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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Ken White’s Take

It’s a good read from the founder of “Popehat”, which is on the blogroll.

One amusing thing for us are the references to the dramatic shift between the Andy Griffith Show and the Dirty Harry movies.  It was only a few years, as White points out.  But we are probably a bit older and remember even earlier Andy Griffith television shows that taught things like how it’s wrong to rush to judgment against ex-cons.

Today – and this is just one timely sample among many that could be cited – the media lesson is exactly the opposite:  ex-cons are dangerous and do not deserve a second chance.

Our theory?  It’s partly both deeper and shallower than Ken’s critique of prosecutorial “culture”.  When people feel secure and prosperous and engaged with their society and government – as they mostly did in the 1950’s and early 1960’s – they are more generous to others, and that includes generosity and forgiveness extended to offenders.  When they feel insecure, financially stressed and politically isolated and powerless – roughly 1970 to date – that generosity mutates into a desire to see harsh punishments inflicted as this is one of the few powers remaining, and people’s attention is more oriented towards escapist tripe like professional football and the Kardashians.  In other words people are unhappy about their circumstances and feel powerless to change them, so the crude exercise of power over the person in the dock becomes more satisfying, kind of like a proxy or scapegoating; but ultimately people just want to tune out, thus the obscene amount of money and attention showered on professional “athletes” and celebrities.

That’s part of it.

Another part of it is a rotten intellectual foundation that rejects natural law (absurd, as a practical matter), and that provides pseudo-sophisticated cover to what is, in reality, uniform and contemptible pandering to the lowest common denominator.  Because statistics and empirical “data”, or something.

That’s another part of it.

The first is, of course, not primarily a problem of the legal profession but rather a problem with the body politic; the second is indeed, however, an infection of the legal profession and the intelligentsia generally.  We’ve written about it before, in its various aspects.

Ken White recognizes the difficulty of changing culture.  So do we.  He seems to think a change for the better is underway.  We dare to harbor the hope that he is right – because love – and we labor in matters great (possibly) and small to make our own humble contribution towards that outcome.

We have no idea if our efforts will bear fruit; it’s like waiting for the jury to come back with its verdict.  Whatever small measure of control and participation we had is over and it is now up to others.

As it should be.

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Once we were able to get an acquittal in a burglary trial where a group of guys had broken into an unoccupied home to steal some copper piping.  There was some testimony that our client had been with them and there was some testimony that our client had not been with them, but the reason for the acquittal was that the prosecutor had forgotten to charge the defendant as an accessory.  As a result he had to show – because “elements” of the offense – that the defendant had actually physically entered the home himself, and there was an issue about that and we guess we convinced the jury that he hadn’t entered the home or at least that none of us knew if he did.  So not guilty.

Verdicts of not guilty are very rare, so we must have been very clever to do that, except that we weren’t.  We just found a weak spot in the prosecution’s case and tapped it gently enough, or hard enough as the case may be, and it worked out well for us and our client.

Was it a “just” verdict?  We think so.  Do we know so?  Does it matter?  Probably not.  At least not very much.

The point is, this was a run-of-the-mill criminal defense episode, except for the result because a not guilty verdict is always extraordinary.  But the result could easily have gone the other way, too, and there’s no getting around that.

And what if it had, and the defendant was actually innocent and was never even there?  Would that be a “just” verdict?

How fucked up do you have to be to answer anything other than – indeed, very quickly – “NO!” to that question?

But then there’s this:

Hidden in this otherwise very astute expression of the good intentions of the players are two words that give rise to a significant part of the problem: doing justice. You want to do justice, whatever that means?  Be a prosecutor. That’s their job. And the system always needs good, honest, smart prosecutors to do justice.

Criminal defense lawyers? We don’t do justice. We zealously defend the accused. We use whatever tools the law allows to do so.

And what’s SHG’s point?  It’s always the same:

The social justice adoration of feelz doesn’t win cases. Good lawyering does. Let’s bring good lawyering back into fashion.

If a just outcome is unknowable in one case that does not mean it is unknowable in every case, or that there is no such thing as justice – or, for that matter, that justice is no part of a criminal defense lawyer’s job, only the job of prosecutors and judges and juries.

SHG’s approach is unserious.  How is an unserious approach “good lawyering”?

Worse, every criminal defense lawyer, and every criminal defense lawyer’s clients, have suffered and will continue to suffer from being lumped in with SHG and his unserious approach.

Yet we’re also pleased that this approach appears to be on the wane and expect it will disappear into the void whence it came.  And that might also be the main reason we’re not so acerbic and patronizing to younger lawyers.


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Apropos yesterday’s postUgh.

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Mindless And Stupid

Back in 2013 we touched on the subject of Norma Patricia Esparza.  A few months later we were no longer paying attention, and apparently this woman pleaded guilty to manslaughter and agreed to serve a six year prison sentence.  There was a long article in Slate (“…aimed at helping readers to ‘analyze and understand and interpret the world’ with witty and entertaining writing…”) about the case in February, 2014.

For reasons that may be obvious to regular readers, the episode fascinates.  Especially the Slate article.

On the one hand the article has a couple of things right:

But for the system to achieve justice, prosecutors have to set the terms straight, by bringing charges that reflect actual culpability…Stretching the law to call Patricia Esparza a murderer…[is]… just one more injustice in a series that stretches back for almost 20 years.

Prosecutors have a lot of “discretion” in who and what to charge.  A lot.  But it’s not limitless.  The charges must make logical sense.  They cannot be brought out of vindictiveness.  They cannot – and unfortunately this is the subject of surprising confusion, at least for now – be based on evidence that is fabricated, or perjured, deliberately by government actors.

It’s a fateful step, charging someone with a crime.  For one thing, from that time going forward there is a sizable group of people who will never accept that the person was wrongly accused, no matter what happens from there.  Acquittal at trial?  Meh.  Charges dropped with an apology from the prosecutors? Meh.  100 miles away when the crime took place, verified by the usual unassailable methods?  Still must have had something to do with it.  The police and prosecutors don’t charge unless they know, and they always know.

This surprises the author of the Slate article:

In reporting this story, what has surprised me is the number of people who don’t believe Esparza at all.

The author believes her.  Apparently, there is literally no reason not to believe her other than the mindless and stupid “reason” that she was accused to begin with.

In her account of events she was raped by a man.  Some time later, under some amount of duress and trepidation, she identified the rapist for her violent boyfriend who, with others, rather brutally murdered the man without either her knowledge or participation, although at one point – and we would call this the most inculpatory fact – she was brought in by the group to observe the man while still alive but badly beaten, not knowing that the ultimate goal was that the group would kill him.

There are elements that resonate here – physical presence at some point during a crime in which a person has no role.  For many people – and especially cops, we submit – this is an impossibility, except for whatever person or persons are defined as victims.

It’s a definitional thing, and it’s the product of limited intelligence and imagination, an impoverishment of understanding.  Clearly, while it may be unusual that someone can be physically present at the scene of a crime and be neither a perpetrator nor a victim, it is not impossible.  Especially in the context of a violent crime, which to the uninitiated is often both a horrifying and confusing thing.

Among the subtleties of life that may be a challenge to understand this is not a particularly difficult one – it takes no more reasoning ability than the average adolescent still in grade school possesses, in our view.  But this is a dangerous obtuseness when so much is at stake.

This is what the author of the Slate article is having trouble coming to grips with:  that our system of criminal justice operates at a fairly low intelligence level.  That is the other main concern with bringing criminal charges:  the system isn’t going to do a very good job adjudicating them if the evidence, facts and circumstances take more than a 5th grader to understand.

The only check on all this is the most powerless and despised player – the defense lawyer.  Prosecutors and judges are not usually mindless and stupid, but they mostly act as if they are and in effect might as well be.

And yes, Jessie, we’re repeating ourselves.


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Maintaining The Fantasy (Updated)

We have nothing against cops as a group here at LoS.  We appreciate that the job can be extremely difficult and often dangerous.  Still, there are times when the criminal justice system’s double standard in their favor deserves a comment or two.

Under the headline “Experts:  Bench trial paid off for Nero”, MSNBC credits smart tactical decision making by Edward Nero’s lawyers for his acquittal on charges related to the death of Freddie Gray in Baltimore.  Rene Sandler, a Maryland defense attorney and “former prosecutor”, we are told, puts it this way:

“It was a very tactical decision for Nero’s lawyers, a very smart move,” Sandler said.

They’re laying it on thick:

When only the judge hears the evidence and renders a verdict, that’s known as a bench trial, named for where the judge sits. Such a proceeding isn’t common, but there are times when defense lawyers would rather try the case based on the law, rather than appealing to a jury.

Back to Rene:

“If you have an overwhelming legal issue that better plays in front of a judge on the law, as opposed to the emotions of twelve people, you will go for a bench trial,” said Rene Sandler, a Maryland defense lawyer and former prosecutor.

A little over a year ago we alluded to the sheer obviousness of this “very tactical decision…very smart move”, when the Defendant is a cop:

Let us summarize.  You have a criminal case out of Chicago where the defendant is a cop charged with reckless homicide and the judge renders a judgment of acquittal, at trial, at the close of the prosecution’s case because the defendant was a cop and that would never happen for anyone else because the cop had fired into a crowd and the mens rea didn’t fit the facts.

From the sound of things we’d guess an acquittal is the right result here, although we are by no means a close student of this particular story.  Our only concern is when “experts” give the public a false impression of the even-handedness of our criminal justice system.  It is not even-handed.  It grossly favors police and the government generally. This has nothing to do with an “overwhelming legal issue” better playing in front of a judge; it’s about the defendant being a cop that all the other cops, and probably the attorneys prosecuting the case, want to see acquitted.  How often do cops tender an enthusiastic congratulatory handshake to an acquitted criminal defendant?

Image: Officer Nero Acquitted of all Charges in Freddie Gray Baltimore Case

The general rule for criminal defendants is that you go with a jury because the risk of the jury wrongly convicting, while substantial, is far less that the risk of the judge wrongly convicting.  But that’s not generally true when the defendant is a cop:  the cop-as-criminal-defendant doesn’t even have to run the jury risk.

The rest of us do.  That’s not even-handed.

Shame on MSNBC for misleading the public.

Update:  Here are the judge’s career highlights.  ‘Nuff said:

Career highlights: Led court’s criminal division from 2012 until January. Chaired Criminal Justice Coordinating Council for Baltimore, 2012-2014. Special litigation counsel for the civil rights division of the U.S. Justice Department, 2002-2005. Trial attorney in the civil rights division of the U.S. Department of Justice, 1997-2002. Assistant state’s attorney in Baltimore, 1989-1997



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