Daily Archives: August 5, 2017

SCOTUS Follies – Brady Edition – As The Worm Turners

Oh, dear.

This one is hard to explain.  And more than a little painful.

On June 22nd the SCOTUS came out with its decision on Turner v. United States.  The question presented is that often thorny one when it comes to “Brady” material:  is it material?  Which is not as nonsensical as it sounds because materiality in the second sense refers to relevance and making a difference in the outcome whereas in the former sense it just means “material” as in, you know, matter.  Stuff.

But we digress.

One is struck by the similarity of the facts here to the Central Park Jogger case, about which we have previously opined to the usual effect – which is to say none – but let’s not dwell on that either.

In Turner the prosecution had taken the position at trial that the poor deceased victim was killed by a savage group of youths in a random and senseless act of group violence. Like the “wilding” theory in the Central Park Jogger case.

And we say “theory” because in the Central Park Jogger case of course the whole “wilding” thing turned out to be a law enforcement fantasy that was nevertheless testified to by numerous “independent” witnesses not to mention confessed to by the alleged perpetrators.  Because here’s what happens:  the law enforcement fantasy narrative story takes hold not because it truly reflects reality (although it might) but because of an agenda harbored by one or more law enforcement official(s), or sometimes, let’s face it, just randomness. The “witnesses” tell the same false story because even though they are seemingly independent from law enforcement and from each other, they are not that at all:  they are mere props in the play these officials are writing and peddling, mouthpieces who say what the law enforcement officials want to hear them say, signing off on whatever it is that they can offer to support the story.

Then everyone is locked in, and the game is on.  Do the government’s witnesses hold up? They mostly do, no matter how unbelievable they are in other contexts.  After all, they have the power of government behind them.  How does the accused deal with that?  This is the central problem, and the central reality, of criminal defense.  To call it a nearly insurmountable difficulty is to understate the problem dramatically.

To anyone who has practiced law on the criminal defense side, or indeed other contexts where one is up against an official narrative, all of this is depressingly familiar, of course.

So what happens when later – almost always too late, in so many ways – an inconvenient fact emerges and we learn that the official narrative was entirely false?

In the Central Park Jogger case there was a single perpetrator who had done virtually the same thing to another victim in the same area, and after all the “wilding” youths were safely locked away in the New York prison system, this perpetrator confessed and it was all confirmed and, you know, a big oops but then again was anyone really at fault for all this since this is way much what we do most of the time when we have a victim and a desperate need to punish the perpetrator?  Or perpetrators, as the case may be.  The cops say it wasn’t their fault, they didn’t coerce anyone and the prosecutors say it’s not their fault, they just prosecuted the case the cops served up, like they’re supposed to.

But now we have the Turner case out of the SCOTUS, and now we know who’s at fault: it’s the SCOTUS.

If Turner wasn’t a SCOTUS opinion it would be suitable for satire, the mockery directed at its authors.  Alas, it is a SCOTUS opinion.  Thus it is no laughing matter.

One of the most high profile wrongful convictions of the last century – the convictions of the Central Park Jogger kids – seems to have completely escaped the attention of the Turner majority.  Indeed, even Justice Kagan’s dissent seems to think the majority’s position is arguable.

It isn’t.

Faced with a factual scenario remarkably similar to the Central Park Jogger case, the SCOTUS finds that the very same kind of information that resulted in the exoneration in that case wasn’t “material” enough to amount to a Brady violation in Turner; that is, information pointing to another single perpetrator (or maybe with one accomplice, certainly not the gang-rape scenario that convicted Turner and the others) would not have made a difference in the outcome of the trial, according to the Turner majority.

What is the “reasoning” leading to that improbable conclusion?  Just this:  the entire prosecution case depended on the “group attack theory” and there were numerous witnesses that told that story.  The “single perpetrator theory” had no realistic chance of overcoming this prosecution narrative because there were too many witnesses supporting it, all of whose testimony would have to be deemed false by a jury.

We are not making this up.  Here’s the money quote:

The witnesses may have differed on minor details, but virtually every witness to the crime itself agreed as to a main theme: that Fuller was killed by a large group of perpetrators…The problem for petitioners is that their current alternative theory would have had to persuade the jury that both Alston and Bennett falsely confessed to being active participants in a group attack that never occurred; that Yarborough falsely implicated himself in that group attack and, through coordinated effort or coincidence, gave a highly similar account of how it occurred; that Thomas, a disinterested witness who recognized petitioners when he happened upon the attack and heard Catlett refer to it later that night, wholly fabricated his story; that both Eleby and Jacobs likewise testified to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave the park to rob her.

Dear God help us.  Where to begin?

In the first place, Justice Kagan noted the obvious in dissent:  evidence tending to undercut the entire prosecution theory is “material” practically by definition.  The majority’s conclusion is to that extent basically an oxymoron.  Incoherent, in other words.

In the second place – for Chissakes – there’s a standard, or pattern, or model jury instruction – that is, a rote instruction given by the judge to the jury in every trial after the proof is closed, and pretty much given everywhere, so far as we know, both in state and federal courts, telling the jury specifically not to do exactly what the SCOTUS majority seems to think they have to do – namely, to decide what to believe based on the number of witnesses:

Do not make any decisions based only on the number of witnesses who testified. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves. Concentrate on that, not the numbers.

That’s part of Instruction No. 1.08, promulgated by the US Court of Appeals for the 6th circuit.

Any lawyer who has tried a few cases, or maybe even one, knows about this instruction. The only Justice on the Court who has ever tried a case, however, is Sotomayor.  And she did so only as a federal prosecutor which is, you know, better than never having tried a case at all.  But it’s also many orders of magnitude less difficult than defending the accused.  There’s really no comparison.

The significance of the Turner case, then, is not that the convicts get screwed over, because in appeals courts that outcome is so common as to be completely insignificant. Nor does Turner do much more to our Brady jurisprudence than perpetuate it, perhaps adding a bit more incoherence, but not enough to be really significant.  It’s too “fact-bound”, – bringing up the additional issue of why SCOTUS ever took it up to begin with – but never mind.

No, the real significance of the Turner case is this:  it is a stark illustration of the fact that our appellate judges are no longer “lawyers” in the sense that term has been historically understood.  Put simply, they have never tried a case representing an individual.  They are simply not competent to decide what Brady materiality means.  And that goes even for the Turner dissenters.

That is, this is not a case of bias, where the Justices might (indeed, do) have a built in preference for the government or institutional litigants generally.  Bias is a less serious problem because it can be overcome in this or that case.  Incompetence can’t be overcome except by acquiring competence.

Could the Justices acquire competence in the area?  No.  Realistically, this kind of competence can be acquired only before taking the bench, not after.   That is to say, the path to competence is the crucible of representing an accused person at trial.  Not one of our SCOTUS Justices has ever done that, and they can’t acquire that experience now, because sometimes in life opportunities pass you by and you can’t go back.

In other words, the SCOTUS justices are terminally, irremediably incompetent.  At least when it comes to understanding trials, which is probably the sine qua non of being a lawyer.

In reaching this conclusion we note in passing that we have some august company: Richard Posner of the 7th circuit, who apparently thinks that appellate judges should have at least presided over trials, something none of the SCOTUS Justices have ever done either.  But then again like prosecuting, merely “presiding” as a judge is simply not in the same category of difficulty as actually trying the case as a lawyer representing the disfavored litigant.

And Posner, of course, has never tried a case either.





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