trial rights, no appeal waivers, limit plea terms, limited prison exposure and on and on --- that all could and should help limit the extreme powers of prosecutors. But you seem to cheer on that power until you think you see it misused. Those of us long calling for reform will welcome you to the effort to reduce prosecutorial powers. But defendants and defense attorneys must be active in contesting prosecutors in our adversarial system: if a prosecution is clearly unconstitutional, the defendant should assert his or her rights and move so a court must consider the claim seriously.
If you are saying nobody really makes a voluntary choice in our criminal justice system because it is so unfair and coercive, you are preaching the gospel of the "abolish" crowd. That's fine, but own it. And if/whenever you or others want to prove Ellis (or Chauvin or Glossip or others) are innocent, go for it. I want our system to take such claims seriously and garner respect for doing so and limit state power accordingly.
Posted by: Doug B | Oct 26, 2023 5:19:18 PM
"But you seem to cheer on that power until you think you see it misused." I don't know about cheering--saying something isn't barred by law and pointing out your incredibly weak "COngress barred appeal waivers." reasoning isn't cheering. MMs I support in concept--do you really think that some murderers should get only 1 year in prison?
"But defendants and defense attorneys must be active in contesting prosecutors in our adversarial system: if a prosecution is clearly unconstitutional, the defendant should assert his or her rights and move so a court must consider the claim seriously." Who says that a court "must"? And there are rules governing the behavior of prosecutors--are you really saying that a defendant, when faced with an unfair prosecution, that takes a plea is somehow validating the prosecution? And I didn't say that all defendants who take a plea are doing so involuntarily--what I am saying is that a prosecutor willing to prosecute on such an unfair basis is also likely not to play fair, and you're going to be dealing with that behind bars.
She was prosecuted in part for lobbying state legislators. The prosecutor belongs in prison for the rest of her life.
Posted by: federalist | Oct 26, 2023 5:38:21 PM
So, federalist, you oppose appeal waivers? Please clarify. And you'd want Rittenhouse subject to mandatory decades in prison if convicted by a jury without a judge allowed to consider the unique facts of the case? Of course, MMs are only a major issue in drug and gun cases, and that's where they really give prosecutors enormous powers to coerce pleas. Do you oppose all drug and gun MMs, federalist?
A court must consider non-frivolous motions; and a plea does, especially with all the waivers it includes, serve to functionally validate a prosecution. If it did not, it would not be so hard to vacate a plea. And if you really think prosecutors playing unfair necessarily means ending up behind bars, then you really should be part of the abolish team. Own it --- or at least clearly and aggressively advocate for reform that would help limit prosecutorial powers, such as no MMs, broad jury trial rights, no appeal waivers, limit plea terms, limit prison exposure and so forth. If you are going to talk the talk for Ellis, you should walk the walk to seek to improve our systems of justice.
Posted by: Doug B | Oct 26, 2023 8:08:56 PM
Those of you arguing about whether the pleas the 3 attorney defendants have entered into in the Atlanta Trump case have completely over-looked the way "First Offender Treatment" works under Georgia law, O.C.G.A. section 42-8-60. As you would expect of licensed attorneys, these 3 lawyers have no prior felony convictions, so they qualify for First Offender treatment under Goergia law, which all three have received here, if you paid attention to the dialogue during the videos of the televised guilty plea hearings. Georgia's First Offender laws functions more like what I would call a deferred adjudication. The way First Offender treatment works, the Judge accepts the prosecution's recommendation that he use First-Offender treatment, and the Judge confirms that a defendant has no prior felony conviction, and has not previously received First Offender treatment in Georgia (one can only use it once in a lifetime). The trick here is that there is no adjudication of guilt, when the Judge accepts their pleas. He imposes the recommended probated sentence, fines, restitution and writing a letter of apology to the citizens of Georgia. Once a defendant granted Fisrt Ofeendder status completes his sentence (probation in these cases) the charges are dismissed and the defendant has no criminal record. Clearly, this process should help the attorneys keep their law licenses (or only get a suspension instead of disbarment). Even the defendants(Cheesbro and Ellis) who have pleaded to felonies are not being adjudicated as guilty of felonies. In fact, they are not being adjudicated guilty of any crime at all! So what will a state bar disciplinary committee say about a guilty plea that results in deferred prosecution and no actual adjudication of guilt for any crime? And after they complete their terms of probation, the charges are dismissed and they have no criminal record whatsoever. The Georgia First Offender treatment that these defendants are receiving may give state bar disciplinary committees fits -- guilty pleas and sentences, but with no adjudication of guilt and dismissal of the charges upon completion of the probation and other terms. So, it may not be fair to call these three attorneys criminals or felons, because there is no adjudication of guilt in Georgia, because of the First Offender treatment. What do you all think of this bizarre situation now?
Posted by: Jim Gormley | Oct 26, 2023 9:27:39 PM
Jim Gormley, if accurate your explanation of Georgia's "First Offender" rule, puts the debate in an entirely different light. We cannot call these attorneys convicts or felons. Should we call them "temporary" convicts or felons? Or nothing at all?
Posted by: Amy | Oct 27, 2023 12:47:34 AM
Thanks, Jim, for this interesting information which does, as Amy suggests, alter how we might think about the semantics here. Thanks to your comment, I did a bit of googling and found this article suggesting that other defendants, but not Ellis, had invoked the Georgia First Offender Law: https://www.atlantanewsfirst.com/2023/10/25/first-offender-act-why-are-so-many-election-indictment-defendants-using-it/
Posted by: Doug B | Oct 27, 2023 8:50:30 AM
I don't oppose appeal waivers. I support judicial scrutiny of them.
Rittenhouse never should have been prosecuted in the first place. The prosecutors should spend the rest of their lives in prison for what they did. There was no evidence from which self-defense could be disproven BRD.
You can try to make this about me all you want, but the bottom line is that there was a prosecution in the USA for lobbying state legislatures. Notice how no one remotely defends that.
Posted by: federalist | Oct 27, 2023 9:47:08 AM
federalist, nobody has sought to defend the Ellis prosecution on the terms you seek to frame it because Ellis and her lawyers did not contest her prosecution on those (or any other) terms. And millions of people in the US have been arrested and prosecuted for possessing a plant or a pill or a picture or a document in their homes; lots of indisputably criminal behavior can be defined in anodyne terms. Of course, if a defendant believes there are constitutional or other legal problems with a particular prosecution, they can and should raise those problems in court. A court then can and should address those claims; but if the defendant decides to plead guilty, she can and should expect the legal system and the general public to accept their admission that they committed a crime.
And funny how, federalist, in one comment you say Fulton County judges cannot be trusted to consider clear constitutional claims by defendants, but then your "answer" to (non-textual) prosecutorial invented appeal waivers is "judicial scrutiny." Are you trying to do self-parody?
Posted by: Doug B | Oct 27, 2023 11:17:42 AM
The judiciary is a big group of people. That you have shitty judges in certain places doesn't mean that appeal waivers should be verboten in all cases. And how dumb is that Judge Chutkan--how in the world do you cite Sheppard (which involved protecting defendants) to support a gag order on a defendant. That seems pretty dumb.
You're hopeless. And if Mr. Novak had taken a plea deal, you'd be cool with the prosecution? What if some 'rat prosecutor wanted to prosecute me for obstruction of justice because I dare criticize judges?
Posted by: federalist | Oct 27, 2023 11:49:31 AM
If you sincerely care about checking prosecutorial powers, sentencing appeal waivers should be verboten in all cases.
Meanwhile, you are so silly because you keep saying "what if so and so took a plea deal." The point is that a (lawyer) defendant's knowing and voluntary decision to take a plea deal --- especially when not incarcerated and represented by two seemingly competent lawyers --- necessarily changes, both formally and functionally, how the legal system and the general public will and should view the prosecution. Jenna Ellis' decision to take the deal, after advice from counsel and while free, is what really matters. You keep wanting to elide the critical fact that is the very heart of this discussion.
Would you take a plea deal if you were prosecuted for obstruction of justice because you criticize judges? Would you think it competent lawyering for a defense attorney to recommend you plead to a felony under those circumstances?
Posted by: Doug B | Oct 27, 2023 1:09:47 PM
Would I take a plea deal--well, that all depends, right? What are the consequences if I don't?
But you're cool with prosecuting someone for lobbying state legislators. Gotcha.
Posted by: federalist | Oct 27, 2023 1:46:59 PM
Let's get candid here! That fake elector scheme that Cheebro was the architect of was a crime from the beginning. As he said in his own Memorandum of Law, it was most unlikely that the fake elector scheme would ever pass muster at the U.S. Supreme Court, because it was an illegal scam.
Posted by: Jim Gormley | Oct 27, 2023 1:57:48 PM
https://d3i6fh83elv35t.cloudfront.net/static/2023/08/CRIMINAL-INDICTMENT-Trump-Fulton-County-GA.pdf
This is the BS indictment. Since when is asking elected officials to perform a legislative act a crime? Maybe Doug can explain.
Posted by: federalist | Oct 27, 2023 2:05:13 PM
federalist: happy to explain. Under conspiracy law, entirely lawful and even constitutionally protected behavior can be an overt act in furtherance of an illegal conspiracy to commit crime(s). If I go get a gun from my neighbor (which would be an act protected under the Second Amendment), that act could be alleged as part of an overt act in a conspiracy if I had intended to give it to you with the intent that you and I will seek to convince Bill Otis to use that gun to kill Master Tarls. If the government had proof of that conspiracy/agreement between us to try to get Bill to kill Tarls, all sorts of otherwise legal (and even constitutionally protected) behavior could be alleged as part of the overt acts in furtherance of the conspiracy.
The indictment talks about Ellis speaking to state legislators as part of state RICO conspiracy allegation. Under standard conspiracy law, I see no reason that cannot qualify as an overt act if it is in furtherance of the conspiracy to commit crime(s). Ellis was not charged with the crime of "lobbying state legislators." She was charged with a George RICO conspiracy, and one (of many) alleged overt acts included, eg, having "solicited, requested, and importuned the Pennsylvania legislators present at the meeting to unlawfully appoint presidential electors from Pennsylvania."
Does that help?
Posted by: Doug B | Oct 27, 2023 3:00:06 PM
We're now hearing rumblings that in 2020, prior to the ratification of electoral votes in Congress, there may have been 'criminal acts' undertaken by the new Speaker of the House, Mike Johnson, who allegedly played a pivotal role in the criminal "Fake Elector Scheme". We'll see how this shakes out in the next few months.
I suspect that federalist and some of his cohorts will proffer that Johnson, like Powell, Ellis and Chesebro, was merely exercising his 1st Amend. rights when working to illegally deny the will of the people by delaying/stopping/overturning the ratification of the electoral votes. We note that these self-admitted scofflaws Powell, Ellis, and Chesebro (all well-trained and experienced legal professionals), have admitted as much in open court.
Recently, Mark Meadows has reportedly disclosed that then-Pres. Trump on election day acknowledged losing the race. In spite of this, the MAGA-faithful ('election deniers') cling on to their fantasy that 'Biden didn't win' as if their very lives depended on it. All very reminiscent of the Japaense soldiers continuing to fight for months or even years after the end of WW2.
Posted by: SG | Oct 27, 2023 3:34:15 PM
Doug, these are 1A protected activities. Period. Full stop. There is absolutely nothing here to support criminality. Nothing. You know it, and I know it. And how do these overt acts tie into the conspiracy anyway? It's ridiculous that a law prof would be ok with this.
Posted by: federalist | Oct 27, 2023 3:36:46 PM
SG, go read the transcript of the call to the SoS---it's lobbying, and the elector scheme, same thing.
funny how you never answered the point about DoJ aiding the Biden campaign by suppressing the laptop story.
Posted by: federalist | Oct 27, 2023 3:47:31 PM
What is ridiculous, federalist, is that you seem to feel so strongly that there is only one proper way to look at these matters (and one contrary all the lawyers and judges involved), but you then only make your claims under a pen name rather than write them up in a rigorous way under a real name. I am sure Ms. Ellis and her lawyers would welcome the help (via an amicus brief or an op-ed), and I bet former Prez Trump would, too. Heck, he is always needing lawyers, so you might get another client.
If you try to write this up more rigorously, you might convince me and others. I am always open to good arguments, and those with cites and context and a full clear accounting of claims are always more convincing. For now, I am unsure what you are claiming --- Ellis did not commit any crime? never can 1A activity be part of a crime? a fake elector scheme is not a crime? prosecutors cannot use 1A activity in an indictment? --- but I am sure analogizing Ellis to Alexander Solzhenitsyn is not a convincing clam.
Yet again, you express your feelings and make assertions that sometimes sound like law, but lack any clear legal foundations. If you feel strongly, perhaps this might be the topic that prompts you to try to write something rigorous under a real name. Or you can shrink away, yet again, from even trying to express your feelings in a rigorous manner under a real name. Your call, of course.
Posted by: Doug B | Oct 27, 2023 4:28:45 PM
federalist,
I implore you to please read this amazing story, and take time to personally reflect:
"The first time the four Japanese soldiers heard about their country’s surrender was in October 1945 when another cell of rogue soldiers hiding out in the mountains of the Philippines showed them a leaflet telling them the war had been over for several months. ‘Come down from the mountains!’ the leaflet implored. A suspicious Lt. Onoda dismissed the leaflet, as he did another air-dropped over the island which contained an order to surrender given by General Tomoyuki Yamashita of the Fourteenth Area Army. Lt. Onoda, who had been trained in propaganda, examined the leaflet carefully and declared it a fake. He had been given his orders, and as far as he was concerned no American forgery was going to stop him carrying them out".
(federalist - sound familiar yet?)
Lt. Onada finally surrendered in 1974.
He was the second to last Japanese soldier to surrender. The last man standing, Private Teruo Nakamura, would finally hand himself in on the 18th of December 1974.
link:
https://www.history.co.uk/shows/lost-gold-of-wwii/articles/the-japanese-soldier-who-kept-on-fighting-after-ww2-had-finished#:~:text=Marcos%20accepted%20the%20soldier's%20surrender,the%2018th%20of%20December%201974.
Posted by: SG | Oct 27, 2023 4:33:26 PM
