What is fraud from a legal perspective

 

Lately, the news has been full of references to "fraud." As a retired trial attorney, from time to time, I had to deal with clients who had been defrauded. I can say from experience that claiming fraudulent behavior or representations is easy and emotionally charged but actually proving fraud in court is one of the most difficult claims to prove in both civil and criminal litigation. 

Since my main trial experience was in Arizona, I will use Arizona law as an example. Here is one statement of the elements of a fraud claim that must be proved in court. 

While the criteria required to establish fraud vary in state and federal laws, one must generally be able to prove that an important fact was misrepresented by a person who knew the information was false to a victim who suffered a loss or injury as a result of reasonable reliance on the misrepresented fact. The misrepresented fact must be substantial and must have played a critical role in the victim’s decision. In order to be considered fraud, the misrepresented information must be a fact, not an opinion. See Arizona Fraud Laws. 

 In most states, the elements of a fraud claim have to be proven individually in order for the incident to be considered a fraud. With regard to elections, here is a link to a Federal Election Fraud Fact Sheet prepared by the United States Attorneys Office of the District of New Hampshire. If you have any questions about the Federal Law of Fraud, I suggest you carefully read the list of Conduct Actionable as Federal Election Fraud, Intimidation, or Suppression listed on the Fact Sheet. 

Once again it is easy to claim fraud but it is another thing to prove fraud in court. Why is this the case? The main issue is obtaining facts that support the claim. Now you would think that researching the total number of election fraud cases that ended in a conviction would be fairly easy. Court records are public and easily reviewed. In fact, there are huge searchable databases such as West Law that provide attorneys with almost every case of record in the history of the United States. 

If you spend a few minutes looking online, you will find real credible sources that address the issue of voter fraud in the United States, not unsupported allegations by politically motivated individuals. For example, here is a link to an article entitled, "Debunking the Voter Fraud Myth" from the Brennan Center for Justice at the New York University of Law. Here is one quote from the article:

The Brennan Center’s seminal report on this issue, The Truth About Voter Fraud, found that most reported incidents of voter fraud are actually traceable to other sources, such as clerical errors or bad data matching practices. The report reviewed elections that had been meticulously studied for voter fraud, and found incident rates between 0.0003 percent and 0.0025 percent. Given this tiny incident rate for voter impersonation fraud, it is more likely, the report noted, that an American“will be struck by lightning than that he will impersonate another voter at the polls.”

The rest of the article cites 18 additional studies about the incidence of voter fraud. Of course, if you want to listen to politically motivated individuals rant about voter fraud all the studies and court decisions in the country will not convince you that there is really no significant issue or problem. 

Again, it is easy to claim fraud, it is very, very, difficult to find cases of voter fraud in the United States.  

A Plague of Ignorance

The Plague of Florence as Described by Boccaccio, an etching (ca. early 19th century) by Luigi Sabatelli of a plague-struck Florence in 1348, as described by Petrarch's friend Giovanni Boccaccio (pictured with a book bearing his initials) 

 “Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity.”

― Martin Luther King Jr.

“You are not entitled to your opinion. You are entitled to your informed opinion. No one is entitled to be ignorant.”

― Harlan Ellison

We live in a world flooded with information and yet many in our contemporary society choose to be ignorant. I spent about 20 years of my life in formal education. After graduating from law school, I spent the next 39 years as a trial attorney. I went to court arguing cases for my clients thousands of times. I appeared in every level of our court system from Justice Courts (Small Claims Courts) all the way to the 9th Circuit Court of Appeals. For the months I have been watching two dangerous and overwhelming plagues attack the people of the United States. In both of these plagues a substantial percentage of the people of our country deny the existence of the plagues. One of those plagues, to the date of this blog post, had cost the lives of well over 300,000 people in our country, more than died in every war since the start of the Korean War combined. See "The coronavirus has now killed more Americans than every war since the start of the Korean War—combined."

The other plague is really more serious as it may result in the loss of our freedom and the return to an unthinkable division of our country not unlike the U.S. Civil War. At the very least, this plague will result in the destruction of the Republican Party. 

The first plague is, of course, the COVID-19. The second plague is harder to detect but more dangerous. It is a plague of ignorance. I am guessing that within a few months, vaccines will become available that will eventually slow down the COVID-19 pandemic. So far, about 50 lawsuits have been filed in various states and in various courts across the country challenging the results of the 2020 Presidential Election. So far, every one of those cases has been dropped, dismissed, or in a few cases is still on appeal. More cases are being filed even over the last few days before this post was written. See a summary at "Wikipedia: Post-election lawsuits related to the 2020 United States presidential election."

Many of the judges who have decided these cases are appointees of the current administration. From my standpoint as a trial attorney, the filing of so many baseless lawsuits is a serious concern. The attorneys involved in those lawsuits need to be sanctioned by their respective Bar Associations. What is more disturbing however is the fact that apparently, a large percentage of people in the United States ignorantly and willfully believe that the decisions in all those cases are somehow wrong and there is still evidence of election fraud out there just waiting to be proven. 

Let me give you an allegorical example. 

Let's suppose that I bought a car that I had now owned for four years. During those four years, my car had run erratically and was totally unreliable. I decided, after careful consideration, to buy another make of automobile and junk the older one. When I bought the new car, suddenly the manufacturer of the old car appeared at my doorstep and claimed that my decision to buy a new car was fraudulently induced by the manufacturers of the newer car I just bought. In fact, not only did they claim fraud, but they also went to court to prevent me from driving or owning the newer car. Now, I had to spend money to get an attorney to represent me, but when I showed up in court, the attorneys for the older car's manufacturer simply claimed that I had no right to dump the old car because of my purchase of the new car was faulty. However, they could never explain how my purchase was faulty and the judge in the case dismissed their claim. Despite this, the attorney for the manufacturer of the older car continued to file lawsuit after lawsuit and not only that they convinced my neighbors and even some of my friends to threaten me with physical harm. In all this, they could never really tell me what was wrong with my purchase of the newer car. Not once. 

Now, the attorneys making the claims in court are not ignorant. They are willfully and knowledgeably making false claims. However, the people who believe them are woefully ignorant. 

The United States can only operate as a country under the rule of law, that is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. In order for those questioning the validity of the current election for the president of the United States to follow the rule of law, they must present a case supporting their claims for fraud and misconduct. It is not enough to make claims without evidence. Over 50 judges of both political parties have ruled or are in the process of ruling that the claims made were not justiciable. Supporting those claims without evidence is ignorant and inexcusable. If people in this country continue to operate in ignorance and conscientious stupidity, we are going to have a rough time which may end up with extremely serious consequences. 

Losing the battle with the Pandemic: Natural Consequences as a result of ignorance, incompetence, and bad judgement

The state of Utah is a microcosm of what is happening around the world with the COVID-19 pandemic. The reaction to the initial wave of virus infections was quickly overcome with standard public health practices; closing business, prohibiting gatherings of all kinds, mandating masks, encouraging personal hygiene such as hand-washing and etc. The results were predictable. The incidence of viral infection started to go down. Unfortunately for the overall population, the leaders of our state and country vastly underestimated the effect of a highly contagious disease in a population with no immunity and no vaccines and abandoned these tested public health measures and went back to business as usual. 

Starting with a self-centered and rabidly political president and extending to a significant number of people who somehow believe that the small amount of good he accomplished in four years excused putting the entire country at risk from an uncontrolled pandemic, to state officials that are so afraid of the protests of hard-core so-called conservatives who threaten violent opposition to any public health restrictions at all, the governments of Utah and other states have abandoned taking any actions that might curb the spread of the disease. 

Around the world, we have seen graphic evidence of countries that have enacted stringent public health measures including shutting down their whole country, such as was recently done by Israel, and gotten control of the situation. We can't even mandate universal masks or take any other action that will really address the spread of the disease. 

Meanwhile, the country and the state are absorbed in politics and are paralyzed by a President who puts his personal agenda above the lives of his constituency. The virus doesn't care about your politics. It is killing people in my neighborhood, three people in the last week, and will continue to kill people until we follow the well-proven national health measures that we have known about for over a hundred years. 

Note: The Daily New Cases of the virus is merely an indicator of the problem, the real number to look at is the percentage of positives from the number of tests which, in Utah Valley where I live, is now over 25% of the tests given regardless of the number of tests. 

What about voter fraud?

 

In 2016, Clinton received 65,853,514 votes in the popular vote and Trump received 62,984,828. According to the popular vote, Clinton received over 2.8 million popular votes than Trump. Currently, as of the date of this post, with the election count incomplete in a few states, Biden has 75,596,426 popular votes and Trump has 71,043,149. The difference today is over 4.5 million, far more than the difference in 2016. In 2016, despite his loss of the popular vote, Trump did not contest the election on the basis of fraud. Back in 2016, a New York Times article "All This Talk of Voter Fraud? Across U.S., Officials Found Next to None" stated as follows:

After all the allegations of rampant voter fraud and claims that millions had voted illegally, the people who supervised the general election last month in states around the nation have been adding up how many credible reports of fraud they actually received. The overwhelming consensus: next to none.

In an election in which more than 137.7 million Americans cast ballots, election and law enforcement officials in 26 states and the District of Columbia — Democratic-leaning, Republican-leaning and in-between — said that so far they knew of no credible allegations of fraudulent voting. Officials in another eight states said they knew of only one allegation.

But apparently, according to Trump who is the apparent loser in the 2020 election, everything has changed in the past four years. Now, we have rampant voter fraud. Here is the split in the electoral college in 2016

Wikipedia: 2016 United States presidential election

You might note that 7 electors refused to follow their state mandate and voted contrary to the results of the election. 

Here is today's tally of the Electoral Votes from the Associated Press.

Now I have a couple of questions:

Why are there only allegations of voter fraud in the states where Trump is losing?

For example, in North Carolina, Trump is only ahead by about 75,000 votes. Why is that state excluded from the Trump allegations? By the way, Trump has only made allegations of fraud in 5 states and those are only states where Biden leads in the vote count.

Why is there only voter fraud in 5 states?

If Trump is worried today about voter fraud why wasn't something done about the supposed problem during his 4 years in office?

Why did Trump try to prevent the Post Office from delivering and collecting ballots?

Why did Trump vote by mail if voting by mail was basically flawed?

Why have I been voting by mail for years without a single issue or problem?

Just thinking. 

Surviving the Pandemic: It will continue to get worse

 

https://www.worldometers.info/coronavirus/usa/utah/

Back in the latter part of September, the Daily New Cases in Utah of the COVID-19 virus went over 1000 a day for the first time. After spending most of my life involved in court cases in the Arizona and Federal Court system as a trial attorney, I am used to looking at evidence. Because we now live in Utah, I have been following the statistics closely. What did the State of Utah do when the Daily New Cases went over 1000? The Governor urged the residents to wear masks and practice social distancing. 

About that time, I could see from the increasing statistics including the percentage of positive tests that the number of Daily New Cases would soon go over 2000. The number did go over 2000 about a month later in October. I was wondering what the State of Utah would do when the number went over 2000 a day. The State issues an Amber Alert statewide and asked people to wear masks and practice social distancing. Hmm. When something doesn't work the first time, you just keep doing the same thing over and over hoping that it will work. 

When the number of Daily New Cases went over 2000, I could easily see that the rate of increase was accelerating and I wondered what would happen when the number went over 3000 new cases a day? Here is a quote from a KSL.com article about the increase entitled, "2,987 more COVID-19 cases, 17 deaths reported Friday as Utah breaks records again."

"The numbers being reported today are exactly what we've been warning Utah residents about for weeks," Utah Gov. Gary Herbert said in a news release. "They are why we've implored Utahns to adopt the behaviors that could have prevented us from reaching this point."

So, if what you are doing doesn't work, you just do more of it and hope it starts working. The positive test rate for the rolling seven day average in Utah climbed to 19.7%. This indicates that almost 1/5th of the population is now sick with the virus. Despite this, business is as usual in Utah Valley where I live. People are still gathering in large groups. People still come to our door without masks and there is no indication that the people in the state are taking this dramatic increase seriously. In fact, I am still hearing that the "virus is a hoax and as soon as the election is over, it will go away." The "virus" does not know about or care about any one country's election. 

I am now predicting that the incidence of the COVID-19 virus will go over 4000 a day here in Utah very shortly and may go even higher. 

Right around me, I am seeing multiple families where the entire family is sick and it will take months for the family to recover. I have friends who are dying of the disease. All of this is just in our own neighborhood. What does it take to follow what is being done in many other countries with success in limiting or at least reducing the incidence of this disease? The government throughout the United States seems frozen into inactivity by trying to protect an economy that will end up being thoroughly ruined by the pandemic if no action is taken. 

In the last few days, here in Utah Valley, I have seen groups of young people with as many as 30 to 50, mostly without masks and huddled together without even a semblance of social distancing. We are also having church meetings in Utah Valley with up to 100 people in attendance where those attending are "encouraged" to wear masks. Hmm. 

The Pandemic in Utah (and elsewhere) is out of control

 

https://www.worldometers.info/coronavirus/usa/utah/

This is a graph of the Daily New Cases in the State of Utah. Although the totals are not nearly as high as those in other states, the increases since September show a steep upward curve. This graph is particularly of interest to me because I live in Utah. But I also live in the United States. Here is the graph for the same day for the entire United States. 

https://www.worldometers.info/coronavirus/country/us/

You can see the same increasing trend in the United States as you can see for Utah. Now, what happens if we look at the same day for the whole world?

https://www.worldometers.info/coronavirus/

Why do they all look about the same? Simple. This is a record of a worldwide pandemic. Just as John Donne said about people (men back then) "No Man is an Island." No city, county, state, or country in the world is not part of this pandemic. You can't have a pee area in a swimming pool without sharing. 

Here in Utah, the spread of the COVID-19 virus is looked upon as a local issue. Each county is subject to an individual evaluation with a simplistic three-tiers system of high, moderate, and low. What is missing is a realization that people can indiscriminately move from one county to another, i.e. the swimming pool. There is no enforcement just admonition to wear masks etc. 

Essentially, there has been an accumulation of incompetence, ignorance, and an inability to appreciate reality topped off with a disdain for "science." In the United States, the whole approach to control has been politicized to the point that supposed economic considerations have outweighed the fact that a huge increase in COVID-19 will likely destroy any chance of a swift economic recovery or any recovery. 

Meanwhile, as one of my daughters related to me just recently, there are people who believe that the whole pandemic is a Democratic hoax and invention. Hmm. I wonder how the Democrats got Spain to go along with their hoax. Here is the graph for Spain on the same day as above.

https://www.worldometers.info/coronavirus/country/spain/

The economy of the United States is hopelessly lopsided. Here is a quote from a USAToday article entitled, "How much do you need to make to be in the top 1% in every state? Here's the list."

Nationwide, it takes an annual income of $538,926 to be among the top 1%. Among the approximately 1.4 million taxpayers who meet this threshold, the average annual income is about $1.7 million – about 20 times the average income of $82,535 among all taxpayers.

However, the top 0.01 percent has an average annual income of over $7 million dollars a year. In the first quarter of 2020, the lower 50% of households and nonprofit organizations held 1.4% of all net worth in the United States. In other words, the spread of a pandemic will cause unimaginable suffering and loss but it will not end up affecting the huge disparity in wealth in the United States and around the world. Some of the largest companies in the world are benefitting from the pandemic with record sales. See "Who Are the One Percent in the United States by Income and Net Worth?"

Back to Utah. Up to this point, the government in Utah at all levels has not made any effort to enforce any mandate that might contain or even affect the spread of the COVID-19 virus. How high do the statistics have to go before something is done?

Meanwhile, I will continue to stay home, distance myself from everyone, and wear a mask when I go outside and talk to people. I will also continue to monitor the recovery of my near relatives and friends. 

I Don't do Crazy and I Don't do Stupid -- A Commentary

One of my early memories of working as an attorney in a law office over 40 years ago was of a man who came around periodically trying to get the law firm you invest money in his project to find the Lost Dutchman Mine in the Superstition Mountains east of Phoenix. I also remember another visitor to the office who was always trying to sell Navajo jewelry. The only problem with the jewelry was that I was convinced that it was probably stolen property. These were just some of the earliest of the experiences that I had that led me to adopt a simple phrase to explain my lack of enthusiasm and interest in proposed projects and attitudes: I don't do crazy and I don't do stupid. 

Very often during my long legal career, I would have potential clients approach me with a "sure-fire" winning case. They would start by telling me that I came highly recommended and then they would start to tell me about the case and I would, almost instantly, detect that their "presentation" was rehearsed. I would stop them and ask, "How many attorneys have you already talked to about this case?" Usually, I would get some run around answer but eventually, they would admit that they had talked to one or more attorneys. I would then say something about how sorry I was but they did not have a case and they were wasting their time. I would then hear a story about how someone in another state had a similar case and made a million dollars on the case. I would end the discussion by saying I did not think the case had any merits and I was not interested. Afterward, I would remember, I don't do stupid or crazy and I wasn't going to be the one who was stupid or crazy. 

Let's fast forward about a few years to the present. I am now sequestered because of a worldwide pandemic. Despite my sequestration, I am tuned in to the internet, as is usual for me. I can almost instantly see hundreds of news outlets and watch the Johns Hopkins University COVID-19 map. I can also see a real-time statistical analysis of the progress of the disease on the Worldometer COVID-19 Coronavirus Pandemic website. These two websites give me a quick reality check for any statistical claims made in any online news articles. As I have observed previously in this blog, the spectrum of the news sources I review includes those that would be considered "far-right" in the United States and others that would be labeled ultra-left-wing-liberal. What I am finding in both and fairly sprinkled across the whole spectrum is a lot that falls into my definition of either stupid or crazy. 

For an example, as of the date of this post, I am reading comments and quoted articles on Facebook where people are expressing the opinion that the pandemic is over and there is no longer any need for social distancing. Hmm. I can look at the Worlometer for today and see that Russia has over 10,800 new COVID-19 cases and over 100 deaths. Here is a screenshot of the Russian graph for daily new cases. 

That doesn't look like the end of the pandemic to me. Oh, but you say, Russia is lying about their statistics. Are they over-reporting for sympathy or under-reporting? Why would any country over-report? On the other hand, a lack of testing in the United States clearly indicates that everything they are saying about the COVID-19 virus here is under-reported. It would be easier if the stupid and crazy were somewhat limited to one end of the political spectrum but the whole pandemic issue has become so politicized that almost every news account has some degree of one or the other. 

The trick here is to not buy in to either stupid or crazy. If some self-anointed expert suddenly declares that eating raw cabbage cures the COVID-19 virus, look before you leap. Where did the information come from? Have there been any peer-reviewed studies supporting the conclusion? What does the expert expect stand to gain if you buy into his or her theory? What do you have to lose? What is missing from all of the online discussion is a measurable degree of self-preservation. Why is it that people are willing to risk their own death simply because someone puts up a video on YouTube?

What has Russia to do with you? What did China have to with anyone when all this started?

Here is one final graph. This is the daily number of cases worldwide. Granted, there are whole countries that are not reporting. But it isn't over yet and I suspect I will be able to illustrate the same conclusion in a month or two from the date of this post.