Category Archives: wrongful convictions

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

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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Brady Follies – Propagating The Big Lie

This looks like a law review article.  But it isn’t.  It’s in a journal of “criminology”.  Criminology is a field of study undertaken primarily by law enforcement types, and it probably doesn’t matter to anyone but us but in our opinion it is not a proper field of study for a lawyer.  Too slanted in one direction.

In any case, published in 2011 the article is as revealing as it is wrong, once you get past its basic deceptiveness:  while seeming to bemoan prosecutor lying and cheating it is in fact giving them a lot more cover than they deserve, and more importantly a lot more legal cover than they actually have.

As we have repeatedly noted in these pages, the basic error – or sleight of hand, if you’re not in a charitable mood – is to conflate the Mooney line of cases with the Brady line of cases; that is, deliberate deception of the court (Mooney) with negligent or unintentional misleading of the court (Brady).

Here’s Mooney:

Petitioner urges that the “knowing use” by the State of perjured testimony to obtain the conviction and the deliberate suppression of evidence to impeach that testimony constituted a denial of due process of law…Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise.

But here’s Brady:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Mooney was decided in 1935.  It has been unambiguously reaffirmed by the SCOTUS every time it was addressed: in Pyle v. Kansas (1942); Alcorta v. Texas (1957); Napue v. Illinois (1959); and Miller v. Pate (1967)

In contrast to Mooney, Brady (decided 1963) has been qualified, limited, distorted, exceptioned to death and rendered a dead letter.  And you don’t have to take our word for it.*

Yet somehow, all these qualifications and exceptions – such as a “materiality” requirement – that were later applied to the Brady line of cases also got applied to the Mooney line of cases, at least in the minds of many prosecutors.

And judges, if that’s not repeating ourselves.

Which as you’ll see further down, is more than a little ironic.  We could think of other words, too.

Anyway, there are really two lynchpins of this contention Brady = Mooney.  The first is this line out of Brady:

This ruling is an extension of Mooney v. Holohan, 294 U. S. 103, 112, where the Court ruled on what nondisclosure by a prosecutor violates due process…

And then this line:

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.

From these slender reeds, criminologist types have argued: 1) that the deliberate use of perjury by a prosecutor to obtain a conviction violates due process only if it is “material”; and 2) the only use of perjury that counts in this context is use at trial.  Perjury can otherwise be freely – and deliberately – used without due process concerns.

I would call these arguments sophistry of a very low order, but I don’t want to flatter them.

For the first argument – often called the “materiality” requirement – it is certainly a concern in a Brady situation but it is never a concern in a Mooney situation, for the simple reason that the  materiality of the deliberately perjured or suppressed or fabricated evidence has been conceded in advance:  if the evidence didn’t matter to obtain the conviction, why did the prosecution deliberately perjure or suppress or fabricate it?

Put another way, the State is judicially estopped from even arguing that the evidence they deliberately perjured or suppressed or fabricated to get their conviction didn’t matter.  It’s more than a little embarrassing that judicial estoppel must be applied to state officials as opposed to, say, ambulance chasing TV lawyers, but there it is.

Moreover, what is the line of reasoning here? That if Brady “extends” Mooney and has a materiality requirement then Brady must also limit Mooney by extending the materiality requirement to Mooney? That is a non-sequitur, and a particularly unwholesome one at that.

As to the second argument, not one of the cases in the Mooney line ever suggested that the deliberate use of perjury, etc. counted as a due process violation only if it occurred at a trial; indeed they said it counted as a due process violation if it was used “to obtain a conviction”.

Here’s Pyle v. Kansas:

Petitioner’s papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him.

Here’s Napue v. Illinois:

First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment

Here’s Miller v. Pate:

More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.

But all this aside there is even better – conclusive, really – proof that the Mooney line of cases, though related, is separate and distinct from the Brady line: Miller v. Pate is 1967** – that is, it post-dates the 1963 Brady case – and while it cites Mooney and Pyle and Alcorta and Napue it never cites Brady.

Thus when the criminology article goes on and on about how we really, really should have a more “protective” “materiality” requirement to discourage prosecutor lying and cheating it is actually making an allowance for prosecutor lying and cheating that never existed in the first place (and God willing never will exist):

Nine years after the Brady decision, the Court established the materiality standard for determining a constitutional violation in the context of a prosecutor’s knowing presentation of false testimony in Giglio v. United States

Giglio (1972) did no such thing.  In the first place, Giglio was fundamentally a Brady case:

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).

In the second place, the only significance of Giglio was to impute the knowledge required for the “knowing” use of perjury to any attorney in the prosecutor’s office.  The intra-office assignment of a different prosecutor for the trial meant the case didn’t squarely fall within Napue, because the trial prosecutor didn’t know of the promise of leniency to the witness and thus did not act in bad faith, but Brady still applied because the promise of leniency still had to be disclosed:

The heart of the matter is that one Assistant United States Attorney—the first one who dealt with Taliento— now states that he promised Taliento that he would not be prosecuted if he cooperated with the Government… Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.

From this mess there, the criminology article then cites the 1976 case of US v. Agurs.  But Agurs is a Brady case.  This is out of the first paragraph:

The question before us is whether the prosecutor’s failure to provide defense counsel with certain background information about Sewell, which would have tended to support the argument that respondent acted in self-defense, deprived her of a fair trial under the rule of Brady v. Maryland, 373 U. S. 83.

The article then gets deeper into the “materiality” issue and goes on to cite United States v. Bagley (1985).  But the first paragraph of that case says:

In Brady v. Maryland, 373 U. S. 83, 87 (1963), this Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” The issue in the present case concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses.

Yup.  Bagley is a Brady case, not a Mooney case.

Finally, the article throws a bone to those victimized by prosecutor lying and cheating by eschewing the “materiality” test of Kyles v. Whitley (1995) as being too lenient with prosecutor lying and cheating.  But of course, in the first paragraph of Kyles:

After his first trial in 1984 ended in a hung jury, petitioner Curtis Lee Kyles was tried again, convicted of first-degree murder, and sentenced to death. On habeas review, we follow the established rule that the state’s obligation under Brady v. Maryland, 373 U. S. 83 (1963), to disclose evidence favorable to the defense…

Kyles is a Brady case.

To recap, there is no disputing that there is a materiality analysis and requirement before a Brady violation is held to result in a reversible due process error, because strictly speaking a Brady violation is not deliberate; but there is no such “materiality” analysis and requirement for a Mooney violation because a Mooney violation is always deliberate.  The article is arguing for a more “protective” materiality “test” that doesn’t apply to Mooney violations in the first place.

Parenthetically, it’s worth noting that what really underlies the Brady “extension” of Mooney was the realization, in 1963, that it’s virtually impossible – or at least extremely, extremely rare – for a wrongfully convicted person to actually prove that prosecutor misconduct was deliberate – not everyone gets lucky like Napue (or we) did – so they relaxed that scienter requirement in Brady.  Accordingly, it is perverse beyond words, really, that this effort by the SCOTUS to extend the reach of the “principle of Mooney” has effectively restricted it instead.  As we’ve noted before, though, one of our favorite SCOTUS justices – Whizzer White – presciently anticipated such problems when he concurred in the Brady case itself:

In my view, therefore, the Court should not reach the due process question which it decides…The result, of course, is that the due process discussion by the Court is wholly advisory…In any event the Court’s due process advice goes substantially beyond the holding below. I would employ more confining language and would not cast in constitutional form a broad rule of criminal discovery.

So, among other problems with it, Brady becomes a cautionary tale about appellate courts roaming beyond the confines of questions the case before them actually presents, into “advisory opinion” territory which, in the US at least, is a no-no.

——————————————————————————————————–

* The degree to which the criminal defense bar has itself succumbed to this same confusion, to some extent evidenced by SHG’s post, is a very large subject for another time.

**  Milller v. Pate is almost amusing. In convicting the defendant of murder at this trial, the prosecutor paraded before the jury en exhibit characterized as “blood-stained shorts”. The blood stains were actually red paint.

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Nino Scalia And His Elites

Oh, the irony.  Turns out the defendant in Justice Scalia’s poster child case for the death penalty:

The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional — for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that!

is – well – innocent.  Gamso’s all over it, of course.  As he should be.

Nino’s not our Bete Noire over here at Lawyers on Strike.  We often agree with Nino.  But then we have some serious disagreements, too.

A couple of large topics beyond that are in play here, though.

First is the death penalty.  We don’t care for it, but Nino happens to be correct – absolutely, unarguably correct – that there’s nothing unconstitutional about it.  At least not now.  The constitution could be amended to make the death penalty unconstitutional, of course, but the population at large has to do that, not justices of the Supreme Court.

So to that extent, we agree with Nino.

But there’s something else going on here that we find more troubling.  A few news outlets here and there have noted how Nino’s rhetorical flourishes went embarrassingly wide the mark here, but the reaction has been muted.

We’ll hazard a guess as to why that might be the case: Nino’s “credentials” are beyond reproach.  He went to the right law school, did well there academically, and pretty much followed the standard, approved, and privileged “career path” all the way to his current high perch.  He and other members of the elite may disagree about some things, but in the most important matter of all – who’s in the club – there is no disagreement whatsoever.

A lot rides on such credentials being revered, and nothing undermines the starry-eyed reverence for them more than an episode where the man who possesses them is shown to be flagrantly wrong.  Harvard sits on a $32 billion “endowment” that is grounded in its supposed ability to identify and produce the “best and the brightest”.  But a few examples of these best and brightest being flagrantly wrong could eat into the (over) confidence that is embodied in that over-sized nest egg.

Thus, trumpeting Nino’s flagrant error doesn’t harm just Nino’s reputation; it also harms Harvard’s reputation. So it’s not just about Nino.  He has his enemies among the elite, but they’re not in the habit of cutting off their noses to spite their faces.  If they could find some personal peccadillo to tar Nino with, I’m sure they would.  Pointing out a flagrant professional error, however, undermines the mythology that credentials assure brilliance, and every Harvard graduate’s livelihood – not to mention often overblown self image – depends on that mythology.

Of course Nino doesn’t make just flagrant factual errors; he makes flagrant legal errors, too.  We have been constrained to point this out before.

We don’t fault Nino terribly for this particular legal error even though a good argument can be made that it has personally cost us dearly.  Yet it is a fairly stupid – and fairly revealing – error, because it means that not only Nino but several generations of his law clerks, all of whom have credentials rivaling his own, have never read Pyle v. Kansas.  Or if they did, they did not understand it, which in itself is something because there’s nothing terribly difficult about understanding that case.

How vigilant and defensive the elites have to be to protect and preserve a credential mythology they must themselves believe to be quite fragile.  Otherwise, why be so defensive about it?

And our press persons are slaves to the same mythology.

Credentials don’t make truth, though.  Motto notwithstanding, Harvard gets no monopoly.  But so many have a vested interest in pretending otherwise that a great “gotcha” story about Nino gets little play in the Washington and New York media centers.

Ugh.

 

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Magna Carta At 800 And Due Process In America

(Author’s note: if you click the links and read the cases you’ll probably get a real legal education, of sorts anyway. We realize it’s a lot of reading, but hold out the hope that it will greatly enhance the reader’s understanding of what is posted here.)

On June 15, 1215 King John capitulated to his Barons and signed the Magna Carta in a place called Runnymede.

Just about 800 years ago exactly.

Runnymede is in England, a country with which we supposedly share the common law tradition, but that’s a large subject for another time.  So, too, are the various political intrigues surrounding Magna Carta and what it eventually came to mean in the fullest sense.  We’re not going to run with any of that today either.  Because whatever else Magna Carta stands for, there are some small number of principles that it is more or less not debatable that Magna Carta enshrined.  One of these is the jury trial.  Another is “due process of law”, which was originally expressed as “law of the land”.

We’re going to focus on the due process of law idea, and what has happened to it in the United States of America over the last, say, 50 years.  Because we know a lot about that.

There’s so much to say, but let’s begin by noting that the phrase “due process of law” appears in the 5th amendment to the United States Constitution (and probably in many if not all state constitutions but we’re going to focus on the US constitution right now) and in that 5th amendment form it provided that no person should be deprived of life, liberty or property without due process of law.

So a couple of preliminary observations:  1) the “due process” clause is a limitation on government conduct.  Obviously, a thief deprives you of your property without due process of law but the due process clause does not apply to that situation because the thief is not acting on behalf of the government; and 2) due process is required only in three situations, namely, where the government is going to deprive you of life, liberty or property.

One other preliminary observation:  due process doesn’t apply in war situations.  Just to be clear about things.  The general acts on behalf of the government, but he doesn’t have to worry about due process of law before ordering an air strike.  Which is not to approve of this or that air strike.  We generally don’t, if that matters.

Anyway.  Moving on.

All those preliminary observations aside, it can be fairly said that the most fundamental situation in which due process does apply is when the government prosecutes someone for a crime, in which case at least one but in many cases all three – life, liberty and property – are at stake.

Now, it is a truism that the due process requirement of the 5th amendment applied only to the federal government.  Which is not to say that the states were ever free to ignore the strictures, whatever they may be, of due process of law:  again, the states almost assuredly had due process ideas in their own constitutions.  But the state governments and the federal government are separate, or at least they were.  Or at least, in some ways.

But in the wake of the Civil War, the states became subject to a federal standard of observing due process of law by virtue of the passage of the 14th amendment, which provided that “No state shall deprive any person of life, liberty or property without due process of law.”  That occurred in about 1866.

What happened then?  For a long time, not much.*

In the 1880’s the Supreme Court considered the question of whether federal standards of due process of law (now applied to the states by the due process clause of the 14th amendment) required the states to prosecute felonies only upon an indictment by a grand jury, which was separately required of the federal government by that same 5th amendment.  The answer was no.  And to this day California does not have to prosecute felonies via grand jury indictment.

That didn’t go so well, then, if you’re a fan of grand juries.

Very little was said for about another 30 years.  But then in 1915 the Supremes are deciding a federal habeas corpus case and they say that this federal due process standard is a big deal with real teeth:

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 not merely a single step in those proceedings…

So at this point things are getting active, as Rollie Massimino used to say.  It was only eight more years until the next major Supreme Court foray into the question of federal due process applied to state criminal proceedings.

Thus in 1923 the Supreme Court decided that a state court trial that had degenerated into a “mob dominated” circus did not satisfy the federal standard for due process of law. Also that year, the SCOTUS opined in Meyer v. Nebraska regarding “due process”:

“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Then in the 1930’s all hell broke loose.

It isn’t really well known today, even in legal circles, but the first time the Supreme Court really threw down the gauntlet on federal due process standards applied to state criminal prosecutions – because the 14th amendment – was the Scottsboro boys case out of Alabama that began in 1931. A group of black youths convicted of raping two white girls. Very emotional case in Alabama at that time.

Of course, the “due process” the kids received was a sham, a circus. The case went up to the SCOTUS in 1932 and that’s what they said and then they said 14th amendment and sent it back to be done right.

And of course it wasn’t. So the case went back up to the SCOTUS again in 1935 (!) only this time the decision rendered had more to do with the racial make-up of the jury, not due process of law proper. But the significant thing here is that having already laid down the law – the law of due process, that is – that must be observed by state courts in carrying out criminal proceedings, the SCOTUS, which is not a court of error, actually took up the same case again.

Don’t happen much.

It was at this same time – 1935 – that the SCOTUS further laid down the law in Mooney v. Holohan to the effect, basically, that the government couldn’t lie and cheat to get a criminal conviction, that doing so violated a person’s right to due process of law. It was a little embarrassing – at least the SCOTUS thought so – that this needed to be said:

Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise.

Even so, it should be borne in mind that the California Attorney General argued that position, just as the Alabama Attorney General had argued in favor of the Scottsboro boys convictions.  A state Attorney General is a high official, and it’s just our opinion but we think the Attorney General should be a lawyer’s lawyer and a servant of the law, not a “zealous advocate”.

(As an aside, both Mooney and the Scottsboro boys cases involved communists advancing the due process arguments that eventually prevailed.  We generally don’t like communists around here, but when they’re right we admit they’re right.)

But let’s move on some more. This was the due process revolution in the SCOTUS; these were the cases in which the rudimentary demands of justice, which is what due process has fundamentally meant since the beginning – since Magna Carta – were held to be mandatory and binding on government – all government – throughout the United States. We point this out because the “legal community” often touts the Warren Court decisions of the 1960’s as “the due process revolution”. As often happens, the legal community is pretty much wrong and misses the big picture. To the detriment of us all, I might add.

No, it was in the 1940’s and 50’s that federal due process standards really began to take hold. In 1940 even the constitutional literalist and purist Hugo Black had this to say in deciding Chambers v. Florida:

The scope and operation of the Fourteenth Amendment have been fruitful sources of controversy in our constitutional history. However, in view of its historical setting and the wrongs which called it into being, the due process provision of the Fourteenth Amendment — just as that in the Fifth — has led few to doubt that it was intended to guarantee procedural standards adequate and appropriate, then and thereafter, to protect, at all times, people charged with or suspected of crime by those holding positions of power and authority.

Then in 1942 the SCOTUS said in a couple of cases that the state could not obtain a conviction dishonestly – by taking contradictory positions in different prosecutions – and also that a state couldn’t obtain a conviction by threatening a criminal defendant with the use of perjury to badger and terrorize him into pleading guilty.

It might not seem like a lot, but this was a veritable 14th amendment due process of law blizzard coming out of the SCOTUS compared with, say, the period from 1866 to 1915.

In other words, this really was a due process “revolution”. But these cases reflected more than just a mechanical application of a clause in a constitutional amendment; they were really a re-assertion of the fundamental idea of due process as enshrined in Magna Carta all those centuries ago: the government cannot oppress; the government must be honest.

Unhappily, we must report that it is just this – the very foundations of our ideas of fair and just government – that have crumbled in the years since. We have our ideas about why, but that’s way too much for a blog post.  What we can do is continue to chronicle the failure.

In 1952 the SCOTUS – perhaps mindful of the oppressive government tactics employed by totalitarian governments in the great war just past – said that pumping a man’s stomach without his consent to get evidence that he possessed illegal narcotics was a due process violation. In 1959 they said – again – that the state government couldn’t lie and cheat to get a criminal conviction. And in 1967 they said it again, only this time it was not conceded by the state that they had thus obtained the conviction, but for the first time the SCOTUS indicated that the truth could not be mocked.

But by 2003, well, merely pumping someone’s stomach without their consent seemed like due process child’s play and there was disagreement on the SCOTUS over a situation far more like torture.

And by 2009, the United States Justice Department and the nation’s prosecutors as a whole were arguing in the SCOTUS – with a straight face, no less – that lying and cheating to obtain a criminal conviction didn’t violate the right to due process of law. As if Mooney, Pyle, Napue and Miller had been repealed, or somehow rendered meaningless.

Yet those cases are among the most notable pure descendants of Magna Carta in American law, based only on principles of justice so fundamental that they barely needed to be said in 1215, much less 1935. Much less today, yet here we are.

Maybe every generation, or every second or third generation, must fight for “due process of law” anew, for the simple reason that power corrupts.  Maybe Magna Carta is an eternal and ever-contemporary event. The times, people and circumstances change – King John is long gone –  but the principles remain the same.

And remain as fragile.

 

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* We should note that in a different context, the SCOTUS became quite active on 14th amendment due process with the 1905 decision in Lochner v. New York.  But Lochner involved the “striking down” of laws enacted by legislatures.  This kind of case is far more removed from the due process enshrined in Magna Carta than the cases we are reviewing here.

 

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Death Threats. Harassment. Obsession. (Amanda Knox)(Updated)

So a British tabloid that has been fanning the flames of the frenzied mob for eight years now reports that the FBI is investigating some of its readers.  Pretending to be neutral at this late date, after years of smearing and base casuistry masquerading as ‘journalism’.

The FBI can investigate away, and contrary to the impression given by the article, not all the lunatics are in the UK; there are plenty of people in the US who are driven mad by high profile acquittals, especially when the beneficiary is a pretty young woman.

We suspect this will go on for quite some time.  Our standing recommendation to the exonerated is to live as obscurely and remotely as possible in a country other than the one that convicted you in the first place.  Of course this reasonably requires the exoneree to be independently wealthy.  And that is exactly what those responsible for the wrongful conviction are obligated to ensure:  that their victim be made independently wealthy.

Wealthy or not, the exoneree will live out a substantially diminished life.  There’s no fixing it.  But leaving an exoneree to fend for herself, defenseless, in a world in which so many want to see her suffering or dead is literally excruciating and utterly unconscionable.

If you let loose the dogs of war in error, there’s no going back.  Prosecutors should think hard about what they set in motion when they file charges.

Update:  Radley Balko points out that we’re very, very lousy at compensating those we have injured through major malfunctions of the criminal justice process.  That has to improve.

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Filed under financial crisis, Judicial lying/cheating, Media incompetence/bias, Uncategorized, wrongful convictions