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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