Category Archives: wrongful convictions

Plainly, outrageously unjust criminal convictions ignored or evaded by judges.

Truth Redux

I guess I’m incorrigible on this point.

There’s an old lawyer I know who tells a story of a personal injury case from many years ago, during that brief interlude when courts were inclined to entertain them and juries were inclined to reward them.

Yes, it was a very long time ago, and the interlude was so brief few remember it.  It probably coincided with three martini lunches, which have also vanished down history’s memory hole, resurfacing only in fictional contexts like television’s “Mad Men” series.

In any case, in this personal injury case there was a one car accident that left a man paralyzed.  A very young man, so this was very tragic.  Could a lawyer do something to deliver a pot of money when there’s a one car accident and thus probably no one to sue?

To make a long story short, the case was turned into a products liability case, though of course this was before we really called anything a “products liability” case.  Everything was just “negligence”.

The idea was to blame the car and sue the manufacturer, since no one else could be to blame except the driver and, you know, you can’t sue yourself.  Since it was a one car accident, you see.  And the manufacturer is conveniently a car company with lots of money and insurance, so in the end if you win the bill you send can be paid.*

The ‘theory of liability’ was that the car was negligently built or designed – that is, that it was ‘defective’ – and it all had something to do with the way the doors were designed.  Somehow, the manufacturer should have made them differently and if they had the young man would not have been catastrophically injured, as indeed he had been.

The case went on its merry way and sometime before or maybe it was during trial there was a substantial settlement in the young man’s favor.

But here’s the thing:  the old lawyer (who was then young, of course) was very pleased with himself and so were his partners and everyone else in the office, and one of the reasons was that, as they often told it, the whole defective door argument was just something invented out of whole cloth, made up, then justified and rationalized and advanced and pressed to a successful conclusion.

For my own part, I’m not entirely sure that’s true.  I’ve never looked into the whole case very deeply; I just listened to the stories with the mild amusement that was intended in the telling.  But that’s not the point.

The point is, it’s a very dangerous thing for anyone – and especially lawyers – to conclude that the reality underlying a case doesn’t really exist or doesn’t matter, that litigation is a contest where the two opposing sides advance self-serving arguments and that the ‘evidence’ produced by each side is limited by little more than whatever one’s own imagination and self-interested will can achieve.  As if winning or losing a case is only the result of cunning and the simple desire to win rather than accurately ascertaining the underlying reality, or at least one side more accurately ascertaining it than the other side.

One of the main reasons this mindset is so dangerous is what might be called the marginalization of honesty.  An honest lawyer will not make a fight unless he thinks the underlying reality supports the fight he is making.  That doesn’t make him necessarily right, of course.  He might be wrong about the underlying reality.  But it matters whether he is honestly mistaken or, say, just doesn’t give a shit whether he is mistaken.  Or at least it should matter, even though the practical result might be the same:  mistaken is as mistaken does.

But notice, if he’s not honestly mistaken but being, say, deliberately deceptive, it resembles a very similar phenomenon to Bill Black’s adage that dishonesty drives honesty out of the market:  the honest lawyer can’t compete with the dishonest one.  A lawyer who will make any argument regardless of honesty will have a lot more winning arguments than an honest opponent.**  The honest lawyer is constrained by the limits of reality and the dishonest lawyer is not.

Of course the system addresses this after a fashion:  honesty from lawyers – whatever side they are representing – is to be presumed.  Not conclusively, but close.  This is because their fundamental honesty is supposed to be sorted out when they are admitted to practice - there is a rigorous vetting process for “character and fitness”.  That is not a joke.

But it seems like a joke, to everyone reading this.  And sadly, to judges and lawyers themselves.

We just posted about a Brady violation, and we’ve been coming back over and over for the last few months to this distinction between the deliberate suppression of evidence and the inadvertent suppression of evidence by a prosecutor.  That is, the difference between an honest mistake and lying and cheating.  A distinction which, it seems, only we here at Lawyers on Strike seem to care about.  We have noted that the deliberate suppression of exculpatory evidence by a prosecutor always violates the defendant’s right to due process of law whereas its inadvertent suppression may, or may not. 

And so it becomes important in that context to determine whether a prosecutor’s conduct has been deliberate or not.  In other words, what was or is going on in the proecutor’s head?

Of course, suppression is as suppression does, whether it’s deliberate or inadvertent.  A criminal defendant who was convicted and sent to prison when evidence that might have made a difference was withheld doesn’t care whether the prosecutor meant to or not.  And explaining to him that he lost his post-conviction plea for release because although that evidence was wrongfully suppressed it wasn’t deliberately wrongfully suppressed will seem both arcane and ritualistic.

But lawyers – and especially judges – do have to look out for the system, too.  The system’s integrity, to be more specific. 

And here is an uncomfortable truth:  the system can have no integrity so long as its officials – and that includes all lawyers, and to be more specific again it includes criminal defense lawyers – subscribe to the opinion that there is no such thing as really true and really false, really guilty and really innocent, because if that’s true there’s no way to distinguish between honest and dishonest.  After all, an honest man is one who will not engage in willful falsehood, which becomes a meaningless definition if nothing is true and nothing is false.

Of course we live in an imperfect world.  And we are not a perfect profession.  So we add this caveat:  the system would be diminished and deeply flawed, but not necessarily entirely dysfunctional, if large numbers of criminal defense lawyers subscribed to that opinion. ***

But it would be entirely dysfunctional if a prosecutor did. 

And if the police subscribe to it?  We’ve had a commenter over here, Martin Preib (just follow the link and read through the comments), who for want of a better term (since this post is already too long) is a cop-apologist.  He represents the mindset of the majority of police.  And notice the perspective:  it’s not that he explicitly endorses the idea that the stronger will prevails regardless of underlying reality – that is, a sort of latter day Nietzsche point of view – it’s that he can’t tell the difference between a case where the underlying reality lines up with his opinion and a case where it doesn’t.  To him, the Anthony Porter ‘wrongful exoneration’ and the Central Park Five are the same thing:  their team versus our team.  Which side are you on?  It’s not so much that he denies the categories of truth or falsehood explicitly; he just unconsciously doesn’t use them because he is unaware of them.

So we ask ourselves whether this mindset has its origins not in the police departments themselves, but in the corruption of the legal profession that was already worrisome, albeit subtle and confined to less significant matters, all those many years ago, and which may have filtered down to the police in the years since. 

And we also ask if anything can really be done when things have deteriorated to the extent they have.



*  The reason you often see lawsuits where it seems like the Plaintiff has sued someone who doesn’t seem to have much fault is that many times the only person or entity that has enough money or insurance to cover a large bill is a person or entity that, well, doesn’t have much fault.  In many instances, a little fault is enough, due to a concept called “joint and several liability”, which we won’t discuss here because it’s too boring to write about, although it is far from boring when you have to decide who to sue and whether the monied person or entity you have your eye on has any genuine fault.  But never mind.

**Bill Black has also recently weighed in on legal profession corruption in a more specific context

***  To be fair, the criminal defense lawyer’s practice tends to lead him in that relativist direction because it is so much more nuanced and intellectually difficult than a prosecutor’s

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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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A written judicial opinion might be “well-reasoned” or not, but either way an implicit reference is being made to logic, which provides a lot of rules for what is called reasoning.

Ironically, reason cannot provide its own justification, which is to say that everyone understands certain basic rules of reasoning and lives by them, for the most part unconsciously; either way, though, at the end of the day no one knows why these rules of logic and reason should be the rules.*

But all that aside we employ basic reasoning all the time.  Day to day life would be chaotic and unintelligible if we didn’t, and even the extreme skeptics who deny there’s any such thing as rational thought processes are forced to admit that much.

This comes to mind because I have been recently having an exchange with a police officer turned author named Martin Preib who has managed to effectively (if unintentionally) display much of what is wrong, logically, with the usual cop group-think.  First and foremost, cop group-think becomes a big problem when it ignores basic rules of reasoning.

Here’s one revealing exchange.  Martin says:

The prosecutor and detectives in that case [i.e., the Central Park Five case - ed.] have been put through hell,

I say in response:

Nothing compared to what their victims, or indeed any victim of any wrongful conviction have been put through.

This addresses Martin’s claim that cops and prosecutors have suffered over the Central Park Five case by pointing out that the wrongfully convicted suffered more.

Martin’s response to this is to first misquote and then totally misconstrue my response, deliberately or not:

Nothing compares to what the victim of a wrongful conviction went through? Tell that to the woman who was raped in Central Park or the families of the victims in the Porter case…

Making an argument so obviously invalid – basically changing the subject – should fully discredit the interlocutor.  If it was done intentionally he’s not honest.  If it was done unintentionally he reasons too poorly to contribute meaningfully to an argument.

And this was after I had pointed out to Martin that one of his arguments was a non-sequitur and another was an ad hominem.  And notice further that after this last one, Martin proceeds to make an appeal to emotion by aligning himself with the rape and murder victims.

Arguments like this should always fail in the courts.  But they frequently don’t, as long as they are made by favored litigants (government, bank, insurance company).  They will, of course, always fail if made by a disfavored litigant – like a criminal defendant – going up against a favored one. 

It wouldn’t be an exaggeration to say that this – the double standard exposed so plainly by the most elementary rules of logic – is the primary cause of the system’s many failures.  More than faulty eyewitness testimony, more than police or prosecutor misconduct even, because the double standard breeds the police and prosecutor misconduct in the first place by rewarding it with success.

Martin is offended and combative - rather than chastened - when I point out his poor reasoning skills.  And why not?  The system has taught him and other police and prosecutors to behave precisely this way.


* There are big epistemological questions lurking here, but they are beyond the scope of this little post.  I might deal with them some other time.

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Wrongful Conviction ‘Industry’


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

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

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

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

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

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

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

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

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

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

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

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

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

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


Filed under Media incompetence/bias, wrongful convictions

NY murder convictions vacated; wrongful convictions scandal called “metastasizing”

Originally posted on Wrongful Convictions Blog:

Brooklyn (NY) Supreme Court Justice Raymond Guzman vacated the murder convictions of Antonio Yarbough, 39, and Sharrif Wilson, 37, Thursday after the two had served 21 years in prison for a 1992 triple murder—that of Mr. Yarbough’s mother, his twelve-year-old sister, and her friend. The two men, who were 15 and 18 at the time of the murders, have long claimed they did not commit them. Brooklyn District Attorney Ken Thompson dismissed the cases against the men.

No physical evidence had connected the two men to the crime. The post-conviction breakthrough came last year when DNA testing of evidence found under the fingernails of Mr. Yarbough’s mother matched DNA from a subsequent rape and murder that occurred in 1999 when Yarbough and Wilson were in prison. Family members cheered as the decision was announced in court.

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

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

And the subordinate cop goes to prison for 20 years.

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

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

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

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

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

There’s nothing more dangerous than a bad cop.


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Amanda Knox – Good Quote

This is not conclusive or even all that probative of much of anything, but at least in my experience this is the kind of thing innocent people say:

The only thing I can do is testify to what happened to me. You don’t have to believe me, but believe that it happens to other people. Until people realise that, they’re not going to believe me, so all I can do is say what happened and show who I am and hope that that’s enough.”

From an interview with Knox appearing in the UK’s Guardian.

Some people rise to the occasion of the unspeakable misfortune of being wrongfully accused.  Or worse, wrongfully convicted, imprisoned, etc.

It takes strength of character to formulate an argument where you acknowledge other people’s misfortunes before your own.


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Amanda Knox Guilty Again

Hot off the presses.  (We followed this a little, such as here and here.)

Don’t really know how they could have reached this result.  If memory serves one of the judges said something to the effect that “the knife” and the DNA tests on it would be dispositive, and my understanding is that the testing didn’t yield an inculpatory result.

But I guess we wait 90 days to see what kind of evidence and reasoning, if any, underlies this second conviction.

Quite an ordeal.


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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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Brady’s Bastard Children III

As I say, I highly recommend reading the dissenting opinions here, for those of you who might be interested in criminal justice issues generally.

For the moment we’re going to focus on Judge Livingston’s dissent.  It begins with a somehwat overwrought – complete with macabre imagery using such terms as “interred” – back-handed panegyric to the sanctity of Brady v. Maryland, which as I indicated before Judge Livingston misconstrues:

Until today, Brady v. Maryland, 373 U.S. 83 (1963), and its progeny represented a safeguard against the miscarriage of justice. In this Circuit — at least until such time as today’s error is corrected — Brady now includes, with our imprimatur, the right to recompense for a denial of the opportunity to commit perjury more successfully.

I concur fully in Judge Jacobs’s powerful dissent, which explains how the majority effectively (but unjustifiably) inters Heck v. Humphrey, 512 U.S. 477 (1994), as it relates to convictions obtained after an earlier verdict is set aside for Brady error. I write separately to make the point that Poventud’s claim, apart from undermining the basic premises of Heck v. Humphrey, also simultaneously distorts Brady v. Maryland and its progeny beyond recognition. Disregarding the Supreme Court’s recognition that Brady claims “have ranked within the traditional core of habeas corpus and outside the province of § 1983,” Skinner v. Switzer, 131 S. Ct. 1289, 1300 (2011), the majority ignores the single fact that Poventud’s guilty plea necessarily defeats his Brady claim on the merits by rendering implausible any contention that the undisclosed impeachment evidence is material. The undisclosed evidence (as Poventud’s guilty plea now establishes) could only have been used at trial to support a perjurious defense. Today’s startling conclusion — that in such circumstances, a defendant can nevertheless state a claim for recompense arising from Brady v. Maryland — spells serious trouble for future applications of Brady in this Circuit…The Supreme Court’s Brady jurisprudence makes clear, moreover, that constitutional error for Brady purposes is only present when, considering the undisclosed evidence in light of the record as a whole, there is reasonable doubt.[1] Thus, the Supreme Court said in United States v. Agurs, 427 U.S. 97, 112 (1976), that, “if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed.” But if this is not the case — “[i]f there is not reasonable doubt about guilt whether or not the additional evidence is considered,” id. at 112-13 — no constitutional error has occurred…something in the majority’s analysis is amiss.  That something is a basic fidelity to Brady…Brady imposes a fundamental obligation on the prosecution to disclose evidence for use at trial that is “favorable to [the] accused” and “material either to guilt or to punishment,” Brady, 373 U.S. at 87. Where nondisclosure of such evidence occurs, regardless whether the undisclosed evidence was intentionally or negligently withheld (or, indeed, withheld in the absence of any fault on the part of the prosecution team), there is constitutional error: as the Supreme Court has said, such error occurs “because of the character of the evidence, not the character of the prosecutor.” Agurs, 427 U.S. at 110.

It may be that the focus of a Brady violation is “the character of the evidence, not the character of the prosecutor”, but the reverse is true of a Mooney violation.  Mooney rests on the more traditional due process grounds of “oppressive government conduct”.  And there is no “materiality” requirement for a Mooney violtion.  The government is prohibited from deliberately suppressing exculpatory evidence to obtain a conviction, and such a conviction violates due process of law, even if the defendant would have been found guilty anyway.

But Judge Livingston’s and the modern prosecutor’s interpretation of Brady makes it a limitation on Mooney – adding a “materialty” requirement, rather than the “extension” of Mooney that Brady explicitly proclaimed itself to be.  And Brady applies whether exculpatory evidence is “intentionally or negligently” withheld, but Mooney already applied to the former

Who, then, is advancing a “distorted” view of Brady:  Poventud, or Judge Livingston?

Put succinctly, prosecutors cannot cheat to get a conviction without violating a defendant’s right to due process of law.  This is such a simple and self-evident proposition that it boggles the mind that it has gotten so confused.  Judge Livingston and many of her colleagues, raised in prosecutor’s offices, are missing this fundamental underpinning of the whole system.

And you have to wonder why.  Maybe we’ll get to that.  But not today.

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Brady’s Bastard Children (Updated)

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

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

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

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

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

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

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

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

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

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

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

Oh, yes.  More to come.

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


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

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A Longshot

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

Web synchronicity, doncha know.

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


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

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

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

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

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

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

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

Finally, there’s this:

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

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

And a “floodgates” argument?  Meh.

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

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Chesterton? (Updated)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And that belief is not without some merit.

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

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

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

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

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

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


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

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

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