Anecdotal

Once we were able to get an acquittal in a burglary trial where a group of guys had broken into an unoccupied home to steal some copper piping.  There was some testimony that our client had been with them and there was some testimony that our client had not been with them, but the reason for the acquittal was that the prosecutor had forgotten to charge the defendant as an accessory.  As a result he had to show – because “elements” of the offense – that the defendant had actually physically entered the home himself, and there was an issue about that and we guess we convinced the jury that he hadn’t entered the home or at least that none of us knew if he did.  So not guilty.

Verdicts of not guilty are very rare, so we must have been very clever to do that, except that we weren’t.  We just found a weak spot in the prosecution’s case and tapped it gently enough, or hard enough as the case may be, and it worked out well for us and our client.

Was it a “just” verdict?  We think so.  Do we know so?  Does it matter?  Probably not.  At least not very much.

The point is, this was a run-of-the-mill criminal defense episode, except for the result because a not guilty verdict is always extraordinary.  But the result could easily have gone the other way, too, and there’s no getting around that.

And what if it had, and the defendant was actually innocent and was never even there?  Would that be a “just” verdict?

How fucked up do you have to be to answer anything other than – indeed, very quickly – “NO!” to that question?

But then there’s this:

Hidden in this otherwise very astute expression of the good intentions of the players are two words that give rise to a significant part of the problem: doing justice. You want to do justice, whatever that means?  Be a prosecutor. That’s their job. And the system always needs good, honest, smart prosecutors to do justice.

Criminal defense lawyers? We don’t do justice. We zealously defend the accused. We use whatever tools the law allows to do so.

And what’s SHG’s point?  It’s always the same:

The social justice adoration of feelz doesn’t win cases. Good lawyering does. Let’s bring good lawyering back into fashion.

If a just outcome is unknowable in one case that does not mean it is unknowable in every case, or that there is no such thing as justice – or, for that matter, that justice is no part of a criminal defense lawyer’s job, only the job of prosecutors and judges and juries.

SHG’s approach is unserious.  How is an unserious approach “good lawyering”?

Worse, every criminal defense lawyer, and every criminal defense lawyer’s clients, have suffered and will continue to suffer from being lumped in with SHG and his unserious approach.

Yet we’re also pleased that this approach appears to be on the wane and expect it will disappear into the void whence it came.  And that might also be the main reason we’re not so acerbic and patronizing to younger lawyers.

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Yawn.

Apropos yesterday’s postUgh.

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Mindless And Stupid

Back in 2013 we touched on the subject of Norma Patricia Esparza.  A few months later we were no longer paying attention, and apparently this woman pleaded guilty to manslaughter and agreed to serve a six year prison sentence.  There was a long article in Slate (“…aimed at helping readers to ‘analyze and understand and interpret the world’ with witty and entertaining writing…”) about the case in February, 2014.

For reasons that may be obvious to regular readers, the episode fascinates.  Especially the Slate article.

On the one hand the article has a couple of things right:

But for the system to achieve justice, prosecutors have to set the terms straight, by bringing charges that reflect actual culpability…Stretching the law to call Patricia Esparza a murderer…[is]… just one more injustice in a series that stretches back for almost 20 years.

Prosecutors have a lot of “discretion” in who and what to charge.  A lot.  But it’s not limitless.  The charges must make logical sense.  They cannot be brought out of vindictiveness.  They cannot – and unfortunately this is the subject of surprising confusion, at least for now – be based on evidence that is fabricated, or perjured, deliberately by government actors.

It’s a fateful step, charging someone with a crime.  For one thing, from that time going forward there is a sizable group of people who will never accept that the person was wrongly accused, no matter what happens from there.  Acquittal at trial?  Meh.  Charges dropped with an apology from the prosecutors? Meh.  100 miles away when the crime took place, verified by the usual unassailable methods?  Still must have had something to do with it.  The police and prosecutors don’t charge unless they know, and they always know.

This surprises the author of the Slate article:

In reporting this story, what has surprised me is the number of people who don’t believe Esparza at all.

The author believes her.  Apparently, there is literally no reason not to believe her other than the mindless and stupid “reason” that she was accused to begin with.

In her account of events she was raped by a man.  Some time later, under some amount of duress and trepidation, she identified the rapist for her violent boyfriend who, with others, rather brutally murdered the man without either her knowledge or participation, although at one point – and we would call this the most inculpatory fact – she was brought in by the group to observe the man while still alive but badly beaten, not knowing that the ultimate goal was that the group would kill him.

There are elements that resonate here – physical presence at some point during a crime in which a person has no role.  For many people – and especially cops, we submit – this is an impossibility, except for whatever person or persons are defined as victims.

It’s a definitional thing, and it’s the product of limited intelligence and imagination, an impoverishment of understanding.  Clearly, while it may be unusual that someone can be physically present at the scene of a crime and be neither a perpetrator nor a victim, it is not impossible.  Especially in the context of a violent crime, which to the uninitiated is often both a horrifying and confusing thing.

Among the subtleties of life that may be a challenge to understand this is not a particularly difficult one – it takes no more reasoning ability than the average adolescent still in grade school possesses, in our view.  But this is a dangerous obtuseness when so much is at stake.

This is what the author of the Slate article is having trouble coming to grips with:  that our system of criminal justice operates at a fairly low intelligence level.  That is the other main concern with bringing criminal charges:  the system isn’t going to do a very good job adjudicating them if the evidence, facts and circumstances take more than a 5th grader to understand.

The only check on all this is the most powerless and despised player – the defense lawyer.  Prosecutors and judges are not usually mindless and stupid, but they mostly act as if they are and in effect might as well be.

And yes, Jessie, we’re repeating ourselves.

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Maintaining The Fantasy (Updated)

We have nothing against cops as a group here at LoS.  We appreciate that the job can be extremely difficult and often dangerous.  Still, there are times when the criminal justice system’s double standard in their favor deserves a comment or two.

Under the headline “Experts:  Bench trial paid off for Nero”, MSNBC credits smart tactical decision making by Edward Nero’s lawyers for his acquittal on charges related to the death of Freddie Gray in Baltimore.  Rene Sandler, a Maryland defense attorney and “former prosecutor”, we are told, puts it this way:

“It was a very tactical decision for Nero’s lawyers, a very smart move,” Sandler said.

They’re laying it on thick:

When only the judge hears the evidence and renders a verdict, that’s known as a bench trial, named for where the judge sits. Such a proceeding isn’t common, but there are times when defense lawyers would rather try the case based on the law, rather than appealing to a jury.

Back to Rene:

“If you have an overwhelming legal issue that better plays in front of a judge on the law, as opposed to the emotions of twelve people, you will go for a bench trial,” said Rene Sandler, a Maryland defense lawyer and former prosecutor.

A little over a year ago we alluded to the sheer obviousness of this “very tactical decision…very smart move”, when the Defendant is a cop:

Let us summarize.  You have a criminal case out of Chicago where the defendant is a cop charged with reckless homicide and the judge renders a judgment of acquittal, at trial, at the close of the prosecution’s case because the defendant was a cop and that would never happen for anyone else because the cop had fired into a crowd and the mens rea didn’t fit the facts.

From the sound of things we’d guess an acquittal is the right result here, although we are by no means a close student of this particular story.  Our only concern is when “experts” give the public a false impression of the even-handedness of our criminal justice system.  It is not even-handed.  It grossly favors police and the government generally. This has nothing to do with an “overwhelming legal issue” better playing in front of a judge; it’s about the defendant being a cop that all the other cops, and probably the attorneys prosecuting the case, want to see acquitted.  How often do cops tender an enthusiastic congratulatory handshake to an acquitted criminal defendant?

Image: Officer Nero Acquitted of all Charges in Freddie Gray Baltimore Case

The general rule for criminal defendants is that you go with a jury because the risk of the jury wrongly convicting, while substantial, is far less that the risk of the judge wrongly convicting.  But that’s not generally true when the defendant is a cop:  the cop-as-criminal-defendant doesn’t even have to run the jury risk.

The rest of us do.  That’s not even-handed.

Shame on MSNBC for misleading the public.

Update:  Here are the judge’s career highlights.  ‘Nuff said:

Career highlights: Led court’s criminal division from 2012 until January. Chaired Criminal Justice Coordinating Council for Baltimore, 2012-2014. Special litigation counsel for the civil rights division of the U.S. Justice Department, 2002-2005. Trial attorney in the civil rights division of the U.S. Department of Justice, 1997-2002. Assistant state’s attorney in Baltimore, 1989-1997

 

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Paterno, Sandusky, Penn State

We seem to revisit things as a society sometimes for mysterious reasons.

We at LoS don’t know why a tossed off phrase in a court order should generate so much copy five years after the Sandusky story dominated the news cycle.

It “still matters that no one stopped Jerry Sandusky” says the linked article by way of explanation.  Well, yes.  It matters.  But perhaps we should try to understand why it matters.  Instead, there seems to be this determination to posthumously cast Joe Paterno into the convenient villain category, as if that’s going to answer all the questions.

We really can’t improve much on what we wrote about all this previously, such as here and here and here.

 

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Another Albright v. Oliver Fiasco In The SCOTUS? (Updated)

Petition of the day over at the SCOTUS blog – Hartley v. Sanchez. Read it and weep.

Police obtain a rape confession from a mentally challenged 18 year old (Sanchez) and use it to arrest and prosecute him.  Apparently he is held in custody for about three years until the charges are finally dropped.

The Petition for Certiorari cites Albright (all over the place), notes the confusion in the circuits (Duh.  They should cite this blog.) and concentrates on the 4th amendment, though not quite so emphatically as the Manuel case (the case the SCOTUS has already taken up).  It doesn’t cite the Mooney line of SCOTUS cases, but cites some circuit court opinions that do.  It does not appear to mention the phrase “due process” at all; but it is of interest that it discusses Franks v. Delaware at some length:  is Franks a 4th amendment case or a due process case?  We are all over this issue and even we are not sure.

In any event, this case would appear to add little but confusion which, when you go up to the SCOTUS, is especially counter-productive.

It is worth noting, however, that the posture in which this case is presented is the denial of “qualified immunity” to the officers involved.  In other words, the government is the appellant.  That makes a cert grant more likely because governments are favored litigants.

Nevertheless, the case really adds nothing to what the SCOTUS is already doing in the Manuel case except more confusion.  Although the confusion is likely to be better briefed.

We hope this one isn’t granted.  We have a much better idea, but at this stage it is no more than that, unfortunately.

Ugh.

Update:  The Hartley Petition doesn’t cite Cole v. Carson.  We hope that is not a deliberate omission, because that would be a big no-no.

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Too Basic?

When you’ve lost your moorings – as an individual, a society, a profession, an institution – settled principles of conduct can become unsettled.

Take the “issue” of prosecutorial inconsistency.  We delved into that here.  But not at great length.  We thought it too elementary.  Too basic.

Sometimes we have heard prosecutors refer to “the people’s right to a fair trial”.  We try to correct them, although it is generally considered impertinent for a mere lawyer to correct a prosecutor who is, in the eyes of the system that favors him, some kind of uber-lawyer.

The government doesn’t have “rights”.  It doesn’t need them – it has power.

But we digress.

Judge Kozinski of the 9th circuit has been around a while.  More recently he appears to have had some epiphanies about prosecutor conduct, because he certainly whistled a different tune 20 years ago.

Some of his musings on the subject of prosecutorial inconsistency in the case of Thompson v. Calderon, 120 F.3d 1045 (9th circuit, 1997):

To begin with, I do not agree with Judge Fletcher’s broad statement that “it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime.” Fletcher op. at 1058. There is, in fact, a long line of cases that says, if only by way of dicta, that judicial estoppel will not apply against the government in criminal cases…That said, there is surely something troubling about having the same sovereign, particularly acting through the same prosecutor, urge upon two juries a conviction of both A and B, when it is clear that the crime was committed by either A or B. To begin with, it raises the suspicion that the prosecutor may have presented testimony he knows, or has reason to believe, is false. If that be the case, the breach in prosecutorial ethics consists of putting on the tainted testimony, not in pursuing the inconsistent verdicts…But it is impossible to make judgments about what the prosecutor knew or should have known at our level, as Judge Tashima points out. See Tashima concurrence at 1064; but cf. Fletcher op. at 1056 (finding prosecutor’s characterization of testimony “patently untrue”). Thus, if the petitioner makes a prima facie case that the prosecutor knowingly presented false evidence, the matter must be resolved at an evidentiary hearing…But, as Judge Kleinfeld points out, prosecutors are not omniscient. See Kleinfeld dissent at 1074-75. They may be confronted with witnesses who present mutually inconsistent versions of what happened, and there may be no way of knowing which version — if any — is true. Is the prosecutor then precluded from presenting either case to the jury? Must he pick one based on his intuition? I believe not. A prosecutor, like any other lawyer, is entitled to retain skepticism about the evidence he presents and trust the jury to make the right judgment. After all, the guarantee of due process encompasses a fair trial before a fair judge and jury; the right to a lawyer and to exclamatory evidence available to the prosecution; and the right not to have the prosecutor lie to the jury. But I cannot see that it encompasses the right to have a prosecutor who is convinced of the defendant’s guilt. We trust the adversary process, the good sense of jurors, the presumption of innocence and the prosecution’s heavy burden of proof to ensure a verdict that is fair to the defendant. If the system works as it should, A and B both may be acquitted, but in no event should more than one of them be convicted.

Once again, in none of all of this verbiage by Kozinski and his colleagues on the 9th circuit on the subject of prosecutorial inconsistency is Pyle v. Kansas even mentioned.

Ugh.

Anyway.  Let’s make a few points.

First, it is technically true that the breach of prosecutor ethics (and due process) is the deliberate use of false evidence or argument, not inconsistency per se.  But this is a meaningless quibble:  because of the inconsistency, it is absolutely certain that one or the other is false and that the prosecutor knows it.  The point of Pyle v. Kansas and the Mooney line of cases generally is that the government cannot be dishonest in its criminal prosecutions.  But how do you prove dishonesty?  Inconsistency is one way, and it leaves no question whatsoever.  It is not often you can be absolutely sure someone has been dishonest – but this is one of those times.

So.  Moving on.

Of course, as Judge Kozinski points out, there may be times when the prosecutor is confronted with conflicting accounts of this or that and so really has no firm idea of what happened or who is guilty of what, although someone is surely guilty of something.  Judge Kozinski asks if the prosecutor is precluded from presenting any case to a jury under such circumstances.

Seriously?  Of course he is.  Did a federal appeals court judge really ask that question?  WTF?

So does this mean a criminal defendant has a right to a prosecutor who is genuinely convinced he is guilty?  Judge Kozinski asks that question, too.

Well, let us ask the same question another way:  Is a criminal defendant entitled to face only such charges as are brought in good faith?

The question answers itself.

Why is this so?  Why does this have to be the rule?

Because the government has power, and doesn’t need or have “rights”.  Because, as the Judge Kozinski of 2015 – in contrast to the Judge Kozinski of 1997 – realizes:

They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich.  It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

Just so.

In 1942 nobody had to spell any of this out in any detail.  For that reason, you have to give Pyle v. Kansas a careful reading, but if you do there’s no question what it says and what it means, and it disposes of Judge Kozinski’s entire 1997 discussion of prosecutorial inconsistency in the Thompson case, quoted above.

How big a problem was this shift in prosecutorial self concept?  We have run across a parable:  the case of Jack McChullough.

The terrible abduction and murder of a little girl in 1957.  Somehow, the case that couldn’t be prosecuted back then could be prosecuted decades later – in 2012 – resulting, of course, in a conviction.

An apparently  wrongful conviction that was overturned in 2016.

Our system’s reliability depends, at the very least, upon the honesty of prosecutors.  Without it, we’ve lost our moorings.

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