Category Archives: wrongful convictions

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

An RBG Fine Point

An interesting little tidbit from CNN this morning. Yes, CNN. It seems they sometimes provide some actual information and insight despite themselves. We are sure they have no idea why there’s a modicum of significance to their piece this morning on RBG. But there is:

In the 2018 DC v. Wesby case, Justice Ginsburg wrote a solo concurrence saying, “The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. … I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.”But I should emphasize that the 1996 Whren was unanimous, and no other justice joined Ginsburg’s concurrence in the 2018 Wesby.

What’s the significance?

Well, the article points out, as we did in the wake of RBG’s passing, that the late Justice was hardly solicitous of the rights of criminal defendants. In so doing, you know, that passage we just quoted.

RBG apparently had this idea – an idea she never sold to any of her colleagues on the SCOTUS, or came even close to selling – that the Whren doctrine, which holds that subjective intentions do not matter in a 4th amendment context, should have some kind of exception, or exceptions. Apparently she brought this up in a 2018 case, District of Columbia v. Wesby. And we must admit to being impressed that her concurring opinion there resonates rather well with a concurring opinion she authored in 1994 in a case we have had to tangle with ourselves: Albright v. Oliver. We are impressed because it indicates a consistency in thought over a period of 24 years on a very fine point of law that didn’t arise with any real frequency during her time on the SCOTUS, and didn’t attract any real attention.

Except from us here at LoS.

So we infer from this that RBG was at least capable of intellectual integrity and consistency. This is a good quality in a SCOTUS Justice.

We figure her soon to be replacement has the same quality. Hopefully in greater measure.

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Sowing And Reaping And Too Little, Too Late

So we were having a discussion about the Breonna Taylor situation. Our interlocutor was a guy who had done prison time for manslaughter. He had been a passenger in a car with four other individuals, two of whom left the car at some point and, unbeknownst to our interlocutor and without his prior knowledge or agreement or participation of any kind, killed someone.

Everybody got rounded up and processed through our “system” and the outcome was a homicide conviction and prison time for our interlocutor: someone who, assuming the truth of his account, wasn’t guilty of anything.

Do we know other similar stories? Absolutely. And that’s just us. We are sure that many other lawyers who have done criminal defense can cite as many, or indeed many more similar stories.

Here’s the point. Our position here at LoS is that the cops in Louisville should not be prosecuted, that they had no criminal intent. Our interlocutor’s opinion, though, is that the cops have to “take responsibility” for what they did.

He’s wrong, of course, to the extent “take responsibility” means to accept criminal liability, which is in fact how he means it. There’s no crime without the intent to commit one. In theory, anyway.

But when he was on the receiving end our interlocutor’s intent didn’t matter. You see the problem?

We taught him (and many, many others) exactly this, in other words. He did prison time because we insisted on teaching it to him. And now he cannot see how all of a sudden intent matters because the accused are cops. So even though he is ultimately wrong in principle we can understand his reasoning. It’s bad reasoning – shallow reasoning – but that’s what governs the system in all too many cases. And he’s right about the double standard: five million cases where the defendants are not cops and little nuances like intent don’t matter at all; then the one in five million where the defendants are cops and now we’re all about nuances?

Later on we were discussing the BLM movement with a colleague, trying to explain the connection between how our system has operated for decades and the civil unrest we are experiencing. Our colleague understood in the most theoretical way the causal connection, but denied that BLM protesters were making any such connection, arguing that they were just commie-influenced rabble-rousers taking advantage of the moment.

This seems to us a failure of imagination, an inability to see things from another’s point of view, and a refusal to appreciate the damage the system has done to people’s sense of justice, individual by individual, over decades.

Sometimes it’s too late. It may not be too late in absolute terms to right the ship of state, so to speak; but it’s probably too late for the actors in the Breonna Taylor play out in Louisville, just as it is probably too late for the actors in the Daniel Prude play in Rochester.

Which is to say, that if nuances are going to matter again – and they should – that will have to await later cases. The prevailing argument right now is a very simple “what’s good for the goose is good for the gander”. We’ve convicted and punished – wrongly – perhaps hundreds of thousands of people. And haven’t cared. We’re not going to be allowed to suddenly start caring because the defendants are cops.

BLM is right. Not in theory, but in practice. Theory and practice in our justice system have destructively diverged for decades. Bringing them closer together will have to happen in future cases. Not present ones.

Two wrongs do not make a right. True enough. But sometimes timing matters. Sometimes it’s determinative.

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RBG, RIP

We’re going to dissent from the party line, as we so often do.

What, exactly, is RBG’s great contribution to the law or her country? What great opinion did she write as a Justice of the SCOTUS?

Take your time, it won’t matter: it’s a null set.

She was a place holder on the SCOTUS for almost thirty years. A predictable vote for liberal this or liberal that.

Many people have fawningly noted, and will fawningly note, RBG’s close friendship with her ideological opposite, the late Nino Scalia. This is extremely misguided, while at the same time very telling.

Here’s the point: the conflicting ideas each of the Justices adhered to have no practical consequences for them, sitting atop their high perch. They have the luxury of setting them aside and enjoying the opera together. But for the rabble that in their heart of hearts RBG and Nino literally despised, those conflicting ideas are often – also literally – the difference between life and death, with no respite for, you know, opera-going.

In other words, the Nino-RBG friendship, while cute on the personal level, is not in the least praise worthy. It’s a symptom of the abiding SCOTUS dysfunction, a perverse class consciousness that sets the tone of the “justice system” in the United States.

Speaking of opera, the fight over RBG’s replacement promises to be great political theater, what with the presidential election a mere two months away. But like RBG’s SCOTUS tenure itself, it will be sound and fury, signifying nothing. The SCOTUS will remain terminally dysfunctional, no matter who replaces RBG.

The important historical events of 2020 are not taking place in the halls of our moribund institutions, but rather in our streets.

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Case In Point

We keep sentencing a criminal defendant to more time in prison. Double jeopardy arguments are made, and although obviously correct they are rejected.

This one might get corrected because it’s a celebrity and it’s in the news. But it, or something just like it, happens to more obscure people all the time.

Reason is the sine qua non of the judicial branch of government. Without reason it is not functioning at all.

Ugh.

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Just Deserts (Updated)

As we write this morning our city – Rochester, New York – is experiencing what is called “civil unrest”. It has now taken a somewhat worrisome turn where protesters, having “occupied” City Hall, are squaring off with police.

The City probably cannot allow the occupation of City Hall for any extended period of time. On the other hand, one wonders what kind of “command and control” is in effect since in the last couple of days the police chief, his command staff, and the city’s Corporation Counsel have all been fired or suspended.

This is a potentially dangerous moment, in other words. We hope for the best, of course. We have friends and neighbors on both sides.

Our own opinion is that the City of Rochester – including the mayor, police chiefs and the vast majority of the cops – are the least guilty and the least responsible officials for the state of affairs that is actually prompting all the protesting. We continue to object that lawyers – especially prosecutors – and judges are largely getting a pass while police officers are increasingly targeted. We think judges, in particular, have failed the country and even the police in the long run by toadying for the police. In the short run, toadying for the police is a political score for the judge and makes the police feel good. In the long run, consistently cheating truth, fairness and justice result in civil unrest, as we have so often pointed out.

In other words, we are simply experiencing the natural and probable consequences of decades of judicial dishonesty. No one should be surprised.

Some judges are already bending over backwards to make matters worse. We had to comment over on Professor Turley’s blog, and probably can’t much improve on that commentary here, so we’ll just reproduce it:

The judge is a moron. It is too late to impose “discipline” with draconian bail setting and sentencing accompanied by pious allusions to law and order. We haven’t done law and order for a long time, and that’s the problem. Law and order is not about the government’s monopoly on force; it’s about the government’s commitment to being fair and just. It is the third branch of government – the courts – that is supposed to keep that commitment and it has been failing – and I mean miserably failing – to do that for decades. It doesn’t even pretend to do it, and the members of the profession that administers the judicial branch – lawyers – are overwhelmingly nihilists who deny that fairness and justice have any meaning or content.

That’s a formula for civil unrest. It’s just a matter of time. And it’s inevitable.

https://strikelawyer.wordpress.com/2020/05/30/to-reiterate/

It’s really unbelievable to me how dense a judge has to be to think he’s going to make a dent in all this by imposing an obviously unlawful bail. That’s exactly the kind of stupidity that has led to this situation in the first place. It’s also pretty depressing to see commenters here applauding the judge. I should think Professor Turley’s audience would be a little brighter.

The problems here run so deep. All of these recent incidents – George Floyd, Jacob Blake, etc. – are just triggers.

The underlying facts of these incidents don’t matter? You know, was it self-defense, was it a justified use of force by police, and so on.

Of course the underlying reality doesn’t matter. That’s exactly how our courts have been behaving for decades now. That’s exactly what we have taught the populace. Now they have learned the lesson and the shoe is on the other foot, turned around on us. What do we do now? Get them to listen to reason? It’s so “too late” for that. Cave to the pressure? That will invite more pressure.

There’s probably only one way out at this point: return to first principles like justice and fairness, or at least decency, then hang on, be patient, and take our punishment in the meantime.

This is not something we seem able to do very well. Or at all.

One last observation. Our friend SHG has his own take on the situation this morning. Very different from ours. Very much behind the curve, we think.

We see absolutely nothing wrong with a judge finally being made uncomfortable at home, especially in this situation. And SHG’s allusions to all the supposed remedies to correct the judge’s stupidity? It’s possible that some other judges might not be so stupid as this one is and might correct the obviously wrongful bail decision, but that’s only because the spotlight is on them, this time. The spotlight usually isn’t, and that means that – usually – even rulings as stupid as this one never get corrected.

Put another way: We deserve everything we’re getting, and then some.

Update: LOL On the one hand, this is good, undoing an obviously stupid ruling. It would be better if the judge just undid it instead of the pretense of a “hearing”, but meh.

On the other hand, he’s just caving to pressure. He has low character. Maybe we could say otherwise if he issued an abject apology for being such an asshole in the first place. But we are not holding our breath.

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Smearing The Victim

We are wary of the term “victim” over here at LoS. Too often, our “best justice system in the world” comes to rest on a conclusion we used to call in the Navy 180 degrees out, and the victim is actually the perpetrator, or vice versa.

For some reason this morning we were reminiscing about why this so often happens: deep, system wide professional inadequacy. Perversion, even.

Let us revisit an old example. Here you had a house explosion that killed three people and an official investigation that was contaminated with self interest. That investigation focused on one of the three dead and suggested the house explosion was a deliberate act by him, to kill himself and his mother, who indeed died also in the aftermath from terrible wounds. A roommate died in the blast as well, and apparently the deceased perpetrator was socio-pathic enough not to care that another life would be thrown into the mix.

There was absolutely no evidence to support this terrible narrative, but the narrative stuck. Until we came along, that is, and dug up all kinds of witnesses, and even documentation, to the effect that there had been a long standing problem with strong gas odors at the house so noteworthy that one young couple had broken their lease and left, believing the house to be unsafe.

Now.

At this point the prevailing original narrative is untenable and cannot be maintained by any reasonably intelligent person, both in absolute terms and in view of the fact that at common law, still applicable so far as we know, there is a presumption against suicide.

But in the litigation the utility company’s lawyers continued to maintain – and the judge continued to entertain – this thoroughly discredited original narrative that house exploded due to the suicidal act of one of the dead.

The system is designed to rule this argument out before you get to a jury trial. We have discovery procedures, especially in civil litigation, that are intended to refine the arguments so that we’re not wasting jurors’ time with arguments that cannot be honestly held by reasonably intelligent people.

Of course, there is no guarantee that those sitting on the jury will be reasonably intelligent. So added to the benefit of not wasting time and effort, refining the dispute so that untenable arguments are not advanced guards against an unjust outcome that is not in conformity with the truth of the matter. To run with this notion a bit, you might have a juror whose ability or willingness to analyze evidence consists of siding with whatever interpretation is offered by those who are apparently in authority.

This is a common juror type. Mostly men. Women much less often.

And so the system is designed to neutralize the stupidity that might prevail if such a juror were allowed to even consider an argument we all know is untenable in advance. It wastes a lot of time during deliberations, and indeed such a juror may wind up holding out over the untenable argument and cause a complete misfire of the whole thing (a mistrial) for no good reason.

But what happens too often is that the professionals involved – that is, judges and lawyers – deliberately short circuit the system by advancing, or entertaining, an argument they can’t possibly honestly believe for the short term benefit that in this or that case is might help them “win” the case (on the part of the lawyers) or to curry favor with the establishment litigant (on the part of the judges).

And then all of the discovery, all of the effort undertaken beforehand to refine the issues and present a cleaned up and cogent dispute to a jury wind up not mattering. The system fails, in other words, not because it isn’t well designed, but because the players cannot be relied upon to be honest.

Or put another way: to work properly, the system’s design depends upon the players being honest. Or at least decent.

What bothered us so much about our house explosion case all those years ago was how fundamentally immoral it was to make, or even entertain, a baseless claim that amounted to blaming a dead man for his own death. And his mother’s.

There could be a justification for such an approach in a criminal case – say, a murder trial – where it can sometimes, with some juries, help the defense to sully the reputation of the victim of the murder. There’s an old saying in the profession: the victim is not unaccountable in his own demise. And sometimes this is true, or at least honestly arguable.

But even in a criminal trial where an attorney is defending and has adopted the increasingly discredited “zealous advocacy” approach, there is an argument to be made that where the smear is baseless and cannot be honestly advanced it would be professionally improper for a lawyer to advance it. Even if it would benefit the client.

But we here at LoS believe that in a civil trial, where only money is at stake, there is no excuse. Advancing such an argument is professional misconduct.

That’s our position this morning, in any event.

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Justice Gorsuch And Sex

We’re going to establish ourselves as real outliers here, but we don’t care. Fearless bloviating on all manner of subjects has been the hallmark of LoS since it began almost 10 years ago!

Let us start by speaking the plainly unspeakable truth that litigation over: who uses what public bathroom; or whether high school girls can be barred from the boys’ football team; or for that matter whether the boy-turned-transgendered girl can run track on the girls’ track team; and all other such sexuality-based-debates-turned-legal-questions-and-lawsuits, is unserious to the point of stupidity and a sinful waste time and attention that could be better turned to the tasks of freeing all the people we have wrongfully imprisoned (and in death penalty cases intend to murder), of compensating injured people, of holding corrupt politicians and CEO’s to account, and a million other actually significant things.

People’s sexuality and how members of this or that sex are treated are not suitable topics for legislation or court proceedings and never were.

The Civil Rights Act of 1964 was about race relations, not feminism or genderism – or whatever these sorts of things are called this morning – and indeed all of these other relations are radically different in kind and do not belong in the US Code at all.

So we here at LoS think there’s really only one effective response to Justice Gorsuch’s invitation to endless stupid litigation opinion in Bostock: amend Title VII and delete the word “sex”, which was the entire basis for his opinion and apparently was only added to the law as a poison pill in the first place.

It makes us incoherent. People discriminate “based on sex” all the time in ways that are not in the least objectionable. The first question asked about any new human being – “Is it a boy or a girl?” – is discrimination based on sex.

Moreover, we at LoS have never understood why civil rights leaders embraced this piggy-backing of feminist concerns onto the far more serious questions of how people treat other people of different races. The latter can legitimately be the subject of laws and litigation without degenerating into self-satire and stupidity. The former cannot.

So this is our outlier opinion of the day: overrule Bostock by amending Title VII to delete the word “sex”.

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The Repeal Of 50-A of New York’s “Civil Rights Law”

Is a tidy illustration of the ongoing failure of the courts and the legal profession to properly do their jobs. It’s also – and always was – more than a little ironic to place a law requiring secrecy of stasi police officer records in the chapter dubbed “civil rights law”.

One would think this was not in the least complicated, because in fact it is not complicated. There is a constitutional right to confront the witnesses against you in a criminal trial under the 6th amendment. How often are at least some of those witnesses police officers? Practically always.

The state – in this case New York – passes a law – in this case 50-A of the Civil Rights Law – that prevents criminal defendants from obtaining evidence with which to confront the police officer witnesses against them.

Constitutional rights trump statutes.

Very, very simple. And unarguably correct.

How have the courts actually ruled?

When prosecutors fail to disclose evidence of police misconduct defense counsel is beholden to the unconstitutional requirements of CRL 50-a in order to obtain access to these records. The police department actively opposes access to disciplinary records and the courts routinely deny defense counsels’ requests. As a result, police officers in New York are granted a special privacy right that no other professional or civilian witness is granted.

From a 2018 Report to the New York State Senate on the subject of repealing New York Civil Rights Law 50-A. Emphasis supplied.

Well, now the legislature has gotten around to repealing Civil Rights Law 50-A.

Because riots.

This is not the rule of law. It was not the rule of law when the courts just basically lied so they wouldn’t have to cross the organized police. And it’s not the rule of law when the legislature does the courts’ job for them after the threat of widespread violence from rioting. Rather, it is a flagrant example of the absence of the rule of law.

We don’t understand why the courts and the legal profession are not coming in for a lot more criticism in view of what is now happening in the US. We should be so embarrassed. We should apologize to our fellow citizens, who are now effectively cleaning up after us.

Scott Greenfield’s take is a little different. We think he’s too easy on the judges and the courts. But we’ve thought that from the beginning.

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Another Question…

that comes up after reviewing these numbers is:

Has there been a change in the last decade or so?

Our BJS statistics date from about 2006, and as we wrote just a few days ago tell an entirely fictional tale where law enforcement in the United States is basically perfect when it comes to committing actionable constitutional violations, because the rate is roughly .25% calculated based on those statistics.

From that standpoint, the entirely independent data from various city police departments tell a somewhat more encouraging story. With the exception of Dallas, all of the cities we sampled yielded a figure substantially higher than the .25% based on the existence and outcomes of federal court 1983 actions.

Our own opinion is that figures like 2% in Philly and 3% in LA are still much lower than reality would dictate. But not orders of magnitude lower where the relevant officials are just basically in la la land.

Ugh.

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What It Means

Yes, we should really flesh out the numbers a bit more. It’s hard to convey just how dramatic they are. It’s like they defy description, pointing to a situation that is breathtakingly disingenuous when it isn’t simply incoherent.

So the system’s statistical verdict is that actionable constitutional violations occur only .25% of the time in day to day law enforcement. What does that actually mean?

If you got a grade in a course you took in school of 90%, that’s a good grade. Your parents would be pleased and you would be rightly regarded as a successful student, at least for that particular course.

If law enforcement in the United States achieved the same grade in avoiding any actionable constitutional violations or wrongdoing in the course of enforcing the law – that is, 90% of the time – they, and we, would be doing quite well. A pretty darn good job. There’d be room for improvement, of course, but a pat on the back would not be undeserved.

Yet if that were the state of affairs that our justice system actually recognized as a matter of statistics, it would be recognizing violations at a rate 40 times higher than it currently does.

Let that sink in.

The New York Times – really, really late to this party (see our previous post) but better late than never, we surmise – sums it all up pretty well by quoting what they describe as a “conservative” jurist:

An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

What would it cost to do a better job, money wise? Probably very little, in the grand scheme of things.

Correcting the situation to a point where it is remotely reflective of reality – that is, a violation rate of 10% as opposed to the currently recognized but preposterous .25% – will raise the amount of money collectively awarded to Plaintiffs from the currently paltry $600 million to about $20 billion.

That is still so very cheap. About the amount that the federal government spends on IT upgrades every year.

Let us – we, who have actually tried a case or two to juries representing “disfavored litigants” (and we now have official cover for using that phrase, as we just noted) – make another important point. You know those tiny number of cases falling into the .25% that are actually successful? They were all extremely hard won. People who have never done it have no idea.*

Put another way, there was a lot of work involved. Admittedly, that work extends to the attorneys that defended the cases, the judges who sat on them, and to a lesser extent the juries that heard them. But none of these remotely compares to the work required of the attorneys representing the Plaintiffs, not to mention the dedication and devotion, if you can grasp what we are alluding to there, which unless you have done it yourself you probably can’t.

So what’s the point, then? There’s a large element of sloth involved in the current state of affairs. Mental and moral sloth. And getting that .25% figure up into a range where it is more reflective of reality will take a great deal more lawyer work.

And as an aside, lawyers like us are spent. It is younger lawyers who will have to do the work.

And there’s a sub-point. To maintain the disconnect between that .25% figure and reality has required more than sloth; it has required dishonesty. Everyone really, in their heart of hearts, knows how phony that number and the institutions that generate it are. That awareness is reflected in the line from the conservative judge we just quoted.

So there’s not only hard work involved in correcting things; there’s something else that in some ways is even harder. We’re going to have to admit what failures we have been, how badly we have served our country, our people, and the cause of justice we swore to uphold. We will have to make amends. We – lawyers, we mean – will have to atone.

The journey back to honesty and truth begins with telling the truth about ourselves. And it’s not a pretty truth.

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*And the set of “people who have never done it” includes every single justice on the SCOTUS, almost every judge on federal appeals courts, almost every lawyer who argues before those courts, and at this point probably the majority of judges and lawyers regularly practicing in state appeals courts, because at this stage of our collective professional development lawyers in state courts just mindlessly imitate what they observe in federal courts, which for no reason we can discern are regarded as being greatly superior and more prestigious.

As we sometimes describe the situation to friends who have some familiarity with the Navy (as we do) it’s analogous to the Navy having a Chief of Naval Operations and Admiralty that have never been to sea. It’s ludicrous.

But that’s another post for another time.

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To Reiterate

Civil unrest, as in “rioting”, is a breakdown of the rule of law. This is a theme we have returned to a number of times here at LoS. We return to it today for obvious reasons.

The officer starring in the viral video – Derek Chauvin – shown with his leg on the neck of George Floyd – killing him – has now been charged with murder. That is to say, in a period of a few days of becoming famous owing to the video, he was fired from his department, charged, been arrested and taken into custody.* That’s pretty fast work by the government.

Of course it’s also a rather transparent effort to toss a bone to a braying mob. It’s more of the same. We have seen exactly this sequence of events – a viral, unjustifiable police killing followed by civil unrest followed by political posturing and serving up the culprit for criminal punishment – all designed to quell a rebellion that might otherwise get out of hand, many times before at this point. Rinse and repeat.

Civil unrest is a moment, though. A moment for some reflection, some thought, some analysis of what went wrong and finally prompted the civil unrest. We don’t do enough of that, obviously, because we keep coming back to the same place for the same reasons. Or similar reasons anyway.

Surely race is involved. We can’t add much of value to that discussion.

But here’s something we might offer that could help. We’ve offered it before. No takers. Let’s try again:

Civil lawsuits for money damages.

Who polices the police? Ultimately we do. Not just “we” here at LoS but all of us, collectively. Who should pay when our police negligently or intentionally cause damage, when they injure or kill someone, when they wrongfully arrest and charge someone, when they wrongfully convict and imprison someone? We should. They do these things in our name, on our behalf. We’re responsible. We have to pay.

Do we? No. We don’t. Why not? Because the courts, our courts – also our responsibility – don’t permit the lawsuits that would force the payment. Such lawsuits are authorized, of course, because 42 U.S.C. 1983:

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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

But, do you see that “every person” part right at the beginning? The joke’s on you. Or us, as the case may be. Because “every person” that 42 U.S.C. 1983 would apply to is immune from being sued. Every single person. Not because the statute says so. You won’t find it in there. No.

No. The reason “every person” is immune is that the SCOTUS said so. Just made it up and tacked it onto the statute, effectively nullifying it. We reviewed the resulting statistics some years ago:

In 2006, there were about 1.1 million felony convictions nationwide in state courts alone.  There were 14.4 million arrests.  DOJ BJS Statistical Tables 2006, NCJ 226846

In that same year there were – at most – 18,000 constitutional civil rights complaints filed in federal courts stemming from state and federal enforcement of criminal laws, excluding prisoner petitions.  NCJ 222989 I exclude prisoner petitions not because they significantly alter the statistical ratios, but because the comparison is more apt when only those civil rights claims from people who have something to do other than sit in a prison cell are considered, and also because non-prisoner petitions are more likely to involve a Plaintiff who has been genuinely wronged, even by the government’s own estimation.

Let’s put these statistics in context.  In 2006 the number of civil rights complaints was less than 2% of the state felony convictions in the same year.  But the fairer comparison would be to the number of arrests, which are more closely analogous to the filing of a complaint in the civil setting.  That ratio would be 18,000 over 14.4 million – more like 1/10th of 1%.

But it gets worse.  If historical ratios hold, something less than one-third of the civil rights complaints that are filed will meet any significant degree of success.  Two-thirds will be dismissed at the complaint stage or upon “summary judgment” – a remedy, by the way, that is widely available and granted to defendants in civil cases but not defendants in criminal cases, 7th amendment considerations be damned.

Thus, of the 18,000 civil rights complaints filed in 2006 stemming from state and federal enforcement of criminal laws, something less than 6,000 will attain any degree of success.  NCJ 222989 Thus, based on these statistics, the incidence of valid claims of constitutional civil rights violations in the constitutionally laden area of criminal law enforcement is 6,000 over 14.4 million.

This is considerably less than one-tenth of one percent; in other words, a statistically almost insignificant amount.  It would be fair to just call it zero violations of civil rights in the United States stemming from criminal law enforcement.

These ratios are substantially confirmed by an entirely distinct set of statistics comparing the 2006 nationwide government “direct expenditures” on all law enforcement functions at the federal, state and local level – $214 billion (NCJ 224394) – and the collective median awards for the successful civil rights actions stemming from law enforcement activities for the same year, which could not have exceeded 6,000 at $100,000 a piece for a total of not more than $600 million.

In other words, the awards for civil rights violations stemming from criminal law enforcement could not have exceeded one-quarter of 1% of the expenditures on law enforcement, and were likely considerably less.

The idea that law enforcement in the United States is 99.75% free of constitutional violations is absurd on its face. But that is what our courts have effectively held.

By so doing, through the judicially invented doctrine of immunity, they have protected the public coffers from the sometimes arbitrary impositions of jury awards. But the trade-off is a law enforcement culture that has come to believe in its own invulnerability, its own infallibility.

There being no remedy in the courts by the courts’ own design, we will occasionally be subject to civil unrest. In other words, the rioting in American cities taking place right now are the SCOTUS’s fault, and to a significant degree the fault of all the lower courts and indeed the legal profession itself. It is shameful for us – or should be – that so many of our fellow citizens pursue such a wasteful and pointless “remedy” precisely because we have failed so miserably to do our jobs, to do the hard work of bringing the scales of justice back into balance on an ongoing, daily basis.

Not only that, we bear the lion’s share of the blame for the fact that George Floyd is dead in the first place. Our job is to deter the police behavior that killed him before it ever takes place. We do an absolutely terrible job of that. Abysmal, as we once noted.

Meh. We’re just repeating ourselves.

One last thing. It may be cathartic for everyone to prosecute Derek Chauvin and convict him of murder. But our focus on that remedy is also part of the problem. We say we understand that police brutality and police racism are “systemic”; but convicting and punishing the one officer costs the system nothing. The system will change only when the system is held accountable. Only when the system pays.

Lawsuits, properly trained and disposed lawyers and conscientious juries can make that happen.** Nothing else can.

Nothing else has.

______________________________________________________________________________

*Apparently his wife is divorcing him, too. No comment.

**Interesting that SHG comes to exactly the opposite conclusion this morning. That means something, we think.

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SCOTUS Update

Well, we wish things had been cleared up a bit by now. But of course we don’t run things at the SCOTUS. Or anywhere else, for that matter. Or even our own life, it often seems.

Anyway, as our regular readers (all three of them!) are no doubt aware, we have been following a few cases in the SCOTUS that might, or might not, have something to do with an important issue the SCOTUS should address, and has been trying to address, and has been unable to address for a couple of decades, primarily because in that time it turns out that none of the SCOTUS Justices, and none of the attorneys arguing before them are actual lawyers who may at one time or another have tried a case to a jury.

As of this morning, it looks like…….not.

Why do we say this?

First, right now it appears there is no interest in this case, even though Hogan Lovells brought the petition.  That could still change.  The Respondent engaged in a little bob and weave by asking for an extension to file a response and then waiving the right to do so, kind of at the last minute.  Whereupon as you can see, if you check the link, the case gets “distributed” for the May 15th conference at which it supposedly will be considered.  And if that’s what happens here with nothing else in between it’s almost certainly a denial.

As an aside, look at what Hogan Lovells did before on this issue.  Oh, yeah.  Not good.

Second, SCOTUS interest has certainly been shown in this case, but it seems to have something to do with the first question presented by the petition, which is not the really important one.  We like the second question. There may be interest in that, too, but it’s less likely.  We say that because SCOTUS is also showing interest in this case.

The common element between the two is a police shooting and the potential constitutional liability of the officer for damages.  The SCOTUS proclivity for taking up cases and limiting opportunities for that is habitual and entrenched.  SCOTUS protects institutional litigants from being held to account by the rabble.  They see this as their primary function.

Judged by that standard, they do a very, very good job.

Ugh.

 

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Greenhouse And SCOTUS

Linda is taking note of the same case on which we offered our opinion, but she thinks Kavanaugh is doing the opposite of what we think Kavanaugh is doing.

We can’t both be right.  Eventually we’ll see who’s who or what’s what, as the case may be.

But there is much, much more going on with the SCOTUS, and we’re interested in this whole “overturn precedent” issue for reasons of our own having nothing to do with Roe v. Wade, although we of course recognize that Roe is what animates the partisans, including Greenhouse.

Specifically, we’ve been following a couple of pending cases, one of which was supposedly “conferenced” yesterday.  The “order list” comes out Monday, and at that point we’ll know if the case is granted, denied or “relisted”.  A grant is of course extremely significant.  A “relist” is potentially extremely significant, but not significant yet.

The other case has a response due next week.

What we would like to see is both of these cases taken up – and maybe another that we might have a hand in – for the SCOTUS to reconsider and overturn Manuel v. City of Joliet and Albright v. Oliver, to the extent the latter is a precedent at all.  You may recall that we don’t much care for either of those cases, because they confuse and conflate the 4th amendment with due process.  Among other Bad Things.

We’ve discussed this issue a lot over the years.  Don’t hesitate to contact us or comment if you want to know more.

 

 

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Hope At The SCOTUS

A criminal defendant finally wins one, unambiguously.  From now on, a jury conviction has to be unanimous.  Ten out of 12 isn’t good enough.

And Gorsuch wrote the majority opinion.  And Thomas concurred.  As did Kavanaugh.  All siding with a criminal defendant.  In a significant way, no less.

And Alito dissented, joined by Chief Justice Roberts and……Elena Kagan.  That’s an odd grouping.

One extremely interesting side issue discussed at length in several of the opinions is the Marks rule regarding plurality opinions.

We’ll probably have more to say about this later because, among other things, Albright v. Oliver was a plurality opinion.

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The Government Wins – Redux Edition

Business as usual in the SCOTUS.  There have been changes in personnel in the five years since our last post with this title.

But the results are the same.

The burning issue in this case? Whether a dismissal of a Federal Tort Claims Act (“FTCA”) case brought against the federal government bars any other litigation based on the same facts and circumstances.

Well, let me get a little lawyerly, in the sense of simply employing the rudimentary rules they taught us in law school. Under the usual doctrines of res judicata and claim preclusion and issue preclusion, sure, there’s a “bar” to duplicative litigation. You don’t get another bite at the apple, so to speak.

But there’s a hitch. You don’t generally get barred from suing again in a different venue unless there was an adjudication “on the merits” of your claim. So, to take the most obvious example, if you sued in the wrong court and that court had no jurisdiction to consider your claim, you can go over to the right court after that screw up and bring the claim there.

This is simple, horn-book law stuff.

So what happened with the case we linked to, known as Brownback v. King? Well, there was an FTCA claim and the District Court dismissed it for lack of jurisdiction.  The 6th circuit says, well, that’s not a bar to subsequent litigation because the District Court didn’t have jurisdiction to consider the FTCA claim to begin with, so there was no adjudication on the merits.

Bad move, 6th circuit.  You decided the government should lose.

The government then appeals – that is, brings a cert petition to the SCOTUS and guess what? The SCOTUS takes it up, it falls into that tiny pool of cases that the SCOTUS is going to hear and decide on the merits.

What’s the argument that the SCOTUS should, that Brownback presents some issue of general importance that is likely to recur enough to affect the beloved “system”?  From the government’s brief:

Under the court of appeals’ reasoning, any decision in favor of the government on an FTCA claim based on a failure to show liability under state law can be characterized as “jurisdictional,” with the result that a very large number of FTCA judgments rejecting the liability of the United States would be deprived of the judgment bar’s preclusive effect.

Where does the government come up with “very large number”? They don’t say. Because it’s not only not true, it can’t possibly be true, and we talked about that years ago, after the SCOTUS decision in Connick v. Thompson:

We have millions of felony convictions and imprisonments.  We have even more millions of misdemeanor convictions.  I have cited the statistics before here, right out of the US Bureau of Justice Department.

How many annual successful civil rights actions arise out of all this domestic “kinetic” activity?  At most 3,000, based on this and other BJS statistics.

It is axiomatic that violations of constitutional rights are likely in the course of a criminal prosecution, including simple arrests, because so many constitutional provisions apply.  Yet – and this is prior to Connick, the latest installment – the number of recognized and allowed annual section 1983 claims is running at less than one-half of one percent of the annual felony convictions, and an infinitesimally small percentage of annual arrests.

As I said before in another post, this is effectively zero.  42 U.S.C. 1983 was killed by the SCOTUS.  And that was before Connick.

The real reason SCOTUS is taking up the case, then, is because….the government is the Petitioner and the government wins. That’s the lesson. It’s been the lesson for decades now.  And you don’t have to take our word for it:

The justices gave just one of last week’s relists the nod, and unsurprisingly, it was the one in which the government is the petitionerBrownback v. King19-546.

From John Elwood’s “Relist Watch” yesterday.  Emphasis supplied.

SCOTUS killed federal habeas corpus, too.  We hope we don’t have to review that history again.

The SCOTUS bias in favor of well heeled and institutional litigants and their law firms is completely reflexive and unselfconscious at this point. You’re either in the 1%, meaning your claims are assiduously observed and carefully considered; or you’re the rabble, too trivial to be bothered with.  It’s an axiom at the SCOTUS, and all the lower courts, state and federal, are just following suit.

It’s official. We’re better off without the courts. They exist to ratify and rationalize the prerogatives of the powerful over the powerless, while providing an illusion that redress of grievances can occur.

They are a lie.

 

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