Category Archives: Judicial lying/cheating

Sometimes by commission, usually by omission

Long v. Pfister

So, continuing our analysis from the last post.

Judge Easterbrook, the author of the majority opinion, was one of the early darlings of the Federalist Society, and by all accounts he’s “brilliant”.

We have to question that.  Seriously.  He may have been a smart boy at one time, but undergraduate work at the Kremlin on the Crum must have dulled his wits considerably.

And making matters worse he, like so many federal appeals court judges, has never tried a case.  And this is another situation where that matters.  Very much.

But let’s look closely at the facts presenting the issue.  Long is identified as the perp by a total of four witnesses.  Two recant prior to trial and never re-recant.  Irby recants but then re-recants and then at trial, called by the prosecution, falsely denies ever having recanted, and the prosecution knew that this testimony was false.

If you can follow all that.

The prosecution never admitted that her witness had lied and never corrected it, although it appears that the lies were amply rebutted.

Due process violation?

It appears to explicitly and squarely run afoul of Napue v. Illinois, but Judge Easterbrook says that’s not obvious to him or his colleagues in the majority.  He says that Napue was silent on such subsidiary questions as these:

• Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?

• Must the prosecutor correct false testimony when defense counsel already knows the truth?

• Does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?

• Does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?

 

The dissent points out that Napue itself substantially answers these questions, but the real issue here is:  where do these questions come from?  Why are they questions at all?

Let’s play the same game as Judge Easterbrook in a different setting.  The rule is, we don’t admit into evidence at criminal trials confessions that are coerced, and we confront a case where the cop held an unloaded gun to the head of the suspect and threatened to shoot him, and then after the confession apologized for his behavior.  So, following Judge Easterbrook’s methodology:

Is it really coercion when the gun isn’t actually loaded?

Is the coercion cured when the cop apologizes?

The cases forbidding the admission of coerced confessions haven’t spoken to these questions, so they haven’t been clearly resolved by the SCOTUS and so habeas relief must be denied.

See how easy that was?

The point being, any idiot can come up with stupid subsidiary “questions” that undercut any proposition of any kind.  This is limited only by the how dimwitted the imagination and how strong the desire to evade the result the proposition requires.  With Judge Easterbrook, we think “very” and “very” about covers both of those.

Long is an en banc opinion, decided October 20th, and reaching the opposite result from the three judge panel that decided the case earlier.  All of this is quite rare and enhances the likeliood of SCOTUS review.  The loser has 90 days from October 20th to file a cert petition.  That would seem likely to occur, since Kirkland & Ellis has taken up Paysun Long’s plight.

Well, we like the issue.  But we don’t like the vehicle.  And while we haven’t read the briefs – though we may do that soon, too – we don’t like the way the argument goes.

Napue, like all of the Mooney cases with the possible exception of Miller v. Pate,* is about deliberate government lying and cheating.  Not lying and cheating by a government witness in and of itself but rather the government’s participation in the lying and cheating and then “obtaining a conviction” thereby.  It’s a clear cut due process violation, and that’s one of those very few “bright-line” rules.  Or at least it has been.

Judges like Easterbrook have been trying to blur that line for a long time.  Sometimes, as Easterbrook is doing here, it’s by generating artificial questions that the SCOTUS hasn’t addressed (because they don’t occur to normal and intelligent people in the first place) and pretending there’s some sort of room to get around the rule.  Other times, they’ve had to misrepresent the law, like Justice Rehnquist did in Bracy and Albright.  But one of the main tactics has been to conflate Mooney cases and Brady cases.

We have to confront Judge Easterbrook’s and Justice Rehnquist’s – let’s face it – agenda driven falsifications and dissembling directly.  We must clarify and restore the law, not move to a less pernicious confusion about it and hope for the best.  The Mooney line of cases, including Napue, has never been qualified or limited, and that’s very much unlike the Brady line of cases.  Giglio is one of the latter, and Napue is one of the former.

We don’t think Long will address the Mooney-Brady distinction, and for that reason it’s not likely to clarify much even if the SCOTUS takes it up.

Which we hope it doesn’t.  Ugh.

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*We are probably all by ourselves on this, but nevertheless, we think Miller extends the principle of Mooney to situations and results that are too absurd or stupid to tolerate in a rational system of justice.  Kind of like Judge Easterbrook’s en banc opinion under review here!

 

 

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Proposal For New York Constitutional Convention

We at LoS have often wondered, in our more or less idle moments (we don’t really have any idle moments, but never mind that point for now), how crimes can be prosecuted before courts by a member of the executive branch of the government – a “District Attorney” (see People v. Leahy, 72 NY2d 510 at 513) – who is also, and simultaneously, a member of the judicial branch of the government.

Separation of Powers, anyone?

Ugh.  This is one of those thoughts that has a sort of unassailable logical validity but which will never get a serious hearing in a system dominated by political science majors.  That is, the idea has unimaginably large implications, but however airtight the reasoning it is only an argument, and arguments are cheap, so we are told.

But couldn’t we at least do a little damage control, just a little half measure that might mitigate the damage from the thorny separation of powers problem we just identified, and that might not run afoul of the political scientist’s slavish devotion to the oxymoronic “principle of utility“?  (But see an entertaining send up of Bentham, et al.)

Maybe.

Accordingly, we propose the following should be added to New York’s constitution in the section on the judiciary:

“Any attorney who has served in the office of a District Attorney or the Attorney General shall be disqualified from holding any judicial office for a period of ten (10) years after the completion of any such service.”

It is one thing to ignore the separation of powers problem posed by District Attorneys ab initio.  It is considerably worse, in view of the separation of powers doctrine as a check – however feeble – upon the abuse of power, to allow attorneys whose dominant experience in the profession is prosecuting people for crimes to also gain a foothold in the judicial branch that (supposedly) impartially adjudicates those prosecutions.

And of course, the foothold has long since been a fait d’accompli that in recent decades has metastasized into a stranglehold:  that is, former prosecutors completely dominate the judicial branch.  This is probably only our opinion, but we think this state of affairs is a deceptively large factor in wrongful convictions, not to say the power-toadying practical reality of our “justice” system.

Thoughts, anyone?

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So This Is The Argument?

Seems Greenfield has been reading over here again.  On the sly, of course.

You’ve got the Brady Mooney thing and we’ve extensively chronicled how prosecutors have mangled it all up (just one example) but we have also wondered aloud – in this as in so many other aspects of the criminal justice system – whither the criminal defense bar?

Turns out they are backing up the prosecutors.  Or at least some of them are.

Oh, dear.

Anyway, a few days ago SHG got into it, and this is the position he’s carved out for himself:

Not just Brady, but the narrow and rarely used Mooney brand of intentional concealment.  The reason no one uses Mooney is that it’s nearly impossible to prove, and even if you do, judges almost never adopt it. It’s one thing to say that exculpatory evidence has not been disclosed, and another to lay blame on a prosecutor for intentional, malevolent concealment.  That’s a step too far, and the surest way to seize defeat from the jaws of victory.

Where to begin?

“No one uses Mooney”?  It’s not true – Mooney is still cited in court opinions with some frequency – but ponder that phrasing for a while.  Is Mooney just a tool, a lesser used weapon in the criminal defense lawyer’s arsenal in his campaign to game the system to win, every single time?

No.  Mooney is the law, and it has been since 1935, “use” it or not.

Besides, what is being advocated here?  That if you have a Mooney problem you should ignore it, since it is the “surest way to seize defeat from the jaws of victory”?  Victory would be assured if you “subsumed” Mooney into Brady?  And that’s because Brady is always followed by prosecutors and judges whereas Mooney is not?

That’s laughable.

Is Greenfield serious?  You uncover a Mooney situation and it’s one of those rare cases where you can prove it and you’re supposed to let it go?  A prosecutor abuses his office in the worst way he can – against your client, so it’s your responsibility to correct – and you should bury your proof, look the other way and argue something else, because it’s a “bridge too far” and the judge won’t like it?

Put another way, the argument here is that you should match the prosecutors abuse of his office with a corresponding abuse of your own.

Any lawyer who would do that has no right to complain about any atrocity the system dishes out.  The “bridge too far” is obviously the prosecutor’s conduct, not the defense lawyer fulfilling his obligation to ferret it out and obtain relief for his client, not to mention protecting the whole system from an unspeakable corruption.

It’s a really lousy argument, Scott.  We realize you’re desperate to find some basis to disagree with us on this subject, but some things are just true, or just, or unarguable.  Willful blindness for ego’s sake isn’t going to change anything, and it certainly isn’t going to help anything.

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Brady Follies – Propagating The Big Lie

This looks like a law review article.  But it isn’t.  It’s in a journal of “criminology”.  Criminology is a field of study undertaken primarily by law enforcement types, and it probably doesn’t matter to anyone but us but in our opinion it is not a proper field of study for a lawyer.  Too slanted in one direction.

In any case, published in 2011 the article is as revealing as it is wrong, once you get past its basic deceptiveness:  while seeming to bemoan prosecutor lying and cheating it is in fact giving them a lot more cover than they deserve, and more importantly a lot more legal cover than they actually have.

As we have repeatedly noted in these pages, the basic error – or sleight of hand, if you’re not in a charitable mood – is to conflate the Mooney line of cases with the Brady line of cases; that is, deliberate deception of the court (Mooney) with negligent or unintentional misleading of the court (Brady).

Here’s Mooney:

Petitioner urges that the “knowing use” by the State of perjured testimony to obtain the conviction and the deliberate suppression of evidence to impeach that testimony constituted a denial of due process of law…Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise.

But here’s Brady:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Mooney was decided in 1935.  It has been unambiguously reaffirmed by the SCOTUS every time it was addressed: in Pyle v. Kansas (1942); Alcorta v. Texas (1957); Napue v. Illinois (1959); and Miller v. Pate (1967)

In contrast to Mooney, Brady (decided 1963) has been qualified, limited, distorted, exceptioned to death and rendered a dead letter.  And you don’t have to take our word for it.*

Yet somehow, all these qualifications and exceptions – such as a “materiality” requirement – that were later applied to the Brady line of cases also got applied to the Mooney line of cases, at least in the minds of many prosecutors.

And judges, if that’s not repeating ourselves.

Which as you’ll see further down, is more than a little ironic.  We could think of other words, too.

Anyway, there are really two lynchpins of this contention Brady = Mooney.  The first is this line out of Brady:

This ruling is an extension of Mooney v. Holohan, 294 U. S. 103, 112, where the Court ruled on what nondisclosure by a prosecutor violates due process…

And then this line:

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.

From these slender reeds, criminologist types have argued: 1) that the deliberate use of perjury by a prosecutor to obtain a conviction violates due process only if it is “material”; and 2) the only use of perjury that counts in this context is use at trial.  Perjury can otherwise be freely – and deliberately – used without due process concerns.

I would call these arguments sophistry of a very low order, but I don’t want to flatter them.

For the first argument – often called the “materiality” requirement – it is certainly a concern in a Brady situation but it is never a concern in a Mooney situation, for the simple reason that the  materiality of the deliberately perjured or suppressed or fabricated evidence has been conceded in advance:  if the evidence didn’t matter to obtain the conviction, why did the prosecution deliberately perjure or suppress or fabricate it?

Put another way, the State is judicially estopped from even arguing that the evidence they deliberately perjured or suppressed or fabricated to get their conviction didn’t matter.  It’s more than a little embarrassing that judicial estoppel must be applied to state officials as opposed to, say, ambulance chasing TV lawyers, but there it is.

Moreover, what is the line of reasoning here? That if Brady “extends” Mooney and has a materiality requirement then Brady must also limit Mooney by extending the materiality requirement to Mooney? That is a non-sequitur, and a particularly unwholesome one at that.

As to the second argument, not one of the cases in the Mooney line ever suggested that the deliberate use of perjury, etc. counted as a due process violation only if it occurred at a trial; indeed they said it counted as a due process violation if it was used “to obtain a conviction”.

Here’s Pyle v. Kansas:

Petitioner’s papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him.

Here’s Napue v. Illinois:

First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment

Here’s Miller v. Pate:

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.

But all this aside there is even better – conclusive, really – proof that the Mooney line of cases, though related, is separate and distinct from the Brady line: Miller v. Pate is 1967** – that is, it post-dates the 1963 Brady case – and while it cites Mooney and Pyle and Alcorta and Napue it never cites Brady.

Thus when the criminology article goes on and on about how we really, really should have a more “protective” “materiality” requirement to discourage prosecutor lying and cheating it is actually making an allowance for prosecutor lying and cheating that never existed in the first place (and God willing never will exist):

Nine years after the Brady decision, the Court established the materiality standard for determining a constitutional violation in the context of a prosecutor’s knowing presentation of false testimony in Giglio v. United States

Giglio (1972) did no such thing.  In the first place, Giglio was fundamentally a Brady case:

We granted certiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v. Illinois, 360 U. S. 264 (1959), and Brady v. Maryland, 373 U. S. 83 (1963).

In the second place, the only significance of Giglio was to impute the knowledge required for the “knowing” use of perjury to any attorney in the prosecutor’s office.  The intra-office assignment of a different prosecutor for the trial meant the case didn’t squarely fall within Napue, because the trial prosecutor didn’t know of the promise of leniency to the witness and thus did not act in bad faith, but Brady still applied because the promise of leniency still had to be disclosed:

The heart of the matter is that one Assistant United States Attorney—the first one who dealt with Taliento— now states that he promised Taliento that he would not be prosecuted if he cooperated with the Government… Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.

From this mess there, the criminology article then cites the 1976 case of US v. Agurs.  But Agurs is a Brady case.  This is out of the first paragraph:

The question before us is whether the prosecutor’s failure to provide defense counsel with certain background information about Sewell, which would have tended to support the argument that respondent acted in self-defense, deprived her of a fair trial under the rule of Brady v. Maryland, 373 U. S. 83.

The article then gets deeper into the “materiality” issue and goes on to cite United States v. Bagley (1985).  But the first paragraph of that case says:

In Brady v. Maryland, 373 U. S. 83, 87 (1963), this Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” The issue in the present case concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses.

Yup.  Bagley is a Brady case, not a Mooney case.

Finally, the article throws a bone to those victimized by prosecutor lying and cheating by eschewing the “materiality” test of Kyles v. Whitley (1995) as being too lenient with prosecutor lying and cheating.  But of course, in the first paragraph of Kyles:

After his first trial in 1984 ended in a hung jury, petitioner Curtis Lee Kyles was tried again, convicted of first-degree murder, and sentenced to death. On habeas review, we follow the established rule that the state’s obligation under Brady v. Maryland, 373 U. S. 83 (1963), to disclose evidence favorable to the defense…

Kyles is a Brady case.

To recap, there is no disputing that there is a materiality analysis and requirement before a Brady violation is held to result in a reversible due process error, because strictly speaking a Brady violation is not deliberate; but there is no such “materiality” analysis and requirement for a Mooney violation because a Mooney violation is always deliberate.  The article is arguing for a more “protective” materiality “test” that doesn’t apply to Mooney violations in the first place.

Parenthetically, it’s worth noting that what really underlies the Brady “extension” of Mooney was the realization, in 1963, that it’s virtually impossible – or at least extremely, extremely rare – for a wrongfully convicted person to actually prove that prosecutor misconduct was deliberate – not everyone gets lucky like Napue (or we) did – so they relaxed that scienter requirement in Brady.  Accordingly, it is perverse beyond words, really, that this effort by the SCOTUS to extend the reach of the “principle of Mooney” has effectively restricted it instead.  As we’ve noted before, though, one of our favorite SCOTUS justices – Whizzer White – presciently anticipated such problems when he concurred in the Brady case itself:

In my view, therefore, the Court should not reach the due process question which it decides…The result, of course, is that the due process discussion by the Court is wholly advisory…In any event the Court’s due process advice goes substantially beyond the holding below. I would employ more confining language and would not cast in constitutional form a broad rule of criminal discovery.

So, among other problems with it, Brady becomes a cautionary tale about appellate courts roaming beyond the confines of questions the case before them actually presents, into “advisory opinion” territory which, in the US at least, is a no-no.

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* The degree to which the criminal defense bar has itself succumbed to this same confusion, to some extent evidenced by SHG’s post, is a very large subject for another time.

**  Milller v. Pate is almost amusing. In convicting the defendant of murder at this trial, the prosecutor paraded before the jury en exhibit characterized as “blood-stained shorts”. The blood stains were actually red paint.

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Death Threats. Harassment. Obsession. (Amanda Knox)(Updated)

So a British tabloid that has been fanning the flames of the frenzied mob for eight years now reports that the FBI is investigating some of its readers.  Pretending to be neutral at this late date, after years of smearing and base casuistry masquerading as ‘journalism’.

The FBI can investigate away, and contrary to the impression given by the article, not all the lunatics are in the UK; there are plenty of people in the US who are driven mad by high profile acquittals, especially when the beneficiary is a pretty young woman.

We suspect this will go on for quite some time.  Our standing recommendation to the exonerated is to live as obscurely and remotely as possible in a country other than the one that convicted you in the first place.  Of course this reasonably requires the exoneree to be independently wealthy.  And that is exactly what those responsible for the wrongful conviction are obligated to ensure:  that their victim be made independently wealthy.

Wealthy or not, the exoneree will live out a substantially diminished life.  There’s no fixing it.  But leaving an exoneree to fend for herself, defenseless, in a world in which so many want to see her suffering or dead is literally excruciating and utterly unconscionable.

If you let loose the dogs of war in error, there’s no going back.  Prosecutors should think hard about what they set in motion when they file charges.

Update:  Radley Balko points out that we’re very, very lousy at compensating those we have injured through major malfunctions of the criminal justice process.  That has to improve.

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The Sad Fate Of Amanda Knox (Updated)(x2)

How is it possible, in an age where human intelligence has produced wonder after wonder, to have a murder case where guilt is determined by the “reasoning” level of a moron?

I was reading an article recently about the legal profession and the appalling lack of quality in reasoning that prevails.  Often, court opinions are little more than screeds of heavy rheotric that ignore evidence that obviously – and often definitively – undercuts the desired result.  They are frequently comically disingenuous.  Or at least it would be comical is someone’s life didn’t hang in the balance.

So the “Nencini” report re-convicting Amanda Knox contains a discussion of 2 phone calls AK made to Meredith Kercher’s phone the day after her murder but before the body was discovered  that lasted only a few seconds.  Nencini then draws the inference that these phone calls were not genuine, that they were designed to deceive the investigators, that they were so short because Amanda Knox never expected Meredith Kercher to answer because Amanda Knox already knew Meredith Kercher was dead.  And the only reason she could know that was she had participated in the killing.  Let me quote here from the Nencini report as excerpted in a “guilter” blogger’s article:

“The telephone call made [by Knox] at 12:11:54 pm to the English service of the victim lasted 4 seconds. Perhaps not even the time to repeat the first ring.

Knox should have been affected by a certain anxiety in calling Kercher’s telephone services. Filomena Romanelli let the defendant’s telephone ring for 36 seconds the first time, and the second for a good 65 seconds; an insistence which appears normal. But that did not happen when Knox called… these are two calls that barely registered [and this] has only one plausible explanation:

There was no concern at all in the mind of Amanda Knox when she made the two calls to the young English woman, simply because she knew very well that Meredith Kercher could not have answered the calls; calls which had to be made because Filomena Romanelli insisted, but which the defendant knew were useless. Nobody would have been able to answer those calls; let alone poor Meredith Kercher whom the accused knew was lifeless, locked in her own bedroom.”

The problem is that there was a much longer phone call from Amanda Knox to Kercher’s phone earlier – at 12:07 PM – so long that Kercher’s phone – that had been tossed into some bushes and would otherwise have been lost – rang and rang until it was found.  And this phone call also occurred well after Kercher’s murder, but before the shorter calls.

To a sane and reasonably intelligent person, then, the earlier, longer phone call rules out making the incriminating inference from the later calls.  In other words, Nencini is either not sane or not intelligent.  Or, I suppose there is a third possibility:  he’s not honest.

So Amanda KNox’s fate at this point has rested with a man who is either crazy, or stupid, or corrupt and dishonest, and there’s no other alternative.

So appalling.

Update:  From CNN’s report this morning:

But the high-profile nature of the case and the controversial evidence prosecutors have built their argument on makes Knox’s extradition anything but certain.

“Controversial” evidence? That’s what stupid evidence and unfounded argument are to the media – as long as those are offered by police and prosecutors.  Judges aren’t the only apparently reason-challenged players in this drama.

Update 2:  After 9 PM in Italy and no word yet.  If this was a jury deliberating over here, might start thinking about whether they’re hung, but I don’t think that’s possible here.

Update 3:  An apparently unexpected acquittal.  Good on the Italians. Of course, if twitter traffic was any indication, there are millions who will never let go of it.  But for now, while the whole thing is still terribly sad, Amanda Knox and her former boyfriend can enjoy at least some peace.  And maybe Meredith Kercher’s survivors, too.

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Wrong

A while back an old lawyer I know was quoting an even older lawyer, to the fanciful effect that obtaining a criminal conviction is a well-nigh impossible task, what with the insuperable burden of proof – beyond a reasonable doubt – and the requirement of convincing 12 people unanimously.  The prosecution, it was concluded, should never win a case.

A sentiment contrary to observable fact, when one considers that prosecutors almost always win convictions.

Is this a problem?  Why, yes indeed it is.  There’s a fairly simple, though not entirely verifiable, statistical reality at the bottom of the criminal justice system in the United States:  the input – that is, what the relevant ‘law enforcement’ agency sends in for ‘processing’ – is correct or substantially correct about 75-80% of the time.  The whole purpose of the processing – that is, all the prosecutors, lawyers, judges, jurors, trials, appeals, post conviction collateral proceedings and so on – is to catch that other 20-25%.  All of it.

The system does a terrible job of this.  Absolutely terrible.  Abysmal.  And as a result, and other than war, this is the most immediately frightening and destructive thing the government does:  prosecuting people for crimes.

Why?  What’s wrong?

Let’s get back to that Department of Justice Grand Jury Manual thing.  You know, the guide book for federal prosecutors presenting cases to Grand Juries, not to obtain convictions but to obtain indictments, which in general must precede a conviction, which in turn are readily obtained by prosecutors, nationwide.  We talked about this before.

In 1983 the manual dealt in a rather cursory way with the “due process” problem of prosecutor misconduct in knowingly presenting perjured testimony to a Grand Jury.  It was a cursory treatment because the mostly unambiguous instruction was that indictments obtained with such testimony would be dismissed, citing the 1974 case of United States v. Basurto, 497 F.2d 781 (9th Cir., 1974):

Importance:  In Basurto, prosecutor did not become aware of perjury until after indictment (but before trial); indictment was still dismissed.

 

By 1991, though, the DOJ Grand Jury Manual said this:

A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

 

What happened between 1983 and 1991?  Well, one thing that happened is that we elected Reagan POTUS and got Ed Meese as Attorney General.  Then we got some very prosecutor-friendly Supreme Court Justices:  O’Connor, Scalia, Kennedy.

But there’s more to it than that.  After all, had the law changed?

No.  Prosecutors don’t get to deliberately use perjury to obtain a conviction.  I suppose you could respond that no one said they couldn’t deliberately use perjury to obtain an indictment, but what are they going to do with the indictment thus obtained?  If they can’t get a conviction with it, the only thing to do is dismiss it, right?

But let’s back up a bit further, to the “due process revolution” of the Warren SCOTUS.   By most accounts the revolution had run its course by 1969, but 45 years later it remains “controversial”.  Wikipedia says so.

Why the controversy?  “Conservatives” complained about “handcuffing the police” with all the procedural rigmarole.  Did they have a point?  Yeah, maybe.

A crumb, a morsel.

Nah.  On to larger issues.  Let me get too abstract for just a moment, because at the moment I can’t think of any entertaining or creative way to express the particular thought I am thinking.

We have procedures, but the procedures are not about themselves, obviously.  They are about the “substance”.  The substance-procedure distinction is one of those large ideas.  You would think it doesn’t come up very much, but you’d be wrong.  Thus one of the most contentious areas of the law is “substantive due process” which you may notice, based on what I just wrote, is something of a contradiction in terms (Justice Scalia specifically called it an “oxymoron”) because substance can’t be procedure and vice versa, but “substantive” = substance and “process” = procedures, so substantive due process ought to prompt nothing but eye rolls, but it doesn’t.  And it shouldn’t.

Why do I say that?

The show trial courts of Stalin’s Russia followed their procedures pretty well, by many accounts.  But there was no “there”, there.  No substance.

I guess one way of putting it is that the purpose of procedures is to make the substance intelligible and orderly, but if the substance can’t be made intelligible in the first place because, say, it’s all phony made up crap then crossing all the procedural ‘t’s and dotting all the procedural ‘i’s doesn’t matter.

Or, put another way, the procedures serve the substance and are subordinate to it.  You can have substance without the procedure, but you can’t have a meaningful procedure without the substance.

So what is the real and more thoughtful objection to the Warren Court “due process revolution” – more thoughtful, that is, than saying it “handcuffed” the police?  Just this:  that it inverted the natural, rational hierarchy and made procedure superior to substance.  As I’ve said before, I’m not the only one who has pointed this out.

I recently came to Justice Scalia’s defense – not really, but it might have seemed that way – in a comment over on Turley’s blog, when another commenter was excoriating the apparent Scalia position that the execution of a factually innocent person who had received all the procedures the Constitution provided was okay with him.  But I summed it up this way:

  1. People are justified in being appalled at the idea because ultimately Scalia is wrong, and wrong in a serious matter. But it’s also a symptom of the larger problem that the justice system has been too good at abdicating its essential functions, one of the most prominent of which is to ensure the innocent are not punished. The reason a meritorious innocence claim winds up in federal court on habeas corpus in the first place is that the state courts have failed in this essential function. The idea that the federal court should just punt it back to the state that has already failed is fatuous. Somebody has to be responsible in the end, and in the end on a matter like this the federal system must act as the failsafe. That’s my opinion, probably not Scalia’s, although he wasn’t directly confronting the question there. As far as it goes, he was merely stating a fact: the SCOTUS has never ruled that the constitution forbids the execution of a ‘legally” guilty, but factually innocent person.

Everybody makes mistakes.  But it’s a special type of mistake when we refuse to recognize it as being mistaken, even when it’s obvious.

I’m bringing all this up because there was a post the other day on SJ to the (also fanciful) effect that what ails the justice system is shitty defense lawyering.  And so presumably this can be fixed by good defense lawyering, which means SHG and his friends and his spawn, if any such there be.

There may be some shitty defense lawyering out there.  That was hardly the point of the article SHG cited – which had more to do with funding indigent defense, not lamenting its poor quality – but it’s SHG’s point all the time.  Too often, really:

That’s where Jeff picks up the story, and why Jeff rightfully puts the blame on the last person standing between the government and the defendant.  Even if every other player in the system fails, the burden remains on the defense lawyer to make up for it.  Sucks, I know, and a very heavy responsibility.  It’s too much for most lawyers, which is why most lawyers have no business standing in the well of a criminal court.

 

“Jeff” didn’t single out defense lawyers for “blame”.  That’s a distortion, and overall SHG’s take on the whole thing seems a bad case of confirmation bias.

But forget the article.  The SJ post is just another variation on a very tired theme:  SHG, or lawyers like him, are the solution to what ails the system.  This is wildly implausible:  the change in the DOJ Grand Jury Manual from the 1983 version to the 1991 version; the explosion of criminal prosecutions and the US prison population; the near certainty of conviction at trial with conviction rates exceeding 95%; the vanishing trial and ‘trial tax’; the futility of appeals and post conviction remedies; the Anti-Terrorism and Effective Death Penalty Act of 1996.

SHG probably started out practicing law right around 1983.  Does he, and more specifically his professional self-concept, bear any responsibility for these deleterious systemic developments, all of which occurred on his watch?  If he doesn’t bear at least some small share, who would?

Beyond that, is performing the same act over and over going to yield a different result?

Innocence does not matter.

Our job is only to defend.

We game the system to ‘win’, every single time.

There is no such thing as justice, or truth.

 

These are essentially a sales pitch (to potential clients), with a kernel of thoroughly impoverished pseudo-philosophy (“everything’s relative”) woven in.  So you posture this way and maybe it gets you a few clients and you do a good job for them – although most of the time that doesn’t make much difference – but the result to the system as a whole is – well, what I just told you.

Has it been worth it?  You have the occasional acquitted client, I’m sure.  How many others have been convicted who otherwise would not have been, though?  The statistics over the last 30 or so years suggest the numbers may be substantial, but ultimately that’s one of those questions we’ll never be able to really answer, but nevertheless deserves a little thought.  Maybe more than a little.

The elevation of procedure over substance leads directly to institutional and systemic incoherence.  Like war and pestilence, institutional incoherence can have short term benefits for some.  But if you’re one of those few, don’t expect admiration and respect from the much larger group of people on the receiving end.

Not that that’s the main point.  I don’t know.  Let’s see if I can drive the point home, starting with  a post from a few years ago on SJ:

True believers usually end up having problems as a criminal defense lawyer.  When people push the “factual innocence” button, they almost always miss the boat.  We don’t defend because our client’s are innocent.  We defend because they are accused.  Our job is to test the government, not to do justice…The prosecution side, including the police, exist to do justice, and justice means both substantive and procedural.  They are equally responsible for keeping innocent people out of jail as putting the guilty in.

 

That’s the familiar little ditty played over and over on SJ.  And elsewhere.  But SHG and the SJ posse are keeping some dubious company:

Investigators believe Witherspoon then raped the girl who was not conscious enough to stop the attack.  Witherspoon has hired well-known defense attorney John Parrinello to defend him.

Thursday, Parrinello revealed a potential line of defense in the case. He said prosecutors will have a hard time proving Witherspoon used Ambien to sedate the girl.

“None was found in her system,” said Parinello, “and if there were any sexual activity between the two, it was purely consensual.”

Livingston County District Attorney Tom Moran said, “Mr. Parrinello and I have totally different ethical responsibilities. Mine are to seek justice; his are to do everything humanly possible to get his client off.”

 

This is from a local Channel 13 news interview (scroll way down, about 7/8th of the way to the end, to see the actual story) dated September 30, 2004.

Notice how Moran – who’s a psychopath, by the way, but that’s another subject – is using the very same ideas – indeed the very same words – expressed by SHG to discredit another defense lawyer, and that lawyer’s case, and his client. 

Multiply 10 thousand fold, since of course Tom Moran and SHG are not the only adherents to the dogma.

It goes without saying – or should – that this whole outlook is a fairly recent affectation in the profession.  Consider this quote, dating from the 1940’s and obtained second-hand from a 1999 Fordham Law Review article:

 

The difference between the true lawyer and those men who consider the law merely a trade is that the latter seek to find ways to…violate the moral standards of society without overstepping the letter of the law, while the former look for principles.. within the limits of the spirit of the law in common moral standards.

 

Maybe that’s going too far in the other direction, but still:  we’re left with the disturbing question of how much the more recent affectation has contributed to the widepread collapse or at least demoralization of criminal defense lawyering, and the cascade of prosecution friendly developments that have characterized the criminal justice system since, oh, about 1980.

Again, probably about the same year Scott Greenfield began his legal career.

It’s a big and important question, methinks.

I won’t be posting for a while.  Busy.

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Filed under Judicial lying/cheating, Media incompetence/bias, Striking lawyers, wrongful convictions