Two Important Things (Updated)

First, the Department of Justice has come clean about one aspect of the “forensic science” they have advocated:  it was almost complete bullshit.

We assume they won’t be using hair analysis anymore, but you never know.  It’s nice that they have come out publicly and admitted this.

Well, maybe ‘nice’ isn’t quite the right word.  In any case, we congratulate them on their candor and hope for the exoneration of those wrongly convicted with the bad science – that is, science that apparently wasn’t science.

Second – and this is the far more significant of the two, even though the first is pretty staggering – we present the SCOTUS blog’s “petition of the day” from yesterday, Moody v. Tatum.

Where to begin?

Let’s start with SCOTUS inside baseball.  Out of the many thousands of petitions for certiorari filed in the Supreme Court (SCOTUS), SCOTUS blog selects a few and designates them “Petition of the day” on the theory that there’s a good chance the SCOTUS will grant review.

What are the criteria for assessing such a likelihood?

Probably the first is that it’s the government, state or federal, that is seeking review.  The government, as we have often pointed out, is a favored litigant, and nowhere is that made more explicit than at the very top – the Supreme Court of the United States.

In Moody v. Tatum, the government is seeking review.  So, check that box and put that petition in the preferred stack.

Then, as you can see from the link, the government’s petition was filed February 17th and a few days later the Respondent (that is, the disfavored litigant) waived her right to respond.  In SCOTUS speak, that is a diss.  The Respondent is saying that it isn’t worth her time to respond, and of course if it isn’t worth her time how could it be worth the SCOTUS’ time to take it up?

See how this works?

But at this stage, anyway, someone at the SCOTUS is not having any of that.  So a few days after that, the SCOTUS requests a response from the Respondent.  Only takes one justice to do that, remember.  There could be more, but we know for sure there’s at least one.

So on April 7th a response is filed, and now the Respondent is represented by Mayer Brown, which is one of those firms.  We don’t like them especially, though we don’t dislike them either.  In any case, from here there is a two week lull, upon which time the petition will be “DISTRIBUTED” for another conference date, like it was on March 4th for the March 20th conference date.

In other words, on April 21st the petition will probably distributed for one of the following conference dates.  Probably not April 24th (too soon), so looking at May it could be the 1st, the 14th, the 21st or the 28th.  There’s a good chance it will be one of the last three.  In the meantime, the government petitioner (Moody) can reply to the Respondent’s response and try harder to make the SCOTUS grant review.

Okay.  So what is this whole Moody v. Tatum Petition about?

In a word – and we can do this here at Lawyers on Strike because this is our issue – Moody v. Tatum is about this.  And if we wanted to elaborate, we could add that it’s about this.

Now if you want to continue you really need to click the links, because we’re not going to repeat ourselves.  But we will review in a summary fashion, although unless you read the links or are already familiar with them you won’t understand our summary review either.  So click the links of you are interested.  And you should be interested, whether you are a lawyer or not, because this is important.

There are two aspects to the conflation of Brady and Mooney, and they both stem from treating Brady as if it had limited Mooney instead of having extended it.

The first is that Brady was about prosecutor disclosure of exculpatory evidence to the defense by the time of trial.  Everyone kind of agrees that Brady material should be disclosed as soon as possible, but courts have been reluctant to find that there’s an actual violation of the Brady rule unless the disclosure didn’t happen by the time of trial.

This is a quandary for Brady issues but not for Mooney issues, although the SCOTUS really has to clear that up, as the Pottawattamie case demonstrated in 2009.

And this issue is presented quite plainly by the Moody v. Tatum petition.  For that reason alone, the SCOTUS should take it up.

The second aspect of the Brady-Mooney conflation is the “materiality” requirement.  Under Brady, assuming there is a violation, a court is supposed to go on to determine whether the evidence the prosecutor failed to disclose is material – that is, would the evidence have changed the outcome?  If it would have, then the poor schmuck disfavored litigant criminal defendant gets a do-over.  But if it wasn’t “material”, then it’s no harm no foul.

How does the reviewing court know whether the evidence would have made a difference?

Let’s not go there right now because for present purposes it’s not important.  What is important is that this whole “materiality” inquiry doesn’t apply to a Mooney violation, because in a Mooney violation the prosecutor deliberately suppresses (hides) or fabricates evidence.  When it’s deliberate, the question of whether it’s material evidence doesn’t arise, having been conceded in advance since, if it wasn’t ‘material’ evidence why did you go to all the trouble of deliberately hiding it or fabricating it?

Judicial estoppel, doncha know.  The courts have to protect themselves from being mocked by those arguing before them.  Especially the SCOTUS.  Not that they’ve done a very good job when one of those arguing before them is a government of some kind.

Anyway, the SCOTUS should take up Moody v. Tatum, because it succinctly and fairly presents the first aspect and the SCOTUS can clear this up.  The poor schmuck in Moody was held in jail on charges for 27 months.  The case never went to trial, because towards the end of that 27 month period the powers that be learned that the charges were unwarranted, but they also learned that they should have learned that much earlier, except that a couple of cops deliberately lied about evidence that fairly exonerated the poor schmuck.

So after he’s released the poor schmuck sues and wins a lot of money, and now the State wants the SCOTUS to take it all away because…..under Brady there’s no violation of his rights when there has been no trial and since he wasn’t tried it doesn’t matter that the cops lied.

The State, of course, should be embarrassed to make that argument and they should be both excoriated and eviscerated for doing so.  By the SCOTUS would be nice, but of course they can’t do that if they don’t take up the case in the first place.

As an aside:  the poor schmuck, having won his judgment, doesn’t want the SCOTUS to take the case up because he has nothing to gain, and if you read the response from Mayer Brown the gist of it is that the SCOTUS shouldn’t take it up.  But if the SCOTUS does take it up, the poor schmuck will still win, because that’s the only reason the SCOTUS would take it up.

At least we hope so.  Because someone up there has been reading over here, and the guys at Mayer Brown have been, too.  That, after all, is why the Mayer Brown brief for the poor schmuck cites Mooney, Pyle and Napue:  because we have cited those same three cases abundantly over here.

And also because if Mayer Brown had done the work on their own, instead of just piggy backing on us, they would have cited this case, because it makes a critical point that Mooney, Pyle and Napue don’t that is especially relevant to their argument.

It’s okay.  I’m on their side, although I hope the SCOTUS takes this one up.  And if they can’t figure out why that extra case is relevant (I’m sure they can, but I’m not always absolutely right about everything) they can contact me privately this time.

I’ll respond.

Update:  “Distributed” for the conference of May 14th.  Right on schedule.  We learn the result either that day or when the order list comes out on May 17th.  Could be granted, denied, or relisted.  Interesting, at least to us.



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6 responses to “Two Important Things (Updated)

  1. Yeah, that was a disturbing report on the FBI. And silly me, I thought the FBI might one day help Jodi! That’s just another reason it’s doubtful they would. Unless of course there is a rogue agent somewhere who still believes in real justice, not the tainted justice in Arizona.


  2. We’ve stated, for many years, decisions in appeals courts are subject to “who you are” (instead of the crux of the matter) – in most cases.

    Reuters did a piece in December 2014 – with empirical evidence.

    At America’s court of last resort, a handful of lawyers now dominates the docket

    WASHINGTON – The marble façade of the U.S. Supreme Court building proclaims a high ideal: “Equal Justice Under Law.”

    But inside, an elite cadre of lawyers has emerged as first among equals, giving their clients a disproportionate chance to influence the law of the land.


  3. Oh – by the way – the cadre of lawyers/firms that have a visible edge chance to be granted going forward and influence law of the land;

    they be counsels for major corporate clients.

    N’est-ce pas!


  4. You should, counselor — consider sitting on the bench….

    just sayin……

    it’s a waste to baste in knowledge vastly not applicated

    where it’s needed most…..


  5. Min

    As a long time viewer of TV shows featuring the application of forensic science, I have always had questions about evidence of “matches”. The police have learned to use the scientific phrase, “is consistent with”, in their testimony, but we all know that juries have a confirmation bias — not to mention prosecutors. If I were advising defense lawyers, I would tell them to ask about numbers. For instance, “In this state, how many people have hairs that would be consistent with the hairs found at the crime scene?” Or, “In this state, how many wrenches are there that would produce the same or similar markings?” Often, because the result is not really scientific, the correct answer would be, “I don’t know.”

    BTW, even when the evidence is quite good, so that, say, 1/10 of 1% of the population would have a match, that can still be a lot of people. In metropolis where the average number of people in the city is around 2,500,000, that means that there are around 2,500 people who could have left the evidence instead of the defendant.


    • Min

      Sorry, I had in mind a metropolis with a daytime population of around 25,000,000. Then around 25,000 people could have left the evidence.


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