Category Archives: wrongful convictions

Plainly, outrageously unjust criminal convictions ignored or evaded by judges.

Long v. Pfister And Agendas And Footnotes

It’s a very frustrating thing to be 100% correct in a relativist-nihilist profession, because to a relativist-nihilist, 100% correct is an impossibility.

But that’s what we at LoS are.

When Judge Easterbrook asks this red-herring question in particular:

Must the prosecutor correct false testimony when defense counsel already knows the truth?

or when he refers to “Napue and its successors” in another red herring question, or when he refers to the “Napue-Giglio rule”, he is committing the error of conflating Mooney cases with Brady cases.  And we say “error” because it’s not an arguable point.  Chronology, not capable of dispute and entirely independent of the matters actually under dispute, demonstrates this absolutely.

Napue was 1959.  Brady was 1963.  Napue cannot possibly be a Brady case.  Not to mention (again) that the whole Mooney line – that is, Mooney, Pyle, Alcorta and Napue – are cited in Miller v. Pate in 1967, making Miller the last Mooney case.

And Miller doesn’t cite Brady.

That is, Miller proves, beyond all rational questioning, that the Brady line of cases and the Mooney line of cases are distinct, even if related, because it post-dates Brady and doesn’t cite it even though it cites all the previous Mooney cases.

What about Giglio, then?

Giglio was 1972.  Giglio cites Napue due to the factual similarity involving the withholding of impeachment evidence, and the impeachment evidence being a deal having been made with a prosecution witness.  But that doesn’t make Giglio one of Napue’s “successors”.  In fact, Napue was one of Mooney’s successors, and has no “progeny” of its own.

The Giglio opinion arguably conflates Brady and Napue, true enough:

We granted certiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v. Illinois, 360 U. S. 264 (1959), and Brady v. Maryland, 373 U. S. 83 (1963).

But this gets cleared up a few pages later:

As long ago as Mooney v. Holohan, 294 U. S. 103, 112 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with “rudimentary demands of justice.” This was reaffirmed in Pyle v. Kansas, 317 U. S. 213 (1942). In Napue v. Illinois, 360 U. S. 264 (1959), we said, “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id., at 269. Thereafter Brady v. Maryland, 373 U. S., at 87, held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.”

Emphasis, as we say, supplied.  You see, the proper distinction between the Mooney line of cases and the Brady line is that good or bad faith is irrelevant in the latter, but the very essence of the former.  On that particular point the two lines of cases could not be further apart.  That is, that particular point is the very thing that distinguishes them.  And you don’t have to take our word for it (see pp. 47-49).

So, it’s not as if the Giglio court was really confused about the difference between Mooney and Brady, they just expressed themselves poorly in the first paragraph of the opinion.  After reading the rest of the opinion, no person of reasonable intelligence could maintain in good faith that Giglio was anything other than…a Brady case.

But if you graft Brady onto Napue – which is a Mooney case – then you graft Brady’s limitations onto Napue as well, and of course by extension to Mooney also.  Then you have limited Mooney by stealth.  And that’s what Judge Easterbrook is trying to do in Long v. Pfister, and what Justice Rehnquist tried to do in Bracy and Albright, and what the nation’s prosecutors (as a group, not every single one of them, of course) have been trying to do for decades.  This effort has produced such lamentable results as Albright v. Oliver, a plurality opinion from a fractured SCOTUS where Justice Rehnquist basically sneaks his Mooney limiting agenda into a footnote.

And here’s what limiting Mooney means:  the government can lie and cheat to get a criminal conviction and it doesn’t violate due process.

We do not believe such a result is tolerable in a free society.  And we don’t know how any sane person could disagree.  But even if some miscreant prosecutors, police and judges (repeat ourselves?) do disagree – believing perhaps that a little bit of lying and cheating is acceptable if it doesn’t affect the outcome, or some such – they should argue the point honestly and straightforwardly, taking the position that they think Mooney and its progeny were wrongly decided.

But then their honesty is the whole point in issue, isn’t it?

Ugh.

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Long v. Pfister

So, continuing our analysis from the last post.

Judge Easterbrook, the author of the majority opinion, was one of the early darlings of the Federalist Society, and by all accounts he’s “brilliant”.

We have to question that.  Seriously.  He may have been a smart boy at one time, but undergraduate work at the Kremlin on the Crum must have dulled his wits considerably.

And making matters worse he, like so many federal appeals court judges, has never tried a case.  And this is another situation where that matters.  Very much.

But let’s look closely at the facts presenting the issue.  Long is identified as the perp by a total of four witnesses.  Two recant prior to trial and never re-recant.  Irby recants but then re-recants and then at trial, called by the prosecution, falsely denies ever having recanted, and the prosecution knew that this testimony was false.

If you can follow all that.

The prosecution never admitted that her witness had lied and never corrected it, although it appears that the lies were amply rebutted.

Due process violation?

It appears to explicitly and squarely run afoul of Napue v. Illinois, but Judge Easterbrook says that’s not obvious to him or his colleagues in the majority.  He says that Napue was silent on such subsidiary questions as these:

• Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?

• Must the prosecutor correct false testimony when defense counsel already knows the truth?

• Does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?

• Does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?

The dissent points out that Napue itself substantially answers these questions, but the real issue here is:  where do these questions come from?  Why are they questions at all?

Let’s play the same game as Judge Easterbrook in a different setting.  The rule is, we don’t admit into evidence at criminal trials confessions that are coerced, and we confront a case where the cop held an unloaded gun to the head of the suspect and threatened to shoot him, and then after the confession apologized for his behavior.  So, following Judge Easterbrook’s methodology:

Is it really coercion when the gun isn’t actually loaded?

If it is, is the coercion cured when the cop apologizes?

The cases forbidding the admission of coerced confessions haven’t spoken to these questions, so they haven’t been clearly resolved by the SCOTUS and so habeas relief must be denied.

See how easy that was?

The point being, any idiot can come up with stupid subsidiary “questions” that undercut any proposition of any kind.  This is limited only by the how dimwitted the imagination and how strong the desire to evade the result the proposition requires.  With Judge Easterbrook, we think “very” and “very” about covers both of those.

Long is an en banc opinion, decided October 20th, and reaching the opposite result from the three judge panel that decided the case earlier.  All of this is quite rare and enhances the likeliood of SCOTUS review.  The loser has 90 days from October 20th to file a cert petition.  That would seem likely to occur, since Kirkland & Ellis has taken up Paysun Long’s plight.

Well, we like the issue.  But we don’t like the vehicle.  And while we haven’t read the briefs – though we may do that soon, too – we don’t like the way the argument goes.

Napue, like all of the Mooney cases with the possible exception of Miller v. Pate,* is about deliberate government lying and cheating.  Not lying and cheating by a government witness in and of itself but rather the government’s participation in the lying and cheating and then “obtaining a conviction” thereby.  It’s a clear cut due process violation, and that’s one of those very few “bright-line” rules.  Or at least it has been.

Judges like Easterbrook have been trying to blur that line for a long time.  Sometimes, as Easterbrook is doing here, it’s by generating artificial questions that the SCOTUS hasn’t addressed (because they don’t occur to normal and intelligent people in the first place) and pretending there’s some sort of room to get around the rule.  Other times, they’ve had to misrepresent the law, like Justice Rehnquist did in Bracy and Albright.  But one of the main tactics has been to conflate Mooney cases and Brady cases.

We have to confront Judge Easterbrook’s and Justice Rehnquist’s – let’s face it – agenda driven falsifications and dissembling directly.  We must clarify and restore the law, not move to a less pernicious confusion about it and hope for the best.  The Mooney line of cases, including Napue, has never been qualified or limited, and that’s very much unlike the Brady line of cases.  Giglio is one of the latter, and Napue is one of the former.

We don’t think Long will address the Mooney-Brady distinction, and for that reason it’s not likely to clarify much even if the SCOTUS takes it up.

Which we hope it doesn’t.  Ugh.

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*We are probably all by ourselves on this, but nevertheless, we think Miller extends the principle of Mooney to situations and results that are too absurd or stupid to tolerate in a rational system of justice.  Kind of like Judge Easterbrook’s en banc opinion under review here!

 

 

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SCOTUS Dysfunction (Updated)

This case may not be one of the few that gets Supreme Court review (“cert grant”) this term.  But it’s a good bet.

Why?  It’s a capital (death penalty) case.  The SCOTUS likes capital cases because they seem to believe that criminal matters are generally not worthy of their attention unless someone is going to die if they don’t take a look.

We’d like to say we are kidding about that.  But we’re not.

Second, although the Petitioner is not the government – and that, dear readers, is the only contrary indicator to a cert grant here – he is represented by one of the bestest firms, Sidley Austin.  Third, SCOTUS requested the record, rescheduled the case once and has now “relisted” it three times.  These are all unambiguous indicators of SCOTUS interest, and are strongly associated with cert grants.

Oh, one more contrary indicator, though:  no amicus briefs.

On that last point, we think it’s particularly telling here.  Why?

Here’s the issue, about which there is disagreement in the federal circuit courts of appeal and the state supreme courts:  when a person convicted at trial raises an “ineffective assistance of counsel” claim in a collateral proceeding but does not produce his allegedly ineffective trial counsel as a witness, does that result in a conclusive presumption that there was a legitimate strategic reason for counsel’s alleged deficiencies and therefore no claim for ineffective assistance?

And here’s the nature of the dysfunction:  who cares?  The courts that hold ‘yes’ are evidently reasoning that there must be a legit strategic reason, otherwise counsel would have an obligation to his client to say he didn’t have one, and thus the only basis for not doing so would be that he can’t say that because it would be perjury (We assume these courts don’t apply the conclusive presumption rule where the trial counsel is dead or unavailable).

The courts that hold ‘no’ – the far, far better rule in our view, not that that matters – would rather let the prisoner make his case however he can, with or without the participation of his trial counsel.  Before they deny relief anyway.

The overwhelming majority of claims for post conviction relief, that is – north of 99% – are denied.  Those few that are granted will often have an ineffective assistance of counsel claim involved, but how often will the conclusive presumption rule determine the outcome?  Practically never.  You’re talking about a handful of cases per decade,  nationwide.  If that.  You could make a good argument that this particular fine point will never make a difference in any case.

The SCOTUS and its echo chamber have completely lost touch with reality.  The problems in our criminal justice system are much more basic and fundamental than Mr. Reeves’ problem, but his case is receiving serious consideration for reasons that are both, and at once, absurdly esoteric and dismally shallow.

Reeves, in other words, is a SCOTUS case that is entirely the product of an irrelevant discussion taking place among death penalty abolitionists and the SCOTUS echo chamber.  These discussions have become so insular that the checklist criteria for selecting cases “worthy” of SCOTUS review have supplanted the more basic consideration of whether the case genuinely has a wide enough significance to warrant a plenary SCOTUS review that is granted only about 1% of the time.

Put another way, this is the nearly complete triumph of form over substance.

This could only happen in the law.  If it happened in computer manufacturing the computers wouldn’t work.  If it happened in bridge building the bridges would fall down.

Ugh.

UpdateDenied.  Apparently the majority may have agreed that this issue is too seldom presented, to say nothing of dispositive.  Not that we’re happy about it.  As Justice Sotomayor points out in dissent, this means Mr. Reeves faces execution.  And frankly, the procedural history seems to indicate that the whole thing was deliberately constructed by death penalty abolitionists to throw a wrench into the death penalty machinery; that is, if you read the dissent, the defense lawyers at trial made a motion to get the funding for a neuropsychologist, the motion was denied but then granted later on a reconsideration motion.  Then the defense did not produce the much fought over expert at the sentencing hearing.  Another possibility, of course, is that they didn’t trust the trial judge or the jury to accept the mitigating evidence under any circumstances and figured having the issue for an appeal was a better shot than trusting the trial judge and jury, and it looks like they were probably right about that:  three relists at the SCOTUS means they came close.

 

 

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Proposal For New York Constitutional Convention

We at LoS have often wondered, in our more or less idle moments (we don’t really have any idle moments, but never mind that point for now), how crimes can be prosecuted before courts by a member of the executive branch of the government – a “District Attorney” (see People v. Leahy, 72 NY2d 510 at 513) – who is also, and simultaneously, a member of the judicial branch of the government.

Separation of Powers, anyone?

Ugh.  This is one of those thoughts that has a sort of unassailable logical validity but which will never get a serious hearing in a system dominated by political science majors.  That is, the idea has unimaginably large implications, but however airtight the reasoning it is only an argument, and arguments are cheap, so we are told.

But couldn’t we at least do a little damage control, just a little half measure that might mitigate the damage from the thorny separation of powers problem we just identified, and that might not run afoul of the political scientist’s slavish devotion to the oxymoronic “principle of utility“?  (But see an entertaining send up of Bentham, et al.)

Maybe.

Accordingly, we propose the following should be added to New York’s constitution in the section on the judiciary:

“Any attorney who has served in the office of a District Attorney or the Attorney General shall be disqualified from holding any judicial office for a period of ten (10) years after the completion of any such service.”

It is one thing to ignore the separation of powers problem posed by District Attorneys ab initio.  It is considerably worse, in view of the separation of powers doctrine as a check – however feeble – upon the abuse of power, to allow attorneys whose dominant experience in the profession is prosecuting people for crimes to also gain a foothold in the judicial branch that (supposedly) impartially adjudicates those prosecutions.

And of course, the foothold has long since been a fait d’accompli that in recent decades has metastasized into a stranglehold:  that is, former prosecutors completely dominate the judicial branch.  This is probably only our opinion, but we think this state of affairs is a deceptively large factor in wrongful convictions, not to say the power-toadying practical reality of our “justice” system.

Thoughts, anyone?

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So This Is The Argument?

Seems Greenfield has been reading over here again.  On the sly, of course.

You’ve got the Brady Mooney thing and we’ve extensively chronicled how prosecutors have mangled it all up (just one example) but we have also wondered aloud – in this as in so many other aspects of the criminal justice system – whither the criminal defense bar?

Turns out they are backing up the prosecutors.  Or at least some of them are.

Oh, dear.

Anyway, a few days ago SHG got into it, and this is the position he’s carved out for himself:

Not just Brady, but the narrow and rarely used Mooney brand of intentional concealment.  The reason no one uses Mooney is that it’s nearly impossible to prove, and even if you do, judges almost never adopt it. It’s one thing to say that exculpatory evidence has not been disclosed, and another to lay blame on a prosecutor for intentional, malevolent concealment.  That’s a step too far, and the surest way to seize defeat from the jaws of victory.

Where to begin?

“No one uses Mooney”?  It’s not true – Mooney is still cited in court opinions with some frequency – but ponder that phrasing for a while.  Is Mooney just a tool, a lesser used weapon in the criminal defense lawyer’s arsenal in his campaign to game the system to win, every single time?

No.  Mooney is the law, and it has been since 1935, “use” it or not.

Besides, what is being advocated here?  That if you have a Mooney problem you should ignore it, since it is the “surest way to seize defeat from the jaws of victory”?  Victory would be assured if you “subsumed” Mooney into Brady?  And that’s because Brady is always followed by prosecutors and judges whereas Mooney is not?

That’s laughable.

Is Greenfield serious?  You uncover a Mooney situation and it’s one of those rare cases where you can prove it and you’re supposed to let it go?  A prosecutor abuses his office in the worst way he can – against your client, so it’s your responsibility to correct – and you should bury your proof, look the other way and argue something else, because it’s a “bridge too far” and the judge won’t like it?

Put another way, the argument here is that you should match the prosecutors abuse of his office with a corresponding abuse of your own.

Any lawyer who would do that has no right to complain about any atrocity the system dishes out.  The “bridge too far” is obviously the prosecutor’s conduct, not the defense lawyer fulfilling his obligation to ferret it out and obtain relief for his client, not to mention protecting the whole system from an unspeakable corruption.

It’s a really lousy argument, Scott.  We realize you’re desperate to find some basis to disagree with us on this subject, but some things are just true, or just, or unarguable.  Willful blindness for ego’s sake isn’t going to change anything, and it certainly isn’t going to help anything.

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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.

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“Generally Subsumed”?

We suppose Scott Greenfield (SHG) might be technically right here in response to this comment over at SJ:

Isn’t this more of a Mooney v. Holohan (1935) violation rather than a Brady violation? Instead of “Oops, we forgot”, the prosecution purposefully didn’t turn the info over to the defense. Or am I splitting hairs?

…. to which SHG replies:

Mooney, which involves both the presentation of perjured testimony as well as the deliberate concealment of evidence that would have proven the testimony false, is generally subsumed in the broader rule of Brady, which applies regardless of good or bad faith by the prosecution.

…in the sense that courts have in fact developed a pattern of generally subsuming Mooney into Brady.  Most federal courts of appeal, that is.

As we have noted repeatedly (and recently), the problem with this “subsuming” business is that it winds up applying Brady’s limitations and qualifications – of which there are many – to Mooney situations, which have not been subject to limitations or qualifications at all:  federal courts of appeal have no power to limit Mooney and its progeny.  Only the SCOTUS can do that.  And they’ve never done it, and never will.

It’s a curious – not to mention wrong-headed – view coming from a criminal defense attorney, but I’ll venture a guess about why SHG has it.  Mooney, as we have so often said, is about deliberate misconduct by a prosecutor.  There are many times you might suspect that the prosecutor was acting deliberately but have no proof.  There are other times you have some proof, but then the question becomes:  how much proof is enough?  In theory, you would answer that question the same way here as in any other context; in practice, the quantum of proof in this context would have to approach or attain absolute certainty, because prosecutors are heavily favored.

How often can something be proven to near absolute certainty?  Not often.

In the next two cases of the Mooney line – Pyle v. Kansas and Napue v. Illinois – we had the exceptional circumstance.  In Pyle the prosecutors argued that Pyle had committed the murder, convicted him, and when his appeals ran out they prosecuted another guy for the same murder.  They revealed themselves, in other words.  In Napue, the prosecutor swore up and down at trial that he hadn’t given the witness a deal, then went into private practice and brought a coram nobis petition to get the witness out of prison on the ground that as a prosecutor this was the deal he had promised.  Again, he revealed himself.  In Miller v. Pate, the prosecutor paraded a pair of “blood stained” shorts in front of the jury.  It was actually red paint.  Maybe the prosecutor didn’t exactly reveal himself in that case, but the absurdity of it all was just too, too much.

In Pyle, Napue and Miller, that is (as in our case) you had absolute certainty that the prosecutor misconduct was deliberate.  It’s almost as if this is an implicit requirement of a Mooney violation:  the proof that the conduct was deliberate has to be well nigh conclusive.

That this is generally impossible is one of the reasons that Brady came along a few years after Napue and relaxed the implicit nearly impossible standard of proof.  Brady issues, then, are the subject of hearings and testimony and argument – the domain of the criminal defense trial lawyer.  So for a CDL, professionally speaking, Brady issues are meaty and significant, a great opportunity for the CDL to do his thing.

By contrast Mooney issues – in addition to being far more rare – are uninteresting, relatively speaking.  The proof of deliberateness has to be unarguable.  If you have it, there’s nothing to have a fight over.   Hearings, testimony, argument all become surplusage, at best.  Mooney issues are not an area where a CDL has any importance, at least not in the way that they are used to having importance.

So being indifferent to the corruption of Mooney being “subsumed” into Brady is a function of SHG’s sense of self importance, which often trumps everything else.  A lot of lawyers have this problem.

And their problem has become our problem, in a big way.

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