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.

The Unserious Approach To Ferguson – And A Serious Solution

I’m sure Eric Holder has good intentions, as far as they go. 

We’ve seen this before:  civil unrest followed by the National Guard followed by a sop from Washington, usually in the form of some high profile visit or other.  Maybe by the President.  More often the Attorney General.

On his day-long swing through the area, the attorney general was welcomed warmly at every stop.  At Drake’s Place, a soul food restaurant located a few blocks from the scene of overnight clashes, Holder went table to table offering words of encouragement to some stung by the fatal shooting and days of unrest. 

“We don’t want the world to know that’s all that’s going on here,” said Viola Murphy, mayor of the nearby Cool Valley community.

“We can make it better,” Holder told her.

 

How are you going to “make it better”, Eric?  You’ve got some kind of magic wand you wave?

We’ve said this many times:  civil unrest is an indictment of our courts and our legal profession.  Another program or edict emanating from Washington, punctuated by a media saturated visit from a high ranking official, isn’t going to accomplish jack other than maybe quelling the immediate disorder.  For now.

The serious solution, or at least one serious solution, is very simple.  Norm Pattis alluded to it the other day:

What is not written in the Constitution is the legal doctrine the courts have fallen in love with and rely upon to keep police misconduct cases from going to trial — qualified immunity. This doctrine sprung from the fertile imagination of a judiciary sick and tired of presiding over civil rights cases. It is a product of a judicial revolution no one noticed, a revolution that has effectively closed the courts to ordinary people seeking justice.

 

We at Lawyers on Strike suggested this kind of serious solution more than two years ago:

Statutes can be amended by a simple act of Congress.

So if the people of the US ever recover their gumption, they might want to browbeat their federal legislators/congress-critters into amending 42 U.S.C. 1983 to provide a few things to counteract the execrable rulings of the SCOTUS.  Such as:

1) no immunities for public officials, including judges;

2) no statute of limitations;

3) no summary judgment permitted (F.R.Civ.P Rule 56 won’t apply)

4) Make it all retroactive.

 

It bears repeating:  we have a lot of lawyers who need work.  For a long time – too long – lawyer “work” with any cache or prospect of a prosperous living has meant to become a toady and tool of the powerful against the weak:  represent the bank, the insurance company, the government.

Even so, all the unemployed and underemployed lawyers are a great untapped resource out there, and Ferguson demonstrates once again – just like the Occupy movement did – that there’s an increasingly desperate need.  What’s not to like? 

A “litigation explosion”?  Meh.  The only litigation explosion that ever actually happened was a stupefying increase in criminal prosecutions and imprisonments.  All the rest was insurance company propaganda.  We should be ashamed of ourselves for being so thoroughly duped. 

Nevertheless, however simple this serious solution is, it’s not easy.  There are a lot of conflicting and powerful interests – police unions, for example.  And as a people we don’t do difficult too well anymore.  Or at all, it sometimes seems.

There is a basic lack of discipline, I think.  Mental discipline in the first instance is required to understand what a serious solution might be.  And then personal and behavioral discipline is required to implement the serious solution.

So in the meantime there are emotionally cathartic visits by the Attorney General to the trouble spot of the day, and then when we tire of that there is Kim Kardashian.  Until the next unarmed black teenager is shot to death by a police officer at one of those odd moments that makes it a triggering event. 

The undisciplined lurch from crisis to crisis, in between long periods of indifference and indolence.  If that’s what we have become then what happened in Ferguson is just random, episodic noise, fodder for a news cycle and little else.

Moreland Commission

There’s a pretty major flap going on, considering it’s an election year, over a temporary “independent” commission appointed by Governor Cuomo, supposedly to “root out” corruption in the State’s capital.  The commission was headed up by Onondaga County District Attorney William Fitzpatrick.  The commission was disbanded – some say “abruptly”, others say because it was “mission accomplished” – a month or so ago.

Last week the New York Times published a very detailed piece more or less chronicling gross interference with the independent (not) commission by the governor’s men.  This prompted a ringing defense of the commission and its independence (not) by Chairman Fitzpatrick in the form of a three page letter dated July 28th, which you can find here.

First, I encourage you to read Fitzpatrick’s letter.  Whatever its merits otherwise, it is typical DA bluster, long on rhetoric, short on specifics, and completely devoid of anything resembling reasoning.  It’s a screed from someone who seems to think that all he need do to dispose of accusations of corruption is to call them “absurd”.  Not one fact chronicled in the New York Times piece is even specifically denied, let alone refuted.

There’s a lot to say about all this, but not now.  In the meantime, it’s worth noting that some people whose opinions I respect believe this whole flap is orchestrated by the Clinton camp to damage Cuomo, a political rival for the 2016 presidential nomination.  And that may well be.  Multiple levels of perfidy and skullduggery are standard procedure in the political cesspool known as New York State.

But we’ll comment later on some larger aspects of all this, endeavoring to wed the macro to the micro, one of our favorite tasks over here at Lawyers on Strike.  We sometimes do a good job of that, and we sometimes don’t, but we do make the effort.

To be continued.

Shallow Reasoning

Maybe a better word is facile.  Or cynical.  Whatever the word, I think you can call what follows here intellectually and professionally irresponsible.  I quote at length from a 1994 opinion for the United States Court of Appeals for the 7th Circuit in Chicago:

Here is the gist of the allegations, in the language of Buckley’s brief (footnote and citations to the record omitted):

The relevant portions of the complaint allege several separate acts of witness interrogation and coercion which occurred in the early stages of the investigation, including the repeated interrogation of [Alex] Hernandez [one of Buckley’s two codefendants], which led him to give obviously false statements which on their face inculpated Buckley; the use of reward money to coerce further false statements from Hernandez which again inculpated Buckley; and the interrogation of [Rolando] Cruz [the other co-defendant] and purchase of false inculpatory statements from him.Buckley alleges, in other words, that the prosecutors repeatedly interrogated two other persons, that the prosecutors paid them for statements inculpating him, that during the interrogations the prosecutors “coerced” them to finger him, and that the accusations Cruz and Hernandez leveled against him are “obviously false”.

The exchange of money for information may be a regrettable way of securing evidence, but it is common. So too with promises to go easy (the complaint alleges that a prosecutor implied that Cruz and Hernandez might escape the death penalty by talking freely). Buckley does not cite any case holding that this practice violates the Constitution. Concealing the payments at trial would have violated his rights; a defendant is entitled to know what the prosecutor paid for a statement (whether in cash or in lenience and related promises) so that he may expose to the jury the witness’s shortcomings and bias. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). But Buckley does not allege concealment at trial, which would in any event be comfortably within the scope of absolute prosecutorial immunity under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). His contention that the payments themselves violate the due process clause does not state a claim on which relief may be granted.

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. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 795*795 L.Ed.2d 633 (1980); United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Rights personal to their holders may not be enforced by third parties. Let us suppose the prosecutors put Cruz on the rack, tortured him until he named Buckley as his confederate, and then put the transcript in a drawer, or framed it and hung it on the wall but took no other step, or began a prosecution but did not introduce the statement. Could Buckley collect damages under the Constitution? Surely not; Cruz himself would be the only victim.

 

This is from the opinion of Judge Easterbrook – a Federalist Society darling like his circuit-mate Richard Posner – in Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir., 1994) when the case was on remand from the Supreme Court [509 US 259 (1993)]. 

To be fair, before rendering this bit of circuit judge flippancy, Judge Easterbrook did complain that Buckley’s lawyers hadn’t been much help:

The Supreme Court found “unclear” the “precise contours” of Buckley’s claim that the prosecutors violated the due process clause “through extraction of statements implicating him by coercing two witnesses and paying them money.” ___ U.S. at ___, 113 S.Ct. at 2619. It evidently expected Buckley to elaborate on remand; so did we. Instead, Buckley simply referred us to the very paragraphs of the complaint that perplexed the Justices.

 

The point is that when a plaintiff in a section 1983 action, or for that matter a defendant in a criminal action, complains that authorities have coerced witnesses to falsely implicate him, the argument that this only tangibly harms the witnesses and not the (defendant) Plaintiff is unserious.  In this instance it is probably just more judicial backlash and fallout from those 15 years or so where suppression motions were occasionally granted.  Because one of the ways courts got around having to suppress things was (and still is) – as Judge Easterbrook notes above – to hold that the defendant doesn’t have standing to challenge a search if he didn’t own the house, or the car, or whatever where the drugs were found.

I mean, the obvious problem is that by any fair application of the concept of ‘standing’, a criminal defendant has standing to challenge the lawfulness of any evidence that the government intends to use against him.  To preclude him from objecting on standing grounds is silly.  Or would be if there was any humor in it, which when you’r e on the receiving end there usually isn’t.  It’s really an abuse of language and thought and the law, and on remand from the Supreme Court, no less, Judge Easterbrook does exactly that with the Buckley case.

What’s even more of a shame is that Buckley caught on in so many ways.  More:

Let us suppose the prosecutors put Cruz on the rack, tortured him until he named Buckley as his confederate, and then put the transcript in a drawer, or framed it and hung it on the wall but took no other step, or began a prosecution but did not introduce the statement. Could Buckley collect damages under the Constitution? Surely not; Cruz himself would be the only victim.

Again, this is flippant.  In the first place, let’s take a situation where authorities fabricate evidence but don’t don’t ‘use’ it in any way – not at the Grand Jury, or before a judge or magistrate on warrant applications or motions, or at trial.  Is it a non-problem, then?

It depends.  If its non-use represents a renunciation, an abandonment  of the whole effort to frame someone with ‘evidence’ you just make up or beat out of someone, then I’d agree it’s pretty much a non-problem.  On the other hand, if that effort continued but with different bogus evidence then clearly it very much is a problem, because the real problem is not just this or that incident but the whole thing, the whole tainted process.  You don’t have to analyze each pixel when the image is more than sufficiently clear.

It’s just sort of deliberately obtuse not to see this kind of thing, because you’re not really reasoning your way through something; rather you have a desired outcome and you’re just rationalizing.  Some people are capable of nothing but the latter.  And the worst thing about them is that they can’t even comprehend that others might be capable of the former.  So they assume others are just like them – that is, that all of their “reasoning” is really rationalization.

And a lot of these people are prosecutors or judges.  Or cops.

Shallow reasoning is a big problem in the law.  Abandonment used to be a defense to a criminal charge.  In fact it was very traditional, and a measure of how the law once conformed to notions of fairness and justice.

The abandonment defense was this:  you started to do some terrible criminal thing but then thought better of it, listened to your conscience and turned back to the right path.  You “abandoned” the crime, thoroughly renounced it before you completed it. 

That was a complete defense to a charge.  You’d be not guilty.

But then courts started holding – contrary to the Model Penal Code, which maybe we’ll discuss some other time – that abandonment wasn’t a defense to an ‘attempt’ charge, because you complete the ‘attempt’ by taking some tangible step towards committing a crime.  So in other words, you can’t abandon the effort to do something that’s already done.

There’s a certain logic to this position, isn’t there?  Except when you consider this:  abandonment can only apply to attempted crimes.  If you complete the crime, obviously it’s too late to abandon it; on the other hand, if you never did anything at all, there’s nothing to charge you with in the first place.  So if you say that ‘abandonment’ is not a defense to an ‘attempt’ charge you’re just being disingenuous and shallow.  Just come right out and say you don’t recognize abandonment as a defense at all.

But then you’d have to concede a radical departure from traditional criminal law in favor of prosecutions. 

We’ve had way too much of this kind of shallow reasoning, and we reap what we sow.  It’s a shame so much of it has come from Federalist Society judges.

Wealth Distribution In The USA

This little study is pretty revealing, on a number of levels.

Speaking for myself,  you know, I’m not a wealth redistributionist.  If that’s a word.

Not as a matter of politics, anyway.

On the other hand, I thoroughly approve of, and have brought about on a number of occasions, wealth redistribution on an individual level, to remedy an individual injustice of some kind.   In a successful personal injury lawsuit, for example, money is taken from an insurance company and paid to an injured person to compensate for the injury.  In other situations you might have an employee wronged in some way by an employer and the employer pays to compensate.  Or you might have a breach of contract where the breacher is ordered to compensate the other party. 

In fact as you might have just gleaned, one of the primary functions of any justice system is to transfer wealth – from the wrongdoers to the wronged.

Now, you don’t necessarily have an imbalance of wealth in the social sense (and if you didn’t read the linked article, it contains proof that wealth in the United States is extremely imbalanced) solely, or even primarily, because the justice system is failing.  Or even at all.  There could be other reasons.

But it’s also true to say that an extreme imbalance in wealth distribution is consistent with a failing justice system.  I am not the only one who thinks so.  It would be legitimate to suspect, then, that a justice system is failing when there is an extreme imbalance of wealth.  The conclusion that the justice system is failing is made more likely if there are other indicators that the justice system has problems.  Do we have other indications of that in the US?

Are you f***ing kidding me?

 

Good Faith Presumption?

Interesting discussion over at SJ about presuming that the government acts in good faith.  And I certainly agree that there has to be a good faith presumption in favor of government conduct, just as there should be a presumption of regularity, and a presumption of paternity where the mother is married, and so on.

But the error Greenfield is making in his own analysis is also quite interesting.  At least in the context of criminal prosecutions and defending against them, which is the SJ raison d’etre, the presumption that a criminal prosecution is brought in good faith is not ‘rebuttable’.  It’s what we call conclusive. 

How do you know?  There’s no affirmative defense to a criminal prosecution that it is not brought in good faith.  New York’s Criminal Procedure Law, for example, simply does not contemplate that a criminal prosecution could be brought in bad faith so does not address it until after there is a conviction (in Article 440).

If you find yourself on the receiving end of a criminal prosecution that is, in fact, not brought in good faith, you have to resort to what we call a “collateral” proceeding, or you have to wait until there is a conviction before you can challenge it.  There’s no argument to make to the trial judge except for “due process”; but that’s another post, not this one.

Collateral proceedings are highly disfavored when they are addressing a criminal prosecution.  There are very good reasons for that.  Nevertheless, if a criminal prosecution is not brought in good faith it’s the only remedy there is.

Every criminal defense lawyer should know that.

Amanda Knox Redux

So here’s an important contribution to understanding not just Italy’s problematic justice system outcomes, but our own.

The idea is that the justice system in Italy is invested in the guilty verdicts of Amanda Knox and her former boyfriend for reasons of institutional integrity.  Their guilt is mandated because that was the narrative leading to the conviction in a separate trial in the Italian courts of Rudy Guede, the real perpetrator.

Here in the US, we wouldn’t hold Amanda Knox to a fact finding from a trial in which she was not a party or did not have the opportunity to contest.  These are the rules of a doctrine known as collateral estoppel.  Or more recently “issue preclusion”.

Now it may be that the law in Italy doesn’t have such a doctrine.  Or rather, it recognizes issue preclusion but will apply it whether the person precluded had an opportunity to be heard or not.  I don’t know.  And actually, come to think of it, I don’t know if Amanda Knox had an opportunity to be heard at Rudy Guede’s trial.  Maybe she did, because it seems it works differently over there – you can make yourself a party to someone else’s criminal prosecution, maybe if you can demonstrate some kind of personal stake in it. 

This is all kind of interesting from a lawyer’s standpoint.

But let’s give Italy’s law the benefit of the doubt.  If they give Knox the opportunity to be heard in Rudy Guede’s trial and she passes it up, well then that’s her opportunity to be heard.  Now they hold her bound to whatever facts might be found against her at that trial.  She will no longer be heard to contest them.  And this is one of those odd situations where for technical legal reasons a fact is deemed to be true regardless of whether it really is.  That is possible in our system, too.  For example, a fact in a civil case that is formally admitted in a pleading is legally true regardless of whether it’s actually true.  Or, a person can be found “not guilty” at his trial and in fact he is guilty.

Now, it might be surprising to some, but I have a little bit of sympathy for the institutional concern.  It would be a terribly unfortunate thing for Amanda Knox to be technically, legally guilty without being actually guilty, but the high courts in Italy could be legitimately worried about what happens in other cases.  In this case, the law works a wrong; but if you disregard it in this case and set a new precedent, then the new precedent could just as easily work a bigger wrong in another case.  If the Italian courts allow peripheral potentially accused persons to be heard in the criminal trial of another person, then I suppose Amanda Knox’s lawyer(s) in Italy should have taken that into account when Rudy Guede was put on trial.  So you might argue that they screwed up and put her in a position where she had no chance to be found not guilty because that issue had already been determined, she had a chance to fight it and she didn’t.

But like I said, a little bit of sympathy, not a lot.  I don’t think you should run the rule out – assuming it is the rule over there, I mean I don’t know – to the extent that you’re going to hold someone guilty of a murder they didn’t commit.  Hard cases make bad law, but being wrong is bad, too.  I don’t think you can ever enhance institutional integrity by getting it wrong, especially when everyone knows it.  The system has to conform to reality, not the other way around.

I guess my position is that if you find yourself in a position where the rule forces you to be wrong, then it’s time to develop a new rule.  Appellate judges are all smart guys, so just be careful and have at it.  It’s your job, it’s why we pay you the big bucks.

In any case, I’m grateful to my twitter companion (and author of the linked article across the pond) Nigel Scott (twitter:  @gronff), for the hat-tip.

Let’s hope this all works out correctly for Amanda Knox, Raffaele Sollecito and the Italian justice system.  Come on.  I know we can do it.