Can This Be Right?

That over a million people – mostly Americans – have signed a petition directed to the Prime Minister of the UK declaring that the US is still a British colony?

Or is that some kind of hoax website?


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Shallow Reasoning

Maybe a better word is facile.  Or cynical.  Whatever the word, I think you can call what follows here intellectually and professionally irresponsible.  I quote at length from a 1994 opinion for the United States Court of Appeals for the 7th Circuit in Chicago:

Here is the gist of the allegations, in the language of Buckley’s brief (footnote and citations to the record omitted):

The relevant portions of the complaint allege several separate acts of witness interrogation and coercion which occurred in the early stages of the investigation, including the repeated interrogation of [Alex] Hernandez [one of Buckley's two codefendants], which led him to give obviously false statements which on their face inculpated Buckley; the use of reward money to coerce further false statements from Hernandez which again inculpated Buckley; and the interrogation of [Rolando] Cruz [the other co-defendant] and purchase of false inculpatory statements from him.Buckley alleges, in other words, that the prosecutors repeatedly interrogated two other persons, that the prosecutors paid them for statements inculpating him, that during the interrogations the prosecutors “coerced” them to finger him, and that the accusations Cruz and Hernandez leveled against him are “obviously false”.

The exchange of money for information may be a regrettable way of securing evidence, but it is common. So too with promises to go easy (the complaint alleges that a prosecutor implied that Cruz and Hernandez might escape the death penalty by talking freely). Buckley does not cite any case holding that this practice violates the Constitution. Concealing the payments at trial would have violated his rights; a defendant is entitled to know what the prosecutor paid for a statement (whether in cash or in lenience and related promises) so that he may expose to the jury the witness’s shortcomings and bias. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). But Buckley does not allege concealment at trial, which would in any event be comfortably within the scope of absolute prosecutorial immunity under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). His contention that the payments themselves violate the due process clause does not state a claim on which relief may be granted.

Coercing witnesses to speak, rather than loosening their tongues by promises of reward, is a genuine constitutional wrong, but the persons aggrieved would be Cruz and Hernandez rather than Buckley. Overbearing tactics violate the right of the person being interrogated to be free from coercion. Buckley cannot complain that the prosecutors may have twisted Cruz’s arm, any more than he can collect damages because they failed to read Cruz Miranda warnings (see 919 F.2d at 1244) or searched Cruz’s house without a warrant. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 795*795 L.Ed.2d 633 (1980); United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Rights personal to their holders may not be enforced by third parties. Let us suppose the prosecutors put Cruz on the rack, tortured him until he named Buckley as his confederate, and then put the transcript in a drawer, or framed it and hung it on the wall but took no other step, or began a prosecution but did not introduce the statement. Could Buckley collect damages under the Constitution? Surely not; Cruz himself would be the only victim.


This is from the opinion of Judge Easterbrook – a Federalist Society darling like his circuit-mate Richard Posner – in Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir., 1994) when the case was on remand from the Supreme Court [509 US 259 (1993)]. 

To be fair, before rendering this bit of circuit judge flippancy, Judge Easterbrook did complain that Buckley’s lawyers hadn’t been much help:

The Supreme Court found “unclear” the “precise contours” of Buckley’s claim that the prosecutors violated the due process clause “through extraction of statements implicating him by coercing two witnesses and paying them money.” ___ U.S. at ___, 113 S.Ct. at 2619. It evidently expected Buckley to elaborate on remand; so did we. Instead, Buckley simply referred us to the very paragraphs of the complaint that perplexed the Justices.


The point is that when a plaintiff in a section 1983 action, or for that matter a defendant in a criminal action, complains that authorities have coerced witnesses to falsely implicate him, the argument that this only tangibly harms the witnesses and not the (defendant) Plaintiff is unserious.  In this instance it is probably just more judicial backlash and fallout from those 15 years or so where suppression motions were occasionally granted.  Because one of the ways courts got around having to suppress things was (and still is) – as Judge Easterbrook notes above – to hold that the defendant doesn’t have standing to challenge a search if he didn’t own the house, or the car, or whatever where the drugs were found.

I mean, the obvious problem is that by any fair application of the concept of ‘standing’, a criminal defendant has standing to challenge the lawfulness of any evidence that the government intends to use against him.  To preclude him from objecting on standing grounds is silly.  Or would be if there was any humor in it, which when you’r e on the receiving end there usually isn’t.  It’s really an abuse of language and thought and the law, and on remand from the Supreme Court, no less, Judge Easterbrook does exactly that with the Buckley case.

What’s even more of a shame is that Buckley caught on in so many ways.  More:

Let us suppose the prosecutors put Cruz on the rack, tortured him until he named Buckley as his confederate, and then put the transcript in a drawer, or framed it and hung it on the wall but took no other step, or began a prosecution but did not introduce the statement. Could Buckley collect damages under the Constitution? Surely not; Cruz himself would be the only victim.

Again, this is flippant.  In the first place, let’s take a situation where authorities fabricate evidence but don’t don’t ‘use’ it in any way – not at the Grand Jury, or before a judge or magistrate on warrant applications or motions, or at trial.  Is it a non-problem, then?

It depends.  If its non-use represents a renunciation, an abandonment  of the whole effort to frame someone with ‘evidence’ you just make up or beat out of someone, then I’d agree it’s pretty much a non-problem.  On the other hand, if that effort continued but with different bogus evidence then clearly it very much is a problem, because the real problem is not just this or that incident but the whole thing, the whole tainted process.  You don’t have to analyze each pixel when the image is more than sufficiently clear.

It’s just sort of deliberately obtuse not to see this kind of thing, because you’re not really reasoning your way through something; rather you have a desired outcome and you’re just rationalizing.  Some people are capable of nothing but the latter.  And the worst thing about them is that they can’t even comprehend that others might be capable of the former.  So they assume others are just like them – that is, that all of their “reasoning” is really rationalization.

And a lot of these people are prosecutors or judges.  Or cops.

Shallow reasoning is a big problem in the law.  Abandonment used to be a defense to a criminal charge.  In fact it was very traditional, and a measure of how the law once conformed to notions of fairness and justice.

The abandonment defense was this:  you started to do some terrible criminal thing but then thought better of it, listened to your conscience and turned back to the right path.  You “abandoned” the crime, thoroughly renounced it before you completed it. 

That was a complete defense to a charge.  You’d be not guilty.

But then courts started holding – contrary to the Model Penal Code, which maybe we’ll discuss some other time – that abandonment wasn’t a defense to an ‘attempt’ charge, because you complete the ‘attempt’ by taking some tangible step towards committing a crime.  So in other words, you can’t abandon the effort to do something that’s already done.

There’s a certain logic to this position, isn’t there?  Except when you consider this:  abandonment can only apply to attempted crimes.  If you complete the crime, obviously it’s too late to abandon it; on the other hand, if you never did anything at all, there’s nothing to charge you with in the first place.  So if you say that ‘abandonment’ is not a defense to an ‘attempt’ charge you’re just being disingenuous and shallow.  Just come right out and say you don’t recognize abandonment as a defense at all.

But then you’d have to concede a radical departure from traditional criminal law in favor of prosecutions. 

We’ve had way too much of this kind of shallow reasoning, and we reap what we sow.  It’s a shame so much of it has come from Federalist Society judges.

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Increased Stridency Or Class Consciousness (?)

An interesting statistical study over at the SCOTUS blog, trying to make sense of a trend towards greater unanimity in what should be a very divided Supreme Court.

I’ll suggest a couple of completely unprovable reasons.

One may be that when the members of the SCOTUS actually do flatly disagree on an outcome, so much energy goes into the argument (I mean, read a few Scalia dissents, just for fun) that there’s a desire by both sides to spend less energy where the disagreement are not so sharp, or seen as not as important.  In other words where they think the can agree the justices are more anxious to do that because there’s only so much written venom anyone wants to hurl.

A second possibility, and this requires a lot more fleshing out than I’m going to do this morning, is that the insularity of the Supreme Court and its establishment courtiers has reached, or is reaching an apogee.

Let me explain this as best I can through an example:  the rise of Cheryl Ann Krause as a federal appellate judge.

I don’t want to be in any way unkind, or to make more of this than it is, and although I think there’s considerable significance to what I am about to point out I’m sure Judge Krause is very bright and probably delightful in a hundred different ways.  Indeed if you look around the web you’ll notice that no one has had anything bad to say about her and theUnited States Senate actually broke from its moratorium on approving Obama judicial nominees to approve her and get her into office.  Her “credentials” are impeccable:  top of her class at Stanford Law – Stanford!* – stint at US attorney’s office, stints at legal academia, stints at big law firms.

But still.  In an important sense she’s 46 years old and has never really done anything, other than accumulate honor after honor and credential after credential.  She has probably never tried a case to a jury, but if she did it was almost certainly as a federal prosecutor which in a lot of ways doesn’t count.  The primary quality required to so accumulate is to relentlessly focus on so accumulating from an early age.  It is entirely possible that Judge Krause has never had a thought she could truly call her own, having been too busy absorbing what her superiors wanted her to absorb.  She’s been richly rewarded for it, in a manner of speaking.  She has punched all the right tickets, but she has never even served as a federal trial judge.

Too messy.

She could easily be on the Supreme Court in a couple of years.

If and when she gets there, it may also be that her only true conviction, probably held more or less unconsciously, is that our system is wonderful close to the point of being flawless.  It rewards all the right people – like her – and punishes all the right people, too.  How could it be otherwise?

To say that she will have a strong establishmentarian bias is a grotesque understatement.

So in an important sense, when a lawyer appears before her representing an individual who has a quarrel with a big institution – bank, insurance company, government – he might as well be an alien from another planet.  This is a woman who has never had a disagreement with an institution in her life.  She cannot comprehend such a thing except in the sense of considering it wrongful ab initio.  And this explains a lot about our judiciary and our system, because she’s but a representative sample.

In other words, the increasing prevalence of SCOTUS unanimity may be due to the increasing class homogeneity of the federal judiciary and the SCOTUS in particular.  In a case where the class differential of the parties is stark, maybe it’s also determinative, there being no lower status representative on the court itself.

Again, I could be a little unfair here.  But I doubt it.


*  It may be time to consider the disproportionate influence that certain institutions of higher learning have on the law by acquiring a near monopoly on Supreme Court members.  Certainly, there is much to be said for academic achievement, which is reflected in being a high ranking graduate of Harvard or Yale or Stanford, etc.  But it is possible to get too much of a good thing.  Ultimately, these schools are governed and owned by a very small group of people with – of course – a lot in common with each other and little in common with anyone else.  Cheryl Krause’s extraordinary appointment is a tribute to this disproportionate influence:  the United States Senate made a special exception to its stalemate on judicial appointments just for her.  I don’t actually object to her appointment; but I have a lot of reservations about the methodology by which she was confirmed.

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Casey Anthony’s ‘Wrongful Acquittal’

Three years on and she can’t show her face in public:

Anthony now lives in an undisclosed location in Florida and doesn’t go out of the home she is living in because of the public hate and continued threats to her life, Mason said.

“She has to live constantly on guard. She can’t go out in public,” Mason said.

By her own choice, she works inside the home, Mason said, and is living as “a housekeeper, clerk, secretary and stuff like that.”

“I think Casey has a lot of world left to have to deal with. She hasn’t been freed from her incarceration yet ’cause she can’t go out. She can’t go to a beauty parlor, she can’t go shopping to a department store, she can’t go to a restaurant, she can’t even go to McDonald’s. She can’t do anything,” he said.

Maybe the CNN story is a beginning for the media to take responsibility for their role in whipping up a public frenzy for a hanging.  I’m not holding my breath, though.  They still note with barely disguised astonishment that Anthony’s attorney Cheney Mason continues to believe that “…the jury got it right and the rest of the country got it wrong.”  As if that’s impossible.

Bottom line is, she might as well have been in prison for past three years.  She might as well have been convicted. 

I can’t improve upon my previous suggestions regarding the ‘wrongfully acquitted’ in a high profile case.  Give them a pile of money and they leave the country to live in obscurity somewhere else.  Their lives in this country are ruined, and the acquittal – obtained at enormous cost – can’t fix that.

Their lawyers should get a pile of money, too:

After that meeting…Mason decided to join the team pro bono. He said the unpaid time he spent on the case “was well over a million dollars” and cost him tens of thousands of dollars out-of-pocket.

but then who gives a damn about them?


Filed under Media incompetence/bias, wrongful convictions

Top Story

Complete with shame naming of all the persons arrested for selling alcohol to minors in a holiday weekend “sweep”. 

On a slow news day, news outlets turn to the police for a story.  Apparently any story will do.  It is a very unhealthy combination for both.  And for the public.

There are plenty of other ways to find interesting stories, and plenty of interesting stories to tell.  They might require a bit more work than just lifting a press release off of the repeater and cutting and pasting.  But we have to work sometimes.

In any case, this is one of the components of the disproportionate influence law enforcement has with the media.

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A Set-Up, Maybe: A Little Primer On SCOTUS Machinations By Prosecutor’s Groups

You might fairly call what I’m about to describe at some length a “conspiracy theory”.  So before I begin I’ll just say that that’s a fair characterization as long as it’s understood that this is a theory.  It’s based on some evidence – facts, really – but there are too many inferences that aren’t unarguable for it to be more than a theory.

With that proviso let us begin.  I’ll try to explain it all without getting too heavy on legal theories, though in the end I think there just has to be an appreciation for certain theoretical issues that come up in the law.  But if you like to figure things out bear with us, whether you’re a lawyer or not.

There is a concept called “justiciability”:  that is, in order to make a decision about an issue a court has to have a “live case and controversy” with actual parties that are having a dispute with something personally at stake.  And this is something that is required because of the nature of courts – as opposed to, say, legislatures, that just legislate on this or that subject whenever it strikes them as being a good idea.

So, courts don’t render “advisory” opinions, and they don’t decide cases that have become “moot”, although there are exceptions, sort of, that we don’t have to get into here.

In any case, there are people and organizations – and this has been going on a long time – who want the courts, and especially the Supreme Court (SCOTUS) to decide this or that issue as a matter of constitutional law so that everyone else has to bend to their will, because of this idea that the SCOTUS gets to say what the law is and their word is final.

Some people are just attracted to power like that.  A lot of people, really.  But I digress.

But then they confront this problem:  gee, we can’t just waltz into the SCOTUS and have them vindicate us because we’re right.  We need a live case and controversy.  And for that we need litigants.  Clients. 

Let’s go find one!

Now as you might have gleaned from my description here there’s something kind of disingenuous and artificial about this kind of process.  Because the people who arrange things like this are the real parties in interest, but since they don’t have an actual case, they just go find someone to be the stalking horse for their issue so they can get the SCOTUS to side with them.  The client really doesn’t matter, except in a technical sense.

In other words, in form there is a “live case and controversy” with a real litigant but in substance there isn’t.  Just people with a grandiose agenda and some fellow traveler – or in some cases an out and out dupe – who serves as a pawn in the larger chess game.

One of the most screwed up cases ever to be decided by the SCOTUS was exactly this kind of thing.

So, where am I going with all this?  Glad you asked.  You must be dying to know.

For more than 20 years the law of due process in criminal cases has been enormously messed up in the United States.  We’ve been talking about this a lot in the last year, such as here.  What it boils down to is that the nation’s prosecutors, who are very organized and very powerful, have managed to maintain with the thinnest veneer of plausibility the proposition that they can lie and cheat their way to a criminal conviction without violating the Defendant’s right to due process of law, so long as they do not lie and cheat at the trial itself.

Again, if you want to review start here.  Jump around if you like.

Beginning in 2009 this thin veneer began to melt, when the prosecutors managed to get a case to the Supreme Court for argument, the argument didn’t go as well as they had hoped, and they wound up buying off the opposing litigants to prevent the SCOTUS from deciding against them, which would have diminished their power and prestige.  And that’s what’s important to them, as a group.

That case was Pottawattamie County v. McGhee, which we have discussed many times.  What you should note about that case right now is that the written opinion of the 8th circuit from which the prosecutors appealed was not a model of clarity or restraint, which of course enhances the possibility that the SCOTUS will reverse:

We find immunity does not extend to the actions of a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not “a distinctly prosecutorial function.”   The district court was correct in denying qualified immunity to Hrvol and Richter for their acts before the filing of formal charges.

This little blurb doesn’t really explain the ruling too well, does it?  In other words, these guys (the nation’s prosecutors, acting in concert and as a group) pick their cases carefully to give themselves the best chance that they will prevail in the SCOTUS.  They guard their collective position jealously, and it must be said also more than a little unscrupulously. 

Moving on, then.

In 2012 the nation’s prosecutors experienced another significant setback when the 7th circuit decided Whitlock v. Brueggemann.  They appealed that one to the SCOTUS, but although the SCOTUS showed some interest cert was ultimately denied

Whitlock has now been reverberating in the 7th circuit and elsewhere for more than two years.  In January of this year there was a most significant development when a split three judge panel of the 7th circuit decided Fields v. Wharrie.  The prosecutor lost on the issue and there was a dissent by a Judge Sykes.  Taken together, these two factors greatly enhance the odds that the case will be entertained by the whole 7th circuit sitting “en banc”, or for that matter by the SCOTUS upon a petition for writ of certiorari.

So what has happened with Fields?  The losing prosecutor petitioned for en banc review but this was denied in March.   They had until June 12th to petition the SCOTUS for cert.  And as far as I can tell they never did.

The reason for this is probably that the Fields majority opinion – that is, the opinion that went against the prosecutors – was written by the very prominent and respected Judge Posner, and for that reason would not be such a good candidate to be reversed in the SCOTUS.

But there’s more.

On June 9th, just a few weeks ago, the 7th circuit came down with another one – Petty v. City of Chicago.  This was a unanimous three judge panel and, interestingly, Judge Sykes (the dissenter in Fields) was on it.  Petty used Fields to deny relief to a Plaintiff and dismiss his complaint.  In other words, this case was decided in the prosecutors’ favor.

Even though this is not the best posture for a cert petition to the SCOTUS – it’s much better if the prosecutor is appealing and not the poor schmuck – in my opinion there’s a good chance this case – the Petty case – is being manuevered up to the SCOTUS by prosecutors groups in an effort to get a favorable ruling from the SCOTUS on this serious question of just how much lying and cheating they can do to get a conviction. 

Why do I think Petty might be a SCOTUS set up case, like Roe v. Wade was?

Because the law firm representing the appellant – Petty (actually his estate) – makes its business representing cops and municipalities, not the poor schmucks of the world.  Their bread is buttered by winning for cops, not the people cops might have injured.  Also because the Plaintiff, who is now deceased, was probably not the most savory of characters.

In other words, I think there’s a possibility that the law firm representing the Petty estate is, underneath it all, out to have their client lose in the SCOTUS, not win.  Prosecutors groups didn’t want to challenge Judge Posner directly, so maybe they’re going to approach this indirectly.

We’ll see.

Is this unscrupulous, or even unethical conduct for that law firm?  I think it would be, not that it matters much what I think.

Anyway, if all this is true there one other thing worthy of note:   what a mismatch in terms of power and influence.  You would think that the Defense bar nationwide would be very active in this, but there’s no indication that anyone is even watching.

Except us over here at Lawyers on Strike.



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Having Their Way With Dawn Nguyen

Another sad chapter in the ongoing saga of the law enforcement community getting its way.

“We now know that Dawn Nguyen knowingly and intentionally bought those firearms for William Spengler, the man who was responsible for the tragedy,” said U.S. Attorney William Hochul.

Of course we know nothing of the kind.  We know what she said in the course of pleading guilty, and that if she hadn’t said that she would have had to go to trial, and if found guilty at trial she would have spent the balance of her young adult life in federal prison.

This was a plea of convenience.  As far as being the truth of the matter, you can read a recent 2nd circuit opinion recognizing the uncomfortable reality that innocent people plead guilty and say what they have to say in order to avoid draconian punishment here.

If you terrorize people into pleading guilty they most often will. 

There’s nothing to be happy or satisfied about in all this.  If my opinion counts for anything, the only reasonable interpretation I can see of what happened here is that the law enforcement community, far from honoring their fallen comrades, helped their murderer to posthumously, and gratuitously, injure another person.  And that would be my opinion even if Dawn Nguyen actually did buy the guns for Spengler.

But here’s something that’s not just my opinion:  whatever Dawn Nguyen claimed in pleading guilty is only marginally more factually unreliable than jail house snitch testimony.  It should hardly be any sort of “closure” for anyone.

And if law enforcement as a group can take any satisfaction from this sordid episode where a mob relentlessly brow-beats a young woman into prison I just feel sorry for them.  Though not nearly so much as I do for her.

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