Elaine Lasky claimed that Timothy Rosencrantz sexually assaulted her. Maybe he did, but her story kept changing; it was riddled with inconsistencies; she was a wholly unreliable witness. There was no physical evidence tying Rosencrantz to whatever might have happened to Lasky. And he had a pretty good alibi. But she said that the guy who assaulted her had a tattoo of a car on his chest, and Rosencrantz did.

Of course, she also lied about stuff. The prosecutor knew she was lying but didn't call her on it or make any other effort to correct it. Rosencrantz was convicted and sentenced to an indefinite term of 22 1/2 to 50 years in prison.

After pressing his case through the Michigan courts, Rosencrantz went to federal court seeking habeas corpus relief. His trial, he said, was constitutionally unfair because the prosecutor knowingly allowed, and maybe even actively suborned, perjury. The District Court agreed that the prosecutor cheated but thought it harmless. Then the Sixth Circuit weighed in with a split decision which Justin Thompson was kind enough to call to my attention.

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We interrupt this story to tell you a bit about the 6th Circuit's dynamics and a bit about how it applies the law.

Sixth Circuit dynamics:

This bunch of judges is fractious. Frankly, rather than a court of presumptively distinguished federal judges, it seems often more like a disfunctional family. Some sense of the internecine struggles can be gleaned from blogging on a few of the court's death penalty decisions by Jonathan Adler on The Volokh Conspiracy here and here. But to get the real flavor, you have to look at the en banc rulings in Grutter v. Bollinger, the University of Michigan Law School affrimative action case.

Chief Judge Martin wrote the opinion for the majority upholding Michigan's affirmative action plan, Judge Boggs the main dissent. Were that all, if this were simply a case of disagreement, there'd be nothing to note here. After all, many cases generate disagreement. (In fact, it was a closely divided and forcefully disagreeing Supreme Court that affirmed the Sixth Circuit's decision in a set of opinions found here.) But that isn't all.

Judge Boggs appended to his dissent a "Procedural Appendix" laying out, he says fairly and accurately, the ways that he claims Martin manipulated the process and violated Sixth Circuit rules and procedures to ensure first a three-judge panel that would find Michigan's plan constitutional and then an en banc court with a majority that would agree with his decision.

He writes:

If actions are taken that may imperil that legitimacy, a member of this court who observes them is left with two alternatives, both unpalatable. One is to allow the actions to pass in silence, even after explanations have been requested, but have not been produced. Silence simply allows those actions to continue and to be repeated, with real consequences for both the court and the litigants who appear before it.

The other alternative is to place the actions on the record, for such remediation as may be possible.

I have not revealed the substance of any internal communications on this case between members of our court, with the exception of the letter of one senior judge who asked me to do so. See n.46 supra. Compare Concurring Op. at 43 & 34 n.3 (Clay); Concurring Op. at 27 (Moore). As to Judge Clay’s discussion of my opinion in Memphis Planned Parenthood v. Sundquist, 184 F.3d 600, 605-07 (6th Cir. 1999) (Boggs, concurring in the denial of rehearing en banc), Concurring Op. at 43-44 (Clay), I will leave to the candid reader to consider the distinction between laying out very significant and obvious violations of rights of members of this court, and revealing, in contravention of long-honored custom, the internal votes of members of this court.

Legitimacy protected only by our silence is fleeting. If any damage has been done to the court, it is the work of the actors, not the reporters.

Boggs claims, in other words, that only by exposing the lack of integrity of Martin and others on the court can the court's integrity and legitimacy be reestablished. Sunlight as disinfectant.

Judge Moore responded with a separate concurring opinion written solely, she says, to correct the misstatements (she never quite calls them "lies," but that's what she means) that Boggs made and to explain that sunlight (at least when magnified through lies) doesn't clean, it burns.

In publishing their “Procedural Appendix,” I believe that Judge Boggs and those joining his opinion have done a grave harm not only to themselves, but to this court and even to the Nation as a whole.

It's really quite an extraordinary claim if you think about it. One little bit of complaining about how Martin and his cronies (including Moore) manipulated a case for political ends and the United States is at risk. But you see,

Judge Boggs’s opinion marks a new low point in the history of the Sixth Circuit. It will irreparably damage the already strained working relationships among the judges of this court, and, as discussed in Part I supra, serve to undermine public confidence in our ability to perform our important role in American democracy. And for what reason? What purpose does the “Procedural Appendix” serve? Its author does not defend its inclusion, except to suggest that by placing his version of events in the record, some “remediation”may be “possible.” Dissenting Op. at 89 n.49. Whatever “remediation” Judge Boggs may envision is properly the subject of a court meeting, but not the basis for an unprecedented “Procedural Appendix.”

Judge Clay chimes in "for the purpose of speaking to the misrepresentations made by Judge Boggs in his dissenting opinion which unjustifiably distort and seek to cast doubt upon the majority opinion."

The dissent's substance, he concludes after some 15 pages, is wholly dishonest, "grounded in neither fact nor law." And that's the mild stuff.

For then Clay takes on the "Procedural Appendix." Unlike Moore, Clay doesn't dismantle it piece by piece, nor does he say it threatens the republic. But he does say that it

constitutes an embarrassing and incomprehensible attack on the integrity of the Chief Judge and this Court as a whole. Apparently, the dissent’s strategy in this regard is that if its substantive basis for disagreement with the majority opinion is not convincing, then questioning the procedural posture of this case will be enough to forever cast doubt upon the outcome reached here today. This unfortunate tactic has no place in scholarly jurisprudence and certainly does not deserve to be dignified with a response. However, because of the magnitude of the issues involved, and because of the baseless nature of the allegations, this procedural attack cannot go unanswered.

Got that. It's so incredibly sleazy and dishonest that it doesn't deserve an answer, but it's so incredibly sleazy and dishonest that it requires a answer. And the answer, of course, is that it's incredibly sleazy and dishonest.

But Boggs has his defender, too. Judge Batcheldor writes a one paragraph dissent from the majority opinion which pretty much exclusively addresses the importance of what Boggs wrote:

I write separately to say that I concur in all of that dissent, including the exposition
of the procedural history of the case. In her separate concurrence, Judge Moore expresses her belief that by revealing that history, Judge Boggs—and I, by concurring—undermine the legitimacy of the court and do harm to ourselves, this court and the nation. I believe that exactly the opposite is true. Public confidence in this court or any other is premised on the certainty that the court follows th erules in every case, regardless of the question that a particular case presents. Unless we expose to public view our failures to follow the court’s established procedures, our claim to legitimacy is illegitimate.

So that's the Sixth Circuit. Someone's lying. Everyone's blaming everyone else. They all hate each other. And airing the dirty laundry in public either cleans it or helps Al Queda.

Sixth Circuit Jurisprudence

AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996, says among other things that federal courts reviewing state court decisions in habeas corpus are to be very deferential to what the state court decided. The test isn't whether the state got federal law right. It's whether it got federal law egregiously wrong.

Paul House was on death row in Tennessee for a crime he maintains he didn't commit. New DNA (new is a comparative term here given how long the case took wending its way through the courts, but it was new since the trial) evidence cast very grave doubt on his guilt. The case made it to the 6th Circuit which in a 2-1 decision held that he hadn't made a sufficient showing and refused to grant him relief. The Sixth then agreed to an en banc hearing.

Fifteen members of the court heard the case. When they issued their decision, it came out roughly this way: Judge Norris, writing for the 8 Republican appointees to the court, said that House hadn't proved he was innocent and, therefore, he should be executed. Judge Martin, writing for 6 Democratic appointees to the court, said that the evidence was overwhelming that House was actually innocent and he should be set free. Judge Gilman, also a Democratic appointee, said it was a close case and House should get a new trial. (The Supreme Court reversed and ordered a new trial.) Got it? Republicans vote one way. Democrats vote another. Life, death, doesn't matter. No compromise.

We now return you to your regularly scheduled program.

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I'm not going to bore you (or me) with a lot of legal mumbo-jumbo about how Brady/Giglio claims that the prosecutor presented false testimony are different than Brady claims about how the prosecutor hid evidence. And I'm not going to try to parse the court's opinions to figure out whether, as the majority says, Lasky only told one outright lie that the prosecutor knew was an outright lie or, as the dissent says, she told several lies that the prosecutor knew were lies.

Here's the bottom line:

Boggs, who wrote the opinion and Judge Cook who concurred think that even though she was a liar, she still said the guy who assaulted her had a car tattoo, and Rosencrantz did, so he must have been guilty. They specifically don't condone what the prosecutor did, but "excuse the error here as harmless." Judge Cole, who dissented, thinks that an honest prosecutor would have admitted that Lasky's testimony was so riddled with holes that no reasonable juror would have believed it.

This might be trivia, but it isn't.

Back in 1935, writing in Berger v. United States, Justice Southerland explained the basic rule.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Justice White made the same point 32 years later in a minority opinion in United States v. Wade.

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime.

When you think about it, it's pretty simple. The government isn't supposed to cheat.

The rule is grounded in fundamental fairness and due process. The prosecutor in Berger was the U.S. Attorney because Berger was charged with a federal crime and tried in federal court. But the same rule, and for the same reasons, applies to prosecutors in the state system. It's all required by the Sixth and Fourteenth Amendments.

Of course, prosecutors do cheat. Maybe not all of them, and certainly not all the time. But it happens. Mostly they don't cheat to convict those they think are innocent but to make it more likely that those they believe guilty will be convicted. But cheat they do.

And a quick look at Rosencrantz shows why they do. Because they can.

It's not a new problem. In 1999, the Chief Justice of the Ohio Supreme Court had had enough. In a death penalty case, State v. Fears, he dissented in part and would have reversed the death sentence due to prosecutorial misconduct. We condemn it all the time, he said, but then we let it go.

Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences. In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

Or as Cathy Cook said of prosecutorial misconduct during oral argument at the court one day, "You've got to make them lose to make them learn."

Coming soon - how the duties of defense counsel are different.