Category Archives: wrongful convictions

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

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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Filed under Judicial lying/cheating, wrongful convictions

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.


*  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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Filed under Striking lawyers, wrongful convictions

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?


Filed under Media incompetence/bias, wrongful convictions

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.


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. 


*  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. 



Filed under wrongful convictions

Wealth Distribution In The USA

This little study is pretty revealing, on a number of levels.

Speaking for myself,  you know, I’m not a wealth redistributionist.  If that’s a word.

Not as a matter of politics, anyway.

On the other hand, I thoroughly approve of, and have brought about on a number of occasions, wealth redistribution on an individual level, to remedy an individual injustice of some kind.   In a successful personal injury lawsuit, for example, money is taken from an insurance company and paid to an injured person to compensate for the injury.  In other situations you might have an employee wronged in some way by an employer and the employer pays to compensate.  Or you might have a breach of contract where the breacher is ordered to compensate the other party. 

In fact as you might have just gleaned, one of the primary functions of any justice system is to transfer wealth - from the wrongdoers to the wronged.

Now, you don’t necessarily have an imbalance of wealth in the social sense (and if you didn’t read the linked article, it contains proof that wealth in the United States is extremely imbalanced) solely, or even primarily, because the justice system is failing.  Or even at all.  There could be other reasons.

But it’s also true to say that an extreme imbalance in wealth distribution is consistent with a failing justice system.  I am not the only one who thinks so.  It would be legitimate to suspect, then, that a justice system is failing when there is an extreme imbalance of wealth.  The conclusion that the justice system is failing is made more likely if there are other indicators that the justice system has problems.  Do we have other indications of that in the US?

Are you f***ing kidding me?


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Filed under financial crisis, Judicial lying/cheating, wrongful convictions

A More Just World

This very large disagreement I have with many lawyers – not most, perhaps, but certainly many – about whether there is such a thing as justice and even if there is whether it matters or has anything to do with practicing law, has corollary disagreements that are as big.  And in some ways bigger.

Plainly, if justice is not an intelligible concept or is unknowable then doing anything to make the world more just is worse than a fool’s errand.  And if that’s the beginning and end of the discussion you never get to an equally or maybe more important problem afflicting our justice system:

How does one make the world more just?

This issue is more subtle, yet every bit as profound.  Institutional actors – that is, cops, prosecutors, judges (do I repeat myself?), insurance defense/big firm lawyers, banks and their lawyers – come to believe that justice is imposed by institutions upon individuals, because this is how they encounter it.  If indeed they do, that is.  Anyway, this leads to a belief, unconscious at first but more and more deeply felt as you go along, that justice is primarily an institutional responsibility.  This in turn leads to the corollary, an implicit belief that justice is not an individual responsibility.  This leads to more individual irresponsibility that in turn leads to more cases where institutions must impose justice on individuals.

Self-reinforcing loop, doncha know.

So once this mindset is fully in control the question of how to make the world more just is seen as an inquiry about grand, collective institutional action for the common good.

It doesn’t sound like there’s anything wrong with that, until you consider that justice was traditionally regarded as a virtue – indeed one of the four cardinal virtues – to be practiced by individuals. 

So to a traditionalist, then, the idea of justice being practiced by an institution by imposing it on individuals is incoherent nonsense.  You will have a just world to the extent individuals living in it practice justice, and injustice exactly the same way.  Thus again to a traditionalist, the world becomes more just by more people practicing justice, or practicing it more.  It’s a one-individual-at-a-time kind of thing.  It’s about personal conduct.

Where are we, then, in the legal profession?  We have one group – the institutional kind – who believe in justice but regard it as residing in institutional rules, power and force.  We have the other group that in the main claims there is no such thing as justice.  Both of these, from the traditional point of view, are utterly hopeless in achieving any semblance of justice in the world.

Should it surprise anyone, then, that injustice thrives and that the legal profession seems to facilitate it?

What is justice?

St. Augustine tied justice and the other cardinal virtues together.  They are all different aspects of love:

“For these four virtues (would that all felt their influence in their minds as they have their names in their mouths!), I should have no hesitation in defining them: that temperance is love giving itself entirely to that which is loved; fortitude is love readily bearing all things for the sake of the loved object; justice is love serving only the loved object, and therefore ruling rightly; prudence is love distinguishing with sagacity between what hinders it and what helps it.”


But we don’t have to get all squishy and Catholic.  You can find a pretty good summary of western thought about justice here.  It begins – and it is unarguably appropriate to begin exactly like this in discussing the concept of justice – with this sentence:

Justice is one of the most important moral and political concepts.


For a lawyer to maintain that there is no such thing as justice is perverse.  One could make a good argument that it’s disqualifying. 

On a traditional understanding, it’s the job of lawyers to make the world more just, one individual and case at a time.  You can’t join that great task if you deny that it’s even possible.

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Three Related Stories

With connections to problems in the criminal justice system, and specifically wrongful convictions.

First we have the New York Times reporting on Brooklyn’s “Conviction Review Unit”, which now has funding and 10 assistant district attorneys and a Harvard law professor consultant.  They are trying to figure out who that office has wrongfully convicted over the last, oh, 30 years.

Good for them.

Then, in what is really a bombshell news story that should be leading every major outlet, as they used to say, we learn from the very same New York Times that the very same Brooklyn District Attorney’s office was allegedly mired in some pretty heavy corruption reaching right to the top, both to the formerly widely respected and elected DA Charlie Hynes and to widely respected judges like Barry Kamins.

So, let’s get this straight:  the same office that succumbed to high level corruption reaching into the very judiciary it supposedly pleaded before, and that must have secured the wrongful convictions in the first place, is going to lead the effort to police itself and right its wrongs.  What, no one has ever heard of the fox guarding the henhouse?

But what bothers me so much more about the perspective on display in these articles is the vanishing criminal defense bar.  It would seem that the natural people to review criminal convictions to determine whether or not they were wrongful would be criminal defense lawyers, but the task has fallen to prosecuting attorneys and consulting law professors. 

Maybe they’ll do a good job, but I seem to remember the New York Attorney General set up some sort of conviction integrity unit a couple of years back that hasn’t been heard from since.  Although they do “meet regularly” under their “new chief”, who used to be a prosecutor of course.

But then there is this:

And criminal defense lawyers do not “desire justice.” We desire to win our client’s cause. That, and nothing else, is our highest calling. I would have thought you would know this by now.

A familiar refrain from the criminal defense bar.  Not a universally held belief, but widely held enough that no one is going to trust them to distinguish between wrongful convictions and just ones.  The latter being, to them, a theoretical as well as a practical impossibility, like an oxymoron.

Truth is, the criminal defense lawyer’s “calling” is a lot more nuanced than that.  Can a criminal defense lawyer incite or aid and abet prosecutorial misconduct in order to “win” his client’s cause?  There are many scenarios I can think of where this could be done. 

I think the answer is no.  Obviously.

What Greenfield and other CDL’s do is transplant the simple and unambiguous rule at the trial itself – that you do everything within the rules to win – to every aspect of representing a criminal defendant, including plea negotiations with prosecutors.

If a prosecutor can’t trust that a CDL won’t mislead him – or worse – that will affect not just plea negotiations with one CDL but with every CDL, and every CDL’s clients. 

It’s the CDL destructive contribution to systemic dysfunction, and it’s every bit as stubbornly adhered to by some as the exonerations from obviously wrongful convictions are resisted by prosecutors and attorneys general.

There’s something very out of whack when there’s a national awakening about wrongful convictions and independent criminal defense lawyers are conspicuously absent from the discussions.  To some extent it is a self-inflicted wound.  Ugh.

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Too Cozy

It’s a real problem when the ‘news’ is the product of agreement and an unholy consensus, instead of facts.

And we’re not the only ones noticing and/or complaining.

A consensus doesn’t make anything true.  If it did there would be nothing wrong with lynch mobs.  Beyond that, desiring something to be true doesn’t make it true. 

The biggest temptation of power is to conflate one’s own ego-driven conception of reality with reality itself.  The press is probably the most important antidote to that tendency in a nation’s political leaders. 

How abjectly they are failing.  And much of the torrent of wrongful convictions can be laid at the feet of that failure.


Filed under Media incompetence/bias, wrongful convictions

Good Faith Presumption?

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

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

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

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

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

Every criminal defense lawyer should know that.

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Consensus Follies And Hidden Costs

Certainly, a judgment of conviction represents a consensus, with the imprimatur of the State, fixing responsibility and punishment for a crime.

Does the State have an interest in ‘finality’ when the consensus turns out to be wrong?*

Let’s stipulate that in the majority of cases it cannot be known with absolute certainty that the consensus was either right or wrong.  We do the best we can, and often times the best we can do leaves some room for doubt.  Either way.

Nevertheless there are some cases where the certainty is absolute, or at least as absolute as anything can be known in this life.  We are not talking about epistemology here; we are dealing with practical judgment.

The poetry of finality:

In light of “the profound societal costs that attend the exercise of habeas jurisdiction,” Smith v. Murray, 477 U.S. 527, 539 (1986), we have found it necessary to impose significant limits on the discretion of federal courts to grant habeas relief. See, e.g., McCleskey v. Zant, 499 U.S. 467, 487 (1991) (limiting “a district court’s discretion to entertain abusive petitions”); Wainwright v. Sykes, 433 U.S. 72, 90—91 (1977) (limiting courts’ discretion to entertain procedurally defaulted claims); Teague v. Lane, 489 U.S. 288, 308—310 (1989) (plurality opinion of O’Connor, J.) (limiting courts’ discretion to give retroactive application to “new rules” in habeas cases); Brecht v. Abrahamson, 507 U.S. 619, 637—638 (1993) (limiting courts’ discretion to grant habeas relief on the basis of “trial error”).

These limits reflect our enduring respect for “the State’s interest in the finality of convictions that have survived direct review within the state court system.” Id., at 635; accord, Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam); Sawyer v. Whitley, 505 U.S. 333, 338 (1992); Keeney v. Tamayo-Reyes, 504 U.S. 1, 7 (1992); McCleskey, supra, at 491-492; Teague, supra, at 309; Murray v. Carrier, 477 U.S. 478, 487 (1986); Engle v. Isaac, 456 U.S. 107, 127 (1982). Finality is essential to both the retributive and the deterrent functions of criminal law. “Neither innocence nor just punishment can be vindicated until the final judgment is known.” McCleskey, supra, at 491. “Without finality, the criminal law is deprived of much of its deterrent effect.” Teague, supra, at 309.

Then a couple of kickers to drive the point home:

Finality also enhances the quality of judging. There is perhaps “nothing more subversive of a judge’s sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else.” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 451 (1963).

Finality serves as well to preserve the federal balance. Federal habeas review of state convictions frustrates “ ‘both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.’ ” Murray v. Carrier, supra, at 487 (quoting Engle, supra, at 128). “Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them.”


From Calderon v. Thompson, 523 US 538 (1998)

Well, that’s the argument.  I wonder more than a bit about the “…inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well..” though.  Seems to me that judging should be an objective thing, not a function of subjective impressions that are apparently easily upended by  “…the notion that all the shots will always be called by someone else.”  Isn’t that the case anyway?  Is the judge’s job to make a decision reflecting his “subjective conscientiousness”, or to conform his subjective conscientiousness to objective reality known through things like oh, I don’t know, evidence?

Never mind.  That question really is about epistemology, and while it’s very relevant to this post and many others here at Lawyers on Strike, we’re not prepared to deal with it at length this morning.

On the other hand, the “societal costs” of wrongful convictions are not apparent.  The wrongfully convicted offender is robbed of the social position he otherwise would have had, but what is that position?  We can’t be sure.  Much of the time we have no idea.

What about his family and friends and co-workers and colleagues who all know that an injustice was done?  We don’t have any surveys to determine the impact on their – what shall we call it? – faith in the criminal justice system.

Multiply by the number of wrongful convictions.  See any social impact yet?

One problem, one very big problem with this line of reasoning is the encouragement it gives to building a consensus over getting it right.  This is an implicit favoritism to institutional litigants:  who is much better able to build a consensus, the individual or the institution?  The question answers itself.

So we see this play out, over and over.  One recent case in which a consensus was assiduously constructed is the Dawn Nguyen matter, which we wrote about here.  The consensus is that she bears criminal responsibility for the murder of two firefighters on Christmas eve 2012, even though she neither participated in that crime nor had any knowledge of it beforehand.  That’s not technically what she was found guilty of, but right now that’s not important.

What’s important is that the consensus was formed, and then hardened, and then implemented not so much through a rational process of evaluating it, but through an emotional catharsis that had no other outlet, since the real guilty party was dead and beyond earthly retribution.  It’s especially ironic in this context, for acting upon irrational emotional impulses is chiefly characteristic of criminal behavior, yet here the victim of it is designated the criminal.

Here’s the trick:  irrational emotional impulses don’t look like irrational emotional impulses when there is a powerful consensus behind them.  Except, we hope, in retrospect.  When reason tells us that we indulged a collective madness.

The mob in Dawn Nguyen’s case has not been a group of unruly yokels, but rather a politically powerful constituency that has historically, and depressingly, managed to assert a primitive, unreasoning dominance over the institutions whose entire function is to hold them in check.

I can’t begin to describe how dangerous this is, and how much worse it will be if this phenomenon, too, is anointed with poetry of finality.


*  Um, no.


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CLE Report

CLE – as in, Continuing Legal Education.

You know, it’s a good thing to periodically listen to what others in the same profession, doing something like the same kinds of things, have to say about this or that issue.

Yesterday the United States Court of Appeals for the Second Circuit held what looked to be a fairly well attended lecture on the impact of a couple of fairly recent Supreme Court cases – Missouri v. Frye and Lafler v. Cooper – upon the process of “plea bargaining”.*

There was a panel of at least a half a dozen – a federal judge, prosecutors, legal aid lawyers, federal and state public defenders, and one lone independent practitioner, who noted the first time he spoke that he was the only “non-institutional” player on the panel.  Which was correct, and an important fact about which a lot could have been said.  But wasn’t.

As with many interactions of this nature there are explicit revelations and implicit ones.  Explicitly, the Supreme Court in the cited cases has finally woken up to the fact that our criminal justice system is a system of “pleas, not trials”.  So now that we’ve gotten that out of the way, the question shifts to how this streamlined process provides fair outcomes, or doesn’t, and what role the lawyers and judges play, keeping “ethics” firmly in mind.

Implicitly, one thing the lecture revealed is how marginalized and incoherent the criminal defense bar has become.  At one point the judges and prosecutors were discussing how much easier it was to dispose of a claim of ineffective assistance of counsel where the defense lawyer had thoroughly documented his discussions with his client showing that the client was fully informed before entering his guilty plea.  It seemed not to occur to them, although it did occur to some of the defense bar present, that from a defense lawyer’s point of view this was an argument to not document such discussions with the client.  Remarkably, even after this point was made the federal judge insisted that documenting such discussions was good practice and helped everyone.  Which is obviously not the case, and her maintaining this position even in the face of the dissent by the defense bar was a stark illustration of how hopelessly out of touch a judge can be when it comes to seeing things from a defense lawyer’s point of view.

We need more defense lawyers on the federal bench, obviously.

Another rather amusing point was made by a state District Attorney who kept opining that in the wake of Lafler and Frye prosecutors were now in the awkward position of trying to oversee defense lawyers’ dealings with their clients in order to make sure that any plea offers have been properly communicated to the client, so that convictions thereby obtained won’t be disturbed later.  Which was a good point, but not for the reasons she probably thought:  the really revealing thing there was the perspective that the prosecutor stands over the defense lawyer.  Nobody mentioned the axiomatic principle that the prosecutor has an obligation of fairness to the criminal defendant, recognition of which might ameliorate the “awkwardness” the prosecutor was complaining about.

Which leads to another very important and inadvertently revealing theme coming from all the prosecutors:  the very firm intention at the higher administrative levels of prosecutors’ offices to protect convictions already obtained.  This is where prosecutors are not just mistaken, but hideously mistaken.  If a conviction is wrongful it must be undone.  There is absolutely no value in preserving it, either societally or (of course) individually.  Or maybe I should say there is absolutely no important value.  Revisiting convictions already obtained is a bureaucratic headache, of course.  And it can cause embarrassment for lots of people when a conviction is shown to have been wrongful. 

But so what?  The value of such concerns approach zero when weighed against the vast destruction caused by wrongful convictions.  And the damage isn’t just to the defendant and his family and – occasionally – his lawyer.  Wrongful convictions greatly damage the public and the justice system, for example.  Indeed you could say the damage if a wrongful conviction is not undone extends to infinity. 

I would say that, anyway.

One last thing that kind of interested me.  One of the public defenders was really up on his high horse about the joke on effective criminal defense lawyering that is the Strickland standard (sure, defense counsel slept at his client’s trial but not during any of the important parts!) and how important “zealous” and “competent” representation were. 

And of course that’s true as far as it goes, but on the other hand the client doesn’t really care, most of the time, about how zealous and competent your representation has been; the client is interested in the result.  And in the end so should his lawyer be:  it’s really no comfort to say to oneself after a client has been wrongfully convicted that, gee, your representation was zealous and competent. 

Then again, what if the conviction is not wrongful?  We’ll take that up later, maybe.





* Each of these cases involved plea bargaining and convictions by guilty plea that were alleged to have been wrongful because of errors in the process.  The main problem appears to have been ineffective assistance of counsel (IAC for short) in either not informing a client of a plea offer or not counseling them properly.

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More Due Process Error Needing Correction (Updated)

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

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


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

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

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

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

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

I shall never understand how things have gotten so confused.

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

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

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

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

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We have established authorities, and we are reluctant deviate from them and embrace alternative views from less established individuals or groups.

Is this good or bad?

Well, both.  It’s good because there’s a reason established authorities are “established”:  it’s an accomplishment to get into Harvard, to earn a position in the federal government, to rise through the ranks of a big company to become it’s CEO.  Accomplishment should be rewarded and one of the rewards might very well be presumptions in your favor in a whole host of contexts.

But it’s bad, too.  The established authority doesn’t have a monopoly on truth, and when it’s wrong it must yield to the truth like everyone and everything else.  By all means have a presumption, but the reluctance to deviate should not become a menace, strangling truth in its crib every time it emerges from a non-established source.

The establishment newspapers in the United States are the New York Times and the Washington Post.  The estaiblishment newspaper in Canada is Toronto’s Globe and Mail.  So their handling of this story on the editorial pages is very interesting.  The essence of the issue is here:

The question is, taking for granted that there is a good faith disagreement between the University and Dr. Buckingham about how programs should be structured, whether he is entitled to break ranks and publicly complain about the process. That isn’t obvious. Reasonable people may disagree about how to arrange and structure academic programs so that they can function effectively and efficiently – not just as discrete, stand-alone units, but as a university. In the end, though, someone needs to make a decision. Assuming that the final decision belongs to the central administration, and not to the individual deans, there is some merit to the claim that Dr. Buckingham and others have an obligation to implement it – and not to foment dissent among the rank and file professoriate.

One would want to be extremely cautious before reaching this conclusion…


Exposing itself as terminally establishmentarian, though, the writer goes on to note that the university, in firing the good Dr. Buckingham entirely, went too far because they might have undermined another very important establishmentarian concern:  tenure of university faculty.

Nowhere in the article is any opinion on the relevant merits of the university’s or Dr Buckingham’s substantive disagreement given.  Who is right or who is wrong does not appear to matter.  This article is really about something else:  preserving the status quo.  And the Globe and Mail is firmly in favor of that.

For quite understandable reasons, I’m afraid.

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