Category Archives: Striking lawyers

They’re fed up. They’re hitting back. Good for them.

Rehash

So, SHG is revisiting an old debate about criminal defense lawyering, and he’s joined by Judge Kopf who has probably come over here (to LoS, that is) to re-familiarize himself with the term “epistemology”, which is now one of our wordpress “categories” since it seems to come up a lot.

The example is familiar, too:  do you “back off” of your “blistering cross” of the complaining witness when you know she’s right, that her rape accusation against your client is the truth, and that your brilliant cross will both destroy her and wrongfully get your client acquitted?

If the lawyer rips her testimony to shreds on cross, her testimony will come off as incredible to the jury and the defendant will walk. Then again, the lawyer, knowing her testimony to be truthful, also knows that a hard cross and a not guilty verdict may well destroy this complaining witness’ life. 

Does the lawyer destroy the victim or back off, knowing that it almost certainly spells conviction for her very guilty defendant?

Tedious, no?

But on a deeper level – depth being something lawyers and judges increasingly don’t do well, or at all – the nuances of epistemology are once again unknown, or at least not considered.  The hypothetical posed is absurdly that – hypothetical.  You don’t “know” that your “blistering cross” is going to result in an acquittal.  What you know is that statistically your client’s chances of being found guilty are north of 90%.  You might hedge that with the observation that in rape cases the percentages are more favorable, but the odds of conviction are still north of 70% by any sane measure.

So the dilemma never actually arises in real life.  Sometimes you should “vary the hypothetical” because the hypothetical is ridiculous.  The meaningful question is whether you should do your best to destroy a witness for an “advantage” that is just as likely to be the opposite, as one of SHG’s other commenters points out, only to be told not to go down that “rabbit hole”.

Ugh.

Can you, as an ethical criminal defense lawyer, balance a speculative advantage to be gained by attacking the witness against a far more certain damage to the witness – such as that the witness will fall apart and, say, harm herself – and forego the attack?  Probably.  Especially if there’s s serious downside to the attack, which in reality there always is.  As we have pointed out on other occasions, the “blistering cross” that lawyers love so much are often harmful to the client.

To be fair, though, you don’t “know” that the witness will engage in self-harm, either.  And you have no specific responsibilities to the witness, whereas you do to your client.  Beyond that, others have responsibilities for the witness:  friends, family, the prosecutor who takes the risk of calling her as a witness knowing the dangers.

We have encountered exactly this scenario in our professional life, by the way.  We assume both SHG and Judge Kopf would approve of our handling of the matter, but the route by which we might reach the same practical result and conclusion would be quite different, we suspect.

Sometimes the route matters a very great deal, however, if you want to avoid confusing people.  As we wrote recently in an unrelated context:

Zahrey reached the right result – holding that a §1983 cause of action grounded in fabrication of evidence by government officials sounded in due process – but the court also exacerbated the problem of conflating immunity with its analysis of the constitutional wrong:

“We think the right at issue in this case is appropriately identified as the right not to be deprived of liberty as the result of the fabrication of evidence by a government official acting in an investigative capacity.”

221 F.3d at 349 (emphasis supplied).

The distinction between acting in an “investigative capacity” as opposed to an “advocacy role” determines whether a prosecutor is immune, not whether a constitutional injury occurred. Conflating these two issues immediately forced the Second Circuit to address – in a rather confusing five and one half pages (221 F.3d at 349-355) – a causation question that disappears once the conflation is eliminated.

It’s important to be right, but it’s also important to be right for the right reason(s) if you want to instruct others properly.  Which is what appellate courts are supposed to be doing.

 

Leave a comment

Filed under epistemology, Striking lawyers

Tolerance For Ambiguity

Again, SHG is not technically wrong in this comment:

You sound as if you’ve been overloaded to the point of head explosion. Tough nuggies. This is reality, and it’s messy. Tolerance for ambiguity is one of the foremost qualities needed to practice criminal law. Not everyone has it.

It would be almost axiomatic:  by nature, the criminal defense position would have to be more sensitive to nuances and ambiguities.  The prosecution narrative is always blunt:  the defendant is a no-good criminal scumbag.  The defense doesn’t assume the burden of the reverse narrative – that the defendant is a great civic hero.

But once again there’s more than a little irony going on.  A tolerance for ambiguity should not become perverted into commitment to ambiguity, a slavish devotion to ambiguity as an overarching principle of action and a framework for understanding anything, no matter what the evidence is.  Dare we say it, that winds up being – well – an unambiguous fealty to the principle of ambiguity.  It’s oxymoronic.

SHG has been explaining himself well the last few days.  We’re grateful, albeit somewhat frustrated and maybe a bit saddened: he stubbornly clings to a failed and rapidly receding professional self concept that has ill-served him, his clients, the profession and the justice system itself.  He’s unreflective about that, and about the possibility that his dominance of a tiny corner of the internet, a part of the “blawgosphere” – has stagnated, aged and withered just as he and his self-concept have.  One’s a metaphor for the other, maybe.

He has exhausted his shtick, methinks.  The gritty, gutsy trench lawyer, the lazy and self-entitled youth that aren’t sufficiently in the SHG mold, and maybe a dozen or so other tired themes have run their course.  It isn’t a weariness that has come out of nowhere, of its own accord.  SHG brings it with him, in more ways than one.

Leave a comment

Filed under financial crisis, Striking lawyers, wrongful convictions

Malevolence v. Incompetence

It’s this Brady-Mooney thing again.

It’s easy to see why prosecutors blur the distinction between the two.  It’s a lot more difficult to understand why the defense bar does:

Until prosecutors are held personally accountable for concealing Brady, nothing will change. And that won’t happen as long as they’re immune from liability for their incompetence or malevolence.

“Malevolence” – that is, the intentional suppression of evidence tending to show a Defendant innocent by a prosecutor – has been a clear due process violation since 1935.  Because Mooney.  “Incompetence” – that is, prosecutors not knowing the evidence they have, or not realizing its exculpatory nature, and failing to disclose it – is sometimes a due process violation, and sometimes not, since 1963.  Because Brady.

The point being that this distinction is pretty important, not to mention settled law although it seems many who should know that, don’t.

Some time ago I wondered – worried, really – about the criminal defense bar being as unaware of this distinction as the organized prosecutor’s groups have intended for the last, oh, 30 years.  I further worried that the criminal defense bar might even be hostile to the idea of recovering this distinction.

Given the above quote, Greenfield is either unaware of the distinction, or hostile to it.  Neither is a good sign, inasmuch as SHG is nothing if not a representative sample of one highly regarded portion of the criminal defense bar.

Leave a comment

Filed under Striking lawyers, wrongful convictions

Fraud Is As Fraud Does

I don’t think anyone can really tell you the point at which fraud, as a civil matter, crosses a line and becomes a criminal matter.  For that reason, all criminal fraud prosecutions are suspect, because their criminal nature is ill-defined.

But that does not by any means imply that fraud is unimportant.  At least not to us here at Lawyers on Strike.  We are of the opinion that civil cases are just as socially important and often more socially important than criminal cases.  In the fraud context we have taken the interesting position (well, it should be interesting for a lot of people but apparently it isn’t) that Wall Street corruption and perhaps some government corruption would be far better addressed by private lawsuits brought by the injured parties as opposed to criminal prosecutions conducted by the government, and that the major impediment to pursuing that remedy robustly is a corrupted judiciary which favors institutional litigants over individuals, for the most part depriving them of jury trials.  Which in turn are the only way, say, the Wall Streeters might be called to account.  Because regulatory capture, among other things.

But we must also recognize that we are pretty much alone in those views.  So alone, in fact, that there’s almost no chance any serious effort along those lines will be made.  At least not in our lifetime.

There’s a lawyer/law professor out there named William K. Black.  We like him over here even though he apparently doesn’t agree with us either, and thinks government regulation and criminal prosecutions are the solution.  Yet we keep trying to suggest our idea to him, with no response (scroll down to the first comment).

Which is too bad.

But moving on.  Unlikely though it may seem, our federal judge from Nebraska has recently tipped his hat in our direction by putting up a post featuring a well-known personal injury Plaintiff’s attorney exploring the idea that civil litigation – even personal injury litigation – has important social benefits.  And it’s worth noting how even in the title of the post the bias comes out, since Judge Kopf felt the need to acknowledge those who would call the featured lawyer “infamous” rather than simply famous.

I would call it subtle bias, but to me at least it is none-too-subtle.  And I daresay it has affected many, many rulings by Judge Kopf over the years, just as for Bill Black the only litigation he’s interested in is litigation on behalf of the government.

At some point I may go on from these anecdotal musings to describe how, in my view, there’s a loss of faith involved.  Faith in each other, in our ability to figure out the truth based upon evidence, in our rationality and capacity to be just.  And how this loss of faith engenders a kind of tyranny when it becomes widespread in a society.

But that’s too much for today.  Because football.

4 Comments

Filed under financial crisis, Media incompetence/bias, Striking lawyers

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.

1 Comment

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

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.

4 Comments

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

Ferguson, MO – Smearing And Pandering

I suppose a little should be said about this.

First, the killing of Michael Brown is a triggering event, not the real reason for the rioting and looting.  So the relative merits of justifying Michael Brown’s shooting death by a police officer are largely beside the point.  Even if you could call the shooting justified there are problems in Ferguson that transcend Brown’s killing, as Professor Turley makes abundantly clear in this post.

Second, Greenfield is quite right about the effort to smear the deceased, and I think it’s just more fuel on the fire for the police to release the video.  Bad judgment, even if you think the video supports the view that the police claim.  Releasing it has had the predictable result of provoking further rioting in response.  Moreover, this is a revealing series of events about the mindset of the police:  even their style of “argumentation” tends towards efforts to overpower.  The lack of subtlety in a situation like this is….disturbing.  And counter-productive.

And I appreciate SHG’s link to Judge Kopf’s blog post, not least because of the truly frightening anomaly that I agree with a federal judge on both counts. 

Beyond that. however, two observations about SHG here:  first, for whatever reason he’s gone a bit off the rails on this one.  Despite the stupidity of releasing that video, it is certainly relevant to the claim that the police officer shot after being attacked.  Arguing otherwise is untenable.

Second, there’s this table-pounding, unequivocal – and one can therefore conclude questionable – assertion:

I would throw whatever I could at the case if I was repping Wilson [that is, the police officer who shot and killed the kid – ed.]. Not because it was relevant, or that its prejudice didn’t outweigh its probative value, but because my sole duty is defend my client, reason be damned.

But that’s because I’m a defense lawyer. My duty isn’t to the public, or truth, justice and the American way. If pandering to stupidity and emotion serves my client’s interest, I’m obliged to do so.

I’m not saying Greenfield is wrong here, exactly.  Maybe all I’ll say for now is that first, it sets forth a false dilemma:  how can you know for sure in advance that “pandering to stupidity and emotion” serves a client’s interest?  It’s not impossible that it could, but more importantly can’t SHG understand that even if it’s true, stating this openly – and to a judge no less – is virtually destroys his credibility?  Is he now going to appear in front of juries and argue stuff, when a juror has probably looked up his blog, read that quote, and not unfairly concluded based upon it that he can’t trust anything SHG says?

And when he says that all defense lawyers believe that, isn’t he potentially hurting them and their clients also, by discrediting them in advance?

This is a big problem, and not just for SHG.  SHG should address it, methinks.

Leave a comment

Filed under Striking lawyers, wrongful convictions

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.

3 Comments

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

Increased Stridency Or Class Consciousness (?)

An interesting statistical study over at the SCOTUS blog, trying to make sense of a trend towards greater unanimity in what should be a very divided Supreme Court.

I’ll suggest a couple of completely unprovable reasons.

One may be that when the members of the SCOTUS actually do flatly disagree on an outcome, so much energy goes into the argument (I mean, read a few Scalia dissents, just for fun) that there’s a desire by both sides to spend less energy where the disagreement are not so sharp, or seen as not as important.  In other words where they think the can agree the justices are more anxious to do that because there’s only so much written venom anyone wants to hurl.

A second possibility, and this requires a lot more fleshing out than I’m going to do this morning, is that the insularity of the Supreme Court and its establishment courtiers has reached, or is reaching an apogee.

Let me explain this as best I can through an example:  the rise of Cheryl Ann Krause as a federal appellate judge.

I don’t want to be in any way unkind, or to make more of this than it is, and although I think there’s considerable significance to what I am about to point out I’m sure Judge Krause is very bright and probably delightful in a hundred different ways.  Indeed if you look around the web you’ll notice that no one has had anything bad to say about her and theUnited States Senate actually broke from its moratorium on approving Obama judicial nominees to approve her and get her into office.  Her “credentials” are impeccable:  top of her class at Stanford Law – Stanford!* – stint at US attorney’s office, stints at legal academia, stints at big law firms.

But still.  In an important sense she’s 46 years old and has never really done anything, other than accumulate honor after honor and credential after credential.  She has probably never tried a case to a jury, but if she did it was almost certainly as a federal prosecutor which in a lot of ways doesn’t count.  The primary quality required to so accumulate is to relentlessly focus on so accumulating from an early age.  It is entirely possible that Judge Krause has never had a thought she could truly call her own, having been too busy absorbing what her superiors wanted her to absorb.  She’s been richly rewarded for it, in a manner of speaking.  She has punched all the right tickets, but she has never even served as a federal trial judge.

Too messy.

She could easily be on the Supreme Court in a couple of years.

If and when she gets there, it may also be that her only true conviction, probably held more or less unconsciously, is that our system is wonderful close to the point of being flawless.  It rewards all the right people – like her – and punishes all the right people, too.  How could it be otherwise?

To say that she will have a strong establishmentarian bias is a grotesque understatement.

So in an important sense, when a lawyer appears before her representing an individual who has a quarrel with a big institution – bank, insurance company, government – he might as well be an alien from another planet.  This is a woman who has never had a disagreement with an institution in her life.  She cannot comprehend such a thing except in the sense of considering it wrongful ab initio.  And this explains a lot about our judiciary and our system, because she’s but a representative sample.

In other words, the increasing prevalence of SCOTUS unanimity may be due to the increasing class homogeneity of the federal judiciary and the SCOTUS in particular.  In a case where the class differential of the parties is stark, maybe it’s also determinative, there being no lower status representative on the court itself.

Again, I could be a little unfair here.  But I doubt it.

——————————————————————————————————————-

*  It may be time to consider the disproportionate influence that certain institutions of higher learning have on the law by acquiring a near monopoly on Supreme Court members.  Certainly, there is much to be said for academic achievement, which is reflected in being a high ranking graduate of Harvard or Yale or Stanford, etc.  But it is possible to get too much of a good thing.  Ultimately, these schools are governed and owned by a very small group of people with – of course – a lot in common with each other and little in common with anyone else.  Cheryl Krause’s extraordinary appointment is a tribute to this disproportionate influence:  the United States Senate made a special exception to its stalemate on judicial appointments just for her.  I don’t actually object to her appointment; but I have a lot of reservations about the methodology by which she was confirmed.

Leave a comment

Filed under Striking lawyers, wrongful convictions

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.

Leave a comment

Filed under Judicial lying/cheating, Striking lawyers, wrongful convictions

More Due Process Error Needing Correction (Updated)

Why, oh why, does this task keep falling to us over here at Lawyers on Strike?

Here’s a case out of the 1st Circuit in February of this year called Housen v. Gelb, the opinion written by the flamboyant scribe Judge Bruce Selya, whose reasoning and writing style we generally find most agreeable.

However.

Part II-B of the opinion deals with “Prosecutorial Inconsistency”, addressing the argument of whether the government can, while still adhering to its obligation to afford criminal defendants due process of law, take one position in one case so they can get a conviction there; and then take an inconsistent position in another case so they can get a conviction there, too.

Bottom line is that this is regarded as an “open question”.  In support of so regarding it, Judge Selya cites a Supreme Court case from 2005, Bradshaw v. Stumpf, which the District Court had regarded as leaving the question open.  Why does the District Court think that?  And why does  Judge Selya then wash his hands of the question in his opinion?  Probably because of the concurring opinion in Bradshaw of Justices Thomas and Scalia:

This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.

Beware of concurring opinions.  For this is a flat out, absolutely incorrect statement of the law.  It is not an open question, and hasn’t been since 1942.  That was pretty much the whole point of Pyle v. Kansas, where the Supreme Court wrote:

and, that the record in the trial of one Merl Hudson for complicity in the same murder and robbery for which petitioner [that is, Pyle – ed.] was convicted, held about six months after petitioner’s direct appeal from his conviction, reveals that the evidence there presented is inconsistent with the evidence presented at petitioner’s trial, and clearly exonerates petitioner…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. 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.

I shall never understand how things have gotten so confused.

I take it back.  I’ll spend the rest of my life figuring that out, one way or another.  Not that it matters to anyone but me.  At least not right now.

Update:  A slew of cases all committing the same error, none of them citing Pyle v. Kansas:  Smith v. Groose (8th Cir., 2000); US v. Frye (5th Cir., 2007); Beathard v. Johnson (5th Cir., 1999); Nichols v. Scott (5th Cir., 1995); US v. Hill (11th Cir., 2011); Fotopoulos v. Secretary (11th Cir., 2008).

Ugh.  When an error proliferates like this a lot of judges will conclude that it’s not an error anymore.  Of course that’s wrong.  Error is error.  Courts of Appeal can’t write Pyle v. Kansas out of the law just by ignoring it and going the other way, and a tossed off phrase in a concurring opinion from the Supreme Court doesn’t overrule prior precedent either.

We’re a mess on due process, and a lot of that has to do with Brady.  And some other things.

Leave a comment

Filed under Striking lawyers, wrongful convictions

Cop Lying And The Judicial Response

I have to say that while I think in general his opinions are way off, I admire federal judge Richard Kopf’s candor in not only writing his own blog, but commenting over at SHG‘s.  In repsonse to a post about lying cops who got caught, the judge says:

If those cops aren’t charged with a felony, then the judge involved, and those who share the bench with him or her, should go ape shit and publicly so. I mean throw a real shit storm. Not just some stupid little contempt citation, but a significant felony charge or even a felony conspiracy charge in federal court about violating the civil rights of the accused. And, when convicted, the cops should go to prison. Not probation. Hard time.

He finishes with a fairly necessary disclaimer:

But what the hell do I know.

Here’s the thing.  The proposed solution is not just unrealistic in the vast majority of cases – that is, the judge can’t prosecute cops, only the same people (prosecutors) who rely on the cops for their very “careers” can, and of course they don’t want to – but juries don’t convict cops.  That’s been demonstrated over and over.

So the bottom line is that lying cops are extremely unlikely to ever be prosecuted and when they are they are very unlikely to be convicted.

What about civil remedies, like actions under 42 U.S.C. 1983?

The big problem there is not prosecutors or juries, but judges, and the judge-made laws of immunity, and judges’ general hostility to civil lawsuits because, frankly, they have little appreciation for the difficulty of bringing them successfully, fail to see how socially important they are, and regard the injured parties and their lawyers as lesser status litigants who should not be permitted to waste the court’s time.  Also on the moral level, to most judges – and I suspect Judge Kopf is in the group – civil lawsuits seeking money damages are just about lawyers’ greed and nothing else.

But here’s what happens in reality, when the civil remedies are robustly available:  after a few large verdicts the payor, which is to say the people or entity stuck with the bill – either the State, a municipality,  an insurance company, or probably just as often a combination of the three – get the message and begin to change the culture from the inside, through truly effective internal disciplinary measures, truly effective because now money and funding are at stake so there’s a real motive to change on the part of those in authority where the change needs to take place.  And in addition to this salutary effect, the victims of official wrongdoing are compensated and the lawyers who represented them are, too.

What’s not to like?

Nevertheless, the fact is that the federal judiciary has been unremittingly hostile to section 1983 actions brought against police and prosecutors for decades.  They crafted made up doctrines about how police and prosecutors were “immune” from such suits, enabling them to dismiss cases without letting them ever see a trial or a jury .

But one gets the sense that immunity doctrines are just a rationale.  The real problem is that judges see plaintiffs as the money grubbing rabble, and defendants as the upright authorities who have to be responsible and shouldn’t be hit with large verdicts in favor of lesser status people and their lawyers.

Of course, inasmuch as large verdicts are a necessary step towards real reform, this – the perspective of judges – is a real problem.  It would take a lot to convince Judge Kopf of that, or any other judge, I think.  Yet this whole scenario might be one important reason that the criminal justice system has deteriorated to the extent it already has.   In fact we here at Lawyers on Strike believe it is an important reason, but Judge Kopf and his brethren aren’t listening, and haven’t been for a long time.

Ugh.

 

Leave a comment

Filed under Striking lawyers, wrongful convictions

Anachronism

Maybe we’re talking about the death of the suppression motion.  Although it was never more than a zombie anyway, eating the brains of judges, lawyers, cops and probably the general public, too.

It’s been a staple of criminal defense practice in the United States for more than 40 years:  evidence against the defendant is illegally obtained by police and his lawyer moves to suppress it, so it can’t be used against him, sometimes leaving the government with no evidence with which to convict him.  A pretty neat trick, I suppose, in the half dozen or so cases – nationwide – where it actually happened in all those years.

I exaggerate.  There were probably more than 20.

One reason such motion were never granted is that a ruling in favor of suppression would come only after the court held an “evidentiary hearing” to determine if, in fact, the evidence was illegally obtained by police.  And the police learned what sorts of things they would have to testify to in order to defeat the suppression motion, such as that the evidence was “in plain view” so there wasn’t really a search, or that it was dropped, or that it would inevitably have been discovered anyway, or that they acted in good faith, or that it was the product of a search incident to lawful arrest, or an inventory, or that the cop had x-ray vision and couldn’t help seeing it.  And the cop would be believed even if he was often lying and the suppression motion would be denied.

Scott Greenfield, in yet another invaluable service to the legal profession, has managed to prompt a federal judge to offer his unvarnished views on this song and dance.  Which is great.  It’s great to know how hopeless it always was, this whole suppression business:  most defendants are guilty (duh); only one side of the story is told at the suppression hearing, since the criminal defendant almost never testifies; judges have an authoritarian bent (duh); a judge’s experience is that cops are more honest than criminal defendants.  Who again, as an empirical matter are likely guilty.

One very interesting interlude is that SHG makes reference to an old case out of New York from the heyday of suppression motions, circa 1970, People v. McMurty.  In that case the defendant took the stand at the suppression hearing, said he possessed and sold drugs and in that regard he was an experienced criminal, and that he would never “drop” drugs out of his pocket like the officer said he did because he knew that otherwise the cop would have to conduct an illegal search of his person to find them.

And the judge in the case was troubled, finding the defendant credible but also the cop and of course suppression was denied.

So we marvel at the perversity of it all.  A defendant waives his right to not be made a witness against himself by taking the stand, admits everything truthfully, and relies upon the law as it was at the time, and upon the sound judgment of the trial judge, to make the prosecution go away because despite the outcome there, the only reasonable credibility determination would have had to favor the defendant.  He confesses to the crime he’s accused of in open court because under the law if he is believed the evidence of his crime would have to be suppressed.  Of course, whether the prosecution could proceed on different evidence – namely, the evidence the defendant himself gave at his suppression hearing by testifying – is a question the court didn’t consider because it denied the suppression motion anyway.

Ugh.

No matter how we construct the law to make the process, for want of a better term, a fair game, the mind will recoil at the thought of the factually guilty escaping punishment because of the game’s rules, just as it will recoil at the factually innocent being punished at all.

Then, in the comments, the beginnings of an SHG epiphany:

So you’re exactly right: the outcome is pure cynicism, as some judge lectures them about being a law-abiding citizen and obeying the law, immediately after the cop lies through his teeth and sneers at the defendant. And we wonder why they won’t behave the way we want them to.

 

More than three years ago, I put up a little post about the morally corrosive influence of the Supreme Court’s 4th amendment jurisprudence from the 1960’s on the whole system – but especially on the police – flowing from Mapp v. Ohio.  I had SHG in mind then, not really personally but as sort of a representative sample of criminal defense lawyering of the post-Mapp era.  One of the many discussions that should be taking place among lawyers on the subject of why the system so often gets it wrong is detailed in that post.

And now, with a slightly different take, in one of SHG’s posts.

Maybe I shouldn’t say ‘slightly’ different, because when it comes to offering any kind of solution the slight difference becomes a giant chasm.  And as regular readers know, I am loathe to make criticisms without offering solutions, however much of an outlier it might appear to make me.

SHG rightly laments the pure cynicism.  But you can’t get much more of a cynical result than defendants saying they are guilty and demanding to escape punishment for technical reasons, as in People v. McMurty.  To overcome cynicism there has to be some devotion to truthfulness and other virtues, if only in the breach.

Somewhat ironically, I would like to trust the police as much as the next guy – well, maybe not as much as Judge Kopf.  But still.  The rules of the game that we set up should not, therefore and in my opinion, reward vice and punish virtue.

My suggested solution will have to await another post.  It’s Easter, after all and I have to attend to other matters.

Leave a comment

Filed under Judicial lying/cheating, Striking lawyers, wrongful convictions

Case In Point, Brady Follies Edition (Updated)(x2)

A serious Brady violation comes to light and for once the judge reaches the right result.  That’s noteworthy enough by itself.

But what’s also noteworthy is Scott Greenfield’s post about it.

What you’ve got here is a prosecutor who may or may not have deliberately suppressed exculpatory evidence.  Under the Brady rule it doesn’t matter which, but for broader due process implications it matters a great deal, a very great deal.  We explained it this way in a post earlier this year:

In other words, the deliberate suppression of exculpatory evidence is always a violation of due process, not because of Brady but because of Mooney.  The inadvertent suppression of exculpatory evidence – what Brady was really addressing – is a violation of due process sometimes.  And sometimes it isn’t. (links to cases added to this quote for convenience, and if you’re interested in this issue you should really read those cases)

But what is also very intriguing about Greenfield’s post about the episode has to do with another quote from the same post:

So it becomes important, then, to differentiate between the inadvertent (Brady) and the deliberate (Mooney) suppression of exculpatory evidence by prosecutors.  Especially when you can actually prove the latter. 

Important or not, though, what you’re liable to run into is not just the reluctance and skepticism of prosecutors and judges (which you are expecting) but a reluctance on the part of defense lawyers as well, a reluctance to distinguish deliberate from inadvertent suppression, owing to an instinctive belief that this will wind up minimizing the seriousness of the inadvertent suppression.

And that belief is not without some merit.

Now, in this current case of Megan Teesdale, Greenfield argues that the prosecutor’s failure was deliberate:

You see, new prosecutors want desperately to win at trial, and pore over every detail, every word, in preparation. They want to make their bones. They want to show their fellow prosecutors that they have the right stuff.  They do not want to lose, and they don’t neglect to read the police reports. Every single one of them. I call bullshit.

I think he’s overstating his case.  First, prosecuting is not like defending at all.  Greenfield is more describing the defense lawyer’s approach than a prosecutor’s.  A prosecutor is never, for example, desperate.  He just expects to win.  A prosecutor is thus much more likely to be sloppy, to not read a police report (even in a case that’s going to trial) than a conscientious defense lawyer is.  In short, it’s more than theoretically possible that Teesdale’s failure was inadvertent and not deliberate.

Beyond Greenfield and me, the judge banished prosecutor Ms. Teesdale from his courtroom, refusing to believe her failure was deliberate, but noting that even if it wasn’t she was guilty of “gross negligence” and could not thereafter be believed.

I think that’s more accurate, but in any case, assuming it wasn’t deliberate, I don’t know that Teesdale should have her entire legal career ruined, as Greenfield suggests.  I think she should probably lose her job as a prosecutor, though.  Maybe a huge showing of contrition would change my mind.  Not that what I think matters, of course.

But the more important distinction here is this:  what if Greenfield conceded that the proof of the “deliberateness” of Teesdale’s failure just wasn’t there.  Would he think that made any difference?

I suspect the answer is no, and I’ll tell you why.  In practice it would hardly ever make any difference.  There are many, many more Brady violations than Mooney violations.  And what’s more, while both are normally difficult and often impossible to prove, even within that narrow range you’re much more likely to get proof of a Brady violation than a Mooney violation.  For lawyers, it’s about what you can prove.

Greenfield again:

But there is a lingering question.  Was Megan Teesdale an outlier, a rogue prosecutor who saw the words that would destroy her case and made the decision, on her own, to deny its existence?  Was she a flaming incompetent prosecutor, the only baby prosecutor not to read the police reports in preparation for trial?  Or is this a reflection of the culture that Marvin Schechter wrote about when the Brady War broke out in New York.

To me, of course, this is a false dichotomy, for reasons I gave earlier.  But my lingering question is whether Greenfield, and the “criminal defense bar” in general, thinks “flaming incompetent” v. “rogue” makes any difference.

Update:  Take a look at this comment from Grennfield’s post:

The prosecutor violated the defendant’s due process right to a fair trial by knowingly presenting false testimony. But the judge should not have dismissed the case.

The Supreme Court had made crystal clear that this type of constitutional violation is subect to Chapman harmless error analysis…Bottom line: The case should not have been dismissed without the consent of the DA.

The commenter appears to be a law student, or maybe a young lawyer.  And maybe a prosecutor type.  In any case, in a later comment, he says this:

Due Process violations by a prosecutor (whether they be of the Brady, Napue or Giglio type)

These comments illustrate the failure to distinguish between deliberate and inadvertent conduct.  The former is not subject to harmless error analysis; the latter is.  The “bottom line” really is this:  conflating Mooney, Pyle and Napue with Brady has the effect of making Brady a limitation on Mooney, as opposed to the extension of Mooney it was meant to be and explicitly declared itself to be.  It limits Mooney by attaching a “materiality” requirement, and opening the “harmless error” vortex door through which all defense arguments disappear into the void, as usual the government’s deliberate use of perjury can then pass. 

But that door was supposed to have been slammed shut permanently almost 80 years ago.  That’s what Mooney and its progeny did, or they no longer mean anything by themselves:  they have been absorbed into the Brady orbit, as if Brady overruled them rather than extending them.

Some court, somewhere, needs to clear this up before the whole system implodes in an orgy of incoherence.  Ugh.

Update 2:  Here’s one particular thing that makes me think the SJ commenter quoted above is a prosecutor type:

If this case had gone to the jury it is possible that the jury would have still convicted the defendant, notwithstanding the victim’s contradictory statements. The jury could have concluded that the victim’s testimony at trial under oath was true, and her unsworn, contradictory pre-trial statement was false. That is a very common phenomenon in domestic violence cases involving recanting victims, although in reverse. There may be many reasons why the victim told the cops the sex was consensual. One reason is because it, in fact, was. But there might be many other reasons why she made that pre-trial statement that have nothing to do with the truth of her trial testimony. That is why we have juries.

Of course, I have said many times that the reason we have juries is that you can’t trust judges to be fair.  But then I have never been a prosecutor.

Never mind.

What is unstated in that commenter’s line of thought, and indeed never seems to enter the prosecutor’s commenter’s mind, is the oft demonstrated reality that sure, the jury might believe this or that – and then turns out to have believed wrongly.  The prosecutor’s instinct is to be very comfortable with “credibility” determinations because overwhelmingly prosecutor’s witnesses are believed.  Defense lawyers, on the other hand, know that without corroborating proof of some kind the opposite is true for them; that is, their witnesses will not be believed.  It’s one of the things that makes the defense lawyer’s job infinitely harder.

Remember commenter GK?  I had written, in relation to the most important case discussed on this blog:

“Of course the main features of this motion were the statements of Ashley Baker and Todd Gaddy, showing that the entire prosecution of Sephora Davis was a law enforcement sponsored frame up job.”

To which GK replied:

Then Ashley Baker and Todd Gaddy should testify in the criminal trial where the jury can determine their credibility

Same thought process as the SJ commenter, and I’m pretty sure GK was/is a prosecutor.  In fact I’m pretty sure of more than that.

But the problem I’m toying with – well, one problem anyway –  is that law enforcement frame-up jobs will invariably be established through documentary proof.  Which isn’t subject to a “credibility” determination, by a jury or any other fact finder.  In other words, to prove a law enforcement frame-up job you’re going to have to show how they did it, and of course they’re not going to tell you.  You’ll have to have something, like the Ashley Baker statement, that shows it beyond question and unalterably.  Once that is done, there is no point in hearing further from witnesses that have already been shown to be liars, or at least unreliable.

It’s an interesting question:  when is witness testimony unproductive in the truth finding process?  Or even counter-productive?  We explored that question here.  And here.

But among lawyers, we might be all by ourselves in our take on it.  Including criminal defense lawyers, who you might think would be on our side.

Leave a comment

Filed under Striking lawyers, wrongful convictions

Very Well Said

A little wisdom for newly minted lawyers, from Norm Pattis.

No, that’s not fair.  A lot of wisdom, really.  And a good read for anyone, lawyer or not.

Leave a comment

Filed under Striking lawyers