Daily Archives: February 18, 2020

Harmless Error – Not

You get Bagley expounding on Agurs opining that a “Napue” violation – which really should be termed a “Mooney” or “Pyle” violation – and this is what you wind up with in a District Court in 2020, in this case the District of Maryland:

However, a Napue violation is evaluated under the harmless-error standard, Bagley, 473 U.S. at 679 n.9, while a Brady violation is not; instead, an alleged Brady violation only requires reversal if a reasonable probability exists that, had undisclosed evidence been disclosed to the defense, the result of the proceeding would have been different, id. at 680-81, 682.

A Mooney violation, which would of course include the erroneously termed “Napue” violation, has never been explicitly subject to any limitation at all, including a “harmless error” analysis, and neither Bagley nor Agurs can change that because they were both Brady cases and everything they said about the Mooney line of cases was dicta, and the portion of the Bagley opinion cited in the District of Maryland wasn’t even part of the opinion of the SCOTUS!

In fact, as we pointed out in an amicus brief to the SCOTUS last year (Actually, that link is to a motion for “divided argument” but let’s not get too technical, just look at paragraphs 6 and following after you click the link, which we notice few of you ever do!), the better argument is that the SCOTUS already implicitly held that deliberate lying and cheating by police and prosecutors would result in automatic dismissal and/or reversal.  The harmless constitutional error doctrine was established for the first time in Chapman v. California.  Chapman was decided virtually simultaneously with Miller v. Pate, which was the last case strictly in the Mooney line and which contained this otherwise kind of inexplicable language:

More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. Mooney v. Holohan, 294 U. S. 103. There has been no deviation from that established principle. Napue v. Illinois, 360 U. S. 264Pyle v. Kansas, 317 U. S. 213; cf. Alcorta v. Texas, 355 U. S. 28. There can be no retreat from that principle here.

Why was the question of a “retreat from that principle” even on the table?  Because Chapman was the very next case in the US reports (386 US 1 v. 386 US 18), and held that some constitutional errors can be subject to harmless error analysis.  Meaning that they might not result in a reversal on appeal.

Mooney violations always, always require reversal.  And dismissal.

But the Rehnquist SCOTUS, ignoring Miller v. Pate, beat a retreat from that principle for years, although never quite succeeding.

Obviously, the SCOTUS is going to have to be clarify the law here at some point.  We hope soon, but we have already been waiting so long.

Taking up the second question on this petition might help.

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Filed under epistemology, wrongful convictions

Two “News” Items

…from this morning caught our attention here at LoS.

First, although we have been somewhat aware of the CIA’s MK Ultra debacle we had never seen it associated with the notorious Whitey BulgerCharles Manson, yes.

It raises the question of just how many poor souls had their lives ruined in what should have been recognized even at the time as a highly unethical – indeed criminal – experiment on unwitting human beings.

To be fair, the CIA had long since bought the argument that a well placed assassination that prevented a major armed conflict was justifiable.  And it’s almost as if the MK Ultra program was some kind of open secret, even as it was going on.

But never mind.

The other item was this.  We’re not big fans of Alan Dershowitz. But it’s good to point out double standards, and this is a double standard that has already gone way too far:  the impeachment of Trump was itself an example of a sui generis hostility that beltway denizens would never invoke on any other president.

But there’s something more basic that should be discussed in this context.  We are actually of the opinion that the president is always entitled to “interfere” with the DOJ in favor of leniency, because at the end of the day he has the power to short circuit any prosecution by pardoning the defendant; what would amount to an “abuse of power” is doing the opposite:  that is, interfering in favor of prosecuting someone.  That’s basically turning the DOJ into a stasi-like secret police force.

Nobody seems to be recognizing this distinction to be as crucial and dispositive as it actually is.  Or should be.  Except we here at LoS.  This represents yet another example of the lack of clarity of thought, and a failure of intellectual discipline.

On their part, obviously.  Not ours, of course.


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Filed under epistemology, Media incompetence/bias