Monthly Archives: May 2014

Greenhouse Follies

An uncharacteristically lively screed from the normally somnambulistic Linda Greenhouse who has done a very good job for a very long time keeping the goings on at the SCOTUS excruciatingly boring to the general public.

Linda is especially exercised about the recent Town of Greece case, which held that prayers before public meetings didn’t offend the constitution’s “establishment of religion” clause:

This is an opinion column, and here is my opinion: the court’s majority is driving it into dangerous territory…setting an agenda that mimics a Republican Party platform…Opening the doors to greater public expression and observance of religion is another central part of the Roberts court’s project…The United States Court of Appeals for the Second Circuit had found the steady diet of Christian prayer at town board meetings to be an unconstitutional establishment of religion…Since it was obvious that the majority’s goal was to overturn the Second Circuit’s decision, it was no great surprise that the 5-to-4 opinion did so…Justice Kennedy’s opinion for the court was startling nonetheless for its obliviousness to the impact that sectarian prayers can have on those citizens for whom prayer before a government meeting is not “a benign acknowledgment of religion’s role in society” (to quote the opinion) but an affront…This from a justice who in his majority opinion in a Florida death penalty case on Tuesday emphasized the right of a convicted murderer to be treated with “dignity” by having his intellectual deficit assessed meaningfully rather than mechanically…I was left to wonder about the dignity of the two women who sued Greece, N.Y., on the claim that the price of conducting their business with the town board should not include having to listen to Christian prayers…The country didn’t need to have the religious culture wars reignited, but thanks to the court, that’s where we now are.

 

Let’s just say to start with that analogizing a couple of old women complaining about some prayer or other at some public meeting or other to someone complaining that he doesn’t want to be literally tortured to death at his execution reveals a strange sense of proportion:  concerns about “dignity” in the one situation are hardly comparable to the other.

But it also strikes me that Greenhouse is so far behind the curve, politically speaking.  She is obsessed with yesterday’s issues, like public prayer.  And it’s ironic that she accuses the Supreme Court of political orientation in supposedly “reigniting” the religious culture wars, inasmuch as to the extent we’ve had any religious culture wars they were almost entirely the product of Supreme Court meddling in the first place.

Honestly, I don’t get the hyper-sensitivity some people have to public prayer.  In many ways I find most public prayers objectionable for all kinds of reasons but I don’t see any constitutional problems with them. And all the Supreme Court jurisprudence to the contrary has always struck me as a product of the usual pseudo-intellectual anti-religious snobbery so common among the American ruling class.

But that’s just me.  I’m no Linda Greenhouse. 

I’m actually glad she got up on her high horse a bit.  As she notes, she can have opinions, too, and I’m glad to know what they are, agree or disagree.  But she’d be doing her job and serving the public a lot better if she used her megaphone about far more important issues, such as whether summary judgment as currently practiced violates the 7th amendment or what in the hell “due process” means for a criminal defendant, because we’ve gotten very confused about those things on her watch.

Well, not us here at Lawyers on Strike, of course.  Just everyone else, it seems.

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Too Cozy

It’s a real problem when the ‘news’ is the product of agreement and an unholy consensus, instead of facts.

And we’re not the only ones noticing and/or complaining.

A consensus doesn’t make anything true.  If it did there would be nothing wrong with lynch mobs.  Beyond that, desiring something to be true doesn’t make it true. 

The biggest temptation of power is to conflate one’s own ego-driven conception of reality with reality itself.  The press is probably the most important antidote to that tendency in a nation’s political leaders. 

How abjectly they are failing.  And much of the torrent of wrongful convictions can be laid at the feet of that failure.

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Eulogy for Charles Thomas Dienes

JONATHAN TURLEY

Submitted by Kimberly Dienes, guest blogger.  

Sometimes, paradoxically, the most difficult times in our lives can lead to some of the happiest occurrences and memories. Although I had heard about Jonathan Turley from my father many times, I met him at my father’s funeral. Some of you may have seen his wonderful blog about my father, Charles Thomas Dienes (http://jonathanturley.org/2014/04/24/farewell-to-tom-dienes/).   Jonathan suggested that I join his blog as a contributor and publish my eulogy for Dad.

The key message of the eulogy is this: it is not easy to love. Many words, phrases, and stories in our culture might lead you to believe it is, falling, instant, first glance, but love takes much more than effortless submission to a greater force…it is an act, and sometimes that act can be difficult. The act requires vulnerability, it requires communication, it requires thought and time. Loving can be so…

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Good Faith Presumption?

Interesting discussion over at SJ about presuming that the government acts in good faith.  And I certainly agree that there has to be a good faith presumption in favor of government conduct, just as there should be a presumption of regularity, and a presumption of paternity where the mother is married, and so on.

But the error Greenfield is making in his own analysis is also quite interesting.  At least in the context of criminal prosecutions and defending against them, which is the SJ raison d’etre, the presumption that a criminal prosecution is brought in good faith is not ‘rebuttable’.  It’s what we call conclusive

How do you know?  There’s no affirmative defense to a criminal prosecution that it is not brought in good faith.  New York’s Criminal Procedure Law, for example, simply does not contemplate that a criminal prosecution could be brought in bad faith so does not address it until after there is a conviction (in Article 440).

If you find yourself on the receiving end of a criminal prosecution that is, in fact, not brought in good faith, you have to resort to what we call a “collateral” proceeding, or you have to wait until there is a conviction before you can challenge it.  There’s no argument to make to the trial judge except for “due process”; but that’s another post, not this one.

Collateral proceedings are highly disfavored when they are addressing a criminal prosecution.  There are very good reasons for that.  Nevertheless, if a criminal prosecution is not brought in good faith it’s the only remedy there is.

Every criminal defense lawyer should know that.

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Consensus Follies And Hidden Costs

Certainly, a judgment of conviction represents a consensus, with the imprimatur of the State, fixing responsibility and punishment for a crime.

Does the State have an interest in ‘finality’ when the consensus turns out to be wrong?*

Let’s stipulate that in the majority of cases it cannot be known with absolute certainty that the consensus was either right or wrong.  We do the best we can, and often times the best we can do leaves some room for doubt.  Either way.

Nevertheless there are some cases where the certainty is absolute, or at least as absolute as anything can be known in this life.  We are not talking about epistemology here; we are dealing with practical judgment.

The poetry of finality:

In light of “the profound societal costs that attend the exercise of habeas jurisdiction,” Smith v. Murray, 477 U.S. 527, 539 (1986), we have found it necessary to impose significant limits on the discretion of federal courts to grant habeas relief. See, e.g., McCleskey v. Zant, 499 U.S. 467, 487 (1991) (limiting “a district court’s discretion to entertain abusive petitions”); Wainwright v. Sykes, 433 U.S. 72, 90—91 (1977) (limiting courts’ discretion to entertain procedurally defaulted claims); Teague v. Lane, 489 U.S. 288, 308—310 (1989) (plurality opinion of O’Connor, J.) (limiting courts’ discretion to give retroactive application to “new rules” in habeas cases); Brecht v. Abrahamson, 507 U.S. 619, 637—638 (1993) (limiting courts’ discretion to grant habeas relief on the basis of “trial error”).

These limits reflect our enduring respect for “the State’s interest in the finality of convictions that have survived direct review within the state court system.” Id., at 635; accord, Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam); Sawyer v. Whitley, 505 U.S. 333, 338 (1992); Keeney v. Tamayo-Reyes, 504 U.S. 1, 7 (1992); McCleskey, supra, at 491-492; Teague, supra, at 309; Murray v. Carrier, 477 U.S. 478, 487 (1986); Engle v. Isaac, 456 U.S. 107, 127 (1982). Finality is essential to both the retributive and the deterrent functions of criminal law. “Neither innocence nor just punishment can be vindicated until the final judgment is known.” McCleskey, supra, at 491. “Without finality, the criminal law is deprived of much of its deterrent effect.” Teague, supra, at 309.

Then a couple of kickers to drive the point home:

Finality also enhances the quality of judging. There is perhaps “nothing more subversive of a judge’s sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else.” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 451 (1963).

Finality serves as well to preserve the federal balance. Federal habeas review of state convictions frustrates “ ‘both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.’ ” Murray v. Carrier, supra, at 487 (quoting Engle, supra, at 128). “Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them.”

 

From Calderon v. Thompson, 523 US 538 (1998)

Well, that’s the argument.  I wonder more than a bit about the “…inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well..” though.  Seems to me that judging should be an objective thing, not a function of subjective impressions that are apparently easily upended by  “…the notion that all the shots will always be called by someone else.”  Isn’t that the case anyway?  Is the judge’s job to make a decision reflecting his “subjective conscientiousness”, or to conform his subjective conscientiousness to objective reality known through things like oh, I don’t know, evidence?

Never mind.  That question really is about epistemology, and while it’s very relevant to this post and many others here at Lawyers on Strike, we’re not prepared to deal with it at length this morning.

On the other hand, the “societal costs” of wrongful convictions are not apparent.  The wrongfully convicted offender is robbed of the social position he otherwise would have had, but what is that position?  We can’t be sure.  Much of the time we have no idea.

What about his family and friends and co-workers and colleagues who all know that an injustice was done?  We don’t have any surveys to determine the impact on their – what shall we call it? – faith in the criminal justice system.

Multiply by the number of wrongful convictions.  See any social impact yet?

One problem, one very big problem with this line of reasoning is the encouragement it gives to building a consensus over getting it right.  This is an implicit favoritism to institutional litigants:  who is much better able to build a consensus, the individual or the institution?  The question answers itself.

So we see this play out, over and over.  One recent case in which a consensus was assiduously constructed is the Dawn Nguyen matter, which we wrote about here.  The consensus is that she bears criminal responsibility for the murder of two firefighters on Christmas eve 2012, even though she neither participated in that crime nor had any knowledge of it beforehand.  That’s not technically what she was found guilty of, but right now that’s not important.

What’s important is that the consensus was formed, and then hardened, and then implemented not so much through a rational process of evaluating it, but through an emotional catharsis that had no other outlet, since the real guilty party was dead and beyond earthly retribution.  It’s especially ironic in this context, for acting upon irrational emotional impulses is chiefly characteristic of criminal behavior, yet here the victim of it is designated the criminal.

Here’s the trick:  irrational emotional impulses don’t look like irrational emotional impulses when there is a powerful consensus behind them.  Except, we hope, in retrospect.  When reason tells us that we indulged a collective madness.

The mob in Dawn Nguyen’s case has not been a group of unruly yokels, but rather a politically powerful constituency that has historically, and depressingly, managed to assert a primitive, unreasoning dominance over the institutions whose entire function is to hold them in check.

I can’t begin to describe how dangerous this is, and how much worse it will be if this phenomenon, too, is anointed with poetry of finality.

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*  Um, no.

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CLE Report

CLE – as in, Continuing Legal Education.

You know, it’s a good thing to periodically listen to what others in the same profession, doing something like the same kinds of things, have to say about this or that issue.

Yesterday the United States Court of Appeals for the Second Circuit held what looked to be a fairly well attended lecture on the impact of a couple of fairly recent Supreme Court cases – Missouri v. Frye and Lafler v. Cooper – upon the process of “plea bargaining”.*

There was a panel of at least a half a dozen – a federal judge, prosecutors, legal aid lawyers, federal and state public defenders, and one lone independent practitioner, who noted the first time he spoke that he was the only “non-institutional” player on the panel.  Which was correct, and an important fact about which a lot could have been said.  But wasn’t.

As with many interactions of this nature there are explicit revelations and implicit ones.  Explicitly, the Supreme Court in the cited cases has finally woken up to the fact that our criminal justice system is a system of “pleas, not trials”.  So now that we’ve gotten that out of the way, the question shifts to how this streamlined process provides fair outcomes, or doesn’t, and what role the lawyers and judges play, keeping “ethics” firmly in mind.

Implicitly, one thing the lecture revealed is how marginalized and incoherent the criminal defense bar has become.  At one point the judges and prosecutors were discussing how much easier it was to dispose of a claim of ineffective assistance of counsel where the defense lawyer had thoroughly documented his discussions with his client showing that the client was fully informed before entering his guilty plea.  It seemed not to occur to them, although it did occur to some of the defense bar present, that from a defense lawyer’s point of view this was an argument to not document such discussions with the client.  Remarkably, even after this point was made the federal judge insisted that documenting such discussions was good practice and helped everyone.  Which is obviously not the case, and her maintaining this position even in the face of the dissent by the defense bar was a stark illustration of how hopelessly out of touch a judge can be when it comes to seeing things from a defense lawyer’s point of view.

We need more defense lawyers on the federal bench, obviously.

Another rather amusing point was made by a state District Attorney who kept opining that in the wake of Lafler and Frye prosecutors were now in the awkward position of trying to oversee defense lawyers’ dealings with their clients in order to make sure that any plea offers have been properly communicated to the client, so that convictions thereby obtained won’t be disturbed later.  Which was a good point, but not for the reasons she probably thought:  the really revealing thing there was the perspective that the prosecutor stands over the defense lawyer.  Nobody mentioned the axiomatic principle that the prosecutor has an obligation of fairness to the criminal defendant, recognition of which might ameliorate the “awkwardness” the prosecutor was complaining about.

Which leads to another very important and inadvertently revealing theme coming from all the prosecutors:  the very firm intention at the higher administrative levels of prosecutors’ offices to protect convictions already obtained.  This is where prosecutors are not just mistaken, but hideously mistaken.  If a conviction is wrongful it must be undone.  There is absolutely no value in preserving it, either societally or (of course) individually.  Or maybe I should say there is absolutely no important value.  Revisiting convictions already obtained is a bureaucratic headache, of course.  And it can cause embarrassment for lots of people when a conviction is shown to have been wrongful. 

But so what?  The value of such concerns approach zero when weighed against the vast destruction caused by wrongful convictions.  And the damage isn’t just to the defendant and his family and – occasionally – his lawyer.  Wrongful convictions greatly damage the public and the justice system, for example.  Indeed you could say the damage if a wrongful conviction is not undone extends to infinity. 

I would say that, anyway.

One last thing that kind of interested me.  One of the public defenders was really up on his high horse about the joke on effective criminal defense lawyering that is the Strickland standard (sure, defense counsel slept at his client’s trial but not during any of the important parts!) and how important “zealous” and “competent” representation were. 

And of course that’s true as far as it goes, but on the other hand the client doesn’t really care, most of the time, about how zealous and competent your representation has been; the client is interested in the result.  And in the end so should his lawyer be:  it’s really no comfort to say to oneself after a client has been wrongfully convicted that, gee, your representation was zealous and competent. 

Then again, what if the conviction is not wrongful?  We’ll take that up later, maybe.

 

 

 

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* Each of these cases involved plea bargaining and convictions by guilty plea that were alleged to have been wrongful because of errors in the process.  The main problem appears to have been ineffective assistance of counsel (IAC for short) in either not informing a client of a plea offer or not counseling them properly.

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More Due Process Error Needing Correction (Updated)

Why, oh why, does this task keep falling to us over here at Lawyers on Strike?

Here’s a case out of the 1st Circuit in February of this year called Housen v. Gelb, the opinion written by the flamboyant scribe Judge Bruce Selya, whose reasoning and writing style we generally find most agreeable.

However.

Part II-B of the opinion deals with “Prosecutorial Inconsistency”, addressing the argument of whether the government can, while still adhering to its obligation to afford criminal defendants due process of law, take one position in one case so they can get a conviction there; and then take an inconsistent position in another case so they can get a conviction there, too.

Bottom line is that this is regarded as an “open question”.  In support of so regarding it, Judge Selya cites a Supreme Court case from 2005, Bradshaw v. Stumpf, which the District Court had regarded as leaving the question open.  Why does the District Court think that?  And why does  Judge Selya then wash his hands of the question in his opinion?  Probably because of the concurring opinion in Bradshaw of Justices Thomas and Scalia:

This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.

Beware of concurring opinions.  For this is a flat out, absolutely incorrect statement of the law.  It is not an open question, and hasn’t been since 1942.  That was pretty much the whole point of Pyle v. Kansas, where the Supreme Court wrote:

and, that the record in the trial of one Merl Hudson for complicity in the same murder and robbery for which petitioner [that is, Pyle – ed.] was convicted, held about six months after petitioner’s direct appeal from his conviction, reveals that the evidence there presented is inconsistent with the evidence presented at petitioner’s trial, and clearly exonerates petitioner…Petitioner’s papers are  inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Mooney v. Holohan, 294 U.S. 103.

I shall never understand how things have gotten so confused.

I take it back.  I’ll spend the rest of my life figuring that out, one way or another.  Not that it matters to anyone but me.  At least not right now.

Update:  A slew of cases all committing the same error, none of them citing Pyle v. Kansas:  Smith v. Groose (8th Cir., 2000); US v. Frye (5th Cir., 2007); Beathard v. Johnson (5th Cir., 1999); Nichols v. Scott (5th Cir., 1995); US v. Hill (11th Cir., 2011); Fotopoulos v. Secretary (11th Cir., 2008).

Ugh.  When an error proliferates like this a lot of judges will conclude that it’s not an error anymore.  Of course that’s wrong.  Error is error.  Courts of Appeal can’t write Pyle v. Kansas out of the law just by ignoring it and going the other way, and a tossed off phrase in a concurring opinion from the Supreme Court doesn’t overrule prior precedent either.

We’re a mess on due process, and a lot of that has to do with Brady.  And some other things.

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Establishmentarian

We have established authorities, and we are reluctant deviate from them and embrace alternative views from less established individuals or groups.

Is this good or bad?

Well, both.  It’s good because there’s a reason established authorities are “established”:  it’s an accomplishment to get into Harvard, to earn a position in the federal government, to rise through the ranks of a big company to become it’s CEO.  Accomplishment should be rewarded and one of the rewards might very well be presumptions in your favor in a whole host of contexts.

But it’s bad, too.  The established authority doesn’t have a monopoly on truth, and when it’s wrong it must yield to the truth like everyone and everything else.  By all means have a presumption, but the reluctance to deviate should not become a menace, strangling truth in its crib every time it emerges from a non-established source.

The establishment newspapers in the United States are the New York Times and the Washington Post.  The estaiblishment newspaper in Canada is Toronto’s Globe and Mail.  So their handling of this story on the editorial pages is very interesting.  The essence of the issue is here:

The question is, taking for granted that there is a good faith disagreement between the University and Dr. Buckingham about how programs should be structured, whether he is entitled to break ranks and publicly complain about the process. That isn’t obvious. Reasonable people may disagree about how to arrange and structure academic programs so that they can function effectively and efficiently – not just as discrete, stand-alone units, but as a university. In the end, though, someone needs to make a decision. Assuming that the final decision belongs to the central administration, and not to the individual deans, there is some merit to the claim that Dr. Buckingham and others have an obligation to implement it – and not to foment dissent among the rank and file professoriate.

One would want to be extremely cautious before reaching this conclusion…

 

Exposing itself as terminally establishmentarian, though, the writer goes on to note that the university, in firing the good Dr. Buckingham entirely, went too far because they might have undermined another very important establishmentarian concern:  tenure of university faculty.

Nowhere in the article is any opinion on the relevant merits of the university’s or Dr Buckingham’s substantive disagreement given.  Who is right or who is wrong does not appear to matter.  This article is really about something else:  preserving the status quo.  And the Globe and Mail is firmly in favor of that.

For quite understandable reasons, I’m afraid.

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Editorial Judgment (Updated.)

I wonder sometimes.

There are two items that caught my attention this morning that signify – well – something.  Something about our news media.  Something about us.

The first is an article from the UK tabloid press (WARNING, I’ve had to retract some commentary before based on those kinds of sources) detailing an apparently retaliatory act by the Russian government against the US imposed sanctions over the Ukraine situation.  Seems the Russian government is now going to deny the US access to the International Space Station (ISS), which apparently only Russian Soyuz spacecraft can provide, and which the US has been using at about $70 million per astronaut per trip.

The other interesting thing about this little piece is where it reports that Russia is also going to stop selling the US rocket engines that the US apparently uses to launch military satellites.

I consider myself – perhaps wrongly – a fairly well informed person with a bent for military type news.  I seem to be dimly aware of the fact that only Russian spacecraft can get to the ISS.  I should think the details of this would be common knowledge among Americans generally, but we don’t get much reporting on space activity generally anymore and of course the linked article comes out of the UK, not the US.

Beyond that, I did not know at all that the US uses Russian provided rockets and rocket engines for US military purposes.  This is odd, to say the least, and I should think that would have been big news at some point or another.

What explains this?  Not sure this morning, but the subject is worthy of further inquiry, methinks.

The second item concerns the quite untimely death at age 36 of a Swedish film director named Malik Bendjelloul, who won an Oscar just last year for a documentary film called “Searching for Sugar Man” which concerned an American singer/songwriter named Sixto Rodriguez.  Now, it is not surprising to me that I’ve never, before seeing today’s story, heard of any of that – the film director, his Oscar winning film, or the American singer/songwriter who is the subject of the film.

But what is surprising is that Rodriguez, although it seemed terminally obscure in the United States, was massively famous in….South Africa.  And I guess the documentary film was about that apparent anomaly.

Which connects that story with the first one:  what accounts for the fact that an American can be hugely popular and famous in South Africa when no one in the US knows who he is? 

Fame is a tricky business.  And it’s related to editorial judgment, because it’s probably fair to say that you aren’t famous unless the media report about you, and of course that involves editorial judgment.

Meanwhile, we all know that Alec Baldwin had another altercation with the police, we’re familiar with every “selfie” posted by Kim Kardashian, we know all about Beyonce Knowles’ relationship with her sister, and we’re fully informed about Tom and Gisele’s third haunt, a $14 million apartment in NYC.

Now, up until a couple of years ago I would guess that most people in the US had never heard of the phrase ‘wrongful conviction’.  That’s been changing in the time since, but not by a lot.  CNN runs a series once in a while.  It’s spilled over into a few other places.

Cases about wrongful convictions are litigated all the time, though, and have been for many more years than the very mild, recent up-tick in media interest.

I guess the point is that stories about our relationship with the Russians and our faltering criminal justice system which is now even botching executions are far more relevant and important than stories having anything to do with Tom Brady and Gisele what’s-her-name, but we’re saturated with stories about the latter while there’s a dearth of stories about the former.

Throw in a little factoid that might be related and might be of interest:  50 years ago it was not uncommon for NFL players, even very good ones on championship teams, to have second careers in the off season to make ends meet.  Fifty years ago a novel about a wrongful conviction from an unknown author could get published, do extremely well, and be made into a movie that in turn would earn 10 times its budget.

Fame and wealth are, I guess, highly correlated.  But there should be limits, not by law or anything, just people’s sense of what reality should be.  A while ago I alluded to the social dangers of extreme “reward asymmetry”, here and here.  In this context I think I pretty much coined the term.

I can recite story after story to you from years of private practice starting about 1990 – both civil and criminal cases – illustrating how, in the fifty years since NFL players had to have second jobs, and moving stories about wrongful convictions were best-sellers, rampant economic injustice has taken over our courts and is now more or less expected. 

What is the cause, what is the effect?*  That’s a very interesting question as well.  Did the courts tow the line in those days, at least to some extent because they feared they would be shamed by the media if they didn’t?  Or did the media tow the line because they feared the courts would shame them if they didn’t? 

Or did both tow the line because they feared the public was interested, and just, and would not tolerate rampant injustice?

And God help us, what about lawyers?  Then and now?

Too big a subject for one post, I’m afraid.

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*  Can’t be our fault.  We’re all much, much smarter than average.

UpdateYou have to laugh at the CNN coverage of the same story as the first link in this post, with the headline “Russia To Leave International Space Station by 2020” as opposed to the British Telegraph’s “Russia to Ban US from Using International Space Station Over Ukraine Sanctions.”

The CNN article still doesn’t say anything about Russia providing rocket engines for the launch of US military satellites.  Like this is not newsworthy.

Maybe that information is classified.  Wouldn’t be the first time classified information leaked in the foreign press when the US press doesn’t report it because here it would be illegal.

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Amanda Knox Redux

So here’s an important contribution to understanding not just Italy’s problematic justice system outcomes, but our own.

The idea is that the justice system in Italy is invested in the guilty verdicts of Amanda Knox and her former boyfriend for reasons of institutional integrity.  Their guilt is mandated because that was the narrative leading to the conviction in a separate trial in the Italian courts of Rudy Guede, the real perpetrator.

Here in the US, we wouldn’t hold Amanda Knox to a fact finding from a trial in which she was not a party or did not have the opportunity to contest.  These are the rules of a doctrine known as collateral estoppel.  Or more recently “issue preclusion”.

Now it may be that the law in Italy doesn’t have such a doctrine.  Or rather, it recognizes issue preclusion but will apply it whether the person precluded had an opportunity to be heard or not.  I don’t know.  And actually, come to think of it, I don’t know if Amanda Knox had an opportunity to be heard at Rudy Guede’s trial.  Maybe she did, because it seems it works differently over there – you can make yourself a party to someone else’s criminal prosecution, maybe if you can demonstrate some kind of personal stake in it. 

This is all kind of interesting from a lawyer’s standpoint.

But let’s give Italy’s law the benefit of the doubt.  If they give Knox the opportunity to be heard in Rudy Guede’s trial and she passes it up, well then that’s her opportunity to be heard.  Now they hold her bound to whatever facts might be found against her at that trial.  She will no longer be heard to contest them.  And this is one of those odd situations where for technical legal reasons a fact is deemed to be true regardless of whether it really is.  That is possible in our system, too.  For example, a fact in a civil case that is formally admitted in a pleading is legally true regardless of whether it’s actually true.  Or, a person can be found “not guilty” at his trial and in fact he is guilty.

Now, it might be surprising to some, but I have a little bit of sympathy for the institutional concern.  It would be a terribly unfortunate thing for Amanda Knox to be technically, legally guilty without being actually guilty, but the high courts in Italy could be legitimately worried about what happens in other cases.  In this case, the law works a wrong; but if you disregard it in this case and set a new precedent, then the new precedent could just as easily work a bigger wrong in another case.  If the Italian courts allow peripheral potentially accused persons to be heard in the criminal trial of another person, then I suppose Amanda Knox’s lawyer(s) in Italy should have taken that into account when Rudy Guede was put on trial.  So you might argue that they screwed up and put her in a position where she had no chance to be found not guilty because that issue had already been determined, she had a chance to fight it and she didn’t.

But like I said, a little bit of sympathy, not a lot.  I don’t think you should run the rule out – assuming it is the rule over there, I mean I don’t know – to the extent that you’re going to hold someone guilty of a murder they didn’t commit.  Hard cases make bad law, but being wrong is bad, too.  I don’t think you can ever enhance institutional integrity by getting it wrong, especially when everyone knows it.  The system has to conform to reality, not the other way around.

I guess my position is that if you find yourself in a position where the rule forces you to be wrong, then it’s time to develop a new rule.  Appellate judges are all smart guys, so just be careful and have at it.  It’s your job, it’s why we pay you the big bucks.

In any case, I’m grateful to my twitter companion (and author of the linked article across the pond) Nigel Scott (twitter:  @gronff), for the hat-tip.

Let’s hope this all works out correctly for Amanda Knox, Raffaele Sollecito and the Italian justice system.  Come on.  I know we can do it.

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Filed under Judicial lying/cheating, Media incompetence/bias, wrongful convictions

Continuing Brady Follies

You just can’t make this stuff up.  At least once a month for a year now, this or that court has waded into the Brady quagmire, got stuck and made it deeper.

The latest installments – one not from a court but from a law review – are interesting, as these things go.  First you have a case out of the United States Court of Appeals for the 3rd Circuit, which usually sits in Philadelphia.  The name of that case is Halsey v. Pfeiffer, and you can find it here.

Halsey very explicitly makes the same Brady interpretation mistake we have been noting for months now.*  There should be a rule at this point that any federal appeals court issuing an opinion citing Brady v. Maryland must be thoroughly familiar with the posts dealing with that case here at Lawyers on Strike because here, not constrained by the requirement of a case and controversy, we can bloviate at will, but in a good way where we clear up all the confusion.

The bottom line, as you have learned from our efforts here, is this:  there is no “materiality” requirement before a defendant’s due process right is violated when police or prosecutors deliberately fabricate evidence to implicate him.  Materiality is a Brady requirement, not a Mooney requirement, and deliberately fabricating evidence comes under the latter, not the former.

So the Halsey court, in so imposing a materiality requirement, is limiting Mooney.  But only the Supreme Court can limit Mooney, not a federal appeals court, and guess what?  The Supreme Court will never, ever limit Mooney.  Some of the Supremes might be crazy enough to want to, but even then they won’t.

Too embarrassing.

Then, just a few days ago, the University of Illinois law review publishes an article online going on and on for 44 pages.  The article is so far behind the curve on the issue that although I have linked to it I really can’t recommend reading it.  Far less painful and far more illuminating to just read over here.  But if you’re curious to see a supposedly “top 20” law school‘s law review miss the issue that we here at Lawyers on Strike have been actually litigating since at least 2006, and get the law utterly wrong in the process, have a gander.  Most egregiously, this is an article published in March that cites a Fields v. Wharrie opinion from 2012 but fails to note a later and far more interesting Fields v. Wharrie opinion – same case, second round of appeals – from 2014 that we are all too familiar with over here.  Seriously, if the article hasn’t made it into print in the official law review yet they should just pull it.  Nobody much reads law reviews, really, but this is a hot issue right now and botching the issue so badly could wind up being pretty embarrassing .  Which I think this particular law school doesn’t need right now.  It’s the one thing law review articles are not supposed to do – completely miss the issue they are supposedly expounding upon.  I mean, they’re not known for their scintillating prose, right?

See, if you want to expound on this issue you have to keep up with us here at Lawyers on Strike. 

Ugh.

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* If you want to understand this post you’ll have to follow that link, and even the links in that link, unless you’re completely all over this issue like we are.  And if you are, and it’s not because you’ve been reading us over here, we’d love to hear from you, because as far as we know we’re the only lawyer on earth that has a good handle on the whole thing.  In some ways we wish we didn’t, but that’s another subject.

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Law Enforcement Mythology

Stories like this surface from time to time.

The contention that there are ‘scientific’ ways to detect when a human being is ‘lying’ is on a par with assertions of the existence of unicorns, fairies, or sasquatch (which perhaps not coincidentally was also in the news over the weekend).

Then again, I would sooner accept the proposition that sasquatch is a real thing than the proposition that someone has figured out scientifically how to tell when someone is lying.

Why does this myth persist?  Why do uncritical recitations of the myth regularly appear in the news media?

Quite simply, to influence the jury pool.  Law enforcement is planting and cultivating the seed in the minds of as many people as possible that by the time a trial occurs, our highly trained and trusted law enforcement officials have already determined who is telling the truth and who isn’t through their detached, scientific approach.  That way, when the trial is characterized as a “he said-she said” contest they will overwhelmingly win, as long as their claim to a flawless scientific methodology is respected.  Notice that the news stories, in a departure from the usual practice of getting a contrary opinion, don’t bother to do that here.  No skeptic of the demonstrably false law enforcement myth is quoted or, it appears, sought.

It’s yet another arrow in the quiver of the prosecution in a criminal case, and where it’s a factor it should probably be addressed at jury selection.

If the judge lets you.  Ugh.

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Filed under Media incompetence/bias, wrongful convictions