Category Archives: wrongful convictions

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

Cause And Effect

We’re in deep, deep trouble.

Don’t know how we missed this. Except, well, we’ve been busy.

Causation, in the larger sense, is a subject for philosophy, not the law. We have determined at long last, and contrary to our impression growing up and consequently through a large portion of our adulthood, that lawyers and judges as a group are intellectually ill-equipped for any nuanced and honest analysis of any topic with any degree of subtlety. This is probably because the bulk of them were intellectually framed by being political science majors in college.

The idea of “proximate cause” – primarily a negligence concept – is okay for lawyers and judges because it is a greatly simplified version of the idea of causation generally. Beyond that they dare not go.

But then they do. Thus the trouble we are in.

So in Frost we have lots of discussion about due process and deliberate lying and cheating by a police officer or police officers and the majority finds that there was causation or at least that there could be causation:

Second, defendants miss the mark in their assessment that Frost has not raised a triable issue regarding causation. As we have explained, a “prosecutor’s decision to pursue charges rather than to dismiss [a] complaint without further action[] may depend on the prosecutor’s . . . assessment[] of the strength of the case, which in turn may be critically influenced by fabricated evidence…Here, a reasonable jury could have found that Vega’s identification “critically influenced” the decision to prosecute Frost. 

We need not enter into a hypothetical discussion about what a prosecutor might or might not do if we understand that deliberate lying and cheating by a government actor corrupts the process itself, the very thing that we call “due process” and the very thing that a criminal defendant is constitutionally entitled to.

This winds up being another excuse to cabin or limit the Mooney line of cases by requiring a showing of “causation” tied to some specific act by a government actor that is more concrete than simply recognizing that the corruption of the process due to government dishonesty is sufficient by itself to amount to a fatal constitutional infirmity.

This is a much simpler way of looking at it, but it’s also more subtle, and for that reason lawyers and judges are bound to screw it up.

Indeed, this intellectual deficiency is demonstrated not only by the majority opinion but also by Judge Kearse in dissent:

But this recognition of the actual pretrial focus of Frost’s claimed deprivation of liberty highlights my doctrinal difficulty with the majority’s reinstatement of Frost’s so-called fair-trial claim…The manufacture of false evidence, in and of itself, . . . does not impair anyone’s liberty, and therefore does not impair anyone’s constitutional right.”

Well, this is the issue, isn’t it?

Our position that this latter assertion is wrong; that is, that the manufacture of false evidence, in and of itself, does constitute a deprivation of due process simpliciter, by corrupting the process itself, whether or not anyone’s “liberty” is impaired by imprisonment or pre-trial detention or whatnot.

What is most worrisome about Frost, though, is that it’s attracting the attention of the SCOTUS, having received a “Response requested” and now a relist. This may be just reflexively favoring the government as the SCOTUS is wont to do (the government is the Petitioner). But maybe not, too.

We will be keeping our eyes on this one.

Ugh.

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“Meticulous Rebuke”

We take it that Dahlia Lithwick over at Slate would generally not approve of District Court judges issuing “rebukes” to the SCOTUS. But she loves this one.

We at LoS are quite struck by this passage:

In order to block the law, [District Court Judge] Pitman crafted an injunction to “halt existing S.B. lawsuits and prevent new suits from being maintained by the state judiciary.” He forbade state judges and clerks from “accepting or docketing” these cases, and, for good measure, barred “private individuals who act on behalf of the state” from filing them. Finally, he ordered Texas to “publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.”

When you are being “meticulous” you “craft” injunctions, because you are being so, so careful to follow “the law”.

Lithwick can’t really believe this drivel.

Judge Pitman is actually enjoining state court judges from doing their jobs under state law.

Will the SCOTUS sign off on this sweeping assertion of the power of federal courts over state courts?

If this were a habeas case, the decision would have already been reversed. But habeas cases are about some poor and likely innocent schmuck who is slated (no pun intended) to be executed, or is rotting away in some state prison. No one cares about that, certainly not our Very Important federal judges who have other more Very Important matters to attend to.

Again, as we have pointed out before (and we have actually re-read that one recently with a certain amount of surprise – and yet satisfaction – that it seems to say what it says pretty well), there is only one area of the law where the federal courts, and the SCOTUS in particular, have any “federalism” concerns: habeas corpus. Because that’s the little guy against the big guy and we crush the little guy, who is constantly wasting our time. We like Big, Important Ideological Questions like Abortion because they Matter in some Hegelian World-Historical sense, whereas the plight of the innocent imprisoned or executed are lesser concerns consigned to lesser levels of government, whose job it is to return, again and again, to the Augean Stables.

Judge Pitman’s decision is one part lawlessness and two parts effete snobbery. And Slate applauds.

Ugh.

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Hyper-technical

Read the SCOTUS blog article on Brown v. Davenport – upon which we have opined before – and see if you can figure out just what the issue is here.

The best thing to say about it, at this point, is that the case should never have been a cert grant and the SCOTUS should probably DIG it. What need is there to have a rule about an issue that will almost never occur? The SCOTUS does not exist to answer absurdly technical and practically hypothetical questions. In the exceedingly rare event where a non-death penalty habeas grant occurs by some District Court or Court of Appeals, SCOTUS should just leave it alone.

Ugh.

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The Toppling Of A Mayor

Politics ain’t beanbag. We get that.

She knocked off Tom Richards, who was an odd choice for Rochester mayor, speaking demographically. But he was not odd in one important respect: the shadowy powers that be held him in high regard.

Lovely did not truck with the powers that be and that has consequences, especially if you are vulnerable to attack, and Lovely was, and is. An indictment will sink most any political career. And they’re easy to get. And so the powers that be eventually got one, and now there’s a plea deal, and that’s that.

This is a sad chapter in Rochester politics. Sad because Warren became such a disappointment, but then her enemies were always close. Many of them worked “for” her. There’s a swamp in DC? Surely.

The Lovely Warren episode demonstrates that there is also a swamp in Rochester.

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Finally

Someone, other than us, points out that the SCOTUS really shouldn’t be getting a pass.

Although it isn’t just SCOTUS favoritism to the police that poses a threat to the Republic, as it were. As if we had anything even remotely resembling a Republic or a democracy at this point here in the USA.

SCOTUS is just relentlessly establishmentarian across the board. Somehow, with all the federal government overreach since the 1930’s, SCOTUS finally decides to put its foot down so that people – including children – can be evicted and made homeless. It’s not that we even disagree with the principle here at LoS. It’s that principle has nothing to do with it.

The threat of homelessness is an essential ingredient of the status quo, the “status quo” being more or less a modern version of serfdom. We went over this a couple of years ago, to the usual effect – which is to say none.

We have lost our capacity for self-government. Or, it’s been taken from us. Maybe it was never all it was cracked up to be anyway.

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Prosecutorial Discretion

Turley makes a good point this morning. At least that’s what we think. We put up a little comment there. Now we’re going to comment over here. Where we live.

In obscurity. But never mind that for now.

To us it seems the feds often don’t really have any principles at all about who and what they prosecute.

For instance, they seem to have a large number of little noticed prosecutions for tax fraud, money laundering, welfare fraud, food stamp fraud. Our impression is that these are training events for junior prosecutors. Nobody much cares about them except the Defendants and their families.

There are occasional large drug crime prosecutions, of course, but like every other kind of crime such prosecutions are normally carried out by state officials under state laws. Why the feds get involved in this or that case is often a mystery.

There’s a notion we have only recently become aware of (because while it is a prevalent notion, it is also never – or almost never – explicitly stated, and we expect a manly straightforwardness around here at LoS), that the federal government is simply more important and higher status than the state governments. It’s a surprising notion, not least because it is un-American and contrary to the entire scheme of the constitution.

But we digress.

We chronicled another strange prosecutor decision here. This wasn’t the feds, but the mindset is the same. And like the feds, once they put you into the “perp” box they normally “succeed” in convicting and imprisoning you.

Prosecutor discretion is an important safeguard in the system. When it’s driven not so much by a sense of justice and mercy but by career concerns – or as Turley points out this morning, political concerns – it becomes perverted. And dangerous.

Is that what goes on with the feds – that is, career and political concerns over everything else?

We think sometimes the answer to that is yes. It gives us no pleasure to say so. But there it is.

Ugh.

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Fiat Justitia..

ruat caelum.

“Let justice be done though the heavens fall.”

Being a judge can be a very easy job, or a very difficult one, but when it’s difficult it’s not difficult in the usual way. That is, it’s not difficult due to arduousness, or long hours. No, being a judge can be difficult when it requires moral courage, one of the four cardinal virtues of antiquity.

The Latin adage is interesting from that standpoint. Most cases are routine – by definition, we guess – and the judge doesn’t really do any of the work; rather, he reviews the work of others and his job is to make the decision. But sometimes the case is not routine – again, by definition – and what this means in practice is that the party who would be normally expected to prevail (government, bank, insurance company) should lose.

The operative word being should.

Unsurprisingly, the party that is normally expected to prevail – well – expects to prevail. When those expectations are unfulfilled “the heavens fall”. That’s the idea, anyway.

Here’s an account of a judge who did his duty in just the way we are pondering this morning. Note that he did not go on to the usual conceptions of judicial greatness, becoming a federal appeals court judge or a United States Supreme Court Justice. Indeed, knowing full well that his decision in the Scottsboro Boys case would cost him the position he had, he made his decision anyway. He lived out the rest of his life in obscurity in rural Alabama as a farmer.

We hear nothing about Judge James Edwin Horton, just as we hear nothing about John Edland. Even as we can’t avoid hearing about Kim Kardashian.

We need to do better, in terms of the cardinal virtues, obviously. Especially the virtue of courage.

Today is Memorial Day, and we here in the US observe and commemorate the ultimate sacrifices of those servicemen who lost their lives in the military service of their country. We ourselves are a military veteran of the US Navy and we do take the observance seriously.

But this is a lawyers blog, and we put up this post this morning to make this connection: our war dead made their sacrifice for a country that promises justice. When lawyers and judges fail – or indeed often refuse – to do the hard work and (in particular for judges) make the hard decisions that cause the heavens to fall we dishonor and make futile their sacrifice. That is a terrible sin.

So this morning our request is that our colleagues on the bench and in the bar rededicate themselves to do justice though the heavens fall, to do their duty without fear or favor, as they swore they would at the beginning of their careers. And by doing so honor the sacrifices of the fallen, who died defending the civilization that depends upon lawyers and judges making the hard decisions when called upon.

Amen.

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Rehashing Casey Anthony

We have no idea why this is occurring. There’s a lot going on in the country, and indeed the world, that ought to command our attention. Then again, look at all the attention the Kardashians get.

In any case, back in the day we opined somewhat prolifically about the Casey Anthony trial, which was a world wide frenzy for no particular reason we could fathom even then. We found the whole thing horribly fascinating.

The difficulty that attends Casey Anthony to this day is that apparently there was no conduct by public officials in the course of prosecuting her that gave her a cause of action for damages. She has never been compensated for her ordeal, and so we assume for practical reasons (i.e., lack of funds) she is unable to follow our advice for the “wrongfully acquitted”: leave the country and live obscurely elsewhere.

So here we are 10 years later, and there’s some sort of documentary in the offing that will of course imply that Casey Anthony killed her toddler and went out partying in “hot body contests”. And to gin up even more interest in the spectacle, we are treated to articles like this in our Yahoo news feed this morning.

Not to mention this juicy little tidbit: one of the jurors, who now allegedly regrets his vote to acquit. Note that he has to remain anonymous, even 10 years later. And stories from a jailhouse snitch. We are not making that up.

Apparently, even the jurors should leave the country with a bucket of cash, but we don’t know how that can be done.

The whole fiasco remains an important case study. It demonstrated that pretty young women have a really hard time as criminal defendants because of jury dynamics. It proved that even that can be overcome by a brilliant – and rare – performance by the defense attorney. It showed that mass delusion and the madness of crowds are with us still, even in the age of the individualistic world wide web.

Perhaps most importantly, the Casey Anthony case showed us that a large segment of the population will believe in someone’s guilt once they are in the dock, with virtually no rational reason to believe it. The mere possibility of guilt is more than enough to convince many, many people.

We’ll say it again, as we said 10 years ago. There is virtually no reason to believe Casey Anthony killed her toddler. The jury verdict was courageous and clearly correct, clearly even compulsory.

The end.

Ugh.

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Edwards v. Vannoy, Finality And Floodgates Run Amok

So, this was an interesting case that came down from the SCOTUS this week. We’ve been busy and haven’t had the time to deal with the case, at least not in the manner with which it deserves to be dealt.

Interestingly our media elite, such as at CNN, have exercised no restraint whatever in their haste to report not so much the significance of the case for people affected by it, but rather the revealing banter between the Justices in their various opinions, which collectively stretch to almost 60 pages. Which is not the lengthiest of opinions in the modern SCOTUS era, but lengthy enough. Seems that in times gone by SCOTUS was able to do much more in far fewer words.

In other words, CNN is focused on its own “legal analysts”, who in turn are focused on career-oriented gossip like the good little Ivy Leaguers they are. Indeed, if CNN is still accompanying that article with the video entitled “How are Supreme Court Justices chosen?” you’ll note, as we did, the pending rehabilitation of Jeffrey Toobin.

(Jeff ran into an excruciatingly embarrassing problem not that long ago. We find it hard to sympathize, both because the indiscretion involved seems unfathomable to us, and because Toobin thinks Edwards v. Vannoy is an occasion to talk – again, and ad nauseum – about the “impeccable” credentials of SCOTUS Justices.)

The poor schmucks who will rot in prison even though everyone now knows they shouldn’t be incarcerated at all? Who gives a shit about them? We’d rather gossip about petty sniping between the impeccably credentialed Justices than try to understand what they did and did not do to thousands of our fellow human beings.

You see the problem with our “legal analysts” (We mean, aside from their tendency to pleasure themselves on camera)? They’re so deeply mired in their own silly snobbery they miss the actual story.

We tend to the actual story here at LoS.

So what is that, in context here? Edwards holds basically, on the surface, one thing: the jury unanimity requirement that was held to apply to the states in Ramos v. Louisiana, such that a judgment of conviction for a felony after a jury trial can be valid only if the jury was unanimous, does not apply retroactively such that federal collateral relief is available to those aggrieved.*

Yet just like Ramos, which was specifically about jury unanimity but wound up being about stare decisis and Roe v. Wade for the likes of Jeffrey Toobin, so Edwards winds up being about something else as well. And what is the something else?

Federal habeas corpus.

The problem is, does Edwards really say anything we don’t already know? Kind of. It’s giving us some insight into the Justice’s positions. And for the most part, and probably unsurprisingly, it reveals that the Justices are hostile to the “Great Writ”, at least as exercised by federal courts over state court criminal convictions. Which is not to say that they are not also hostile to the Great Writ as exercised by federal courts involving federal court criminal convictions – they most certainly are, although those are called “2255 motions”, not petitions for habeas corpus.

But we digress.

Let’s string together a few choice quotes from Justice Kavanaugh’s opinion:

But under the habeas corpus statute as interpreted by this Court, a new rule of criminal procedure ordinarily does not apply retroactively to overturn final convictions on federal collateral review. See Teague v. Lane, 489 U. S. 288, 310 (1989) (plurality opinion)…As the Court has explained, applying “constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system…When previously convicted perpetrators of violent crimes go free merely because the evidence needed to conduct a retrial has become stale or is no longer available, the public suffers, as do the victims…Put simply, the “costs imposed upon the States by retroactive application of new rules of constitutional law on habeas corpus thus generally far outweigh the benefits of this application.” Sawyer v. Smith, 497 U. S. 227, 242 (1990)

Yes, well. We might as well be re-reading Calderon v. Thompson and post about that here. Like we did just about seven years ago exactly. Obviously, Justice Kavanaugh has not come over here to read.

Let’s say a person really is innocent and was wrongly convicted and rots in prison unjustly. How does the “cost imposed upon the State” outweigh the benefit of exonerating, freeing and compensating the wrongly convicted and imprisoned? Who in their right minds thinks this question even needs to be asked?

Are SCOTUS Justices in their right mind? We wonder sometimes. And note that the majority joined this opinion.

For his part, Justice Gorsuch, concurring, plainly understood that this is yet another case about federal habeas corpus, the AEDPA, and so on. He starts with a rather lengthy and detailed review of the history of habeas corpus and its origins in England.

Notice how Teague comes up again:

Under the view that prevailed in this country for most of our history, and in England for even longer, Teague’s question about the “retroactive” application of “watershed” rules of criminal procedure to undo final criminal judgments would have made no sense. Because a final judgment of conviction, pursuant to a full-fledged criminal trial, was the process due to a criminal serving a custodial sentence, the habeas writ had served its purpose…Only in the middle of the twentieth century did things really begin to change. In 1915, this Court suggested that a state court’s extreme departure from “established modes”of criminal trial practice, such as proceeding under the specter of mob violence, might be akin to the loss of “jurisdiction,” at least if no corrective mechanism like an appeal existed. Frank v. Mangum, 237 U. S. 309, 326, 335–336 (1915).

But if that represented an innovation, it was a modest one. The same cannot be said for Brown v. Allen, 344 U. S. 443, 464, 478 (1953)

Turns out Justice Gorsuch doesn’t like Brown v. Allen. Interesting that he also leaves out – skips over, actually – our favorite quote from Frank v. Mangum, which we have noted before:

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; and that it is incumbent upon the prisoner to set forth in his application a sworn statement of the facts concerning his detention and by virtue of what claim or authority he is detained; we proceed to consider the questions presented

This quote wouldn’t have bolstered his argument any, of course.

Justice Gorsuch certainly knows what he wants to say about Brown, though:

With time, these implications became clear and, as Justice Jackson predicted, Brown’s innovation proved unsustainable. The haystack just grew too large.

We debunked this claim some time ago, when it was made by Justice Scalia. The “floodgates” argument, one of the SCOTUS’ favorites, is really annoying. It’s worse than annoying when you’re on the receiving end. It’s a visceral thing with the Justices, imagining the unwashed hordes storming the courthouse and making their lives miserable when they’re sitting for their portraits.

Here’s a nice little bit of positivism from Justice Gorsuch, a little further in to his opinion:

But if the rule of law means anything, it means the final result of proceedings in courts of competent jurisdiction establishes what is correct “in the eyes of the law.” Herrera v. Collins, 506 U. S. 390, 399–400 (1993).

Apparently, the “rule of law” can incorporate falsehood after falsehood, ad infinitum, so long as the falsehoods are findings of guilt in criminal cases in state courts. Because “finality” and “floodgates”.

And here’s something even more odd:

It’s simpler than that: The writ of habeas corpus does not authorize federal courts to reopen a judgment issued by a court of competent of jurisdiction once it has become final.

Whither 28 U.S.C. 2254, then, which explicitly says the opposite?

Here’s the reality. In any other context, all this hokum about federalism and federal courts not disturbing state courts doesn’t matter to the Justices at all, and it hasn’t mattered to the SCOTUS since at least the 1930’s and FDR’s “New Deal”, which essentially cemented in the United States a central (as opposed to federal) government. The state governments are now, and have been for some time, essentially vassals of the “federal” government who largely administer federal funds that pass through multiple layers of bureaucracy at the federal, state and local level before they reach their intended targets, if indeed they ever do. Just for grins and giggles some time, take a little trip following “policy” and more importantly money as it winds its way through the federal Health Care Finance Administration (“HCFA”) augmented by a stop on the way down at the State Health Department, which then delegates to the County Health Department, which services whatever individuals are making claims. In theory, anyway.

All of this would have been unthinkable to the founders of the United States and is profoundly contrary to our national traditions. FFS, the same goes for the FBI, a permanent national police force, or for that matter a standing army and a military industrial complex. Our federal government, in other words, has long since assumed a general supervisory role over public life in the Republic, and in the public mind – not to mention the minds of the rulers – this is a perfectly proper state of affairs. The federal courts themselves are considered, in our hearts of hearts, “super courts” that attract only the “best and the brightest” and adjudicate every “important” question, which the lesser state courts merely administer.

But for the SCOTUS, and now especially Justice Gorsuch, there is one exception to this otherwise prevailing regime of thought: when some poor schmuck is wrongfully convicted of a crime in a state court, his life essentially taken from him whether he winds up executed or not, the state courts have failed him and he seeks relief in a federal court.

The real reason, in other words, is not that we are so, so concerned about not elevating ourselves to a perch higher than our state court counterparts; rather, it’s that the task is too “dreary” for our Very Important Federal Courts, says Justice Gorsuch. This argument reminds us of Justice Scalia likening the same task to endlessly shoveling shit out of horse stables.

Finally, this rather interesting footnote:

The dissent criticizes today’s decision as a departure from modern habeas precedent. Post, at 2; post, at 3, n. 2; post, at 12–13. But the dissent’s history is selective. The dissent champions decisions from the 1950s, ’60s, and ’70s. But it disregards how those decisions departed from a century of this Court’s precedents and the common law before that. Supra, at 5–8. At the same time, the dissent’s account overlooks this Court’s precedents refusing to afford retroactive application in every case since the 1980s. Post, at 10–11; post, at 12, n. 7. The dissent may prefer decisions within a particular 30-year window. But it is too much to say this preference is required to “[r]espect[] stare decisis.”

Brown v. Allen, the 1953 case that is Justice Gorsuch’s bete noire in this opinion, was most decidedly not an out of the blue SCOTUS expansion of the availability of federal court relief for state prisoners, as Justice Gorsuch seems to think. It was consistent with precedent that had accumulated for about 20-40 years before that – at least since the 1930’s, in other words. Which of course is consistent with the FDR era history that the federal government and federal courts were now the Very Important places where all Very Important debates took place, the roots of which are even earlier. Don’t believe us? We have already demonstrated that Justice Gorsuch is largely misrepresenting Frank v. Mangum, which is a 1915 case, and pretty much stood plainly for the proposition that the federal courts will collaterally enforce federal rights over state courts on habeas review. Mooney v. Holohan, 294 US 103 (1935) was actually a habeas corpus petition seeking review of a final criminal state court judgment (California) that also originated in the SCOTUS itself, not a District Court, yet another hitherto unheard of but bound to be more and more common example of federal court oversight of state court criminal judgments. Mooney didn’t result in an out and out grant, but it was entertained, opined upon, and remanded to the state courts who were presumably chastened.

Want more, even earlier? Moore v. Dempsey in 1923. In particular, we suggest you read the dissenting opinion of Justice McReynolds and joined by Justice Sutherland. It is essentially the same point being made by Justice Gorsuch. In dissent. That is, by 1923 Justice Gorsuch’s view was already becoming quaint.

But what should really put to bed – forever – Justice Gorsuch’s views about federal habeas corpus is an ancient and, you know, what we used to call hoary principle of habeas corpus practice known as the exhaustion doctrine. The exhaustion doctrine says that you cannot seek habeas corpus relief in a federal court unless you have exhausted your remedies in the state court system and – usually – been denied review in the SCOTUS on petition for certiorari.

The necessarily true corollary, of course, is that after you have exhausted state remedies you can seek habeas corpus relief in the federal courts.

Far from being a novelty of the swinging 1960’s anything goes decade, the exhaustion doctrine appears as early as 1886 and then floats around through 1907 and by 1944 is pretty much written in stone. Here’s another in 1948.

Put another way, contrary to his contentions about “the dissent” it is Justice Gorsuch’s “history” that is highly selective and renders his position untenable. We hope he’s not serious when he sort of oddly pledges to persist in this error:

My vote in similar cases to come will, I hope, “be guided as nearly as [possible] by the principles set forth herein.”

We hope the opposite, because we sort of like Justice Gorsuch and think he’s capable of self correction.

Some days it all just seems too much, you know? Ugh.

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*To tell the truth, in practical terms neither the Edwards decision nor our little critique here of it is necessarily as significant as we think, because our brief and cursory review of post-conviction proceedings in Oregon and Louisiana may support the idea that prisoners can seek relief under the state laws governing those proceedings, which appear to confer a fairly broad discretion on the state courts. That is, Edwards refuses to apply the Ramos rule retroactively for federal habeas corpus purposes, but the state courts are free to grant relief. Strange that we at LoS should mention this point when the SCOTUS doesn’t in 60+ pages, especially since many of those pages are so deferential to state courts. Not strange, of course, that the media and their legal “analysts” miss it as well: they are so imbued with the notion that only federal courts, and especially the SCOTUS with all their impeccable this and that, MATTER.

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Cause And Effect

Two items this morning remind us of how difficult it can be to focus on what causes what.

Post hoc ergo propter hoc. It makes sense to infer that what comes right after something else was caused by the something else. But of course it’s a logical fallacy.

Scott Greenfield is looking at the same phenomena we are – the civil unrest, the calls for abolishing the police, and so on – and attributes the problems to the police themselves. And of course to an extent he is correct. Certainly the police as a group are not blameless in the situation they find themselves in.

But we focus on the legal profession and the courts. We figure that constitutionally speaking, these are the check on the police, so if the police are failing the cause would be there, and not just the police themselves. We also figure that chain-of-command speaking, we are the supervisors of the police, and the problems people are now perceiving with the police are nothing if not problems of poor supervision. Or a lack of supervision, if you prefer.

Indeed this blog started more than 10 years ago focusing on the same thing and was, for the most part, shouted down by other members of the profession, Mr. Greenfield himself perhaps the most prominent among them.

Is he right, or are we? A little of both, probably.

Our habit, it turns out, is thinking things through. And when you think things through, you often go back further, and forge deeper, before you declare that you have found the cause of some observed thing.

Another example of that in our approach to things even on this little blog itself is our proposals regarding the “financial crisis”, which we have usually cautioned should be referred to as a “rule of law” crisis.

Almost as long ago, we proposed that the solution to the problem was a jubilee and a return to the gold standard, and figured the only way to get there was with a constitutional amendment. At least in the US.

We had no takers then. Now? There’s a lot of talk about debt forgiveness. There is talk of a “reset” in the wake of the current pandemic, and some people believe it will involve a currency restructuring.

But it won’t be by a constitutional amendment and it almost certainly will not involve a return to the gold standard.

It seems to us that before a solution a problem can be devised, the correct cause of the problem must be identified. And that, it seems, is usually a tougher task than any posed by the problem itself.

Ugh.

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Immunity

There’s a lot of talk about immunity lately. To end the “pandemic” we are advised that enough people need to be inoculated that “herd immunity” will be reached.

Then there is “qualified immunity”, which has nothing to do with vaccines or pandemics but is rather an immunity from civil liability granted to all public officials except for prosecutors and judges.

And that’s only because prosecutors and judges enjoy absolute immunity with no “qualifications” whatever.

But this morning we see in our news feed that they are taking up the immunity thing in the Congress, as we suggested Congress should do over nine years ago. The Congress is focused on cops, of course, and so all that seems to be on the table is what the courts have extended to cops, and that is the immunity of the “qualified” kind.

As usual, the Congress should be hearing from us. Clearly we were way ahead of this curve – nine years ahead of it – and again as usual we are chagrined that for some reason the powers that be haven’t beaten a path to our door.

But never mind. It seems the Republic can’t be saved anyway.

And we’re not really chagrined. That’s just a figure of speech. And just used it because we like the soft “ch” sound. So French-ish!

In any event, here’s something to ponder about all this SCOTUS-invented immunity business. The immunity comes on top of the summary judgment remedy and the 12(b)(6) standards of Iqbal and Twombly, which already pretty much guarantee that any lawsuit brought by the rabble will be thrown out without ever seeing a jury. Immunity is on top of that. It actually doesn’t really add that much. The deck is already stacked.

It says a lot about our system that it can be so heavy handedly one sided.

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Accountability Gap

Probably the last thing we’re going to say in the wake of the Derek Chauvin verdict is this, and we’ve said it before but it bears repeating in part because no one else is saying it:

Why are lawyers and courts and judges getting a complete pass while we’re actually prosecuting and imprisoning cops?

We can understand that the optics of the work of lawyers and judges are unlikely to include choke-holds and whatnot, but surely we can think it through a little more than that. People are on “qualified immunity” again, for example. Largely getting it wrong, as Scott Greenfield recently pointed out. But of course that’s not the main thing here.

The Main Thing is that the SCOTUS just made up qualified immunity to do what they do best, which is favoring the government, and generally favoring those who are more powerful and/or wealthy, those who are already winners in the game, over everyone else. And no litigant is more representative of that than….the government.

We’ve pointed this out before. Repeatedly. For years.

And why just “qualified” immunity? That’s the lesser kind of immunity afforded to cops. Judges are absolutely immune. They gave that to themselves, and just made that up, too. And they extended absolute immunity to prosecutors.

That is, why don’t we abolish absolute immunity while we’re at it?

We haven’t even scratched the surface of what is really wrong. We won’t begin to do that until some very hard questions are asked about the legal profession and the judiciary. It’s past time to do that.

In other words, sending Derek Chauvin to prison is no more than, and probably considerably less than, a band-aid. Lawyers – especially prosecutors – and judges must be called to account as well.

Ugh.

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Certiorari Courts

So, you’d think with all the talk about expanding the number of SCOTUS Justices at some point rationality would settle in and we’d take a close, sober and objective look.

Nothing doing. This is the United States in post Trump world and we don’t do rational or sober or objective.

But we at LoS are going to make the effort, as we so often do, by ourselves.

There are nine Supreme Court Justices, a number that apparently hasn’t changed since 1869. In 1870 the population of the US was about 38 million. In 2021 it’s about 330 million. If we’re going to start talking about expanding the number of Justices, then, these figures suggest a number. But that number – 90 or thereabouts – is, you know, completely unworkable.

Not to mention, a ten fold increase in population does not necessarily generate, or even suggest, a 10 fold increase in the number of legal claims or legal issues. It does say something, we think. But that’s for another post.

What we’d like to focus on this morning is that the SCOTUS, however dysfunctional it may be – and we think it is quite dysfunctional – doesn’t really do a lot, because with 9 Justices in a country of 330 million it really couldn’t possibly. In practical terms the SCOTUS is less important than other institutions, and less important even than other courts.

Which brings us to the point of this post, and not some future post we may or may not ever get around to writing.

Let’s look at some other numbers, just in the federal courts. There are 673 authorized US District Court judges. This does not seem like a lot for a country of 330 million. And there are only 179 authorized judges on the federal appeals courts. Same observation there.

According to wikipedia, the number of these lower federal court judges have substantially increased since, say, 1950: three fold for District Court judges and two fold for the appeals courts.

But let’s focus on the appeals courts for now.

We submit that the number of these judges is way too low. There are 13 such courts, mainly distributed geographically across the US and its territories, and what has happened with them over the last few decades is disturbing. Their primary function is to review the judgments of the District Courts, but they do not do that in any serious way. At one point a 7th circuit judge (Judge Posner) admitted this but the published article in which he did has disappeared from the internet.

Instead, these courts have become certiorari courts like the SCOTUS. Which is to say, they pay close attention to only a small number of the appeals that are brought to them. For the SCOTUS this is out in the open, and the SCOTUS has its criteria and practitioners know what they are and work within those parameters. But the courts of appeal cannot admit that they are certiorari courts even though they function exactly like that at this point.

And what are the criteria for deciding which cases go in the “A” pile and get serious attention and the vast majority – the “B” pile – which get no attention at all? Because the courts cannot be open about how they are really functioning, the answer is…nobody really knows. Some criteria are predictable: there’s a lot of money involved, or prestigious law firms are involved, or the government is a party and in a hen’s teeth rare occurrence actually lost at the District Court level.

Now that we think about it, those are pretty much the criteria. With a few others we may mention elsewhere. In that other post we may get to someday.

We think one of the biggest problems with the federal judicial system is the absence of meaningful review on appeal, and one of the primary drivers of that is….not enough appeals court judges. It takes at least three of them on a panel to entertain an appeal, so functionally there are only 60 panels to hear appeals from 673 District Court judges. To have meaningful appellate review for the cases that warrant it, we’d hazard a guess that that 60 number should double.

At least double.

We noted elsewhere a study that we can no longer find indicating that one of the primary obstacles to expanding the number of federal appeals court judges surprisingly comes from the judges themselves, who apparently feel that such a move would diminish their prestige.

That says a lot right there. And we can’t say more, this morning, so we may have to return to the subject at another time to expand upon these themes. We know our readers (all three of them!) will be impatient with this gap, but we have no alternative at the moment and pledge our best efforts.

In other words, to be continued………

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Brown v. Davenport

Let’s face it, for the most part things at the SCOTUS have gotten rather tedious. But Brown represents a possible departure from the norm.

A strange grant. There were only two indications that there was any SCOTUS interest at all – a) the government was the Petitioner; and b) and there was one, just one relist – before cert was granted.

More importantly, it’s an interesting grant. What is SCOTUS actually up to here? Why the seemingly sudden, out-of-the-blue interest in this case, a habeas case?

Brecht and Chapman are similar ideas, and both are very useful – not to mention favorable – to the government in preserving criminal convictions on appeal and on collateral review. Although notably, Brecht pertains only to the latter. Chapman applies across the board, on direct appeal as well as collateral review. Or does Chapman apply on collateral review at all since Brecht does already and Chapman is “subsumed” into Brecht?

We’re on pins and needles over here at LoS. We may have a personal and professional connection to this development. We may in fact have to do something about it all. Time will tell.

An odd tidbit here. We are going only from memory, but it seems to us we spoke with an attorney named Chad Readler back when he was arguing McQuiggin v. Perkins before the SCOTUS on behalf of the poor innocent schmuck He was in the Columbus Ohio office of Jones Day at the time. We were interested in McQuiggin at that time. We had a case that might have been affected by the outcome. At that time. And maybe now, too.

Mr. Readler has gone on to be appointed to the United States Court of Appeals for the 6th circuit. By then President Trump.

He sat on the relevant panel and authored the dissent in Brown v. Davenport.

Interesting, no?

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Meta SCOTUS (Updated)

Odd that we missed this one. An actual habeas case. And today, the SCOTUS took it up.

What is the scintillating issue the Justices seized upon, committing all manner of “judicial resources” to resolve it?

Issue: Whether a federal habeas court may grant relief based solely on its conclusion that the test from Brecht v. Abrahamson is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th and 10th Circuits have held.

Maybe not so odd. The case didn’t seem to be on anyone’s radar. Not even the SCOTUS blog. At least, not before today. It was relisted only once. It had no amicus participation.

As is so often the case with a cert grant, though, the government is the Petitioner, and this is especially true of a habeas case.

Yet this one is a tiny bit interesting.

Overall, we object to the SCOTUS taking up any habeas case at the behest of the government. While the government-as-petitioner means that there was a habeas grant, as a practical matter federal habeas cases are never granted, so there’s no reason for the SCOTUS to take a look, because of that alone. It is true that federal habeas cases are routinely granted in death penalty cases, but the same objection applies there: too rare to have any “general importance”. Let the states kill or not kill as they see fit. And if some federal judge somewhere decides that the state can’t kill in this or that case, well, that’s even more rare than the state deciding to kill in the first place. Just leave it alone. What’s the point in the SCOTUS taking it up?

Here’s what strikes us about Brown v. Davenport, though. Brecht holds that a habeas petitioner must show prejudice by the constitutional error he is alleging before relief can be granted, meaning basically that but for the constitutional error he would have been acquitted. The AEDPA requires that a state court’s determination of a federal issue in upholding a conviction must be “unreasonable”, not just incorrect.

Question: is the Chapman “harmless error” ruling of a state court subject to the AEDPA “deference”, so that even if the state court found the error to be harmless when it was not, that error would have to be even worse than that – it would have to be an unreasonably wrong finding that the error was harmless. Or is that question resolved when the underlying error is plainly and unreasonably wrong?

In Brown v. Davenport, the shackling of the Defendant at his trial was plainly an unreasonable federal constitutional error. Could it still be “harmless”?

That’s the question that has attracted the attention of the attention stingy SCOTUS.

The 6th circuit held, over a dissent, that once a prejudicial error under Brecht was made by the state court it’s not necessary to inquire whether the error was also “harmless” under Chapman. We guess one way of putting it is that if it’s prejudicial there is a conclusive presumption that it is not harmless. The State doesn’t get to argue “harmlessness” twice: once in arguing that there was no “prejudice” under Brecht; and the other in arguing that, well, even if there was prejudice, it wasn’t such a terrible error intellectually. The second argument focuses on the state of mind of the state court. We’d call that a “meta” concern. We think meta concerns are the stuff of due process.

We actually have some sympathy for the argument that the dissent made.

We’ll be interested to see how this one pans out. Next term, of course.

The other thing we are overdue to explain to our readers (all three of them!) is the significance of the other recent SCOTUS foray into habeas, which went the usual way (a summary reversal of a habeas grant)(also out of the 6th circuit. Hmmm.), when compared with other cases that the SCOTUS eagerly spent its time and treasure upon. To see if we can come up with some kind of common rule.

And the answer is…..we can’t!!! Well, no, that’s not fair. We’ve had a thought. Remember when the SCOTUS took up the case of Anna Nicole Smith?

Make of it what you will. And discuss among yourselves!

Update: Actually, John Elwood over at SCOTUS blog did take note of the Brown v. Davenport case. Good call, John! We normally follow the “Relist Watch” closely, but this was pretty quick: the case appeared on Relist Watch on March 31st and was granted just a few days later.

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