Brady’s Bastard Children IV

To say that guaging the significance or importance of a case is not an exact science is to understate the matter dramatically.  Still, there are many reasons to believe that the 2nd Circuit’s Poventud case, that we have been picking apart for a few days now, will reverberate strongly and widely both in the 2nd Circuit and around the country.

One reason is, of course, the simple fact that the 2nd Circuit itself treated it as such an important case.  It went to a three judge panel which split on the outcome and featured unusually strongly worded opinions from both sides.  It was then reviewed en banc, which almost never happens and hasn’t happened in the 2nd Circuit in two years.  When the en banc ruling came down there was very, very sharp division again, strongly worded to the point of being tart-tongued dissents, numerous amicus briefs from several state’s attorneys general and national and state associations of this and that.**

And in the end it was a decisive ruling against the government in a case where the government actually had good arguments that it should prevail.  For my entire legal career, the favoritism shown to the government as a litigant in the courts has been grotesque and often disgraceful.  The government as a litigant can ordinarily be expected to prevail over an individual even where the arguments in the government’s favor are literally ludicrous and patently self-contradictory – at least with judges.  The Poventud case constitutes a dramatic and highly visible departure from this day-to-day reality, for reasons that are not easy to identify.

Although I’m going to try.

I believe it has finally dawned on some judges – not many of them, I presume, but apparently some – that the indulgence of the government as litigant has reached insane proportions and it’s past time to check it.  We noted that a South Carolina state court judge said something to this effect openly in a post a few weeks ago, and further opined that it’s as though there’s something just floating around in the ether out there where judges mingle and talk:

In any case, if a judge on a state’s highest court is talking this way openly, that means there have been discussions among a much larger group in private for some time.  It would be fair to say that the judge’s remarks reflect the beliefs of some not insignificant group of jurists and that those beliefs are bubbling up into more explicit statements either in opinions or in these confabs that public officials seem constantly to be holding and attending, sequesters or no.

From where I sit it’s like a radio signal I can’t quite lock onto.  I know it’s there and have an idea what it’s about but it’s not entertaining me in my car yet.

But if this is like other such sea changes, that might actually happen before too long.

Of course, I don’t want to run with my own thoughts too far.  Then again, if I do say so myself I am far less prone (though of course not absolutely immune) to confirmation bias than virtually anyone I know.  I mean seriously, I’m not in control of the objective indicators of Poventud’s significance; they are just there and I just notice them.

Also of great interest is the nature of the split of opinion among the judges of the 2nd Circuit.  We have a majority opinion by Judge Wesley that is both cautious in spots and alternatively daring (holding that a section 1983 Plaintiff who pleaded guilty can still have a valid claim about how he was convicted).  We have a concurring judge, Lynch, who actually characterizes the convicting of an innocent person as a “horror”, terminology that seems to hearken back to a long lost era of jurisprudence that in truth may never have really existed at all. 

The dissents, by judges Jacobs and Livingston, go on and on about the sanctity of the guilty plea and the sanctity of that distortion of Brady that they believe in.   For more than 30 years this is the kind of language you would see only in majority opinions.  To see it in dissent could be called stunning, without exaggeration or hyperbole.

This may all be just the natural pendulum swinging, I suppose.  But I think in more “proximate cause” terms it may have something to do with just how far prosecutors and attorneys general have pushed the envelope in their dealings with the less powerful.  They get together at conferences and whatnot and adopt as policy the position that if they can get rid of pesky innocence claims through stonewalling them, they’ll do just thatWhen they argued that there’s no “free-standing” constitutional right “not to be framed” by the government, or when they argued that grotesquely abusive behavior by prison guards towards inmates is not “cruel and unusual punishment”, it finally sunk in to at least those judges who have some experience with, or who can imagine, being the human being on the receiving end of such atrocities that some matters have gotten out of control.  Like some criminal prosecutions, where what is appalling is not what the defendant is alleged to have done but what the government has done in the course of prosecuting them.

These transparently disingenuous arguments – the “bastard children of Brady” most prominently, may have finally undone the mighty.  At least in some quarters.


** According to one commentator:

En banc cases are “arguably the most significant cases decided by the courts of appeals, receive “more attention in the legal community, and are more likely to be reviewed by the U.S. Supreme Court than are rulings by three-judge panels.”  


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