The Government Wins – Redux Edition

Business as usual in the SCOTUS.  There have been changes in personnel in the five years since our last post with this title.

But the results are the same.

The burning issue in this case? Whether a dismissal of a Federal Tort Claims Act (“FTCA”) case brought against the federal government bars any other litigation based on the same facts and circumstances.

Well, let me get a little lawyerly, in the sense of simply employing the rudimentary rules they taught us in law school. Under the usual doctrines of res judicata and claim preclusion and issue preclusion, sure, there’s a “bar” to duplicative litigation. You don’t get another bite at the apple, so to speak.

But there’s a hitch. You don’t generally get barred from suing again in a different venue unless there was an adjudication “on the merits” of your claim. So, to take the most obvious example, if you sued in the wrong court and that court had no jurisdiction to consider your claim, you can go over to the right court after that screw up and bring the claim there.

This is simple, horn-book law stuff.

So what happened with the case we linked to, known as Brownback v. King? Well, there was an FTCA claim and the District Court dismissed it for lack of jurisdiction.  The 6th circuit says, well, that’s not a bar to subsequent litigation because the District Court didn’t have jurisdiction to consider the FTCA claim to begin with, so there was no adjudication on the merits.

Bad move, 6th circuit.  You decided the government should lose.

The government then appeals – that is, brings a cert petition to the SCOTUS and guess what? The SCOTUS takes it up, it falls into that tiny pool of cases that the SCOTUS is going to hear and decide on the merits.

What’s the argument that the SCOTUS should, that Brownback presents some issue of general importance that is likely to recur enough to affect the beloved “system”?  From the government’s brief:

Under the court of appeals’ reasoning, any decision in favor of the government on an FTCA claim based on a failure to show liability under state law can be characterized as “jurisdictional,” with the result that a very large number of FTCA judgments rejecting the liability of the United States would be deprived of the judgment bar’s preclusive effect.

Where does the government come up with “very large number”? They don’t say. Because it’s not only not true, it can’t possibly be true, and we talked about that years ago, after the SCOTUS decision in Connick v. Thompson:

We have millions of felony convictions and imprisonments.  We have even more millions of misdemeanor convictions.  I have cited the statistics before here, right out of the US Bureau of Justice Department.

How many annual successful civil rights actions arise out of all this domestic “kinetic” activity?  At most 3,000, based on this and other BJS statistics.

It is axiomatic that violations of constitutional rights are likely in the course of a criminal prosecution, including simple arrests, because so many constitutional provisions apply.  Yet – and this is prior to Connick, the latest installment – the number of recognized and allowed annual section 1983 claims is running at less than one-half of one percent of the annual felony convictions, and an infinitesimally small percentage of annual arrests.

As I said before in another post, this is effectively zero.  42 U.S.C. 1983 was killed by the SCOTUS.  And that was before Connick.

The real reason SCOTUS is taking up the case, then, is because….the government is the Petitioner and the government wins. That’s the lesson. It’s been the lesson for decades now.  And you don’t have to take our word for it:

The justices gave just one of last week’s relists the nod, and unsurprisingly, it was the one in which the government is the petitionerBrownback v. King19-546.

From John Elwood’s “Relist Watch” yesterday.  Emphasis supplied.

SCOTUS killed federal habeas corpus, too.  We hope we don’t have to review that history again.

The SCOTUS bias in favor of well heeled and institutional litigants and their law firms is completely reflexive and unselfconscious at this point. You’re either in the 1%, meaning your claims are assiduously observed and carefully considered; or you’re the rabble, too trivial to be bothered with.  It’s an axiom at the SCOTUS, and all the lower courts, state and federal, are just following suit.

It’s official. We’re better off without the courts. They exist to ratify and rationalize the prerogatives of the powerful over the powerless, while providing an illusion that redress of grievances can occur.

They are a lie.


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Bait and Switch

So let’s look a little closer at the cert petition in Farrar.

It’s such a threat to do more harm than good we find it hard to believe that’s not the intention.

More specifically, it’s a strenuous effort to do – formally and explicitly – exactly what we have argued for years that the SCOTUS should never do: conflate the Brady and Mooney lines of cases.

You should follow that link.  But for those too lazy to make that effort perhaps just this once we’ll cut and paste, because it’s pretty remarkable how the Farrar cert petition seems to address that long ago post precisely:

Constitutional protection against the government’s use of perjury flows from the need to “avoid an unfair trial,” not the desire to “punish society for misdeeds of a prosecutor.” Brady v. Maryland, 373 U.S. 83, 87 (1963). This Court’s no perjury precedents first addressed the deliberate use of perjury. Subsequent cases steadily clarified that the Due Process Clause is concerned with ensuring that the defendant receives a fair process—regardless of the subjective mental state of the prosecutor during trial.

Start with the groundwork. In Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam), the Court explained that “due process * * * embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions.” Id. at 112. Mooney’s basic principle would come to form the foundation for this Court’s no-perjury line of cases. As Giglio put it later, Mooney had applied that principle to hold “that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands of justice.’” Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting Mooney, 294 U.S. at 112). The Court reiterated this bedrock principle in Pyle v. Kansas. 317 U.S. 213, 216 (1942) (holding that petitioner stated a due-process violation by alleging “that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction”).

Note the references to Giglio. Here’s what we wrote about that almost five years ago:

In the first place, Giglio was fundamentally a Brady case…In the second place, the only significance of Giglio was to impute the knowledge required for the “knowing” use of perjury to any attorney in the prosecutor’s office.  The intra-office assignment of a different prosecutor for the trial meant the case didn’t squarely fall within Napue, because the trial prosecutor didn’t know of the promise of leniency to the witness and thus did not act in bad faith, but Brady still applied because the promise of leniency still had to be disclosed…

We then quoted from the Giglio case itself:

The heart of the matter is that one Assistant United States Attorney—the first one who dealt with Taliento— now states that he promised Taliento that he would not be prosecuted if he cooperated with the Government… Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.

“For these purposes”.  This is what we call “limiting language” in a SCOTUS opinion.

We stand by what we wrote five years ago.  Giglio is a bit of a mish-mash on the Brady Mooney distinction, but fairly read changed nothing about either line of cases.  Fundamentally, it was a Brady case, and really says nothing about the “principles” of Mooney beyond what Brady itself said – so very unfortunately as it turns out.

“Fairly read”.  We wonder if the kind of attorneys that represent law enforcement and wind up in the appeals departments of Hogan Lovells understand what that means, when we see this in the Farrar cert petition:

Giglio held that the line of cases beginning with Mooney and extending through Brady rendered the trial prosecutor’s lack of knowledge immaterial to the due-process violation. The Court first cited Mooney and Pyle’s no-deliberate-deception rule and Napue’s failure-to-correct rule. Id. at 153. But in the very next sentence, the Court tied Mooney to Brady: “[S]uppression of material evidence justifies a new trial irrespective of the good faith or bad faith of the prosecution.” Id. at 153-154 (internal quotation marks omitted).

It’s like the author – one Catherine Emily Stetson – came over here, read our little blog post, and specifically addressed it in her cert petition, isn’t it?

Of course the “internal quotation marks omitted” part would reveal that Giglio was simply quoting Brady, more or less confirming that it was a Brady case, and that Giglio says nothing of any substance about the Mooney line of cases.  But law enforcement interests have been trying to merge the two for years.  Remember how we talked about that here? Of course you do.

Again, what’s the goal here?  At the risk of repeating ourselves:

Mooney was decided in 1935.  It has been unambiguously reaffirmed by the SCOTUS every time it was addressed: in Pyle v. Kansas (1942); Alcorta v. Texas (1957); Napue v. Illinois (1959); and Miller v. Pate (1967)

In contrast to Mooney, Brady (decided 1963) has been qualified, limited, distorted, exceptioned to death and rendered a dead letter.

Rather than abolish the significance of deliberate prosecutorial misconduct in favor of the illusory Brady “fairness”, in other words, the SCOTUS needs to do just the opposite:  sharpen and clarify the distinction between Brady and Mooney.

It’s worth quoting at length from none other than Justice Rehnquist in Daniels v. Williams:

The Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. E.g., Davidson v. New Orleans, 96 U. S. 97 (1878) (assessment of real estate); Rochin v. California, 342 U. S. 165 (1952) (stomach pumping); Bell v. Burson, 402 U. S. 535 (1971) (suspension of driver’s license); Ingraham v. Wright, 430 U. S. 651 (1977) (paddling student); Hudson v. Palmer, 468 U. S. 517 (1984) (intentional destruction of inmate’s property). No decision of this Court before Parratt supported the view that negligent conduct by a state official, even though causing injury, constitutes a deprivation under the Due Process Clause. This history reflects the traditional and common-sense notion that the Due Process Clause, like its forebear in the Magna Carta, see Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 368 (1911), was ” `intended to secure the individual from the arbitrary exercise of the powers of government,’ ” Hurtado v. California, 110 U. S. 516, 527 (1884) (quoting Bank of Columbia v. Okely, 4 Wheat. 235, 244 (1819)). See also Wolff v. McDonnell, 418 U. S. 539, 558 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U. S. 114, 123 (1889)“); Parratt, supra, at 549 (POWELL, J., concurring in result). By requiring the government to follow appropriate procedures when its agents decide to “deprive any person of life, liberty, or property,” the Due Process Clause promotes fairness in such decisions. And by barring certain government actions regardless of the fairness of the procedures used to implement theme. g., Rochin, supra, it serves to prevent governmental power from being “used for purposes of oppression,” Murray’s Lessee 332*332 v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856) (discussing Due Process Clause of Fifth Amendment).

We added a little emphasis here and there to that quote.*

The point is, the intentionality of government actors in the due process context has always been crucial.  The Farrar cert petition threatens to undermine its importance.

There are other arguments that would benefit Farrar that don’t carry that downside for everyone else.  So you have to wonder why Farrar is being argued this way, in a manner that just happens to advance the agenda of organized law enforcement and, you know, Judge Easterbrook of the 7th circuit.


*We note parenthetically that organized law enforcement interests are fond of citing Daniels v. Williams when a police officer is sued for Brady violations under section 1983 and they’re arguing that “qualified immunity” exonerates the officer unless his actions were deliberate.  Somehow Daniels v. Williams isn’t cited in the Farrar cert petition. Hmmm.



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Two SCOTUS Cases

So the Cole v. Carson case is in progress, with Cole’s brief now due on April 1st.  And now there’s another one, Farrar v. Williams.

In Farrar the poor schmuck is the Petitioner, whereas in Cole the government is petitioning.  But Farrar is represented by Hogan & Lovells, one of those firms, you know, and that raises the profile quite a bit.

We can be conspiracy minded here at LoS.  If we were so inclined this morning, we would see the hand of organized law enforcement behind both of these cases, with the goal of further confusing the SCOTUS on the role of the specific intentions of government actors in committing a Mooney-type due process violation.

In Farrar, the contention is that the prosecutor obtained a conviction at trial with perjured testimony, but he didn’t know at the time that the testimony was perjured.

In the Cole appeal, with the second question the government Petitioner is attempting to recast the claim – that a police officer deliberately lied about an encounter and planted evidence to implicate the criminal defendant – as a question of the officer being “inaccurate”.

See the connection?

The reason organized law enforcement might be doing this is to push the SCOTUS further along the Manuel v. Joliet holding, to place deliberate framing and fabricating and perjuring by police and prosecutors into the 4th amendment box as opposed to due process.  The goal would be to create statute of limitations problems for section 1983 Plaintiffs, which simultaneously gives bad cops and their institutional defendant proxies the incentive to stonewall their victims until the statute has run.

Another goal is to merge deliberate lying and cheating with unintentional misrepresentation, which conflates Brady with Mooney and subjects Mooney to materiality and harmless error analysis.

Remember we complained that the lawyer representing Manuel normally represented police and municipalities?  We thought we had written about that in these pages, anyway, but can’t find anything now.

There’s a game afoot in the SCOTUS that it seems only we at LoS are aware of.  We’d like help, but it’s our own side that poses the biggest problem.




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The Ugly Harvey Weinstein Moment

We think it’s probably a Good Thing that the casting couch has finally been explicitly criminalized. It always tended that way.  Take a look at coercion in the second degree – a class E felony in New York – and tell us what you think.  Come to think of it, why wasn’t this also charged in the whole Weinstein thing?  Was it?

But – and we’re so defense minded here at LoS that there’s always a “but” – we’re disturbed by at least one aspect of the treatment of Mr. Weinstein: ridiculing his physical characteristics, such as Weinstein being “ugly” and a “monster” and even possessing a “disgusting penis“.

Why disturbed?  There have to be limits on just how much scorn and obloquy we can heap upon the designated criminal of the day.  The man has been felled from a very high perch, his life ruined and he’s off to prison, because he did terrible things and we agree they were terrible.

But that’s enough.  Piling on in the fashion that so many already have is uncivilized.  Our collective judgment of his guilt is not a license for cruelty.

And we should not be so easy on ourselves.  Who among us has not seen a Miramax film, or any other movie for that matter, without being at least dimly aware that the “industry” producing the films had this sordid side?  There have been a lot of Harvey Weinsteins.  And to a significant degree that’s on us.

And episode like this should prompt some circumspection, some self-searching, not an orgy of shockingly cruel abuse heaped upon such an easy target.



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SCOTUS Dust-Up (Updated)

Justice Sotomayor complains that the SCOTUS is favoring the government.

But see here.  SCOTUS has been heavily favoring the government for many years. We pointed this out in some detail – gosh – more than six years ago.  Called it an “open secret”.

What’s the truth here?  We don’t mind Justice Sotomayor especially, but she’s being more than a little disingenuous.  The Justices CNN labels “conservative” have it right.  Trump Derangement Syndrome is rampant in the federal judiciary and there have been a slew of judicial injunctions against the government which is totally fucking unheard of a tad rare in historical terms, and the SCOTUS is undoing them a lot, pretty much on request whenever the Solicitor General wants.

There’s nothing unusual about the Solicitor General getting what he wants from the SCOTUS.  There’s nothing unusual about the little guy – Justice Sotomayor cites death row inmates – getting roundly screwed over by comparison, or let’s face it just in absolute terms either.  It’s business as usual at the SCOTUS.

If CNN an other news outlets are going to tout a SCOTUS opinion as being significant, they should tell the story in a balanced way.


UpdateAnother one.  The SG’s office can get a reversal here any time it’s of a mind to. This kind of thing is the reason for the oft cited statistic that this is happening more in Trump’s America. It’s not Trump’s doing; it’s the judiciary’s susceptibility to Trump Derangement Syndrome.



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The Search For Political Validation

Some high profile criminal trials and/or cases are driven by that search.  It’s improper, and that’s on the prosecution, but never mind that for now.  The reality is clear enough.

So there are two such cases dominating the “news” cycle this week:  the trial of Harvey Weinstein and the post trial proceedings of Roger Stone.

It’s a strange drive, if you ask us.  Convictions and stiff sentences will constitute highly emotional validation for the partisans on one side.  Will they feel rebuked by acquittals or leniency?  Of course not.  Will the partisans on the other side feel the same, only going the other way?  Of course not.

That’s why it’s an improper and wasteful exercise bringing a criminal case for political validation, as a proxy for some political controversy or other.  It has no chance of resolving the controversy.  That’s one reason anyway.  There are others more serious.

In any event, there is one interesting practitioners’ aspect to the latest development in the Harvey Weinstein trial, where the jury asked a question towards the end of the business day on Friday, implying that they had reached a verdict on three “lesser” charges but were hung on the remaining two more serious counts.

We take it back.  This is not just interesting, but fascinating.  Questions a jury asks are often revealing to the anxious litigants and their attorneys regarding the outcome.  In one of our first jury trials, we were summoned back the court from our office because the jury had asked a question.  By the time we got there, however, the jury had asked a second question that they said “superseded” the first:

Can we award the Plaintiff more money than he asked for?

This was, you know, a a pretty good clue into the minds of the jurors.

If the Weinstein trial were more normal, the latest question the jury asked could be reliably interpreted to mean that they had reached guilty verdicts on the lesser counts but were hung on the more serious ones.  Maybe not as reliably as the question we just recounted from our own trial, but still pretty reliable.

Alas, the Weinstein trial is not normal.  Because “propensity” evidence of similar but uncharged conduct was admitted, it is possible – not likely, but possible – that the jury might acquit on the lesser charges but convict on the more serious because those charges were bolstered by the propensity evidence but the lesser charges were not.

That would be quite an anomalous result, to convict Harvey Weinstein of the more serious charges after acquitting him of the lesser.  Indeed, it would arguably constitute an inconsistent verdict, which would be a basis for quite the post-verdict motion.

Not that such a motion, no matter how meritorious, will ever be granted, of course. Because judges.  They would have to grant such a motion, and they don’t want to.

When you bend the rules to get your political validation you may overlook the foreseeable problems you generate.  Be careful what you wish for, in other words.

Roger Stone?  Apparently he has moved to disqualify the judge.  Turley is right, of course, that such motions are never granted.  He should throw in – like we do – that they should be frequently granted, because for the most part judges are extremely biased in favor of the prosecution.

Here, the judge having already very publicly condemned Mr. Stone when she sentenced him, how can she impartially rule on the new trial motion?

But never mind.

Politics makes strange bedfellows, it is said.  It also makes for incoherent criminal prosecutions.



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Weinstein Redux

A very thoughtful article here, from a periodical that no doubt would like to see a conviction but acknowledges that it’s a “weak case”.

We here at LoS?  Not so sure.  We like this quote from The Nation article:

In bringing this case the way it did, however, the state has also invited jurors to contend with issues that criminal law is too blunt an instrument to resolve.

That’s insightful. The outcome of a criminal trial is guilty or not guilty. This leaves little room for nuance. In theory, at least, a lot of nuance should result in “not guilty”. But the practice is different.

Weinstein didn’t testify. That’s not supposed to count against him, but it does. Reliable accounts indicate his lawyer argued well on his behalf, but there’s just something about a defendant not testifying that leads many jurors – probably a majority – to incline towards a conviction.

One interesting thing about this trial, at least to us: it’s revealing about the prosecutor mindset.  As we have pointed out before on numerous occasions, prosecutors are normally very comfortable with witness credibility contests at a trial, because their witnesses – very often cops – overwhelmingly win such contests.  The question the prosecutors ask themselves about their case is whether their witness will “hold up” under cross-examination before the jury. They tend to under-appreciate the significance of documentary proof, and specifically contemporaneous records that undermine their witness’ testimony.

Here, the defense had some pretty devastating documentary proof in the form of contemporaneously generated records, often by the witnesses themselves, strongly suggesting that at the time the complained about events occurred the witnesses did not regard themselves as having been raped or assaulted.  So the argument the prosecution has to make from there is that the truth is being told on the witness stand, not in the contemporaneously generated records.

That’s a tough sell, and it should be. But the prosecution might sell it.

If the shoe’s on the other foot, and the defense has to make that argument? There is no possibility whatever that it could be sold.

The prosecution is apparently going out on this limb because #MeToo is just a slogan unless there’s a scalp at some point.  Another disturbing thing is that there are a lot of problems with the proof here, but Harvey Weinstein is an unappealing defendant – as in physically unappealing – and that has been made a factor in the trial.

We object to that as a tactic, both because it’s unfair and because there’s at least some chance it will work: pretty defendants are more often acquitted and ugly defendants are more often convicted.

Likely there will be a verdict by close of business today, or a communication to the court that the jury is hung. It’s Friday, after all.


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