Bill Coming Due?

The markets can remain irrational longer than you can remain solvent.  That’s supposedly a quote from Lord Keynes.  Still, we think it’s better to be rational than irrational, however that might pan out in the “markets”.

We’ve got a real problem on our hands.  It’s been a problem for decades and our rulers have more or less papered it over all that time and lived with the occasional “crisis”: 1980’s S&L crisis; 1987 stock market crash; 1990’s Asian currency crisis and Long Term Capital Management failure; stock market bubble pop of early 2000’s; real estate bubble pop of mid-2000’s; Lehman-capital markets crash of 2008, which included collapse of Washington Mutual, then the largest “savings and loan” in the US; the recent Greece crisis.

Has there been “stability”?  Of a kind, sure.  The 1% have consolidated their position on the top; the 99% have become ever more mired in their lesser status.  Social mobility used to be considered an important thing.  But never mind.

What I don’t get is that even Ambrose-Pritchard – probably the most insightful journalist in the world on this topic – never seems to straightforwardly get to the real point:  the fed’s rate raising’s most devastating consequence will be to the balance sheets of the institutions holding large amounts of low yield debt instruments, derivatives and whatnot.  Because as capital holdings their value will plummet dramatically with even small increases in the interest rates.  And then those institutions will have to be “bailed out” or they will fail, and the row of dominoes does its thing.  Only it’s no game.

So for this reason, we’re not even convinced that all the talk about rising interest rates means that’s going to happen.  It might be another bluff.

Besides all that, it would seem that one short term result of a rising interest rate environment is that there will be a spurt in borrowing: potential borrowers will finally understand that it might be cheaper to borrow today than tomorrow and go for it. One of the unintended consequences of 0% interest rates has been monetary stagnation, except through government borrowing.

We are surprised, of course, at how long the PTB have been able to kick the can down the road.  We thought it might all come crashing down years ago.  Fundamentally nothing has changed, though – that’s what kicking the can down the road means.

The solution is still a jubilee, and a jubilee is still going to happen one way or another:  in a lawful and orderly way, or in a violent and chaotic way.  The smart money is on the latter, we imagine.

But we hope it doesn’t work out that way.  For our own sake.  And others’.

Leave a comment

Filed under Uncategorized

Judge Sykes Again

In a tidy illustration of how the whole 3 judge panel thing in federal courts of appeal works – or doesn’t, as the case may be – we give you the recent case of Stinson v. Gauger, with Judge Sykes writing for the majority:

Robert Lee Stinson spent 23 years in prison for a murder he did not commit. He was exonerated by DNA evidence and now sues the lead detective and two forensic odontologists who investigated the murder and later testified at trial.

A pretty dramatic opening line.  But Judge Sykes doesn’t actually believe Mr. Stinson is what you’d call an innocent man:

About two days after the murder, Milwaukee homicide detective James Gauger and his partner, Tom Jackelen, assumed responsibility for the investigation. They started by reviewing the work other officers had done to that point and meeting with Dr. Johnson, who described the killer’s teeth and showed them a preliminary sketch. No police reports memorialize this meeting and the parties dispute what was said, but according to Stinson’s version of events, Dr. Johnson informed the detectives of his working hypothesis: the killer had one twisted tooth and was missing the upper right lateral incisor (the tooth just to the right of the two front teeth).

Armed with this information, the two detectives began interviewing people who lived near the scene of the crime. Stinson’s house was immediately to the north of the yard where the body was found. Gauger already knew Stinson. Two years earlier, Gauger had tried and failed to prove that Stinson was responsible for the murder of a man named Ricky Johnson. The Johnson homicide was never solved, even though a witness identified Stinson and two others as having been involved. To this day, Gauger believes that Stinson was responsible for Ricky Johnson’s murder.

See, he didn’t do the murder for which he was convicted, but he did another murder.  Maybe more than one.  This is what law enforcement believes, what they usually believe in such circumstances (“If he’s not guilty of this then he’s guilty of something else just as bad!”) and accordingly this is what Judge Sykes believes.  It seems her primary qualification to be appointed by President GW Bush to the federal appeals court bench was that she had been married to a popular right-wing radio personality named Charlie Sykes.

They are now divorced, but never mind.

We’ve reached a stage in our social development where we call ourselves neither liberal nor conservative but rather more libertarian, but Judge Sykes is too invested in a “conservative” world view to undergo much further social development, or indeed any development at all.  We might agree with her on some things, but even a cursory review of her work as a federal judge shows that her decisions are based entirely on political outlook:  law enforcement wins; Christian religious causes win; corporate business interests win, unless they’re up against law enforcement or Christian religious causes.

The problem with this Stinson opinion, though, is that it’s continuing to make a hash of the Mooney-Brady progress that was recently made in such cases as Whitlock v. Brueggemann:

The core of Stinson’s case is his contention that Drs. Johnson and Rawson falsified their expert opinions and that Gauger solicited or conspired with them to do so. Recent cases in this circuit hold that a prosecutor who fabricates evidence against a suspect and later uses that evidence to convict him violates due process, and this due-process right was clearly established by at least the early 1980s. See Fields v. Wharrie (“Fields II“), 740 F.3d 1107, 1114 (7th Cir. 2014); Whitlock, 682 F.3d at 585-86. The constitutional violation occurs when the evidence is fabricated, not when the fabricated evidence is later introduced at trial—a crucial distinction because the prosecutor would have absolute immunity for any constitutional violation committed during the trial. See, e.g., Fields v. Wharrie (“Fields I“), 672 F.3d 505, 517-18 (7th Cir. 2012); Buckley v. Fitzsimmons (“Buckley IV“), 20 F.3d 789, 794-95 (7th Cir. 1994).

It’s not entirely clear that the same reasoning applies to police officers and expert witnesses who are alleged to have fabricated evidence during an investigation. Unlike prosecutors, police investigators face liability for failing to disclose their own fabrication of evidence. See, e.g., Manning, 355 F.3d at 1034. That’s because immunity doesn’t protect an officer who fails to disclose material exculpatory evidence as required by Brady, see id. at 1033, even though a prosecutor who did the same thing would have absolute immunity for the suppression, see Fields I, 672 F.3d at 514.

Note the citation to “Fields II”.  Sykes, we hardly need mention for those who have been following us here closely, wrote a very strongly worded – and highly misguided – dissenting opinion in that case.  She now gets to “interpret” what the case she strongly disagreed with means in another case.

Is this a problem?  We think so.  Judge Sykes writing in Stinson:

Whitlock thus distinguished this court’s earlier decision in Buckley IV, which rejected a due-process claim based on allegations that investigators coerced and solicited false testimony. Buckley involved a prosecutor who had been told by three different experts that a bootprint left at the scene of the crime could not reliably implicate Buckley, but sought a fourth opinion from an expert who had a reputation for producing scientifically unreliable opinion testimony. 20 F.3d at 796. She told the prosecutor and investigators “that no one but Buckley could have left the bootprint on the door—and that she could identify the wearer of a shoe with certainty even if she had only prints made with different shoes.” Id. We explained in Buckley IV that “[n]either shopping for a favorable witness nor hiring a practitioner of junk science is actionable” as a constitutional violation; a due-process violation occurs, if at all, only when the testimony is offered at trial without compliance with Brady. Id. at 796-97.

Whitlock did not disagree with Buckley IV on this point. Instead the panel distinguished shopping for unreliable experts (among other wrongful conduct at issue in Buckley IV) from the evidence falsification at issue in Whitlock, which involved feeding witnesses details of crimes that they couldn’t have known. See Whitlock, 682 F.3d at 572, 584. Why the distinction? Because “[e]vidence collected with the[] kind[] of suspect techniques [at issue in Buckley IV], unlike falsified evidence and perjured testimony, may turn out to be true.” Id. at 584. Sorting out reliable and unreliable evidence is an ordinary matter for trial, through the crucible of the adversary process, so the use of these suspect techniques doesn’t violate due process unless the evidence is introduced at trial without adequate safeguards, such as disclosure of all material exculpatory evidence as required by Brady. Subsequent cases have confirmed that the due-process cause of action recognized in Whitlock is factually limited to cases involving evidence fabrication. See Petty, 754 F.3d at 422-23; see also Fields II, 740 F.3d at 1112.

But this is what she said in her Fields II dissent, and we’re sorry for the lengthy quote but this is important:

Three months after we issued our opinion in Fields I, a new decision of this court,Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir.2012), unsettled Buckley (and by extension, unsettled Fields I as well), which led the district court to do an about-face on remand in this case. Wharrie’s new appeal requires us to decide whetherWhitlock and Buckley can be reconciled. I think the answer is plainly “no.”

As my colleagues have noted, Whitlock drew a distinction, for qualified-immunity purposes, between a prosecutor who coercively interrogates witnesses and a prosecutor who fabricates evidence. See Majority op. at 1112-13. Whitlock observed that coercion and unsavory tactics like paying for testimony and witness shopping “may be deplorable, and … may contribute to wrongful convictions, but they do not necessarily add up to a constitutional violation even when their fruits are introduced at trial … [because] [e]vidence collected with these kinds of suspect techniques, unlike falsified evidence and perjured testimony, may turn out to be true.” 682 F.3d at 584. This proposed distinction between “coerced” and “fabricated” evidence was the linchpin for distinguishing Buckley and permitting the claim against the prosecutor inWhitlock to proceed. The Whitlock panel thought the prosecutors in Buckley had been accused of coercing witnesses and using other suspect tactics but were notalleged to have fabricated evidence, and on that basis distinguished the case. Id. at 584-85.

Regrettably, that was a mistake. In fact, both Buckley and Whitlock involved allegations that prosecutors had coerced, cajoled, paid for, or otherwise solicitedfalsified statements from witnesses — in other words, they fabricated evidence. Indeed, Buckley repeatedly refers to allegations that prosecutors coercively obtained “false inculpatory statements” from witnesses and “fabricated” or “manufactured” testimony and evidence from an expert.[4] 20 F.3d at 794-95. So regardless of whether Whitlock‘s proposed distinction between “coerced” and “fabricated” witness statements is valid in theory — and makes a difference in the constitutional analysis — it simply was not present as a factual matter and therefore cannot provide a basis on which to distinguish Buckley from Whitlock.[5]

Yet my colleagues perpetuate the distinction here. See Majority Op. at 1109-10, 1112-13. I appreciate the force of stare decisis; we should try to harmonize the two cases if we can. With respect, however, harmonization is impossible. Whitlock andBuckley are factually indistinguishable and legally irreconcilable. They cannot both be the law. We must decide which one is correct.[6]

For my part, I think Buckley is correct and Whitlock should be reconsidered. Because mine is the minority view here, any reconsideration of Whitlock must await a petition for rehearing en banc, which Wharrie may choose to pursue or forego. For the record, I’ll briefly sketch the conceptual difficulty Whitlock has introduced, which I believe warrants the full court’s attention.

In other words, Judge Sykes thinks the whole issue warrants en banc review by the whole court.  We think she’s probably right about that in the abstract, but we nevertheless hope that doesn’t happen in the 7th circuit, because Judge Sykes has it exactly backwards:  Whitlock isn’t the problem opinion; Buckley IV is.

Want proof?  Keep reading Judge Sykes’ dissenting opinion (again, a long quote).  It’s impenetrable and incoherent:

I have already described Buckley’s qualified-immunity holding, which was and remains sound. Whitlock rejected qualified immunity for a similarly situated prosecutor by using common-law causation principles to find an actionable constitutional violation where one did not otherwise exist. I do not agree with this development in our circuit’s law.

As I’ve explained, Buckley contains two important principles of immunity law that apply in suits alleging prosecutorial misconduct: (1) a prosecutor’s use of fabricated evidence at trial may be actionable as a violation of the defendant’s right to due process — under the rubric of Brady or perhaps more generally as a violation of the right to a fair trial — but the prosecutor is absolutely immune from suit under Imblerand related cases, see 20 F.3d at 794-95; and (2) a prosecutor’s fabrication of evidence against a suspect during an investigation is covered by qualified immunity because it doesn’t violate clearly established constitutional rights, see id. at 794-98.Whitlock’s innovation is to use common-law causation analysis to eliminate the effect of both forms of immunity. The panel held that “[t]he actions of an official who fabricates evidence that later is used to deprive someone of liberty can be both a but-for and proximate cause of the due process violation.”[7] Whitlock, 682 F.3d at 583.

As applied to a prosecutor, this reasoning circumvents both qualified and absolute immunity. Both immunities are well established and important. See Van de Kamp,555 U.S. at 341-43, 129 S.Ct. 855 (absolute immunity); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (qualified immunity); Imbler, 424 U.S. at 424-26, 96 S.Ct. 984 (absolute immunity). Absolute immunity can sometimes produce harsh results, but it has long been thought necessary to encourage and protect the vigorous performance of the prosecutorial function. See Van de Kamp,555 U.S. at 341-43, 129 1121*1121 S.Ct. 855; Imbler, 424 U.S. at 424-26, 96 S.Ct. 984.

In a shorthand version, the rule announced in Whitlock is basically this: A prosecutor who falsifies evidence during an investigation violates no clearly established constitutional rights and thus has qualified immunity from suit (see Buckley), but his conduct is nonetheless actionable as a non-immune subsidiary “cause” (both but-for and proximate) of a due-process violation that occurs later, when the prosecutor introduces the falsified evidence at trial — even though the prosecutor is absolutely immune from suit for the due-process violation. In other words, the only conduct that can possibly form the basis of a constitutional claim — the prosecutor’s trial conduct — is fully protected by absolute immunity, but the prosecutor can be sued anyway, based on the causal link between his nonactionable investigative conduct and hisimmunized trial conduct.

Aside from destabilizing immunity law, this chain of reasoning overlooks some basic differences between common-law and constitutional torts. Common-law causation rules flow from the nature of duty and breach in tort law. Everyone has a general tort duty to refrain from doing an act or omitting a precaution that creates a foreseeable, unreasonable risk of harm to other persons or property. See generallyRESTATEMENT (SECOND) OF TORTS § 282 (1965) (defining negligence). The duty is broad and undifferentiated and is owed to everyone at all times, and anyone who breaches it is liable for harms factually and proximately caused.

Constitutional rights — and the corresponding duties imposed on governmental actors — are not like the generalized rights and duties imposed by negligence law. They are implicated at specific times and in specific circumstances. As relevant here, Fields’s due-process rights came into play after he was charged; the Brady disclosure duty is an aspect of the right to a fair trial, as is the broader right not to have the trial process subverted by the knowing introduction of falsified evidence.See Serino, 735 F.3d at 592; Newsome, 256 F.3d at 751-52; Buckley, 20 F.3d at 796-97. So Wharrie’s act of extracting a false statement from Sumner during the investigative phase of the case did not violate Fields’s due-process rights. A prosecutor who commits this kind of misconduct has behaved deplorably but has breached no constitutional duty and thus committed no constitutional wrong.

It is impenetrable and incoherent, that is, unless one adopts the erroneous notion that Mooney has been “generally subsumed” into Brady and that prosecutor lying and cheating doesn’t matter unless it occurs at a trial, because Brady doesn’t get violated until there’s a trial.

But beyond the stunning intellectual errors, it’s embarrassing that a federal judge engages in such strained reasoning and mental gymnastics in the service of the odious desire to excuse government lying and cheating and depriving the victims of it of redress.  We don’t know how anyone prefers that result outside of pathological reasons.

Not to mention is is profoundly contrary to the legal traditions of this country.  In 1915 – 100 years ago exactly – Judge Sykes’ and her ilk’s artificial segmentation of due process’ application to this or that “stage” of a criminal prosecution would have been seen for the disingenuous nonsense that it is.  From Frank v. Mangum:

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 upon an application for a writ of habeas corpus 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 332*332 not merely a single step in those proceedings;…

We really have degenerated morally in the last 100 years.  Ugh.

Leave a comment

Filed under Uncategorized

So This Is The Argument?

Seems Greenfield has been reading over here again.  On the sly, of course.

You’ve got the Brady Mooney thing and we’ve extensively chronicled how prosecutors have mangled it all up (just one example) but we have also wondered aloud – in this as in so many other aspects of the criminal justice system – whither the criminal defense bar?

Turns out they are backing up the prosecutors.  Or at least some of them are.

Oh, dear.

Anyway, a few days ago SHG got into it, and this is the position he’s carved out for himself:

Not just Brady, but the narrow and rarely used Mooney brand of intentional concealment.  The reason no one uses Mooney is that it’s nearly impossible to prove, and even if you do, judges almost never adopt it. It’s one thing to say that exculpatory evidence has not been disclosed, and another to lay blame on a prosecutor for intentional, malevolent concealment.  That’s a step too far, and the surest way to seize defeat from the jaws of victory.

Where to begin?

“No one uses Mooney”?  It’s not true – Mooney is still cited in court opinions with some frequency – but ponder that phrasing for a while.  Is Mooney just a tool, a lesser used weapon in the criminal defense lawyer’s arsenal in his campaign to game the system to win, every single time?

No.  Mooney is the law, and it has been since 1935, “use” it or not.

Besides, what is being advocated here?  That if you have a Mooney problem you should ignore it, since it is the “surest way to seize defeat from the jaws of victory”?  Victory would be assured if you “subsumed” Mooney into Brady?  And that’s because Brady is always followed by prosecutors and judges whereas Mooney is not?

That’s laughable.

Is Greenfield serious?  You uncover a Mooney situation and it’s one of those rare cases where you can prove it and you’re supposed to let it go?  A prosecutor abuses his office in the worst way he can – against your client, so it’s your responsibility to correct – and you should bury your proof, look the other way and argue something else, because it’s a “bridge too far” and the judge won’t like it?

Put another way, the argument here is that you should match the prosecutors abuse of his office with a corresponding abuse of your own.

Any lawyer who would do that has no right to complain about any atrocity the system dishes out.  The “bridge too far” is obviously the prosecutor’s conduct, not the defense lawyer fulfilling his obligation to ferret it out and obtain relief for his client, not to mention protecting the whole system from an unspeakable corruption.

It’s a really lousy argument, Scott.  We realize you’re desperate to find some basis to disagree with us on this subject, but some things are just true, or just, or unarguable.  Willful blindness for ego’s sake isn’t going to change anything, and it certainly isn’t going to help anything.

Leave a comment

Filed under Judicial lying/cheating, wrongful convictions

Of Backstops And Due Process

So there’s this guy from the Heritage Foundation and he went to Stanford Law and he clerked for Robert Bork and he worked in the Justice Department and so, you know, he has a great resume and he writes well and all that.

His name is Paul J. Larkin, Jr., and it’s too bad that all of his intellectual firepower has metastasized because it’s only ever lived in Washington, D.C. in the service of punditry and wonkery and in thrall to power.

Anyway, he’s got a brand new article out (here)(more footnotes than text, must be really deep) and he’s perpetuating, or trying to perpetuate, the mythology that the Mooney line of cases and their “due process” holdings are applicable only to the deliberate use of perjury at trial:

An example of the second category—actions that effectively deny a defendant a trial as we know it— …. would be the Court’s decisions barring the state from using perjured testimony to prove the defendant’s guilt (fn113) and the Court’s decisions holding that certain constitutional errors cannot be harmless under any circumstances…

Here’s foonote 113:

See, e.g., Napue v. Illinois, 360 U.S. 264 (1959) (ruling that due process forbids a prosecutor from knowingly allowing a witness’s perjury to go uncorrected at trial); Pyle v. Kansas, 317 U.S. 213 (1942) (ruling that due process forbids a prosecutor from intentionally using perjured testimony to convict a defendant); Mooney v. Holohan, 294 U.S. 103 (1935) (ruling that due process forbids a prosecutor from proving a defendant’s guilt entirely through perjured testimony); cf. Giglio v. United States, 405 U.S. 150 (1972) (ruling that due process forbids the prosecution from not disclosing to the defense evidence that impeaches the credibility of a prosecution witness); Brady v. Maryland, 373 U.S. 83 (1963) (ruling that due process forbids the prosecution from not disclosing to the defense exculpatory evidence on the issues of guilt or innocence).

Note that Napue and Pyle and Mooney are lumped together with Brady and Giglio.  Ugh.

We’ve been over this, but it bears repeating because this plainly erroneous thinking, shared by far too many in the profession, has not yet attained the status of law.  But it’s come close, and may yet come closer.  From later in the same article:

In any event, the Court has begun to walk away from its due-process-as-backstop line of precedents. The Court first put the brakes on this approach is Graham v. Connor, 490 U.S. 386 (1989), a case involving a claim of police brutality during an arrest. Reasoning that the Fourth Amendment Reasonableness Clause directly applies to arrests as “seizures,” the Court declined to provide an additional layer of review under the Due Process Clause. Id. at 395 (“[We] hold that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”) (emphasis in original). Since then, the Court has consistently ruled that the Due Process Clause does not serve as an all-purpose backstop that can be invoked when another constitutional provisions that specifically addresses the government’s conduct does not reach as far as a private party would like. See, e.g., County of Sacramento, v. Lewis, 523 U.S. 833, 843 (1998) (noting that due process analysis is inappropriate if a party’s claim is “covered by” a more specific constitutional provision); United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (same); Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (“Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims’”); e.g., id. at 273-74 (declining to interpret the Due Process Clause to impose a requirement on the states similar to what the Fifth Amendment Indictment Clause would demand). Whenever a specific constitutional provision addresses a certain type of police or judicial conduct, that provision should serve as the prism through which the courts view a constitutional challenge.

Unfortunately, we know all of those cases too well, especially Albright.  Ugh again.  This is such an inside the beltway thing.

Where is the highly credentialed and thoroughly Washingtonian Mr. Larkin going with all these footnotes?  He’s trying to scale back the reach of the due process clause, and fold it into the 6th amendment or some such:

Were the Court to decide that the Privileges or Immunities Clause incorporates the Bill of Rights, this entire line of cases would find a home in the Sixth Amendment. The Due Process Clause would still be relevant, but only as a guarantee that every person must receive the benefit of whatever law and procedure a state may adopt. That guarantee, of course, would be far more limited than the role that due process currently plays as a guarantee of fundamental fairness.

Mr. Larkin needs to read Frank v. Mangum, Waley v. Johnston and Chambers v. Florida.  Fundamental fairness is required of the government at all times, not just during criminal trials, and it’s required of both the state and federal governments, and always has been.  The due process clause did not create or impose that requirement; it was there already, and the idea of due process merely recognizes what already is.

In other words, it isn’t the due process clause that functions as a “backstop”.  It’s something else.  But as a profession we are very far astray and it’s a long way back.  In the meantime, it’s critically important that this one thin line be held.

Our job, I’m afraid.

Leave a comment

Filed under Uncategorized

Tolerance For Ambiguity

Again, SHG is not technically wrong in this comment:

You sound as if you’ve been overloaded to the point of head explosion. Tough nuggies. This is reality, and it’s messy. Tolerance for ambiguity is one of the foremost qualities needed to practice criminal law. Not everyone has it.

It would be almost axiomatic:  by nature, the criminal defense position would have to be more sensitive to nuances and ambiguities.  The prosecution narrative is always blunt:  the defendant is a no-good criminal scumbag.  The defense doesn’t assume the burden of the reverse narrative – that the defendant is a great civic hero.

But once again there’s more than a little irony going on.  A tolerance for ambiguity should not become perverted into commitment to ambiguity, a slavish devotion to ambiguity as an overarching principle of action and a framework for understanding anything, no matter what the evidence is.  Dare we say it, that winds up being – well – an unambiguous fealty to the principle of ambiguity.  It’s oxymoronic.

SHG has been explaining himself well the last few days.  We’re grateful, albeit somewhat frustrated and maybe a bit saddened: he stubbornly clings to a failed and rapidly receding professional self concept that has ill-served him, his clients, the profession and the justice system itself.  He’s unreflective about that, and about the possibility that his dominance of a tiny corner of the internet, a part of the “blawgosphere” – has stagnated, aged and withered just as he and his self-concept have.  One’s a metaphor for the other, maybe.

He has exhausted his shtick, methinks.  The gritty, gutsy trench lawyer, the lazy and self-entitled youth that aren’t sufficiently in the SHG mold, and maybe a dozen or so other tired themes have run their course.  It isn’t a weariness that has come out of nowhere, of its own accord.  SHG brings it with him, in more ways than one.

Leave a comment

Filed under financial crisis, Striking lawyers, wrongful convictions

“Generally Subsumed”?

We suppose Scott Greenfield (SHG) might be technically right here in response to this comment over at SJ:

Isn’t this more of a Mooney v. Holohan (1935) violation rather than a Brady violation? Instead of “Oops, we forgot”, the prosecution purposefully didn’t turn the info over to the defense. Or am I splitting hairs?

…. to which SHG replies:

Mooney, which involves both the presentation of perjured testimony as well as the deliberate concealment of evidence that would have proven the testimony false, is generally subsumed in the broader rule of Brady, which applies regardless of good or bad faith by the prosecution.

…in the sense that courts have in fact developed a pattern of generally subsuming Mooney into Brady.  Most federal courts of appeal, that is.

As we have noted repeatedly (and recently), the problem with this “subsuming” business is that it winds up applying Brady’s limitations and qualifications – of which there are many – to Mooney situations, which have not been subject to limitations or qualifications at all:  federal courts of appeal have no power to limit Mooney and its progeny.  Only the SCOTUS can do that.  And they’ve never done it, and never will.

It’s a curious – not to mention wrong-headed – view coming from a criminal defense attorney, but I’ll venture a guess about why SHG has it.  Mooney, as we have so often said, is about deliberate misconduct by a prosecutor.  There are many times you might suspect that the prosecutor was acting deliberately but have no proof.  There are other times you have some proof, but then the question becomes:  how much proof is enough?  In theory, you would answer that question the same way here as in any other context; in practice, the quantum of proof in this context would have to approach or attain absolute certainty, because prosecutors are heavily favored.

How often can something be proven to near absolute certainty?  Not often.

In the next two cases of the Mooney line – Pyle v. Kansas and Napue v. Illinois – we had the exceptional circumstance.  In Pyle the prosecutors argued that Pyle had committed the murder, convicted him, and when his appeals ran out they prosecuted another guy for the same murder.  They revealed themselves, in other words.  In Napue, the prosecutor swore up and down at trial that he hadn’t given the witness a deal, then went into private practice and brought a coram nobis petition to get the witness out of prison on the ground that as a prosecutor this was the deal he had promised.  Again, he revealed himself.  In Miller v. Pate, the prosecutor paraded a pair of “blood stained” shorts in front of the jury.  It was actually red paint.  Maybe the prosecutor didn’t exactly reveal himself in that case, but the absurdity of it all was just too, too much.

In Pyle, Napue and Miller, that is (as in our case) you had absolute certainty that the prosecutor misconduct was deliberate.  It’s almost as if this is an implicit requirement of a Mooney violation:  the proof that the conduct was deliberate has to be well nigh conclusive.

That this is generally impossible is one of the reasons that Brady came along a few years after Napue and relaxed the implicit nearly impossible standard of proof.  Brady issues, then, are the subject of hearings and testimony and argument – the domain of the criminal defense trial lawyer.  So for a CDL, professionally speaking, Brady issues are meaty and significant, a great opportunity for the CDL to do his thing.

By contrast Mooney issues – in addition to being far more rare – are uninteresting, relatively speaking.  The proof of deliberateness has to be unarguable.  If you have it, there’s nothing to have a fight over.   Hearings, testimony, argument all become surplusage, at best.  Mooney issues are not an area where a CDL has any importance, at least not in the way that they are used to having importance.

So being indifferent to the corruption of Mooney being “subsumed” into Brady is a function of SHG’s sense of self importance, which often trumps everything else.  A lot of lawyers have this problem.

And their problem has become our problem, in a big way.

Leave a comment

Filed under wrongful convictions

Judge Selya Gets It.

He’s on the Court of Appeals for the 1st Circuit.

Drumgold v. Callahan puts it this way:

We have been careful to distinguish between the proscription originating in Mooney and Pyle against the deliberate suppression of evidence and the more recent affirmative disclosure obligation announced in Brady.

Yes, they have been careful.  And Selya nailed it in the case cited next, Haley v. City of Boston:

1. No-Fault Nondisclosure. In the first of his two section 1983 forays against the detectives, Haley alleges that they abridged his due process rights by failing to comply with the disclosure obligation imposed by the Fifth and Fourteenth Amendments and explicated by the Supreme Court in Brady v. Maryland…..

Judge Selya even understands that the “materiality” issue belongs to Brady, not Mooney:

The Brady Court wielded a scalpel, not a meat-axe. The Justices made it transparently clear that the newly announced no-fault disclosure obligation does not cover all evidence but, rather, only “evidence [that] is material either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.Ct. 1194; see United States v. Trainor, 423 F.2d 263, 264 (1st Cir.1970).

And to drive the point home, he discusses the Mooney due process requirements (deliberate suppression) separately from Brady (“no-fault” suppression), using a “2” to differentiate it:

2. Deliberate Suppression. Haley’s second section 1983 claim against the detectives is more promising. This claim draws sustenance from a line of cases flowing from the Supreme Court’s seminal decision in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), which held that state actors violate an accused’s due process rights when they engage in “deliberate deception.” Id. at 112, 55 S.Ct. 340. Haley avers that the detectives violated a proscription, developed in Mooney‘s pre-1972 progeny, against intentionally concealing evidence and permitting false testimony to be given at a defendant’s trial.[3]

Someday, we hope Judge Selya will read Pyle v. Kansas again.  But we’ve loved him over here ever since we read Limone v. Condon:

The amended complaints paint a sordid picture. Although the misdeeds described therein are many and varied, the plaintiffs’ claims may be distilled into two basic allegations: first, that the appellants purposefully suborned false testimony from a key witness; and second, that the appellants suppressed exculpatory evidence in an effort both to cover up their own malefactions and to shield the actual murderers (one of whom was being groomed as an FBI informant). The complaints weave these allegations together. From that platform, the plaintiffs asseverate that an individual’s right not to be convicted by these tawdry means — his right not to be framed by the government — is beyond doubt.

This is easy pickings…some truths are self-evident. This is one such: if any concept is 45*45fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit…Actions taken in contravention of this prohibition necessarily violate due process (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction)…That ends this phase of our archival journey into the annals of constitutional jurisprudence. We conclude, without serious question, that Mooney and its pre-1967 progeny provided reasonable law enforcement officers fair warning that framing innocent persons would violate the constitutional rights of the falsely accused.

We need Judge Selya’s clarity on this issue all over the country.  Judge Posner has “evolved” since he and Judge Easterbrook caused a lot of confusion out of the 7th Circuit in the 1990’s, but the 7th circuit is still a mess, and it’s messing up everyone else, and basically Selya owns this issue.

Along with us.

Leave a comment

Filed under Uncategorized