Magna Carta: Happy 800th Birthday. Hooray for Greece.

June 15, 1215.  It’s nice that we can be so precise about a date so long ago, although maybe we’re deluding ourselves on that point.

No matter. It’s still June 15th, Julian or Gregorian. We can only do so much for accuracy’s sake.

In other news, Greece continues to lead the west in its most fundamental realities, and this time the reality may (we can only hope) involve throwing off the yoke of odious and probably even phony debt concocted by various interests in Brussels, London and Washington.

I think the Greek Prime Minister is right:

In his first public comments since the talks broke down, Prime Minister Alexis Tsipras on Monday said Greece would wait for its creditors to become more realistic and accused them of making unreasonable demands for political ends.

“One can only see a political purposefulness in the insistence of creditors on new cuts in pensions after five years of looting under the bailouts,” Tsipras said in a statement to Greek newspaper Ton Syntakton.

“We will await patiently until the institutions accede to realism,” he said. “We do not have the right to bury European democracy at the place where it was born.”

Is a “Grexit” in the offing?  Maybe, maybe not:

Greece’s Finance Minister Yanis Varoufakis retorted in an interview with Germany’s Bild newspaper that it was possible to reach a deal quickly if Chancellor Angela Merkel took part in the talks. He also ruled out the chance of a “Grexit” because it was not a sensible solution.

We’re with the Greeks on this.  As we so often are.

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Nino Scalia And His Elites

Oh, the irony.  Turns out the defendant in Justice Scalia’s poster child case for the death penalty:

The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional — for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that!

is – well – innocent.  Gamso’s all over it, of course.  As he should be.

Nino’s not our Bete Noire over here at Lawyers on Strike.  We often agree with Nino.  But then we have some serious disagreements, too.

A couple of large topics beyond that are in play here, though.

First is the death penalty.  We don’t care for it, but Nino happens to be correct – absolutely, unarguably correct – that there’s nothing unconstitutional about it.  At least not now.  The constitution could be amended to make the death penalty unconstitutional, of course, but the population at large has to do that, not justices of the Supreme Court.

So to that extent, we agree with Nino.

But there’s something else going on here that we find more troubling.  A few news outlets here and there have noted how Nino’s rhetorical flourishes went embarrassingly wide the mark here, but the reaction has been muted.

We’ll hazard a guess as to why that might be the case: Nino’s “credentials” are beyond reproach.  He went to the right law school, did well there academically, and pretty much followed the standard, approved, and privileged “career path” all the way to his current high perch.  He and other members of the elite may disagree about some things, but in the most important matter of all – who’s in the club – there is no disagreement whatsoever.

A lot rides on such credentials being revered, and nothing undermines the starry-eyed reverence for them more than an episode where the man who possesses them is shown to be flagrantly wrong.  Harvard sits on a $32 billion “endowment” that is grounded in its supposed ability to identify and produce the “best and the brightest”.  But a few examples of these best and brightest being flagrantly wrong could eat into the (over) confidence that is embodied in that over-sized nest egg.

Thus, trumpeting Nino’s flagrant error doesn’t harm just Nino’s reputation; it also harms Harvard’s reputation. So it’s not just about Nino.  He has his enemies among the elite, but they’re not in the habit of cutting off their noses to spite their faces.  If they could find some personal peccadillo to tar Nino with, I’m sure they would.  Pointing out a flagrant professional error, however, undermines the mythology that credentials assure brilliance, and every Harvard graduate’s livelihood – not to mention often overblown self image – depends on that mythology.

Of course Nino doesn’t make just flagrant factual errors; he makes flagrant legal errors, too.  We have been constrained to point this out before.

We don’t fault Nino terribly for this particular legal error even though a good argument can be made that it has personally cost us dearly.  Yet it is a fairly stupid – and fairly revealing – error, because it means that not only Nino but several generations of his law clerks, all of whom have credentials rivaling his own, have never read Pyle v. Kansas.  Or if they did, they did not understand it, which in itself is something because there’s nothing terribly difficult about understanding that case.

How vigilant and defensive the elites have to be to protect and preserve a credential mythology they must themselves believe to be quite fragile.  Otherwise, why be so defensive about it?

And our press persons are slaves to the same mythology.

Credentials don’t make truth, though.  Motto notwithstanding, Harvard gets no monopoly.  But so many have a vested interest in pretending otherwise that a great “gotcha” story about Nino gets little play in the Washington and New York media centers.




Filed under Media incompetence/bias, wrongful convictions

The Government Wins

Yet another installment of gross favoritism by the SCOTUS to the government; but this time, we’re not the only ones noticing:

But what does a qualified-immunity summary reversal accomplish? It doesn’t develop or clarify the legal standard either for qualified immunity or for the substantive constitutional right (at least, not as it stands today). And it seems out of step with the Court’s general practice, stated in its rules, that certiorari is “rarely granted when the asserted error consists of … the misapplication of a properly stated rule of law.”

Indeed, as the SCOTUS often points out in denying review to the plebeians:  the SCOTUS is not a “court of error”.  Shit happens in the courts below, and if we tried to correct everything we’d never be able to sit for our portraits for lack of time.

But the SCOTUS blog article actually broaches a previously prohibited topic when it analyzes a little further:

One of two things appears to be happening…The other possibility is that, in occasional cases, the Justices can’t resist stepping in when they think a case has been wrongly decided – in the same manner that the Justices summarily reverse other types of cases, particularly (though not exclusively) grants of habeas corpus  [ED. NOTE: a grant of habeas corpus is always a ruling against the government] …if the second [i.e., this] theory is correct, wouldn’t we see dissents expressing concern that the Court is engaging in what appears to be freewheeling error-correction in favor of government defendants? One possible answer is that the impulse to correct certain errors is shared by the entire Court, although – given the controversy that civil rights cases often attract – such unanimity would be unusual.

Apparently the answer is “no” – we wouldn’t see such dissents.  The problem here is that “unanimity” is not at all “unusual” – in favor of the government, and as the SCOTUS blog article points out, such unanimity can also be found in another kind of case whenever the government loses in the courts below.  The common thread in “unanimity” being, then, not what type of case it is or any kind of rule of procedure or law, but rather whose ox is being gored.

This is not the rule of law, but rather its opposite.

The case the SCOTUS blog article is discussing seems all the more egregious when one considers that the whole immunity doctrine is made up by judges to favor the government in the first place.  The statute involved (42 U.S.C. 1983) is effectively eviscerated by the judge made immunity doctrine:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

Essentially, only people who are officials of state governments can be “persons” within the meaning of this statute; thus they are the only people who can be held liable at all.  But the SCOTUS – invented immunity doctrine says that these same people are immune from being held liable – every single one of them, the only question being whether they are absolutely immune or “qualifiedly” immune.  Isn’t that a neat trick?

So the SCOTUS favors the government in devising the immunity doctrine to make verdicts against government actors rare, and then favors them again by intervening when they think one of those rare instances has been an error, when they wouldn’t do the same for any other kind of litigant.

Got the picture? The fish rots from the head.

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Absolutely A Risk Of War? Meh.

Apparently, China is building a man-made island in the South China Sea, which is an engineering feat of some significance.

Who “owns” a man made (as opposed to God made, I presume) island?  If it’s within 200 miles of the constructing country’s coastline, it’s a territory of the constructing country.

But apparently this island is 600 miles from China’s coastline.  They can build it if they want, but it doesn’t become Chinese territory that far out.


So the US is in the right as far as international law is concerned, and China can’t warn people away from the island they are building because it’s all international water and air space.  But then there’s a hitch: if the surrounding waters and air space are claimed and the claim is respected for a time, then the island would become legit Chinese territory.

Adverse possession, doncha know.

So, to prevent this from happening the US periodically engages in “freedom of navigation” operations, just to show that we don’t recognize any territorial, air space or restricted waters claims and in fact object.  There’s an acronym, because the US Navy loves acronyms:  “FON OPS”.

On the other hand, we don’t have to be obnoxious and overbearing about it:

China’s alarming creation of entirely new territory in the South China Sea is one part of a broader military push that some fear is intended to challenge U.S. dominance in the region.

We don’t know why the US should be entitled to be “dominant”, such that any “challenge” to our “dominance” is an affront entitling us to a round of sabre rattling.  Ugh.  But see here:

“China is a rising power. We’re a status quo power. We’re the big dog on the block … They want more influence,” he said. “Are we going to move a little bit? Are they going to push? How is that dance going to work out? This is a significant issue for the next President of the United States.”

War is “not in their interests, (and) it’s not in our interests,” Morell acknowledged.

“But absolutely, it’s a risk,” he said.

We don’t care for all the “power” talk, as if what matters who is the “Alpha Male“.  We think war talk is silly, but irresponsible at the same time.  We think we have little right to complain about China having a base outside China when we have bases all over the world, many of which appear to have no purpose other than as symbols of our “dominance”.  And while we’re on that subject, we would prefer to be regarded as just and decent rather than “dominant” and “the big dog on the block”.

And we wonder about CNN’s ethics, or even their awareness of ethics, when they publish an uncritical puff piece that actually openly touts their too close relationship with their subject:

A CNN team was given exclusive access to join in the surveillance flights over the contested waters, which the Pentagon allowed for the first time in order to raise awareness about the challenge posed by the islands and the growing U.S. response.

We know how cool it is to get rides in P-8’s, or F-18’s, but the prospect of such a thrill shouldn’t turn a reporter into a mouthpiece.  There’s a good argument to be made that this is really not a terribly important development, that if China wants to build islands hundreds of miles from their mainland:  a) there are precious few opportunities to do that, which makes this island more or less a one-off; and b) even if they could cobb together more than one or two, what’s the big deal?

But those arguments and others weren’t made because CNN explicitly agreed to toady.  It should be embarrassing for them, but apparently they’re shameless.

Ugh again.


Filed under Media incompetence/bias

Magna Carta At 800 And Due Process In America

(Author’s note: if you click the links and read the cases you’ll probably get a real legal education, of sorts anyway. We realize it’s a lot of reading, but hold out the hope that it will greatly enhance the reader’s understanding of what is posted here.)

On June 15, 1215 King John capitulated to his Barons and signed the Magna Carta in a place called Runnymede.

Just about 800 years ago exactly.

Runnymede is in England, a country with which we supposedly share the common law tradition, but that’s a large subject for another time.  So, too, are the various political intrigues surrounding Magna Carta and what it eventually came to mean in the fullest sense.  We’re not going to run with any of that today either.  Because whatever else Magna Carta stands for, there are some small number of principles that it is more or less not debatable that Magna Carta enshrined.  One of these is the jury trial.  Another is “due process of law”, which was originally expressed as “law of the land”.

We’re going to focus on the due process of law idea, and what has happened to it in the United States of America over the last, say, 50 years.  Because we know a lot about that.

There’s so much to say, but let’s begin by noting that the phrase “due process of law” appears in the 5th amendment to the United States Constitution (and probably in many if not all state constitutions but we’re going to focus on the US constitution right now) and in that 5th amendment form it provided that no person should be deprived of life, liberty or property without due process of law.

So a couple of preliminary observations:  1) the “due process” clause is a limitation on government conduct.  Obviously, a thief deprives you of your property without due process of law but the due process clause does not apply to that situation because the thief is not acting on behalf of the government; and 2) due process is required only in three situations, namely, where the government is going to deprive you of life, liberty or property.

One other preliminary observation:  due process doesn’t apply in war situations.  Just to be clear about things.  The general acts on behalf of the government, but he doesn’t have to worry about due process of law before ordering an air strike.  Which is not to approve of this or that air strike.  We generally don’t, if that matters.

Anyway.  Moving on.

All those preliminary observations aside, it can be fairly said that the most fundamental situation in which due process does apply is when the government prosecutes someone for a crime, in which case at least one but in many cases all three – life, liberty and property – are at stake.

Now, it is a truism that the due process requirement of the 5th amendment applied only to the federal government.  Which is not to say that the states were ever free to ignore the strictures, whatever they may be, of due process of law:  again, the states almost assuredly had due process ideas in their own constitutions.  But the state governments and the federal government are separate, or at least they were.  Or at least, in some ways.

But in the wake of the Civil War, the states became subject to a federal standard of observing due process of law by virtue of the passage of the 14th amendment, which provided that “No state shall deprive any person of life, liberty or property without due process of law.”  That occurred in about 1866.

What happened then?  For a long time, not much.*

In the 1880’s the Supreme Court considered the question of whether federal standards of due process of law (now applied to the states by the due process clause of the 14th amendment) required the states to prosecute felonies only upon an indictment by a grand jury, which was separately required of the federal government by that same 5th amendment.  The answer was no.  And to this day California does not have to prosecute felonies via grand jury indictment.

That didn’t go so well, then, if you’re a fan of grand juries.

Very little was said for about another 30 years.  But then in 1915 the Supremes are deciding a federal habeas corpus case and they say that this federal due process standard is a big deal with real teeth:

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 not merely a single step in those proceedings…

So at this point things are getting active, as Rollie Massimino used to say.  It was only eight more years until the next major Supreme Court foray into the question of federal due process applied to state criminal proceedings.

Thus in 1923 the Supreme Court decided that a state court trial that had degenerated into a “mob dominated” circus did not satisfy the federal standard for due process of law. Also that year, the SCOTUS opined in Meyer v. Nebraska regarding “due process”:

“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Then in the 1930’s all hell broke loose.

It isn’t really well known today, even in legal circles, but the first time the Supreme Court really threw down the gauntlet on federal due process standards applied to state criminal prosecutions – because the 14th amendment – was the Scottsboro boys case out of Alabama that began in 1931. A group of black youths convicted of raping two white girls. Very emotional case in Alabama at that time.

Of course, the “due process” the kids received was a sham, a circus. The case went up to the SCOTUS in 1932 and that’s what they said and then they said 14th amendment and sent it back to be done right.

And of course it wasn’t. So the case went back up to the SCOTUS again in 1935 (!) only this time the decision rendered had more to do with the racial make-up of the jury, not due process of law proper. But the significant thing here is that having already laid down the law – the law of due process, that is – that must be observed by state courts in carrying out criminal proceedings, the SCOTUS, which is not a court of error, actually took up the same case again.

Don’t happen much.

It was at this same time – 1935 – that the SCOTUS further laid down the law in Mooney v. Holohan to the effect, basically, that the government couldn’t lie and cheat to get a criminal conviction, that doing so violated a person’s right to due process of law. It was a little embarrassing – at least the SCOTUS thought so – that this needed to be said:

Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise.

Even so, it should be borne in mind that the California Attorney General argued that position, just as the Alabama Attorney General had argued in favor of the Scottsboro boys convictions.  A state Attorney General is a high official, and it’s just our opinion but we think the Attorney General should be a lawyer’s lawyer and a servant of the law, not a “zealous advocate”.

(As an aside, both Mooney and the Scottsboro boys cases involved communists advancing the due process arguments that eventually prevailed.  We generally don’t like communists around here, but when they’re right we admit they’re right.)

But let’s move on some more. This was the due process revolution in the SCOTUS; these were the cases in which the rudimentary demands of justice, which is what due process has fundamentally meant since the beginning – since Magna Carta – were held to be mandatory and binding on government – all government – throughout the United States. We point this out because the “legal community” often touts the Warren Court decisions of the 1960’s as “the due process revolution”. As often happens, the legal community is pretty much wrong and misses the big picture. To the detriment of us all, I might add.

No, it was in the 1940’s and 50’s that federal due process standards really began to take hold. In 1940 even the constitutional literalist and purist Hugo Black had this to say in deciding Chambers v. Florida:

The scope and operation of the Fourteenth Amendment have been fruitful sources of controversy in our constitutional history. However, in view of its historical setting and the wrongs which called it into being, the due process provision of the Fourteenth Amendment — just as that in the Fifth — has led few to doubt that it was intended to guarantee procedural standards adequate and appropriate, then and thereafter, to protect, at all times, people charged with or suspected of crime by those holding positions of power and authority.

Then in 1942 the SCOTUS said in a couple of cases that the state could not obtain a conviction dishonestly – by taking contradictory positions in different prosecutions – and also that a state couldn’t obtain a conviction by threatening a criminal defendant with the use of perjury to badger and terrorize him into pleading guilty.

It might not seem like a lot, but this was a veritable 14th amendment due process of law blizzard coming out of the SCOTUS compared with, say, the period from 1866 to 1915.

In other words, this really was a due process “revolution”. But these cases reflected more than just a mechanical application of a clause in a constitutional amendment; they were really a re-assertion of the fundamental idea of due process as enshrined in Magna Carta all those centuries ago: the government cannot oppress; the government must be honest.

Unhappily, we must report that it is just this – the very foundations of our ideas of fair and just government – that have crumbled in the years since. We have our ideas about why, but that’s way too much for a blog post.  What we can do is continue to chronicle the failure.

In 1952 the SCOTUS – perhaps mindful of the oppressive government tactics employed by totalitarian governments in the great war just past – said that pumping a man’s stomach without his consent to get evidence that he possessed illegal narcotics was a due process violation. In 1959 they said – again – that the state government couldn’t lie and cheat to get a criminal conviction. And in 1967 they said it again, only this time it was not conceded by the state that they had thus obtained the conviction, but for the first time the SCOTUS indicated that the truth could not be mocked.

But by 2003, well, merely pumping someone’s stomach without their consent seemed like due process child’s play and there was disagreement on the SCOTUS over a situation far more like torture.

And by 2009, the United States Justice Department and the nation’s prosecutors as a whole were arguing in the SCOTUS – with a straight face, no less – that lying and cheating to obtain a criminal conviction didn’t violate the right to due process of law. As if Mooney, Pyle, Napue and Miller had been repealed, or somehow rendered meaningless.

Yet those cases are among the most notable pure descendants of Magna Carta in American law, based only on principles of justice so fundamental that they barely needed to be said in 1215, much less 1935. Much less today, yet here we are.

Maybe every generation, or every second or third generation, must fight for “due process of law” anew, for the simple reason that power corrupts.  Maybe Magna Carta is an eternal and ever-contemporary event. The times, people and circumstances change – King John is long gone –  but the principles remain the same.

And remain as fragile.



* We should note that in a different context, the SCOTUS became quite active on 14th amendment due process with the 1905 decision in Lochner v. New York.  But Lochner involved the “striking down” of laws enacted by legislatures.  This kind of case is far more removed from the due process enshrined in Magna Carta than the cases we are reviewing here.



Filed under financial crisis, wrongful convictions


We don’t often get into religious subjects around here.  But sometimes the mood strikes us, or something seems to warrant comment including some religious idea or theme or whatever.

Of course “justice” isn’t solely a religious concept, at least not in the sense that it’s peculiar to this or that religion – Christianity, Judaism, Islam, or what have you.  It’s been recognized as an important virtue – a “cardinal” virtue – certainly since pre-Christian antiquity, and probably long before that.  Thus to be a just man is, to that extent, to be a virtuous one.  This is a widely and maybe even universally held belief.

So last week we were attending this Mass and we get to the “Epistle” and it’s from the letters of St. James where he’s lecturing everyone, although that’s not as bad as it sounds because he prefaces the whole harangue with “Beloved”.  Anyway:

But let every man be swift to hear, slow to speak and slow to wrath.  For the wrath of man does not work the justice of God.

And then after this we get to the gospel reading, and it’s from the gospel of John and Jesus is, as usual, speaking to his disciples and at this point in the story he’s already died and risen from the dead and he’s talking about leaving:

But I speak the truth to you; it is expedient for you that I depart.  For if I do not go, the Advocate (i.e., Holy Ghost – ed.) will not come to you; but if I go, I will send Him to you.  And when He has come He will convict the world of sin, and of justice, and of judgment:  of sin, because they do not believe in me; of justice, because I go to the Father, and you will see Me no more; and of judgment, because the prince of this world has already been judged.

So.  It is “just” that Jesus goes to the Father, and also apparently “just” that we will see him no more.  Who says you can’t define justice?

Except I can understand this gospel quote only one way:  it is “just” that we do not see our lord and savior.*  Why should that be?  Apparently some transgression occurred that makes it just to deprive us of his visible presence.  But also, apparently, this is not a permanent condition.  Not a life sentence, in other words.**

The justice part from the Epistle is far more straightforward:  the wrath of man is not justice.  This leaves open the possibility that the wrath of God can be justice, or perhaps that wrath in general, God’s or man’s, is not justice.  Or maybe the implication is that God’s justice might resemble wrath to us but isn’t really.  Maybe it’s just coldly administered out of necessity.

So…they get this old guy because they figure out that he’s a fugitive from justice, having escaped 50+ years ago from what was evidently a rather slack sort of confinement because he really didn’t warrant maximum security even back then.  And Jeff Gamso writes about it here, and it’s an interesting episode and an equally interesting exchange in the comments, because Jeff as usual is arguing for mercy and his anonymous commenter is arguing for justice, and it doesn’t seem a wrathful kind of justice the commenter seeks but rather “general deterrence” – that is, we need to make an example of this old guy because otherwise it encourages others to escape and evade their just punishment.

Our visceral reaction here at Lawyers on Strike is entirely in line with Jeff Gamso.  We like mercy, for ourselves and for others.  And we agree that in this anomalous circumstance (actually, we are aware of a similar case that occurred locally and mercy prevailed) the insistence that a price be paid seems pointless.  Or what is worse, tedious.

Yet it does carry some weight.  It isn’t quite right to dismiss the concern entirely.  Doing justice often seems impractical, not worth the trouble.  Yet we are called to do it, for reasons that are, at best, understood imperfectly.  Like looking through a glass darkly.

Put another way, while the wrath of man is certainly not God’s justice, surely man’s mental or moral sloth isn’t either.

To me this seems an appropriate case for a pardon, which of course is not justice but mercy.  Because another thing that seems obvious is that whereas God can be merciful without cheating justice, mortals cannot.  One or the other gets shortchanged.

Our world is imperfect.  They knew that in antiquity as well.


*  We assume for purposes of discussion the Christian viewpoint when trying to understand Christian scripture, and suggest that you should do the same if you want to really understand what’s being said.  It should go without saying, but unfortunately usually does not, that this does not require you, dear reader, to accept the Christian viewpoint, just to assume it so you can understand what is being said, since otherwise you are not making even a fair attempt to understand it.

**  This is a sort of basic Judeo-Christian understanding – that because of the fall, we can’t see or otherwise perceive God.  Again, one may or may not accept this idea but it is remarkable how some supposedly very bright people who tend towards atheism – such as Richard Dawkins or Bertrand Russell – seem unable to appreciate the point.

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Zealous Advocacy

Turns out it’s a self-serving myth.

The link is worth quoting at length:

The actual extent of the supposed duty of zealous advocacy has been the subject of careful scrutiny by the American Law Institute:
The Preamble to the ABA Model Rules of Professional Conduct (1983) . . . and EC 7-1 of the ABA Model Code of Professional Responsibility refer to a lawyer’s duty to act “zealously” for a client. The term sets forth a traditional aspiration, but it should not be misunderstood to suggest that lawyers are legally required to function with a certain emotion or style of litigating, negotiating, or counseling. For legal purposes, the term encompasses the duties of competence and diligence.

If that’s all there is to it, what is the genesis of this non-existent duty? One scholar has traced the history of the phrase back to a comment in a speech to the English Parliament in 1820 by Lord Brougham:

The Restatement view [that the term merely encompasses the duties of competence and diligence] is in line with a more nuanced understanding of the Lord Brougham defense, which was never intended as a maxim of legal ethics. Brougham made his statement in the context of a parliamentary debate, not a judicial proceeding, and the speech was intended as a veiled political threat to King George IV. In any event . . . it can hardly be argued that the Brougham speech describes the prevailing norms of the English Bar in 1820. It certainly has no general applicability.
So that’s it for the role of the zealous advocate: the duties of competence and diligence. And those duties are adequately described in the Colorado Rules. The phrase “zealous advocacy” is full of sound and fury, signifying nothing…The duty of zealous advocacy may be empty of meaning, but it is not without import. Put simply, the duty to be a zealous advocate is the single most common justification used to claim that the duty to the client is paramount, and that a lawyer is therefore justified in minimizing or even ignoring the other duties expressly stated in the Colorado Rules. It is often treated as synonymous with a duty to be ruthless — even dishonest.

The quoted article is from 2005, and notes that the giant jurisdictions of Arizona and Montana had by that time removed the references to “zealous advocacy” from their ethics codes, hoping that Colorado would soon do the same.

This is an important and maybe even interesting discussion.  And a couple of recent posts by some colleagues are fortuitously pertinent.

First, Jeff Gamso quotes Scott Greenfield, in relation to a subject we touched on at roughly the same time, that being the FBI’s recent admission that its hair analysis testimony was all wrong for decades:


Scott Greenfield rightly points out that it didn’t matter that we’ve been screaming about the incompetent/dishonest forensic faux-science for years – and nobody gave a shit.

While we’ve been screaming about this forever, nobody cared. Nobody listened, because we aren’t trusted government officials and it’s just us criminal defense lawyers complaining about stuff, like evidence and constitutional rights, again.

That the FBI admitted it is what stunned the legal community (of which, apparently, criminal defense lawyers are too minor a part to be worthy of recognition), because they are official.  Now the legal community cares. That’s stunning. Us, not so much.

We have often chafed at the same double standard.  It’s hard to describe the sense of frustration – and yet at the same time a kind of curiosity and bewilderment – when the exact same evidence that is deemed not newsworthy or not significant or not credible when a mere lawyer offers it suddenly becomes the holy grail of truth once someone more “official” signs off.  One is tempted to blame journalists and judges and others bitterly for their slavish devotion to faith in the status of the speaker rather than the quality of proof.  We have occasionally succumbed to that temptation ourselves.

But we have also not spared ourselves, or our brethren and colleagues, having described this phenomenon as at least to some degree a self-inflicted wound.

Dear reader!  We can’t get over the serendipity apparently at work here, because just the other day there was an even more pertinent discussion over at SJ.

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.  Commenter Marc R. wonders why the defense didn’t raise that issue pre-trial, and SHG notes in response in his own comment:

Bennett [that is, Mark Bennett – ed.] makes a better point, that had they moved to dismiss before jeopardy attached, the prosecution could simply reindict for murder and it would have been worse.

So there are times you might refrain from bringing a legal issue to the attention of court because your client will be better off if the judge grants relief after jeopardy attaches?  That was one of the issues in a case called United States v. Basurto, 497 F.2d 781 (9th Cir., 1974), where the defendant’s attorney deliberately waited until trial to raise the issue that one of the prosecution’s witnesses had committed perjury before the grand jury.  The perjury had been admitted by the prosecutor and he had communicated that to the defense lawyer shortly after it occurred, well before the trial and well before the time for bringing defense motions.

In other words, the defense attorney gamed the procedure to put the prosecutor and judge in the position that they would have to grant a dismissal because of the admitted perjury, and the prosecution could not proceed again because of double jeopardy.

Did “zealous advocacy” require this gamesmanship?

Before you answer that question, consider the fallout from Basurto, which we have discussed before:

In 1983 the manual dealt in a rather cursory way with the “due process” problem of prosecutor misconduct in knowingly presenting perjured testimony to a Grand Jury.  It was a cursory treatment because the mostly unambiguous instruction was that indictments obtained with such testimony would be dismissed, citing the 1974 case of United States v. Basurto, 497 F.2d 781 (9th Cir., 1974):

Importance:  In Basurto, prosecutor did not become aware of perjury until after indictment (but before trial); indictment was still dismissed.

By 1991, though, the DOJ Grand Jury Manual said this:

A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

You see, because of the gamesmanship by the defense attorney in Basurto, the outcome of that case was not well received either by prosecutors – or by a lot of courts:

Although a few subsequent decisions have followed Basurto, see, e.g., United States v. Ciambrone, 601 F.2d 616 (2d Cir. 1979); United States v. Smith, 552 F.2d 257 (8th Cir. 1977); United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977); United States v. Goldman, 451 F.Supp. 518 (S.D.N.Y.), aff’d, 573 F.2d 1297 (2d Cir. 1978); United States v. Gallo, 394 F.Supp. 310 (D.Conn.1975), more recent opinions have “not only cut back on the reach of Basurto, but [have] also questioned its continuing validity.” United States v. Cathey, 591 F.2d 268, 271-72 (5th Cir. 1979), citing United States v. Bracy, 566 F.2d 649 (9th Cir. 1977), stay of enforcement denied, 435 U.S. 1301, 98 S.Ct. 1171, 55 L.Ed.2d 489, cert. denied, 439 U.S. 818, 99 S.Ct. 79, 58 L.Ed.2d 109 (1978). Accord, Talamante v. Romero, 620 F.2d 784, 790 n.7 (10th Cir.), cert. denied, 449 U.S. 877, 101 S.Ct. 223, 66 L.Ed.2d 99 (1980). Indeed, a panel of the Ninth Circuit itself noted that prosecutorial misconduct must be “flagrant” to violate due process, a rather strict application of Basurto, if not an entirely new standard. See United States v. Bettencourt, 614 F.2d 214, 216 (9th Cir. 1980), citing United States v. Vargas-Rios, 607 F.2d 831 (9th Cir. 1979), and United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). See also United States v. Cederquist, 641 F.2d 1347, 1352-53 (9th Cir. 1981); United States v. Thompson, 576 F.2d 784, 786 (9th Cir. 1978); United States v. Brown, 562 F.2d 1144, 1149 n.3 (9th Cir. 1977); 8 J. Moore, Federal Practice, ¶ 6.04[2] (2d ed. 1981).

We also doubt the total validity of Basurto and, therefore, decline to follow its broad holding…

So, in that same period in the 1980’s the Department of Justice picked up on the hostility of many jurists to the holding in Basurto, a hostility that was not grounded in a tolerance for the deliberate use of perjury before a grand jury but rather the concern that Basurto’s holding opened an avenue for acquittals by defense lawyer gamesmanship.

But in practice, as we now know, repudiating the holding in Basurto could not help but engender a tolerance for the deliberate use of perjury before grand juries, and anything that is tolerated is fair game for…the “zealous advocate.”

Do prosecutors get to be zealous advocates, too?  In the mind of some members of the criminal defense bar, well, sure:

The best response I can offer is that if, as a “straight up” prosecutor, I believed that there was probable cause to pursue a civil rights violation, I would do so, do so zealously, obtain the indictment in the ordinary course and try the case with the same zeal as any other, within the bounds of the law…And if, having done the foregoing, the jury acquits, then I will take comfort in knowing that I did what I believed the law allowed and required of me.

So here’s the thesis:  the “zealous advocacy” gamesmanship practiced by the defense attorney in Basurto was part of what caused a judicial reaction that propagated an error in the law.  That error was thereupon formally adopted by the Department of Justice and “zealous” prosecutors all over the country.  The error was the belief that the deliberate use of perjury before a grand jury did not violate a defendant’s right to due process of law.

The error then proliferated for decades, causing confusion in the federal courts of appeal,  resulting in many wrongful convictions, and imposing an enormous burden on us here at Lawyers on Strike to expose and correct the pernicious error because we just wound up in the position to do that, as if by accident, like getting hit by a bus when crossing the street.

The question on the table, then:  to what extent is the cult of “zealous advocacy” criminal defense responsible for what has happened to us, and our client?

We invite thoughts from “zealous advocacy” advocates.  We are truly interested and won’t be mean.


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