Category Archives: wrongful convictions

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

The Unserious Approach To Ferguson – And A Serious Solution

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

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

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

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

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

 

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

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

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

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

 

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

Statutes can be amended by a simple act of Congress.

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

1) no immunities for public officials, including judges;

2) no statute of limitations;

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

4) Make it all retroactive.

 

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

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

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

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

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

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

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

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Follow Up

I thought it might be a good idea, it being a recurring disagreement with SHG and there now being a judge involved, to flesh out this “role of the criminal defense lawyer” thing a bit more. 

None of us is writing on a blank slate.  Indeed, a fairly recent law review article deals specifically with differing ideas about the role of lawyers representing clients.  The article is entitled “Lawyering at the Extremes:  the Representation of Tom Mooney”, the author is Rebecca Roiphe, and it can be found at 77 Fordham L. Rev. 1731 (2009)

Briefly, according to the article “scholars” have described a few categories of thought:  the “libertarians” or “neutral partisans”, who argue that a lawyer must do whatever is legally permissible to help the client (this is the SHG position); the “moral activists”, who argue that a lawyer must work with the client to define and pursue his goals in a moral way; and a middle ground, staked out by the Model Rules of Professional Conduct (of course) where a lawyer must serve his clients zealously but also guard the integrity of the courts.

For what it’s worth, the author doesn’t seem to come down on the side of any particular view, just notes the shortcomings of all of them.  Nevertheless, reading the article I get the impression that the “libertarian” or “neutral partisan” approach – that is, SHG’s approach – is the most defensible. 

But where he and I part company is at the margins, I guess.  I think in the majority of cases you don’t have to overthink the neutral partisan position; it just works and that’s what you do.  But there are unusual situations where it doesn’t work, and it seems to me you can’t evade responsibility for your representation of a client by blaming everything you do on your duty to the client.  There are tactics and strategies that are objectionable and you shouldn’t pursue them.  You shouldn’t make arguments you think are invalid or unwarranted.  You shouldn’t mislead, ever.  I short, there are limits to the “neutral partisan” approach that vary from lawyer to lawyer and that are probably the product of, well, too many factors to delineate in a blog post.  The judgment and temperament of the lawyer, and/or the client; the nature of the case; the qualities of the forum; the strength of proof for and against.  I mean there are just too many things to consider.

I suspect that despite the bluster, SHG is largely – not entirely, but largely – on the same page.  But there is still room for big and serious disagreement, especially in a given case.  And in that sense disagree we do.  More than that, though, the bluster itself is harmful, to him and other lawyers.  I wish he’d cut it out.  Judge Kopf (and other judges) should not be led to believe that criminal defense lawyers would knowingly mislead them, or that they’ll argue anything they think they can get away with if it benefits their client.  It isn’t so.

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The Arizona Felony Murder Bootstrap

Felony murder.  Not just murder, but felony murder.  Sounds serious, doesn’t it? 

In fact, however, “felony murder” isn’t really murder at all.  The idea is that the perpetrator has agreed to participate in some felony or other –  a robbery, a grand theft auto, a sex offense – and in the course of carrying it out someone is killed.  The perpetrator who neither killed nor meant to kill is liable under the felony murder rule for murder.

One would think that this harsh rule would at least be limited to a lesser category of murder, though.  It’s criminal behavior for sure, but not remotely like intentionally offing someone.  And felony murder is an old rule.  It’s been abolished in a lot of places.  But not in the US.  And not in Arizona, where felony murder is murder in the first degree.

Indeed, in Arizona it is a death penalty eligible offense.  Of course ostensibly that’s only if “aggravating factors” are present.  But the aggravating factors requirement is a joke, a flagrant example of bootstrapping:

bootstrap, v., trans:  to make use of existing resources or capabilities … to modify … by making use of what is already present.

 

Why do I say this?

If you look at the lengthy list of “aggravating factors” provided by Arizona statute, there’s this one:

2. The defendant has been or was previously convicted of a serious offense, whether preparatory or completed. Convictions for serious offenses committed on the same occasion as the homicide, or not committed on the same occasion but consolidated for trial with the homicide, shall be treated as a serious offense under this paragraph.

(Emphasis supplied.)

 

So, when you fall under the felony murder rule in Arizona – a rule where you can be liable for a murder without killing anyone or even intending to kill anyone – the same offense(s) that bring you under the rule in the first place will also provide an “aggravating factor” that makes you eligible for the death penalty.

I think this stautory scheme is disingenuous, dishonest and violates a defendant’s right to due process of law.  Not that it matters what I think, of course.

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Ferguson, MO – Smearing And Pandering

I suppose a little should be said about this.

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

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

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

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

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

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

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

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

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

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

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Justice

It doesn’t seem to be a law of nature, but it is.

Justice is a hard virtue.  Unlike, say, prudence, which is softer. 

Justice requires that the good be rewarded and that every wrong be paid for. 

Assume for purposes of discussion that there is a God, in the traditional western sense.  Then also in the traditional western sense God must be not only just, but perfectly just.  Every wrong paid for down to the penny, in other words.

Scary thought, isn’t it?

But we’re not God, and we’re not perfect.  So consider this:  for us in the fallen world, mercy comes at the expense of justice, and vice versa.  We like mercy (for ourselves when we have wronged) and justice (for ourselves when we have been wronged).  We’re not God – again – in more ways than one.  Assuming there is such a thing.*

Someone was talking to me the other day about those who do not do their duty, but rather prefer comfort and ease.  Is that a problem?  If justice is a law of nature it certainly is, because if someone has it too easy then someone else must have it too hard, to the extent things are working at all.

I often point out that as much as I and other complain about this and that injustice and whatnot, it’s astonishing how much still goes right in our daily lives:   air to breathe, water to drink, food to eat, relative safety for most of us.

With the exception of the first, we should – in justice, that is – regularly stop to consider that these things do not happen by themselves.  People – in most cases not us – perform tasks and work and make sacrifices so that these benefits come about.  And then we should be grateful for and to those people.  And then, if it seems that those people are not receiving their fair share and credit for the good they bring about for the benefit of others we should work ourselves to change that.

That’s an important job, too.  Don’t you think?

It’s not socialism to work for justice, unless you forget that justice is a virtue that exists only because individuals practice it.  The collective will be just only to the extent the individuals comprising it are likewise just.  This is a hard truth, like justice itself.  There are no shortcuts, there are no magical formulas, and anyone trying to sell you on something like that is a charlatan.  Or a socialist.

Of course, all that aside if there’s no such thing as justice I’m just talking nonsense.  But since just about everyone who has read this post knows exactly what I am talking about then it is not me talking nonsense, but rather those who say that there is no such thing as justice.

Which is not to say that we always know the just thing to do.  We’re not God, after all.  Assuming there is such a thing.

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*  This is a disclaimer we intend to use around here at Lawyers on Strike whenever the subject of God comes up, similar in function to the “Not that there’s anything wrong with that.” meme from the Seinfeld days.

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Lunacy

Somehow, a new law has sailed through the legislature having as its only objective to increase the number of people sent to prison for relatively minor offenses.  To make felonies out of misdemeanors, in other words.

But maybe there’s a method to the madness. 

The “prison industrial complex” idea has always struck me as outrageous, in that it seems that it should be a fanciful rant dressed up as an argument; but at the same time disturbing, because it fits reality far better than I would like to think it possibly could:

As the prison population grows, a rising rate of incarceration feeds small and large businesses such as providers of furniture, transportation, food, clothes and medical services, construction and communication firms. Prison activists who buttress the notion of a prison industrial complex have argued that these parties have a great interest in the expansion of the prison system since their development and prosperity directly depends on the number of inmates. They liken the prison industrial complex to any industry that needs more and more raw materials, prisoners being the material.

 

The new “law” is counter to the explicit national trend – that is, on the surface we appear to be looking for ways to reduce prison populations, which every reasonable person believes have gotten out of hand – but consistent with an entrenched group of interests that frequently find favor with political institutions because of superior organization and tightly focused goals.

This so-called law is Exhibit “A” in the prison-industrial complex scenario, then.  A healthy press would be all over this, finding out who was lobbying for it and who the interested parties are.  But never mind.  We have the press we have, 1st amendment or no.

Ugh.

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Moreland Commission And The Individual Conscience

I was raised Catholic and one thing I have never understood is the antipathy so many seem to have to the practice of confession.  We’re all sinners, right?  So what do we do about that?

One frequent accusation has to do with the “hypocrisy” of it all:  you confess your sins, receive “absolution” and go right out and commit sins all over again.  Rinse and repeat.  What a bunch of hypocrites Catholics are.

Hypocrisy may be the tribute vice pays to virtue, but applying the concept here at all is just an intellectually pedestrian category error, misunderstanding things completely.  Every time you make a confession you must promise to “sin no more” and yet you know that’s not going to happen, and indeed that reality is formally acknowledged because you’re also required to keep going to confession.  This isn’t so much hypocrisy as it is inconsistency.  Or maybe incoherence.

But is it?  Is it really?

Metaphysics 101:  to exist is to be in the process of becoming.  Plain language:  you’re never quite there, always on the way, at best.  But then if you don’t have a destination in mind you’re not even on the way, because you don’t know where you’re going.  Talk about incoherent.

So, you’ve got to have a destination to be on your way in the first place, and you have to accept that as long as you exist you’ll never reach your destination.  The practice of confession captures this – well – perfectly.

The examination of conscience is, moreover, a fascinating exercise.  There are mortal sins.  Venial sins.  Seven deadly sins.  And while we’re on the subject of sin lists, let’s not forget the sins against the Holy Spirit, which are unforgivable, and of particular relevance to this discussion, the fact that two of these unforgivable sins are:  a) presuming salvation; and b) despairing of salvation.   (For bonus points:  why are those two sins “particularly relevant” to this discussion?  Answer in the comments section to receive your just reward in the form of fulsome praise from your hosts here at Lawyers on Strike.)

And those are just some of your own sins.  There are also nine ways of being an accessory to someone else’s sin.  That’s right:  vicarious liability is rare in the law, but in Catholicism it’s a daily companion.

Now, why do I bring this up in connection with the Moreland Commission fiasco?  Well, consider the nine ways you can fall into someone else’s sin:

I. By counsel
II. By command
III. By consent
IV. By provocation
V. By praise or flattery
VI. By concealment
VII. By partaking
VIII. By silence
IX. By defense of the ill done

Now, forget confession for a minute.  Just focus on the nine ways and the examination of conscience entailed by that.  Isn’t it obvious that a political class that regularly examined their consciences with respect to the nine ways would have a hard time degenerating into the cesspool of political corruption that is Albany, New York?

So here’s the problem.  The political class in Albany doesn’t know anything about the nine ways – probably never even heard of them – and neither does did the Moreland Commission.

Don’t get me wrong:  like the poor, political corruption will always be with us.  But the regular examination of conscience, and particularly an examination inspired by the nine ways, would hold it in check. 

The United States Attorney, Preet Bharara, doesn’t stand a chance by comparison.  He’ll find a couple of people to prosecute.  And he’ll have a tough time winning convictions, not because there aren’t a lot of guilty people, but because that’s just the way it is.

Maybe the juries are right.  Prosecuting and convicting doesn’t do much good.  Something deeper is involved.  Much deeper. 

A lot of people have talked about changing the culture of corruption in Albany.  As suggestions go, I submit you could do worse than encouraging examination of consciences and confession.  In any case, it’s the only suggestion we at Lawyers on Strike have.

You’re welcome.

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Reaching For Amanda Knox

As in, a stretch.  A real reach.

The Telegraph in the UK reports that Amanda Knox was sexually involved with a cocaine dealer who knew someone else who stabbed yet someone else.

Got that?

This somehow bears upon Amanda Knox’s guilt, because….nope.  This doesn’t bear on anything relevant to Amanda Knox’s guilt, even if every word of it is true.  There are probably only a few people on the planet that can’t be linked to some kind of criminal act that way; that is, by extension several times removed. 

It’s a silly effort at a smear that shouldn’t be taken seriously by anyone.  And it’s a sign of desperation. 

By someone.

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Moreland Commission

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

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

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

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

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

To be continued.

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Shallow Reasoning

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

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

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

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

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

 

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Increased Stridency Or Class Consciousness (?)

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

I’ll suggest a couple of completely unprovable reasons.

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

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

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

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

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

Too messy.

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

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

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

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

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

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

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

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Casey Anthony’s ‘Wrongful Acquittal’

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

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

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

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

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

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

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

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

Their lawyers should get a pile of money, too:

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

but then who gives a damn about them?

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Top Story

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

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

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

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

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

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

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

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

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

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

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

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

Let’s go find one!

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

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

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

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

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

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

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

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

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

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

Moving on, then.

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

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

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

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

But there’s more.

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

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

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

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

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

We’ll see.

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

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

Except us over here at Lawyers on Strike.

 

 

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Stuck In Time (Updated)

You write a blog and wind up revealing things….about yourself.  Among other things.

Often inadvertently.

Over at Simple Justice, Scott Greenfield has one post about a phony curmudgeon – he being the genuine article, of course – followed quickly by another post in which he fights yesterday’s losing battle yet again.

It’s lawyers who need time for sabbaticals, not law professors.  And you couldn’t have a better example.

First the set-up:

There’s an adage, the only thing worse than a young fool is an old fool.  Age doesn’t make one wise. Learning from experience does, and one of the things one learns from experience is to appreciate new ideas.

SHG goes on, but damned if he isn’t fixated only on young fools:

Give the kids tummy rubs because it makes them feel better about themselves and doesn’t hurt their feelings.  There is an industry that provides seminars on how to do this…

Condescend much, Scott?

What’s pretty sweet about SHG’s trip to the keyboard this morning, though, is the swiftness with which he hands so much ammunition to the other side of the argument, with the old fool’s curmudgeon’s stock-in-trade – the war story:

Crossing a state highway patrol officer who had seized my client’s tractor-trailer filled with narcotics at the suppression hearing, he testified to something different than he wrote in his report.  The wheels turned as I carefully framed the question so he couldn’t weasel out of his hole, and closed the trap.  He responded:

Well, I couldn’t put that in the report because the judge wouldn’t like it.

Nailed. I had him.  Caught the cop dead in a lie*, and it doesn’t get any better than that.

 

The cop caught his client with a “tractor-trailer filled with narcotics”, but the important thing for SHG is that he is much, much more clever than the cop.

Lawyers have been besting cops in cross examination on such things for 50 years.  And the net result is always the same as in the very war story SHG tells:  suppression denied, no opinion, defendant convicted and, you know, off with his head.  The fruits of all this?  An incarceration rate that would have been unimaginable at the beginning of that 50 year period.  A justice system that has become increasingly honesty challenged, and not nearly so clever as it imagines itself to be, because you don’t have to be terribly clever if you can just ignore evidence and argument that gets in your way and do what you want anyhow.

Alas.

You know what else would have been unimaginable 50 years ago?  All this lawyer prattle over search and seizure and suppression motions. 

In fact, you could make an argument that the sudden swelling of 4th amendment tripwires for law enforcement in the 1960’s, on the one hand; and the cascade of criminal prosecutions, convictions and incarcerations in the time since, on the other – are related.  Causally connected, even.  Of course it also just might be that you could make that argument because….it’s valid.

I’m not the only one who has had that thought.

In other words, you could argue that the “due process revolution” of the Warren Court era has been a dismal failure, and that we have a lot of re-thinking to do, and that what is most needed is fresh blood and youthful enthusiasm.  In fact, we here at Lawyers on Strike argue exactly that.  Sometimes.

But then we’re not self-styled curmudgeons:  habitually re-living our glorious failures and faulting the young for not following in our footsteps.

As someone I know says:  error recognition is a pre-requisite to error correction. 

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*  I don’t know that that’s an entirely fair summary of the story.  Apparently the cop was at least telling the truth on the witness stand when he was under oath, right?

UpdateThis is a thoughtful response from SHG, although I have to question why, if he has read over here and wants to have a discussion about this or that he doesn’t just do so openly.

Parenthetically, and I assume also in response to this post, SHG notes an appellate opinion from 1992 where he prevailed on a suppression motion.  You know, 22 years ago.  If he’s using that as proof that suppression motions can be granted then I suppose I can cite a 1992 appellate opinion for the proposition that section 1983 actions in federal court on behalf of state prisoners can be won on summary judgment.

Either claim is wildly misleading, of course. 

 

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