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Magna Carta: Happy 800th Birthday. Hooray for Greece.

June 15, 1215.  It’s nice that we can be so precise about a date so long ago, although maybe we’re deluding ourselves on that point.

No matter. It’s still June 15th, Julian or Gregorian. We can only do so much for accuracy’s sake.

In other news, Greece continues to lead the west in its most fundamental realities, and this time the reality may (we can only hope) involve throwing off the yoke of odious and probably even phony debt concocted by various interests in Brussels, London and Washington.

I think the Greek Prime Minister is right:

In his first public comments since the talks broke down, Prime Minister Alexis Tsipras on Monday said Greece would wait for its creditors to become more realistic and accused them of making unreasonable demands for political ends.

“One can only see a political purposefulness in the insistence of creditors on new cuts in pensions after five years of looting under the bailouts,” Tsipras said in a statement to Greek newspaper Ton Syntakton.

“We will await patiently until the institutions accede to realism,” he said. “We do not have the right to bury European democracy at the place where it was born.”

Is a “Grexit” in the offing?  Maybe, maybe not:

Greece’s Finance Minister Yanis Varoufakis retorted in an interview with Germany’s Bild newspaper that it was possible to reach a deal quickly if Chancellor Angela Merkel took part in the talks. He also ruled out the chance of a “Grexit” because it was not a sensible solution.

We’re with the Greeks on this.  As we so often are.

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The Government Wins

Yet another installment of gross favoritism by the SCOTUS to the government; but this time, we’re not the only ones noticing:

But what does a qualified-immunity summary reversal accomplish? It doesn’t develop or clarify the legal standard either for qualified immunity or for the substantive constitutional right (at least, not as it stands today). And it seems out of step with the Court’s general practice, stated in its rules, that certiorari is “rarely granted when the asserted error consists of … the misapplication of a properly stated rule of law.”

Indeed, as the SCOTUS often points out in denying review to the plebeians:  the SCOTUS is not a “court of error”.  Shit happens in the courts below, and if we tried to correct everything we’d never be able to sit for our portraits for lack of time.

But the SCOTUS blog article actually broaches a previously prohibited topic when it analyzes a little further:

One of two things appears to be happening…The other possibility is that, in occasional cases, the Justices can’t resist stepping in when they think a case has been wrongly decided – in the same manner that the Justices summarily reverse other types of cases, particularly (though not exclusively) grants of habeas corpus  [ED. NOTE: a grant of habeas corpus is always a ruling against the government] …if the second [i.e., this] theory is correct, wouldn’t we see dissents expressing concern that the Court is engaging in what appears to be freewheeling error-correction in favor of government defendants? One possible answer is that the impulse to correct certain errors is shared by the entire Court, although – given the controversy that civil rights cases often attract – such unanimity would be unusual.

Apparently the answer is “no” – we wouldn’t see such dissents.  The problem here is that “unanimity” is not at all “unusual” – in favor of the government, and as the SCOTUS blog article points out, such unanimity can also be found in another kind of case whenever the government loses in the courts below.  The common thread in “unanimity” being, then, not what type of case it is or any kind of rule of procedure or law, but rather whose ox is being gored.

This is not the rule of law, but rather its opposite.

The case the SCOTUS blog article is discussing seems all the more egregious when one considers that the whole immunity doctrine is made up by judges to favor the government in the first place.  The statute involved (42 U.S.C. 1983) is effectively eviscerated by the judge made immunity doctrine:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

Essentially, only people who are officials of state governments can be “persons” within the meaning of this statute; thus they are the only people who can be held liable at all.  But the SCOTUS – invented immunity doctrine says that these same people are immune from being held liable – every single one of them, the only question being whether they are absolutely immune or “qualifiedly” immune.  Isn’t that a neat trick?

So the SCOTUS favors the government in devising the immunity doctrine to make verdicts against government actors rare, and then favors them again by intervening when they think one of those rare instances has been an error, when they wouldn’t do the same for any other kind of litigant.

Got the picture? The fish rots from the head.

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Justice

We don’t often get into religious subjects around here.  But sometimes the mood strikes us, or something seems to warrant comment including some religious idea or theme or whatever.

Of course “justice” isn’t solely a religious concept, at least not in the sense that it’s peculiar to this or that religion – Christianity, Judaism, Islam, or what have you.  It’s been recognized as an important virtue – a “cardinal” virtue – certainly since pre-Christian antiquity, and probably long before that.  Thus to be a just man is, to that extent, to be a virtuous one.  This is a widely and maybe even universally held belief.

So last week we were attending this Mass and we get to the “Epistle” and it’s from the letters of St. James where he’s lecturing everyone, although that’s not as bad as it sounds because he prefaces the whole harangue with “Beloved”.  Anyway:

But let every man be swift to hear, slow to speak and slow to wrath.  For the wrath of man does not work the justice of God.

And then after this we get to the gospel reading, and it’s from the gospel of John and Jesus is, as usual, speaking to his disciples and at this point in the story he’s already died and risen from the dead and he’s talking about leaving:

But I speak the truth to you; it is expedient for you that I depart.  For if I do not go, the Advocate (i.e., Holy Ghost – ed.) will not come to you; but if I go, I will send Him to you.  And when He has come He will convict the world of sin, and of justice, and of judgment:  of sin, because they do not believe in me; of justice, because I go to the Father, and you will see Me no more; and of judgment, because the prince of this world has already been judged.

So.  It is “just” that Jesus goes to the Father, and also apparently “just” that we will see him no more.  Who says you can’t define justice?

Except I can understand this gospel quote only one way:  it is “just” that we do not see our lord and savior.*  Why should that be?  Apparently some transgression occurred that makes it just to deprive us of his visible presence.  But also, apparently, this is not a permanent condition.  Not a life sentence, in other words.**

The justice part from the Epistle is far more straightforward:  the wrath of man is not justice.  This leaves open the possibility that the wrath of God can be justice, or perhaps that wrath in general, God’s or man’s, is not justice.  Or maybe the implication is that God’s justice might resemble wrath to us but isn’t really.  Maybe it’s just coldly administered out of necessity.

So…they get this old guy because they figure out that he’s a fugitive from justice, having escaped 50+ years ago from what was evidently a rather slack sort of confinement because he really didn’t warrant maximum security even back then.  And Jeff Gamso writes about it here, and it’s an interesting episode and an equally interesting exchange in the comments, because Jeff as usual is arguing for mercy and his anonymous commenter is arguing for justice, and it doesn’t seem a wrathful kind of justice the commenter seeks but rather “general deterrence” – that is, we need to make an example of this old guy because otherwise it encourages others to escape and evade their just punishment.

Our visceral reaction here at Lawyers on Strike is entirely in line with Jeff Gamso.  We like mercy, for ourselves and for others.  And we agree that in this anomalous circumstance (actually, we are aware of a similar case that occurred locally and mercy prevailed) the insistence that a price be paid seems pointless.  Or what is worse, tedious.

Yet it does carry some weight.  It isn’t quite right to dismiss the concern entirely.  Doing justice often seems impractical, not worth the trouble.  Yet we are called to do it, for reasons that are, at best, understood imperfectly.  Like looking through a glass darkly.

Put another way, while the wrath of man is certainly not God’s justice, surely man’s mental or moral sloth isn’t either.

To me this seems an appropriate case for a pardon, which of course is not justice but mercy.  Because another thing that seems obvious is that whereas God can be merciful without cheating justice, mortals cannot.  One or the other gets shortchanged.

Our world is imperfect.  They knew that in antiquity as well.

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*  We assume for purposes of discussion the Christian viewpoint when trying to understand Christian scripture, and suggest that you should do the same if you want to really understand what’s being said.  It should go without saying, but unfortunately usually does not, that this does not require you, dear reader, to accept the Christian viewpoint, just to assume it so you can understand what is being said, since otherwise you are not making even a fair attempt to understand it.

**  This is a sort of basic Judeo-Christian understanding – that because of the fall, we can’t see or otherwise perceive God.  Again, one may or may not accept this idea but it is remarkable how some supposedly very bright people who tend towards atheism – such as Richard Dawkins or Bertrand Russell – seem unable to appreciate the point.

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Zealous Advocacy

Turns out it’s a self-serving myth.

The link is worth quoting at length:

The actual extent of the supposed duty of zealous advocacy has been the subject of careful scrutiny by the American Law Institute:
The Preamble to the ABA Model Rules of Professional Conduct (1983) . . . and EC 7-1 of the ABA Model Code of Professional Responsibility refer to a lawyer’s duty to act “zealously” for a client. The term sets forth a traditional aspiration, but it should not be misunderstood to suggest that lawyers are legally required to function with a certain emotion or style of litigating, negotiating, or counseling. For legal purposes, the term encompasses the duties of competence and diligence.

If that’s all there is to it, what is the genesis of this non-existent duty? One scholar has traced the history of the phrase back to a comment in a speech to the English Parliament in 1820 by Lord Brougham:

The Restatement view [that the term merely encompasses the duties of competence and diligence] is in line with a more nuanced understanding of the Lord Brougham defense, which was never intended as a maxim of legal ethics. Brougham made his statement in the context of a parliamentary debate, not a judicial proceeding, and the speech was intended as a veiled political threat to King George IV. In any event . . . it can hardly be argued that the Brougham speech describes the prevailing norms of the English Bar in 1820. It certainly has no general applicability.
So that’s it for the role of the zealous advocate: the duties of competence and diligence. And those duties are adequately described in the Colorado Rules. The phrase “zealous advocacy” is full of sound and fury, signifying nothing…The duty of zealous advocacy may be empty of meaning, but it is not without import. Put simply, the duty to be a zealous advocate is the single most common justification used to claim that the duty to the client is paramount, and that a lawyer is therefore justified in minimizing or even ignoring the other duties expressly stated in the Colorado Rules. It is often treated as synonymous with a duty to be ruthless — even dishonest.

The quoted article is from 2005, and notes that the giant jurisdictions of Arizona and Montana had by that time removed the references to “zealous advocacy” from their ethics codes, hoping that Colorado would soon do the same.

This is an important and maybe even interesting discussion.  And a couple of recent posts by some colleagues are fortuitously pertinent.

First, Jeff Gamso quotes Scott Greenfield, in relation to a subject we touched on at roughly the same time, that being the FBI’s recent admission that its hair analysis testimony was all wrong for decades:

UPDATE

Scott Greenfield rightly points out that it didn’t matter that we’ve been screaming about the incompetent/dishonest forensic faux-science for years – and nobody gave a shit.

While we’ve been screaming about this forever, nobody cared. Nobody listened, because we aren’t trusted government officials and it’s just us criminal defense lawyers complaining about stuff, like evidence and constitutional rights, again.

That the FBI admitted it is what stunned the legal community (of which, apparently, criminal defense lawyers are too minor a part to be worthy of recognition), because they are official.  Now the legal community cares. That’s stunning. Us, not so much.

We have often chafed at the same double standard.  It’s hard to describe the sense of frustration – and yet at the same time a kind of curiosity and bewilderment – when the exact same evidence that is deemed not newsworthy or not significant or not credible when a mere lawyer offers it suddenly becomes the holy grail of truth once someone more “official” signs off.  One is tempted to blame journalists and judges and others bitterly for their slavish devotion to faith in the status of the speaker rather than the quality of proof.  We have occasionally succumbed to that temptation ourselves.

But we have also not spared ourselves, or our brethren and colleagues, having described this phenomenon as at least to some degree a self-inflicted wound.

Dear reader!  We can’t get over the serendipity apparently at work here, because just the other day there was an even more pertinent discussion over at SJ.

Let us summarize.  You have a criminal case out of Chicago where the defendant is a cop charged with reckless homicide and the judge renders a judgment of acquittal, at trial, at the close of the prosecution’s case because the defendant was a cop and that would never happen for anyone else because the cop had fired into a crowd and the mens rea didn’t fit the facts.  Commenter Marc R. wonders why the defense didn’t raise that issue pre-trial, and SHG notes in response in his own comment:

Bennett [that is, Mark Bennett – ed.] makes a better point, that had they moved to dismiss before jeopardy attached, the prosecution could simply reindict for murder and it would have been worse.

So there are times you might refrain from bringing a legal issue to the attention of court because your client will be better off if the judge grants relief after jeopardy attaches?  That was one of the issues in a case called United States v. Basurto, 497 F.2d 781 (9th Cir., 1974), where the defendant’s attorney deliberately waited until trial to raise the issue that one of the prosecution’s witnesses had committed perjury before the grand jury.  The perjury had been admitted by the prosecutor and he had communicated that to the defense lawyer shortly after it occurred, well before the trial and well before the time for bringing defense motions.

In other words, the defense attorney gamed the procedure to put the prosecutor and judge in the position that they would have to grant a dismissal because of the admitted perjury, and the prosecution could not proceed again because of double jeopardy.

Did “zealous advocacy” require this gamesmanship?

Before you answer that question, consider the fallout from Basurto, which we have discussed 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.

You see, because of the gamesmanship by the defense attorney in Basurto, the outcome of that case was not well received either by prosecutors – or by a lot of courts:

Although a few subsequent decisions have followed Basurto, see, e.g., United States v. Ciambrone, 601 F.2d 616 (2d Cir. 1979); United States v. Smith, 552 F.2d 257 (8th Cir. 1977); United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977); United States v. Goldman, 451 F.Supp. 518 (S.D.N.Y.), aff’d, 573 F.2d 1297 (2d Cir. 1978); United States v. Gallo, 394 F.Supp. 310 (D.Conn.1975), more recent opinions have “not only cut back on the reach of Basurto, but [have] also questioned its continuing validity.” United States v. Cathey, 591 F.2d 268, 271-72 (5th Cir. 1979), citing United States v. Bracy, 566 F.2d 649 (9th Cir. 1977), stay of enforcement denied, 435 U.S. 1301, 98 S.Ct. 1171, 55 L.Ed.2d 489, cert. denied, 439 U.S. 818, 99 S.Ct. 79, 58 L.Ed.2d 109 (1978). Accord, Talamante v. Romero, 620 F.2d 784, 790 n.7 (10th Cir.), cert. denied, 449 U.S. 877, 101 S.Ct. 223, 66 L.Ed.2d 99 (1980). Indeed, a panel of the Ninth Circuit itself noted that prosecutorial misconduct must be “flagrant” to violate due process, a rather strict application of Basurto, if not an entirely new standard. See United States v. Bettencourt, 614 F.2d 214, 216 (9th Cir. 1980), citing United States v. Vargas-Rios, 607 F.2d 831 (9th Cir. 1979), and United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). See also United States v. Cederquist, 641 F.2d 1347, 1352-53 (9th Cir. 1981); United States v. Thompson, 576 F.2d 784, 786 (9th Cir. 1978); United States v. Brown, 562 F.2d 1144, 1149 n.3 (9th Cir. 1977); 8 J. Moore, Federal Practice, ¶ 6.04[2] (2d ed. 1981).

We also doubt the total validity of Basurto and, therefore, decline to follow its broad holding…

So, in that same period in the 1980’s the Department of Justice picked up on the hostility of many jurists to the holding in Basurto, a hostility that was not grounded in a tolerance for the deliberate use of perjury before a grand jury but rather the concern that Basurto’s holding opened an avenue for acquittals by defense lawyer gamesmanship.

But in practice, as we now know, repudiating the holding in Basurto could not help but engender a tolerance for the deliberate use of perjury before grand juries, and anything that is tolerated is fair game for…the “zealous advocate.”

Do prosecutors get to be zealous advocates, too?  In the mind of some members of the criminal defense bar, well, sure:

The best response I can offer is that if, as a “straight up” prosecutor, I believed that there was probable cause to pursue a civil rights violation, I would do so, do so zealously, obtain the indictment in the ordinary course and try the case with the same zeal as any other, within the bounds of the law…And if, having done the foregoing, the jury acquits, then I will take comfort in knowing that I did what I believed the law allowed and required of me.

So here’s the thesis:  the “zealous advocacy” gamesmanship practiced by the defense attorney in Basurto was part of what caused a judicial reaction that propagated an error in the law.  That error was thereupon formally adopted by the Department of Justice and “zealous” prosecutors all over the country.  The error was the belief that the deliberate use of perjury before a grand jury did not violate a defendant’s right to due process of law.

The error then proliferated for decades, causing confusion in the federal courts of appeal,  resulting in many wrongful convictions, and imposing an enormous burden on us here at Lawyers on Strike to expose and correct the pernicious error because we just wound up in the position to do that, as if by accident, like getting hit by a bus when crossing the street.

The question on the table, then:  to what extent is the cult of “zealous advocacy” criminal defense responsible for what has happened to us, and our client?

We invite thoughts from “zealous advocacy” advocates.  We are truly interested and won’t be mean.

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Moody v. Tatum: On Second Thought….

We don’t like this as a “vehicle” for presenting the issue.  We mean, the issue is of supreme importance, maybe the most significant due process issue in the last 50 years.

Maybe the most significant due process issue ever.

And so we shouldn’t have squishy facts.  But that’s what the (government) Petitioner wants:

There is nothing in the record to indicate either Pulido or Moody were aware of these informal discovery requests but deliberately withheld the information…

If it isn’t conceded by the state that the police or prosecutors deliberately concealed evidence then the case presents the issue only if those facts are found even though they are not conceded.

Notice that the government brief doesn’t concede, but doesn’t dispute either.  And this is the government’s approach in case after case where this issue – that is, the government deliberately concealing exculpatory evidence or deliberately fabricating evidence – crops up:  they are coy about it.

Coy, by the way, can be fine in romantic contexts.  But where life and liberty are at stake it is a disgraceful pose for the government to strike.  Government proclaims itself to be the protector of life, liberty and property.  If it’s flippant enough to be coy about its basic responsibilities that is already a serious problem.

One reason that coyness in this situation is highly objectionable is that, like other cases, the evidence in Moody shows unequivocally that the conduct by the officers in suppressing the exculpatory evidence was indeed deliberate, but it takes some explanation to understand how and why, and people lose patience with details and facts.  Especially the SCOTUS, where everyone believes that such trifles should be attended to by lesser minds further down the pecking order in the trial courts.

Petitioners assert, without record support, that they did not believe that there was a connection between the robberies with which they charged Walker and those for which Smith was convicted.
… The courts below and the jury rejected this assertion: “It defies common sense to believe that more than one demand – note robber of retail stores was operating in Southwest Division in the summer of 2005, both matching the same general description, and both misspelling the word ‘start’ on their demand notes.”

That’s taken from the Respondent’s brief in opposition.  If you read quite a bit more you’ll see that what is stated there is unarguably correct, but….you have to read quite a bit more, and maybe even think a little.

In any case, what the Petitioners are trying to do is fudge the facts in order to give the “conservative” justices the idea that the cops here got screwed because there was no deliberate wrongdoing. Or at least leave room for the justices to have that idea because they like that idea more than the alternative.

So the likelihood is that for that reason, among others, the SCOTUS taking up this case has a good chance of confusing things more, not clarifying them.

And on this issue, things desperately need to be clarified.  It’s been screwed up for decades, and that’s long enough.

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Two Important Things (Updated)

First, the Department of Justice has come clean about one aspect of the “forensic science” they have advocated:  it was almost complete bullshit.

We assume they won’t be using hair analysis anymore, but you never know.  It’s nice that they have come out publicly and admitted this.

Well, maybe ‘nice’ isn’t quite the right word.  In any case, we congratulate them on their candor and hope for the exoneration of those wrongly convicted with the bad science – that is, science that apparently wasn’t science.

Second – and this is the far more significant of the two, even though the first is pretty staggering – we present the SCOTUS blog’s “petition of the day” from yesterday, Moody v. Tatum.

Where to begin?

Let’s start with SCOTUS inside baseball.  Out of the many thousands of petitions for certiorari filed in the Supreme Court (SCOTUS), SCOTUS blog selects a few and designates them “Petition of the day” on the theory that there’s a good chance the SCOTUS will grant review.

What are the criteria for assessing such a likelihood?

Probably the first is that it’s the government, state or federal, that is seeking review.  The government, as we have often pointed out, is a favored litigant, and nowhere is that made more explicit than at the very top – the Supreme Court of the United States.

In Moody v. Tatum, the government is seeking review.  So, check that box and put that petition in the preferred stack.

Then, as you can see from the link, the government’s petition was filed February 17th and a few days later the Respondent (that is, the disfavored litigant) waived her right to respond.  In SCOTUS speak, that is a diss.  The Respondent is saying that it isn’t worth her time to respond, and of course if it isn’t worth her time how could it be worth the SCOTUS’ time to take it up?

See how this works?

But at this stage, anyway, someone at the SCOTUS is not having any of that.  So a few days after that, the SCOTUS requests a response from the Respondent.  Only takes one justice to do that, remember.  There could be more, but we know for sure there’s at least one.

So on April 7th a response is filed, and now the Respondent is represented by Mayer Brown, which is one of those firms.  We don’t like them especially, though we don’t dislike them either.  In any case, from here there is a two week lull, upon which time the petition will be “DISTRIBUTED” for another conference date, like it was on March 4th for the March 20th conference date.

In other words, on April 21st the petition will probably distributed for one of the following conference dates.  Probably not April 24th (too soon), so looking at May it could be the 1st, the 14th, the 21st or the 28th.  There’s a good chance it will be one of the last three.  In the meantime, the government petitioner (Moody) can reply to the Respondent’s response and try harder to make the SCOTUS grant review.

Okay.  So what is this whole Moody v. Tatum Petition about?

In a word – and we can do this here at Lawyers on Strike because this is our issue – Moody v. Tatum is about this.  And if we wanted to elaborate, we could add that it’s about this.

Now if you want to continue you really need to click the links, because we’re not going to repeat ourselves.  But we will review in a summary fashion, although unless you read the links or are already familiar with them you won’t understand our summary review either.  So click the links of you are interested.  And you should be interested, whether you are a lawyer or not, because this is important.

There are two aspects to the conflation of Brady and Mooney, and they both stem from treating Brady as if it had limited Mooney instead of having extended it.

The first is that Brady was about prosecutor disclosure of exculpatory evidence to the defense by the time of trial.  Everyone kind of agrees that Brady material should be disclosed as soon as possible, but courts have been reluctant to find that there’s an actual violation of the Brady rule unless the disclosure didn’t happen by the time of trial.

This is a quandary for Brady issues but not for Mooney issues, although the SCOTUS really has to clear that up, as the Pottawattamie case demonstrated in 2009.

And this issue is presented quite plainly by the Moody v. Tatum petition.  For that reason alone, the SCOTUS should take it up.

The second aspect of the Brady-Mooney conflation is the “materiality” requirement.  Under Brady, assuming there is a violation, a court is supposed to go on to determine whether the evidence the prosecutor failed to disclose is material – that is, would the evidence have changed the outcome?  If it would have, then the poor schmuck disfavored litigant criminal defendant gets a do-over.  But if it wasn’t “material”, then it’s no harm no foul.

How does the reviewing court know whether the evidence would have made a difference?

Let’s not go there right now because for present purposes it’s not important.  What is important is that this whole “materiality” inquiry doesn’t apply to a Mooney violation, because in a Mooney violation the prosecutor deliberately suppresses (hides) or fabricates evidence.  When it’s deliberate, the question of whether it’s material evidence doesn’t arise, having been conceded in advance since, if it wasn’t ‘material’ evidence why did you go to all the trouble of deliberately hiding it or fabricating it?

Judicial estoppel, doncha know.  The courts have to protect themselves from being mocked by those arguing before them.  Especially the SCOTUS.  Not that they’ve done a very good job when one of those arguing before them is a government of some kind.

Anyway, the SCOTUS should take up Moody v. Tatum, because it succinctly and fairly presents the first aspect and the SCOTUS can clear this up.  The poor schmuck in Moody was held in jail on charges for 27 months.  The case never went to trial, because towards the end of that 27 month period the powers that be learned that the charges were unwarranted, but they also learned that they should have learned that much earlier, except that a couple of cops deliberately lied about evidence that fairly exonerated the poor schmuck.

So after he’s released the poor schmuck sues and wins a lot of money, and now the State wants the SCOTUS to take it all away because…..under Brady there’s no violation of his rights when there has been no trial and since he wasn’t tried it doesn’t matter that the cops lied.

The State, of course, should be embarrassed to make that argument and they should be both excoriated and eviscerated for doing so.  By the SCOTUS would be nice, but of course they can’t do that if they don’t take up the case in the first place.

As an aside:  the poor schmuck, having won his judgment, doesn’t want the SCOTUS to take the case up because he has nothing to gain, and if you read the response from Mayer Brown the gist of it is that the SCOTUS shouldn’t take it up.  But if the SCOTUS does take it up, the poor schmuck will still win, because that’s the only reason the SCOTUS would take it up.

At least we hope so.  Because someone up there has been reading over here, and the guys at Mayer Brown have been, too.  That, after all, is why the Mayer Brown brief for the poor schmuck cites Mooney, Pyle and Napue:  because we have cited those same three cases abundantly over here.

And also because if Mayer Brown had done the work on their own, instead of just piggy backing on us, they would have cited this case, because it makes a critical point that Mooney, Pyle and Napue don’t that is especially relevant to their argument.

It’s okay.  I’m on their side, although I hope the SCOTUS takes this one up.  And if they can’t figure out why that extra case is relevant (I’m sure they can, but I’m not always absolutely right about everything) they can contact me privately this time.

I’ll respond.

Update:  “Distributed” for the conference of May 14th.  Right on schedule.  We learn the result either that day or when the order list comes out on May 17th.  Could be granted, denied, or relisted.  Interesting, at least to us.

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Freak Show

I don’t know anything about the case, not even the name of the Defendant.  But I think somehow we have crossed a line, where court proceedings have degenerated into theater.  Very poor theater:

I guess the woman was claiming self-defense.  The jury must have rejected that defense, no doubt having been assailed with gruesome photos of the decedent.

The judge is so out of line.

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