The Suicide Of Bill Nojay

At one point in the offertory of the traditional latin mass the priest says this:

Domine, dilexi decorem domus tuae: et locum habitationis gloriae tuae. Ne perdas cum impiis, Deus animam meam: et cum viris sanguinum vitam meam. In quorum manibus iniquitates sunt: dextera eorum repleta est muneribus.

which at times translates as follows:

O Lord, I have loved Thy beauteous house, and the place where Thy glory dwelleth. Destroy not my soul with the impious, O God, nor my life with men of blood. On whose hands injustice abideth, whose right hand is full of bribes.

The world has its temptations.  Then again, a man should go where he won’t be tempted.

We recall being told, on too many occasions, that the point of it all – life, that is – is to benefit one’s family.  We have retorted – also on too many occasions – “Shall we shoot another man in the head if that will benefit our family?” a rhetorical question, of course, but usually spoken without the rhetorical device of speaking in the first person plural.

It’s the morality of “The Godfather“.  People seem to forget that the Godfather and his “family” were, in the end, murderous criminals:

 

Taking your own life is one way out of a federal criminal prosecution and the almost certain conviction that attends it.  If you’re an elected public official who wants his state pension to go to his family, something that might very well not happen if you’re convicted on federal fraud charges, it’s one way to eliminate that risk, too.

If the point of life is to benefit your family, Bill Nojay’s choice was a no-brainer.  Indeed, it could be seen as a heroic act.

Of course, this is another theme right out of the Godfather, Part II:

 

Legend (and The Godfather, Part II) has it that among the ancient Romans suicide was the honorable way out.

Bill was nothing if not an aspiring member of America’s ruling class.  He punched the Ivy League ticket and involved himself in international affairs, an odd pastime for a state legislator.  Perhaps his trip through Columbia led to CIA involvement through some obscure group known as “Foundation for Democracy in Iran“, for which he was apparently the director and – not at altogether fortuitously at this point – treasurer.

Let’s assume, with ample reason, that the alternative outcome for Bill Nojay was a huge scandal, shame, criminal conviction and impoverishment for his family, and death in federal custody.  Why not off yourself?

To the ancient (pre-Christian) Romans and we’d guess pagans in general it’s hard, or maybe impossible, to come up with a good reason.   Are we become pagans, then, if not explicitly then at least in practice?

Then again some people say that suicide is always cowardly.

But the circumstances here do not suggest cowardice or despair or any overwhelming emotion.  No, to us this appears to be a cold, calculated, pragmatic and fundamentally pagan act.  We don’t know if Bill Nojay was a Christian.  What we do know is that his action in taking his own life was the act of a worldling, a person not so much opposed to Christianity as someone who believes in the end that Christianity doesn’t matter.

Maybe it doesn’t, of course.  You pays your money and you takes your chances.  And Bill took his.

Even so.  RIP Bill.

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The Fed Under Fire

This time for not raising rates.

We’re at “full employment” except the Wall Street Journal seems to disagree with that, citing an “army” of unemployed men, and this isn’t comforting either:

That was largely because the biggest jobs gains came in bars and restaurants, which added 34,000 positions. Social assistance grew by 22,000, professional and business services added 22,000 and Wall Street-related positions grew by 15,000. Health care also contributed 14,000.

Nor is thisNor this.  The American “economy” is increasingly the “service” and government sectors.  Bureaucrats and the waitresses that serve them lunch.  Ugh.

What does “economist” Ed Yardeni have to say about it all?

“Apparently, it hasn’t dawned on Fed officials that their ultra-easy monetary policies might have contributed greatly to the forces of global economic stagnation and deflation,” says Yardeni.

Yardeni is right, but probably not for the right reasons.  There’s a reason the Fed isn’t raising rates:  it will destroy the balance sheets of the world’s creditors.  The Fed is not particularly concerned about its nominal mission of full employment and low inflation; it is trapped into keeping rates low because the “assets” of lenders – that is, the market value of what they are “owed” by borrowers – declines when prevailing lending interest rates rise.  First and foremost, the Fed has to preserve the institution of lending.

We’ve been over this.  In 2013More than onceIn 2014And in 2015.  We’re not unsympathetic to the Fed’s plight, but we have no solution for them other than the one we have already offered.

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Really?

From time to time articles like this appear in the Washington Post or the New York Times with casually definitive statements like this:

Earth, along with the other planets in our solar system, formed about 4.5 billion years ago from a cloud of dust and gas swirling around the embryonic sun. For hundreds of millions of years, ours was a harsh, molten world, heavily bombarded by debris. At one point, a Mars-sized object slammed into the Earth and blasted into space the material that eventually cohered into the moon.

…as if none of it could possibly be questioned.

What if it can be?

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SCOTUS Group-Think

So there’s the New York Times and Adam Liptak, and then there’s the National Law Journal and Tony Mauro, within two days of each other publishing articles with the same message:  criminal defense advocacy at the Supreme Court sucks because criminal defense lawyers suck at arguing in the SCOTUS.

The chattering classes have been chattering.  Basically the same article in two different “respected” publications within two days of each other can’t mean anything else.

Anyway, what about it?

Well, you’ve got to largely heed the preferences of the Justices themselves, whether they’re right or wrong, because even if they’re wrong they make the decision and you don’t.  If they like one side and not the other that’s a problem for the other side.  A big one.

Then again, you have the insularity problem, the echo chamber.  We’ve talked about that before.

So, you largely heed the preferences of the Justices (we choose our words carefully here at LoS, at least sometimes), but perhaps with some exceptions.  Because sometimes the Justice’s own insularity – and that of their preferred SCOTUS ‘bar’ – is the problem, not the ‘quality’ of the advocacy, and what the Justices really need, being by definition too insulated to perceive the difference, is exactly the opposite of what they prefer.  That is, not more comfortable banter with their preferred advocates, who not coincidentally for the most part share their Ivy League pedigree; but an uncomfortable exchange – a wake up call, if you will – with people they normally don’t give the slightest thought to.

Because maybe the problem is exactly that:  they don’t give the slightest thought to, and are completely ignorant of, the professional perspective of the criminal defense bar.  Not one of the Justices has ever done criminal defense – not at the trial level, not at the appellate level, not at the Supreme Court level.  And while their preferred advocates – like Jeff Fisher, who is mentioned in the NYT article – may have appeared before the Supreme Court on behalf of criminal defendants, they have never tried a case and never had a client at the trial level and have pretty much spent their entire professional lives in academia.

Put another way, they’re all – SCOTUS Justice and their preferred advocates – like “doctors” who have never actually worked on a patient.

We have chronicled in these pages what seems to us to be a remarkable regression in appreciation for and understanding of some very basic principles of criminal law and criminal procedure that has taken place in the last 25-30 years in the SCOTUS.  And as between the “low quality of advocacy” on behalf of criminal defendants at the SCOTUS, on the one hand; and the increasing – and increasingly Dickensian*- insularity of the SCOTUS Justices and the SCOTUS bar, on the other, we rather think it’s obvious that only the latter, and not the former, could be responsible for such a  peculiar turn of events.


*We recall this part of a report from the SCOTUS oral argument of Connick v. Thompson some years ago:

“To read the transcript of the argument in this case, is to confront the indifference and cynicism that so often characterizes our society’s response to gross and inhumane constitutional violations in the criminal justice system. A man’s life was stolen because of the unconstitutional conduct of state actors. And still Justice Scalia’s most biting and obnoxious remarks disparaging Thompson’s arguments were greeted by the assembled spectators with laughter.”

 

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Re-Thinking En Banc

Briefly:  the US is geographically (for the most part) divided into 13 federal “circuits” for purposes of bringing appeals from the lower federal courts. The 1st circuit sits in Boston.  The 2nd in New York.  The 3rd in Philadelphia. The 9th in San Francisco.

You get the idea.

They have to deal with a lot of cases, and although all the circuits have probably 15-20 judges or so, to handle the workload they hear their cases in three judge panels.

If a litigant doesn’t like what the three judge panel did they can try going to the SCOTUS.  This is a long shot, but it’s actually a better shot than the alternative of asking the circuit court to reconsider the matter “en banc”, meaning that all the active judges of the circuit court vote on it.

The 2nd circuit is notoriously stingy with en banc review and it’s a long tradition.  Indeed one of the more famous judges from that court, Learned Hand, didn’t believe en banc review was a proper or helpful practice.

We’ll venture a guess that the venerable Judge Hand is being vindicated these days.  Why do we go out on that limb?

Take a look at an en banc opinion that came down from the 5th circuit yesterday.  Fifteen judges take part.  It’s at least in part a plurality opinion, meaning no one position got a majority of the judges, which pretty much in turn means means they have resolved the dispute between the parties but have resolved little or nothing in terms of clarifying the applicable law, and since that is kind of the point of hearing the matter en banc one could argue – and people have argued – that the whole thing is a monumental waste of the time and resources of a busy court.

And it gets worse from there with that 5th circuit decision.  It’s 203 freaking pages!  Two judges signed off on the first concurring opinion.  Five judges concur in part and dissent in part.  Then 3 judges dissent entirely and say this:

The en banc court is gravely fractured and without a consensus. There is no majority opinion, but only a plurality opinion that draws six separate dissenting opinions and a special concurrence.

See, when you think about it, this is a tragic result:  a huge amount of effort by very busy people in an attempt to make the law clearer winds up making it murkier.

Ugh.

And this is not an unusual outcome with en banc decisions by federal courts of appeals.  One of the few times in recent years that the second circuit decided a case en banc was very similar:  they got a majority of 9 out of 15, but there were two concurring opinions; one part concur and part dissent; and two dissenting opinions.

Sometimes things like that happen in the SCOTUS also (see here and here), but it seems less often, at least proportionately.

We suspect one of the reasons for this is that federal appeals court judges and SCOTUS Justices are not only very busy people with weighty responsibilities; they are also very opinionated, ambitious and strong-willed people.  Increasing the number of them to consider any particular case also increases the likelihood that you’ll have some kind of disagreement, especially where (as is almost necessarily the situation when en banc consideration is undertaken) the law involved is in need of clarification.

We also suspect that a certain amount of ideological politicization and polarization that has bled into the federal judiciary may be responsible for these “fractured” opinions.

We tentatively throw out one potentially ameliorating measure for general consumption:  the SCOTUS should hear more cases; perhaps there should be more judges on the SCOTUS also, to deal with the workload there.  Which is also considerable.

 

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The Due Process Muddle In Criminal Prosecutions

It has two primary sources:  the late Justice Rehnquist and the United States Court of Appeals for the 7th circuit.

We described Justice Rehnquist’s contribution previously, here:

He becomes a member of the Supreme Court in 1972.  By 1977, he opines in Wainwright v. Sykes that he wants to preserve the concept of a criminal trial as being “a decisive and portentous event”, though of course only someone who has never defended in one could think that needed to be said.  Later, in a very unusual move – opining as a “circuit justice” in the course of denying a petition for a writ of certiorari (almost unheard of) in U.S. v. Bracy that Mooney – you know, the case that Brady was “extending” – stood for the proposition that “…the deliberate use of perjury or fabricated evidence at a criminal trial…” violated the defendant’s right to due process.

Oops.  Wrong.  I mean, Justice Rehnquist might have wanted Mooney to say that.  But the fact of the matter is, Mooney did not say that.

Mooney said that the deliberate use of perjury or fabricated evidence “…to obtain a conviction…” violated a defendant’s right to due process.  Convictions are “obtained” by guilty verdicts after trials, of course.  But they are also obtained by guilty pleas.  Can prosecutors and police charge you with a crime based on perjury and fabricated evidence and then threaten to use that same ‘evidence’ to convict you at trial, badgering you into a guilty plea, without violating your right to due process of law?  Justice Rehnquist’s opinion implies that would be no problem.  But he would be wrong in that respect also.  And there are other complications from this sort of willful error borne of Justice Rehnquist wanting something to be true that just isn’t so.

Justice Rehnquist’s Bracy opinion was 1978.  By 1994 he managed to include the same idea in the plurality opinion of Albright v. Oliver.*  In a footnote:

Similarly, other cases relied on by the dissent, including Mooney v. Holohan, 294 U. S. 103 (1935), Napue v. Illinois, 360 U. S. 264 (1959), Brady v. Maryland, 373 U. S. 83 (1963), Giglio v. United States, 405 U. S. 150 (1972), and United States v. Agurs, 427 U. S. 97 (1976), were accurately described in the latter opinion as “dealing with the defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution.” Id., at 107.

Prior to Justice Rehnquist’s Albright opinion, however, the 7th circuit had already taken this misshapen due process ball and had run pretty far with it.  A few months ago we mentioned their 1990 opinion in Buckley v. Fitzsimmons, authored by Judge Easterbrook.  We said we might return to the subject at a later date, and now make good on our threat.

Buckley v. Fitzsimmons went up the SCOTUS in 1993, resulting in a more or less landmark opinion regarding prosecutor “absolute immunity”, police officer “qualified immunity” and the nature of constitutional violations by police and/or prosecutors in the course of carrying out criminal prosecutions.  The net result for the case, however, was a “remand” to the 7th circuit so they could take another crack at it.  But things only got more confused from there.

In the first place, on remand Judge Easterbrook offered a rather stunning musing that could only be the product of that form of lunacy peculiar to those who have read about things but never done them, a category too many federal appeals court judges fall into:

Coercing witnesses to speak, rather than loosening their tongues by promises of reward, is a genuine constitutional wrong, but the persons aggrieved would be Cruz and Hernandez rather than Buckley…Let us suppose the prosecutors put Cruz on the rack, tortured him until he named Buckley as his confederate, and then put the transcript in a drawer, or framed it and hung it on the wall but took no other step, or began a prosecution but did not introduce the statement. Could Buckley collect damages under the Constitution? Surely not; Cruz himself would be the only victim.

What sort of prosecution is it when officials torture witnesses to get them to implicate the Defendant?  There is an obvious answer:  it is a thoroughly and malevolently corrupted process that can never be the process that is “due”.  It does not matter that the officials never “use” such evidence, even in Judge Easterbrook’s preposterous scenario where the evidence thus obtained is stuffed in a drawer or “hung on a wall”, and we are not the only ones who have noticed the nonchalant impertinence of the example:  a former Solicitor General exposed this as the absurdly hypothetical and risible proposition it is in his brief before the Supreme Court in 2009:

Fabricated evidence has little to recommend it as a wall hanging but is quite useful in framing innocent individuals, and that is precisely how it was used here.

(See pp. 22 et seq.)

You know, of course.  Evidence isn’t fabricated in the unattached abstractions of Judge Easterbrook’s mind but rather to falsely implicate specific individuals, and the best – and really only sane – way to look at it is that it deprives those individuals of due process of law a priori; that is, regardless of whether the fabricated evidence is “used” and before the question of whether there was a deprivation of life, liberty or property even arises.  The relevant question being:  what sort of prosecution would ever, remotely require the fabrication of evidence by government officials?  One brought in bad faith by those officials, by their own admission through their very act of fabricating evidence.  Obviously.

This part of the due process muddle could arise only among a judiciary in which empiricism and positivism (among other intellectual disorders) have collectively run amok while even the vestiges of natural law have disappeared.  And so it is perhaps fitting that the only Supreme Court Justice who is on record as harboring some adherence to principles of natural law noticed the 7th circuit’s problems in this area as long ago as 2001.

In the second place, there is a somewhat remarkable conflation of immunity issues and constitutional issues at work.  Remarkable because the judicial tendency towards this conflation was noted by the SCOTUS itself in its second consideration of the Buckley case on appeal from the 7th circuit, the majority accusing the dissent of precisely this intellectual error:

In general, the dissent’s distress over the denial of absolute immunity for prosecutors who fabricate evidence regarding unsolved crimes, post, at 283-285, like the holding of the Court of Appeals, seems to conflate the question whether a § 1983 plaintiff has stated a cause of action with the question whether the defendant is entitled to absolute immunity for his actions.

Yet in the wake of Buckley this “conflation” problem went viral among the federal courts of appeal and in the United States Department of Justice and with all that, and in conjunction with Justice Rehnquist’s contribution of footnote 6 in the Albright case, the completely novel and otherwise contrary-to-precedent idea that due process applied only to a criminal trial and not other aspects of a government criminal prosecution gained a foothold in the nation’s courts.

Why do we say “completely novel” and “contrary to precedent”?  Consider Frank v. Mangum (1915):

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

Chambers v. Florida(1940) found that the due process rights of criminal defendants who had pleaded guilty (i.e., no trial at all) were violated:

From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the “law of the land” evolved the fundamental idea that no man’s life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.

See?  A charge must not only be “fairly tried”; it must be fairly made if the requirements of due process of law are being observed.

In 1942 Waley v. Johnston specifically held that a guilty plea prompted by the threat to use perjury and/or fabricated evidence violated the Defendant’s right to due process of law, citing the Mooney case that Justice Rehnquist’s footnote 6 in Albright tried to confine to “…the [due process] right to a fair trial…”

In 1945 Justice Frankfurter put it this way in Malinski v. New York:

The exact question is whether the criminal proceedings which resulted in his conviction deprived him of the due process of law by which he was constitutionally entitled to have his guilt determined. Judicial review of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.

This passage in Malinski was quoted, and reaffirmed, in 1952 in Rochin v. California at page 169.

So here’s what happened:  dividing up the criminal prosecution process into segments (“investigative phase”, etc.) in the 1980’s and 90’s so as to determine when a prosecutor might be liable and not immune for a constitutional violation (Buckley) bled over into the discussion of due process that was also often at issue in such cases; and this began to erode, in the minds of many judges, the previously (since the 1930’s) well settled, traditional and obvious application of “due process” to – well – the whole process.

The 7th circuit’s Buckley case is a major culprit in all this.  So is the Supreme Court’s  Albright case, which also originated in the 7th circuit and is being reconsidered soon, in Manuel v. City of Joliet, which is also – misereri nostri Deus omnium – a 7th circuit case.  Unfortunately, as you can see if you follow the link, the Manuel case is reconsidering Albright only on 4th amendment grounds.  And if that continues through to the bitter end, the enormous and erroneous due process implications of the plurality Albright case won’t be reconsidered at all and may even wind up being inadvertently ratified by a majority.

At the very least, unless the SCOTUS addresses these due process problems when it reconsiders Albright in the Manuel case the confusion about them will continue and possibly even intensify.

This is in lawyer terms, a dire situation.

One important aspect of all this to mention parenthetically – because important.

There is a notable Supreme Court opinion from 1992 – United States v. Williams – that basically refused to impose Brady disclosure requirements on prosecutors in presenting their cases to a Grand Jury.  We don’t like the Williams case at all, but it is interesting on numerous levels, not least of which is a majority opinion by Scalia and a powerful dissent by Stevens in which Thomas actually joined winding up on the opposite side of Scalia which was, you know, much unusual.

But the most important thing to remember about Williams is that although Brady is a due process case, it is a subset of due process and an historically anomalous one at that, because whereas traditional due process concerns centered around deliberate government perfidy,** Brady was an extension of due process analysis into what one sagacious appeals court judge has termed a “no-fault” disclosure requirement placed upon prosecutors.

Put another way, bad as Williams is it cannot be read to make grand jury proceedings exempt from due process concerns (As the DOJ has unfortunately stated.  As we have noted before); it only exempts them from the narrower subset of Brady concerns.  That is, Williams applies as long as the prosecutor isn’t deliberately misleading the grand jury.

It would be nice to be able to say that it was clear that prosecutors deliberately misleading grand juries to get indictments was another matter entirely but the SCOTUS, having itself muddied these waters rather badly in Williams, should clean up the mess.  Their trip next term, via the Manuel case, to revisit Albright would be a good opportunity to do just that since Albright, Buckley and Williams are more or less of a piece, but somebody has to get down there and argue the Albright due process problems and no one is doing that at this point. 20-30 years of due process confusion (“an embarrassing diversity of judicial opinion”) in the nation’s federal courts of appeals, on very fundamental questions dealing with “due process of law” is at stake and it might be another 20-30 years (miserere nobis) before another opportunity to clarify these things presents itself.

And, for a change, could we have a SCOTUS case from outside the 7th circuit?

Ugh, in other words.


*Justice Rehnquist did not get a majority of the SCOTUS to sign off on this proposition. He was shy one vote. Deo Gratias.

** We quote.  And it’s a quote from Justice Rehnquist, no less:

Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. E. g., Davidson v. New Orleans, 96 U. S. 97 (1878) (assessment of real estate); Rochin v. California, 342 U. S. 165 (1952) (stomach pumping); Bell v. Burson, 402 U. S. 535 (1971) (suspension of driver’s license); Ingraham v. Wright, 430 U. S. 651 (1977) (paddling student); Hudson v. Palmer, 468 U. S. 517 (1984) (intentional destruction of inmate’s property).

 

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Abolish Immunity In Section 1983 Cases?

A pretty radical thought coming from a federal court of appeals judge.

It’s a tamer version of the kind proposal some iconoclastic, occasional lawyer would make.

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