Monthly Archives: April 2014

Disparity Of Treatment – Courts Of Appeal Edition

Sometimes a couple of things strike you on the same day capturing in a nutshell, as it were, the very essence of the problem.

On the one hand you have District Court Judge Richard Kopf, undergoing a good deal of introspection these days at what presumably constitutes the tail end of his judicial career, blogging about a woman he sentenced to a long term of imprisonment in the early 1990’s.  Quite a saga.  He tried to set her free much earlier but the 8th Circuit Court of Appeals reversed him.  The title of his blog post is “Merciless”.  Ugh.

Contrast the mindless cruelty of the 8th circuit in that case with the tender solicitude demonstrated by Judge Barrington Parker (indeed apparently all three judges of a panel of the 2nd Circuit) yesterday for a different kind of criminal defendant.  That is, the kind of criminal defendant that wheels and deals in complicated securities and instruments in New York City’s main “industry”:

“We sit in the financial capital of the world,” Parker said. The atmosphere that you have “gives precious little guidance to all the institutions, all the hedge funds, that are trying to come up with some bright line rule of what they can and can’t do.”

Notice the subtle bias there.  Of course the good guys “institutions” are “trying” so, so hard, in good faith, with all their might, using all the resources at their command and of course they have copious resources because they’re such great, great people to begin with, otherwise how would they have become so successful, like hedge funds are?  (But then never mind about that Long Term Capital Management thing which was just an aberration.)  But these great, great people are having such a tough, tough time figuring out just how to game the system to maximum advantage without getting caught what the “bright line rule” is.  Oh, my. 

Really.  

Judge Parker and his panel are considering overturning the convictions of some hedge fund types for “insider trading”.  The idea being expressed is that the nature of the crime needs to be more precisely defined so that traders will be certain just what it is they are prohibited from doing.  The context is whether a jury needs to be instructed (and thus the law is) whether some benefit accrued to the source of the insider information, or whether the government just needs to prove that insider information was used to make trades.

By the way, as financial crimes go, insider information cases would be, I should think, fairly straightforward as compared with, say, fraud cases.

Note that the sentences the 2nd circuit panel is so concerned about are one for 4.5 years and one for 6.5 years for a couple of multi-millionaires, whereas the sentence Judge Kopf’s post chronicles is for 22 years.  For an impoverished mother with a young child.

But never mind.  In truth Judge Parker’s concerns appear to be entirely academic.  The more restrictive interpretation of the law – that is, with an additional requirement in the jury instructions adding an element the government must prove – that he seems to favor has already resulted in convictions:

U.S. District Judge Jed Rakoff, in the case of Whitman Capital LLC hedge fund founder Doug Whitman; former U.S. District Judge Richard Holwell, in the case of Galleon Group LLC co-founder Raj Rajaratnam and U.S. District Judge Paul Gardephe, in the trial of SAC Capital portfolio manager Mathew Martoma, all required jurors to consider the three elements of insider trading, as opposed to the two Sullivan instructed the jury on.

However, although the other judges in the insider-trading cases have required jurors to find the extra element of personal benefit to convict, Rajaratnam, Whitman and Martoma, all were found guilty.

Judge Parker seems worried about it, but juries aren’t.

It’s disturbing that Judge Parker is so acutely aware of the fact that the 2nd circuit sits “in the financial capital of the world”.  So what?  Should the judges of the DC circuit give a lot of weight to the fact that they sit in the “governmental capital of the world” (or indeed the known universe at this point)?  Should the 9th circuit be sensitive to the fact that they sit in the “.com start-up/fall down capital of the world”?  Is Judge Parker worried about justice for the Defendants, or the impact on the local economy?  Which might be an attenuated, but genuine, form of self-interest?

That’s disturbing on a deeper level, though.  What’s disturbing enough on the surface is the comparative severity of the sentences, and that the difference is plainly related to the social status of the Defendants.

Things like this cannot go on forever.

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Filed under financial crisis, Media incompetence/bias, wrongful convictions

Behind The Curve

The NYPD’s public image campaign on twitter didn’t exactly succeed.

I really hope the NYPD isn’t as bad as the anecdotal evidence suggests:

A New York Police Department campaign to burnish its image via social media instead produced a flood of pictures of police brutality and tweets critical of the force being shared at a rate of thousands an hour…The tweets included images of violence from New York’s Occupy Wall Street demonstrations, pictures of an NYPD officer pointing a gun at a dog, and an officer asleep in a subway car.

Images and tweets also referred to the fatal, controversial New York police shootings of Sean Bell in 1999 and Amadou Diallo in 1999, each of which led to criminal trials in which all the officers were acquitted.

Granted, the social media thing is a little hard to read.  You’re dealing with the people who have a strong opinion, which is not the general public.  At least not necessarily the general public. 

In any case I give credit to the department for resilience in the face of the torrent, though this might seem a bit pollyanna-ish:

After the campaign appeared to backfire, the department issued a two-sentence statement saying that it was “creating new ways to communicate effectively with the community.”

“Twitter provides an open forum for an uncensored exchange and this is an open dialogue good for our city,” the statement said.

Sure.  I feel you.

But I can’t help but wonder if this social media incident is on the cutting edge, such that the perspectives of many of the players in the system – such as we just noted with federal Judge Kopf – have a lot of catching up to do. 

But then again we also know, or at least have inferred, that there’s movement afoot.  Does change come from the top down or the bottom up?  Or is that a simplistic question anyway?  Maybe it’s just in the ether, or it’s a weltgeist

Does the future belong to the twitter community, or to Judge Kopf?  Either way, it’s an interesting time right now in the law world, n’est-ce pas?

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Cop Lying And The Judicial Response

I have to say that while I think in general his opinions are way off, I admire federal judge Richard Kopf’s candor in not only writing his own blog, but commenting over at SHG‘s.  In repsonse to a post about lying cops who got caught, the judge says:

If those cops aren’t charged with a felony, then the judge involved, and those who share the bench with him or her, should go ape shit and publicly so. I mean throw a real shit storm. Not just some stupid little contempt citation, but a significant felony charge or even a felony conspiracy charge in federal court about violating the civil rights of the accused. And, when convicted, the cops should go to prison. Not probation. Hard time.

He finishes with a fairly necessary disclaimer:

But what the hell do I know.

Here’s the thing.  The proposed solution is not just unrealistic in the vast majority of cases – that is, the judge can’t prosecute cops, only the same people (prosecutors) who rely on the cops for their very “careers” can, and of course they don’t want to – but juries don’t convict cops.  That’s been demonstrated over and over.

So the bottom line is that lying cops are extremely unlikely to ever be prosecuted and when they are they are very unlikely to be convicted.

What about civil remedies, like actions under 42 U.S.C. 1983?

The big problem there is not prosecutors or juries, but judges, and the judge-made laws of immunity, and judges’ general hostility to civil lawsuits because, frankly, they have little appreciation for the difficulty of bringing them successfully, fail to see how socially important they are, and regard the injured parties and their lawyers as lesser status litigants who should not be permitted to waste the court’s time.  Also on the moral level, to most judges – and I suspect Judge Kopf is in the group – civil lawsuits seeking money damages are just about lawyers’ greed and nothing else.

But here’s what happens in reality, when the civil remedies are robustly available:  after a few large verdicts the payor, which is to say the people or entity stuck with the bill – either the State, a municipality,  an insurance company, or probably just as often a combination of the three – get the message and begin to change the culture from the inside, through truly effective internal disciplinary measures, truly effective because now money and funding are at stake so there’s a real motive to change on the part of those in authority where the change needs to take place.  And in addition to this salutary effect, the victims of official wrongdoing are compensated and the lawyers who represented them are, too.

What’s not to like?

Nevertheless, the fact is that the federal judiciary has been unremittingly hostile to section 1983 actions brought against police and prosecutors for decades.  They crafted made up doctrines about how police and prosecutors were “immune” from such suits, enabling them to dismiss cases without letting them ever see a trial or a jury .

But one gets the sense that immunity doctrines are just a rationale.  The real problem is that judges see plaintiffs as the money grubbing rabble, and defendants as the upright authorities who have to be responsible and shouldn’t be hit with large verdicts in favor of lesser status people and their lawyers.

Of course, inasmuch as large verdicts are a necessary step towards real reform, this – the perspective of judges – is a real problem.  It would take a lot to convince Judge Kopf of that, or any other judge, I think.  Yet this whole scenario might be one important reason that the criminal justice system has deteriorated to the extent it already has.   In fact we here at Lawyers on Strike believe it is an important reason, but Judge Kopf and his brethren aren’t listening, and haven’t been for a long time.

Ugh.

 

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Resurrected Body

I don’t get into religious things too much around here.  Mostly there’s no point.  This is not really a good forum for it.  At least, I don’t think so.  Today is just the exception that proves the rule. 

So on to it.

People might be Christian or not, believe in Christianity or not, and of course let’s stipulate that there are Christians of this and that denomination and there are lots of differences and so on.

God bless ’em all, I say.  I don’t want any arguments on that score.

But it really should be annoying not just to Christians, but to anyone who is fair minded, that the media routinely conjure up material during what some Christians refer to as “holy week” to subtly challenge – which is to say, surreptitiously undermine – core Christian beliefs.  And what is doubly annoying to me is the ignorance – willful or otherwise – that is often revealed in this material.

One of this year’s truly annoying installments comes from CNN, under the banner “Did Jesus really rise from the dead?” authored by some guy named Parini from Middlebury College which, you know, because it is a “college” you would think there would be some scholarship involved. 

But no.

Of course, Easter is the central Christian holiday commemorating the central Christian event, and most people calling themselves Christian* regard that event – the resurrection – as a real, physical event and not some made up story or allegory.  And Parini takes a little half knowledge that most people are not aware of or haven’t thought about and uses it to undermine the idea that the resurrection was a real occurrence; rather it is a parable, an allegory, a story written about later as a “symbol” of some larger truth:

Questions arise, of course. Did Jesus really rise from the dead? What would that look like? Many Christians imagine some literal wakening from the dead and refuse to accept the slightest hint that the Resurrection might be regarded as symbolic without denigrating it.

The strongest argument he then makes in favor of this position, which to the ignorant probably appears to be convincing when in fact it is about as routine and pedestrian a bit of sophistry as any first year college student would be capable of, is that there’s all this magic going on in the gospel stories that are fanciful and couldn’t really have happened:

The post-Resurrection appearances of Jesus vary wildly. For the most part, those who meet him fail to recognize him, as in the story of the Road to Emmaus, where Jesus appears beside two of his followers. They don’t recognize him, which suggests that he has not reappeared in a familiar form. Even when he joins them for dinner, they don’t know who sits beside them. Only when he prays over the bread before eating do they recognize him, and he immediately disappears — poof.

Even his closest disciples don’t know Jesus when they see him, as in John’s Gospel, where he appears by the Sea of Galilee to Peter, Thomas, Nathanael and two other disciples. It takes quite a while for Peter, alone among them, to recognize this mysterious figure on the shore who advises them where to catch the fish.

Gee, like no one ever noticed any of this before and had any thoughts about it.  Except for oh, say, St. Paul, St. Augustine, St. Thomas Aquinas, probably every priest or bishop since the first century. 

I mean seriously.

In other words, these very passages of scripture, like almost all scripture, have been picked apart, dissected, studied, pondered, analyzed and whatnot by both lesser and greater minds for centuries, though of course for our purposes here it’s the greater minds that count.  They form part of the basis for an elaborate and, if I might say so, well thought out (albeit at present quite obscure, for reasons I won’t go into here) theology of the resurrected body.  You can find out a little bit about it in this article.

Briefly, though, it is believed – in a somewhat speculative way but nevertheless believed – that the resurrected body will have a number of notable qualities:

1. Identity – it will still be recognizably you, although maybe not immediately recognizable to everyone.

2. Integrity – all the parts will still be there.  All of them.  Don’t ask.  Ugh.

3. Quality – sort of an improved version, at the ideal age and of the same gender.

4. Impassability – the resurrected body won’t die and can’t get injured.

5. Subtlety – I think this is kind of related to the next quality, that is

6. Agility – the resurrected body can be anyplace it wants to be, any time it wants to be there, and maybe two or more places at once, pass through walls, other solid objects and so on.  I’m not real clear about this but it sounds cool.  And speaking of clear, the last quality is:

7. Clarity – Radiance and luminescence

Now, I’m not saying you have to believe any of this.  Indeed, I see significant barriers to belief in any of it.  That’s not the point. 

The point is just that the Parini/CNN article is either disingenuous or pathetically ignorant of Christian belief to behave as if Parini was the first person, ever, in history, to notice these sort of weird aspects of the post-resurrection gospel stories and to have inferred some meaning from them.  Others – many others – have done precisely that. 

And of course among Christians that meaning was entirely consistent with the belief in an actual, physical resurrection of Jesus.  Indeed, so firm was the conviction that the resurrection was an actual physical event that the whole theology of the “resurrection of the body” is mainly derived from that.  

Parini is free to have an entirely different take on it all, of course.  But what he is not free to do – at least not while retaining any scholarly legitimacy – is to posit his own meaning as if it’s a brand new, unique insight on problematic scripture passages, without confronting or even mentioning that Christian tradition has already accounted for, and ascribed specific meaning to, these same passages. 

That’s intellectually dishonest, if it isn’t appallingly ignorant.  And we don’t go for either of those around here at Lawyers on Strike.

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There’s an argument that anyone who doesn’t believe in an actual resurrection cannot possibly be a Christian in any meaningful sense, but that’s a side issue.  At least this morning.

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Anachronism

Maybe we’re talking about the death of the suppression motion.  Although it was never more than a zombie anyway, eating the brains of judges, lawyers, cops and probably the general public, too.

It’s been a staple of criminal defense practice in the United States for more than 40 years:  evidence against the defendant is illegally obtained by police and his lawyer moves to suppress it, so it can’t be used against him, sometimes leaving the government with no evidence with which to convict him.  A pretty neat trick, I suppose, in the half dozen or so cases – nationwide – where it actually happened in all those years.

I exaggerate.  There were probably more than 20.

One reason such motion were never granted is that a ruling in favor of suppression would come only after the court held an “evidentiary hearing” to determine if, in fact, the evidence was illegally obtained by police.  And the police learned what sorts of things they would have to testify to in order to defeat the suppression motion, such as that the evidence was “in plain view” so there wasn’t really a search, or that it was dropped, or that it would inevitably have been discovered anyway, or that they acted in good faith, or that it was the product of a search incident to lawful arrest, or an inventory, or that the cop had x-ray vision and couldn’t help seeing it.  And the cop would be believed even if he was often lying and the suppression motion would be denied.

Scott Greenfield, in yet another invaluable service to the legal profession, has managed to prompt a federal judge to offer his unvarnished views on this song and dance.  Which is great.  It’s great to know how hopeless it always was, this whole suppression business:  most defendants are guilty (duh); only one side of the story is told at the suppression hearing, since the criminal defendant almost never testifies; judges have an authoritarian bent (duh); a judge’s experience is that cops are more honest than criminal defendants.  Who again, as an empirical matter are likely guilty.

One very interesting interlude is that SHG makes reference to an old case out of New York from the heyday of suppression motions, circa 1970, People v. McMurty.  In that case the defendant took the stand at the suppression hearing, said he possessed and sold drugs and in that regard he was an experienced criminal, and that he would never “drop” drugs out of his pocket like the officer said he did because he knew that otherwise the cop would have to conduct an illegal search of his person to find them.

And the judge in the case was troubled, finding the defendant credible but also the cop and of course suppression was denied.

So we marvel at the perversity of it all.  A defendant waives his right to not be made a witness against himself by taking the stand, admits everything truthfully, and relies upon the law as it was at the time, and upon the sound judgment of the trial judge, to make the prosecution go away because despite the outcome there, the only reasonable credibility determination would have had to favor the defendant.  He confesses to the crime he’s accused of in open court because under the law if he is believed the evidence of his crime would have to be suppressed.  Of course, whether the prosecution could proceed on different evidence – namely, the evidence the defendant himself gave at his suppression hearing by testifying – is a question the court didn’t consider because it denied the suppression motion anyway.

Ugh.

No matter how we construct the law to make the process, for want of a better term, a fair game, the mind will recoil at the thought of the factually guilty escaping punishment because of the game’s rules, just as it will recoil at the factually innocent being punished at all.

Then, in the comments, the beginnings of an SHG epiphany:

So you’re exactly right: the outcome is pure cynicism, as some judge lectures them about being a law-abiding citizen and obeying the law, immediately after the cop lies through his teeth and sneers at the defendant. And we wonder why they won’t behave the way we want them to.

 

More than three years ago, I put up a little post about the morally corrosive influence of the Supreme Court’s 4th amendment jurisprudence from the 1960’s on the whole system – but especially on the police – flowing from Mapp v. Ohio.  I had SHG in mind then, not really personally but as sort of a representative sample of criminal defense lawyering of the post-Mapp era.  One of the many discussions that should be taking place among lawyers on the subject of why the system so often gets it wrong is detailed in that post.

And now, with a slightly different take, in one of SHG’s posts.

Maybe I shouldn’t say ‘slightly’ different, because when it comes to offering any kind of solution the slight difference becomes a giant chasm.  And as regular readers know, I am loathe to make criticisms without offering solutions, however much of an outlier it might appear to make me.

SHG rightly laments the pure cynicism.  But you can’t get much more of a cynical result than defendants saying they are guilty and demanding to escape punishment for technical reasons, as in People v. McMurty.  To overcome cynicism there has to be some devotion to truthfulness and other virtues, if only in the breach.

Somewhat ironically, I would like to trust the police as much as the next guy – well, maybe not as much as Judge Kopf.  But still.  The rules of the game that we set up should not, therefore and in my opinion, reward vice and punish virtue.

My suggested solution will have to await another post.  It’s Easter, after all and I have to attend to other matters.

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The Case Of Dawn Nguyen

So here in Rochester we just completed one of the most high profile trials of the last year or so, involving the prosecution of a woman who now stands adjudged guilty by a jury of having ‘falsified business records’.

Ordinarily, of course, falsifying business records charges don’t generate a lot of copy, but this particular business record was a form filled out when buying guns that were later used to kill two firefighters and wound two others in a particularly depraved act on Christmas Eve 2012.  The killer shot the first responders when they came to help, there having been a fire no doubt started intentionally by the killer himself.  Who had just killed his sister.

He had been released from prison years before.  He was in prison because he had killed his grandmother.

I’m not making any of this up.

The basis of the case against Dawn Nguyen is that she had stated on the business record that she was the purchaser of the guns, when in fact the guns were intended for the killer, named William Spengler.  The puchase of the guns occurred, apparently, in June 2010.

That’s two and a half years before Spengler went on his perverse Christmas killing spree.

Let’s assume she’s guilty as charged on the business record thing, just like the jury said.  What’s really animating the prosecution, what made it “high profile”, is not what Nguyen did; it’s what Spengler did.  To drive the point home, Nguyen’s trial was very well attended by fire fighters from the relevant department and cops from the relevant village police department.  Indeed after the guilty verdict the firefighters and police chief were breathlessly interviewed by local media for their opinions, which were uniformly that they had been extremely interested or involved in the prosecution of Nguyen, that they were ‘gratified’ by the verdict as far as it went, that they were upset that the 1-1/3 to 4 year maximum sentence was woefully insufficient punishment, and that they looked forward to a federal prosecution arising from the very same facts and circumstances that would entail as much as 30 years in prison.

And then they would set about the business of changing the state law to provide for more severe penalties for doing what Dawn Nguyen had done.  One of the wounded firefighters commented that as far as he was concerned, Dawn Nguyen was a conspirator in the murder of his comrades.

Now.  A few more observations.

Ms. Nguyen’s lawyer, Matt Parrinello, did a fine job and knows a lot more details than I do.  It’s a very tough thing to do:  stand up and defend someone when the most important possible constituency – law enforcement and their fellow travelers in the fire/EMT communities – is out for blood very publicly.  Matt is my hero today.  Let’s be clear about that.

Second, this was as clear cut a case as you could ever have of what might be called a substitute criminal prosecution.  The guy everyone would really like to see hanged is dead, having killed himself.  Good riddance, but it does leave law enforcement bereft of that particular remedy.  Not to be left unsatisfied, they go looking for an alternate target, and lo they find one:  a twenty something Vietnamese heritage (maybe an immigrant but I don’t have that information) woman.  The fury they would like to unleash on the deceased miscreant they unleash on her instead.  Its searing intensity is wildly, insanely disproportionate to the wrong alleged, but that’s one of those things you mention at your peril, from a community point of view.* 

I don’t know how you could get a much more attenuated moral fault than filling out – or maybe just signing – a form some two and one-half years before a crime you had no involvement with took place.  I mean, this is one of the problems here.  Spengler’s sister must have known that he illegally possessed weapons.  He lived with her, each and every day of that two and one-half years.  She bears much more responsibility for what her brother did than Dawn Nguyen.  But of course Spengler’s sister is dead, too – Spengler killed her.

Beyond Spengler’s sister, how many neighbors knew Spengler had those guns but never reported it?  According to the village police chief, Spengler was a braggart about the neighborhood, in addition to all his other sterling qualities.  That’s one of the reasons the police chief figures Dawn Nguyen must have known all about what a bad guy and felon he was. 

Of course the problem with that is, lots of other people must have known, too.  Figure out something they did or didn’t do that violates some law or other within, say, merely one year as opposed to two and a half, and maybe you’ve got yourself a better case than the one against Nguyen.  File into the courtroom every day of their trial and glare at the jury until they convict, as by now almost any jury in the United States has been conditioned to do through decades of relentless law enforcement propaganda.

What’s to stop you from doing that, from roping in many, many other people to pay for Spengler’s crime?  Why, nothing.

 A third observation:  Dawn Nguyen is an attractive female.  The jury dynamics for attractive female criminal defendants are atrocious.  There’s almost no way to win:  other women hate her; men, of course, side with law enforcement.

Fourth:  that attractive female defendant thing also seems to generate a fevered intensity all by itself, to say nothing of combining it with a homicide.  Throw in the victims are law enforcement, or at least quasi law enforcement.  Throw in that it was Christmas.  Ugh.

Fifth:  Will anyone – other than me and her lawyer, that is – venture to state the obvious, that at this point a federal prosecution is overkill?  Will the local media give any air whatsoever to this, or is it a thought crime?

Sixth:  Dungeons, racks, screws, stockades, the pillory.  When someone is facing 30 years over lying on a form, these medieval tortures begin to look comparatively humane.  Something is seriously wrong when that happens.

But we already knew that, didn’t we?  Why do you think this blog and others like it even exist?

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*  Note, that is an obviously correct observation, and that makes it all the worse.  There’s no answer for it, so it interferes with the desire to wallow in simmering hatreds and desires for revenge.  Woe unto the cooler head pointing out such an obvious moral consideration in the midst of a collective frenzy.

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Truth Redux

I guess I’m incorrigible on this point.

There’s an old lawyer I know who tells a story of a personal injury case from many years ago, during that brief interlude when courts were inclined to entertain them and juries were inclined to reward them.

Yes, it was a very long time ago, and the interlude was so brief few remember it.  It probably coincided with three martini lunches, which have also vanished down history’s memory hole, resurfacing only in fictional contexts like television’s “Mad Men” series.

In any case, in this personal injury case there was a one car accident that left a man paralyzed.  A very young man, so this was very tragic.  Could a lawyer do something to deliver a pot of money when there’s a one car accident and thus probably no one to sue?

To make a long story short, the case was turned into a products liability case, though of course this was before we really called anything a “products liability” case.  Everything was just “negligence”.

The idea was to blame the car and sue the manufacturer, since no one else could be to blame except the driver and, you know, you can’t sue yourself.  Since it was a one car accident, you see.  And the manufacturer is conveniently a car company with lots of money and insurance, so in the end if you win the bill you send can be paid.*

The ‘theory of liability’ was that the car was negligently built or designed – that is, that it was ‘defective’ – and it all had something to do with the way the doors were designed.  Somehow, the manufacturer should have made them differently and if they had the young man would not have been catastrophically injured, as indeed he had been.

The case went on its merry way and sometime before or maybe it was during trial there was a substantial settlement in the young man’s favor.

But here’s the thing:  the old lawyer (who was then young, of course) was very pleased with himself and so were his partners and everyone else in the office, and one of the reasons was that, as they often told it, the whole defective door argument was just something invented out of whole cloth, made up, then justified and rationalized and advanced and pressed to a successful conclusion.

For my own part, I’m not entirely sure that’s true.  I’ve never looked into the whole case very deeply; I just listened to the stories with the mild amusement that was intended in the telling.  But that’s not the point.

The point is, it’s a very dangerous thing for anyone – and especially lawyers – to conclude that the reality underlying a case doesn’t really exist or doesn’t matter, that litigation is a contest where the two opposing sides advance self-serving arguments and that the ‘evidence’ produced by each side is limited by little more than whatever one’s own imagination and self-interested will can achieve.  As if winning or losing a case is only the result of cunning and the simple desire to win rather than accurately ascertaining the underlying reality, or at least one side more accurately ascertaining it than the other side.

One of the main reasons this mindset is so dangerous is what might be called the marginalization of honesty.  An honest lawyer will not make a fight unless he thinks the underlying reality supports the fight he is making.  That doesn’t make him necessarily right, of course.  He might be wrong about the underlying reality.  But it matters whether he is honestly mistaken or, say, just doesn’t give a shit whether he is mistaken.  Or at least it should matter, even though the practical result might be the same:  mistaken is as mistaken does.

But notice, if he’s not honestly mistaken but being, say, deliberately deceptive, it resembles a very similar phenomenon to Bill Black’s adage that dishonesty drives honesty out of the market:  the honest lawyer can’t compete with the dishonest one.  A lawyer who will make any argument regardless of honesty will have a lot more winning arguments than an honest opponent.**  The honest lawyer is constrained by the limits of reality and the dishonest lawyer is not.

Of course the system addresses this after a fashion:  honesty from lawyers – whatever side they are representing – is to be presumed.  Not conclusively, but close.  This is because their fundamental honesty is supposed to be sorted out when they are admitted to practice – there is a rigorous vetting process for “character and fitness”.  That is not a joke.

But it seems like a joke, to everyone reading this.  And sadly, to judges and lawyers themselves.

We just posted about a Brady violation, and we’ve been coming back over and over for the last few months to this distinction between the deliberate suppression of evidence and the inadvertent suppression of evidence by a prosecutor.  That is, the difference between an honest mistake and lying and cheating.  A distinction which, it seems, only we here at Lawyers on Strike seem to care about.  We have noted that the deliberate suppression of exculpatory evidence by a prosecutor always violates the defendant’s right to due process of law whereas its inadvertent suppression may, or may not. 

And so it becomes important in that context to determine whether a prosecutor’s conduct has been deliberate or not.  In other words, what was or is going on in the proecutor’s head?

Of course, suppression is as suppression does, whether it’s deliberate or inadvertent.  A criminal defendant who was convicted and sent to prison when evidence that might have made a difference was withheld doesn’t care whether the prosecutor meant to or not.  And explaining to him that he lost his post-conviction plea for release because although that evidence was wrongfully suppressed it wasn’t deliberately wrongfully suppressed will seem both arcane and ritualistic.

But lawyers – and especially judges – do have to look out for the system, too.  The system’s integrity, to be more specific. 

And here is an uncomfortable truth:  the system can have no integrity so long as its officials – and that includes all lawyers, and to be more specific again it includes criminal defense lawyers – subscribe to the opinion that there is no such thing as really true and really false, really guilty and really innocent, because if that’s true there’s no way to distinguish between honest and dishonest.  After all, an honest man is one who will not engage in willful falsehood, which becomes a meaningless definition if nothing is true and nothing is false.

Of course we live in an imperfect world.  And we are not a perfect profession.  So we add this caveat:  the system would be diminished and deeply flawed, but not necessarily entirely dysfunctional, if large numbers of criminal defense lawyers subscribed to that opinion. ***

But it would be entirely dysfunctional if a prosecutor did. 

And if the police subscribe to it?  We’ve had a commenter over here, Martin Preib (just follow the link and read through the comments), who for want of a better term (since this post is already too long) is a cop-apologist.  He represents the mindset of the majority of police.  And notice the perspective:  it’s not that he explicitly endorses the idea that the stronger will prevails regardless of underlying reality – that is, a sort of latter day Nietzsche point of view – it’s that he can’t tell the difference between a case where the underlying reality lines up with his opinion and a case where it doesn’t.  To him, the Anthony Porter ‘wrongful exoneration’ and the Central Park Five are the same thing:  their team versus our team.  Which side are you on?  It’s not so much that he denies the categories of truth or falsehood explicitly; he just unconsciously doesn’t use them because he is unaware of them.

So we ask ourselves whether this mindset has its origins not in the police departments themselves, but in the corruption of the legal profession that was already worrisome, albeit subtle and confined to less significant matters, all those many years ago, and which may have filtered down to the police in the years since. 

And we also ask if anything can really be done when things have deteriorated to the extent they have.

Ugh. 

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*  The reason you often see lawsuits where it seems like the Plaintiff has sued someone who doesn’t seem to have much fault is that many times the only person or entity that has enough money or insurance to cover a large bill is a person or entity that, well, doesn’t have much fault.  In many instances, a little fault is enough, due to a concept called “joint and several liability”, which we won’t discuss here because it’s too boring to write about, although it is far from boring when you have to decide who to sue and whether the monied person or entity you have your eye on has any genuine fault.  But never mind.

**Bill Black has also recently weighed in on legal profession corruption in a more specific context

***  To be fair, the criminal defense lawyer’s practice tends to lead him in that relativist direction because it is so much more nuanced and intellectually difficult than a prosecutor’s

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