Category Archives: Uncategorized

When The Shoe Shifts To The Other Foot

So the very high profile prosecution of Pittsford’s Charlie Tan comes to an end in Justice Piampiano’s courtroom, not by a jury’s decision but by the judge’s.

The prosecutors are upset:

“This is appalling. In my 24 years, I’ve never in my life experienced anything like that. This whole trial presented a unique set of facts, but this is definitely unprecedented,” said District Attorney Sandra Doorley, R-Monroe County.

Prosecutor Bill Gargan interrupted the judge at one point. Piampiano told him to stop talking or he would have him handcuffed and thrown in jail. The two yelled back and forth several times as Gargan accused Piampiano of having amnesia – of forgetting some of the evidence that had been presented. Piampiano told Gargan he was offensive.

We at LoS were most impressed, however, by this comment:

“The judge’s decision did not comply with the law based upon the evidence presented, and the judge took pains to recite certain facts, while leaving out others,” Gargan said.

Every criminal defense attorney, and every personal injury Plaintiff’s attorney, has had that exact same experience many, many times, though we are by no means conceding Mr. Gargan’s point in the case at hand because we haven’t read any transcripts or heard any arguments.

That aside, I’ll never understand why judges feel like partisans who have to massage the record to better conform to their determinations, rather than the other way around.

Nevertheless, the unfortunate reality is that Sandra Doorley is right:  it’s unprecedented – but only when it happens to the prosecution.  It happens to disfavored litigants all day, every day.

The “community”, as they say, is divided and of course the one side is “outraged”, seeing this as a “wrongful acquittal“.  And it may be, we have no idea, but even if it is there is no cause for outrage.  An acquittal is always a proper outcome in our system.  Only a conviction can be wrongful.

On one level we can sympathize a bit with the prosecution here, though:  we, too, have been known to say intemperate things when a judge has in our opinion subverted the jury process.  But then we have always had real clients, not abstractions like “the people”, and we are legitimately entitled to a little latitude on advocacy whereas prosecutors, being theoretically disinterested in outcomes, are not.

Indeed, this little episode demonstrates how very far practice is from that theory.



Filed under Uncategorized

The Jesuit Pope And “Divorced Catholics”

The media, being completely ignorant of the very fundamentals of Catholicism, can see the transition from the papacy of Benedict to the papacy of Francis only in political terms:  Benedict the “conservative”; Francis the “liberal”.  First pope from the Americas.  Blah blah.

But any educated and knowledgeable Catholic would understand that the most revolutionary aspect of the Francis papacy is that he’s a Jesuit.  The first Jesuit pope.  That is a very big deal indeed.

We’ve had limited dealings with Jesuits over the years, and we don’t think they are now what they once were, but we also think it can still be said that the Jesuits as a group are characterized by their formidable intellectual skills and high level of education.  This in turn leads to one of the most needful things in evaluating any difficult problem:  clarity of thought.

So over the summer Pope Francis issued some “motu propio” document or other about marriage and family and so on and it was called “Instrumentum Laboris” or some such.  And among the circles we move in – to the extent we “move” in any “circles” as opposed to being mired in day to day solitary anguish – people are upset that the “liberal” pope is caving in on divorced and remarried Catholics and how they maybe can now get communion and so on, because historically they have been barred from the sacraments.

But it’s plain that Pope Francis, though he be a “liberal”, understands with perfect clarity something that many other high ranking Catholic clerics – bishops and cardinals and whatnot – don’t understand and apparently haven’t understood for a long time:  there is no such thing as a divorced and remarried Catholic:

He said that the many problems needing attention can be found in the synod’s instrumentum laboris, but said he was glad to get a question on “Catholic divorce” and clarified that “it doesn’t exist.”

“Either it wasn’t a marriage, and this is nullity — it didn’t exist. And if it did, it’s indissoluble. This is clear.”

Many Catholic leaders outside the United States have noted for years – decades, really – that in the US the Catholic Church has granted all kinds of annulments of marriages so that remarried Catholics wouldn’t be “excommunicated” anymore.  And it’s fair to say it’s been a scandal all by itself:  you get people born and raised Catholic who married at a mature enough age and have children and then one or both of them flake out and the government grants them a “divorce” and then there’s another marriage and more children and to accommodate all this the Church pretends that they were never married in the first place.  Which is, you know, wrong and scandalous.

But there comes a point where perhaps an accommodation must be made, if only because there are so many “divorced” and “re-married” Catholics, or people who call themselves Catholics, or whatever.  And as with everything else Catholic, no one needs to reinvent the wheel, it’s all been said and written about before, usually more than once but almost always at least once.

And so here’s St. Thomas Aquinas on “bigamous” marriages:

Article 5. Whether it is lawful for a bigamist to receive a dispensation?

Objection 1. It would seem unlawful for a bigamist to be granted a dispensation. For it is said (Extra, De bigamis, cap. Nuper): “It is not lawful to grant a dispensation to clerics who, as far as they could do so, have taken to themselves a second wife.”

Objection 2. Further, it is not lawful to grant a dispensation from the Divine law. Now whatever is in the canonical writings belongs to the Divine law. Since then in canonical Scripture the Apostle says (1 Timothy 3:2): “It behooveth . . . a bishop to be . . . the husband of one wife,” it would seem that a dispensation cannot be granted in this matter.

Objection 3. Further, no one can receive a dispensation in what is essential to a sacrament. But it is essential to the sacrament of order that the recipient be not irregular, since the signification which is essential to a sacrament is lacking in one who is irregular. Therefore he cannot be granted a dispensation in this.

Objection 4. Further, what is reasonably done cannot be reasonably undone. If, therefore, a bigamist can lawfully receive a dispensation, it was unreasonable that he should be irregular: which is inadmissible.

On the contrary, Pope Lucius granted a dispensation to the bishop of Palermo who was a bigamist, as stated in the gloss on can. Lector, dist. 34.

Further, Pope Martin [Martinus Bracarensis: cap. xliii] says: “If a Reader marry a widow, let him remain a Reader, or if there be need for it, he may receive the Subdiaconate, but no higher order: and the same applies if he should be a bigamist.” Therefore he may at least receive a dispensation as far as the Subdiaconate.

I answer that, Irregularity attaches to bigamy not by natural, but by positive law; nor again is it one of the essentials of order that a man be not a bigamist, which is evident from the fact that if a bigamist present himself for orders, he receives the character. Wherefore the Pope can dispense altogether from such an irregularity; but a bishop, only as regards the minor orders, though some say that in order to prevent religious wandering abroad he can dispense therefrom as regards the major orders in those who wish to serve God in religion.

Reply to Objection 1. This Decretal shows that there is the same difficulty against granting a dispensation in those who have married several wives in fact, as if they had married them in law; but it does not prove that the Pope has no power to grant a dispensation in such cases.

Reply to Objection 2. This is true as regards things belonging to the natural law, and those which are essential to the sacraments, and to faith. But in those which owe their institution to the apostles, since the Church has the same power now as then of setting up and of putting down, she can grant a dispensation through him who holds the primacy.

Reply to Objection 3. Not every signification is essential to a sacrament, but that alone which belongs to the sacramental effect,* and this is not removed by irregularity. [Leonine edition reads “officium,” some read “effectum”; the meaning is the same, and is best rendered as above.]

Reply to Objection 4. In particular cases there is no ratio that applies to all equally, on account of their variety. Hence what is reasonably established for all, in consideration of what happens in the majority of cases, can be with equal reason done away in a certain definite case.

So clearly, if we are to credit St. Thomas – and what thinking person of any faith or none, to say nothing of a Catholic, could fail to credit St. Thomas, Aristotle’s truest disciple? – a dispensation can cure the “irregularity” of a bigamous marriage.

And the pope can grant a dispensation.

Which is not to say that any of this is easy.  Popes don’t like to grant dispensations.  It’s like presidents and governors granting pardons, and of course every protestant has been waving readily given “indulgences” in every Catholic’s face since the “reformation”.

But just like a jubilee may be the only genuine solution for our financial woes, maybe some sort of mass dispensation for Catholics who have divorced and re-married (sic) is in the works.

Liberal or conservative? Meh. The spiritual wreckage in Catholicism over the last 50 years is a simple fact that must be addressed, and bigamous marriages are a part of that.

Error recognition is a necessary precursor to error correction, someone we know often says.  Correctly understanding the error is of course the only way to recognize it, and leave it to the Jesuits:  they are still the Catholic Church’s clearest thinkers.

Leave a comment

Filed under Uncategorized

Judicial Restraint

George Will tackles the subject like a layman in a Washington Post article this morning.

Why do we say like a layman?  He bandies about the big idea, but his opinion isn’t informed by in-depth study or experience. He understands the Hobbes outlook as contrasted with the Locke outlook, but only in the most abstract sense.  No lawyer, probably not even the big-law types, would fail to mention in a discussion about when it’s appropriate for the judiciary to be “passive” versus “active”, the revolution that occurred over the last 50 years in criminal law, criminal procedure, and the hard reality of mass incarceration and criminalization.

Here’s another point that we think is important but would probably be missed by most lawyers as well as laymen like Will:

Lockeans favor rigorous judicial protection of certain individual rights — especially private property and freedom of contract — that define and protect the zone of sovereignty within which people are free to act as they please.

On the spectrum of natural rights deserving of rigorous judicial protection, private property and freedom of contract are not, and should not be, on the same level at all.  Private property is much more important.

That’s a long discussion, though.  Another time.

Leave a comment

Filed under Uncategorized

Jury Pools And The Guilt-Minded

Here in Rochester we recently had an interesting and high profile murder case that ended in a hung jury.  The Defendant’s name is Charlie Tan and you can read the basic allegations here.

We’re not going to get into that as much as the dynamics of the jury, that deliberated for a week before the judge pulled the plug and declared a mistrial.  To a trial attorney those dynamics are both fascinating and instructive.

According to one local news reporter:

jurors said they began with 9-3 in favor of acquitting Charles Tan and ended 8-4 in favor of guilty.

So.  Three people who were guilt minded managed to convince another five to change their minds over 50 hours of heated deliberations and a solid week cooped up in a jury room.  And they were upset that the judge pulled the plug because I’m sure they felt they could convince the rest:

“We were shocked,” said juror Jennifer McGoff of Greece, following the declaration of a mistrial.  “We wanted more time.”

Juror Jeff Capamaggio of Brockport agreed: “It was very possible we would have gotten there, I think we would have done it this afternoon.”

McGoff and Capamaggio said the jury never stopped working, and members were actively trying to reach a verdict despite several “fence-sitters.”

Needless to say, the quotes come from guilt minded jurors.

There is one thing that social media have plainly revealed in cases like Casey Anthony’s, Amanda Knox’s and Jodi Arias‘ (check some of the 491 comments to that last post): the guilt minded tend to be fervent.  Even fanatical.  They think of those who might not go along as “fence-sitters”, at best.

Why is that?

Some of it has to do with the poisoning of the jury pool, we think.  An article in the Washington Post yesterday dealt with body cameras for police and public access to the video thus generated, but what most struck us in the article was what was inadvertently revealed:

In 36 states and the District this year, lawmakers introduced legislation to create statewide rules governing the use of body cameras, often with the goal of increasing transparency.

Of 138 bills, 20 were enacted, The Post found. Eight of those expanded the use of body cameras. However, 10 set up legal roadblocks to public access in states such as Florida, South Carolina and Texas. And most died after police chiefs and unions mounted fierce campaigns against them.

Police officials defend that effort, saying overly lax rules could end up helping criminals. Jury pools could be tainted by the general release of video evidence, making it difficult to win convictions.

This argument comes from the group that feeds stories of every arrest to the media; ensures a person’s “mug-shot” is publicized; stages “perp-walks” for their favored journalists.  They are so aware of their own efforts to taint the jury pool that they mount “fierce” campaigns to prevent the shoe being placed on the other foot.

But we don’t want to place all the blame on police and their unions.  There’s a base impulse inside all of us, a sub-rational and primitive drive to externalize the wrongdoer and expiate ourselves through our enthusiastic vilification and punishment of them.  In the guilt minded this impulse is very strong, and the law enforcement community merely taps into it because they can, and because know how “powerful” it is.  That they feel so threatened by evidence supporting a counter-argument shows they are afraid of reason.

A civilized people have no fear of reason.  Quite the contrary, really.



Filed under Uncategorized

Bill Coming Due?

The markets can remain irrational longer than you can remain solvent.  That’s supposedly a quote from Lord Keynes.  Still, we think it’s better to be rational than irrational, however that might pan out in the “markets”.

We’ve got a real problem on our hands.  It’s been a problem for decades and our rulers have more or less papered it over all that time and lived with the occasional “crisis”: 1980’s S&L crisis; 1987 stock market crash; 1990’s Asian currency crisis and Long Term Capital Management failure; stock market bubble pop of early 2000’s; real estate bubble pop of mid-2000’s; Lehman-capital markets crash of 2008, which included collapse of Washington Mutual, then the largest “savings and loan” in the US; the recent Greece crisis.

Has there been “stability”?  Of a kind, sure.  The 1% have consolidated their position on the top; the 99% have become ever more mired in their lesser status.  Social mobility used to be considered an important thing.  But never mind.

What I don’t get is that even Ambrose-Pritchard – probably the most insightful journalist in the world on this topic – never seems to straightforwardly get to the real point:  the fed’s rate raising’s most devastating consequence will be to the balance sheets of the institutions holding large amounts of low yield debt instruments, derivatives and whatnot.  Because as capital holdings their value will plummet dramatically with even small increases in the interest rates.  And then those institutions will have to be “bailed out” or they will fail, and the row of dominoes does its thing.  Only it’s no game.

So for this reason, we’re not even convinced that all the talk about rising interest rates means that’s going to happen.  It might be another bluff.

Besides all that, it would seem that one short term result of a rising interest rate environment is that there will be a spurt in borrowing: potential borrowers will finally understand that it might be cheaper to borrow today than tomorrow and go for it. One of the unintended consequences of 0% interest rates has been monetary stagnation, except through government borrowing.

We are surprised, of course, at how long the PTB have been able to kick the can down the road.  We thought it might all come crashing down years ago.  Fundamentally nothing has changed, though – that’s what kicking the can down the road means.

The solution is still a jubilee, and a jubilee is still going to happen one way or another:  in a lawful and orderly way, or in a violent and chaotic way.  The smart money is on the latter, we imagine.

But we hope it doesn’t work out that way.  For our own sake.  And others’.

Leave a comment

Filed under Uncategorized

Judge Sykes Again

In a tidy illustration of how the whole 3 judge panel thing in federal courts of appeal works – or doesn’t, as the case may be – we give you the recent case of Stinson v. Gauger, with Judge Sykes writing for the majority:

Robert Lee Stinson spent 23 years in prison for a murder he did not commit. He was exonerated by DNA evidence and now sues the lead detective and two forensic odontologists who investigated the murder and later testified at trial.

A pretty dramatic opening line.  But Judge Sykes doesn’t actually believe Mr. Stinson is what you’d call an innocent man:

About two days after the murder, Milwaukee homicide detective James Gauger and his partner, Tom Jackelen, assumed responsibility for the investigation. They started by reviewing the work other officers had done to that point and meeting with Dr. Johnson, who described the killer’s teeth and showed them a preliminary sketch. No police reports memorialize this meeting and the parties dispute what was said, but according to Stinson’s version of events, Dr. Johnson informed the detectives of his working hypothesis: the killer had one twisted tooth and was missing the upper right lateral incisor (the tooth just to the right of the two front teeth).

Armed with this information, the two detectives began interviewing people who lived near the scene of the crime. Stinson’s house was immediately to the north of the yard where the body was found. Gauger already knew Stinson. Two years earlier, Gauger had tried and failed to prove that Stinson was responsible for the murder of a man named Ricky Johnson. The Johnson homicide was never solved, even though a witness identified Stinson and two others as having been involved. To this day, Gauger believes that Stinson was responsible for Ricky Johnson’s murder.

See, he didn’t do the murder for which he was convicted, but he did another murder.  Maybe more than one.  This is what law enforcement believes, what they usually believe in such circumstances (“If he’s not guilty of this then he’s guilty of something else just as bad!”) and accordingly this is what Judge Sykes believes.  It seems her primary qualification to be appointed by President GW Bush to the federal appeals court bench was that she had been married to a popular right-wing radio personality named Charlie Sykes.

They are now divorced, but never mind.

We’ve reached a stage in our social development where we call ourselves neither liberal nor conservative but rather more libertarian, but Judge Sykes is too invested in a “conservative” world view to undergo much further social development, or indeed any development at all.  We might agree with her on some things, but even a cursory review of her work as a federal judge shows that her decisions are based entirely on political outlook:  law enforcement wins; Christian religious causes win; corporate business interests win, unless they’re up against law enforcement or Christian religious causes.

The problem with this Stinson opinion, though, is that it’s continuing to make a hash of the Mooney-Brady progress that was recently made in such cases as Whitlock v. Brueggemann:

The core of Stinson’s case is his contention that Drs. Johnson and Rawson falsified their expert opinions and that Gauger solicited or conspired with them to do so. Recent cases in this circuit hold that a prosecutor who fabricates evidence against a suspect and later uses that evidence to convict him violates due process, and this due-process right was clearly established by at least the early 1980s. See Fields v. Wharrie (“Fields II“), 740 F.3d 1107, 1114 (7th Cir. 2014); Whitlock, 682 F.3d at 585-86. The constitutional violation occurs when the evidence is fabricated, not when the fabricated evidence is later introduced at trial—a crucial distinction because the prosecutor would have absolute immunity for any constitutional violation committed during the trial. See, e.g., Fields v. Wharrie (“Fields I“), 672 F.3d 505, 517-18 (7th Cir. 2012); Buckley v. Fitzsimmons (“Buckley IV“), 20 F.3d 789, 794-95 (7th Cir. 1994).

It’s not entirely clear that the same reasoning applies to police officers and expert witnesses who are alleged to have fabricated evidence during an investigation. Unlike prosecutors, police investigators face liability for failing to disclose their own fabrication of evidence. See, e.g., Manning, 355 F.3d at 1034. That’s because immunity doesn’t protect an officer who fails to disclose material exculpatory evidence as required by Brady, see id. at 1033, even though a prosecutor who did the same thing would have absolute immunity for the suppression, see Fields I, 672 F.3d at 514.

Note the citation to “Fields II”.  Sykes, we hardly need mention for those who have been following us here closely, wrote a very strongly worded – and highly misguided – dissenting opinion in that case.  She now gets to “interpret” what the case she strongly disagreed with means in another case.

Is this a problem?  We think so.  Judge Sykes writing in Stinson:

Whitlock thus distinguished this court’s earlier decision in Buckley IV, which rejected a due-process claim based on allegations that investigators coerced and solicited false testimony. Buckley involved a prosecutor who had been told by three different experts that a bootprint left at the scene of the crime could not reliably implicate Buckley, but sought a fourth opinion from an expert who had a reputation for producing scientifically unreliable opinion testimony. 20 F.3d at 796. She told the prosecutor and investigators “that no one but Buckley could have left the bootprint on the door—and that she could identify the wearer of a shoe with certainty even if she had only prints made with different shoes.” Id. We explained in Buckley IV that “[n]either shopping for a favorable witness nor hiring a practitioner of junk science is actionable” as a constitutional violation; a due-process violation occurs, if at all, only when the testimony is offered at trial without compliance with Brady. Id. at 796-97.

Whitlock did not disagree with Buckley IV on this point. Instead the panel distinguished shopping for unreliable experts (among other wrongful conduct at issue in Buckley IV) from the evidence falsification at issue in Whitlock, which involved feeding witnesses details of crimes that they couldn’t have known. See Whitlock, 682 F.3d at 572, 584. Why the distinction? Because “[e]vidence collected with the[] kind[] of suspect techniques [at issue in Buckley IV], unlike falsified evidence and perjured testimony, may turn out to be true.” Id. at 584. Sorting out reliable and unreliable evidence is an ordinary matter for trial, through the crucible of the adversary process, so the use of these suspect techniques doesn’t violate due process unless the evidence is introduced at trial without adequate safeguards, such as disclosure of all material exculpatory evidence as required by Brady. Subsequent cases have confirmed that the due-process cause of action recognized in Whitlock is factually limited to cases involving evidence fabrication. See Petty, 754 F.3d at 422-23; see also Fields II, 740 F.3d at 1112.

But this is what she said in her Fields II dissent, and we’re sorry for the lengthy quote but this is important:

Three months after we issued our opinion in Fields I, a new decision of this court,Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir.2012), unsettled Buckley (and by extension, unsettled Fields I as well), which led the district court to do an about-face on remand in this case. Wharrie’s new appeal requires us to decide whetherWhitlock and Buckley can be reconciled. I think the answer is plainly “no.”

As my colleagues have noted, Whitlock drew a distinction, for qualified-immunity purposes, between a prosecutor who coercively interrogates witnesses and a prosecutor who fabricates evidence. See Majority op. at 1112-13. Whitlock observed that coercion and unsavory tactics like paying for testimony and witness shopping “may be deplorable, and … may contribute to wrongful convictions, but they do not necessarily add up to a constitutional violation even when their fruits are introduced at trial … [because] [e]vidence collected with these kinds of suspect techniques, unlike falsified evidence and perjured testimony, may turn out to be true.” 682 F.3d at 584. This proposed distinction between “coerced” and “fabricated” evidence was the linchpin for distinguishing Buckley and permitting the claim against the prosecutor inWhitlock to proceed. The Whitlock panel thought the prosecutors in Buckley had been accused of coercing witnesses and using other suspect tactics but were notalleged to have fabricated evidence, and on that basis distinguished the case. Id. at 584-85.

Regrettably, that was a mistake. In fact, both Buckley and Whitlock involved allegations that prosecutors had coerced, cajoled, paid for, or otherwise solicitedfalsified statements from witnesses — in other words, they fabricated evidence. Indeed, Buckley repeatedly refers to allegations that prosecutors coercively obtained “false inculpatory statements” from witnesses and “fabricated” or “manufactured” testimony and evidence from an expert.[4] 20 F.3d at 794-95. So regardless of whether Whitlock‘s proposed distinction between “coerced” and “fabricated” witness statements is valid in theory — and makes a difference in the constitutional analysis — it simply was not present as a factual matter and therefore cannot provide a basis on which to distinguish Buckley from Whitlock.[5]

Yet my colleagues perpetuate the distinction here. See Majority Op. at 1109-10, 1112-13. I appreciate the force of stare decisis; we should try to harmonize the two cases if we can. With respect, however, harmonization is impossible. Whitlock andBuckley are factually indistinguishable and legally irreconcilable. They cannot both be the law. We must decide which one is correct.[6]

For my part, I think Buckley is correct and Whitlock should be reconsidered. Because mine is the minority view here, any reconsideration of Whitlock must await a petition for rehearing en banc, which Wharrie may choose to pursue or forego. For the record, I’ll briefly sketch the conceptual difficulty Whitlock has introduced, which I believe warrants the full court’s attention.

In other words, Judge Sykes thinks the whole issue warrants en banc review by the whole court.  We think she’s probably right about that in the abstract, but we nevertheless hope that doesn’t happen in the 7th circuit, because Judge Sykes has it exactly backwards:  Whitlock isn’t the problem opinion; Buckley IV is.

Want proof?  Keep reading Judge Sykes’ dissenting opinion (again, a long quote).  It’s impenetrable and incoherent:

I have already described Buckley’s qualified-immunity holding, which was and remains sound. Whitlock rejected qualified immunity for a similarly situated prosecutor by using common-law causation principles to find an actionable constitutional violation where one did not otherwise exist. I do not agree with this development in our circuit’s law.

As I’ve explained, Buckley contains two important principles of immunity law that apply in suits alleging prosecutorial misconduct: (1) a prosecutor’s use of fabricated evidence at trial may be actionable as a violation of the defendant’s right to due process — under the rubric of Brady or perhaps more generally as a violation of the right to a fair trial — but the prosecutor is absolutely immune from suit under Imblerand related cases, see 20 F.3d at 794-95; and (2) a prosecutor’s fabrication of evidence against a suspect during an investigation is covered by qualified immunity because it doesn’t violate clearly established constitutional rights, see id. at 794-98.Whitlock’s innovation is to use common-law causation analysis to eliminate the effect of both forms of immunity. The panel held that “[t]he actions of an official who fabricates evidence that later is used to deprive someone of liberty can be both a but-for and proximate cause of the due process violation.”[7] Whitlock, 682 F.3d at 583.

As applied to a prosecutor, this reasoning circumvents both qualified and absolute immunity. Both immunities are well established and important. See Van de Kamp,555 U.S. at 341-43, 129 S.Ct. 855 (absolute immunity); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (qualified immunity); Imbler, 424 U.S. at 424-26, 96 S.Ct. 984 (absolute immunity). Absolute immunity can sometimes produce harsh results, but it has long been thought necessary to encourage and protect the vigorous performance of the prosecutorial function. See Van de Kamp,555 U.S. at 341-43, 129 1121*1121 S.Ct. 855; Imbler, 424 U.S. at 424-26, 96 S.Ct. 984.

In a shorthand version, the rule announced in Whitlock is basically this: A prosecutor who falsifies evidence during an investigation violates no clearly established constitutional rights and thus has qualified immunity from suit (see Buckley), but his conduct is nonetheless actionable as a non-immune subsidiary “cause” (both but-for and proximate) of a due-process violation that occurs later, when the prosecutor introduces the falsified evidence at trial — even though the prosecutor is absolutely immune from suit for the due-process violation. In other words, the only conduct that can possibly form the basis of a constitutional claim — the prosecutor’s trial conduct — is fully protected by absolute immunity, but the prosecutor can be sued anyway, based on the causal link between his nonactionable investigative conduct and hisimmunized trial conduct.

Aside from destabilizing immunity law, this chain of reasoning overlooks some basic differences between common-law and constitutional torts. Common-law causation rules flow from the nature of duty and breach in tort law. Everyone has a general tort duty to refrain from doing an act or omitting a precaution that creates a foreseeable, unreasonable risk of harm to other persons or property. See generallyRESTATEMENT (SECOND) OF TORTS § 282 (1965) (defining negligence). The duty is broad and undifferentiated and is owed to everyone at all times, and anyone who breaches it is liable for harms factually and proximately caused.

Constitutional rights — and the corresponding duties imposed on governmental actors — are not like the generalized rights and duties imposed by negligence law. They are implicated at specific times and in specific circumstances. As relevant here, Fields’s due-process rights came into play after he was charged; the Brady disclosure duty is an aspect of the right to a fair trial, as is the broader right not to have the trial process subverted by the knowing introduction of falsified evidence.See Serino, 735 F.3d at 592; Newsome, 256 F.3d at 751-52; Buckley, 20 F.3d at 796-97. So Wharrie’s act of extracting a false statement from Sumner during the investigative phase of the case did not violate Fields’s due-process rights. A prosecutor who commits this kind of misconduct has behaved deplorably but has breached no constitutional duty and thus committed no constitutional wrong.

It is impenetrable and incoherent, that is, unless one adopts the erroneous notion that Mooney has been “generally subsumed” into Brady and that prosecutor lying and cheating doesn’t matter unless it occurs at a trial, because Brady doesn’t get violated until there’s a trial.

But beyond the stunning intellectual errors, it’s embarrassing that a federal judge engages in such strained reasoning and mental gymnastics in the service of the odious desire to excuse government lying and cheating and depriving the victims of it of redress.  We don’t know how anyone prefers that result outside of pathological reasons.

Not to mention is is profoundly contrary to the legal traditions of this country.  In 1915 – 100 years ago exactly – Judge Sykes’ and her ilk’s artificial segmentation of due process’ application to this or that “stage” of a criminal prosecution would have been seen for the disingenuous nonsense that it is.  From Frank v. Mangum:

In the light, then, of these established rules and principles: that the due process of law guaranteed by the Fourteenth Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a State on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the State, and 332*332 not merely a single step in those proceedings;…

We really have degenerated morally in the last 100 years.  Ugh.

Leave a comment

Filed under Uncategorized

Of Backstops And Due Process

So there’s this guy from the Heritage Foundation and he went to Stanford Law and he clerked for Robert Bork and he worked in the Justice Department and so, you know, he has a great resume and he writes well and all that.

His name is Paul J. Larkin, Jr., and it’s too bad that all of his intellectual firepower has metastasized because it’s only ever lived in Washington, D.C. in the service of punditry and wonkery and in thrall to power.

Anyway, he’s got a brand new article out (here)(more footnotes than text, must be really deep) and he’s perpetuating, or trying to perpetuate, the mythology that the Mooney line of cases and their “due process” holdings are applicable only to the deliberate use of perjury at trial:

An example of the second category—actions that effectively deny a defendant a trial as we know it— …. would be the Court’s decisions barring the state from using perjured testimony to prove the defendant’s guilt (fn113) and the Court’s decisions holding that certain constitutional errors cannot be harmless under any circumstances…

Here’s foonote 113:

See, e.g., Napue v. Illinois, 360 U.S. 264 (1959) (ruling that due process forbids a prosecutor from knowingly allowing a witness’s perjury to go uncorrected at trial); Pyle v. Kansas, 317 U.S. 213 (1942) (ruling that due process forbids a prosecutor from intentionally using perjured testimony to convict a defendant); Mooney v. Holohan, 294 U.S. 103 (1935) (ruling that due process forbids a prosecutor from proving a defendant’s guilt entirely through perjured testimony); cf. Giglio v. United States, 405 U.S. 150 (1972) (ruling that due process forbids the prosecution from not disclosing to the defense evidence that impeaches the credibility of a prosecution witness); Brady v. Maryland, 373 U.S. 83 (1963) (ruling that due process forbids the prosecution from not disclosing to the defense exculpatory evidence on the issues of guilt or innocence).

Note that Napue and Pyle and Mooney are lumped together with Brady and Giglio.  Ugh.

We’ve been over this, but it bears repeating because this plainly erroneous thinking, shared by far too many in the profession, has not yet attained the status of law.  But it’s come close, and may yet come closer.  From later in the same article:

In any event, the Court has begun to walk away from its due-process-as-backstop line of precedents. The Court first put the brakes on this approach is Graham v. Connor, 490 U.S. 386 (1989), a case involving a claim of police brutality during an arrest. Reasoning that the Fourth Amendment Reasonableness Clause directly applies to arrests as “seizures,” the Court declined to provide an additional layer of review under the Due Process Clause. Id. at 395 (“[We] hold that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”) (emphasis in original). Since then, the Court has consistently ruled that the Due Process Clause does not serve as an all-purpose backstop that can be invoked when another constitutional provisions that specifically addresses the government’s conduct does not reach as far as a private party would like. See, e.g., County of Sacramento, v. Lewis, 523 U.S. 833, 843 (1998) (noting that due process analysis is inappropriate if a party’s claim is “covered by” a more specific constitutional provision); United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (same); Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (“Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims’”); e.g., id. at 273-74 (declining to interpret the Due Process Clause to impose a requirement on the states similar to what the Fifth Amendment Indictment Clause would demand). Whenever a specific constitutional provision addresses a certain type of police or judicial conduct, that provision should serve as the prism through which the courts view a constitutional challenge.

Unfortunately, we know all of those cases too well, especially Albright.  Ugh again.  This is such an inside the beltway thing.

Where is the highly credentialed and thoroughly Washingtonian Mr. Larkin going with all these footnotes?  He’s trying to scale back the reach of the due process clause, and fold it into the 6th amendment or some such:

Were the Court to decide that the Privileges or Immunities Clause incorporates the Bill of Rights, this entire line of cases would find a home in the Sixth Amendment. The Due Process Clause would still be relevant, but only as a guarantee that every person must receive the benefit of whatever law and procedure a state may adopt. That guarantee, of course, would be far more limited than the role that due process currently plays as a guarantee of fundamental fairness.

Mr. Larkin needs to read Frank v. Mangum, Waley v. Johnston and Chambers v. Florida.  Fundamental fairness is required of the government at all times, not just during criminal trials, and it’s required of both the state and federal governments, and always has been.  The due process clause did not create or impose that requirement; it was there already, and the idea of due process merely recognizes what already is.

In other words, it isn’t the due process clause that functions as a “backstop”.  It’s something else.  But as a profession we are very far astray and it’s a long way back.  In the meantime, it’s critically important that this one thin line be held.

Our job, I’m afraid.

Leave a comment

Filed under Uncategorized