Category Archives: Striking lawyers

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


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.


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.


*  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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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. 


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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Women Lawyers

A group of women reflect – brood – over their “careers” twelve years out.




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Parsing Greenfield

It appears Scott Greenfield comes over here and reads sometimes, because this post seems in large measure to be directed at this post and maybe this one, too.  It could be a coincidence of timing, of course.  But probably not.

In any case, we’ll play.  There’s nothing we here at Lawyers on Strike enjoy more than a healthy disagreement.

We toss about the platitude that trials are a “search for the truth.”  It’s a lie. It’s the sort of lie that makes people feel more comfortable with the system because it comports with our branding of the legal system as a system of Justice.

An obvious retort is:  if you don’t know what the truth is, then how do you know what a “lie” is?  Seems Scott missed epistemology 101.

I suppose that seems facile, although it isn’t.  But never mind, because Scott segues rapidly to the next bugaboo:  namely, the utter meaninglessness of “justice”:

People like justice, though few have given it enough thought to realize what a ridiculously meaningless word it is.  Still, they clutch it to their breast and hang on for dear life, because they couldn’t survive a system that produced merely results, because justice is too ephemeral for any court to produce.

The seminal work of what might be called “western thought” is Plato’s Republic.  It’s a Socratic dialogue – a real Socratic exchange, not the intellectually pedestrian version they bandy about at law schools.  Anyway, the whole question the Republic is concerned with is “What is justice?”  The answer arrived at is:  giving every man his due.

Is that circular, tautological and so on?  Kind of.  Plato was certainly smart enough to realize that if he was saying anything about what justice meant, it surely wasn’t much.  But neither would he lapse into the intellectual vacuum represented by another character in the same dialogue, Thrasymachus.

Now, in the world of practical reason we go with Plato and not Thrasymachus, for what seem to anyone like very good reasons.  Justice is indeed very hard to define in the abstract, but it is also a universally held idea and is often very easy to see in this or that particular case.  It is also, admittedly, very elusive in other cases.  But to conclude that because it is elusive in some cases it doesn’t exist or can never be determined is very much like Thrasymachus’ error.  We are supposed to have banished that canard as freshmen in college, when we were like, you know, 18.

And what about this business of not being able to “survive” a system that produces “merely results”?  What is that supposed to mean?  Are we to be indifferent to the question of whether they are just or unjust results, fast results or slow results, good results or bad results?  You can leave off qualifiers like ‘good’ or ‘bad’ if you like – it’s obviously a deliberate omission, since the word ‘result’ unqualified by something to characterize it is an uncommon and pointedly neutral usage - but that doesn’t make the question go away or mean that the question never existed.

You don’t deal with problems, or questions, by wishing them away, or waving your hands and avoiding words.  I’ll lecture SHG for a change:  trials are not word games and if you do something like that in front of a jury you’ll lose.

Moving on, then.

But trials aren’t a search for the truth.  To suggest they are is to shift the burden to the defense to do its part in arriving at the truth.  As another platitude of little meaning provides, the burden of proof beyond a reasonable doubt always remains on the prosecution.  The two can’t be squared.

This is a non-sequitur.  A trial can be a search for the truth.  It does not follow from that that there is a burden on the defense of the nature Scott is indicating.  There is a burden on the defense at a criminal trial:  to defend the defendant.  That is the defense’s part in arriving at the truth.  It may or may not work, but that’s the defense’s role in the trial.  That doesn’t relieve the prosecution of its burden of proof beyond a reasonable doubt.  Scott is pretty mixed up here.

A trial, at its very best, is a test of the prosecution’s accusations.  Can they prove what they claim?  Can they prove it enough to get a jury to convict?  The role of the defense at trial is to do whatever the law permits to prevent this from happening. If the defense has evidence, they can present it. If not, they poke holes, throw punches, sometimes even blow smoke.

I’m going to agree with most everything here, with one important exception.  I think there are limits to what the defense can or ought to do to “blow smoke”.  Can the defense accuse someone else, solely to deflect the prosecution’s accusations, with no good faith basis?  I think not.  And I think criminal defense lawyers should explicitly recognize that obligation, because if they don’t then you wind up with judges who second guess the defense’s good faith when they accuse a third party, the result being that judges will overwhelmingly “preclude” defense attorneys from accusing third parties, theorizing that “you client is on trial, not someone else.”  Which is nonsense, of course, but it’s the way trials go because one of the best ways to obtain an acquittal is to convince a jury that there is another viable perpetrator, and the judge doesn’t want an acquittal.  And even if he’s not biased in favor of the prosecution or towards a conviction – as almost all judges are - a judge might recoil at the idea that a defendant would be acquitted because a defense lawyer put in evidence he knew to be bogus, just to get the defendant acquitted.  Put another way, a judge should be able to trust that a defense lawyer will not knowingly put on false or unreliable evidence, to purely “blow smoke” in pursuit of a win.

The prosecution will employ tactical measures to ensure it presents its case in the most damaging possible fashion.

This may be true in practice most of the time, but it’s wrong.  The prosecution has an obligation to be fair, not to present its case in “the most damaging possible fashion”.

The defense will employ tactical measures to undermine the prosecution’s tactical measures.

Well, sure.  Among other things, depending.  I mean, sometimes there’s more to it.

In a search for the truth, we tell all and let the chips fall where they may. Does this sound like any trial you’ve ever done?

Very odd.  Sometimes in a “search” for truth we tell all, and sometimes we don’t, because the truth is often revealed better indirectly.  But on a more concrete level, could you have a trial where the defense basically told all and let the chips fall where they may?  Sure.  I’ve had trials like that and won acquittals.  Was that wrong?

Nobody, but nobody, wants to conduct a search for the truth.

This is way overstated, Scott.

 The prosecution wants to convict.

Maybe.  But that’s not what they should want.

The defense wants to acquit.

I assume that if the defendant is innocent the defense properly “wants” very much to acquit.  If the defendant is not innocent then the defense may or may not “want” to acquit, but either way they have to try to get an acquittal.  Either way, this is not about what anyone “wants” in that sense.  We are not spoiled three year olds, are we?

…the jury wants to believe it did the right thing.

The right thing?  That would be finding the truth and doing justice, wouldn’t it?  I’m sure, most of the time, that the jury really does “want” to believe that, in the same way we grown ups properly want to conduct ourselves honorably and truthfully.

The defense has no similar responsibility to “do justice,” but rather is duty bound to defend regardless of the truth.

At trial, and within the rules, this is unarguable.  Outside of the strict trial context, though, this would be something of a distortion.  There is room to both advocate for a client and to recognize that there might be some truth to the accusations against him and some justice in accepting punishment as a result.  This is one way compromises – plea bargains – happen, and they are often in the client’s best interest.

The jury gets to watch a battle between two sides play out in front of them, and then gets to decide one lump or two.  They can search for truth in church.  In a courtroom, the only question is whether the prosecution has satisfied its burden of proof.

I don’t think the jury’s decision can fairly be likened to the choice between “one lump or two” - an expression which, in the age of lattes really dates SHG, by the way.  But here again Scott is tediously and dogmatically wrong.  If the jury’s deliberations have nothing to do with the truth, then why do they render a “verdict”?

They can “search for truth in church”?  Truth is a personal thing to be separated from civil society and confined to “churches” that we then marginalize?

This is a nuanced disagreement between me and Scott.  But it’s an important one.  The complaint I have is that Scott’s approach costs me, and my clients, by bringing the defense bar generally into disrepute among other players in the system.

I wonder if he would believe the same thing about me in reverse.  Hard to see how, but I’ll leave his arguments to him.

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The Walmart-ization Of Justice

If you get over to federal court much you’ll hear lots of talk about “sequestration”, a veritable daily crisis of budget constraints.

Ho-hum.  Budget is as budget does.

The economics of some things are insoluble:  how do you pay for something no one wants?  No one, that is, except the poor schmuck in the dock?  The fact of the matter is that unless the poor schmuck can pay for it there’s no one else who will.  At least, not really.  As a sop to the consciences of the men in charge, of course, the regime will provide token service, the proverbial empty gesture.  The ratio of federal prosecutor resources to federal defender resources:  28 to 1.

Ease in life is not an inherently bad thing.  The ancient Greek philosophers, like Aristotle, thought leisure to be an essential social good, and I imagine it is when it is conferred upon the right people.

Then again, no one can have it easy all the time, and some things just aren’t easy but must be done anyway.

If only due to the sophisticated humor, I can’t improve upon Kierkegaard on this subject:

It is now about four years ago that I got the notion of wanting to try my luck as an author. I remember it quite clearly; it was on a Sunday, yes, that’s it, a Sunday afternoon. I was seated as usual, out-of-doors at the cafe in the Fredricksberg Garden. I had been a student for half a score of years. Although never lazy, all my activity nevertheless was like a glittering inactivity, a kind of occupation for which I still have a great partiality, and for which perhaps I even have a little genius. I read much, spent the remainder of the day idling and thinking, but that was all it came to.

So there I sat and smoked my cigar until I lapsed into thought. Among other thoughts I remember these: “You are going on,” I said to myself, “to become an old man, without being anything, and without really undertaking to do anything. On the other hand, wherever you look about you, in literature and in life, you see the celebrated names and figures, the precious and much heralded men who are coming into prominence and are much talked about, the many benefactors of the age who know how to benefit mankind by making life easier and easier, some by railways, others by omnibuses and steamboats, others by the telegraph, others by easily apprehended compendiums and short recitals of everything worth knowing, and finally the true benefactors of the age who make spiritual existence in virtue of thought easier and easier, yet more and more significant. And what are you doing?” Here my soliloquy was interrupted, for my cigar was smoked out and a new one had to be lit. So I smoked again, and then suddenly this thought flashed through my mind, “You must do something, but inasmuch as with your limited capacities it will be impossible to make anything easier than it has become, you must, with the same humanitarian enthusiasm as the others, undertake to make something harder.” This notion pleased me immensely, and at the same time it flattered me to think that I, like the rest of them, would be loved and esteemed by the whole community. For when all combine in every way to make everything easier, there remains only one possible danger, namely, that the ease becomes altogether too great; then there is only one want left, though it is not yet a felt want, when people will want difficulty. Out of love for mankind, and out of despair at my embarrassing situation, seeing that I had accomplished nothing and was unable to make anything easier than it had already been made, and moved by a genuine interest in those who make everything easy, I conceived it as my task to create difficulties everywhere.

Of course, given this habit of mind, Soren was fortunate to be able to live on inherited wealth.  You won’t find investors for an idea the goal of which is to make things more difficult than they otherwise would be.  Or appear to be.

And yet, and yet.  People talk favorably about being “empowered”.  Here is what constitutes the terrible temptation of power:  that difficult things are made to seem easy.  I say “seem” because it is an oxymoron:  difficult things are not easy, by definition.  And when they are made to seem easy you know something’s wrong.  You know someone is getting screwed because if it gets done and if it was difficult to do then someone labored through that difficulty.  Whoever is making it seem easy is a deceiver.

Snake oil salesman’s pitch:  drink this elixir and all will be well.  Just that easy.  But it never is.

The acquittals I have won doing criminal defense have probably been the most significant contributions I have made to my country and my fellow human beings.  They were all extremely hard won - there is almost no way to describe it to someone who hasn’t done it.  And they were all, without exception, very poorly compensated.  To the extent I have made any money, it has been made elsewhere.

Prosecuting is not remotely comparable.  While I will stipulate that many criminal prosecutions are socially worthwhile and an important service, it is simply a thousand fold easier to prosecute – maybe infinitely easier – than to defend.  Which is not to pick on prosecutors at all.  The point is that we ask lawyers to defend the accused, expect them to do a good job in the face of great and sometimes insurmountable adversity and then, effectively, we don’t pay them.  I’m certainly not advocating that it’s wrong to pay the prosecutors, but the imbalance of it all has reached dizzying heights.

Imbalance, of course, is more or less a metaphor for injustice.  A just society is an extremely difficult thing to achieve; and to the extent you do achieve one, it remains extremely difficult to maintain what you have built up.  And this is why we have lawyers.  We may have “too many”, but more importantly – and like other occupations and professions – no one wants to do the hard but necessary jobs, only the things that can be made to seem easy and are nowhere near as necessary, if they are necessary at all.  Like evictions.  And mergers and acquisitions.

Just as the ugly and hidden reality underneath Wal-mart and Apple involves slave labor in far off countries, so the ugly and hidden reality underneath the collective neglect of our responsibilities to build and maintain a just society are hollowed out neighborhoods of boarded up homes and lots of prisoners who, although locked away out of view are beginning to make at least a few people uncomfortable, like some federal judges in California.

Kierkegaard was only kidding.  He didn’t really believe in making difficulties; he was admonishing us to recognize difficulties openly and not try to conceal or deny them.  The difficulty is already there.  Our job is to conform our minds to this reality.

Of course we’re never going to do that if we don’t believe there’s any objective reality in the first place, not to mention believing there’s no such thing as truth.  Or justice.

Clark is onto something on that score, don’t you think?

At bottom, as with so many things, this is not an economic problem.  This is a moral problem, and a rule of law problem.  And of course it has developed into an intractable problem when the very people who are the only ones who can correct it, and who in many ways are the primary victims of it, don’t believe in the law or the truth or morality in the first place.

Or say they don’t, which is more like it because, as Clark over at Popehat points out, no one really doesn’t believe in truth or justice or the law.  That’s an intellectual affectation, and an especially harmful one in lawyers.

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Another One For The Home Team

You might think that the undisputed facts here cry out for a jury determination, not just a judge’s.

But then a jury might get carried away by the whole dead, unarmed teenager thing, and find liability, and make a substantial monetary award. Then an appellate court would have to do the dirty work of throwing it all out after the fact.  As they usually do.

Better to never let the jury decide it at all.  Seventh amendment? Pshaw.  Judge Klausner knows better:

The video footage shows that Arian turned towards officers on three separate occasions and extended his arms outward towards them. … In each instance, Arian held a small, dark object in his hands and pointed it in the direction of officers. … Based on this footage, the court determines that no reasonable juror could find that Arian’s stance did not resemble that of an individual preparing to fire a gun.”

Here, the undisputed evidence shows that Arian, in the process of fleeing from officers, took a shooting stance and pointed his cell phone at officers three times in a span of only 19 seconds

Yes, you read that right.  The deceased was “pointing” a cell phone.  Kind of hard to take pictures if you don’t point the camera at the subject.

The Court “determines” all right.

There should be a lawyers’ strike in LA over this, not that there will be.  Pity.


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“…a society that punishes people for trying to be decent human beings is profoundly inhuman.”

An interview with David Graeber over at Naked Capitalism.

He’s talking mainly about economic disincentives to doing good in the world that appear to be a feature of our “capitalist” economy.

I can’t agree with a lot of Graeber’s verbiage – you know, “power structures”, things like that – and like the founding fathers I don’t care much for “democracy” either.  In other words, the democracy leaning to anarchy that characterized the Occupy movement and Graeber’s thinking about what to do at this point doesn’t strike me as being much of a solution to anything.

But in terms of identifying what’s wrong now, Graeber and I are in complete agreement.  While of course I approach all this from a different and somewhat less scholarly position – more ‘lawyerly’ than scholarly – the basics of the issue are the same for both Graeber and me.  In fact, I identified the debt problem – and a solution (updated here) – publicly before his most recent magnum opus (Debt – the First 5,000 Years) came out.

Graeber’s insight that the debt game has altered the role of government (“…which is increasingly becoming the legal cover and muscle behind debt and rent extraction”) is also important, but the solution to that is not so much to turn all of government and society upside down, which is the constant temptation of the revolutionary, but rather a return to first principles by the third branch of government (the judiciary) in general, and the legal profession in particular.

To take just one example, evictions are judicial processes.  As I have noted before, they are ridiculously easy to do, not to mention the fastest existing judicial process by far.  This is a reflection of a lot of what is wrong, true, but the solution is so simple:  change the law.

Do we have to change hearts and minds as well?  Certainly, and especially in the legal profession and the judiciary.

The anthropological approach to these issues is academically interesting and has a lot to offer, but it still amazes me how little regard there is for the legal profession and by extension – and somewhat distressingly – the rule of law.  The problems Graeber is speaking about fit very neatly – and pretty much entirely – into the ‘law’ category, much more so than the ‘anthropology’ category, but no one talks to lawyers about it.

That’s strange, I think, and maybe even a big part of the underlying problem:  a pall of despair over the rule of law and lawyers.

We’ve probably brought it on ourselves.


Filed under financial crisis, Media incompetence/bias, Striking lawyers, wrongful convictions

Lawyers Strike In the UK

Over cuts to Legal Aid funding.

Now, I don’t know enough about the situation to say for sure, but it certainly sounds like business as usual:  the most politically powerless will experience “austerity” first.  The only austerity the politically powerful will feel is less body weight when they literally lose their heads.  So in the interim, at least someone is making a fuss.  And it’s good to see lawyers assuming their proper role in the whole thing.

You would think we might have learned something, in the social sense, since the 18th century, but it appears we’re going down the same road the French did.

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Anybody Want To Strike?

So, it’s the Bronx.  And in the courtrooms of the Bronx, unlike almost everywhere else in New York State including Manhattan, regular people – not just celebrities – are acquitted of crimes and awarded substantial damages in personal injury actions with some regularity.  Seems to be something about the jury pool.

But there’s no jury at the Appellate Division, First Department, to which the losing party can appeal.

So this jury in the Bronx awards some guy over $2 million on an excessive force claim because the police tased him when he was having a seizure, and it’s pretty lucky under those circumstances the guy wasn’t killed.  And on the appeal the Appellate Division reverses, throws out the entire jury award and directs that the case be dismissed. (h/t Scott Greenfield)

Their rationale for doing this was, basically, they took exception to the jury’s reasoning.

Now as I have noted many times in earnest (most recently here and here) - and as one of my colleagues has better illustrated through his/her customary satire – when it comes to jury verdicts there appears to be a rather pronounced double standard in the intermediate appellate courts:

In Part I, I trace the origin and history of courts’ purported deference to jury credibility determinations. I say “purported” because, when it comes to important matters like money settlements, courts have no hesitation about setting aside jury verdicts. See Behemoth Leviathan RR Co. vs. The Widow Jukes (1920). It’s only in criminal matters that the jury’s sense impressions become sacrosanct.

To call it a “double standard” is, of course, putting it mildly.  It’s as if when a jury finds a criminal defendant guilty we wax poetic about the sanctity of the jury; but when a jury awards “too much” to some regular schmuck we’re practically delighted to second guess them.

Consider just this one aspect of such a ruling:  even if it is the Bronx, getting a jury exercised enough to award $2 million or more for a regular person takes a lot of doing by the attorney.  A lot.  No one who hasn’t done it could possibly understand what’s involved in any tangible way, and “no one” assuredly includes every member of the Appellate Division’s panel.

So one effect of the ruling is to generate discouragement and even despair among the Plaintiff’s bar.

And here’s another thing.  Just because a jury awarded $2 million doesn’t mean the Plaintiff can collect it, even if the appellate court doesn’t fuck with the verdict.  There might not be insurance available to cover it, for example.  Although in this case there probably was coverage, which is why the AD took such an interest and reversed, whereas in almost every other case where the favored litigant wins and the disfavored litigant loses the AD just mindlessly affirms.

That, too, lends itself to satire.

How does this go on in the appellate courts?  A very big part of the answer to that question is that the power differential between favored litigants (government, bank, insurance company) and disfavored litigant (non-famous, non-wealthy regular individual) is huge and there’s no way to bridge it.  No conventional way, that is.

Anonymous satire is all well and good, and we need to keep our sense of humor, but ultimately this is a classically corrupt court decision – and make no mistake that gross favoritism to the powerful is corruption, whether it’s conscious or not – that calls for a lawyers’ strike by the members of the disfavored litigants’ bar; that is, the criminal defense guys and the PI Plaintiff guys.

Unless and until the judges on the Appellate Divisions and elsewhere pay some price for their outrageous partisanship and toadying for the more powerful against the weaker there is no reason for it to stop.  Surely that decision deserves at least a one-day work stoppage and protest in the First Department.

You – we – have to make them pay.  We have a simple, easily accomplished, traditional and non-violent way to do that.  If we refuse to even try then the “system’s” continuing dysfunction is not just the Appellate Division’s fault.

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