Stumpfed. Tortured.

It was almost exactly three years ago that we opined on the ongoing plight of a man named John David Stumpf.  We’ve continue to struggle along where we are in the time since.  Mr. Stumpf continues to reside on Ohio’s death row, with his execution apparently currently scheduled for some time in 2018.

Ugh.  None of this is making anyone happy, especially Mr. Stumpf we assume, and also the son of the woman he murdered – who thought this was all taking way too long back in ’07 – though we hasten to add that when we use the term “murdered” we are referring to felony murder.  Which isn’t really murder.

Ugh again.  Torture indeed.

Yet we write about this again to point out that we, too, are being tortured.  You might call it intellectual torture, because just thinking about this is painful, and here’s why:  Mr. Stumpf’s case has been through the Ohio courts at least twice.  Then into the federal habeas system, where the District Court denied relief, then the 6th circuit reversed and granted relief, then the Supreme Court took it up because granting relief in a habeas case is almost certain to attract a reversal at some point which indeed it did and then it went back to the 6th circuit which wasn’t happy and so a three judge panel issues one ruling pretty much doing what they did before and then that panel decision is vacated and the 6th circuit hears the case “en banc” and finally decide that they’re not going to do anything and that Mr. Stumpf’s death sentence is good to go whenever the State of Ohio gets around to it.  Which, like we said, seems to be some time in 2018.

And as you can see an awful lot of state and federal court ink has been spent on Stumpf.

But the reason this is torture for us here at LoS is that in all of that ink, and in all of the other ink from other court decisions cited in that ink, the one case that absolutely, positively governs the outcome is never mentioned.  That case is Pyle v. Kansas, and in 1942 Pyle held that it was a violation of federal constitutional due process standards for a state criminal prosecution to do the very thing that it did to Mr. Stumpf.

That being, to take inconsistent positions in two different criminal prosecutions of the same crime so as to obtain convictions in each:

…that the record in the trial of one Merl Hudson for complicity in the same murder and robbery for which petitioner 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.

It’s enough to drive one mad.  We don’t know if Pyle is ignored because the courts just ignored it even though it was brought to their attention, or whether it was never brought to their attention at all.  What we do know is that the State of Ohio should concede that it can’t execute Mr. Stumpf, because at best it doesn’t know whether he actually pulled the trigger or not.

The state (Kansas) has to decide whether Pyle or Merl Hudson is guilty and stick to it. Just as the state (Ohio) has to decide whether Stumpf or Wesley pulled the trigger and stick to it.  And if they change positions they can’t get what they want in either.

This is not rocket science.  But it might as well be.  Ugh.


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This – that is, what we are about to suggest after a little self-indulgent blather – is an old idea of ours.  Very old.  But occasions for revisiting it keep arising through no fault of ours. Just the nature of things.

At one point we pointed out on this blog (albeit in a much different context) that while the United States has a long tradition of individualism and libertarianism, it also has a counter-tradition – that is, of more recent vintage yet old and entrenched enough to have also earned the appellation “tradition” – that the federal government should use its power of commandeering resources to do great things both domestically and internationally, and speaking domestically first and foremost of these is to insure the health of its citizens:

There are sharply differing views on the nature and role of government.  Some believe that the government is a positive force for good, that it provides safety and security – and some think even material prosperity – to its citizens.  There are others who are deeply skeptical of government and regard it as a danger to freedom and balk at the notion that it can provide prosperity, indeed believing that government by and large impoverishes its citizens.  And there are many nuanced positions in between.

The older American tradition is firmly in the latter camp.  But like many traditions, it has been eroded over time.  Whereas previously one might have argued that the government favorable view was “un-American”, that’s a difficult case to make now.  The government favorable position has itself established a claim to tradition in American political discourse.

We don’t agree with the counter-tradition around here, but we acknowledge political reality when we see it.  Since FDR at least, federal government involvement in “health care” has been a given, and its dominance of the field has been, well, inevitable.

So a long time ago we figured that since the federal government was inevitably going to dominate the health care field, it might as well get into health care directly – that is, build and operate hospitals, clinics, “urgent care” facilities and so on; hire doctors, nurses, orderlies and so on, and people who can’t afford their own health care can use federal facilities for free.

Then all the other “programs” – medicare, medicaid, Obamacare, etc. – can be abolished. They’re all unsustainable anyway, so why not?

Don’t agree with that last part?  Don’t be silly.  It’s arithmetic.  The federal government is spending about $1 trillion on “heath care” every year.  It is doing so in a mish-mash, haphazard, infinitely complex fashion where it mixes together with state and local governments, private insurers, private medical service providers themselves and who knows what else in a never ending upward spiral of increasing costs, increasing involvement, increasing meddling.  It’s the worst case scenario for federal government involvement in anything.

By contrast, directly doing a large project on a huge scale in a very standardized way is what the federal government actually does fairly well, as when it conducts full scale war, putting millions in “uniform” (and that word applies for a reason), spitting out copy after copy of aircraft, tanks, ships, ammunition, K-rations and whatnot.

Put another way, it might cost Uncle Sam $ 1 billion to build one hospital but he can build 100 for $20 billion and 200 for $25 billion, which is not even intended to be accurate, just painting with a very broad brush to give you the idea.  Very illustration.  Way succinct.

And as the new structures and systems come online you phase out medicaid, medicare, etc.  What’s not to like?

And we should think this idea would have special appeal to President Trump, who let’s face it likes to solve problems by building things – like walls.  And then putting his name on them.

Anyhow.  We don’t see any other solution to this particular problem.  And it’s about time the federal government undertook some big project where it builds a bunch of stuff.  Other than that wall thing.  And unlike that wall thing, this might actually work.

It’s just our opinion of course.


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Manuel v. City of Joliet

Well, that took a while (opinion here).  We wish it had been worth the wait but, alas, things are bound to get worse from here.

The worst thing about Manuel is that it elevates Albright v. Oliver to the status of a real precedent:  the plurality opinion of Albright has now been ratified – indeed, unanimously as far as it goes – by a SCOTUS that took its time with the case but essentially wound up putting all pretrial government mischief in criminal prosecutions (at least so far) in the 4th amendment box, a huge error contrary to more than a century of precedent* that is bound to have effects even more catastrophic than Albright did.

The companion case of Hartley v. Sanchez will likely be dealt with summarily at the SCOTUS conference on Friday, so we await its appearance on the order list on Monday, not that it will make any difference to the overall picture.

Interesting that Alito and Thomas dissent and express the thought that they need another case to deal with the questions Manuel sidestepped.  Most distressingly, one of these questions was what rights of a criminal defendant, if any (!) are violated when police and prosecutors deliberately falsify evidence before a grand jury to get an indictment?  The state of the law at present is that the answer to that question is…none.  At least arguably, and you can be sure whatever is arguable will be argued.  The SCOTUS sidestepped the question, even though it was squarely presented by the facts of the Manuel case, if not the cert petition.

We are still digesting the opinion and the dissents.  Because the majority opinion is also in large measure unintelligible except in the limited sense that it holds that wrongful pretrial detentions are actionable under 42 U.S.C. 1983 as a 4th amendment violation, it may not be as bad as it first appears.  The big problem, of course, is this:  you have a pretrial detention resulting from an indictment or criminal charge obtained through a fraudulent presentation to a grand jury or a judge.  Did the fraudulent presentation itself violate the Defendant’s constitutional rights in any way?  The SCOTUS cannot put the fraudulent presentation in the 4th amendment box because it is not a search or seizure.  They have yet to say whether it’s a due process violation – although every appeals court that has considered the question has decided that it is – but it would be highly embarrassing, among other things, to conclude that it is not.

We may have more to say on this later.

  • Frank v. Mangum, 237 US 309 (1915):  “In the light, then, of these established rules and principles: that the due process of law guaranteed by the Fourteenth Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States … to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a State on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the State, and not merely a single step in those proceedings…”  Emphasis supplied, and based on this quote and others we fear that the only avenue of repair left in this situation is to argue, contrary to what several circuits have already held, that due process comes into play only when the fraudulent charges are pressed through to a conviction, still meaning that the fraudulent presentation does not in and of itself constitute a violation of the indictee’s rights.  An important person has remarked to us that in an age when scientific wonders like smart phones are all around us, it seems incredibly obtuse, not to say stupid, that the justice system has no answer for this readily answerable question.  Nevertheless, that’s where we are.

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What’s Up With Hartley v. Sanchez?

It went to the SCOTUS conference on September 26 and there’s no docket entry after that. It wasn’t granted.  It wasn’t denied.

It wasn’t anything.

Does that mean relisted?  Rescheduled?


As we predicted, the Manuel argument was pretty much a disaster.  There seems to be a consensus that there is a consensus of some kind, but we hope they don’t do anything with Manuel.  At least not yet.

The real muddle of Manuel is that it’s trying to fit the square peg of malicious and malevolent government conduct into the round hole of “unreasonable” conduct under the 4th amendment.  The government conduct complained of in Hartley is less egregious (“knew or should have known”) but we think that’s also a poor fit for the 4th amendment.

Malicious and malevolent conduct is worse than “unreasonable” and violates due process. This is a distinction we must recover, and which Manuel threatens to bury further.  We don’t think Hartley is very useful here, either, although maybe in conjunction with another case where things are made a little clearer.

We have some ideas about such a case, but that’s for another time.  In the meantime…




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“Extremely Complicated”

Or, say, “analytically complex”.  Take your pick.

We are discussing, of course, the upcoming argument in Manuel v. City of Joliet.  And we are quoting from SCOTUS Blog’s write up about the whole thing.

Indeed this is, as the Brits were wont to say, a “sticky wicket”.  You have an area of constitutional law that is very confused, commanding pages and pages of dissertation in a recent 5th circuit case that for some reason none of the parties or amici in Manuel even cite.  Then you have statute of limitations problems, because Wallace v. Kato, one of the late Justice Scalia’s more unfortunate contributions.  Then you have state-federal court “tensions” and the Parratt doctrine.

Why, oh why, did the SCOTUS ever take up Manuel, a 1983 case out of the 7th circuit, when the cause of all these problems was another 1983 case out of the 7th circuit, namely Albright v. Oliver?  Maybe this is more of a “vehicle” problem than anything else.


Our offering for this morning is simply this:  we need to return to the basic constitutional issue here, uncluttered by issues of immunity, civil liability, statutes of limitation, accrual of causes of action, arrest v. “detention pursuant to legal process”, Parratt doctrine abstention, Younger abstention, 1983 this, 1983 that, Buckley v. Fitzsimmons (Egad another messed up 7th circuit 1983 case).  We think that when we finally focus on the constitutional issue simpliciter the formerly obvious principle – that “due process” applies to the entire process by which criminal convictions are obtained – will be restored to its rightful place in the firmament of constitutional adjudication, and this ultimately mindless parsing of that process into arbitrarily designated segments so that officials can be held liable for their perfidious and criminal conduct* – or then again not held so liable, which is more often the point – will be cast into the intellectual waste-bin where it belongs.

But obviously, the Manuel case is not going to accomplish any of that, and we’ll be lucky if it doesn’t make matters worse.

Considerably worse.  Ugh.

*Among the fundamentally misguided aspects of Manuel is this:  that they’re all trying to fit truly malevolent and criminal official conduct like suborning perjury and fabricating evidence into the 4th amendment’s proscription of “unreasonable” official conduct.  It’s a category error.  Meh.

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Thank You, Judge Kozinski

…for taking to the pages of the Wall Street Journal, not only to point out the perils of junk science in the courtroom, but also to succinctly highlight the enormous difficulty of righting our justice system once it has gone wrong and convicted someone who is innocent, and noting the obvious, if unheeded, moral obligation the country has to right these wrongs:

Preventing the incarceration and execution of innocent persons is as good a use of tax dollars as any…As for past convictions obtained through discredited methods, the outlook remains grim… Setting aside wrongful convictions has become exceedingly difficult under a 1996 law called the Antiterrorism and Effective Death Penalty Act, which severely limits the ability of federal courts to review state-court decisions. Congress should amend the legislation to authorize swift federal relief to prisoners who make a convincing showing that they were convicted with false or overstated expert testimony…Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

One of the commenters to the piece of course suggests that Judge Kozinski should be put on the Supreme Court.  The article isn’t going to help that cause any, and the fact that Judge Kozinski harbors such thoughts is probably one reason he wasn’t in the running for the current vacancy, even in the opinion of the Obama administration.



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Mutual Admiration Society

…for the positivistrelativist approach to law practice and, we suppose, life in general.

The members of this particular troupe are none other than SHG and Judge Kopf.

A few choice quotes:

As the old (and obviously sexist) saying goes, “women feel, priests believe, lawyers think.” The problem is that those who put too much emphasis on their beliefs are blind to thinking. Belief, by definition, requires neither proof nor thought; it’s just what you belief, even if there is absolutely no basis for it. That’s what makes it belief.

The concept of justice has taken on a life devoid of reason, a life based on belief.

That’s the beauty of belief. It requires no logic. It just is, no matter how absurd and irrational.

The law creates rules to be applied, when they work, based on logic and reason.

And finally, where does one search for this elusive concept called “justice”?

The seminary is the right place to do so, as there is no place for such questions in the courthouse.

Yep.  Banished from regular society, justice is confined to theological study among the cloistered.  This coming from a lawyer, cheered on by a judge.


It seems that any educated person should have a passing acquaintance with the subject of epistemology.  And perhaps that’s the main problem:  neither SHG nor Judge Kopf do.

To someone with at least such a passing acquaintance, the rejection of the idea that there is a radical dichotomy between “reason” and “belief” is so elementary that it’s barely worth discussing.  One progresses almost immediately to ridiculing the notion:  reason explains most everything but itself.  That is, we believe in reason.  We know that reason works, and to a large extent how it works, but we don’t know why it works and cannot, under the most rigorous analysis, justify elevating reason over emotion, or random impressionism, or the will to power, or any other basis for human belief and action.

“Lawyers think”?  Not very well, it seems.

Some beliefs are reasonable.  The belief in reason itself, for example.  The belief in God.  The belief in justice, and truth.

Some beliefs are unreasonable.  The belief in unicorns.  This or that “conspiracy theory”.  The belief in evolution.

Just kidding about evolution.  Sort of.

Now, a real student of epistemology might take issue even with these assertions.  You can get to a place in epistemology where you deny the validity of reason, too.  It gets a little circular (By what reason do you deny the validity of reason?), but it’s this kind of thing that has nothing to do with the law, which is – at least in theory – reason applied to the world we all live in, or at least appear to live in.  Practical reason, as Immanuel Kant might say.

Which is to say, SHG and Judge Kopf really don’t know what they’re talking about, because they apparently don’t know anything about epistemology, which probably means they were “political science” majors in college.

About which we might offer some more opinions later.  Political science, that is.

But the bottom line is this:  “justice” may be an elusive concept but in the same way so is “reason”, so is “logic”, so is “love”, so is “truth” and yet all of them – not one of them entirely knowable – are indispensable to human life as we know it.  There is no more reason to banish justice from courtrooms than there is to banish reason or logic or for that matter “law”.  The idea is frankly foolish and has long since been thoroughly discredited, both intellectually and morally.  Its persistence in the legal profession is not a sign of sly cleverness, as its proponents like to pretend, but rather a depressing degeneracy.  The trials at Nuremberg in the middle of the last century were basically about this very thing:

Deficiencies in intellect and education normally have consequences only for the deficient and mal-educated person.  But make such people lawyers and judges and it’s like two six year olds playing with a loaded revolver:  they know just enough to really hurt themselves or others.

In any event, to make the obvious retorts to the truly pedestrian assertions:  reasonable beliefs require both “proof” and thought, or at least rational thought; a life based upon belief – which is to say, every single life of every rational person – is not “by definition” “devoid of reason”; reasonable beliefs cannot defy the principles of logic, but even though logical they are still beliefs and not empirical knowledge or axioms.

SHG often complains that what others write makes people stupider.


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