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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August 3, 2016

That’s the date the Respondent’s brief is due in the SCOTUS for Manuel v. City of Joliet.  The argument date, apparently, to abide that event.

We don’t want anything about the Manuel case to pass unnoticed, not that we have any control over anything at the SCOTUS.  Or anything else, it often seems.  Except maybe our Lenten pledge to refrain from all alcoholic beverages, including wine, to which we are otherwise partial.



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Ke$ha v. “Dr. Luke” (Updated)

Sometimes, CNN provides a window into the approved narrative, and the approved narrative with respect to the whole Kesha-Dr. Luke thing involves terms like “complex” and “intricate” instead of rape and abuse.

When they call it “in-depth”, you know you’re in for a heavy dose of propaganda.

Why is the Kesha-Dr. Luke narrative so different from, say, the Bill Cosby narrative?  They both seem to fit comfortably into the “casting couch” category, allegation wise.

We have a passing acquaintance with the “entertainment law” establishment.  It exists in New York and Los Angeles in this country, and nowhere else.  Talent – musical, acting, whatever – is controlled, managed and produced through this establishment.  They get a piece of whatever sells and entertains the masses.  The bigger the sales, the tighter the grip, precisely for the reason that a talent who dares to defy or even marginalize the role of the establishment in his or her “career” is a mortal threat to the whole enterprise, especially if the talent is high profile and successful.

Because the establishment, by itself, has no talent and nobody likes them.  All they have is their grip, so it must be jealously guarded.

The judge understands:

“You’re asking the court to decimate a contract that was heavily negotiated and typical for the industry,” New York Supreme Court Justice Shirley Kornreich told Kesha’s attorney Mark Geragos after hearing arguments that Dr. Luke had invested $60 million in the singer’s career, according to a brief from the Hollywood Reporter. “My instinct is to do the commercially reasonable thing.”

“I don’t understand why I have to take the extraordinary measure of granting an injunction,” the judge said, citing the lack of hospital records and other medical evidence related to Kesha’s assault allegations.

It’s good if you have hospital records and medical evidence of a sexual assault, but often you don’t.  That doesn’t mean it didn’t happen, of course, but the judge has to go by proof, and to that extent we can sympathize with the judge’s position.

On the other hand, we can’t agree that “the commercially reasonable thing” can trump Kesha’s allegations.  The rest of the judge’s comment implies that the judge’s real concern was protecting industry practice.  Industry practice includes the casting couch, apparently, and so this whole thing becomes “complex” and “intricate”.

There’s a lot to say here, potentially.  But not now.

 Update:  In addition to the Cosby situation, throw this into the mix:




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Rubio, Too.

You can review here, if you like, but what interests us about the question is, again, not how to resolve it but the frankly irrational approach of “scholars” on the issue, to wit:

Rick Hasen, a professor at the University of California- Irvine School of Law, was kind enough to provide a quote.

“The claim is meritless. I’m unaware of any serious scholar or court suggesting that someone born on U.S. soil is not a natural-born citizen if his parents were not citizens at the time,” Hasen told LawNewz.com.

Someone who is born in the US could rightly be described as a “born citizen”, we suppose, but the constitution doesn’t discuss born citizens and the presidency; it discusses “natural” born citizens and the presidency.  “Natural” has to mean something, and we have a pretty good idea what, and refusing to acknowledge that obvious fact and calling yourself a “scholar” doesn’t change anything.

Apparently Senator Rubio was born in Miami but neither of his parents were citizens at the time of his birth, and accordingly under the best understanding of “natural born citizen” he is not one, and therefore not eligible to be president.

As with Senator Cruz, and just to once again demonstrate that we have no dog in this fight, we are agreeable to a constitutional amendment to abolish the “natural born citizen” requirement, and we are agreeable that it should be done immediately and that both Cruz and Rubio would then be eligible.

But we are not agreeable to corruption of language and thought by “scholars” or anyone else.  And that’s what this particular debate is about.


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