Scott wrote yesterday about a blisteringly ineffectual 4th Circuit opinion in U.S. v. Bartko [PDF], which was notable not only for its lengthy reprimand of the Brady practices of the U.S. Attorney for the Eastern District of North Carolina, but more so for its complete failure to do anything about the numerous Brady violations it noted. Via Scott:
And yet every defendant’s conviction is affirmed because the failure to disclose Brady did not undermine the court’s “confidence” that they were guilty. But the bleeding doesn’t stop here. Lest the Circuit’s admonishment of the fine men and women prosecutors hurt anyone’s feelings, it adds:
“We do not mean to be unduly harsh here.”
But the court had no choice, faced with the rampant and recurring concealment of Brady and Giglio.
“Whatever it takes, this behavior must stop.”
Or what? After the 100th time the government has been caught doing the dirty, the Chief Judge will snap his fingers in a Z shape and lecture the prosecution on the importance of being earnest? What it takes is a court with the balls to do its job and uphold the defendant’s constitutional rights, even if it’s absolutely sure the defendant is guilty. That could have happened at any time, and this time. And yet it didn’t.
As noted repeatedly here on this blog and almost everywhere else where someone with half a brain cell writes about criminal law, the problem with Brady is that it’s essentially unenforceable as long as there is no oversight and no will on the parts of judges to do the really hard thing: punish prosecutors for violating their duty by reversing convictions and referring them to grievance committees.
Maybe, though, just maybe that is catching on. First there was Judge Sheldon’s blistering opinion a few months ago, reversing a conviction for “a deliberate pattern of improper conduct” by the prosecutor.
Then, there was this recent story out of Alaska that involved a suspension of a former prosecutor for hiding exculpatory evidence in a murder case:
KTUU reports that seasoned prosecutor and former Deputy Attorney General Patrick Gullufsen was reported to the Bar Association’s Board of Governors after Superior Court Judge Anna Moran found that he had “blatantly lied” about the forensic analysis of DNA evidence in one of his cold cases, withholding exculpatory forensic evidence from the court and defense attorneys.
The cold case involved the 1982 death of Toni Lister in Seward, AK. Jimmy Eacker was a suspect in the case at the time of her murder, but wasn’t tried until 2010 after an evidence custodian came across DNA evidence from the case in 2006 and submitted it for testing. Gullufsen used that DNA evidence to suggest to the jury that blood and semen from the crime scene proved Eacker’s guilt.
However, Gullufsen did not disclose that he had been advised by an expert that the evidence was not reliable due to the age of the DNA and the way it had been stored. It was contaminated by a male technicians DNA; and, even more concerning, the biological profile did not match Eacker’s. Gullufsen failed to disclose this information to Eacker’s attorney, instead telling the court that the laboratory “had not finished its testing, that it was an ongoing project and it was doubtful the State was going to have anything ‘by the end of today, end of tomorrow, end of this week, whenever.’”
Of course, Gullufsen is three years into his retirement, but still, it’s the thought that counts.
But put all that aside. And meet Justice Goodwin Liu, formerly nominee to the Ninth Circuit, current California Supreme Court Justice and goddamn Batman.
Justice Liu has just rattled off two of the most unbelievable dissents probably ever written in American jurisprudence, directly taking on his colleagues on the bench and calling them out on their statist bullshit. Honestly, guys, it reads like a blog post I’d write, but better and intelligent-er.
Justice Liu dissented in People v. Mai [PDF] and People v. Harris [PDF], both death penalty cases that involve issues of racially motivated strikes of jurors by prosecutors: so-called “Batson” challenges1. While his tone is marginally polite, you can sense the anger and contempt seething below the surface:
For some time now, our jurisprudence has not demanded that trial courts or reviewing courts demonstrate a truly reasoned effort to evaluate Batson claims in light of all relevant circumstances bearing on the issue of purposeful discrimination. And the results, which I document in another opinion filed today, are quite remarkable: In the 102 cases where this court has addressed a Batson claim over the past 20 years, we have found Batson error only once — and that was 12 years ago.
In 101 out of 102 cases, the California Supreme Court has found no racial bias in jury selection. I mean, you couldn’t have made up that statistic if you were going to fabricate one. He writes that the California Supreme Court routinely engages in “judicial speculation” to come up with race-neutral explanations even when these explanations are not supported by the evidence and that:
our cases employ judicial speculation in a conspicuously lopsided way. When hypothesizing race-neutral characteristics that might explain the strike of a particular juror, we have categorically barred inquiry into whether those characteristics apply not only to the juror who was struck but also to one or more jurors who were not struck, even though such comparison clearly informs the explanatory power of any hypothesized reason for a strike.
And he ends with such a thunderous paragraph that I need to reproduce it in its entirety:
When one examines the legal underpinnings of our Batson decisions, it is not difficult to understand why this court has almost never found unlawful discrimination in jury selection. Reflexive application of deference where there is nothing in the record to defer to, judicial speculation as to the reasons for a strike where the prosecutor has offered none, and unduly limited and grudging application of comparative juror analysis combine to erect a virtually impossible hurdle for Batson claims to surmount.
As appellate judges, we are familiar with these lawyerly modes of rationalization and the predictable consequences of their repeated application. But a jurisprudence of speculation and presumptions does not serve the goal of producing “actual answers to suspicions and inferences that discrimination may have infected the jury selection process.” (Johnson v. California, supra, 545 U.S. at p. 172.) Nor does it adequately protect “the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.” (Batson, supra, 476 U.S. at pp. 85–86.)
Most importantly, a jurisprudence of speculation and presumptions – and the stark results it has wrought – cannot inspire in all of our citizens, of whatever race or background, a full and equal measure of “confidence in the fairness of our system of justice.” (Id. at p. 87.)
Ultimately, it should be noted, Justice Liu concurs in the opinions of the court because he feels bound to do so because of precedence2]. So while it is a bit of a cop-out, there is no denying that he’s making a strong statement that courts must take their duties to review prosecutorial misconduct more seriously.
That’s what it’s going to take, frankly. Judges and justices who don’t put up with the hoodwinking of Constitutional rights, who aren’t afraid to write scathing dissents and get in other judges faces because we are where we are because of decades of institutional coddling and elevating the desire to obtain and preserve convictions to the pinnacle of the
sport justice system and relegating Due Process and individual rights to a sideshow; an obstacle, an inconvenient detour.
Individual rights are like the denture-wearing, slobbering, cheek-pulling grandma with the $1000 check for you. You have to put up with her because you want the money, but you’ll do everything in your power to avoid having to have physical contact with her. It’s time to face our grandmothers. The Constitution demands it.
So, in case all of this is far too difficult for our jurists to remember and apply, I’m offering one low cost way3 for them to recall their obligations in cases involving prosecutorial misconduct of any form or type: a slogan. “Name, shame, reverse”.
It’s simple, really. Name the prosecutor, shame the practice and reverse the conviction. You can call it NSR if that’s easier.
The trick, of course, is getting judges to do all three at once. But that’s fine, Maria eventually got even the Captain to sing.