Radley Balko and the inexperience of the Justices when it comes to criminal law

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book “Rise of the Warrior Cop: The Militarization of America’s Police Forces.”

My guess is that brother Balko and I agree on very little. But that is not true for Mr. Balko’s The Supreme Court’s massive blind spot, Washington Post (January 22, 2015).

Mr. Balko asserts:

This term, the Supreme Court heard two cases involving the actions of police officers during traffic stops. How the court comes down on the two cases will likely have significant repercussions far beyond the facts of the cases themselves. The court’s decisions could affect how police target motorists, which motorists they target and how often, and how they interact with motorists once they’ve pulled them over. The decisions will likely affect how police profile motorists to look for drug couriers, who gets detained and searched, and who has property confiscated through civil asset forfeiture.

Here’s the problem: You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court.

(Emphasis added)

Mr. Balko is correct. And that is a big problem no matter your view about how criminal law cases should be resolved (or even taken up) by the Justices. There is a real world out there where cops interact with citizens. The Justices have no clue about how that world actually functions.

RGK

*Balko adds: “(*This post doesn’t look into that case [Rodriguez v. United States] specifically, but to see how the theme of the post applies to it, see this analysis by New York criminal defense attorney Scott Greenfield.) As frequent readers of this blog know, Rodriguez comes from the District of Nebraska.  As Scott noted, “But then an independent, intervening naked mud-wrestling match broke out, and being quite a fan, I sat on the sidelines, munching popcorn, watching intently.  In the comments to my post, Judge Richard Kopf and Lawprof Orin Kerr squared off.  It was a fascinating, and revealing, discussion.”

 

Eagles, Eiseley, Ed and time

My former law partner Ed, surely one of the best human beings ever, has a farm adjacent to the J-2 return to the Platte river from the small hydroelectric power plant near Lexington, Nebraska. It is a section of ground (640 acres) that borders the river and the return to the river from the power plant. It is some of the best agricultural land in the world.

Ed keeps the portion of the land near the river pristine. It is a magical place. I used to take the children there to watch wild life particularly the bald eagle. Eagles gather there all year. In the winter, the eagles are there in abundance particularly because the irrigation canal downstream of the power generating station and the river itself remain open as a result of warm water leaving the power plant.

Some of you may know of my love of Loren Eiseley’s work.  Born in Lincoln, Nebraska, and first educated at the University of Nebraska where he received degrees in both English and Anthropology, Loren Eiseley (September 3, 1907 – July 9, 1977) was a world-renowned anthropologist and a writer of unsurpassed talent. He taught and published essays, poetry and books from the 1940s through the 1970s. See my earlier post entitled All the strange connections and the classics. Eiseley was fascinated with time and the relationship of time to our physical world and our place therein.

I was reminded of Eiseley, my partner Ed, my children and the passage of time when I viewed the following photo of bald eagles near Ed’s place taken just two weeks ago.  The image took my breath away and instantly transported me back in time.

Photo credit: Lori Potter.  National Federation of Press Women President Lori Potter has been a staff writer, photographer and columnist for a small daily newspaper in south-central Nebraska, the Kearney Hub, for more than 25 years.

Photo credit: Lori Potter. National Federation of Press Women President Lori Potter has been a staff writer, photographer and columnist for a small daily newspaper in south-central Nebraska, the Kearney Hub, for more than 25 years. See potterspix.

Some things are more important than others.

RGK

On the death of Scott’s mother

Phyllis Joy Greenfield, 1931 – 2015.  William Shakespeare is reputed to have said that the eyes are the window to one’s soul. Take a look at the photo of Mrs. Greenfield standing between her son and husband, and you will understand the truth of the bard’s observation.

RGK

 

Off to Omaha to “swear in” a new Congressman

Photo credit: KENT SIEVERS/THE WORLD-HERALD

Photo credit: KENT SIEVERS/THE WORLD-HERALD

In a first, at least as I remember it, our court will sit en banc this morning to conduct a ceremonial “swearing-in” ceremony for Rep. Brad Ashford, D-Neb, the new Congressman from Omaha.  He is also a lawyer.

Are ceremonies like this one a good thing? I don’t know for sure, but I think so. In any event, they seem harmless. Our court has always tried to maintain respectful relations with our Congressional delegation (except when I told Congress to go to hell), and this seems like a natural extension of that respectful relationship. What do you think?

For more on Mr. Ashford see here and here.

RGK

An explanation, but maybe a weak one

Yesterday I posted about the Ninth Circuit oral argument in the Baca habeas case. I introduced the post this way: “I am blessed to serve in a federal court with federal prosecutors who are by and large both smart and honest. Sure, there are some dolts, but at least they are honest idiots.” In other words, I distinguished between my experience with federal prosecutors, and the apparent misbehavior of one or more state prosecutors in the Baca matter.

That distinction drew sharp criticism.  SHG at Simple Justice wrote:

Damn those state court prosecutorial scum. Thank the lord that nothing like that could ever happen in federal court, right Ted Stevens? Well, at least it could never happen in a Nebraska federal courtroom, because there may be some dolts, “but at least they are honest idiots.”

Sure.

It’s no longer deniable that it happens, but that doesn’t change the deniability of it ever happening right in front of our faces but we didn’t catch it. Or we didn’t want to catch it. Or we like those guys, so we just can’t bring ourselves to believe that they could do something so wrong. After all, people we like never do anything wrong.

Better to be an honest idiot than lying prosecutorial scum.

Another commentator on Twitter, added that my introduction was a “laughably bogus conceit that . . . starts off with a paean to the honesty+wonderfulness of fed prosecutors.” bmaz (12:35 PM – 24 Jan 2015).

The author of the article that I linked to in my earlier post commented, “IF you think it doesn’t happen–and DELIBERATELY–in the federal system, read LICENSED to LIE: Exposing Corruption in the Department of Justice. Unfortunately, it does. No one is immune from the targeting that is going on now, and one of the worst has just been named to head the fraud section of the Department. see.LicensedtoLie.com.” (Sidney Powell says: January 24, 2015 at 1:29 PM) (capitalization in original).

I think it would be good to explain myself, although you may find my explanation weak and unconvincing. Nonetheless, here goes:

* Like you, I am the product of my experiences. They are deeply ingrained.

* Right out of law school, and for two years, I clerked for a federal appellate judge on the Eighth Circuit, Donald R. Ross, who was earlier both a war hero and the youngest United States Attorney appointed in the history of Nebraska. I witnessed first hand his insistence that federal prosecutors turn square corners. He beat into me, and others, the principle that federal criminal law viewed from the chair of the federal prosecutor was not about winning but rather about procedural and substantive fairness. That Judge William Webster, who served as a United States Attorney, United States District Judge, United States Circuit Judge, head of the FBI and head of the CIA, lionized Judge Ross on the occasion of the judge’s memorial service punctuates the point I am trying to make. I grew up in an environment where federal prosecutors were expected to be, and most often actually were, a very substantial cut above.

* After 28 years as a federal magistrate judge and district judge, I have witnessed countless examples of Nebraska federal prosecutors playing it entirely straight up and doing so when they could have stood silent and no one would have been the wiser.

* While I do not want to slander most Nebraska state prosecutors who are entirely ethical, I have too often seen in habeas cases or heard (in the case of a wiretap) state prosecutors behaving badly. My prosecution of the impeachment of Nebraska’s Republican Attorney General gave me a jarring and concrete reason to be skeptical about state prosecutors when compared to their federal counterparts.

* A former federal prosecutor and FBI agent with 42 years of experience brought Baca to my attention because he was appalled by the apparent misbehavior of one or more California prosecutors. That was entirely consistent with the pride I had witnessed in other federal prosecutors as they did the right thing day in and day out without any fanfare while expecting everyone else to do the same thing.

* To the degree that Judge Kozinski, a judge who I respect greatly, believes there is an “epidemic” of Brady violations in the federal system, that has not been my experience here in fly over country.  As a result, I did not want my earlier post to be an implicit endorsement of the judge’s criticism of federal prosecutors for violating Brady.

For those of you who read this blog with some degree of regularity, you will remember that this post is not the first one where I have tried to explain what many see as my tendency to be credulous when it comes to law enforcement. See Why Does Kopf Believe Cops Most of the Time?  My antidote is transparency with the hope that my implicit biases will be checked by such acknowledgements. As I have said before, that is not a perfect answer, but it is the best I can do with what little I have.

RGK

 

 

 

When state prosecutors lie under oath and present the testimony of a witness that the prosecutor knows to be untrue

screen-shot-2015-01-20-at-10-36-31-pmI am blessed to serve in a federal court with federal prosecutors who are by and large both smart and honest. Sure, there are some dolts, but at least they are honest idiots.

From a retired former federal prosecutor with tons of experience as an FBI agent, as an AUSA, and as a supervisor, an e-mail landed in my account two days ago. My correspondent urged me to read the following article and view the video of arguments in the Ninth Circuit presided over by Judge Kozinski. See Sidney Powell, Breaking: Ninth Circuit Panel Suggests Perjury Prosecution For Lying Prosecutors, New York Observer (January 20, 2015).

It is  may be shocking proof that some state prosecutors are liars and some state prosecutors knowingly present liars as witnesses. To them, winning is everything. See the update below. I have NOT read the entire record.

Judge Kozinski and the Ninth Circuit are bound and determined to punish such behavior. Please read the article and view the video cited above. Starting off it will sicken you, but in the end it will make you proud even though you should worry about the tip of the iceberg.

Thanks Jeff.

UPDATE:

A commentator who states that he or she has read the record has provided this important information:

I just read the documents that were filed with the federal court in connection with this habeas case. They are quite extensive. They are all available on PACER. You may want to read them for yourself. After doing so, you may want to edit the title of your post.

Apparently, what you classify as a “prosecutor lying under oath,” involved a prosecutor who was called as a witness to explain to the jury why a witness/informant’s sentence was reduced by three years. That prosecutor testified that the sentence reduction was the result of a sentencing mis/re-calculation, and not a quid-pro-quo in exchange for the witness/informant’s testimony against the defendant. That prosecutor also testified to the same effect in connection with the federal habeas proceedings, essentially sticking to his recollection as testified to at the defendant’s trial. There is a transcript of the witness/informant’s sentencing proceeding that, on its face, appears to condradict the witness/prosecutor’s recollection of events (that took place many years before he testified at the defendant’s trial. But that prosecutor testified (in connection with the federal habeas proceedings) that there off-the-record discussions regarding whether or not the witness/informant’s sentence should be reduced which apparently bolster the witness/prosecutor’s recollection of events.

Bottom line: In this case (which apparently was tried twice over a period of seven years), it doesn’t seem fair to tar the prosecutor as a perjurer (as you do by your post) untill you have read the entire, voluminous record that exists and is available for public inspection. The same goes for the Ninth Circuit panel. Judge Kozinski has stated that there is an “epidemic” of Brady violations being committed by prosecutors throughout America. It seems like he is on a crusade in this area, albeit a good crusade if his statement is accurate. But, based upon my quick reading of the record in this case, it seems as though he (and his collagues on the panel) jumped the gun (probably based upon their law clerk’s memos) without carefully and fully reading the entire record in this complex case.

With respect to the trial prosecutor, apparently he had no knowledge that any witness at the trial provided testimony that was in any way false or misleading. He testified to this effect at the federal habeas evidentiary hearing. And the magistrate judge presiding over that hearing expressly found that the trial prosecutor did not know that any witnesses testimony was false/misleading. You may want to read the record. It may cause you to remove the “that the prosecutor knows to be untrue” language from your post.

The internet is a powerful tool that has served many great purposes. But, if used improperly, without cross-checking the accuracy of what is being posted (which, I concede, can be a time-consuming task that detracts from the allure of instantaneous reporting of events that blogs like yours permit) it is nothing more than a gossip-mill which, in some cases, can unfairly destroy the reputation of innocent persons.

RGK

 

The nullification of Supreme Court opinions by the States

You ought to read “Nullification, Now Coming to the Supreme Court? Mike Huckabee suggests that if the justices rule that gay-marriage bans are unconstitutional, states don’t need to listen” by David A. Graham in the Atlantic (January 21, 2015).* I don’t know much, but I do know that former Governor Huckabee is wrong on the law, and, what’s worse, his argument threatens the very foundation of our federal government.

I have a rather simple question for Mr. Huckabee to illustrate the poverty of his nullification argument, and that is:

If the State of New York were to say that the Constitution, the Second Amendment and the Fourteenth Amendment did not mean what District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010) proclaimed, would you agree that the State of New York could as a federal constitutional matter pass a law banning all guns in New York save for those used by the police since New York had no responsibility to follow Heller or McDonald?

I am willing to presume that Mr. Huckabee is a serious and well-intentioned person. That being so, he ought to seriously grapple with the implications of his argument if he wants serious people to give serious consideration to him and to it. At this point, the former Governor is merely throwing rotten meat to a hungry but lunatic fringe.**

RGK

*As always, thanks to Howard Bashman and How Appealing for keeping me informed.

**One would have hoped that Mr. Huckabee, who hails from Arkansas, would have learned from President’s Eisenhower’s decision to enforce Brown v. Board of Education by nationalizing the Guard and sending 1,000 U.S. Army paratroopers from the 101st Airborne Division into Little Rock. See Transcript of Executive Order 10730: Desegregation of Central High School (1957).

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