Category Archives: Media incompetence/bias

The Case Of Dawn Nguyen

So here in Rochester we just completed one of the most high profile trials of the last year or so, involving the prosecution of a woman who now stands adjudged guilty by a jury of having ‘falsified business records’.

Ordinarily, of course, falsifying business records charges don’t generate a lot of copy, but this particular business record was a form filled out when buying guns that were later used to kill two firefighters and wound two others in a particularly depraved act on Christmas Eve 2012.  The killer shot the first responders when they came to help, there having been a fire no doubt started intentionally by the killer himself.  Who had just killed his sister.

He had been released from prison years before.  He was in prison because he had killed his grandmother.

I’m not making any of this up.

The basis of the case against Dawn Nguyen is that she had stated on the business record that she was the purchaser of the guns, when in fact the guns were intended for the killer, named William Spengler.  The puchase of the guns occurred, apparently, in June 2010.

That’s two and a half years before Spengler went on his perverse Christmas killing spree.

Let’s assume she’s guilty as charged on the business record thing, just like the jury said.  What’s really animating the prosecution, what made it “high profile”, is not what Nguyen did; it’s what Spengler did.  To drive the point home, Nguyen’s trial was very well attended by fire fighters from the relevant department and cops from the relevant village police department.  Indeed after the guilty verdict the firefighters and police chief were breathlessly interviewed by local media for their opinions, which were uniformly that they had been extremely interested or involved in the prosecution of Nguyen, that they were ‘gratified’ by the verdict as far as it went, that they were upset that the 1-1/3 to 4 year maximum sentence was woefully insufficient punishment, and that they looked forward to a federal prosecution arising from the very same facts and circumstances that would entail as much as 30 years in prison.

And then they would set about the business of changing the state law to provide for more severe penalties for doing what Dawn Nguyen had done.  One of the wounded firefighters commented that as far as he was concerned, Dawn Nguyen was a conspirator in the murder of his comrades.

Now.  A few more observations.

Ms. Nguyen’s lawyer, Matt Parrinello, did a fine job and knows a lot more details than I do.  It’s a very tough thing to do:  stand up and defend someone when the most important possible constituency – law enforcement and their fellow travelers in the fire/EMT communities – is out for blood very publicly.  Matt is my hero today.  Let’s be clear about that.

Second, this was as clear cut a case as you could ever have of what might be called a substitute criminal prosecution.  The guy everyone would really like to see hanged is dead, having killed himself.  Good riddance, but it does leave law enforcement bereft of that particular remedy.  Not to be left unsatisfied, they go looking for an alternate target, and lo they find one:  a twenty something Vietnamese heritage (maybe an immigrant but I don’t have that information) woman.  The fury they would like to unleash on the deceased miscreant they unleash on her instead.  Its searing intensity is wildly, insanely disproportionate to the wrong alleged, but that’s one of those things you mention at your peril, from a community point of view.* 

I don’t know how you could get a much more attenuated moral fault than filling out - or maybe just signing – a form some two and one-half years before a crime you had no involvement with took place.  I mean, this is one of the problems here.  Spengler’s sister must have known that he illegally possessed weapons.  He lived with her, each and every day of that two and one-half years.  She bears much more responsibility for what her brother did than Dawn Nguyen.  But of course Spengler’s sister is dead, too – Spengler killed her.

Beyond Spengler’s sister, how many neighbors knew Spengler had those guns but never reported it?  According to the village police chief, Spengler was a braggart about the neighborhood, in addition to all his other sterling qualities.  That’s one of the reasons the police chief figures Dawn Nguyen must have known all about what a bad guy and felon he was. 

Of course the problem with that is, lots of other people must have known, too.  Figure out something they did or didn’t do that violates some law or other within, say, merely one year as opposed to two and a half, and maybe you’ve got yourself a better case than the one against Nguyen.  File into the courtroom every day of their trial and glare at the jury until they convict, as by now almost any jury in the United States has been conditioned to do through decades of relentless law enforcement propaganda.

What’s to stop you from doing that, from roping in many, many other people to pay for Spengler’s crime?  Why, nothing.

 A third observation:  Dawn Nguyen is an attractive female.  The jury dynamics for attractive female criminal defendants are atrocious.  There’s almost no way to win:  other women hate her; men, of course, side with law enforcement.

Fourth:  that attractive female defendant thing also seems to generate a fevered intensity all by itself, to say nothing of combining it with a homicide.  Throw in the victims are law enforcement, or at least quasi law enforcement.  Throw in that it was Christmas.  Ugh.

Fifth:  Will anyone – other than me and her lawyer, that is – venture to state the obvious, that at this point a federal prosecution is overkill?  Will the local media give any air whatsoever to this, or is it a thought crime?

Sixth:  Dungeons, racks, screws, stockades, the pillory.  When someone is facing 30 years over lying on a form, these medieval tortures begin to look comparatively humane.  Something is seriously wrong when that happens.

But we already knew that, didn’t we?  Why do you think this blog and others like it even exist?

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*  Note, that is an obviously correct observation, and that makes it all the worse.  There’s no answer for it, so it interferes with the desire to wallow in simmering hatreds and desires for revenge.  Woe unto the cooler head pointing out such an obvious moral consideration in the midst of a collective frenzy.

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Miriam Carey

That’s a name everyone in the United States should know.  We here at Lawyers on Strike wrote about her six months ago wondering what, if anything, would be done to follow up on a tragic story that would seem to warrant a lot of serious questions.

I mean, the woman was shot to death in the nation’s capital by police while she drove in her car and apparently made a wrong turn.  She had her one year old child strapped in the back seat.

First, let’s connect a face with the name:

mimcar

 

Very pretty.  Very young.  Seemingly happy.  And productive.

Then, do you remember the saturation coverage the incident received at the time?  That is, as long as an approved, feeding-frenzy type narrative was in play – our institutions under attack by young women in cars with their toddlers strapped in the back seat terrorists or extremists.  When the narrative failed, the story disappeared.  The media lost interest.

This post is not about the police, who do dumb things sometimes just like the rest of us.  This is about the media.  And the elected officials who mindlessly seek political advantage out of tragic circumstances, oblivious to the grim, human reality underneath.  And then the indulgence of them by a media that has no interest when a story doesn’t fit into an approved narrative.

Read the only follow up news coverage, from the online WorldNetDaily.  The fatal wound was apparently to the back of the head.  The “investigation” has taken six months so far and no conclusions have been reached.  No one, other than a lawyer named Sanders, is pressing for any answers.  No one, other than WND showed up at a news conference dealing with the case.

The whole episode is instructive.  The police, of course, are the initial sources of all “information”.  It turns out all of the information was wrong.  She wasn’t trying to crash into the capitol building; she wasn’t “mentally ill”; perhaps most importantly, she wasn’t a threat to anyone.  She was apparently shot to death for no good reason.

A tragic fuck up by the police.

It is to be hoped that the police will be held accountable civilly, not criminally, since this really doesn’t seem to be a case of criminality on their part.  This part is lawyer’s work.  And it’s important work, because maybe after it costs officials a few million dollars they won’t be so quick to pull the trigger. 

But it would also be nice if the media and the elected officials could be held accountable for their inexcusable negligence in applauding a beautiful young mother being shot to death and then for doing their best to smear her, adding cruel insult to even crueler injury.  Not sure how that could be done, but an article or two on WND and a little opinion piece over here at Lawyers on Strike doesn’t cut it.

Even so, John Boehner, Steny Hoyer and Eric Cantor all owe the Carey family an abject and very public apology.

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Wrongful Conviction ‘Industry’

Seriously.

So here’s an article, via the Wrongful Convictions Blog, by a Chicago cop taking on one of The Innocence Project’s first big wrongful conviction successes out of Chicago, back when George Ryan was governor.

Back before George Ryan went to prison, like most governors of Illinois seem to.

The cop makes a good case that in this instance the wrongfully convicted Anthony Porter was in fact rightfully convicted because he actually killed the two people he was convicted of killing in the first place. 

I guess we need a new phrase:  “wrongful exoneration”.  We’ll add that to the phrase “wrongful acquittal” that we also coined over here at Lawyers on Strike.

But let’s tone it down a bit here, shall we?  Do you think you’ve got a lot of folks over-invested in these things?

Retired cops from all over the country came to the city to help the detectives prepare for the trial, for it was a common belief among the police that Porter was guilty and had gotten away with a double homicide.

Let’s assume for purposes of dicussion that Anthony Porter was wrongfully exonerated.  The effort, including “retired cops from all over the country” to make him a poster child for the sins of the perfidious wrongful conviction industry is really nothing more than a desperate attempt to reassert dwindling dominance, and the same kind of distortion of reality that causes wrongful convictions – and for that matter wrongful exonerations – in the first place.

For months now I’ve been chronicling (see, e.g., here) a rash of court decisions out of the federal court system’s 7th circuit – that is, where Chicago and the Anthony Porter case are located – all dealing with wrongful convictions or wrongful prosecutions, in many cases admitted, where police and even prosecutors committed grotesque abuses of their power in order to obtain convictions of innocent people because that was easier and better for their ‘career’ than doing their job and doing the right thing.  And the governor isn’t shaking the hands of these rightfully exonerated and the media isn’t writing stories about them and the cop-author of the linked article isn’t mentioning any of these cases along with the Anthony Porter matter because his purpose is polemical and not educational.  It is partisan and not truthful.  It is about reclaiming absolute hegemony over the criminal justice system for the cops because apparently near absolute hegemony isn’t enough for them, and “retired cops from all over the country” are onboard with the effort, which to me is sad.

There are hucksters who will try to capitalize on any trend, and I’m sure that they have appeared and will appear again in wrongful conviction cases.  Using them to score rhetorical points is just more hucksterism. 

There is no legitimate argument that we don’t have a serious wrongful conviction problem in the United States (CNN is doing a series just on wrongful death row convictions), there is no serious dispute that the police have had too much power for too long.  As in any such state of affairs in any context the power gets abused, first by a few, and then by more than a few, and then by many until finally it is a normal part of the every day functioning of a police department.

Like the police department in Mount Morris, New York, circa 2004.

Even there, of course, not every cop enthusiastically goes along, and maybe some would join an effort to clean things up if they didn’t also feel that it would be ruinous to themselves and their families.

And here’s a reality that’s as much irony as it is true:  the friend of the honest cop in Mount Morris and elsewhere is me, not some huckster cop-author pandering to a built in readership.

Maybe there’s a wrongful conviction ‘industry’; but it’s a tiny fraction of the size, power and scope of the criminal justice system conviction industry (two can play at the game of using the term ‘industry’ as a pejorative).  In either case honesty has to trump subservience to an agenda if we are to leave the world, or at least the criminal justice system, a better place than when we found it.

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A Note On The Profession

Two seemingly unrelated pieces from legal blogs I follow:  this one from Scott Greenfield and this one from The Irreverent Lawyer

Of course I gave it away by writing “seemingly”.  Obviously, I’m now going to tell you how they are related, at least in my mind they are.

Greenfield is critiquing the latest gimmick proposal by Chief Judge Lippman to coerce require pro bono services out of would be lawyers.  That is, people who are not lawyers yet.  Law students, say.

Greenfield, as is so often the case, is both right and wrong:

The provision of legal representation to the poor is not a lawyer problem. It’s not a judge problem. And it’s most assuredly not a law student problem. It’s a societal problem, and each effort to tweak the system to alleviate the building pressure saves society, and its elected representatives, from the nasty duty to deal with it.

But let’s come back to that quote.

Irreverent is pointing out that it’s an absurd devaluation of what remains a fairly vigorous vetting process to behave as if anyone, vetted or no, can basically practice law without consequence.  Yet that is how things are, almost everywhere.  He quotes attorney Karyl Krug:

“Foolishly, I thought I would have to have a license in Arizona to call myself a lawyer in Arizona state court. I paid in excess of $2000 and went through a rigorous criminal and character background investigation lasting 6 months to get my Arizona law license. But it turns out that everybody, including the trial courts in the county with the biggest glut of death penalty cases Arizona has ever seen, can and did call whoever they wanted to a lawyer, with no criminal or other penalty whatsoever.

Now, I suppose there are big problems with enforcing the prohibitions on the unauthorized practice of law.  The libertarian in me abhors the idea of more criminal prosecutions.  I mean, enough already.  On the other hand with  civil litigation (private) enforcement you’re just going to wind up suing the judgment proof which, you know, nobody does.  Ugh. 

Regulatory enforcement?  Take a look at how attorney grievance committees work and let me know what you think.

But let’s not kid ourselves that there isn’t a real problem.  I have found myself on more than one occasion “competing” with “legal advice” from laymen to clients or prospective clients that is utterly bizarre, along the lines of taking the position that outcomes would be different if you just spoke the magic words to the court.  Something to do with the Queen of England and gold fringes on the flag in the courtroom.  Others have had similar experiences.  But I attribute this to too many – far too many – outcomes that make no sense and can’t be explained rationally other than to say that the courts favor the powerful.  People quite understandably will not accept such an explanation, and when they get done with their increasingly bizarre and insane explanations they will turn to violence.  If nothing changes, that is.

And how are things going to change?  Well, the profession has to do it.  There isn’t anyone else.  And it’s only reasonable to expect that those on the receiving end will have to lead the way.  That means criminal defense lawyers.  And personal injury Plaintiff lawyers.  When the judge denies your criminal defendant’s well-reasoned motion to dismiss for no good reason in the face of some garbage form opposition from the DA’s office; or when the judge grants insurance defense counsel’s motion for summary judgment for no good reason other than that he thinks no one will make a fuss…..well, make a fuss.  A big one.

So here’s where Greenfield is wrong.  The gap in legal service to the poor is a lawyer problem and very much a “judge problem”.  A lawyer, almost any lawyer, would be able to make a living or even do quite well if judges actually followed the law and applied it even-handedly.  Because if they did that, the little guy would win with some frequency,* whereas as things stand now a judge might pay lip service to how valuable your services are by tossing off a phrase or two about it when he screws over you and your client (that’s a common practice), but he’s still screwing over you and your client and rendering your knowledge of the law and your skill in using it and arguing it worthless.

And this change in judicial behavior would also have the salutary effect of doing justice, righting wrongs and making adjustments in wealth from those who have cheated or lied or worse, to those who have been victimized by that – and their lawyers, too.

This is what the rule of law is supposed to accomplish.  When you have it.

And then the pro bono thing tends to take care of itself.  And the citizenry is less liable to be taken in by charlatans that claim to be lawyers but aren’t.  And the citizenry recovers at least some modicum of respect for lawyers and the legal profession because things work a little bit more like they are supposed to, because when they don’t people tend to blame lawyers even though judges are the real problem.

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*  There’s a whole legal industry to be made opposing foreclosures and evictions.  Without making the case in this post, it seems to me none of the big banks should be entitled to foreclose on anyone; and that people being evicted for non-payment are being denied equal protection of the laws.  The arguments in support of both propositions are sound and not difficult.  What’s difficult is getting judges to yield to sound arguments when that means they’d have to tell the powers that be:  “You lose.”

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Devious

There’s a peculiar kind of deviousness in the course of wrongdoing that is characteristic of law enforcement.  It’s a deviousness mixed with brazenness.  It has to do with, well, I don’t know exactly.

But here, as chronicled by Jonathan Turley, is the case of a supervising cop who starts an affair with the wife of a subordinate cop and then trumps up child molestation charges against the subordinate cop with the subordinate cop’s wife. 

And the subordinate cop goes to prison for 20 years.

Somehow nobody in the department, none of the prosecutors, judges, or for that matter at least one defense lawyer seems to balk at the charges given the stunning and brazen impropriety of it all.  As Turley notes:

I am also curious how this supervisor could live with this person and not have a single officer raise the obvious ethical concern with the department.

“Curious” is one way to put it.  But the absence of any inquiry or complaint on this point by an entire law enforcement/justice system establishment dovetails perfectly with apparently unselfconscious willingness of the supervisor to do what he did in the first place. 

If I do it, it’s not wrong.  That kind of thing.

Whatever is in the koolaid some law enforcement officials are drinking, the result sometimes looks like an epidemic of the abuse of power.

There’s nothing more dangerous than a bad cop.

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Sea Change (Updated)

Last week, a three judge panel on the 7th Circuit came down with a split decision in the matter of Fields v. Wharrie.  Judge Posner wrote the majority opinion and Judge Sykes dissented.

Like almost all the due process cases that we have been interested in here recently at Lawyers on Strike, Fields is an action under 42 U.S.C. 1983 and primarily deals with issues of prosecutor immunity from suit under that statute.  But when you rule out “absolute” immunity as the 7th Circuit did here, and begin to consider “qualified” immunity, as the 7th Circuit also did here, you reach the question of whether there is a constitutional violation triggering section 1983 at all.  Don’t ask why, it’s not important.

What is important is that in reaching this very big constitutional question at issue in Fields that shouldn’t be a big issue at all – that is, do prosecutors and/or police violate a defendant’s right to due process of law when they deliberately use perjury and fabricated evidence to prosecute him? – you have Judge Posner answering one way – that it is a violation of due process of law – and Judge Sykes answering the opposite.

Now, neither one of them has anywhere near as good a handle on this issue as we do.  See here and here and here and here and here and here and here.  It’s not that I blame them.  I spent two years of the last ten being completely incredulous at the thought that this was a big issue myself.  And I had a case where they had put a knife to my client’s throat and raped her, and by thereafter framing her for prosecution they were trying in effect to murder her (18 year old high school girl, no criminal record) through self-harm, so the issue was staring me right in the face from early on (well, relatively early).  Meaning that I had a great deal at stake in it, whereas these federal judges don’t.

Anyway, I figured once I had shown what happened to her, my job was done.  It took a long time to sink in that there were some warped individuals out there calling themselves judges and lawyers that didn’t believe such official conduct violated anyone’s rights, and that I would have to spend well, pretty much a decade of my life trying to dispel that idea as well.

But let’s move on.  Because something is plainly afoot in the country’s federal appellate courts.

Judge Posner is one of those federal court of appeals judges that are almost like a Supreme Court Justice because he is so well known and respected.  And it appears that he now gets it, in more ways than one.  Because not only has he seen this due process issue and come down on the right side of it, he has gone on from there and thought about the question of how this absurdity could ever have been argued in the first place, and he is treating the formerly highly favored litigants’ attorneys who have made such arguments with a rather harsh skepticism that would have been unthinkable from any federal judge even a year or two ago.

That is the significance of an earlier decision he penned for a different three judge panel just a few months ago, Julian v. Hanna.  Read the opinion.  He excoriates the formerly favored litigants’ attorneys.  He says their omission of citation to a well known case that didn’t support their position was “inexcusable”.  He said they exceeded the boundaries of “responsible advocacy”.  And then he decided squarely against the formerly favored litigants, reversing the District Court in the process with a unanimous opinion.  Then a few months later – that is, last week – he has flushed Judge Sykes out of hiding and made her go on the record with an indefensible opinion in dissent saying, in effect, that deliberately using perjury and fabricated evidence to prosecute someone doesn’t violate their right to due process.

The stage is now set.  All it needed was an explicit disagreement among the appeals judges.  This due process issue is now ripe for Supreme Court review.  That review has almost happened twice within the last year or so, and now it is sure to happen soon, quite possibly on the Fields case itself.

But the broader implications of Fields are equally significant.  Judge Posner’s epiphany has surely not occurred in a vacuum.  A judge on South Carolina’s Supreme Court told a gathering of prosecutors – a gathering of prosecutors! – that they’ve been indulged too much for too long and that it’s over and that if they keep it up there will be consequences.  To them.

Less than two months ago the US Court of Appeals for the 2nd circuit smacked the New York State Attorney General’s office for refusing to see an obvious 8th amendment problem.

Just two weeks ago, the first en banc decision coming out of the 2nd circuit in about two years held that prosecutors might be held liable for horrifying perfidy in obtaining a conviction even where their victim had pleaded guilty.

All of these developments would have been unthinkable even three years ago. 

This is what a sea change looks like when you’re in the middle of it.  No one really notices at first, or at best only a few people.  It’s only in retrospect that the certainty of it all becomes apparent to most people.

But the certainty is there from the beginning.  There is no doubt about what is happening, finally, among some judges in this country. 

It is a very, very good and encouraging development for those who are concerned about the rule of law.  Just my two cents, of course.

And Judge Posner’s.

UpdateScott Greenfield notes another example.  I kid you not, this stuff never used to happen.  Never.  You never heard a judge on the record excoriating prosecutors.  Hell they would only rarely do that to defense lawyers.  It’s like a memo went out somewhere, iohno.

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Ugh.

The depth of the insularity required to pen this little op-ed on the SCOTUS blog is impossible to fathom.  The author seems completely unaware of the world outside of Harvard Law School graduates, the Solicitor General’s Office and the Supreme Court.  The burning question she is addressing is:  should the government’s counsel before the Supreme Court – that is, the Solicitor General’s (SG’s) office – be favored only in those cases in which they have a direct interest, or should the SG be favored in as many cases as possible, even where their interest is much more attenuated?

Thus the title of the article:  “Too Much Of A Good Thing?”  Apparently, some of us just can’t get enough of the SG.

The SG, notes the author, “…has been an enormously successful litigant”.  Put another way, the government most often wins in its own courts. 

Duh. 

But let’s pretend: 

Given the high quality of the SG’s work in general, and the apparent helpfulness of the SG’s amicus briefs, many observers seem to approve of the status quo, and applaud the SG filing numerous amicus briefs, and their influence on the Court.

She couldn’t possibly believe the drivel she’s admiring here.  She went to Harvard herself.  She’s not stupid; she just thinks her audience is. 

But alas, she just echoes it all in her own piece:

…many scholars have lauded the SG’s active role in Supreme Court litigation, noting that the SG is an expert and unbiased source of information for the Court.

That “many scholars” feel that way is a great argument for a complete overhaul of legal education, especially if they also feel that “…the SG is an expert and unbiased source of information.”

I’m sure the SG’s office delivers high quality work.  So do many other litigants’ counsel.  But there’s something else to consider:  they’re also wrong a lot

Once Justice Stevens went on a little bit of a tirade about the favoritism the Supreme Court shows to the government

This Court has a special obligation to administer justice impartially and to set an example of impartiality for other courts to emulate. When the Court appears to favor the Government over the ordinary litigant, it seriously compromises its ability to discharge that important duty…because I am so firmly opposed to the Court’s favored treatment of the Government as a litigator, I would dismiss the writ of certiorari as improvidently granted.

He was writing in dissent, of course.

Isn’t it odd that in our system of justice, it’s an open secret that at least one kind of litigant is heavily favored in the nation’s highest court?  You would think that a candid admission that one litigant is to be favored over all others might generate a little heat out there in flyover country; but then the fact of it is hardly reported at all.

But whether people are aware of it or not, the SCOTUS relationship with the SG’s office is a big problem.  In childish terms that might actually be appropriate in this context, judges on other courts will see the SCOTUS playing favorites, and who they’re playing favorites to, and do the same thing, with the same litigants, or types of litigants.

And that winds up explaining a lot.  Although would that it were otherwise.

 

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Brady’s Bastard Children (Updated)

I’m going to have a lot to say about this case, decided just last week by an en banc United States Court of Appeals for the Second Circuit.

As a preliminary matter, before I really get into it, the overview is remarkable enough.  US Courts of Appeal usually hear and decide cases in three judge panels.  But there are many more judges than just three on the court as a whole.

See here.  That’s 24 judges, by my count.

So what happens with this Poventud case is that it gets decided by a three judge panel in April of 2013, but one judge – Jacobs, who was apparently at that time also the Chief Judge of the whole court – dissented.  A 2 to 1 vote, in other words.

Here’s a little reality for those of you not familiar with how things work in the courts.  Overwhelmingly, depending on the type of litigant*, cases on appeal get no serious attention, the three judge panel decision is unanimous, and the appellate courts just affirm what happened in the trial court.  Often and somewhat recently, in a highly questionable practice, this is done in the federal courts of appeal by decisions explicitly saying that they are not to be taken seriously.  I’m not making that up.  The way it’s worded is that the decision is not intended to have any precedential value and should not be cited as authority.

But one perhaps beneficial consequence of this highly questionable practice is that decisions that don’t explicitly call themselves bullshit get noticed a little more, even when they are unanimous.  Then, moving up the scale of what is deemed important in the federal courts of appeals, when you have a three judge panel issue a decision that is not unanimous – in other words, there is a dissent – well, now in precedential and legal terms this decision is going to get quite a bit of attention, relatively speaking.

Moving up further, you get to the extreme situation.  That’s when you get a divided three judge panel, the case gets referred to the whole court for en banc consideration, the whole court takes it up (!) and when it is decided there’s a serious disagreement among the judges on the court as a whole.

This is what you might call the most “important” kind of decision from a federal court of appeals, and I put that in quotes because it may or may not be important in some absolute sense, but it is definitely important in the sense that federal judges all over the country, and their staffs and law clerks and so forth, will be pondering the great question(s) presented by a case that makes it to this level, and they will be looking for cases that present the same question(s) so that they can weigh in with their 2 cents.

And when I say judges all over the country, I am obviously including the judges on the SCOTUS.  Put another way, once you have a bitterly divided en banc panel of a federal court of appeal, there is a high likelihood that the losing party will seek – and get – review in the SCOTUS.

Because bitterly divided federal courts of appeal are unseemly, or something.

Bottom line, this Poventud case is very significant in the way I have described.  Does it present some issues that have animated us here over at Lawyers on Strike?

Oh, yes.  More to come.

Update:  Of course, while we ponder this very important case and its transcendant questions, the top story on CNN is Justin Bieber’s arrest in Florida.  Meh.

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Regular readers will understand.  When the appellant is a disfavored litigant (e.g., lone individual) this is the case.  When the appellant is a favored litigant (e.g., government, bank), serious attention is always given to their appeals.  Not right.  Just how it is.

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A Longshot

Since we’ve dealt with the death penalty a little bit today and wrung our hands over the need to balance the scales – well at least I wrung my hands over it some – it seems only fair to take note of this simultaneously appearing story, also from today. 

Web synchronicity, doncha know.

And of course I think it’s worthwhile to look at the picture:

1ddabefff7958b02490f6a7067007641

So it’s fair to ask the question.  Let’s assume that he did it, that he killed the 11 and 7 year old white girls.  I mean it’s a big assumption, conviction or no, but let’s run with it.

Does it seem sensible, or even sane, to speak about killing him as achieving some sort of “balance” of some kind of “scale”? 

Like I said in the last post, I can think about the scales and the crimes and about balancing it all out pretty well, and fit it neatly together in my mind where justice is done perfectly.  In the abstract.

But this is not so abstract.  And it’s only a photo.  Imagine the impact of meeting him personally, shaking his hand or listening to him talk.  Or breathe.  Knowing that you’ve decided that the right thing to do is to snuff all that out.

And of course the fact that it’s a 14 year old boy makes a difference emotionally, but how much difference should it make rationally?  The age of reason used to be fixed at about 7.  Historically, 14 year olds were regarded as well past the age of reason and often punished just like adults.

But, you know, it just seems wrong.  And age – at least once you’re past the age of reason – is a difference of degree, but not of kind. 

And since it’s life and death we’re talking about we ought to make principled distinctions before we go down that road, and difference in degree doesn’t cut it.

Finally, there’s this:

Experts say it is a longshot. South Carolina law has a high bar to grant new trials. Also, the legal system in the state before segregation often found defendants guilty with evidence that would be considered scant today. If Mullen [the judge - ed.] finds in favor of Stinney, it could open the door for hundreds of other appeals.

Yes, it’s a “high bar to grant new trials”, and not just in South Carolina.  And I’m sure the legal system “before segregation” (sic) often found defendants guilty with “scant” evidence, because it often does that “after segregation” – that is, today – as well.  The implication to the contrary is fatuous, and is a very good example of the poor quality of journalism with respect to legal matters that Ken at Popehat has been recently lamenting.

And a “floodgates” argument?  Meh.

Just thought I’d make those other points.  This is really a post about the death penalty, but I didn’t want people to think I was obsessed with death penalty abolition.  Like Gamso is.

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Slow News Day

But you see…it never really is a slow news day.

This is so annoying.  We read about all these arrests, taken right off the cop news wire.  This oneThis oneThis oneThis one.

No arrest, however trivial, shall be overlooked.  We run the shaming pics, we cover the perp walks.  Ugh.

Meanwhile, it mught be nice for people to know how they’re being set up to pay another bailout for another costly financial scandal on Wall Street

I mean, front-running Fannie and Freddie?  You know how many trillions are involved there?  Never mind. 

Here’s another little tidbit that has never been reported in the mainstream press:  The New York State Attorney General took the position in federal court that when state prisons’ corrections officers don masks and attack an inmate, outnumbering the inmate 3 to 1, and in the course of the attack spray him with “…a mixture of fecal matter, vinegar and machine oil”, that that is not cruel and unusual punishment.

There is something seriously wrong at the New York State Attorney General’s office.  The name of the Assistant Attorney General who advanced this position is Jonathan D. Hitsous.  His “web presence” is very sparse indeed.

Perhaps that’s a good thing.

In any case, perhaps people in the State of New York might want to know that their Attorney General, the chief law enforcement officer of the state, defends the torture and degradation of inmates in the state prisons, probably for reasons of political expediency.  Not that that matters.

I would call that pretty fucking outrageous, wouldn’t you?  Not just what the corrections officers are alleged to have done, but the Attorney General’s position.

Now, if they made as big a deal out of this incident as they should I have little doubt they would sell newspapers, or whatever the internet age equivalent of that is.  The question, then, is:  why don’t they?

I challenge anyone in the Rochester media to come over here and explain this ugly excuse for “editorial judgment”.

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Chesterton? (Updated)

You wouldn’t expect the venerable G.K. Chesterton to be quoted in law blogs.  But lo and behold.

It’s an important insight:  you not only have to know that a thing is there, you have to know why it is there before you might really understand it.

Case in point:  the well known idea of “Brady” violations (well-known among criminal defense lawyers, that is.)

Brady refers to a 1963 case we’ve discussed on many occasions, most recently here.  The case stood for the proposition that a public prosecutor has an obligation to search his file for any evidence potentially “exculpating” the object of his prosecution and turn it over to the defense.  It was described in the opinion itself as “…an extension of Mooney”, referring to a 1935 case, Mooney v. Holohan.

Mooney had held that the deliberate use of perjury or fabricated evidence by the prosecution, and the deliberate suppression of exculpatory evidence, violated a defendant’s right to due process of law.

So properly speaking, a Brady violation is the inadvertent failure by the prosecution to disclose exculpatory evidence.  But the deliberate suppression of exculpatory evidence is not so much a Brady violation as it is a Mooney violation.

But no one in the criminal defense bar ever talks about Mooney violations.  Just Brady violations.  And they are not the same thing.

Brady is such a well known case that no one bothers to read it:

We agree with the Court of Appeals that suppression of this [3rd party's]confession was a violation of the Due Process Clause of the Fourteenth Amendment. The Court of Appeals relied in the main on two decisions from the Third Circuit Court of Appeals—United States ex rel. Almeida v. Baldi, 195 F. 2d 815, and United States ex rel. Thompson v. Dye, 221 F. 2d 763—which, we agree, state the correct constitutional rule.

This ruling is an extension of Mooney v. Holohan, 294 U. S. 103, 112,

The problem – well, one problem anyway – with confusing Brady violations with Mooney violations is that Brady has turned out to be a very hollow promise indeed.  Nevertheless, we can survive a system in which Brady is a hollow promise.  It shouldn’t be a hollow promise, and we should work to invest it with the working validity it deserves to have, but we can survive it.

But we cannot, absolutely positively cannot, survive a system in which Mooney is a hollow promise.

So here’s where you have to step back from thinking like a criminal defense lawyer to just thinking – maybe still like a lawyer, but then again maybe a bit more like a judge.  Because a criminal defense lawyer will never yield on the principle of Brady, nor should he really.  The criminal defense bar as a whole must insist on fulfilling the presently hollow promise of Brady, and to do that the egregious examples of suppressing exculpatory evidence – that is, when it is done deliberately – are useful.  Because they are especially persuasive in arguing that Brady should be more than a hollow promise, that indeed its rule should be vigorously enforced.

But you also bump up against the reality that a judge is going to be reluctant to overturn a conviction because of an inadvertent error by the prosecutor.  No doubt very few if any convictions are obtained without at least a few inadvertent errors by the prosecutor.

So it becomes important, then, to differentiate between the inadvertent (Brady) and the deliberate (Mooney) suppression of exculpatory evidence by prosecutors.  Especially when you can actually prove the latter. 

Important or not, though, what you’re liable to run into is not just the reluctance and skepticism of prosecutors and judges (which you are expecting) but a reluctance on the part of defense lawyers as well, a reluctance to distinguish deliberate from inadvertent suppression, owing to an instinctive belief that this will wind up minimizing the seriousness of the inadvertent suppression.

And that belief is not without some merit.

Still, if you’re one of the ones running the system as opposed to advocating for a litigant or a class of litigants, the importance of the distinction will, or should, drive your decision. 

In other words, the deliberate suppression of exculpatory evidence is always a violation of due process, not because of Brady but because of Mooney.  The inadvertent suppression of exculpatory evidence – what Brady was really addressing – is a violation of due process sometimes.  And sometimes it isn’t.

And truth be told, this is actually the law, and has been since 1935, the unfortunate confusion generated by Brady notwithstanding.

Maybe there should be a law school class on the thought of G.K. Chesterton.  It seems to make criminal defense lawyers smarter, anyway.

Update:  Oops.  I hadn’t noticed the currency of this whole Brady topic, having missed the NY Times editorial that Scott Greenfield didn’t.

Something must be in the air when the New York Times prints an editorial using the phrase “Rampant Prosecutorial Misconduct”, and it’s actually the title of the piece.

Anyway.

It’s an interesting little foray into the issue because once again you can see the importance of Chesterton’s fence parable.  As Greenfield points out, the Times editorial seems to miss the point of the very opinion (by Judge Kozinski of the US Court of Appeals for the 9th circuit) that has prompted its editorial.  Kozinski blames judges for the hollowness of the Brady promise; The Times editorial shifts the blame - and more troublingly, the proposed solution – to prosecutors themselves, providing a link to a document concerning itself with guidelines for “conviction integrity units” run by…..prosecutors’ offices.

There’s so much to be said here.  But for this update portion of this post I want to point out just one thing:  the curious invisibility of the criminal defense bar in the Times’ calculus of the whole issue.  One would think that “conviction integrity” strongly implicates criminal defense lawyers and the role they play in judicial processes that result in convictions, yet the Times editorial doesn’t even mention them.  I’ve noted this phenomenon before.  Perhaps I’ll have more to say about this later.

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Global Warming (Updated)(x2)

They could use some in Winnipeg.

I’m a little familiar with that part of the world.  I’ve always thought that Winnipeg and relatively nearby Thunder Bay must have about the worst climate on the planet:  it can get extremely cold in the winter (40 below and worse) and extremely hot in the summer (110F or more).

It strikes me that these sorts of cold snaps happened a lot in the 1970′s, so they started talking about “pollution” causing a man-made ice age:

images

In the  end this is all silliness, a variant on Chicken Little, a children’s folk tale that might be as much as 25 centuries old.

We need to grow up a little.

UpdateThis is funny.

Update 2Can it get any funnier?

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Snowden The Insufferable? (Updated.)

The Washington Post’s Ruth Marcus takes on (again) the Edward Snowden saga, in a peculiar and, in the larger sense, fairly revealing way.

I haven’t followed the Snowden story closely.  I think it’s significant, but not as significant as it’s been played.  I am more surprised that people seem so surprised and shocked that we have federal government intelligence gathering agencies that collect - well - just about everything, than I am surprised at the fact that there are such agencies and that they have such capabilities. 

If that makes any sense.

Sorry to dwell on myself with a string of ‘I’ sentences, but I’m trying to be clear about where the opinion I’m writing down here is coming from.  So if you’re reading and interested please bear with the seeming ego-centricity a bit longer.

I’m a veteran of the cold war.  We had a lot of newly minted intelligence gathering capabilities in the 1980′s, especially of the electronic variety.  In fact, we already gathered massively more intelligence information than we could ever hope to adequately “analyze”, which is at least as important as having the information to begin with.  Accordingly, I have never in my adult life believed that any phone conversation or email was safe from being surveilled by government agencies any time someone felt like it.

Of course it is obvious, or should be, that in the time since I was professsionally familiar with federal government intelligence gathering capabilities those capabilities have greatly – not to say exponentially -expanded.  That was inevitable, and anyone could have seen it, even 30 years ago.  Easily.

But it should be just as obvious that the ability to analyze the information, while it might have improved marginally due to sophisticated technological assist, has undergone no such transformation.  We’re getting massively surveilled all the time, but that doesn’t mean anyone really knows anything.  We can dig up huge amounts of information about anyone – after the fact.  But frankly, we could have done that before, too.

Back in the cold war there was a nuclear disarmament movement.  It’s a nice sentiment, I suppose, but in the end it’s a silly idea.  We could destroy every nuclear weapon on earth or launch them into outer space.  Someone could still manufacture a whole bunch more tomorrow.  Including us.

You can wish things to be other than they are.  But things will remain as they are.

So, back to Snowden and the WaPo take on the whole thing.

If you read the linked article carefully it substantively endorses what Snowden did and is in agreement with him.  But stylistically, it’s a snide exercise in character assassination: 

…smug, self-righteous, egotistical, disingenuous, megalomaniacal, overwrought.

Really, Ruth?  I’ve caught clips of Snowden being interviewed.  Seems like a nice young man to me, but I wouldn’t go too far out on a limb either way.  Why do you?

There’s a frightening mindset at work here, and it isn’t Snowden’s.

The beltway opinion about “whistleblowers” is that they are outliers who make a splash but are not capable of effectuating “meaningful change”.  Meaningful change, of course, comes about as the result of engaging in the process that makes the beltway what it is:  you manipulate the right people cultivate inside support, you bribe lobby, you fake obtain “grass roots” enthusiasm, you pitch the sale, and you close the deal only after your original purpose has been cut, pasted and compromised into unrecognizability.  Then the approved pundits and “journalists” see if they can get a lot of heated opinions going among the morons in fly-over country, which distracts them from their miserable lives, generates viewership and revenue and enables the beltway insiders to feed off their host for a little while longer.

And so this is the real problem with Snowden.  Not what he did, but how he did it.  He’s a threat to the whole system, but not the way you think.  The real problem is bypassing the beltway shuffle; all the harangue about government surveillance is a sideshow, but it’s a galling one because…he was also right to bring attention to the issue.  Inside the beltway they hate it when people they don’t like have the gall to be right.

And that’s what the WaPo article really says.  Isn’t that revealing?

One last point.  Overwrought?  That is the last adjective that could reasonably be applied to Snowden, at least from the clips I have seen.  If anything, he seems almost abnormally subdued under the circumstances.  But that does not deter beltway people.  They love making obviously incorrect “observations” about people and then making them stick through sheer media monopoly group-think.  At least, they stick among all the People Who Matter, which is to say….them.

That’ll show that smarmy Edward Snowden.

UpdateSo now the New York Times weighs in.  Which is, you know interesting.  They don’t disagree with Snowden either; in fact, they think he did the right thing.  So they’re looking for some sort of clemency or amnesty.

Of course, Daniel Ellsberg went to trial.  The judge threw out the government’s case eventually, which ordinarily would never happen but in those days the New York Times was cover enough for a federal judge to buck the government.

I don’t know.  Maybe the only lesson here is that a government whistle blower will get a better reception at the New York Times and a Wall Street whistle blower will fare better with the Washington Post.  Both big papers, in other words, protecting their turf more than anything else.

 

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Prosecuting For Fun And Profit

From time to time prosecutors’ offices – and not just federal ones – issue press releases with information like this:  $94 million “recovered” from, well, what do you call it?  Prosecutorial operations, I guess.

Bringing the profit motive to bear upon criminal prosecutions is troubling, for reasons so fundamental that it’s hard for a lot of people to see it, and it’s even hard to put it into words.  But briefly, government actors shouldn’t behave like private enterprise.  Government is the referee in the game, not a player.  Government doesn’t have any competition, it has a legal monopoly – on force, no less.  Government is supposed to be disinterested in outcomes, other than seeing justice prevail.

But what is more troubling than the fact that this kind of thing is occurring is that US Attorney’s offices issue press releases about it, touting the supposed benefits to taxpayers and whatnot.  Indeed, the linked press release goes to some length to point out that the US Attorney’s office is, you know, a profit center for the taxpayers.

That is not the US Attorney’s job.  The US Attorney’s office is supposed to cost the taxpayers money.  All law enforcement is.  And it does, in ways both obvious and hidden.  The “recovered” $94 million doesn’t make a dent in the real cost of criminal prosecutions.

What the $94 million does do, though, is to create opportunities and temptations for over-reaching, corruption, waste, fraud, and abuse.  That such undesirable consequences have plagued law enforcement operations anywhere and everywhere they have been given incentives to grab money from their targets should hardly be news to anyone.  Stories have appeared over and over.  Even in the mainstream media.

There’s an undeniable mass appeal to the narrative that goes:  we, the good guys, are not only arresting, prosecuting and imprisoning the bad guys; we are turning their ill-gotten gains to good purposes – that is, catching more bad guys.  Then again, there is an undeniable mass appeal to utopian fantasies.  Reality is never quite so simple.

I can understand young law enforcement officers getting carried away with the false narrative.  I’d be less tolerant of older law enforcement officers.  And – with all due respect, of course – I think the US Attorney’s office issuing a cheerleading type press release about this sort of thing is pretty disturbing.  It’s like they need a maturity check.  Or perhaps more than that.

Not that anyone is listening to me, of course.  I mean, they should, I think.  Not for my sake but for theirs.

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Drug Overdose

Apparently, according to some sparse news reports, this was the cause of death of two inmates at Attica Correctional Facility last week.  The idea is that two inmates in separate cells coincidentally died of drug overdoses on the same day, and maybe a third almost died but was taken to the hospital.

That’s the idea.  Maybe it’s just me, but it would seem a few details might be missing from this account.  But an investigation is ongoing.  So there’s that, then.

We’ll follow up on this as best we can around here, and as we have already.  We note that this does not seem high on anyone’s list of concerns except ours, but we humbly persist anyway.  We won’t prejudge, we have no agenda other than the unarguable concern that the people we lock up are not punished beyond that by some kind of abuse or neglect.

That is unarguable, right?

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