Category Archives: Striking lawyers

They’re fed up. They’re hitting back. Good for them.

The Unserious Approach To Ferguson – And A Serious Solution

I’m sure Eric Holder has good intentions, as far as they go. 

We’ve seen this before:  civil unrest followed by the National Guard followed by a sop from Washington, usually in the form of some high profile visit or other.  Maybe by the President.  More often the Attorney General.

On his day-long swing through the area, the attorney general was welcomed warmly at every stop.  At Drake’s Place, a soul food restaurant located a few blocks from the scene of overnight clashes, Holder went table to table offering words of encouragement to some stung by the fatal shooting and days of unrest. 

“We don’t want the world to know that’s all that’s going on here,” said Viola Murphy, mayor of the nearby Cool Valley community.

“We can make it better,” Holder told her.

 

How are you going to “make it better”, Eric?  You’ve got some kind of magic wand you wave?

We’ve said this many times:  civil unrest is an indictment of our courts and our legal profession.  Another program or edict emanating from Washington, punctuated by a media saturated visit from a high ranking official, isn’t going to accomplish jack other than maybe quelling the immediate disorder.  For now.

The serious solution, or at least one serious solution, is very simple.  Norm Pattis alluded to it the other day:

What is not written in the Constitution is the legal doctrine the courts have fallen in love with and rely upon to keep police misconduct cases from going to trial — qualified immunity. This doctrine sprung from the fertile imagination of a judiciary sick and tired of presiding over civil rights cases. It is a product of a judicial revolution no one noticed, a revolution that has effectively closed the courts to ordinary people seeking justice.

 

We at Lawyers on Strike suggested this kind of serious solution more than two years ago:

Statutes can be amended by a simple act of Congress.

So if the people of the US ever recover their gumption, they might want to browbeat their federal legislators/congress-critters into amending 42 U.S.C. 1983 to provide a few things to counteract the execrable rulings of the SCOTUS.  Such as:

1) no immunities for public officials, including judges;

2) no statute of limitations;

3) no summary judgment permitted (F.R.Civ.P Rule 56 won’t apply)

4) Make it all retroactive.

 

It bears repeating:  we have a lot of lawyers who need work.  For a long time – too long – lawyer “work” with any cache or prospect of a prosperous living has meant to become a toady and tool of the powerful against the weak:  represent the bank, the insurance company, the government.

Even so, all the unemployed and underemployed lawyers are a great untapped resource out there, and Ferguson demonstrates once again – just like the Occupy movement did – that there’s an increasingly desperate need.  What’s not to like? 

A “litigation explosion”?  Meh.  The only litigation explosion that ever actually happened was a stupefying increase in criminal prosecutions and imprisonments.  All the rest was insurance company propaganda.  We should be ashamed of ourselves for being so thoroughly duped. 

Nevertheless, however simple this serious solution is, it’s not easy.  There are a lot of conflicting and powerful interests – police unions, for example.  And as a people we don’t do difficult too well anymore.  Or at all, it sometimes seems.

There is a basic lack of discipline, I think.  Mental discipline in the first instance is required to understand what a serious solution might be.  And then personal and behavioral discipline is required to implement the serious solution.

So in the meantime there are emotionally cathartic visits by the Attorney General to the trouble spot of the day, and then when we tire of that there is Kim Kardashian.  Until the next unarmed black teenager is shot to death by a police officer at one of those odd moments that makes it a triggering event. 

The undisciplined lurch from crisis to crisis, in between long periods of indifference and indolence.  If that’s what we have become then what happened in Ferguson is just random, episodic noise, fodder for a news cycle and little else.

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Ferguson, MO – Smearing And Pandering

I suppose a little should be said about this.

First, the killing of Michael Brown is a triggering event, not the real reason for the rioting and looting.  So the relative merits of justifying Michael Brown’s shooting death by a police officer are largely beside the point.  Even if you could call the shooting justified there are problems in Ferguson that transcend Brown’s killing, as Professor Turley makes abundantly clear in this post.

Second, Greenfield is quite right about the effort to smear the deceased, and I think it’s just more fuel on the fire for the police to release the video.  Bad judgment, even if you think the video supports the view that the police claim.  Releasing it has had the predictable result of provoking further rioting in response.  Moreover, this is a revealing series of events about the mindset of the police:  even their style of “argumentation” tends towards efforts to overpower.  The lack of subtlety in a situation like this is….disturbing.  And counter-productive.

And I appreciate SHG’s link to Judge Kopf’s blog post, not least because of the truly frightening anomaly that I agree with a federal judge on both counts. 

Beyond that. however, two observations about SHG here:  first, for whatever reason he’s gone a bit off the rails on this one.  Despite the stupidity of releasing that video, it is certainly relevant to the claim that the police officer shot after being attacked.  Arguing otherwise is untenable.

Second, there’s this table-pounding, unequivocal – and one can therefore conclude questionable – assertion:

I would throw whatever I could at the case if I was repping Wilson [that is, the police officer who shot and killed the kid - ed.]. Not because it was relevant, or that its prejudice didn’t outweigh its probative value, but because my sole duty is defend my client, reason be damned.

But that’s because I’m a defense lawyer. My duty isn’t to the public, or truth, justice and the American way. If pandering to stupidity and emotion serves my client’s interest, I’m obliged to do so.

I’m not saying Greenfield is wrong here, exactly.  Maybe all I’ll say for now is that first, it sets forth a false dilemma:  how can you know for sure in advance that “pandering to stupidity and emotion” serves a client’s interest?  It’s not impossible that it could, but more importantly can’t SHG understand that even if it’s true, stating this openly – and to a judge no less – is virtually destroys his credibility?  Is he now going to appear in front of juries and argue stuff, when a juror has probably looked up his blog, read that quote, and not unfairly concluded based upon it that he can’t trust anything SHG says?

And when he says that all defense lawyers believe that, isn’t he potentially hurting them and their clients also, by discrediting them in advance?

This is a big problem, and not just for SHG.  SHG should address it, methinks.

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Moreland Commission

There’s a pretty major flap going on, considering it’s an election year, over a temporary “independent” commission appointed by Governor Cuomo, supposedly to “root out” corruption in the State’s capital.  The commission was headed up by Onondaga County District Attorney William Fitzpatrick.  The commission was disbanded – some say “abruptly”, others say because it was “mission accomplished” – a month or so ago.

Last week the New York Times published a very detailed piece more or less chronicling gross interference with the independent (not) commission by the governor’s men.  This prompted a ringing defense of the commission and its independence (not) by Chairman Fitzpatrick in the form of a three page letter dated July 28th, which you can find here.

First, I encourage you to read Fitzpatrick’s letter.  Whatever its merits otherwise, it is typical DA bluster, long on rhetoric, short on specifics, and completely devoid of anything resembling reasoning.  It’s a screed from someone who seems to think that all he need do to dispose of accusations of corruption is to call them “absurd”.  Not one fact chronicled in the New York Times piece is even specifically denied, let alone refuted.

There’s a lot to say about all this, but not now.  In the meantime, it’s worth noting that some people whose opinions I respect believe this whole flap is orchestrated by the Clinton camp to damage Cuomo, a political rival for the 2016 presidential nomination.  And that may well be.  Multiple levels of perfidy and skullduggery are standard procedure in the political cesspool known as New York State.

But we’ll comment later on some larger aspects of all this, endeavoring to wed the macro to the micro, one of our favorite tasks over here at Lawyers on Strike.  We sometimes do a good job of that, and we sometimes don’t, but we do make the effort.

To be continued.

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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.

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*  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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Good Faith Presumption?

Interesting discussion over at SJ about presuming that the government acts in good faith.  And I certainly agree that there has to be a good faith presumption in favor of government conduct, just as there should be a presumption of regularity, and a presumption of paternity where the mother is married, and so on.

But the error Greenfield is making in his own analysis is also quite interesting.  At least in the context of criminal prosecutions and defending against them, which is the SJ raison d’etre, the presumption that a criminal prosecution is brought in good faith is not ‘rebuttable’.  It’s what we call conclusive

How do you know?  There’s no affirmative defense to a criminal prosecution that it is not brought in good faith.  New York’s Criminal Procedure Law, for example, simply does not contemplate that a criminal prosecution could be brought in bad faith so does not address it until after there is a conviction (in Article 440).

If you find yourself on the receiving end of a criminal prosecution that is, in fact, not brought in good faith, you have to resort to what we call a “collateral” proceeding, or you have to wait until there is a conviction before you can challenge it.  There’s no argument to make to the trial judge except for “due process”; but that’s another post, not this one.

Collateral proceedings are highly disfavored when they are addressing a criminal prosecution.  There are very good reasons for that.  Nevertheless, if a criminal prosecution is not brought in good faith it’s the only remedy there is.

Every criminal defense lawyer should know that.

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More Due Process Error Needing Correction (Updated)

Why, oh why, does this task keep falling to us over here at Lawyers on Strike?

Here’s a case out of the 1st Circuit in February of this year called Housen v. Gelb, the opinion written by the flamboyant scribe Judge Bruce Selya, whose reasoning and writing style we generally find most agreeable.

However.

Part II-B of the opinion deals with “Prosecutorial Inconsistency”, addressing the argument of whether the government can, while still adhering to its obligation to afford criminal defendants due process of law, take one position in one case so they can get a conviction there; and then take an inconsistent position in another case so they can get a conviction there, too.

Bottom line is that this is regarded as an “open question”.  In support of so regarding it, Judge Selya cites a Supreme Court case from 2005, Bradshaw v. Stumpf, which the District Court had regarded as leaving the question open.  Why does the District Court think that?  And why does  Judge Selya then wash his hands of the question in his opinion?  Probably because of the concurring opinion in Bradshaw of Justices Thomas and Scalia:

This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.

Beware of concurring opinions.  For this is a flat out, absolutely incorrect statement of the law.  It is not an open question, and hasn’t been since 1942.  That was pretty much the whole point of Pyle v. Kansas, where the Supreme Court wrote: 

and, that the record in the trial of one Merl Hudson for complicity in the same murder and robbery for which petitioner [that is, Pyle - ed.] was convicted, held about six months after petitioner’s direct appeal from his conviction, reveals that the evidence there presented is inconsistent with the evidence presented at petitioner’s trial, and clearly exonerates petitioner…Petitioner’s papers are  inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Mooney v. Holohan, 294 U.S. 103.

I shall never understand how things have gotten so confused.

I take it back.  I’ll spend the rest of my life figuring that out, one way or another.  Not that it matters to anyone but me.  At least not right now.

Update:  A slew of cases all committing the same error, none of them citing Pyle v. Kansas:  Smith v. Groose (8th Cir., 2000); US v. Frye (5th Cir., 2007); Beathard v. Johnson (5th Cir., 1999); Nichols v. Scott (5th Cir., 1995); US v. Hill (11th Cir., 2011); Fotopoulos v. Secretary (11th Cir., 2008).

Ugh.  When an error proliferates like this a lot of judges will conclude that it’s not an error anymore.  Of course that’s wrong.  Error is error.  Courts of Appeal can’t write Pyle v. Kansas out of the law just by ignoring it and going the other way, and a tossed off phrase in a concurring opinion from the Supreme Court doesn’t overrule prior precedent either.

 We’re a mess on due process, and a lot of that has to do with Brady.  And some other things.

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Cop Lying And The Judicial Response

I have to say that while I think in general his opinions are way off, I admire federal judge Richard Kopf’s candor in not only writing his own blog, but commenting over at SHG‘s.  In repsonse to a post about lying cops who got caught, the judge says:

If those cops aren’t charged with a felony, then the judge involved, and those who share the bench with him or her, should go ape shit and publicly so. I mean throw a real shit storm. Not just some stupid little contempt citation, but a significant felony charge or even a felony conspiracy charge in federal court about violating the civil rights of the accused. And, when convicted, the cops should go to prison. Not probation. Hard time.

He finishes with a fairly necessary disclaimer:

But what the hell do I know.

Here’s the thing.  The proposed solution is not just unrealistic in the vast majority of cases – that is, the judge can’t prosecute cops, only the same people (prosecutors) who rely on the cops for their very “careers” can, and of course they don’t want to – but juries don’t convict cops.  That’s been demonstrated over and over.

So the bottom line is that lying cops are extremely unlikely to ever be prosecuted and when they are they are very unlikely to be convicted.

What about civil remedies, like actions under 42 U.S.C. 1983?

The big problem there is not prosecutors or juries, but judges, and the judge-made laws of immunity, and judges’ general hostility to civil lawsuits because, frankly, they have little appreciation for the difficulty of bringing them successfully, fail to see how socially important they are, and regard the injured parties and their lawyers as lesser status litigants who should not be permitted to waste the court’s time.  Also on the moral level, to most judges – and I suspect Judge Kopf is in the group – civil lawsuits seeking money damages are just about lawyers’ greed and nothing else.

But here’s what happens in reality, when the civil remedies are robustly available:  after a few large verdicts the payor, which is to say the people or entity stuck with the bill – either the State, a municipality,  an insurance company, or probably just as often a combination of the three – get the message and begin to change the culture from the inside, through truly effective internal disciplinary measures, truly effective because now money and funding are at stake so there’s a real motive to change on the part of those in authority where the change needs to take place.  And in addition to this salutary effect, the victims of official wrongdoing are compensated and the lawyers who represented them are, too.

What’s not to like?

Nevertheless, the fact is that the federal judiciary has been unremittingly hostile to section 1983 actions brought against police and prosecutors for decades.  They crafted made up doctrines about how police and prosecutors were “immune” from such suits, enabling them to dismiss cases without letting them ever see a trial or a jury .

But one gets the sense that immunity doctrines are just a rationale.  The real problem is that judges see plaintiffs as the money grubbing rabble, and defendants as the upright authorities who have to be responsible and shouldn’t be hit with large verdicts in favor of lesser status people and their lawyers.

Of course, inasmuch as large verdicts are a necessary step towards real reform, this – the perspective of judges – is a real problem.  It would take a lot to convince Judge Kopf of that, or any other judge, I think.  Yet this whole scenario might be one important reason that the criminal justice system has deteriorated to the extent it already has.   In fact we here at Lawyers on Strike believe it is an important reason, but Judge Kopf and his brethren aren’t listening, and haven’t been for a long time.

Ugh.

 

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Anachronism

Maybe we’re talking about the death of the suppression motion.  Although it was never more than a zombie anyway, eating the brains of judges, lawyers, cops and probably the general public, too.

It’s been a staple of criminal defense practice in the United States for more than 40 years:  evidence against the defendant is illegally obtained by police and his lawyer moves to suppress it, so it can’t be used against him, sometimes leaving the government with no evidence with which to convict him.  A pretty neat trick, I suppose, in the half dozen or so cases – nationwide – where it actually happened in all those years.

I exaggerate.  There were probably more than 20.

One reason such motion were never granted is that a ruling in favor of suppression would come only after the court held an “evidentiary hearing” to determine if, in fact, the evidence was illegally obtained by police.  And the police learned what sorts of things they would have to testify to in order to defeat the suppression motion, such as that the evidence was “in plain view” so there wasn’t really a search, or that it was dropped, or that it would inevitably have been discovered anyway, or that they acted in good faith, or that it was the product of a search incident to lawful arrest, or an inventory, or that the cop had x-ray vision and couldn’t help seeing it.  And the cop would be believed even if he was often lying and the suppression motion would be denied.

Scott Greenfield, in yet another invaluable service to the legal profession, has managed to prompt a federal judge to offer his unvarnished views on this song and dance.  Which is great.  It’s great to know how hopeless it always was, this whole suppression business:  most defendants are guilty (duh); only one side of the story is told at the suppression hearing, since the criminal defendant almost never testifies; judges have an authoritarian bent (duh); a judge’s experience is that cops are more honest than criminal defendants.  Who again, as an empirical matter are likely guilty.

One very interesting interlude is that SHG makes reference to an old case out of New York from the heyday of suppression motions, circa 1970, People v. McMurty.  In that case the defendant took the stand at the suppression hearing, said he possessed and sold drugs and in that regard he was an experienced criminal, and that he would never “drop” drugs out of his pocket like the officer said he did because he knew that otherwise the cop would have to conduct an illegal search of his person to find them.

And the judge in the case was troubled, finding the defendant credible but also the cop and of course suppression was denied.

So we marvel at the perversity of it all.  A defendant waives his right to not be made a witness against himself by taking the stand, admits everything truthfully, and relies upon the law as it was at the time, and upon the sound judgment of the trial judge, to make the prosecution go away because despite the outcome there, the only reasonable credibility determination would have had to favor the defendant.  He confesses to the crime he’s accused of in open court because under the law if he is believed the evidence of his crime would have to be suppressed.  Of course, whether the prosecution could proceed on different evidence – namely, the evidence the defendant himself gave at his suppression hearing by testifying – is a question the court didn’t consider because it denied the suppression motion anyway.

Ugh.

No matter how we construct the law to make the process, for want of a better term, a fair game, the mind will recoil at the thought of the factually guilty escaping punishment because of the game’s rules, just as it will recoil at the factually innocent being punished at all.

Then, in the comments, the beginnings of an SHG epiphany:

So you’re exactly right: the outcome is pure cynicism, as some judge lectures them about being a law-abiding citizen and obeying the law, immediately after the cop lies through his teeth and sneers at the defendant. And we wonder why they won’t behave the way we want them to.

 

More than three years ago, I put up a little post about the morally corrosive influence of the Supreme Court’s 4th amendment jurisprudence from the 1960’s on the whole system – but especially on the police – flowing from Mapp v. Ohio.  I had SHG in mind then, not really personally but as sort of a representative sample of criminal defense lawyering of the post-Mapp era.  One of the many discussions that should be taking place among lawyers on the subject of why the system so often gets it wrong is detailed in that post.

And now, with a slightly different take, in one of SHG’s posts.

Maybe I shouldn’t say ‘slightly’ different, because when it comes to offering any kind of solution the slight difference becomes a giant chasm.  And as regular readers know, I am loathe to make criticisms without offering solutions, however much of an outlier it might appear to make me.

SHG rightly laments the pure cynicism.  But you can’t get much more of a cynical result than defendants saying they are guilty and demanding to escape punishment for technical reasons, as in People v. McMurty.  To overcome cynicism there has to be some devotion to truthfulness and other virtues, if only in the breach.

Somewhat ironically, I would like to trust the police as much as the next guy – well, maybe not as much as Judge Kopf.  But still.  The rules of the game that we set up should not, therefore and in my opinion, reward vice and punish virtue.

My suggested solution will have to await another post.  It’s Easter, after all and I have to attend to other matters.

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Case In Point, Brady Follies Edition (Updated)(x2)

A serious Brady violation comes to light and for once the judge reaches the right result.  That’s noteworthy enough by itself.

But what’s also noteworthy is Scott Greenfield’s post about it.

What you’ve got here is a prosecutor who may or may not have deliberately suppressed exculpatory evidence.  Under the Brady rule it doesn’t matter which, but for broader due process implications it matters a great deal, a very great deal.  We explained it this way in a post earlier this year:

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. (links to cases added to this quote for convenience, and if you’re interested in this issue you should really read those cases)

But what is also very intriguing about Greenfield’s post about the episode has to do with another quote from the same post:

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.

Now, in this current case of Megan Teesdale, Greenfield argues that the prosecutor’s failure was deliberate:

You see, new prosecutors want desperately to win at trial, and pore over every detail, every word, in preparation. They want to make their bones. They want to show their fellow prosecutors that they have the right stuff.  They do not want to lose, and they don’t neglect to read the police reports. Every single one of them. I call bullshit.

I think he’s overstating his case.  First, prosecuting is not like defending at all.  Greenfield is more describing the defense lawyer’s approach than a prosecutor’s.  A prosecutor is never, for example, desperate.  He just expects to win.  A prosecutor is thus much more likely to be sloppy, to not read a police report (even in a case that’s going to trial) than a conscientious defense lawyer is.  In short, it’s more than theoretically possible that Teesdale’s failure was inadvertent and not deliberate.

Beyond Greenfield and me, the judge banished prosecutor Ms. Teesdale from his courtroom, refusing to believe her failure was deliberate, but noting that even if it wasn’t she was guilty of “gross negligence” and could not thereafter be believed.

I think that’s more accurate, but in any case, assuming it wasn’t deliberate, I don’t know that Teesdale should have her entire legal career ruined, as Greenfield suggests.  I think she should probably lose her job as a prosecutor, though.  Maybe a huge showing of contrition would change my mind.  Not that what I think matters, of course.

But the more important distinction here is this:  what if Greenfield conceded that the proof of the “deliberateness” of Teesdale’s failure just wasn’t there.  Would he think that made any difference?

I suspect the answer is no, and I’ll tell you why.  In practice it would hardly ever make any difference.  There are many, many more Brady violations than Mooney violations.  And what’s more, while both are normally difficult and often impossible to prove, even within that narrow range you’re much more likely to get proof of a Brady violation than a Mooney violation.  For lawyers, it’s about what you can prove.

Greenfield again:

But there is a lingering question.  Was Megan Teesdale an outlier, a rogue prosecutor who saw the words that would destroy her case and made the decision, on her own, to deny its existence?  Was she a flaming incompetent prosecutor, the only baby prosecutor not to read the police reports in preparation for trial?  Or is this a reflection of the culture that Marvin Schechter wrote about when the Brady War broke out in New York.

To me, of course, this is a false dichotomy, for reasons I gave earlier.  But my lingering question is whether Greenfield, and the “criminal defense bar” in general, thinks “flaming incompetent” v. “rogue” makes any difference.

Update:  Take a look at this comment from Grennfield’s post:

The prosecutor violated the defendant’s due process right to a fair trial by knowingly presenting false testimony. But the judge should not have dismissed the case.

The Supreme Court had made crystal clear that this type of constitutional violation is subect to Chapman harmless error analysis…Bottom line: The case should not have been dismissed without the consent of the DA.

The commenter appears to be a law student, or maybe a young lawyer.  And maybe a prosecutor type.  In any case, in a later comment, he says this:

Due Process violations by a prosecutor (whether they be of the Brady, Napue or Giglio type)

These comments illustrate the failure to distinguish between deliberate and inadvertent conduct.  The former is not subject to harmless error analysis; the latter is.  The “bottom line” really is this:  conflating Mooney, Pyle and Napue with Brady has the effect of making Brady a limitation on Mooney, as opposed to the extension of Mooney it was meant to be and explicitly declared itself to be.  It limits Mooney by attaching a “materiality” requirement, and opening the “harmless error” vortex door through which all defense arguments disappear into the void, as usual the government’s deliberate use of perjury can then pass. 

But that door was supposed to have been slammed shut permanently almost 80 years ago.  That’s what Mooney and its progeny did, or they no longer mean anything by themselves:  they have been absorbed into the Brady orbit, as if Brady overruled them rather than extending them.

Some court, somewhere, needs to clear this up before the whole system implodes in an orgy of incoherence.  Ugh.

Update 2:  Here’s one particular thing that makes me think the SJ commenter quoted above is a prosecutor type:

If this case had gone to the jury it is possible that the jury would have still convicted the defendant, notwithstanding the victim’s contradictory statements. The jury could have concluded that the victim’s testimony at trial under oath was true, and her unsworn, contradictory pre-trial statement was false. That is a very common phenomenon in domestic violence cases involving recanting victims, although in reverse. There may be many reasons why the victim told the cops the sex was consensual. One reason is because it, in fact, was. But there might be many other reasons why she made that pre-trial statement that have nothing to do with the truth of her trial testimony. That is why we have juries.

Of course, I have said many times that the reason we have juries is that you can’t trust judges to be fair.  But then I have never been a prosecutor.

Never mind.

What is unstated in that commenter’s line of thought, and indeed never seems to enter the prosecutor’s commenter’s mind, is the oft demonstrated reality that sure, the jury might believe this or that – and then turns out to have believed wrongly.  The prosecutor’s instinct is to be very comfortable with “credibility” determinations because overwhelmingly prosecutor’s witnesses are believed.  Defense lawyers, on the other hand, know that without corroborating proof of some kind the opposite is true for them; that is, their witnesses will not be believed.  It’s one of the things that makes the defense lawyer’s job infinitely harder.

Remember commenter GK?  I had written, in relation to the most important case discussed on this blog:

“Of course the main features of this motion were the statements of Ashley Baker and Todd Gaddy, showing that the entire prosecution of Sephora Davis was a law enforcement sponsored frame up job.”

To which GK replied:

Then Ashley Baker and Todd Gaddy should testify in the criminal trial where the jury can determine their credibility

Same thought process as the SJ commenter, and I’m pretty sure GK was/is a prosecutor.  In fact I’m pretty sure of more than that.

But the problem I’m toying with – well, one problem anyway –  is that law enforcement frame-up jobs will invariably be established through documentary proof.  Which isn’t subject to a “credibility” determination, by a jury or any other fact finder.  In other words, to prove a law enforcement frame-up job you’re going to have to show how they did it, and of course they’re not going to tell you.  You’ll have to have something, like the Ashley Baker statement, that shows it beyond question and unalterably.  Once that is done, there is no point in hearing further from witnesses that have already been shown to be liars, or at least unreliable.

It’s an interesting question:  when is witness testimony unproductive in the truth finding process?  Or even counter-productive?  We explored that question here.  And here.

But among lawyers, we might be all by ourselves in our take on it.  Including criminal defense lawyers, who you might think would be on our side.

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Very Well Said

A little wisdom for newly minted lawyers, from Norm Pattis.

No, that’s not fair.  A lot of wisdom, really.  And a good read for anyone, lawyer or not.

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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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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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SCOTUS Potpourri

I would have said “trivia”, but nothing at the SCOTUS is really trivial, and certainly not some of the miscellanous data reported here.

We were just talking about insularity, and today’s little tidbits flesh that out some:

Following recent trends, a small group of top advocates continues to argue a large number of cases at the Court. Lawyers from the Office of the Solicitor General constitute the largest part of this elite tier: Solicitor General Donald Verrilli himself has argued four cases, while Deputy Solicitor General Michael Dreeben and Assistant to the Solicitor General Nicole Saharsky have each argued three cases. Twelve other lawyers from that office have argued two cases each.

Outside of the Office of the Solicitor General, John Bursch, Paul Clement, Tom Goldstein, and Neal Katyal lead the pack with three arguments each through January. William Messenger, Mark Perry, Kevin Russell, and Eric Schnapper round out the group of advocates who have argued at least twice during the Term…Advocates with experience (either past or present) in the Office of the Solicitor General have argued fifty-one times, constituting forty-three percent of all arguments…Lawyers who attended law school at Harvard, Yale, or Stanford argued forty-nine times, forty-one percent of all arguments. Lawyers who had clerked on the Supreme Court argued fifty-seven times, while lawyers who had clerked at one of the federal courts of appeals argued ninety times.

It goes without saying that none of these top advocates has ever tried a case to a jury.  The prevalence of lawyers who had clerked at one of the federal courts of appeals or at the Supreme Court is telling. 

The vast majority of arguments in the federal appellate courts are both argued and decided by people who have never practiced law in the sense of having had real human being type clients with something important at stake, at least for them.

This is a problem.

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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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It’s In The Air – Or, A Judge Comes Out Of The Closet

So, in South Carolina this judge gives a speech to a group of prosecutors and tells them some interesting things, like that they’ve been getting away with too much for too long and the pendulum is swinging back and just in general criticizing unethical prosecutors much as we do here at Lawyers on Strike, although we were here first.

Bravo.  The guy has guts.  His name is Donald Beatty and he deserves a great deal of respect for his frankness.

Of course, read the article closely.  They’re already on him.  Abundant play is given his critics, whereas it is begrudgingly noted that the judge has “some support” – from criminal defense lawyers, that the newspaper reporting the story can be confident are despised by the vast majority of its readers.

It’s just a gut feeling, but my guess is that the judge is onto something.  The constant parade of news stories about wrongful convictions, the innocent exonerated and so on has to make a pretty big impression on any judge with even the tiniest bit of intellectual or moral integrity.  Because anyone familiar with the system knows that the system addresses and corrects only a small fraction of the meritorious cases.  We’ve stacked the deck, the message is clear and the results follow naturally:  most wrongfully convicted people can’t or won’t bother.

In any case, if a judge on a state’s highest court is talking this way openly, that means there have been discussions among a much larger group in private for some time.  It would be fair to say that the judge’s remarks reflect the beliefs of some not insignificant group of jurists and that those beliefs are bubbling up into more explicit statements either in opinions or in these confabs that public officials seem constantly to be holding and attending, sequesters or no.

From where I sit it’s like a radio signal I can’t quite lock onto.  I know it’s there and have an idea what it’s about but it’s not entertaining me in my car yet.

But if this is like other such sea changes, that might actually happen before too long.

(h/t Greenfield)

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