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Too Basic?

When you’ve lost your moorings – as an individual, a society, a profession, an institution – settled principles of conduct can become unsettled.

Take the “issue” of prosecutorial inconsistency.  We delved into that here.  But not at great length.  We thought it too elementary.  Too basic.

Sometimes we have heard prosecutors refer to “the people’s right to a fair trial”.  We try to correct them, although it is generally considered impertinent for a mere lawyer to correct a prosecutor who is, in the eyes of the system that favors him, some kind of uber-lawyer.

The government doesn’t have “rights”.  It doesn’t need them – it has power.

But we digress.

Judge Kozinski of the 9th circuit has been around a while.  More recently he appears to have had some epiphanies about prosecutor conduct, because he certainly whistled a different tune 20 years ago.

Some of his musings on the subject of prosecutorial inconsistency in the case of Thompson v. Calderon, 120 F.3d 1045 (9th circuit, 1997):

To begin with, I do not agree with Judge Fletcher’s broad statement that “it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime.” Fletcher op. at 1058. There is, in fact, a long line of cases that says, if only by way of dicta, that judicial estoppel will not apply against the government in criminal cases…That said, there is surely something troubling about having the same sovereign, particularly acting through the same prosecutor, urge upon two juries a conviction of both A and B, when it is clear that the crime was committed by either A or B. To begin with, it raises the suspicion that the prosecutor may have presented testimony he knows, or has reason to believe, is false. If that be the case, the breach in prosecutorial ethics consists of putting on the tainted testimony, not in pursuing the inconsistent verdicts…But it is impossible to make judgments about what the prosecutor knew or should have known at our level, as Judge Tashima points out. See Tashima concurrence at 1064; but cf. Fletcher op. at 1056 (finding prosecutor’s characterization of testimony “patently untrue”). Thus, if the petitioner makes a prima facie case that the prosecutor knowingly presented false evidence, the matter must be resolved at an evidentiary hearing…But, as Judge Kleinfeld points out, prosecutors are not omniscient. See Kleinfeld dissent at 1074-75. They may be confronted with witnesses who present mutually inconsistent versions of what happened, and there may be no way of knowing which version — if any — is true. Is the prosecutor then precluded from presenting either case to the jury? Must he pick one based on his intuition? I believe not. A prosecutor, like any other lawyer, is entitled to retain skepticism about the evidence he presents and trust the jury to make the right judgment. After all, the guarantee of due process encompasses a fair trial before a fair judge and jury; the right to a lawyer and to exclamatory evidence available to the prosecution; and the right not to have the prosecutor lie to the jury. But I cannot see that it encompasses the right to have a prosecutor who is convinced of the defendant’s guilt. We trust the adversary process, the good sense of jurors, the presumption of innocence and the prosecution’s heavy burden of proof to ensure a verdict that is fair to the defendant. If the system works as it should, A and B both may be acquitted, but in no event should more than one of them be convicted.

Once again, in none of all of this verbiage by Kozinski and his colleagues on the 9th circuit on the subject of prosecutorial inconsistency is Pyle v. Kansas even mentioned.


Anyway.  Let’s make a few points.

First, it is technically true that the breach of prosecutor ethics (and due process) is the deliberate use of false evidence or argument, not inconsistency per se.  But this is a meaningless quibble:  because of the inconsistency, it is absolutely certain that one or the other is false and that the prosecutor knows it.  The point of Pyle v. Kansas and the Mooney line of cases generally is that the government cannot be dishonest in its criminal prosecutions.  But how do you prove dishonesty?  Inconsistency is one way, and it leaves no question whatsoever.  It is not often you can be absolutely sure someone has been dishonest – but this is one of those times.

So.  Moving on.

Of course, as Judge Kozinski points out, there may be times when the prosecutor is confronted with conflicting accounts of this or that and so really has no firm idea of what happened or who is guilty of what, although someone is surely guilty of something.  Judge Kozinski asks if the prosecutor is precluded from presenting any case to a jury under such circumstances.

Seriously?  Of course he is.  Did a federal appeals court judge really ask that question?  WTF?

So does this mean a criminal defendant has a right to a prosecutor who is genuinely convinced he is guilty?  Judge Kozinski asks that question, too.

Well, let us ask the same question another way:  Is a criminal defendant entitled to face only such charges as are brought in good faith?

The question answers itself.

Why is this so?  Why does this have to be the rule?

Because the government has power, and doesn’t need or have “rights”.  Because, as the Judge Kozinski of 2015 – in contrast to the Judge Kozinski of 1997 – realizes:

They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich.  It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

Just so.

In 1942 nobody had to spell any of this out in any detail.  For that reason, you have to give Pyle v. Kansas a careful reading, but if you do there’s no question what it says and what it means, and it disposes of Judge Kozinski’s entire 1997 discussion of prosecutorial inconsistency in the Thompson case, quoted above.

How big a problem was this shift in prosecutorial self concept?  We have run across a parable:  the case of Jack McChullough.

The terrible abduction and murder of a little girl in 1957.  Somehow, the case that couldn’t be prosecuted back then could be prosecuted decades later – in 2012 – resulting, of course, in a conviction.

An apparently  wrongful conviction that was overturned in 2016.

Our system’s reliability depends, at the very least, upon the honesty of prosecutors.  Without it, we’ve lost our moorings.

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A Comment Here And There

Sometimes it strikes us as better to post our thoughts elsewhere, where another discussion provides context and, occasionally, valuable feedback.  The context here is that near future developments in robotics will render the great majority of people economically useless:

Just musing here, but I think the fundamental premise – that human labor (broadly defined) is governed entirely by economics with no morality component – is dubious.

Consider this formulation: there’s no such thing as “cheap labor” in the long run (apologies to Lord Keynes). People can exploit other people. The cost is still very dear, even if that is not immediately apparent.

The world has yet to adjust to the job/wage/labor impact of containerization, which is now pushing 60 years old, other than by “enjoying” its most immediate benefit: the ability to exploit the poor in other countries to fuel a “consumer economy” in the west. That, in particular, will not continue forever. Opportunity abounds, really. It always does. It’s our commitment to be fair and just and decent to one another that is – or may be, let’s not be fatalistic – failing.

It is basic, and quite independent of IQ considerations, that people want to contribute to the society they live in, and people of all sorts of IQ levels can and do, and will continue to do so. The issue is not whether they are or will be contributing, the issue is how they can or will be compensated. That issue cannot be resolved solely by economic considerations, or by political considerations either. It is a moral issue, addressed by individuals in this or that circumstance as it occurs.

Or not addressed, which is pretty much the situation now.

All of this has little to do with taxes, the minimum wage, or free trade v. tariffs. It has something more to do with the monetary system, but only because the monetary system affects things deeply on the individual level. The monetary system is both profoundly macro and profoundly micro, and the one we have is pernicious. It teaches and fosters exploitation on the individual level as if that was a positive good. It makes people morally obtuse, and eventually crazy and destructive, no matter what their IQ.


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100% Error Rate

If you decide that out of 5,000 potential innocence cases only one meets the criteria for DNA testing, and then you do the test and it exonerates the prisoner, the only accurate way to describe that result is the title of this post.

But in Colorado, the prosecutor “conviction integrity unit” conducting the reviews – or not, as the case may be, except in the one instance – boasts that it proves the opposite:  the near infallibility of the justice system on the first go round.  Because only one in 5,000.

The defect in reasoning is stunning.  Law school is supposed to weed minds like this out before they ever get to practice law at all, to say nothing of prosecuting people.


(h/t wrongful convictions blog)

Then again, systemic failure?  Well, sure.


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Designer Babies – Caveat Emptor?

We guess it had to happen.  You want the smartest, bestest baby ever so you go to the sperm bank and select the specimen with the 160 IQ and an undergraduate degree in neuro-science and a graduate degree in AI only to find out later that it’s a convicted felon with a history of mental illness.

So now there’s a lawsuit. (h/t Turley)  Apparently there are 36 disgruntled customers in the US, Canada and UK.

What must it be like to be one of those 36 babies who, for reasons completely beyond their control, are a source of deep disappointment, anguish and frustration to their mommies?

And what sort of mommies are these?  The mind reels at the dysfunction at work in all this.

We suspect it will be difficult to find a jury sympathetic to anything or anyone in this controversy.  Ugh.

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Oops, We Took 20 Years of Your Life by Mistake. Have a Nice Day: What society owes the exonerated

It’s nice to see an exoneree doing well. But exonerees are entitled to much, much more than $50,000 per year of incarceration. They should be paid, and especially if they’ve done what this exoneree has done, they should be honored.

Wrongful Convictions Blog


By: Jarrett Adams

The recent and tragic suicide of my friend and fellow exoneree Darryl Hunt is a stark reminder that no monetary compensation can make up for the psychological toll of wrongful conviction. When a wrongfully convicted person is released from prison, it’s often to a throng of reporters clamoring to capture images of an emotional reunion with his smiling family and friends, and lawyers. These images instill a sense of vindication and a happy ending. But what is too often unseen is how difficult it is to re-enter society after years or decades of confinement — especially if you are innocent. These are the unseen scars, and too many states pay them inadequate attention, or none at all.

In 1984, when he was 19, Darryl, an African-American man, was convicted of a crime he didn’t commit, the rape and murder of a young white woman in…

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More Mischief From The 7th Circuit

Bianchi v. McQueen.  We didn’t like this case after it came out of the District Court.

We like it less now, coming out of the 7th Circuit Court of Appeals.  Just a few days ago.

We might spend a little more time on it later, but for now we’ll just make a few observations, in no particular order.

First, the panel is Posner, Easterbrook and Sykes.  Sykes you can read about here.  She’s been pretty much on a campaign to undo or thoroughly confuse or otherwise neuter Whitlock v. Brueggemann.  It’s a cop-prosecutor protection thing.  Easterbrook is a smart guy, but he’s also the author of Buckley v. Fitzsimmons, a truly horrible bit of legal “reasoning” that went back and forth to the Supreme Court in the early 1990’s and left a black mark on us all.  Don’t believe us?  We quote:

Probable cause is enough to initiate a criminal prosecution. It takes proof beyond a reasonable doubt to convict. That difference, together with uncertainties in what the evidence will show, implies that some innocent persons will be prosecuted. Trial is supposed to filter out the innocent, a task it serves well if imperfectly.

Only someone who has never tried a case for a criminal defendant or personal injury plaintiff could say that.  It’s risible.  But he goes on to almost instantly contradict himself, not even getting to the next page:

Accusation and trial are wrenching experiences, especially for the innocent. On top of trauma comes expense and often the loss of freedom pending disposition. How should society respond when an innocent person is prosecuted?…Innocent defendants, rightly feeling put upon, may respond to this governmental indifference by turning on their accusers, making them defendants in turn. They demand that the prosecutors, police, and witnesses dig into their own pockets to provide recompense. If courts could quickly and reliably identify malicious prosecutions, those in which the case was manufactured or conviction unattainable, it might make sense to award damages, to cause prosecutors with the power to destroy others’ lives to do their jobs with the care that their responsibilities require. But the legal system is neither quick nor infallible.  To allow a search for malicious or weak prosecutions is to license litigation at any defendant’s option…

All the confidence in the “trial” evaporates when the shoe is on the other foot.  When the government is the accuser, well, let’s have a trial to sort it all out.  It works just fine, if a bit imperfectly!  When the government is the Defendant, well, that’s another story.  All of a sudden trials are a terrible burden, “neither quick nor infallible”, and we must be wary not to “license litigation” although that doesn’t seem to bother us when it’s the government doing the litigating.

Where is Judge Easterbrook going with all this?  Very immunity.  Much Absolute.


And the line about prosecutors, police “digging into their own pockets” can only be disingenuous.  Easterbrook knows better:  officials are indemnified; the claims are paid, if they ever are in fact paid, by insurance or the municipality.

That’s a terrible falsehood to put in an opinion from a federal appeals court.

More on this some other time.  Villanova playing.  Much final four. Very alma mater.

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Good Friday 2016

We can’t improve on what we wrote four years ago, at least in terms of communicating the thought to people.

It was then, and is now, neither proselytizing nor advocacy of any kind, but simply an effort to explain an idea, on a day when perhaps many people seek an explanation of some kind.  Our own opinion, for what it is worth, is that our reasoning faculty attests to the fundamental truths of religion and that atheism is ultimately irrational.  On the other hand, the rational isn’t always true and the irrational isn’t always false, so there’s that problem.

Or maybe it isn’t a problem for this reader or that, or for us, or for you.  Each individual can make of it what they will, a state of affairs with which we are perfectly content.

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