Patterico's Pontifications

1/21/2018

Musings on the Criminal Justice System: A Post Written By Request

Filed under: General — Patterico @ 12:19 pm

Recently, commenter BfC commissioned a post from me. The way this happened was actually a little confrontational at first. He complained that I wasn’t writing about something or other. I retorted that I would write about what he wanted me to write about (instead of what I wanted to write about) for the low low price of $100.

Frankly, it was mostly a way for me to say “screw you, I’ll write about what I want.”

But, to my surprise, he took me up on it.

BfC ended up being very generous; he didn’t specify a topic. When I pressed him to articulate a particular topic, he said he wanted an “interesting and in depth discussion here on the court system.”

For me, that is timely in a way. I’m a longtime gang prosecutor. I’ve been in the gang division for nearly nine years, which is decidedly on the long end for an office that tends to rotate people out of assignments after 5-7 years. Even before that, as a line D.A. in Compton, gang murders were a part of my assignment for three years, and I tried several cases that normally would have been tried by the gang unit. I’ve tried over 35 murder cases, which I say not as a boast, but by way of saying that I’ve been doing this a long time.

And I’m about to stop. At least mostly. At least for now.

Yes: my tenure in the gang division, where we regularly prosecute murders committed by gang members, is about to come to an end this month. Starting January 29th, I’ll be fighting habeas corpus petitions filed by people convicted of murder and given the death penalty. I’ll be keeping one of my gang murder cases, but my next gig is largely a writing assignment, with the occasional evidentiary hearing.

I could have easily stayed in gangs forever. The only thing I’d rather do is prosecute crimes committed against peace officers. But I had a pretty good run.

So now is actually a nice time to reflect on the system a bit, and I thank BfC for the chance to do so. (Of course, everything I say is as a private citizen, and is not intended to reflect the views of my office.)

BfC said in a comment:

As a “civilian”, I see the system as both being biased against “us” and at the same time, many times, unable to give any real form of justice (tossing evidence that was “illegally” collected and freeing somebody “guilty”, but at the same time no charging of the person(s) that apparently violated state and federal laws about gathering evidence.

It saddens me that, increasingly, members of the public express the opinion that they think the system is failing them or biased against them. Rather than address the exclusionary rule or other specific complaints BfC made about the system, I want to talk a little bit about the way the system treats the people I care about the most: the families of the murder victims.

I can’t begin to imagine what it is like to go through what the families of murder victims go through. The closest I have ever come is listening to victim impact statements at sentencings in murder cases. Most readers have never heard one of these. They are among the most emotionally gut-wrenching things anyone can sit through. The family of the victim stands up and addresses the court and the defendant and tells them how this murder has ripped their family apart. They are very, very hard to listen to. I can only imagine how hard they are to compose and to deliver.

Many people cry. Some are composed throughout. Some people forgive their son’s or brother’s murderer. Others tell the defendant in detail how they want to see the defendant raped in prison. (Judges often shut this sort of commentary down.) The most common sentiment I hear is a combination of sorrow for the defendant’s family (who are usually gathered there in the courtroom as well), together with some variant of this statement: “But you get to see your son. You can go visit him in prison. I’ll never get to see my son again. All I can do is go visit a stone in a graveyard.”

Generally, family members are happy with me by the end of the case. I always tell them to stay in touch, even after the case is over, and some do. I recently got a call from a victm’s relative wishing me a Happy New Year and telling me about her life these days, and it made my day.

But getting to that day of justice and closure is a long road.

Ultimately, what you see in your criminal justice system is a genuine attempt to balance the rights of the accused against the need for justice. The main complaint I hear from the families of murder victims is that the process takes too long. It’s fairly common for a murder case to take two years to get to trial. If issues come up, that can be longer. Meanwhile, various important anniversaries come and go, and come again. The decedent’s birthday. The day he died. Christmas, which is always hard for a family that has recently lost a loved one. These come up on the calendar every year, and they are some of the hardest times people have to face.

What kind of issues can come up that delay these cases? I’ll tell you about two that have caused me fits in trying to get cases to trial within a reasonable period of time.

One is when a defendant goes “pro per” (short for “in propria persona,” or “in his own person” — i.e. the defendant is representing himself). In a gang case, defendants often do this because they want to get their hands on “paperwork” (police reports, transcripts of interviews or court testimony and the like) that shows a witness has cooperated with police. Gangs often use this paperwork as justification to threaten, attack, or (rarely) even kill a witness. The witnesses most at risk tend to be gang members who are testifying, against their own gang or even a rival gang . . . but anyone can be at potential risk.

We have developed ways of dealing with this situation, which prevent defendants from getting their hands on this “paperwork.” I won’t bore you with all of the details; it involves watermarking documents, protective orders, and ensuring that only their investigators are allowed to possess the paperwork. But this tends to drag out a case, because defendants have fewer hours in the day during which they can access some of the key documents in their case.

Again, it’s a balancing act.

Another form of delay that has come up is Proposition 57, a measure passed by the voters that limits the ability of prosecutors to “direct file” on juveniles in adult court. Most of my career, if a 17-year-old gang member (for example) committed a murder, a prosecutor would have discretion to file on that juvenile in adult court. Now, a juvenile judge must make the determination whether to send the juvenile to adult court.

Some courts interpreted this measure as requiring juveniles that had already been filed on in adult court to be returned to juvenile court, for a determination as to whether they should be returned to adult court. In several cases of mine, I had one or more adult defendants in the same murder case as someone who was a juvenile when the murder was committed. Due to these court rulings, the cases get split up. The adult defendant has his case in adult court, and the “juvenile” has his case in juvenile court. Often, these “juveniles” are now 20+ years old. Maybe the case took a year or two to solve. Maybe the case had already been pending for a significant period of time in adult court. Sometimes both are true.

The law applies to anyone who was under 18 when they committed the crime, no matter how long ago that was. I have heard of 35-year-olds arrested on cold cases being sent to juvenile court to see if they should be treated as an adult!

The process for getting cases to adult court takes several months. It can take over a year, as defense attorneys order dependency court records, school records, disciplinary records, and the like, and hire psychologists and other mitigation experts to paint a picture of the defendant as a victim of circumstance who deserves to stay in juvenile court. Meanwhile, the adult co-defendant usually awaits the return of the juvenile for strategic reasons.

And the case ages. And the family members often come, month after month, to every court appearance. They come to the pretrials on the adult co-defendants. They come to the court dates on the juvenile case. And they wait. And those same anniversaries — of joyous events like births, and tragic events like deaths — come and go.

And still they come.

Again, this is a balancing act. The courts, or some of them, think this is what the People of the State of California voted for, when they voted Yes on 57. I think most of the public would be surprised to learn this is going on. But I don’t wear the black robes of the judges who make these decisions.

I don’t know if this answers any of BfC’s questions about the system, or whether it’s really there to protect the citizens. I still believe, despite all its flaws, that we have the greatest justice system ever conceived by man. Yes, the delays are often unconscionable. Yes, some of the rules of evidence, or about the conduct of a trial, might seem arcane or even counter to common sense. But many of those rules are an attempt, however imperfect, to balance those two critical concepts: the concept that we must protect society from dangerous criminals, and the concept that everyone is entitled to a fair trial under the principles of our Constitution.

It’s not perfect.

But like so many other people in society, we do our best.

[Cross-posted at The Jury Talks Back.]

75 Responses to “Musings on the Criminal Justice System: A Post Written By Request”

  1. Americans crave instant everything; a characteristic which has been both a blessing and a curse. And like the system in which you work and serve, it’s a blessing and a curse as well.

    This is the best damn post you’ve inked in years. Because it’s you.

    Well done, Mr. Frey; pass ‘GO’ and collect your $100.

    DCSCA (797bc0)

  2. Thank you, DCSCA.

    Patterico (115b1f)

  3. Very interesting post. Is your habeas work going to be all at the trial court level, or a mix of trial and appellate court post-conviction work? And is it all state, or a mix of state and federal?

    Thirty-five murder trials. Wow.

    Beldar (fa637a)

  4. A guy who enjoys the royal perk of proprietorial immunity would rather not discuss the problem of governmental employees violating the law and skating away as a result of their qualified immunity. Rather, he prefers to focus on the non-governmental criminals who don’t enjoy the privileges of immunity.

    Can’t say I’m surprised.

    Anon Y. Mous (19e1f2)

  5. Prosecutorial immunity.

    Anon Y. Mous (19e1f2)

  6. Thank you for your work and your explanation. That the system take seriously the responsibility if balancing competing interests, and find a way to make things work keeping those competing interests in mind, is all I can reasonably ask for as a citizen, and I am grateful that you do.

    aphrael (b51704)

  7. Very interesting post. Is your habeas work going to be all at the trial court level, or a mix of trial and appellate court post-conviction work? And is it all state, or a mix of state and federal?

    It’s all post-conviction, all state, and all at the trial court level.

    Thirty-five murder trials. Wow.

    The day I realized I had done more murder trials than Vincent Bugliosi did, I kind of did a double take and thought “wow” myself.

    Patterico (115b1f)

  8. A guy who enjoys the royal perk of proprietorial immunity would rather not discuss the problem of governmental employees violating the law and skating away as a result of their qualified immunity. Rather, he prefers to focus on the non-governmental criminals who don’t enjoy the privileges of immunity.

    Can’t say I’m surprised.

    That will be $200 for that post.

    Patterico (115b1f)

  9. I appreciate the insight into an imperfect system, which remains, as you say, the best one conceived by man.

    You mentioned recent changes that have resulted in delays, such as Prop. 57. With that in mind, if you could wave your magic wand, what procedures/processes would you like to see altered or changed that could result in a more effective system of balance between the defendant’s rights and the need for justice?

    Dana (023079)

  10. Great post, P, thank you. Many thanks to BfC.

    felipe (023cc9)

  11. Informative… good post!

    Colonel Haiku (2601c0)

  12. So… all in all, how has your work experience informed your political views?

    Colonel Haiku (2601c0)

  13. So… all in all, how has your work experience informed your political views?

    Not much at all, except that I tend to be less conspiratorial about how prosecutors in other agencies approach their jobs, because I have seen conspiracy theories advanced online about my own office that I know not to be true.

    Patterico (115b1f)

  14. Very insightful, so pro per is not merely a cost issue but a legal strategy. In another context perhaps moussaiou was crazy like a fix

    narciso (d1f714)

  15. Michael Skakel was tried in juvenile court in his 40’s or 50’s.

    Pinandpuller (16b0b5)

  16. Our host wrote (#7), of his new job responsibilities:

    It’s all post-conviction, all state, and all at the trial court level.

    May you create such exquisitely complete and persuasive records that the results you achieve are so clear-cut that even the Ninth Circus can’t dispute them!

    I know that’s a bit of an ask. But I can’t think, actually, of a better spot where one particular lawyer and writer of your skills and experience could do more to actually turn CA’s death penalty into something other than a long-playing bad joke. That is a very serious undertaking, one that can promise nothing but endless hard work against heavy odds; kudos and good luck.

    For your readers’ benefit: If the record from the first post-conviction proceedings is incredibly thorough, demonstrating that the defendant has gotten every reasonable opportunity for challenging his conviction that is due to him under the legal processes of our criminal justice system (“due process” for short) as part of that crucial first-conviction step, then the inevitable further reviewing courts — meaning state appellate courts, potentially POTUS (but not likely), then federal district courts, circuit courts, and SCOTUS again — are obviously more likely to affirm the results reached there. Our host’s meticulousness will deprive those appellate judges who are still effectively trying to overrule the SCOTUS and outlaw capital punishment entirely of their best excuses for doing so. In particular, there will be fewer occasions to reverse and bounce death sentences back down to either federal or state trial courts to gather more facts and hear new and different arguments — and that’s the ping-pong that results in much of the unconscionable delays between conviction and execution of sentence. So yeah: This is a big damn deal.

    Beldar (fa637a)

  17. *”crucial first-conviction step” ought to have read “crucial first post-conviction step.” Mea culpa.

    Beldar (fa637a)

  18. I’ll be fighting habeas corpus petitions filed by people convicted of murder and given the death penalty.

    Speaking if which, what is your opinion on prop. 66? Think it will result in some justice actually being meted out as proscribed?

    TheBas (f00165)

  19. @ TheBas: Our host has written many, many posts about Prop 66 already. The Search field to the right is your friend.

    Beldar (fa637a)

  20. Nice post. There are many more strategies for gaming the system. There pro pers will “change their mind” on the eve of trial and ask for counsel. Now most judges will appoint a stand-by counsel for this but many times counsel will say they need more time to subpena witnesses, etc.

    Another trick is for counsel to declare a doubt as to the defendant’s competency to go forward in trial. This can add a lot of time. Bottom line is that the delaying tactics wear down the witnesses and put a lot of stress on law enforcement who have to keep track of witnesses. In the case of Patterico’s gang trials, law enforcement has a tough time keeping up with the whereabouts of witnesses. Many cases are dismissed because the witnesses “have gone back to Mexico.”

    I would like to see a post about how Patterico feels about the Obama Administration’s politicization of the highest levels of the DOJ and FBI. It is shameful and to this date been ignored by the media because it mitigates the anti-Trump narrative.

    AZ Bob (f60c80)

  21. Dear Patterico: thank you for this fine post. I learned a good deal from it, as always.

    100 dollars seems cheap for the information!

    Simon Jester (c8876d)

  22. Nice post – very interesting.

    Have you ever referred to any of these neighborhoods where gangs have so much power as “sh**holes”?

    harkin (8256c3)

  23. I would like to see a post about how Patterico feels about the Obama Administration’s politicization of the highest levels of the DOJ and FBI. It is shameful and to this date been ignored by the media because it mitigates the anti-Trump narrative.

    AZ Bob (f60c80) — 1/21/2018 @ 1:57 pm

    Yes! Just sayin’…

    Colonel Haiku (2601c0)

  24. @ TheBas: Our host has written many, many posts about Prop 66 already. The Search field to the right is your friend

    Beldar,

    I believe TheBas is talking about a different Prop. 66, if you can believe that (there are so many propositions that the names keep coming around).

    The Prop. 66 I wrote about years ago would have weakened the Three Strikes law.

    The more recent one purports to streamline the death penalty process here in California. The jury is out as to whether it will.

    Patterico (f4a302)

  25. Good post. I find legal stuff fascinating, and would love to see more “inside baseball” stuff like this (consistent, of course, with what your professional rules allow). I suppose it might be less interesting to all the other lawyers here, though…

    I am a little puzzled by some of the jargon in the description of your new duties:

    I’ll be fighting habeas corpus petitions filed by people convicted of murder and given the death penalty.

    My understanding of habeas corpus petitions was that they are filed to prevent the authorities from holding people without charging them with a crime. I believe the term means “you have the body” (or person).

    But what relevance does habeas corpus have to someone who is incarcerated after conviction, and awaiting execution?

    My (as always, limited) understanding is that people on death row file a number of appeals alleging irregularities in their trial or sentencing, or 8th Amendment objections to the method of their execution. But it’s unclear to me how or if that has anything to do with habeas corpus.

    (I could Google this, I suppose, like everything else…)

    Dave (445e97)

  26. i love the tone of this post plus also the thoughtfulness

    happyfeet (28a91b)

  27. A political tangent ?

    Ben burn (b3d5ab)

  28. Re #24: Oh. [Channeling Emily Litella]: Never mind.

    Beldar (fa637a)

  29. “The more recent one purports to streamline the death penalty process here in California. The jury is out as to whether it will.”

    Too soon to tell huh? Still, what is your opinion on if it will work as advertised? Thanks in advance.

    Would hate to have searched Patterico’s entire history in vain on a bum steer. Or malicious snark, whatever the case may be.

    TheBas (f00165)

  30. @ Dave: There are two ways to attack a judgment of criminal conviction. The first, and ordinary way, is through the process of direct appeals, which start almost immediately after the judgment is rendered by the convicting trial court. But years later, after all those direct appeal deadlines have run, and any timely appeals under them have been resolved against the defendant, a defendant may still find a way back into court to make a “collateral attack” on that judgment of conviction. The classic ground would be newly discovered, previously undiscoverable evidence (like DNA testing) showing the defendant’s actual innocence.

    The way you make that collateral attack is through filing a writ of habeas corpus, asking the State to produce the body of the convict who’s alleging that he’s being detained under color of state law (the judgment of criminal conviction) in violation of rights secured to him by the state or federal constitutions. It’s the procedural tool for getting more bites at the apple, and especially in death penalty cases, it’s the rule rather than the exception for such collateral attacks to be mounted, successively, often repetitively, for decades.

    The collateral attack process starts at the state-court level, because before you can seek relief under the federal habeas corpus statute, 28 U.S.C. § 2254, the petitioner must have exhausted his state-court remedies (i.e., have asked the state courts to fix the problem before asking the federal courts). And those are the petitions that Patterico will be responding to and, as necessary, handling evidentiary hearings upon.

    Typically the ruling of that state trial court on the habeas corpus petition will go up through the state-court system’s appellate courts, and potentially (but rarely) be heard by the SCOTUS if it decides, by granting a petition for a writ of certiorari, to review the highest state-court’s refusal to grant the habeas corpus relief (releasing the prisoner, or more frequently, ordering his release unless promptly retried or, sometimes, re-sentenced by the State).

    But then the convicted defendant shifts to federal court, asking under the federal habeas statute referenced above, and the decision on that goes up through the federal circuit courts, whence once again the convicted defendant can seek SCOTUS review via certiorari.

    Here’s another one of those handy Congressional Research Service explainers. This one is more than a decade old but still probably mostly accurate.

    Beldar (fa637a)

  31. Dave, as an illustration, here’s a federal appellate death penalty opinion I worked on as a law clerk in 1981, which then went on to be overturned by the en banc Eleventh Circuit, which was then overturned by the SCOTUS, in what’s now the central American precedent on ineffective assistance of counsel, Strickland v. Washington. In part I-A, my judge described David Washington’s original conviction and sentencing in the Florida state courts and then the direct appeal from that; then the state-court post-conviction habeas proceedings. And then, in part I-B, she described the federal district court proceedings (which had included an evidentiary hearing on Washington’s claim of ineffective assistance of counsel during this trial) which had led to the appeal this three-judge circuit-court panel was resolving in the opinion I worked on.

    Beldar (fa637a)

  32. Thanks Beldar.

    I’m curious, since the majority of these habeas appeals must be (in effect) frivolous, no? (I assume if there were solid exculpatory evidence, Patrick would not be fighting to have an innocent person put to death…) But since (as you’ve described it) this is not the usual haggling over nuances of procedure that takes place in direct appeals, where does the evidence come from?

    Most defense attorneys obviously wouldn’t manufacture false physical evidence. I guess coming up with a new witness who casts some doubt on an aspect of the prosecution’s narrative is the game?

    Dave (445e97)

  33. That will be $200 for that post.

    Pay $200 to read you take up the “wrong” side of the issue? I think I’ll pass.

    Anon Y. Mous (19e1f2)

  34. @ Mous: His point, regardless of his position on the issues, is that he blogs about what he chooses, not about what you’d choose. You’re very funny — demanding that he write about something you choose, and then insisting that would be valueless.

    I have a solution for your problem: Stop reading this blog.

    Beldar (fa637a)

  35. Mr. Mous is a good pickle everybody knows that

    happyfeet (28a91b)

  36. @31 Ah, I see – accusing your legal counsel of being incompetent is another angle.

    Dave (445e97)

  37. @ Mous: His point, regardless of his position on the issues, is that he blogs about what he chooses, not about what you’d choose. You’re very funny — demanding that he write about something you choose, and then insisting that would be valueless.

    I have a solution for your problem: Stop reading this blog.

    Instead of telling others what to read and not to read, perhaps you should brush up on your reading comprehension. The genesis of this post was what was quoted by Patterico from commentor BfC. In that comment, BfC specifically brought up the issue of misconduct by government employees. Patterico used that as a jumping off point and then completely ignored what he was purportedly responding to.

    So, I called him on it. I never told him what to blog about, something that you would know if you had carefully read my comments.

    Anon Y. Mous (19e1f2)

  38. This is the best damn post you’ve inked in years. Because it’s you.

    I dropped into the comments section basically say just that. I usually avoid the dreaded “wall of text” but I read every word of this fine post. As DCSCA says, your heart is in it. More please.

    And I think you’d make a fine judge. Clearly you understand the responsibilities.

    Kevin M (752a26)

  39. The more recent one purports to streamline the death penalty process here in California. The jury is out as to whether it will.

    I’m willing to predict. 1) it will take 5 years to decide it. 2) It will be struck down for vague reasons. 3) Everyone given the death penalty under it will have their sentences commuted.

    Kevin M (752a26)

  40. Kevin M. wrote, “And I think you’d make a fine judge. Clearly you understand the responsibilities.”

    While true, the ethical cannons of judges would greatly restrict Patterico as a blogger.

    AZ Bob (f60c80)

  41. @ Dave: I’m guessing here, but my confident guess is that part of Patterico’s role in this new job assignment will include assessing, in the first instance, whether a given petitioner might be right. His duty as a prosecutor is always to do justice, not to always win (or here, uphold) convictions.

    Certainly the overwhelming majority of collateral attacks on criminal convictions are unsuccessful, yes, and many of those collateral attacks are frivilous. Explaining how and why, however, is something of an art form, and if you skip steps or don’t show your work, that’s what Judge Stephen Reinhardt and his ilk at the Ninth Circus will seize upon in their never-ending campaign to slow-walk all death sentences until the defendant dies of natural causes. On those frivilous cases, or even on the nonfrivilous ones that still don’t merit a retrial, our host will hopefully create a record and offer a rationale that will convince the judge hearing the petition to decline habeas relief and explain all the reasons why. And death cases do, and I believe should, get special scrutiny because the execution of sentence is irrevocable, unlike sentences of incarceration.

    Our host has a really, really tough job, but a righteous one.

    Beldar (fa637a)

  42. Dave, as an illustration, here’s a federal appellate death penalty opinion I worked on as a law clerk in 1981, which then went on to be overturned by the en banc Eleventh Circuit, which was then overturned by the SCOTUS, in what’s now the central American precedent on ineffective assistance of counsel, Strickland v. Washington.

    Wow, you worked on the Strickland case? That is bread and butter for people doing habeas. (I’ve done it before so I know.) That is the case every single prosecutor cites in an ineffective assistance case — and the facts are very, very strong for someone arguing that trial counsel should have wide leeway in making strategic decisions.

    Patterico (115b1f)

  43. oh and thank you to Mr. BfC too

    happyfeet (28a91b)

  44. lol Mr. Bob

    there’s no such thing as ethical canons of judges anymore

    happyfeet (28a91b)

  45. Instead of telling others what to read and not to read, perhaps you should brush up on your reading comprehension. The genesis of this post was what was quoted by Patterico from commentor BfC. In that comment, BfC specifically brought up the issue of misconduct by government employees. Patterico used that as a jumping off point and then completely ignored what he was purportedly responding to.

    When I specifically asked him for guidance, he talked about the ways that the justice system fails the public, such as the exclusionary rule being used to throw out probative evidence but cops not being prosecuted for violating the Fourth Amendment. But he was very specific about saying that he wanted a heartfelt post about the system, and the details mattered less. I started out addressing the exclusionary rule issue, but given my present circumstances I decided to go with this topic instead.

    If BfC had said: “I want a post about prosecutorial immunity” and made no bones about it, that’s what he would have gotten. But he didn’t. So don’t tell me I ignored what he said. I tried my very best to do what he wanted.

    Patterico (115b1f)

  46. Dave, the main difference between an appeal and a habeas filing is that the appeal is based on the record in the case: the transcript and the exhibits introduced into evidence. The habeas filing goes outside the record. For example, a lawyer could choose not to pursue a particular defense, and the reasons he chose not to pursue it might never appear in the record. So a claim that he was constitutionally ineffective in failing to investigate or present that defense could be raised only in a habeas petition, where an evidentiary hearing (if ordered by the court) can develop the facts to see if there is merit to the claim.

    Patterico (115b1f)

  47. While true, the ethical canons of judges would greatly restrict Patterico as a blogger.

    With only a year or so until he has to start setting up his campaign for the 2020 presidential primaries, I figure Patterico’s days as a blogger are numbered regardless…

    Dave (445e97)

  48. @ Dave: I’m guessing here, but my confident guess is that part of Patterico’s role in this new job assignment will include assessing, in the first instance, whether a given petitioner might be right. His duty as a prosecutor is always to do justice, not to always win (or here, uphold) convictions.

    When I did this work before, it was during the immediate aftermath of the Rampart scandal. Many people came forward and pointed to how their convictions rested on the word of undeniably dirty cops. We investigated and conceded many of those cases. So I don’t mean to give the impression that it’s automatic that we will always oppose a writ. In practice, in most cases, we probably will — but as Beldar says, my primary goal is always to seek justice.

    Patterico (115b1f)

  49. If BfC had said: “I want a post about prosecutorial immunity” and made no bones about it, that’s what he would have gotten. But he didn’t. So don’t tell me I ignored what he said. I tried my very best to do what he wanted.

    Granted, BfC didn’t say anything about prosecutorial immunity. He mentioned evidence being thrown out that had been illegally collected and the perpetrators of the illegality walking away, and that is typically done by cops. Cops who have limited immunity of their own. I snarked about prosecutorial immunity, since you are a prosecutor. You frequently tilt towards the side of cops. My point being, that you, someone who has his own form of immunity, would be unlikely to spend much, if any, time criticizing a system in which cops get immunity for their illegal acts. And, you did completely ignore that part of BfC’s comment.

    Of course, you have every right to do so. You responded to the parts of his comment that you were interested in responding to and ignored the parts you didn’t care to respond to. I merely made note of it alond with my supposition of why you ignored that portion of his comment.

    Anon Y. Mous (6cc438)

  50. Kind of ironic that the prosecutor has to prove that the defense counsel (the adversary he “defeated” during the trial) was effective.

    Although I guess you won’t be the one who prosecuted the cases, so there is some degree of detachment.

    Dave (445e97)

  51. And, you did completely ignore that part of BfC’s comment.

    Of course, you have every right to do so. You responded to the parts of his comment that you were interested in responding to and ignored the parts you didn’t care to respond to.

    He threw out many different possible topics and essentially said to pick something along those lines and I did. It’s unfair of you to complain that I therefore “ignored” the others. He did not say “write a post about all these topics.”

    Patterico (115b1f)

  52. 47, or more to the point…is there still time for Patterico to file for Gov, or is he prepping for Founding Father status in New California? Maybe RPV can be like East Prussia, if he’s not inclined to move.

    urbanleftbehind (e029d3)

  53. R.I.P. Jim Rodford, bass player at different times for Argent, The Zombies, and The Kinks

    Icy (bd749c)

  54. Thank you for your service and a fascinating read, Patterico. I think there’s a book inside you just waiting to get out if you could ever find the time.

    crazy (d99a88)

  55. He threw out many different possible topics and essentially said to pick something along those lines and I did. It’s unfair of you to complain that I therefore “ignored” the others. He did not say “write a post about all these topics.”

    ++++

    I honestly am not trying to be unfair to you. First I should say, I have not read BfC’s original comment and I don’t know the context in which it originally was made. I just have the portion you quoted in the body of this post. That said, it seemed limited to two sides of the same coin regarding illegally collected evidence:

    1) the current fix is to throw out the evidence, letting the accused off because the evidence is out.
    2) Letting the cops who broke the law in collecting the evidence walk away with no punishment.

    My understanding of his point is that it is a twofold injustice. The original criminals walk free, likely to commit more crimes, while meanwhile, the cops are out there breaking the laws themselves, with no consequences.

    I think it is fair to say, that at least as far as the portion of BfC’s comment that you posted, you did not respond to either of his points. Maybe there was more in his original comment and that’s what you had in mind, but that’s not what you quoted.

    I didn’t see BfC propose a solution, but one way would be to allow the illegally collected evidence. To dissuade the cops from breaking the law to get the evidence would be to strip them of their immunity and prosecute them for their own violations of law. Win, win. We get both types of criminals off the streets.

    Anon Y. Mous (6cc438)

  56. I dunno about “the best [] post [] inked in years”, but it is a dam’ fine post.

    My best wishes for every success in your new assignment.

    nk (dbc370)

  57. Our host asked,

    Wow, you worked on the Strickland case? That is bread and butter for people doing habeas. (I’ve done it before so I know.) That is the case every single prosecutor cites in an ineffective assistance case — and the facts are very, very strong for someone arguing that trial counsel should have wide leeway in making strategic decisions.

    Yup, I was Judge King’s (then “Randall”) clerk on that panel opinion and was involved in its drafting (per her instructions and subject to her supervision, of course).

    It was already a very high-profile case, because there was already a major split between several other circuits (footnotes omitted):

    There is no substantial consensus among the circuits as to the kind or degree of prejudice that a petitioner must show before he may obtain federal habeas relief on ineffective assistance grounds; yet for at least some types of cases, a large majority of the twelve circuits appear to require a showing by the petitioner of some prejudice. The Third, Eighth, Ninth, and District of Columbia Circuits clearly require a showing of prejudice, and have well-developed positions on the topic. The Second and Fourth Circuits also clearly require a showing of prejudice, although their positions on this issue are not as fully developed. There are some indications that the First and Seventh Circuits also require a showing of prejudice. The Tenth Circuit has addressed the issue, but appears to be undecided. Only the Sixth Circuit appears to have rejected the prejudice requirement altogether, although there are reasons to believe that it is reconsidering its position.

    So the law was all over the place, and urgently needed clarification from the SCOTUS.

    The case came to the Fifth Circuit during the final year of the “old Fifth” that included Alabama, Georgia, and Florida, but the Fifth Circuit was already sitting in sets of panels drawn exclusively from judges living either in what would remain the Fifth Circuit, “Unit A,” or those who’d be part of the new Eleventh Circuit, “Unit B.” Judge King, characterically for her, was already current on all her existing cases and had volunteered to sit on extra oral argument panels, though — which is how she ended up sitting on a “Unit B” panel as a “visiting judge,” not from another circuit, but from “Unit A” (the current Fifth). After the oral argument in Atlanta (and no, I didn’t get to go, I was home doing research and drafting on other cases, because she thought letting clerks watch oral argument was too big a boondoogle), the senior judge in the majority asked her to write the majority opinion for the panel, over an expected dissent. So that’s how I came to work on the case.

    The dissenting judge, however, then led the charge to have the panel opinion re-heard by the full “Unit B” (now the Eleventh Circuit) sitting en banc, and as a “visiting judge” for purposes of that en banc consideration, Judge King didn’t get to participate in the discussions, nor in the en banc oral argument thereafter. The resulting opinion from the en banc Eleventh Circuit was badly fractured, and if anything, muddled the law worse than it had been based on the pre-existing circuit split.

    The facts were amazingly straightforward, with zero doubt whatsoever of David Washington’s guilt, and the proceedings before the case got to the Fifth Circuit were perfect to set up the prejudice analysis clearly. Even before the Unit B en banc opinion, the panel opinion I linked was written with the full expectation and, indeed, the explicit hope that the SCOTUS would take the case to resolve the split. And ultimately, they did — which I admit to have taken spectacular pleasure from having helped, in a small but meaningful part, to maneuver.

    The panel opinion holdings on prejudice aren’t good law anymore — the SCOTUS created its own new standards, reasoning from the Federal Rules of Criminal Procedure, effectively constitutionalizing them, which never had been argued by anyone and none of the prior circuits had used. (Only the SCOTUS gets to make stuff up from whole cloth with quite that much panache.) But the SCOTUS opinion was nevertheless a lot closer to the original panel opinion than to the Eleventh Circuit’s en banc opinion, so I felt that Judge King had been well vindicated.

    You’ll find amusing the last part of the panel opinion, Patterico — part II-D, dealing with the decision by the prosecutors at the evidentiary hearing in federal district court to call to the stand the sentencing judge who’d imposed the death penalty after Washington’s guilty plea and waiver of a jury for punishment. They had him testify that even if the original defense lawyer had done everything the habeas lawyers said he ought to have done in order to be constitutionally effective (basically, call a lot more mitigation witnesses, both lay & expert), he (the trial judge) would still have imposed a death sentence. The part of the panel opinion disallowing such “expert testimony” is still good law, I think. So don’t go calling any sentencing judges to guess, using hindsight, what they might have done even if the defense lawyer had been better! They’re incompetent witnesses on that, as a matter of law. (Not that that would likely have ever occurred to you, or anyone else outside of Florida, maybe.)

    But I always have thought this case presented the classic fact pattern to illustrate the point that a constitutionally competent defense lawyer must have the freedom from second-guessing to allow him to make considered and reasonably well-informed tactical decisions like David Washington’s trial counsel made: He knew that judge very, very well. He’d handled capital cases before that judge. He believed in absolute good faith (and he was probably correct) that Washington had absolutely, positively no chance at escaping capital punishment if a jury decided his fate. So he counseled Washington to throw himself on the mercy of the court in sentencing, and to show extreme contrition, and to hope that his lack of past criminal record, along with that contrition, might prompt the sentencing judge to find that mitigating factors outweighed the aggravating ones, precluding a death sentence. This overall strategy didn’t work, but it was a thoroughly defensible, and arguably the best available, strategy. And the panel opinion, at least, was deliberately written to give that full perspective — using not 20/20 hindsight, but what was known by the defense lawyer when he had to make the critical decisions.

    Our panel opinion, however, would have remanded the case for reconsideration by the federal district judge with the benefit of the legal standards we were announcing, under the traditional rule that you don’t guess what the district court might have done differently had the law been clear, but you give it a chance to use the newly clarified law before second-guessing that. To my surprise — and continuing disapproval, actually — the SCOTUS made its own independent decision from the record, using its own newly-announced standards for what must be proved to justify ineffective assistance relief, that Washington should die. And he was indeed promptly executed, which I’m nevertheless confident would have been the eventual result even if the case had been remanded.

    Beldar (fa637a)

  58. anyone else outside of Florida, maybe
    Oh, we can be quite inventive down here.
    Would this happen in Texas?
    http://www.orlandosentinel.com/news/politics/os-florida-supreme-court-question-20161230-story.html
    The story isn’t quite clear: the justices will retire at the exact same moment Scott’s own term ends.
    Scott is enough of a jerk that he might appoint the new justices even if he’s succeeded by another Republican.

    Kishnevi (a722fb)

  59. Well they have been feckless pack of weasels, so I won’t miss them, chilies got in the second time because is a scurrilous campaign he waged against jeb, that was only less fetid than the Kennedy one against Rooney the same year.

    narciso (d1f714)

  60. Shocking the sentinel doesn’t mention of that, in part because its a tribune paper, same as the dog trainer.

    narciso (d1f714)

  61. We have the justice we deserve. We do not deserve the likes of a highly intelligent, dedicated, and convicted, man like Pat representing us at the bar.

    We have seen the enemy and he is us. We demand “Justice!” for heinous acts, and in the next breath, we scream that actual enforcement is “Not faaaaaair!” And, of course, everyone has “Riiiiiiiights!!!!!!”

    The proof in the pudding is that we manifestly refuse to pay what it costs to incarcerate felons. Pat, and others like him, scratch and claw to convict these miscreants, and then sentencing, largely due to overcrowding, becomes farce.

    Thank you, Pat. For everything.

    Ed from SFV (3400a5)

  62. @ kish (#58): Nope, wouldn’t happen in current Texas, at least at the top. The Dems haven’t won a statewide election since Bob Bullock won the spot as Dubya’s lieutenant governor in 1994, so the entire Texas Supreme Court and Texas Court of Criminal Appeals are filled with Republicans, most of them originally appointed to vacancies (created by resigning GOP judges) by either Rick Perry or Greg Abbott, who then run either unopposed or else to easy general election wins. In 2016, the GOP incumbents on those top two benches who were then up for reelection all won with statewide percentages between 54-56%; in 2014, the off-year, the GOP incumbents all won with 60% or more.

    Beldar (fa637a)

  63. While true, the ethical cannons of judges would greatly restrict Patterico as a blogger.

    I imagine that he would have to withdraw from blogging. I’d miss that, but I’d hate to see it stop him from the next leg of his career. Ir’s been what? Fifteen, 16, years?

    Kevin M (752a26)

  64. The proof in the pudding is that we manifestly refuse to pay what it costs to incarcerate felons.

    Nor are will willing to use 18th Century justice.

    Kevin M (752a26)

  65. There are two ways to become a judge.

    One is to be appointed by the governor. I have not tried to do this because Jerry Brown would never appoint me. Not least because I have criticized him harshly on this blog for years.

    The other way is to be elected. That requires putting up a bunch of money and politicking. I have no desire to do either.

    I’m staying a D.A. I like it.

    Patterico (f4a302)

  66. One is to be appointed by the governor. I have not tried to do this because Jerry Brown would never appoint me. Not least because I have criticized him harshly on this blog for years.

    Hey, the president also appoints judges! You could be …

    Oh wait. Damn.

    Never mind.

    Dave (445e97)

  67. Pat, and others like him, scratch and claw to convict these miscreants, and then sentencing, largely due to overcrowding, becomes farce.

    In California this is increasingly true. The legislators have made a liar out of me. I told families for years that although I could make no promises because of appeals and the like, the defendants I had convicted would almost certainly never get out of prison. Under laws at the time, that was true. But they’ve changed the law. Now just about every murderer will have a chance at parole no matter how many years to life (150 to life, 200 to life) they were sentenced to.

    Patterico (115b1f)

  68. All you can do, Patterico, is your best where you are. And that’s plenty good.

    Simon Jester (c8876d)

  69. The proof in the pudding is that we manifestly refuse to pay what it costs to incarcerate felons.

    Nor are will willing to use 18th Century justice.

    Said like it’s not a feature.

    Ben burn (b3d5ab)

  70. If Donald Trump had kept his promise that crime and violence would end on January 20, 2017, there would be no more problems of prison overcrowding.

    How many murderers are back on the street thanks to his failure to keep that promise?

    Dave (28ff86)

  71. I don’t know Dave. How many? It’s not bad enough commies and leftists act like everything bad is Trump’s fault we really need you reiterating he broke his promises unlike every other politician since Julius Caesar.

    Rev.Hoagie (6bbda7)

  72. And we know how it ended for Julius..

    Ben burn (b3d5ab)

  73. It’s not bad enough commies and leftists act like everything bad is Trump’s fault we really need you reiterating he broke his promises unlike every other politician since Julius Caesar.

    Sic semper tyrannis

    But Hoagie, shouldn’t we insist that

    a) politicians don’t make promises that they can’t keep, to con people into voting for them, and
    b) politicians keep the promises they do make OR they forthrightly acknowledge their errors when they can’t?

    When Trump publicly admits that his promise to end crime and violence was a cynical lie, and apologizes, I’ll stop talking about it.

    When Trump publicly admits that every promise about Mexico paying for 100% of the wall was a cynical lie, and apologizes, I’ll stop talking about it.

    When Trump publicly admits that his promise to pay off the $20T national debt in eight years was based on total ignorance of how the economy works, and apologizes, I’ll stop talking about it.

    Ditto for the dozens, if not hundreds, of other cynical and/or ignorant lies he told to con people into voting for him.

    Until then, I’m sorry, but I think your anger is misdirected.

    Dave (28ff86)

  74. I’m grateful for your service Pat. All the best

    EPWJ (4dc563)

  75. I am very happy that Patterico wrote a post that came from his heart and speaks to the people he hopes to help find closure in a situation where closure is impossible.

    Just to be clear, this is what lead up to the post:

    How about a post on corrupt California Prosecutors that necessitated a new California law to make their practices “more illegal”:

    https://www.huffingtonpost.com/entry/california-law-prosecutorial-misconduct_us_5615a45fe4b021e856d386a7

    California prosecutors who deliberately withhold evidence from defense attorneys may face harsher punishment under a new law passed after a wave of misconduct scandals.

    The law, authored by state Assemblywoman Shirley Weber (D) and signed into law by Gov. Jerry Brown (D) over the weekend, bolsters a judge’s ability to boot a prosecutor who withholds evidence from a case. Additionally, if other employees of the prosecuting attorney’s office participated or sanctioned the suppression of evidence, the court is authorized to eject the entire office. The law requires the court to report violations to the state bar, which licenses attorneys.

    “The bill seems like a step in the right direction,” Alex Kozinski, former chief judge of the Ninth Circuit Court of Appeals, told The Huffington Post. “It seems to give a great deal of discretion to trial judges, so its effectiveness will depend on the degree to which those judges are willing to exercise that authority.”

    It already was against the law for prosecutors to willfully withhold evidence. Nevertheless, there has been a wave of highly publicized cases in which prosecutors have been accused of violating the rights of defendants, including in Riverside, Kern and Orange counties.

    The Orange County District Attorney’s office continues to face fallout from an ongoing scandal linked to a tainted jailhouse informant program. Deputy Public Defender Scott Sanders has argued that county prosecutors have routinely violated the law for at least 30 years by selectively presenting evidence obtained from a jailhouse informant network. Sanders’s revelations have caused multiple murder cases to fall apart, and some accused murderers have gone free.

    The allegations of misconduct culminated earlier this year, when Superior Court Judge Thomas Goethals ejected the entire county prosecutor’s office ― all 250 prosecutors ― from a high-profile mass murder case. Goethals said at the time that the government had committed “significant” violations of due process and called aspects of the office’s behavior a “comedy of errors.”

    Orange County District Attorney Tony Rackauckas has maintained that no one in his office intentionally behaved inappropriately. His office has assembled its own commission to investigate misconduct. But some legal experts continue to call for a sweeping federal investigation.

    BfC (5517e8) — 12/26/2017 @ 11:35 am

    And Patterico’s reply:

    How about a post on corrupt California Prosecutors that necessitated a new California law to make their practices “more illegal”:

    For $100 I will write the post you want me to write, rather than the ones I want to write.
    Patterico (266a25) — 12/26/2017 @ 11:35 am

    and:

    Patterico,

    This link work for $100 (I don’t do Paypal)?

    Credit Card donations (PayPal takes a bite):

    Very tempted if you will follow through.

    I am not against prosecutors in general–I believe that many of the procedures that have been implemented by law and courts have made things very difficult for them. But there does appear to be a “push back” by everyone involved to “get around” the issues… And it is not pretty.

    -Bill
    BfC (5517e8) — 12/26/2017 @ 11:53 am

    following:

    I am not against prosecutors in general–I believe that many of the procedures that have been implemented by law and courts have made things very difficult for them. But there does appear to be a “push back” by everyone involved to “get around” the issues… And it is not pretty.

    -Bill

    BfC (5517e8) — 12/26/2017 @ 11:53 am

    It should work. I will follow through. You may have to be patient because I am on vacation but if you can wait a few days I will keep my word.
    Patterico (7a5a02) — 12/26/2017 @ 12:09 pm

    background:

    Patrick,

    I have sent the ~$100 to your account.

    Regarding what your write–Your choice. I was trying to get your attention and your ideas about the present legal system–The major problems and what you see as possible solutions to move forward.

    I understand that you see a very flawed Trump as president. He was my number 4-6 or so choice. But, based on what he has done–A 29 year old quote where Trump said being weak is dangerous–You can see that he has taken those thoughts to heart. Just implementing the law as written for immigration has dramatically reduced illegal immigration. Being “compassionate” for the children has created a huge problem both here and back in their home countries.

    Angela Merkel’s compassion for immigrants has ended the lives of roughly 3,770 people (just in 2015 Mediterranean crossings). Different “reasons”, but the same results as Tiananmen Square (mass deaths).

    http://www.bbc.com/news/world-europe-34131911

    Most of these trips across The Med to Italy probably originated in Libya. The same country that Hillary Clinton as Sec. of State to Obama, “We came, We Saw, He Died”. A real thigh slapper.

    https://www.youtube.com/watch?v=FmIRYvJQeHM

    If the “system” is broken (which I believe it is–Qualified Immunity, Overcharging and Plea Bargaining, Taking years to make a decision on something that happened in a few seconds such as shootings; both civilian and Law Enforcement, Little in the way of responsibility–How about if a judge is overturned by a higher court [on the evidence], they lose their job).

    If anyone else here (or you, Patric) has better ideas for this article, please feel free. I am just one person.

    Take your time and enjoy your family vacation.

    Warmest Regards,
    -Bill
    BfC (5517e8) — 12/26/2017 @ 1:00 pm

    There is more, but Patterico’s response:

    BfC,

    I sat down to take a look at the post you would like me to write, and note that the post you linked is over two years old. There are actually new laws concerning discovery obligations, and I could write about some of that if you like. But I’m not sure you want a post on two-year-old changes to the law. If you do, I’m happy to write it.

    If you want an in-depth critique of the Orange County D.A., I’ll return your money, because I don’t trust the media on such stories and writing a fair and in-depth post would take far too much time. But I’m happy to talk about changes in the law and the need for them. Let me know.
    Patterico (45a4d7) — 12/28/2017 @ 8:02 am

    Our back and forth was in this thread:
    http://patterico.com/2017/12/26/new-reports-chinas-tiananmen-square-response-killed-10000/

    I (probably) was not going to get the post I asked for (2 year old article and Patterico not trusting the source–In a post wholly based on a 3 decade old article that did not even have a link to the original article (I had to supply that) and, at best, ambiguous language quote from Trump/Reporter. I had even asked the same question here 2 years ago about the same Orange county folks… And I have asked a few times here and even Beldar replied to me a sometime ago, about qualified immunity (part of the overall questions I was asking).

    My purpose was not to get Patterico to dance to my $100. It was to get a better understanding from his point of view about the, in my humble opinion, “broken” justice system. From an engineering point of view, the “system” supports the input to output of real things(specifications through manufacturing and to the end customer–and hopefully not killing the end customers).

    I fear (from my limited point of view) that the present law & justice system is all about process and very little little about justice.

    I am trying to wrap up the discussion that lead up to this post.

    I am very happy to read that Pat has enjoyed writing “my requested post”. End of (the never ending) story.

    Very sincerely,
    -Bill

    BfC (5517e8)


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