Lies, Damn Lies, and the Law

Some true stories:

• A judge told me (off the record) that when it comes down to it, he finds cops more credible than lay witnesses.

• Another judge told me (off the record) that if it had been a DUI he'd have granted the defendant's motion and dismissed the case, but the charge was aggravated murder so he denied the motion.

• Another judge told me (off the record) that the three-judge panel trying the death penalty case dismissed the death specifications after finding they were proved but before the sentencing phase of the trial and imposed a life sentence because "we knew if the case had gone forward we would have sentenced him to die."

• The Texas Court of Criminal Appeals explained that it was denying the pro se defendant relief because he'd filed his documents the wrong way, but if he did it right - and they told him how to do it - they'd grant relief.  He followed instructions.  They denied relief.

* * *

None of this, except possibly for the specific examples, is new to anyone who's been in the trenches for a bit.  If we were ever naive enough to believe, we've learned otherwise.  It's why I so often say, to the frustration and irritation of law students and new lawyers that I don't believe in The Law, that thing they teach in the law schools that comes with the upper case L.  I believe, of course, in law. That's the thing that bites you on the ass when you think The Law is on your side.

* * *

We have in Ohio executions scheduled, with real, serious execution dates, through September 2020, which, if you're mathematically challenged, is nearly four years from now.  That's 23 men who know when they're supposed to be killed.  They've run through all standard process, both state and federal. Sometimes more than once.  It's pretty much a certainty that some of them (no, I don't know which, nobody does) will not in fact be killed as scheduled, because there's all sorts of things outside standard process that can happen.  But those dates are real.

In the last week, the Supreme Court of Ohio scheduled executions in two more cases:  For November 2020 and March 2021.  Those dates are not serious. The court sets an execution date when it denies direct appeal and affirms a death sentence.  But it's consistently followed the rule that everyone is entitled to at least one full round of state review.  So it grants motions to stay those dates.  Doesn't mean those two men won't ever be executed.  But it won't happen on the current schedule.  Those men each have more years to go.

In fact, trial judges are supposed to set execution dates when they impose death sentences.  The Supreme Court then vacates those dates so it has time to hear and affirm the death sentences and set its own first set of fictitious dates.

* * *

It's not exactly that it's a game. And not exactly that it's dishonest.  It's partly the Law of Rule rather than the Rule of Law.  Partly it's power.  Partly it's fear. And sometimes what's actually supposed to happen does, which gives too many people false expectations about next week.

Really, it's something like a legal fiction.  We pretend, because it's what keeps the system - and for better or worse the system is all we have - operating.

But you do kinda have to wonder.

A Helluva Town

Maybe it's different in New York.  

I don't know.  I haven't lived in The City (that's Manhattan to you folks not from there, but then I never lived in any other part of New York City -or New York State, for that matter) since - well, I'm old and I was young then and left before I went to college which is decades before I went to law school.  So it's been a long time and what do I know?  As I said, maybe it's different there.

I get it that the buildings are taller and closer together and the streets are more crowded and it's the City That Never Sleeps and Wall Street and the (new) World Trade Center and still the Empire State Building and that gorgeous bit of Art Deco, the Chrysler Building, complete with gargoyles.

And Broadway and "Live from New York, It's Saturday Night."

I mean, sure, it's different that way.

But do they really have Law (note the uppercase) that works the way they teach it in law school? That Rule of Law thing?

Scott Greenfield, who practices there (though he lives out on The Island - which is Long Island beyond Queens, outside New York City), seems to think so. 

I'm talking about the Honorable Henry Coke Morgan, Jr.'s Opinion and Order in United States v. Matish.  No, wait, I'm talking about Greenfield's response to Morgan's opinion. No, that's not exactly right, either.  It's Greenfield's response to the responses of folks, like the Electronic Freedom Foundation's Mark Rumold, to Morgan's opinion.

Skip the complexities.  Morgan's dealing with whether to grant a suppression motion after a search based on a warrant.  He says no.  Then, as lawyers put it, he goes on a frolic, explaining that there's really no need ever for the government to get a warrant to search a computer because everyone knows that sooner or later all computers will be hacked.  And that means that nobody ever has a "reasonable expectation of privacy" in the stuff on the computer.

Which led to apoplexy.  Because 

OH MY FUCKING GOD

Which is what Greenfield responds to.  Pointing out that Morgan's frolic is what lawyers call (in Latin to make it sound significant) a dictum -- something said but not technically precedential because not essential to the reasoning of the decision.  And it's not even a dictum, it's an obiter dictum, something even more removed, just an expression of the judge's opinion.  And he's a mere U.S. District Judge so his opinions, even the technically relevant parts, aren't really precedential.  And the By God U.S. Supreme Court says otherwise.  

So take that Rumold.  And you too, Judge Morgan, Jr.

All of that is what they teach in law school.  And maybe in the greener pastures where Greenfield lives (though New York, where he mostly practices, is more concrete than green, but I digress).

So yeah, maybe it's different in New York.

But I don't believe it.  Because Morgan's dumbass reveries (that's English for obiter dictum) will be quoted.  And the FBI and the DEA and the DOJ and Homeland Security and your local constabulary will believe.  And we'll argue about dictum and the obiter dictum and the precedent or lack thereof. Which is what we're trained to do and what we have to do.  And the judges, or at least many of them, will say, 

FUCKIN' A! We got us a good search.

And maybe the appellate courts will reverse after your computer is invaded and you maybe spend a few years in prison.  

Or maybe not.  

Because obiter dicta (that's the plural) or dicta (plural again) or technical precedential value be damned.  This is real world.  And it's the Law of Rule every bit as often as the Rule of Law. 

Except maybe in New York.

ThreePeat

When all you have is a hammer, they say, everything looks like a nail.

And one definition of insanity is doing the same thing over and over and expecting a different result.

Thing is, Tim McGinty's not insane.  When he went to the well a third time he knew he'd get the same result.  The catch is that he thinks we'll buy it if it just gets said enough.  

This is about Tamir Rice.  Actually, it's about Timothy Loehmann, the cop who shot and killed Tamir.  The grand jury's still out on him, of course, after only a couple of months of testimony.  

That's as opposed to the 20 minutes of testimony before the GJ returns a murder indictment in the ordinary case.  But because Loehmann's a cop, the grand jury doesn't just decide whether a quick and dirty summary of the evidence against him provides probable cause to indict.  Sure it would.  Which is fine for the ordinary person.  But for Tim McGinty, Cuyahoga County's elected prosecutor to show that he won't sweep the killing of Rice under the rug, he'll prove that he treats it just like any other killing by doing things completely differently.  

Thus, the GJ won't just get the quick and dirty probable cause stuff.  It'll hear, also, all the reasons that it should not indict.  A thorough investigation, after all.

And to show just how thorough the investigation is, McGinty's hired a couple of outside experts to evaluate the evidence.  Last month their reports were released.  The special investigators, retired FBI agent Kimberly Crawford and  S. Lamar Sims, a Deputy DA from Colorado, both concluded that Loehmann was cool.  

Their reports presumably made Loehmann happy.  And gave McGinty plenty of cover for when the GJ decides not to indict (or, if by chance they indict, for when Loehmann's found not guilty).  But Tamir's mom wasn't placated.  Nor was the African-American community. Nor, really, much of anyone else who thought that cops shouldn't go around shooting unarmed 12-year-old kids.  

So McGinty got himself another expert.  Cory Shaffer at the Cleveland.com summarizes.

"This unquestionably was a tragic loss of life, but to compound the tragedy by labeling the officers' conduct as anything but objectively reasonable would also be a tragedy, albeit not carrying with it the consequences of the loss of life, only the possibility of loss of career," wrote W. Ken Katsaris, a certified Florida law enforcement officer, instructor and consultant.

Ah yes, tragedy upon tragedy. Tamir's dead. So sorry. But his killer might (just might, hey it's possible) have to find another line of work - perhaps one where killing is actually frowned upon.

Bummer.

Somehow, I don't imagine Katsaris's report will placate the community either.  Shaffer again.

Activists and the Rice family decried the earlier reports commissioned by McGinty, saying they gave too much deference toward the officers, and were written by experts who are biased in favor of enforcement.

Which is, of course, true of Kastaris, too.  

Now, it's also true that none of these hacks experts considered whether Loehmann actually broke the law when he shot and killed Tamir Rice.  All they decided was that what he did was constitutional and so he can't be sued.* But who's gonna say that if the Constitution isn't violated he still might have committed a crime?  Don't hold your breath.

So here's a lesson.  When you send the cops to decide whether it's OK for cops who are afraid to kill people rather than take a chance - because it's clear to the cops whose lives matter more.  

As I said, when all you have is a hammer, everything looks like a nail.

Law of Rule.
 ---------------
And note that the Constitution is not offended when a cop with no need whatsoever and apparently against direct orders shoots into a moving car and kills the driver who might (or might not) have an outstanding warrant.  So said 8 Justices of the U.S. Supreme Court Mondy in Mullenix v. Luna, leaving Sonya Sotomayor alone to think that it's a bad thing for the Court to find that the Fourth Amendment (originalists take note) "sanction[s] a 'shoot first, think later' approach to policing."

Fear of Flooding - UPDATE

Are you a due process or a finality kind of guy?

The question came from a judge.  We'd just met.  He knew nothing about me except that I was licensed to practice law.  He was cutting, as they say (and, by the way, just who are "they" that do all the saying?), to the chase.

In a Times Op-Ed, Alec Karakatsanis, tells the story of Ezell Gilbert.

In March 1997, he was sentenced to 24 years and four months in federal prison for possession with the intent to distribute more than 50 grams of crack cocaine. Because of mandatory sentencing laws, Mr. Gilbert was automatically sentenced to a quarter-century in prison, though even the judge who sentenced him admitted that this was too harsh.

But the law's the law, and mandatory minimums are just Congress's way of saying "Fuck you" to poor people who don't make big campaign contributions. (And, to save you the trouble of actually thinking about it, yes, that's all poor people.  #poor people's lives matter.*)  So a quarter century it was. 

Or maybe not.

At his sentencing, Mr. Gilbert noted a legal error that improperly increased his sentence by approximately a decade based on a misclassification of one of his prior offenses. In 1999, without a lawyer, he filed a petition seeking his release. 

It was an argument about how to apply (and when) a provision of the Armed Career Criminal Act, a matter of passing interest to almost nobody who isn't a lawyer in federal court or someone who gets serious time added to a sentence because of it.  Anyhow, Gilbert filed his petition.  Which, this being the land of the free and all, was promptly denied by the court of appeals because he was obviously wrong and mandatory minimums and Fuck you.

Which is where things stood for a decade or so until 2008 when SCOTUS, by an atypically split 6-3 vote, decided Begay v. United States.  Which said (although in Begay's case and not his) that, by god, Gilbert was right.  So back to court he went, this time with a lawyer.

Mr. Obama’s Justice Department, however, convinced a Florida federal judge that even if Mr. Gilbert’s sentence was illegal, he had to remain in prison because prisoners should not be able to petition more than once for release.

Which is obviously right.  Because if you let one poor guy out just because he was illegally sentenced to an extra decade in prison, then you probably have to do it for the next poor guy who's doing an extra decade in prison because the courts got the law wrong.  And then before you know it you'll have people just flooding the streets instead of filling prison cells that they aren't supposed to be in.

Which would lead to factually innocent people saying they shouldn't be in prison, either.  And if the feds start to let out innocent people, then the states might feel obligated to do the same.  Just think of the horror. 

Thousands of people who shouldn't have been in prison in the first place out on the streets. 

Lock up the women and children!

Anyhow, Gilbert appealed.  And a three-judge panel agreed.

The judges rejected the administration’s argument as a departure from basic fairness and explained that it simply could not be the law in America that a person had to serve a prison sentence that everyone admitted was illegal. Mr. Gilbert returned home and stayed out of trouble.

Which is lovely.  And of course proved to be wrong.  That is, indeed, the law in America.

In May 2011, the same court, led by a different group of judges, sided with the original judge, saying that the “finality” of sentences was too important a principle to allow prisoners to be released on a second rather than first petition, even if the prison sentence was illegal. A contrary rule would force the courts to hear the complaints of too many other prisoners. Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.

It's worth repeating that last sentence.

Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.

The vote was 8-3.  

In 2013, Obama granted clemency to Gilbert, let him out of prison again.  Which was, of course, what should have happened years ago.  And of the others?  Those the administration argues and the courts agree should stay in prison even though they're there illegally?  Because they were improperly sentenced or because they're legally or factually innocent or just because Fuck you?

Hell, Obama just commuted 48 sentences.  Noblesse oblige.  What more do you want? Expect him to just start letting the wrongly incarcerated and convicted out willy-nilly? Grow up.  This is America.

Among the three dissenting from the decision to send Ezell Gilbert back to prison was Judge James Hill. He wrote

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States. 

Indeed.  Law of Rule.

I told that judge I was a due process kind of guy.  

* * * 

 Here's Judge Hill's dissent in its entirety at the bottom of this (omitting the footnotes).

HILL, Circuit Judge, dissenting, in which BARKETT, Circuit Judge, joins:
Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.
Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.
Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.
This “Catch-22" approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.
Furthermore, to “seal the deal” on finality, we hold today that even the savings clause of § 2255 – which appears to permit resort to the Great Writ itself in circumstances such as these – provides no avenue to relief for Gilbert because confinement pursuant to sentencing errors such as his does not offend the Constitution. Rather than acknowledging that Gilbert’s sentence is fundamentally defective and a miscarriage of justice, we hold that the error resulting in an additional eight and one-half years of prison time for Gilbert is a mere technicality, a misapplication of the Guidelines that has no remedy because it is not all that important. Gilbert’s erroneous enhancement as a career offender – demanded by the government at the time – is argued to be mere harmless error now that he has been proven right.
The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.
I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.
A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.
One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.
I respectfully dissent from the majority’s holding. With the addition of these thoughts of my own, I join in both Judge Barkett’s and Judge Martin’s dissents.

UPDATE:  Be sure to read Scott Greenfield's take on this.
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*Yes, the victims are not all poor.  I know that.

Consequence

You've got to make them lose to make them learn.

That was Cathy Cook, arguing in the Supreme Court of Ohio about what it would take to get prosecutors to stop cheating, lying, hiding evidence in capital cases.  Instead, what the court did, routinely, was admonish.

Bad prosecutor.  Don't do that again.  Be aware, one of these days if you keep it up we'll reverse a conviction.

Empty threats.  No consequence.  No change in behavior.  The prosecutors were righteous, after all. They weren't breaking the rules in order to convict the factually innocent.  They were taking bad guys off the street.  No need for the niceties.  

So yeah, undoing some of those convictions based on prosecutor misconduct might achieve something - especially if the courts really had balls and said that they couldn't try the defendants again - even if the prosecutors said that they were bad dudes who'd done bad stuff.  Make 'em lose and maybe they'd learn.

Or maybe not.  Because really, the cops'll just bust the guys so they can do it again.  Or maybe the cops'll shoot next time and save everyone the bother.  I mean, they can do that with pretty much no consequence to them even without much in the way of justification.  See Michael Brown and Eric Garner and Tamir Rice and Freddie Gray and . . . .  Well, just look at Michael Brelo who was, after all, acquitted.*

Rick Horowitz suggests a different approach to the cops, making them have personal liability insurance for their police behavior (link removed).  

The most important component of this proposal is that if an individual is unable to obtain the insurance, they are unable to work as a law enforcement officer. Period. No ifs, ands, or buts. No workarounds.
This final part of the proposal provides a beautiful means of weeding people out of the force who should never be on the force in the first place. Let insurance company actuaries help clean things up. Individual insurance companies can develop their own means of deciding who to insure, and who not to insure. After all, assessing and deciding on what is acceptable risk is what they do.  

There's an elegance to Rick's proposal I like.  But it doesn't help us with the self-righteous prosecutors who'll do whatever it takes - and damned the rules.  After all, what's the risk to them.  Oh, sure, maybe some chewing out from a panel.  Embarrassing, but.  Ho hum.

And so, in the spirit of, here's something you don't see every day, I bring you to the Lone Star State where, you may recall, Anthony Graves spent 18 years in prison, 16 of them in solitary, 12 of them on death row, for a mass murder (6 members of a family, including 4 children) he didn't commit.  

How'd that happen?  Meet Charles J. Sebesta, Jr., the man who put him there.

He's the prosecutor who put on perjured testimony.

• Who didn't tell the defense - or the jury - that Robert Carter, a co-defendant and the key witness against Graves, admitted the night before his testimony that he committed the crime alone and that Graves had nothing to do with it.  
• Who had others testify that Carter had been consistent with his story implicating Graves knowing that their testimony was false.  
• Who had Carter himself give the false testimony on the witness stand.
• Who arranged for threats to prosecute Graves' alibi witness for capital murder if she testified, accurately, that he was with her and elsewhere at the time of the killings.

And who, oh yeah, there is a point to this, just got disbarred.

Prosecutors like to say that the bad guys need to learn there are consequence to them when they commit crimes.  Frankly, most of our clients don't understand those connections.  They've generally lived lives that haven't lent themselves to a clear understanding of cost-benefit analysis.  

But Sebesta?  He'd been preaching it for years.

Rule of Law for a change.

  Sebesta Judgment of Disbarment

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*Yes, I know that the Rice and Gray cases are still pending.

The Painesville Mikado

“I wouldn’t do anything illegal. . . . I do whatever I think is right.”

Which is not quite an oxymoron, but is surely its kissing cousin. And, in this case, it's damned incestuous.

The speaker is the Honorable Michael Cicconetti, Judge of the Municipal Court in Painesville, Ohio. And while he may well do what he thinks is right, he's developing a reputation for issuing sentences which are, let me put this delicately, fucking illegal.

Times past, according to AP, he's

told a drunk driver to view crash victims’ bodies at a morgue and had teens in criminal mischief case fulfill community service by playing drums as entertainment at a park.

You may find those things fitting punishment.  There may be a visceral appeal.  Judge Cicconetti obviously thinks they're right.  He explained his goal.

I do whatever I think will prevent a person from coming back in the courts again.

That sounds laudable.  It's not the law.

Here's the Ohio Supreme Court, in State v. Beasley, a 1984 decision.

This court in Colegrove v. Burns (1964), 175 Ohio St. 437, 438 [25 O.O.2d 447], described the role of a trial judge in sentencing a convicted criminal:

 "* * * Crimes are statutory, as are the penalties therefor, and the only sentence which a trial judge may impose is that provided for by statute * * *. A court has no power to substitute a different sentence for that provided for by law."

Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.

Which would seem to be clear enough.  Although judges . . . .

1999. Toledo.  Danny Gears was facing sentencing for a burglary in which he stole some jewelry.  In State v. Gears, the court of appeals told what happened.

At appellant's sentencing hearing, the trial court read the victim's impact statement, which stated that the jewelry and jewelry box taken from her by appellant had sentimental value and were never recovered. The judge then engaged in the following colloquy with appellant:
"THE COURT: What are you wearing around your neck?
"THE DEFENDANT: A necklace my ex-girlfriend gave me.
"THE COURT: Your girlfriend gave it to you. Does it have sentimental value?
"THE DEFENDANT: Yes, Ma'am."
She then ordered appellant to forfeit the necklace and other jewelry he was wearing as restitution.

No way, said the court of appeals.

Unless a specific sanction must be imposed or is precluded from being imposed pursuant to law, a trial court has the discretion to impose any sanction or combination of sanctions provided in R.C. 2929.14 through 2929.18. R.C. 2929.13(A). As applicable to this case, R.C. 2929.15(A) provides that "the court may directly impose a sentence that consists of one or more community control sanctions." A community control sanction is a sanction that is not a prison term, R.C. 2929.01(F), and may consist of (1) community control, R.C. 2929.15; (2) residential sanctions, R.C. 2929.16; and (3) financial sanctions, R.C. 2929.18.
A reading of these statutes reveals a total lack of any intent to authorize in-kind restitution. As aptly observed by amicus:
"[T]he law does not provide that because the victim may have lost items of sentimental value the offender may be deprived of items of sentimental value. Restitution as penalty is a financial rather than moral sanction. It is for that reason that the section of the Revised Code addressing restitution for felony offenses is captioned `Financial sanctions.' R.C. 2929.18."
Thus, we conclude that as a matter of law, the common pleas court lacked the authority to order appellant to surrender his personal jewelry as restitution.

Gears, of course, does not stand alone.  Judges all too often believe their fiefdom's give them the right to create punishments.  They shame defendants, making them wear signboards declaring themselves criminals.  They order in-kind sentencing.  They know, they just know, that if the criminal can feel the sting . . . .

Ah yes, the sting.

Diamond Gaston had a choice.  She'd assaulted someone, spraying him with pepper spray.   You can do 30 days, Judge Cicconetti offered, or you can let the guy you pepper sprayed pepper spray you. Gaston chose to be assaulted.**

That same day, the Judge sentenced a woman who hadn't paid her cab driver for a 30 mile ride.  She, too, had a choice. She could do jail time, or pay $100 restitution and walk 30 miles. She chose to walk.

Maybe the Judge is right and these sentences are what the law should provide.  But we live in Ohio, not a Gilbert and Sullivan Operetta. And whatever he may think, Judge Cicconetti is not the Mikado.

Law of Rule.

H/t Turley
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*Disclosure: I was amicus counsel in Gears. 

** Much to the victim's displeasure, the judge didn't really let him use pepper spray on Gaston but ordered a saline solution instead.

New Motto: Tough But Incompetent

This seems to be the argument.

• The buck stops here, so I take responsibility.
• But it's everyone else who's supposed to tell me what to do.
• And then I tell them to do it.
• But they don't properly tell me what to do.
• And I don't actually tell them to do it.
• And I always say what I mean, but I often fail to say what I mean and in fact say something else.
• So the buck stops here, but I'm not responsible.

Or something like that.

We know Sheriff Joe has admitted that he didn't do what the court ordered him to.  Yesterday he testified at his contempt hearing.

He told plaintiffs' attorney Stanley Young that he remembered hearing about the preliminary injunction when it was issued but said he didn't have knowledge of all the facts of the order.
"I delegated this court order to my subordinates and also to my counsel that represented me," he said.
Arpaio said he didn't recall if he ever did anything to ensure his office was complying with the order, saying he handed over the task to his former deputy chief, Brian Sands.

Hey, what more can you expect from the Toughest Sheriff in America™? John Wayne wouldn't ask questions. John Wayne would just say,

Do it, Pardner!

Same as Joe.

And if Pardner Sands doesn't do it? Shit, he explained that he delegated to his lackeys.

Earlier in the day, Sands also distanced himself in testimony from enforcement responsibility, telling his attorney that it was typically his subordinate's duty to implement training materials. Sands said he didn't know why the training module was never completed.

Whole fucking department is incompetent.  Ain't the fault of management, for god's sake.

And sure, his press releases have him saying things he didn't mean like he was going to keep going after immigrants when he meant illegal immigrants.  

But hey, he's the Toughest Sheriff in America™not some fucking pantywaist English professor.  And anyway, what's the difference between immigrants and illegal immigrants?*

Sigh.

Sheriff Joe, pressing the Law of Rule.

-----------------

*He didn't really ask that question aloud.  But he knows the difference:  Immigrants come from places like Canada and Sweden and Germany.  Illegal immigrants come from Latin America.  

See how easy that is. 

In Which I Wish, If Just for a Day, My Texas License Was Still Active

I hadn't written about it because, frankly, it was hard to see how I might have done a better - or more interesting - job than Dahlia Lithwick did.  And aside from the fact that he and I have both worked on capital cases . . . .  Really, there just wasn't anything for me.  

The subject was David Dow, an effective, committed lawyer doing late stage capital defense work in Texas.  More specifically, the subject was David being held in contempt by the Texas Court of Criminal Appeals (where Sharon Keller is Chief Judge) for a maybe-late filing after having blown another deadline five years earlier.  And so he's punished by not being allowed to defend his clients in that court for a year.  It's a punishment that will hurt his clients far more than it will him. After all, they could get executed while he can't act. He can try and catch up on his sleep.

Here's Lithwick (hyperlinks removed).

One of the sad truths of the capital defense business is that some trial lawyers who show up to defend their clients have been known to sleep through their trials, fail to interview witnesses, or are too drunk to do their jobs. And yet reviewing courts almost invariably determine that such lawyers provided perfectly competent defense. As one Texas judge put it in the face of such allegations: “The Constitution does not require perfection in trial representation.” So, for instance, judges in Houston continued to appoint lawyer Jerome Godinich to represent capital defendants even as he missed one filing deadline after another, depriving his clients of crucial judicial review. That there is really no such thing as an ineffective lawyer is one of the cardinal rules of the death penalty machine. But dare to be an effective one? Well, that’s another story.
. . .
Nobody is arguing here for dissing courts or missing deadlines. But proportion is as important to the administration of justice as timeliness, and judges should know this better than anyone. We joke darkly about Texas and the death penalty a lot in this country, in part because Texas makes it so darn easy. Suspending one of the nation’s most prominent and outspoken death penalty lawyers in a snit is just silly. Suspending him for a year, while other lawyers doze and drink their way through trials as their clients face death, borders on the criminal.

As I said, I couldn't top that.

But you know, these stories have legs.  And while the Court of Criminal Appeals is the high court for criminal matters in Texas, it's not always the highest court.  That honor goes to the Texas Supreme Court which, in its realm, is, er, supreme.

From time to time, we in the law biz get to take a stand.  Speak truth to power.  Declare that this (whatever it might be) cuts to the heart of what we do and what our system is designed to do.

• They did it in Maricopa County, holding a rally to support the Rule of Law agains Sheriff Joe and his minions who work daily to enforce the Law of Rule.  Of course, Joe's still at it, but the rally was quite something.
• We did it in Ohio when a judge held new lawyer/new public defender Brian Jones in contempt for refusing to go to trial (it would have been his first trial) without being allowed time to prepare. Something like 75 of us signed the brief on Brian's behalf.
• And now in Texas.

The case filed in the Texas Supreme Court, is In re David Dow v. The Texas Court of Criminal Appeals.  The document is a Petition for Declaratory Judgment Or, In The Alternative, Writ of Mandamus.  Without going into the details, it asks the court to vacate the order preventing Dow from appearing in the Court of Criminal Appeals. 

There are, to the petition, some 24 pages of text.  followed by around 50 pages listing Texas attorneys who declare

I have read this motion and join in its filing.

Nobody sent me a draft of the petition to ask if I'd sign it.  And I couldn't have signed it if someone had because my Texas license is inactive.  (Costs me a lot less than keeping it active would.)

But damn, I'd have liked to.

Because what they did today to David, they'll do tomorrow to the next person who works too hard or effectively for his clients.  

Because Law of Rule, by god.

  David Dow's Petition for Declaration Judgment or, In the Alternative, Writ of Mandamus

An Adversary System Without Adversaries

It's a ritual, played out with slight variations in appellate courts throughout the country every day. We get out turn, they get theirs.  From the back and forth, after hearing and considering both sides, out of the conflict, comes what passes for justice.  It's how the system, imperfect though nobody's figured out a better one, works.  In the words of a 1969 opinion by the Ohio Supremes (and probably most other courts at one time or another),

Ours is an adversary system of jurisprudence.

And so, there was a death penalty case in the Ohio Supreme Court.  As counsel do, we filed the notice of appeal.  we made sure that the record, papers and transcripts, was sent down from Toledo to Columbus for timely filing.   We wrote our brief made umpteen copies, one of us loaded it in the car and drove down to Columbus to deliver it personally.  And we sat back to wait for the state to file its brief.  

Which was rejected.  The prosecutor counted the days wrong, the copier broke, the package got lost in the mail.  At this remove, I don't honestly remember.  And it doesn't matter.  Because it's the Ohio Supreme Court where deadlines is deadlines by god.  Where you're not even allowed to ask for more than a single, 10-day extension of time to file a brief. 

The prosecutor asked the court to reconsider.  Nope.

And since the rules say that a party that doesn't file a brief can't participate in oral argument, the prosecutor asked the court for special permission to speak at argument.  Nope.

And so I had 30 minutes to myself, to argue, to make my case.  With nobody on the other side. Which of course isn't supposed to happen.  After all,

Ours is an adversary system of jurisprudence.

It wasn't a one-off.  2013, State v. Pariag, Pariag had been charged with low level offenses.  The charges were dismissed.  He wanted the record of the dismissed charges sealed.  The trial court said sure.  The state appealed.  The court of appeals sided with the trial court.  Pariag went home.  The state asked the Ohio Supreme Court to hear the case.  Pariag was done.  His lawyer was done.  It's not even clear that Pariag knew.  It's certain he didn't respond.  The Ohio Supremes agreed to hear the case.  Only the prosecutor filed a brief.  Only the prosecutor appeared for argument.  The Ohio Supremes interpreted Ohio law just as the prosecutor wanted them to.*

Yesterday, State v. Brown, a case asking whether a probate court had authority to issue a search warrant.  Trial court said no and suppressed the evidence.  State appealed.  Court of appeals said no, but golly, the cops certainly acted in good faith, so the evidence comes in.  Supreme Court agreed to hear the case.  Court of appeals was right.  Probate judges do not have authority to issue search warrants so the search was unconstitutional.  

As for good faith?  Well, nobody asked that the ruling reconsidered, so the evidence, derived from an unconstitutional search, comes in.  But wait, why didn't anyone ask?  Because there was nobody on the other side.  Brown wasn't there.  No lawyer for his side.   No brief.  Nothing.

Of course,

Ours is an adversary system of jurisprudence.

Except when it's not. 

For the most part, the Ohio Supreme Court can cherry pick the cases it wants to hear.  It's supposed, by its own rules, to pick cases of "public or great general interest."  That is, it's supposed to be deciding stuff that matters.  That's true, also, of the categories of case it's required to hear.

You might think that the court would say, something like

We can't make those decisions, can't decide whether to hear a case, unless both sides weigh in with their views about why we should or shouldn't.  And we certainly can't decide important questions of public or great general interest in this, "our adversary system of jurisprudence," with no adversaries.

You might think that.  You'd be wrong.  

The court could appoint counsel to argue the other side.  It doesn't.  it's perfectly content to hear from only one side and then rule.  It shouldn't.  It's fundamentally wrong.  Regardless of the whether it gets the case right, that's not our system.  The one we believe in because it's the best way to get the right result.

But hey, they make the rules.  And they're apparently happy.

Law of Rule.

--------------------

*Disclosure:  After the opinion came out, and working with other organizations, we tracked Pariag down, he agreed to representation, and the Ohio Supremes were asked to reconsider.  They refused. I was counsel on an amicus brief in support of reconsideration. 

On Just Whose Ox Gets Gored

Give Paul Cassell credit.  He said one thing that's right.

The evidence should determine the outcome in this case — not threats of violence.

Beyond that, it's all hooey.

The issue is Darren Wilson in Ferguson and whether he'll be indicted for murder.  (Spoiler alert: Nope.)  And it's Cassell's latest screed on the subject.

Here's how it works in the hypothetical Darren Wilson grand jury. If the prosecutor wanted to charge Wilson with murder, he would send in one, maybe two witnesses.  The grand jurors would hear three pieces of evidence:

1. Michael Brown was unarmed.
2. Darren Wilson shot Michael Brown.
3. Michael Brown died from the gunshots.

The prosecutor would explain to the grand jurors that the elements of murder were satisfied.  The grand jury would then charge Darren Wilson with murder.  It would be done in an hour.  Any defense?  That's what trials are for.

Here's how it works in the hypothetical actual grand jury.  The prosecutor spends weeks bringing in witnesses who explain that 

Sure Michael Brown was unarmed but you have to understand the circumstances from Darren Wilson's point of view and here are the things that would constitute his defense and remember that he was a cop just trying to do the best he possibly could and Michael Brown was a street punk who probably deserved it and who's going to keep you safe at night if the cops are afraid to anything to protect themselves and you lest they be charged with murder and really the son of a bitch deserved it and anyhow really cops don't get convicted so why bother.

Now, says the prosecutor, here are the elements of murder which I suppose if you folks went out on a limb you might find but remember all that evidence of innocence and the defense that Wilson would present and you know that he won't be convicted anyhow and why tarnish a good man's reputation but if you feel that he's guilty beyond a reasonable doubt I suppose maybe, but really, we don't think we can prove it.

Here's Cassell explaining the glorious things that would will happen if when the grand jury returns without an indictment.

If no charges are filed, the country would have an opportunity for an important civics lesson on the presumption of innocence, the need to avoid a rush to judgment, and possibly (depending on the evidence) the fact that a police officer did not use excessive force but was simply defending himself in the course of trying apprehend a violent robber — i.e., Brown.

None of that, none of it, is what grand juries do in the ordinary case.  Grand juries hear a summary of evidence of guilt and return indictments.  They determine not whether there's a defense, not whether the presumption of innocence has been overcome.  They determine whether summary of evidence of guilt is sufficient to say, gee, this guy oughta be tried.

The rest, that's all for trials.  It's from the trial, where the evidence of guilt is presented to a jury of 12 in a courtroom operating under the rules of evidence, where the evidence is challenged by cross-examination, where the defense gets to put on its witnesses (who the prosecutor can cross-examine), it's from there that the public can learn those important civics lessons.

Cassell knows that, of course.  And he's perfectly happy with the grand jury hearing a summary of evidence and then indicting in the ordinary case where it's Michael Brown being charged with involuntary manslaughter for causing his own death by stealing the bullets that were being flung at him by an officer's gun.  But Darren Wilson?

Law of Rule.

Dissing the Heinous Crime Rule

I'm at a gathering of criminal defense lawyers which just naturally gets me thinking about what criminal defense lawyers do.  And no, I'm not wading back into that thicket today, though if you're remarkably bored you can search the archives for a string of posts in the Who-We-Are-and-What-We-Do series.  Anyhow, this is just an opening (you gotta start somewhere) to get to the simple point (which is itself a set-up for where I hope to take this).

We represent people charged with and convicted of crimes.  Some of the crimes are crimes only because the law says so.  (See Greenfield this morning on New York's law against gravity knives, for instance.)  Some are crimes because, well, it's against the law to steal a loaf of bread even if the kids are hungry.  And you don't have a right to beat up the guy on the next barstool just because he looked funny at you.

And then there's the monsters.  We represent people accused of, then convicted of, truly horrific things.   Really, until you've walked for a while in the trenches of the criminal law, you don't have a real understanding of the things people do to one another.  Baby rapers, torture killers, guys who fly airplanes into buildings, self-declared monarchs who commit genocide.  Some of the folks charged with, even convicted of those crimes in fact committed them.  

Others - that's another of the horrific things people do to one another.  They charge them, and convict them, of stuff they didn't do.  Even really awful stuff.

Out in the world there are the Nancy Graces, the Thane Rosenbaums, the Robert Bleckers, the Bill Otises.  They know, just know, who really did it.  They have no sympathy for the system that they claim coddles the evildoers, the monsters.

But here's a simple point, and it's where I want to go, what I want to be as clear as possible about.

It's when the charges are worst.  It's when the outrage is greatest.  It's when the accused is most clearly guilty in fact.  When she's most reviled, most despised.  When there's no excuse to be believed, when there's nothing.  When it's the devil himself in the box.  When it's hardest.

That's when it matters most.

Not just that we be there.  That part's easy.  We're there because it's what we do (again, search the archives).  

Floyd Holder, a fine lawyer gone for some time now (Jonathan Turley, who tried a case with him, once described him to me as "the Rumpole of the Plains"), described to me what he called the "Heinous Crime Rule."  

If the crime is sufficiently heinous, there's no such thing as reversible error.

Which is, I regret to say, mostly true.  And exactly wrong.

Because that's when it matters most.  That's when our system is most tested.

Because that's when the Rule of Law is most readily susceptible to giving way to the Law of Rule. It's when the courts, that don't want to, are most obligated to say 

NO.  DAMMIT.  SHIT.  WE HATE THIS.

But if you can't do it right, then you don't get to do it at all.

If the measure of a society is how it treats the least, the measure of a legal system, and the measure of a judiciary, is how it treats the worst.

Thank you for your attention.

Stopping the Innocent: SCOTUS Edition

Well, there -- wholly innocent people are stopped quite often because of mistakes of fact, for instance.  That's part of the whole Terry ­­ how Terry works and those types of brief stops.  There turns out times that citizens have not committed any kind of offense, and yet they are stopped.

Robert C. Montgomery, Senior Deputy North Carolina Attorney General, oral argument, Heien v. North Carolina.

* * * * *

It was at the U.S. Supreme Court Monday morning, the first Monday in October.  Montgomery was trying to answer a question from Justice Sotomayor who wondered just how many folks in the Old North State (Tarheels they) get illegally stopped for having only one brake light* and then asked if they're ok with having the cops search their car.  And, she wondered, 

[I]s that something that we as a society should be encouraging?

Montgomery told the truth, of course.  

Cops stop lots of innocent people.  They do it all the time.  Enthusiastically.  On the flimsiest of excuses that they say (and the courts are willing to believe) amount to what the Supremes said in Terry v. Ohio is enough for a stop: "reasonable, articulable suspicion."  It's a standard just about any cop who's not brain dead can make up shit to satisfy, which is one reason the Fourth Amendment has become more a cover for the police than a shield against police misconduct. 

But you know, there are truths and there are truths.  And this is one that nobody in authority is supposed to admit.  That much of what the cops do is just stopping folks for no acceptable reason.  

Except that they wanna.  And they can get away with it.  Because we let them.

Which takes us back to Sotomayor's question about what we should be "encouraging."  And back to Stop and Frisk and Driving While Black and being Hispanic in Maricopa and

The actual question in Heien, the one the Court agreed to answer, looks straightforward enough.

Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.

As often happens during oral argument that's not mostly what they talked about.  Mostly what they talked about was whether the question mattered or they should have been answering another question. (If it happen that hte stop was illegal, what should happen to the ensuing search of the car?)

But there was that single line, really, just part of a sentence.

wholly innocent people are stopped quite often

And the rest, never quite said because it's impolitic.

And we're good with that.

Besides, it doesn't happen to us.

Just to them.

It's one of those times when we don't disguise that the Rule of Law is, in fact, the Law of Rule.

Which Deputy Attorney General Robert Montgomery came right out and admitted.  

-------------------

*Do not try this at home unless home is North Carolina.  The law pretty much everywhere else in these United States is that you have to have two working brake lights.

The Divine Right of the NSA

Even if the Court were to conclude that Plaintiffs have presented sufficient admissible evidence of facts, which, if true, would demonstrate that Upstream collection involves a Fourth Amendment seizure or search of Plaintiffs’ communications, and that the minimal intrusion upon Plaintiffs’ possessory and privacy interests is not far outweighed by Upstream collection’s promotion of the Government’s compelling interest in national security, then the Government, in the alternative, would still be entitled to summary judgment on Plaintiffs’ Fourth Amendment claims. That is so, because adjudication of those claims and the Government’s defenses thereto would require disclosure of national-security information subject to the DNI’s assertion of the state secrets privilege.

So said the government (ours) Monday in Jewel v. N.S.A. a case in which . . . . Aw, hell.  Here's part of the case summary from the US Court website.

This case involves claims by numerous citizens that their constitutional rights were violated by the United States government through unauthorized surveillance of their telephone and internet activity by the National Security Agency (NSA) and other government actors under the "Terrorist Surveillance Program" or TSP. They allege that this was done in concert with major telecommunications companies and outside of the procedures of the Foreign Intelligence Surveillance Act (FISA) and without authorization by the Foreign Intelligence Surveillance Court (FISC). 

So let's pare it down to its basics.

Jewel and the rest of the plaintiffs say that a government agency is violating the Constitution.  To which the government responds,

Maybe.
But if we are, it's for national security.
Or so we say.
Which means that the courts have to let us do it.

It's something called the "State Secret's Doctrine" which means, basically, that if the government says

We gotta do it.

The courts say

OK, then.

It would be wrong to call that hubris.   It pretends, after all, to be the Rule of Law.  

It's not.  Not even close.

But it's a very clear statement of the Law of Rule.