Monthly Archives: June 2014

A Set-Up, Maybe: A Little Primer On SCOTUS Machinations By Prosecutor’s Groups

You might fairly call what I’m about to describe at some length a “conspiracy theory”.  So before I begin I’ll just say that that’s a fair characterization as long as it’s understood that this is a theory.  It’s based on some evidence – facts, really – but there are too many inferences that aren’t unarguable for it to be more than a theory.

With that proviso let us begin.  I’ll try to explain it all without getting too heavy on legal theories, though in the end I think there just has to be an appreciation for certain theoretical issues that come up in the law.  But if you like to figure things out bear with us, whether you’re a lawyer or not.

There is a concept called “justiciability”:  that is, in order to make a decision about an issue a court has to have a “live case and controversy” with actual parties that are having a dispute with something personally at stake.  And this is something that is required because of the nature of courts – as opposed to, say, legislatures, that just legislate on this or that subject whenever it strikes them as being a good idea.

So, courts don’t render “advisory” opinions, and they don’t decide cases that have become “moot”, although there are exceptions, sort of, that we don’t have to get into here.

In any case, there are people and organizations – and this has been going on a long time – who want the courts, and especially the Supreme Court (SCOTUS) to decide this or that issue as a matter of constitutional law so that everyone else has to bend to their will, because of this idea that the SCOTUS gets to say what the law is and their word is final.

Some people are just attracted to power like that.  A lot of people, really.  But I digress.

But then they confront this problem:  gee, we can’t just waltz into the SCOTUS and have them vindicate us because we’re right.  We need a live case and controversy.  And for that we need litigants.  Clients. 

Let’s go find one!

Now as you might have gleaned from my description here there’s something kind of disingenuous and artificial about this kind of process.  Because the people who arrange things like this are the real parties in interest, but since they don’t have an actual case, they just go find someone to be the stalking horse for their issue so they can get the SCOTUS to side with them.  The client really doesn’t matter, except in a technical sense.

In other words, in form there is a “live case and controversy” with a real litigant but in substance there isn’t.  Just people with a grandiose agenda and some fellow traveler – or in some cases an out and out dupe – who serves as a pawn in the larger chess game.

One of the most screwed up cases ever to be decided by the SCOTUS was exactly this kind of thing.

So, where am I going with all this?  Glad you asked.  You must be dying to know.

For more than 20 years the law of due process in criminal cases has been enormously messed up in the United States.  We’ve been talking about this a lot in the last year, such as here.  What it boils down to is that the nation’s prosecutors, who are very organized and very powerful, have managed to maintain with the thinnest veneer of plausibility the proposition that they can lie and cheat their way to a criminal conviction without violating the Defendant’s right to due process of law, so long as they do not lie and cheat at the trial itself.

Again, if you want to review start here.  Jump around if you like.

Beginning in 2009 this thin veneer began to melt, when the prosecutors managed to get a case to the Supreme Court for argument, the argument didn’t go as well as they had hoped, and they wound up buying off the opposing litigants to prevent the SCOTUS from deciding against them, which would have diminished their power and prestige.  And that’s what’s important to them, as a group.

That case was Pottawattamie County v. McGhee, which we have discussed many times.  What you should note about that case right now is that the written opinion of the 8th circuit from which the prosecutors appealed was not a model of clarity or restraint, which of course enhances the possibility that the SCOTUS will reverse:

We find immunity does not extend to the actions of a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not “a distinctly prosecutorial function.”   The district court was correct in denying qualified immunity to Hrvol and Richter for their acts before the filing of formal charges.

This little blurb doesn’t really explain the ruling too well, does it?  In other words, these guys (the nation’s prosecutors, acting in concert and as a group) pick their cases carefully to give themselves the best chance that they will prevail in the SCOTUS.  They guard their collective position jealously, and it must be said also more than a little unscrupulously. 

Moving on, then.

In 2012 the nation’s prosecutors experienced another significant setback when the 7th circuit decided Whitlock v. Brueggemann.  They appealed that one to the SCOTUS, but although the SCOTUS showed some interest cert was ultimately denied

Whitlock has now been reverberating in the 7th circuit and elsewhere for more than two years.  In January of this year there was a most significant development when a split three judge panel of the 7th circuit decided Fields v. Wharrie.  The prosecutor lost on the issue and there was a dissent by a Judge Sykes.  Taken together, these two factors greatly enhance the odds that the case will be entertained by the whole 7th circuit sitting “en banc”, or for that matter by the SCOTUS upon a petition for writ of certiorari.

So what has happened with Fields?  The losing prosecutor petitioned for en banc review but this was denied in March.   They had until June 12th to petition the SCOTUS for cert.  And as far as I can tell they never did.

The reason for this is probably that the Fields majority opinion – that is, the opinion that went against the prosecutors – was written by the very prominent and respected Judge Posner, and for that reason would not be such a good candidate to be reversed in the SCOTUS.

But there’s more.

On June 9th, just a few weeks ago, the 7th circuit came down with another one – Petty v. City of Chicago.  This was a unanimous three judge panel and, interestingly, Judge Sykes (the dissenter in Fields) was on it.  Petty used Fields to deny relief to a Plaintiff and dismiss his complaint.  In other words, this case was decided in the prosecutors’ favor.

Even though this is not the best posture for a cert petition to the SCOTUS – it’s much better if the prosecutor is appealing and not the poor schmuck – in my opinion there’s a good chance this case – the Petty case – is being manuevered up to the SCOTUS by prosecutors groups in an effort to get a favorable ruling from the SCOTUS on this serious question of just how much lying and cheating they can do to get a conviction. 

Why do I think Petty might be a SCOTUS set up case, like Roe v. Wade was?

Because the law firm representing the appellant – Petty (actually his estate) – makes its business representing cops and municipalities, not the poor schmucks of the world.  Their bread is buttered by winning for cops, not the people cops might have injured.  Also because the Plaintiff, who is now deceased, was probably not the most savory of characters.

In other words, I think there’s a possibility that the law firm representing the Petty estate is, underneath it all, out to have their client lose in the SCOTUS, not win.  Prosecutors groups didn’t want to challenge Judge Posner directly, so maybe they’re going to approach this indirectly.

We’ll see.

Is this unscrupulous, or even unethical conduct for that law firm?  I think it would be, not that it matters much what I think.

Anyway, if all this is true there one other thing worthy of note:   what a mismatch in terms of power and influence.  You would think that the Defense bar nationwide would be very active in this, but there’s no indication that anyone is even watching.

Except us over here at Lawyers on Strike.



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Having Their Way With Dawn Nguyen

Another sad chapter in the ongoing saga of the law enforcement community getting its way.

“We now know that Dawn Nguyen knowingly and intentionally bought those firearms for William Spengler, the man who was responsible for the tragedy,” said U.S. Attorney William Hochul.

Of course we know nothing of the kind.  We know what she said in the course of pleading guilty, and that if she hadn’t said that she would have had to go to trial, and if found guilty at trial she would have spent the balance of her young adult life in federal prison.

This was a plea of convenience.  As far as being the truth of the matter, you can read a recent 2nd circuit opinion recognizing the uncomfortable reality that innocent people plead guilty and say what they have to say in order to avoid draconian punishment here.

If you terrorize people into pleading guilty they most often will. 

There’s nothing to be happy or satisfied about in all this.  If my opinion counts for anything, the only reasonable interpretation I can see of what happened here is that the law enforcement community, far from honoring their fallen comrades, helped their murderer to posthumously, and gratuitously, injure another person.  And that would be my opinion even if Dawn Nguyen actually did buy the guns for Spengler.

But here’s something that’s not just my opinion:  whatever Dawn Nguyen claimed in pleading guilty is only marginally more factually unreliable than jail house snitch testimony.  It should hardly be any sort of “closure” for anyone.

And if law enforcement as a group can take any satisfaction from this sordid episode where a mob relentlessly brow-beats a young woman into prison I just feel sorry for them.  Though not nearly so much as I do for her.

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It’s one of those planted stories that you have to get used to when you live in a planned economy.  Which we do.  Our pretenses to “capitalism” notwithstanding.

The Chairman of the St. Louis Fed comes out with a prediction that interest rates will begin to rise early next year, much sooner than anyone else at the Fed has been predicting.

I don’t see how this is possible without destroying the banking system, because the banking system is already holding, as “assets”, so much low interest debt – mostly USG bonds – and rising interest rates will virtually wipe out the value of those assets.

Yet the perpetually low interest rate environment has unarguably depressed the economy, sort of the opposite of what it’s supposed to do but this is a common feature of modern economics:  upside-down results followed by lots of head scratching.

This may all be feigned, of course.  It seems to me that the (probably unconscious, or semi-conscious) purpose of the central bank is to prop up the banking system for the benefit of the financial and government sectors, even if it does depress the real economy.

So, you know, Japan

At the same time, one wonders if the Fed might just be able to pull it off.  We are, after all, in uncharted territory.  Japan doesn’t have the “world’s reserve currency” or, say, the world’s greatest nuclear arsenal.

I’m open to other ideas on all this.  Don’t seem to be many out there, though.


Filed under financial crisis

Stuck In Time (Updated)

You write a blog and wind up revealing things….about yourself.  Among other things.

Often inadvertently.

Over at Simple Justice, Scott Greenfield has one post about a phony curmudgeon – he being the genuine article, of course – followed quickly by another post in which he fights yesterday’s losing battle yet again.

It’s lawyers who need time for sabbaticals, not law professors.  And you couldn’t have a better example.

First the set-up:

There’s an adage, the only thing worse than a young fool is an old fool.  Age doesn’t make one wise. Learning from experience does, and one of the things one learns from experience is to appreciate new ideas.

SHG goes on, but damned if he isn’t fixated only on young fools:

Give the kids tummy rubs because it makes them feel better about themselves and doesn’t hurt their feelings.  There is an industry that provides seminars on how to do this…

Condescend much, Scott?

What’s pretty sweet about SHG’s trip to the keyboard this morning, though, is the swiftness with which he hands so much ammunition to the other side of the argument, with the old fool’s curmudgeon’s stock-in-trade – the war story:

Crossing a state highway patrol officer who had seized my client’s tractor-trailer filled with narcotics at the suppression hearing, he testified to something different than he wrote in his report.  The wheels turned as I carefully framed the question so he couldn’t weasel out of his hole, and closed the trap.  He responded:

Well, I couldn’t put that in the report because the judge wouldn’t like it.

Nailed. I had him.  Caught the cop dead in a lie*, and it doesn’t get any better than that.


The cop caught his client with a “tractor-trailer filled with narcotics”, but the important thing for SHG is that he is much, much more clever than the cop.

Lawyers have been besting cops in cross examination on such things for 50 years.  And the net result is always the same as in the very war story SHG tells:  suppression denied, no opinion, defendant convicted and, you know, off with his head.  The fruits of all this?  An incarceration rate that would have been unimaginable at the beginning of that 50 year period.  A justice system that has become increasingly honesty challenged, and not nearly so clever as it imagines itself to be, because you don’t have to be terribly clever if you can just ignore evidence and argument that gets in your way and do what you want anyhow.


You know what else would have been unimaginable 50 years ago?  All this lawyer prattle over search and seizure and suppression motions. 

In fact, you could make an argument that the sudden swelling of 4th amendment tripwires for law enforcement in the 1960’s, on the one hand; and the cascade of criminal prosecutions, convictions and incarcerations in the time since, on the other – are related.  Causally connected, even.  Of course it also just might be that you could make that argument because….it’s valid.

I’m not the only one who has had that thought.

In other words, you could argue that the “due process revolution” of the Warren Court era has been a dismal failure, and that we have a lot of re-thinking to do, and that what is most needed is fresh blood and youthful enthusiasm.  In fact, we here at Lawyers on Strike argue exactly that.  Sometimes.

But then we’re not self-styled curmudgeons:  habitually re-living our glorious failures and faulting the young for not following in our footsteps.

As someone I know says:  error recognition is a pre-requisite to error correction. 


*  I don’t know that that’s an entirely fair summary of the story.  Apparently the cop was at least telling the truth on the witness stand when he was under oath, right?

UpdateThis is a thoughtful response from SHG, although I have to question why, if he has read over here and wants to have a discussion about this or that he doesn’t just do so openly.

Parenthetically, and I assume also in response to this post, SHG notes an appellate opinion from 1992 where he prevailed on a suppression motion.  You know, 22 years ago.  If he’s using that as proof that suppression motions can be granted then I suppose I can cite a 1992 appellate opinion for the proposition that section 1983 actions in federal court on behalf of state prisoners can be won on summary judgment.

Either claim is wildly misleading, of course. 



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Wealth Distribution In The USA

This little study is pretty revealing, on a number of levels.

Speaking for myself,  you know, I’m not a wealth redistributionist.  If that’s a word.

Not as a matter of politics, anyway.

On the other hand, I thoroughly approve of, and have brought about on a number of occasions, wealth redistribution on an individual level, to remedy an individual injustice of some kind.   In a successful personal injury lawsuit, for example, money is taken from an insurance company and paid to an injured person to compensate for the injury.  In other situations you might have an employee wronged in some way by an employer and the employer pays to compensate.  Or you might have a breach of contract where the breacher is ordered to compensate the other party. 

In fact as you might have just gleaned, one of the primary functions of any justice system is to transfer wealth – from the wrongdoers to the wronged.

Now, you don’t necessarily have an imbalance of wealth in the social sense (and if you didn’t read the linked article, it contains proof that wealth in the United States is extremely imbalanced) solely, or even primarily, because the justice system is failing.  Or even at all.  There could be other reasons.

But it’s also true to say that an extreme imbalance in wealth distribution is consistent with a failing justice system.  I am not the only one who thinks so.  It would be legitimate to suspect, then, that a justice system is failing when there is an extreme imbalance of wealth.  The conclusion that the justice system is failing is made more likely if there are other indicators that the justice system has problems.  Do we have other indications of that in the US?

Are you f***ing kidding me?


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Filed under financial crisis, Judicial lying/cheating, wrongful convictions

A More Just World

This very large disagreement I have with many lawyers – not most, perhaps, but certainly many – about whether there is such a thing as justice and even if there is whether it matters or has anything to do with practicing law, has corollary disagreements that are as big.  And in some ways bigger.

Plainly, if justice is not an intelligible concept or is unknowable then doing anything to make the world more just is worse than a fool’s errand.  And if that’s the beginning and end of the discussion you never get to an equally or maybe more important problem afflicting our justice system:

How does one make the world more just?

This issue is more subtle, yet every bit as profound.  Institutional actors – that is, cops, prosecutors, judges (do I repeat myself?), insurance defense/big firm lawyers, banks and their lawyers – come to believe that justice is imposed by institutions upon individuals, because this is how they encounter it.  If indeed they do, that is.  Anyway, this leads to a belief, unconscious at first but more and more deeply felt as you go along, that justice is primarily an institutional responsibility.  This in turn leads to the corollary, an implicit belief that justice is not an individual responsibility.  This leads to more individual irresponsibility that in turn leads to more cases where institutions must impose justice on individuals.

Self-reinforcing loop, doncha know.

So once this mindset is fully in control the question of how to make the world more just is seen as an inquiry about grand, collective institutional action for the common good.

It doesn’t sound like there’s anything wrong with that, until you consider that justice was traditionally regarded as a virtue – indeed one of the four cardinal virtues – to be practiced by individuals. 

So to a traditionalist, then, the idea of justice being practiced by an institution by imposing it on individuals is incoherent nonsense.  You will have a just world to the extent individuals living in it practice justice, and injustice exactly the same way.  Thus again to a traditionalist, the world becomes more just by more people practicing justice, or practicing it more.  It’s a one-individual-at-a-time kind of thing.  It’s about personal conduct.

Where are we, then, in the legal profession?  We have one group – the institutional kind – who believe in justice but regard it as residing in institutional rules, power and force.  We have the other group that in the main claims there is no such thing as justice.  Both of these, from the traditional point of view, are utterly hopeless in achieving any semblance of justice in the world.

Should it surprise anyone, then, that injustice thrives and that the legal profession seems to facilitate it?

What is justice?

St. Augustine tied justice and the other cardinal virtues together.  They are all different aspects of love:

“For these four virtues (would that all felt their influence in their minds as they have their names in their mouths!), I should have no hesitation in defining them: that temperance is love giving itself entirely to that which is loved; fortitude is love readily bearing all things for the sake of the loved object; justice is love serving only the loved object, and therefore ruling rightly; prudence is love distinguishing with sagacity between what hinders it and what helps it.”


But we don’t have to get all squishy and Catholic.  You can find a pretty good summary of western thought about justice here.  It begins – and it is unarguably appropriate to begin exactly like this in discussing the concept of justice – with this sentence:

Justice is one of the most important moral and political concepts.


For a lawyer to maintain that there is no such thing as justice is perverse.  One could make a good argument that it’s disqualifying. 

On a traditional understanding, it’s the job of lawyers to make the world more just, one individual and case at a time.  You can’t join that great task if you deny that it’s even possible.

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Three Related Stories

With connections to problems in the criminal justice system, and specifically wrongful convictions.

First we have the New York Times reporting on Brooklyn’s “Conviction Review Unit”, which now has funding and 10 assistant district attorneys and a Harvard law professor consultant.  They are trying to figure out who that office has wrongfully convicted over the last, oh, 30 years.

Good for them.

Then, in what is really a bombshell news story that should be leading every major outlet, as they used to say, we learn from the very same New York Times that the very same Brooklyn District Attorney’s office was allegedly mired in some pretty heavy corruption reaching right to the top, both to the formerly widely respected and elected DA Charlie Hynes and to widely respected judges like Barry Kamins.

So, let’s get this straight:  the same office that succumbed to high level corruption reaching into the very judiciary it supposedly pleaded before, and that must have secured the wrongful convictions in the first place, is going to lead the effort to police itself and right its wrongs.  What, no one has ever heard of the fox guarding the henhouse?

But what bothers me so much more about the perspective on display in these articles is the vanishing criminal defense bar.  It would seem that the natural people to review criminal convictions to determine whether or not they were wrongful would be criminal defense lawyers, but the task has fallen to prosecuting attorneys and consulting law professors. 

Maybe they’ll do a good job, but I seem to remember the New York Attorney General set up some sort of conviction integrity unit a couple of years back that hasn’t been heard from since.  Although they do “meet regularly” under their “new chief”, who used to be a prosecutor of course.

But then there is this:

And criminal defense lawyers do not “desire justice.” We desire to win our client’s cause. That, and nothing else, is our highest calling. I would have thought you would know this by now.

A familiar refrain from the criminal defense bar.  Not a universally held belief, but widely held enough that no one is going to trust them to distinguish between wrongful convictions and just ones.  The latter being, to them, a theoretical as well as a practical impossibility, like an oxymoron.

Truth is, the criminal defense lawyer’s “calling” is a lot more nuanced than that.  Can a criminal defense lawyer incite or aid and abet prosecutorial misconduct in order to “win” his client’s cause?  There are many scenarios I can think of where this could be done. 

I think the answer is no.  Obviously.

What Greenfield and other CDL’s do is transplant the simple and unambiguous rule at the trial itself – that you do everything within the rules to win – to every aspect of representing a criminal defendant, including plea negotiations with prosecutors.

If a prosecutor can’t trust that a CDL won’t mislead him – or worse – that will affect not just plea negotiations with one CDL but with every CDL, and every CDL’s clients. 

It’s the CDL destructive contribution to systemic dysfunction, and it’s every bit as stubbornly adhered to by some as the exonerations from obviously wrongful convictions are resisted by prosecutors and attorneys general.

There’s something very out of whack when there’s a national awakening about wrongful convictions and independent criminal defense lawyers are conspicuously absent from the discussions.  To some extent it is a self-inflicted wound.  Ugh.

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