Oops, We Took 20 Years of Your Life by Mistake. Have a Nice Day: What society owes the exonerated

It’s nice to see an exoneree doing well. But exonerees are entitled to much, much more than $50,000 per year of incarceration. They should be paid, and especially if they’ve done what this exoneree has done, they should be honored.

Wrongful Convictions Blog

From TheMarshallProject.org

By: Jarrett Adams

The recent and tragic suicide of my friend and fellow exoneree Darryl Hunt is a stark reminder that no monetary compensation can make up for the psychological toll of wrongful conviction. When a wrongfully convicted person is released from prison, it’s often to a throng of reporters clamoring to capture images of an emotional reunion with his smiling family and friends, and lawyers. These images instill a sense of vindication and a happy ending. But what is too often unseen is how difficult it is to re-enter society after years or decades of confinement — especially if you are innocent. These are the unseen scars, and too many states pay them inadequate attention, or none at all.

In 1984, when he was 19, Darryl, an African-American man, was convicted of a crime he didn’t commit, the rape and murder of a young white woman in…

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More Mischief From The 7th Circuit

Bianchi v. McQueen.  We didn’t like this case after it came out of the District Court.

We like it less now, coming out of the 7th Circuit Court of Appeals.  Just a few days ago.

We might spend a little more time on it later, but for now we’ll just make a few observations, in no particular order.

First, the panel is Posner, Easterbrook and Sykes.  Sykes you can read about here.  She’s been pretty much on a campaign to undo or thoroughly confuse or otherwise neuter Whitlock v. Brueggemann.  It’s a cop-prosecutor protection thing.  Easterbrook is a smart guy, but he’s also the author of Buckley v. Fitzsimmons, a truly horrible bit of legal “reasoning” that went back and forth to the Supreme Court in the early 1990’s and left a black mark on us all.  Don’t believe us?  We quote:

Probable cause is enough to initiate a criminal prosecution. It takes proof beyond a reasonable doubt to convict. That difference, together with uncertainties in what the evidence will show, implies that some innocent persons will be prosecuted. Trial is supposed to filter out the innocent, a task it serves well if imperfectly.

Only someone who has never tried a case for a criminal defendant or personal injury plaintiff could say that.  It’s risible.  But he goes on to almost instantly contradict himself, not even getting to the next page:

Accusation and trial are wrenching experiences, especially for the innocent. On top of trauma comes expense and often the loss of freedom pending disposition. How should society respond when an innocent person is prosecuted?…Innocent defendants, rightly feeling put upon, may respond to this governmental indifference by turning on their accusers, making them defendants in turn. They demand that the prosecutors, police, and witnesses dig into their own pockets to provide recompense. If courts could quickly and reliably identify malicious prosecutions, those in which the case was manufactured or conviction unattainable, it might make sense to award damages, to cause prosecutors with the power to destroy others’ lives to do their jobs with the care that their responsibilities require. But the legal system is neither quick nor infallible.  To allow a search for malicious or weak prosecutions is to license litigation at any defendant’s option…

All the confidence in the “trial” evaporates when the shoe is on the other foot.  When the government is the accuser, well, let’s have a trial to sort it all out.  It works just fine, if a bit imperfectly!  When the government is the Defendant, well, that’s another story.  All of a sudden trials are a terrible burden, “neither quick nor infallible”, and we must be wary not to “license litigation” although that doesn’t seem to bother us when it’s the government doing the litigating.

Where is Judge Easterbrook going with all this?  Very immunity.  Much Absolute.


And the line about prosecutors, police “digging into their own pockets” can only be disingenuous.  Easterbrook knows better:  officials are indemnified; the claims are paid, if they ever are in fact paid, by insurance or the municipality.

That’s a terrible falsehood to put in an opinion from a federal appeals court.

More on this some other time.  Villanova playing.  Much final four. Very alma mater.

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Good Friday 2016

We can’t improve on what we wrote four years ago, at least in terms of communicating the thought to people.

It was then, and is now, neither proselytizing nor advocacy of any kind, but simply an effort to explain an idea, on a day when perhaps many people seek an explanation of some kind.  Our own opinion, for what it is worth, is that our reasoning faculty attests to the fundamental truths of religion and that atheism is ultimately irrational.  On the other hand, the rational isn’t always true and the irrational isn’t always false, so there’s that problem.

Or maybe it isn’t a problem for this reader or that, or for us, or for you.  Each individual can make of it what they will, a state of affairs with which we are perfectly content.

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Oh, Well.

From NPR’s no doubt hastily assembled survey of Obama SCOTUS nominee Merrick Garland:

On the appeals court, Garland has been a moderate liberal, with a definite pro-prosecution bent in criminal cases. Indeed, his views in the area of criminal law are considerably more conservative than those of the man he would replace, Justice Antonin Scalia.

Just what we needed.  A “definite pro-prosecution bent in criminal cases”, more “conservative” – if you want to call it that – than even Scalia.

Maybe he’ll grow in office.  And after all, the landscape has changed somewhat in recent years.

In the meantime, ugh.

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The Never-Ending Fallout

…of wrongful convictions.  This is a poignant story about Darryl Hunt.  The part the gets us here at LoS is where for the rest of his shortened and largely taken life Hunt compulsively visits ATM’s – not to withdraw or deposit money but to document his location at specific times, apparently so as to ward off further false accusations.

Less poignant but just as important is that Darryl Hunt’s wrongful conviction didn’t just harm Darryl Hunt, not to minimize the harm to him it did do.  For one thing his ordeal, even at $1.6 million, was radically under-compensated.  It speaks ill of us that after what we did to him we toss him some small fraction of the revenue for one team generated by one NFL game.*

What that says is that we don’t care about the lives we unjustly ruin by accident.  And because we don’t, we get more accidents.  And even some more that aren’t accidents.

We appreciate that Darryl Hunt spent the remainder of his life giving back, being active in the struggle to right wrongs in the criminal justice system.  But we certainly would not have blamed him if he took his money and left the country to live in obscurity elsewhere, somewhere he wouldn’t have felt the need to prove himself innocent every minute of every day.


  • About $20 million.  Based on sample revenue ($324 million) for one year (2013) for one team (Packers), divided by 16 games.  A very rough estimate, in other words.  Obviously.

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The first, and most dramatic summary reversal at the SCOTUS today was the one we just wrote about, with a death row inmate getting a new trial.  But it is only another summary reversal, dealing with a hot button issue of the culture wars, that is getting any immediate news coverage.

We question journalistic judgment.  Indeed, journalistic ethics.  The SCOTUS Blog, in particular, should know better.  After all, the mainstream press has to sell, and they sell better by agitating and titillating readers.  But the SCOTUS Blog is supposed to illuminate and educate.  The V.E. v. E.L. case is a routine question of full faith and credit.  The Wearry case has great potential significance.

As we often say, the wrongful conviction narrative, truth aside, is disfavored in the media.  That’s a deceptively large part of the problem.

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No Rest For The Wearry

After something like 10 relists, we have our answer: summary reversal, a somewhat stunning result.

Alito and Thomas dissented.  Their inclinations to deny relief and to dive into the Brady quicksand of “materiality” and Kyles v. Whitley and so on are objectionable; but their more fundamental point that plenary consideration is called for is reasonable.  At least to us, though that probably doesn’t matter except maybe to us, and a few readers, and maybe a client or two.

The problem with this whole Wearry case, then, a problem we have repeatedly described and lamented before, is that the Petitioner has been oblivious to the critical distinction between inadvertent, sloppy, or even reckless conduct by a prosecutor on the one hand; and this, lifted right out of their Petition:

B.  The State Suppressed Eric Charles Brown’s Efforts to Get A Deal, Then Lied About it to the Jury.

Wearry describes, in other words, a straightforward example on all fours with Napue v. Illinois, involving deliberate prosecutor lying and cheating, but never distinguishes it from the overall Brady argument it makes.  Napue, of course, pre-dates Brady and thus is not a Brady case.  Conflating the two is an implicit acknowledgement that the Mooney line of cases has been “generally subsumed” into Brady.

We don’t favor that proposition around here.  And some far more important people don’t favor it in Boston, either.

So it’s frustrating that the SCOTUS didn’t take the opportunity to address this extremely important problem, but then since our issue wasn’t being argued maybe this is what they were doing:  when we at the SCOTUS get a case where the record shows a Mooney violation that hasn’t been adequately disputed by the State, we’re going to summarily reverse even if the Petitioner conflates Brady and Mooney.

The question we now ask ourselves – and we’re not going to answer precipitously because we are still digesting the result in Wearry – is whether this is a signal to the federal courts of appeal that well documented and undisputed lying and cheating by prosecutors should be dealt with summarily.  That may have some relevance to some things we have been up to in other venues.

As for right now our answer to this question is that we’re thinking about it a bit.

But one thing we do wish to point out for general consumption:  Did the Napue case, which we have somewhat exhaustively covered, establish a “materiality” requirement for a Mooney violation?  And the answer is in two parts, because we wish to be especially thorough and honest in our discussions of this important subject

  1.  Napue discussed the idea of materiality; but
  2.  the case in no way held that there was a materiality requirement to a Mooney violation.

Let’s flesh this out a bit.  From Napue:

The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend. As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, 1 N. Y. 2d 554, 557; 136 N. E. 2d 853, 854-855; 154 N. Y. S. 2d 885, 887:

“It is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon defendant’s guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. . . . That the district attorney’s silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.”

So, the simple answer is this:  Napue can’t be read as holding that Mooney violations are a due process violation only if they are “material”.  For that holding, you would have to have a case where the SCOTUS found both that deliberate lying and cheating had occurred AND that it didn’t matter because it wasn’t material to the conviction.  And there has never been such a ruling.

But you could argue Napue did imply that such a ruling could happen, since it discussed materiality.  We think that’s a failing argument, though, because the SCOTUS in Napue was only addressing arguments made by the State and rejecting them.  You don’t establish an important precedent, limiting a landmark due process case like Mooney, through a discussion in which the principal contention – while admittedly discussed – is actually rejected.

So the SCOTUS missed an important opportunity with the Wearry case to clarify this whole area and adopt the well reasoned and unarguable position of the 1st circuit and Judge Selya.  Or maybe they didn’t, and this was the problem:  they couldn’t reach that important clarification because it wasn’t being argued.

So they need to take up a case where it is argued.

Will they?  We’re on pins and needles over here at LoS.

One last thing.  In Wearry, and in Napue, and in a very important case which is sort of in the Mooney line (it cites Mooney) but sort of not in the Mooney line because it deals with a federal conviction and not a state conviction, the State doesn’t get to play cutesy with the facts, kind of not denying – because dishonest and perjurious – but kind of not admitting, either – because the State loses.  Observe.  And this is important:

Petitioner filed his petition for habeas corpus in the District Court, alleging upon oath that he had been coerced, by intimidation and threats by an agent of the Federal Bureau of Investigation, to plead guilty to an indictment for kidnaping, and that he is held in custody by respondent under the consequent judgment of conviction and commitment      …Respondent’s return to the order included…an affidavit of a special agent of the Bureau of Investigation, not the one mentioned in the petition, stating that petitioner, in affiant’s presence, voluntarily signed two statements confessing his guilt, and that no threat or promise to petitioner of any kind was made in affiant’s presence. The return made no denial of the allegations of coercion specifically set forth and relied on in the petition.

Emphasis supplied.

See, you have to set forth something more than a conclusory denial of allegations unaccompanied by any personal knowledge evidence.  Or at least, this is always the rule for litigants other than the government, the bank, or the insurance company.  But in rare cases like Waley, a federal court might even apply that standard to those favored types of litigant.

So maybe the summary reversal in Wearry is another indication that the tide is turning in the courts, that the favored litigants, while still favored, may not be favored so heavily that absolutely none of the usual rules will be applied against them.

That would be a good development, we think.

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