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. 




Filed under wrongful convictions

4 responses to “Stuck In Time (Updated)

  1. Not quite an old curmudgeon

    “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.

    That’s quite a leap. How do you reach that conclusion? Because even if we were to agree that a wholesale examination of the Warren Court Era rulings is required, why would such an examination necessitatefresh “blood and youthful enthusiasm.”


    • Yes, in general this is a fair objection.

      On the other hand, it does kind of ignore the implicit argument the post is making. I mean, SHG’s posts were used as anecdotal evidence that the old guys are stuck in a time warp and will go to their graves complaining that suppression motions are never granted even when they should be, and seem unable to comprehend the point that the same pathologies that began there have spilled over into other practices of police and courts, undermining the whole enterprise.

      Then again that sentence was so wordy maybe I shouldn’t blame SHG or anyone else for not getting the point. Ugh.


  2. Not quite an old curmudgeon

    I’m not trying to criticize, I just wanted you to clarify your position. The unalterable truth is that criminal/state intervention courtrooms are places where the clean theories of law reviews and the bright eyed enthusiasm of young lawyers collide into the cliff wall of entropy and reality. To do your job, to zealously andveffectively advocate for your client you must deal with cold, hard reality. And the older I get, the more I realize most of those old bastards know their stuff. I try and learn from them because I can gain education and insight or I can learn from experience. And education is always less painful than experience. Some are jaded and no longer care. To those, let them serve as examples of how not to be. So channel that enthusiasm. Pick up your rifle and get in the trenches. Its dirty, ugly and downright discouraging some days, but you can do good here. Just try and learn from those around you so you don’t get killed.


    • Fear not. I’ve done more than my share of dealing with “cold, hard reality” and shrugging off the shell shock of trench lawyering.

      The difference between me and SHG is that I am not wedded to any aspect of how things have historically (historically in this case meaning during my practicing years and his, which probably aren’t too much different) been done. It’s a completely broken system requiring a complete overhaul, with nothing off the table. Exhorting judges to take the “due process revolution” cases seriously for a change is so far from adequately addressing the system’s problems that it’s counter-productive to even spend time discussing it.

      And the problem is not the police. In fact, what little integrity the system can claim is probably because the police in the US – so far, at least, although unless the problems in the system overseeing them are effectively addressed not for long – are generally good guys and not prone to abusing the power and authority they have. Indeed as a group prosecutors and judges abuse their power and authority with far more frequency that the police abuse theirs.

      I’ve sometimes described the problem this way: the police are right about 75-80% of the time and the system corrects virtually none of the remaining 20-25%, which based on my admittedly anecdotal experience is roughly the same rate as wrongful convictions.

      But then SHG has a really good post up today referencing a law review article by a federal appeals court judge out of the infamous 4th circuit. It’s really good because anyone – and I mean anyone – with a modicum of intelligence and even the smallest experience with the system knows that the Judge, Harvie Wilkinson, is so divorced from reality that he ought to resign or at least take a few years and do some criminal defense work. It is not an exaggeration to say that the man is warped, and in the position he holds more dangerous to this country than any of the criminals he abhors.

      In fact, much more than faulty eyewitness testimony, coerced confessions and the usual wrongful conviction littany, Judge Wilkinson’s law review article reveals something much closer to the real problem: “balancing” society’s interest in punishing criminals with ensuring that the innocent are not punished bespeaks an appalling false equivalence bewteen the two, coming from a judge. “Society’s” interests in punishing criminals is the responsibility of the executive and legislative branches; ensuring the innocent do not suffer as a result is the judiciary’s job, and only the judiciary’s job. Judge Wilkinson’s opinion amounts to at least a partial abdication of his primary responsibility in advance.

      To tell you the truth, the strike idea I started this blog with is the only suggestion I’ve heard that has even the remotest chance of effectively confronting a Judge Wilkinson. The depth and breadth of his ignorance preclude reasoned discussion or argument with him.

      And as if on cue, here’s an article I came across today in connection with an unrelated matter.

      Update: Seriously, Judge Wilkins, what drivel:

      As early as 1969, the singular focus on wrongful convictions in the indictment of our criminal justice system had become so insistent that it led Justice Black to quip that “[i]t is seemingly becoming more and more difficult to gain acceptance for the proposition that punishment of the guilty is desirable.” In reality, “there is and must be a limit to our willingness to protect the innocent at the expense of public safety,” for as much as innocent defendants are horribly victimized by wrongful convictions, so too are innocent citizens victimized a second time by the failure to punish those who commit horrible crimes against them…Each of these concerns seeks to ward off deeply inhumane inflictions on innocent citizens at the hands of, or as a result of, the erroneous actions of the state.

      Good God, where to begin?

      Last first, I guess. If what Judge Wilkins means is that the victims of crime are victimized again by a “wrongful acquittal” because they have been deprived of their desire for retribution by the State against their victimizer, he has adopted wholesale the “victims rights” ideology. While this ideology has become prevalent in some places and in some contexts, it is an aberrant innovation, profoundly contrary to the traditions of Anglo-American jurisprudence. It’s a little surprising to see a supposedly conservative judge talking like this.

      On the other hand, if what he means is that a wrongful acquittal frees a criminal to victimize again, that is no proper concern of a judge, and it’s bizarre to believe that even if a wrongfully acquitted criminal does victimize someone else that it’s the fault of the judicial branch of government. If you want to blame the government at all it would the executive who is at fault.

      It’s so upsetting to read what some of these judges really think. In Wilkinson’s case it is even worse than I have imagined, and what I imagined is pretty bad.

      The presence of federal habeas review as a necessary backstop of last resort can hardly obscure the fact that the Bill of Rights writ large represents a system of criminal justice designed to emphasize trial and the heavy presumption of validity of the judgment rendered therein.

      Sure, there’s a lot about the trial in the Bill of Rights, but nothing that suggests any sort of presumption of validity. Where is he getting that? Notice, too, that in the context he’s describing – federal habeas collateral review – the ‘presumption’ he’s so fond of applies only to a judgment of conviction, not a judgment of accquittal.

      Finally, Judge Wilkins finishes with a flourish:

      At the end of the day, the debate between Blackstone and Bentham over the acceptable ratio of improper acquittals to wrongful convictions is not one on which the Constitution strictly takes sides. That is to say, the Constitution does not guarantee a particular result; it does not guarantee that an innocent person will never be convicted or that a guilty person will never be set free. It instead guarantees a process that is designed to promote accuracy. To the extent the Constitution does put a thumb on the scale in either direction, the processes afforded under the Bill of Rights and the due process roots of the reasonable-doubt standard suggest that it does so in favor of the accused. But one could also read the Constitution as recognizing that perfect accuracy is impossible, for instance, through its guarantee of a “speedy and public trial,” but not a “perfect” one.110 Perfection cannot be a constitutional guarantee because the process involves human juries, judges, and attorneys, and human nature is not perfect. Our goal should thus be to make the process as accurate as we can, relying especially on legislative reforms and improvements in technology to bring about greater accuracy. The Constitution encourages such efforts to minimize error, but it also encourages critics to bear in mind that perfect accuracy is, at bottom, not a part of its fundamental design.

      This is facile, and attacks a straw man. No one is arguing that the system has to be perfect, or that the Constitution guarantees perfection. Again, the false equivalence between “improper acquittals” and “wrongful convictions” is profoundly disturbing in a judge.

      Truthfully, Judge Wilkins is unfit, and so is any judge who thinks like him.


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