Monthly Archives: January 2020

We Should Take Our Own Advice

From Pyle v. Kansas (1942):

These documents elaborate the general charges of the application, and specifically allege that “one Truman Reynolds was coerced and threatened by the State to testify falsely against the petitioner and that said testimony did harm to the petitioner’s defense”; that “one Lacy Cunningham who had been previously committed to a mental institution was threatened with prosecution if he did not testify for the State”; that the testimony of one Roy Riley, material to petitioner’s defense, “was repressed under threat and coercion by the State”; that Mrs. Roy Riley and Mrs. Thelma Richardson were intimidated and their testimony suppressed…These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Mooney v. Holohan, 294 U.S. 103.

But then you get Judge Easterbrook writing in Buckley v. Fitzsimmons (1994):

Coercing witnesses to speak, rather than loosening their tongues by promises of reward, is a genuine constitutional wrong, but the persons aggrieved would be Cruz and Hernandez rather than Buckley. Overbearing tactics violate the right of the person being interrogated to be free from coercion. Buckley cannot complain that the prosecutors may have twisted Cruz’s arm, any more than he can collect damages because they failed to read Cruz Miranda warnings (see 919 F.2d at 1244) or searched Cruz’s house without a warrant.

We called this argument “unserious”.  It is that, of course.  But more importantly, it’s wrong on the law, since the 7th circuit in 1994 is bound by Supreme Court precedent from 1942.  Obviously.  And like another issue (prosecutorial inconsistency) that has become oh-so-difficult in our post-modern justice system, that is made plain when you read Pyle v. Kansas.

We should have done that ourselves.  But surely our federal appellate judges – including SCOTUS Justices – should as well.



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Incoherence Update

When you “reason” only so as to reach a desired result, there is trouble down the line.  You’ll wind up living with your reasoning, that this time produces the wrong result.

So Cole v. Carson has been kicking around for years now.  Up to the SCOTUS, back to the 5th circuit, to a three judge panel, to an en banc rehearing, and now up to the SCOTUS again.  Where it doesn’t seem to be getting much traction, this time.

We bring this up because there is mischief afoot.  The prosecutor groups have filed an amicus brief (just look how many!), but they are not so much the problem as the Petitioner’s brief, and specifically the second question presented in that brief.

We can’t blame them for presenting that question.  And the SCOTUS shouldn’t either.  Here’s the question:

Does a police officer who inaccurately reports his perceptions of events during a dynamic shooting encounter violate clearly established rights under the Fourteenth Amendment?

Well, that’s not really what is being alleged.  What’s being alleged is not that the police officer was “inaccurate”; rather, it’s that the police officer deliberately lied about the events in order to cover up the fact that his fellow officers unjustifiably fired on the Plaintiff, causing his catastrophic injuries.  Partly causing them, anyway.  Because the Plaintiff was apparently suicidal and also shot himself in the head.

But never mind.

The point is that under the 4th amendment the distinction we just made doesn’t matter.  The officer’s intentions, his “scienter”, doesn’t matter under a 4th amendment analysis.  It would matter under a 14th amendment-due process analysis.

So what’s going on here?

Well, the Petitioners don’t say a lot about it.  There are basically two paragraphs in the petition about this.  They’re loaded paragraphs, though:

Manuel, 137 S. Ct. at 920-21, establishes the claim
against Officer Carson must be assessed under the Fourth
Amendment. As far back as 1994, five Justices in two
opinions remitted to the Fourth Amendment such claims
that a person had been held on unfounded charges by
a policeman. Manuel, 137 S. Ct. at 918 (citing Albright
v. Oliver, 510 U.S. 266, 271-273 (1994). Probable cause
existed to arrest Cole for unlawfully carrying a weapon,
a crime Cole confessed to committing. (App. 141a). The
Fifth Circuit, therefore, appropriately dismissed the
Fourth Amendment claim against Officer Carson in light
of Devenpeck v. Alford, 543 U.S. 146, 153-154, 125 S. Ct.
588 (2004).

Officer Carson could not have known in 2010, the
Fifth Circuit would years later enact a new, Fourteenth
Amendment cause of action exposing him to liability on
mere allegations he misstated the facts of a dynamic event.
(App. 146a, 173a). Manuel and Albright demonstrate the
claim against Officer Carson is not cognizable under the
Fourteenth Amendment, but, even if uncertainty exists,
as Fifth Circuit Judge Jones suggested comparing
Manuel with McDonough v. Smith, 139 S. Ct. 2149 (2019)
(App.29a), with such uncertainty even today, the right
involved is not beyond debate and is not “sufficiently clear
that every reasonable official would have understood what
he was doing violates that right.” See Stanton v. Sims, 134
S. Ct. 3, 7 (2013) (discussing that reviewing Judges could
not even agree on the issue).

Judge Jones’ footnote?  We discussed that a little bit here, not that long ago.

Well, how about this argument that “five Justices in two opinions remitted to the Fourth Amendment such claims that a person had been held on unfounded charges by a policeman”, citing to Albright v. Oliver, one of the sources of all this incoherence?

The argument itself incorporates a faulty proposition and fails to cite the relevant case, which is Marks v. United States.  The relevant inquiry is not simply the number of justices who agree upon a specific proposition in resolving a case by plurality opinion; rather it is whether that proposition disposes of the case on the narrowest grounds:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds…

But the argument is wrong for a reason even more fundamental.  What was the result in Albright?  SCOTUS ruled that he didn’t have a due process claim, not that he had a 4th amendment claim, which he refused to even argue.  So that latter problem didn’t arise until 2017’s Manuel v. City of Joliet – 23 years later – where SCOTUS held that Manuel in fact had a 4th amendment claim.  But as we noted at the time, and elsewhere since, Manuel refused to argue that he had a due process claim, exactly the reverse of Albright’s position.

So now we see the argument, in the latest SCOTUS iteration of Cole v. Carson, that we can’t sue a police officer who deliberately lies and cheats to bring about a criminal prosecution under the 4th amendment because his intentions are irrelevant so long as there is an objective basis to find his actions “reasonable”; and we can’t sue him under the due process clause either – because “qualified immunity” – because it’s not clear that that, in and of itself, is a violation of anyone’s due process rights.

What about Mooney v. Holohan and its progeny? The argument from here will have to be that those cases apply only where there has been a conviction.  In 1994’s Albright, and in 2017’s Manuel, and in 2018’s McDonough there had been no convictions.

What’s wrong with that argument?  A lot.

We can’t really improve upon Justice Stevens’ commentary in that regard:

In my opinion, the formal commencement of a criminal proceeding is quintessentially this type of state action. The initiation of a criminal prosecution, regardless of whether it prompts an arrest, immediately produces “a wrenching disruption of everyday life.” Every prosecution, like every arrest, “is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”

Of course Justice Stevens was writing in dissent.

We would like to see the nation’s police and prosecutors make their argument more forthrightly.  Argue to the SCOTUS that lying and cheating by police and prosecutors do not matter if there is no conviction, that is.

In other words, defend official lying and cheating.

It’s the era of Trump, after all.


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A “Sexual Relationship”?

We don’t know whether this falls under the category of incurably obtuse, transcendently sad, or both.

We recently came across the case of Williams v. Pennsylvania that got taken up and decided by the SCOTUS in 2016.  The issue in the case is when due process requires the recusal of a judge.  The issue for LoS this morning is the factual background, and maybe the distortion of our courts and their reasoning by anti-death penalty activists.

Then 18 year old Terrance Williams was convicted of murdering a then 56 year old man named Amos Norwood a very long time ago, in 1984.  He had an accomplice named Marc Draper.  The story was that Norwood had offered the two young men a ride, but they diverted to a cemetery and Norwood was beaten to death with a tire iron.

In a familiar turn of events Draper cut a deal, Williams did not, and Williams was convicted at trial and sentenced to death.

There were two “aggravating factors” leading to the death penalty.  One was that the murder of Norwood occurred during the course of a robbery.  We don’t know why that should be an “aggravating factor”, since robbery is a less serious crime than murder, but never mind.  The second aggravating factor was that Williams had committed another murder when he was 17 and otherwise had a violent history.

The robbery story was testified to by Draper.  But many years later he recanted and said that the real reason for killing Norwood was that Norwood liked young boys, as they say, and that Williams had been one of those boys.  That part doesn’t seem to be disputed.  Nor is it disputed, apparently, that the prosecutor who secured Williams’ conviction and death penalty knew that the robbery story was false and instructed Draper to testify to it so she could get the robbery-as-aggravating-factor thing going.


So what gets all this to the SCOTUS is that based on Draper’s recantation, among other things, the Pennsylvania trial court vacated the now very old death sentence in a post-conviction proceeding begun in 2012, but the Pennsylvania Supreme Court vacated the vacation and reinstated the death sentence.  One of the judges on the Pennsylvania Supreme Court who voted for this – Hon. Ronald Castille – had been the elected District Attorney in Philadelphia at the time or Williams’ conviction and had signed off on seeking the death penalty.

But we’re not so much interested in that.  We’re more interested in this:  the SCOTUS repeatedly refers to the new information from Draper as revealing that there was a “sexual relationship” between Williams and Norwood (the victim).

Really, SCOTUS?  After all the molestation and pedophilia scandals of the past 20 years and the #MeToo movement and God knows what else, how is it possible for people who supposedly have a clue to characterize what Draper was now describing that way?

For his part, Ronald Castille – the former Philadelphia DA, now judge sitting on the Pennsylvania Supreme Court – authored a concurring opinion in which he seemed to be most concerned that the 2012 post-conviction proceeding was the product of anti-death penalty activist attorneys who can’t be trusted.

Maybe that’s true.  Maybe they can’t be trusted.  But see here.  The story hangs together a lot better with Draper’s recantation.  The 56 year old Norwood just happened to give the young Draper and Williams – who were not related to him – a ride out of kindness?  This is what the District Attorney argued to the jury back in 1984, but it’s not likely.  More likely he was a creep, and Williams’ defense could have argued that Norwood got what was coming to him.  Or at least something along those lines, because we don’t go for killing around here at LoS, even of child molesting creeps.

Another tidbit capturing our interest.  Williams had taken the witness stand at his trial and claimed – quite improbably, we are sure – not to have had any involvement in the killing of Norwood at all.  Never said anything about Norwood having molested him.

With his life on the line, isn’t it impossible for Williams not to have brought that up?

No.  Not at all.  In fact it’s typical.  In fact we know that now.  We know that molestation victims don’t talk about what happened to them, and often deny it, for years.  Maybe forever, taking the truth to their graves.  In New York the legislature just abolished the statute of limitations for victims seeking compensation for such things and out they have come, by the hundreds, often older people claiming molestation 50 years or more ago.

That aside, we’re not sure that 50 year old molestation claims by a plaintiff or complaining witness should be heard.  There’s a problem with an accused being able to defend himself.

But of course that was not the issue in Williams’ case.  No one was looking to punish a perpetrator of sexual abuse.  The issue was whether a victim of sexual abuse should be given the death penalty for murdering his abuser.  While not to the point of certainty, the record supports the idea that this is what occurred plainly enough that Williams’ death sentence should have been set aside many years ago.

Just parenthetically, though, it’s worth noting how former-District-Attorney-now Pennsylvania-Supreme-Court-Judge Castille in fact ruled, assuming the truth of all that:

According to the Pennsylvania Supreme Court, Williams failed to make the threshold showing necessary to overcome the time bar because there was “abundant evidence” that Williams “knew of Norwood’s homosexuality and conduct with teenage boys well before trial, sufficient to present [Norwood] as unsympathetic before the jury.” ___ Pa., at ___, 105 A.3d, at 1241. The court pointed out that Williams was, of course, personally aware of Norwood’s abuse and could have raised the issue at trial, but instead chose to disclaim having ever met Norwood. The court also noted that Williams had raised similar claims of abuse in his first state habeas proceeding. Ibid. Chief Justice Castille concurred separately, criticizing the lower court for failing to dismiss Williams’s petition as “timebarred and frivolous.” Id., at ___, 105 A.3d, at 1245.

Seems like there was an argument that it was time-barred.  But “frivolous”?

And assuming the truth of it all, we’re going to kill him, Judge Castille?

The Williams case is Exhibit AA in the case for barring prosecutors from ever taking the bench.  Ugh.

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Presumption This, Presumption That

In theory, when you’re a criminal defendant you get the “presumption of innocence”.  When you’re the prosecuting government, you get the presumption of regularity.

Everyone knows what the presumption of innocence is.  Nobody believes it, but everyone knows what it is and pays lip service to it.

But what about the presumption of regularity?

Here’s a little discussion from some law professor or other.  The case referenced for the most recent and extensive SCOTUS discussion of the idea is United States v. Armstrong.  Have a read of that 1996 case.  Bring a strong stomach.

1996, like the rest of the decade, a really good year for prosecutors at the SCOTUS.  We were at the pinnacle of the Rehnquist SCOTUS, and Armstrong is instructive.  It involves the racial disparity of federal criminal prosecutions directed at the “crack” epidemic.  Without getting into it too deeply, the result was that SCOTUS basically said that this was an issue that couldn’t be litigated by a criminal defendant because presumption of regularity.  Only Justice Stevens dissented.

Maybe we could call this admirable judicial restraint.  The history here is that as a nation we eventually addressed the “crack cocaine” racial sentencing disparity legislatively.  Twenty-two years after Armstrong, we finally got around to granting some relief to those who had been disproportionately sentenced under the now repealed law, or at least held out the possibility of relief.

On the other hand, maybe we could call this shameful judicial abdication.  Because presumption of regularity which, like all presumptions, is a legal fiction.

Here’s what happens when one fiction runs up against another:  we do some “balancing”.

We think the required threshold—a credible showing of different treatment of similarly situated persons—adequately balances the Government’s interest in vigorous prosecution and the defendant’s interest in avoiding selective prosecution.

Can the SCOTUS competently determine when a “credible showing” has been made? No. They have no experience or aptitude for weighing or evaluating evidence, and they invariably mess it up, defaulting to whatever ideological bias they bring with them.  We put it this way a few years ago:

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.

But maybe the more interesting question here is:  Are the presumptions of regularity and innocence mutually exclusive in a criminal prosecution?

The presumption of regularity, as articulated by the SCOTUS in 1926:

The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.

The presumption of innocence, as articulated by the SCOTUS in 1895, drawing heavily on Roman Law, of all things:

… there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:

“Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day.” Code, L. IV, T. XX, 1, l. 25.

“In all cases of doubt, the most merciful construction of facts should be preferred.” Dig. L. L, Tit. XVII, l. 56.

“In criminal cases the milder construction shall always be preserved.” Dig. L. L, Tit. XVII, l. 155, s. 2.

“In cases of doubt it is no less just than it is safe to adopt the milder construction.” Dig. L. L, Tit. XVII, l. 192, s. 1.


But under the presumption of regularity we do not start with a doubt.  Au contraire, we presume that the executive has ensured that the charges it has brought have been “…proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day.”

Perhaps this is an incoherence that lies at the root of the system dysfunction we have so often lamented.  It is not possible to have both presumptions in our minds at the same time.  Of course we don’t, as we took some trouble to point out a few years back:

“Legal innocence” is predicated upon the “presumption of innocence”, a hallowed myth of the Anglo-American criminal justice system.  The phrase does not appear in the constitution, but it’s regularly bandied about at criminal trials, where juries are instructed about it.

It’s like a lot of things juries are instructed about.  They often don’t believe what they’re told, and neither does anyone else, and no one expects them to.  The “presumption of innocence” is certainly one such, a pious bromide that we use to pat ourselves on the back for our supposed fairness.  In fact, the accused is presumed by everyone to be guilty.  Everyone knows this.



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