Monday, November 23, 2009

From the Court

Last week featured the latest Craven filing from the Mike Nifong camp. Nifong attorney Jim Craven filed a four-page brief (which included a grand total of 14 lines in his own words) regarding the Pottawatomie case, which I have previously discussed.

Craven’s conclusion? "We suggest that if the Supreme Court rules in favor of the Iowa prosecutors/petitioners on the immunity case, such a ruling would likely apply to the defendant Michael B. Nifong in this case.” Craven’s argument in support of that conclusion? Nothing. Craven devoted not even one of his fourteen lines to offering an argument on behalf of his assertion. He also cited some amicus briefs that actually distinguished the sort of behavior exhibited by Nifong in the lacrosse case from that of the Iowa prosecutors.

To tease out Craven’s (unoffered) argument: if the Supreme Court sides with the Iowa prosecutors, then all prosecutors who decide to personally supervise the police investigation, from a point well before any decision to charge is ultimately made, should be shielded from civil suits regarding any of their misconduct—even as the police officers who they corruptly directed will not be shielded from civil suits.

The Court’s oral argument offered little to bolster Nifong’s Craven view. Only two justices, John Roberts and Samuel Alito, seemed indifferent to designing a solution that might hold the Iowa prosecutors accountable for their actions; the duo has a well-deserved reputation for taking the government’s side regarding virtually all criminal justice issues, so their pro-prosecutors position in the oral argument came as little surprise. As usual, Clarence Thomas didn’t ask any questions in the session; the other six justices appeared to have an open mind about the case.

Attorney Stephen Sanders , representing the two ethically challenged Iowa prosecutors, went out of his way to frame his claim in such a way that it would not apply to the behavior Mike Nifong exhibited in the lacrosse case. “If a prosecutor’s absolute immunity in judicial proceedings means anything,” declared Sanders, “it means that a prosecutor may not be sued because a trial has ended in a conviction. Yet that is exactly what happened in this case.” Of course, in the lacrosse case, Nifong never took his manufactured evidence to trial, so never had the opportunity to establish the immunity that Sanders feels his clients deserve.

The attorney couldn’t have been clearer on this point: “There is no disjunction between observing that a prosecutor, like a police officer, has only qualified immunity during the investigation [emphasis added] while, at the same time, insisting that that does not affect the fact that the prosecutor has absolute [immunity].” Nifong’s key misconduct—his improper public statements, his withholding of exculpatory evidence, his ordering the police to run a lineup that blatantly violated their own procedures, his decision to go ahead with the case though lacking in probable cause—all occurred “during the investigation,” or when Nifong, the elected DA, improperly assumed personal control of the police investigation.

When asked by Justice Ruth Ginsburg whether he was envisioning a process in which police officers who manufactured evidence would receive only qualified immunity while a prosecutor who engaged in comparable conduct but didn’t try the case would receive absolute immunity, Sanders demurred. The prosecutor’s role would be same as police officer who was subject to civil suit, he reasoned,"if the prosecutor in the second case that you hypothesize had nothing to do with the later prosecution”—as occurred with Nifong in the lacrosse case.

Ginsburg summarized the Iowa prosecutor’s position: “You can have a prosecutor, who wasn’t involved in the trial, [who] would have liability.” Sanders agreed.

So Craven, it appears, is counting on the Supreme Court not only deciding in favor of the Iowa prosecutors but issuing a ruling going beyond what the attorney for the prosecutors desired. That’s possible, but unlikely.

One point in the oral argument showed just how extraordinary Nifong’s usurpation of the police role in was. Justice Stephen Breyer seemed unsympathetic to the prosecutors, but he worried about the effects of a decision allowing civil suits to go forward, lest such a ruling make prosecutors gun-shy about moving in to check out-of-control police officers. “All things being equal,” Breyer maintained, “I think it’s probably a good thing to get prosecutors involved in the questioning process” early. “That has kind of a check on police.” Breyer continued: “The concern I’d have is that the—this will discourage the prosecutors from becoming involved in the witness—witness questioning process, at least not before the police are well on the way. And that is a very negative incentive, I would think.”

Breyer, obviously, has never met Mike Nifong.


Anonymous said...

When you don't have the law on your side, argue the facts. When you don't have the facts on your side, argue the law. When you have neither, write 14 lines of gibberish.

Anonymous said...

Is Craven a Communist?

Anonymous said...

Famous (or infamous) line from the oral argument, by the government's attorney :

"There is no constitutional right not to be framed."

Q.A. said...

I carefully read the Official Transcript of the oral arguments in this case:



No. 08-1065
Washington, D.C. Wednesday, November 4, 2009

Then I commented on Liestoppers:

“IMO this actually is a compelling question, exposing a paradox in need of resolution; that is why SCOTUS granted its consideration.

The question arises because of an obviously unintended consequence of previous legislation and SCOTUS rulings.

I agree that among the reasons Craven has submitted his memorandum must be the hope for prolonging the delay; Beaty can be expected to fulfil such a hope.

When immunity is “absolute” it is absolute.

When any legal protection, such as immunity, and privilege, is absolute - it is absolute.

It is because of this absoluteness that the law carefully circumscribes the boundaries of the above protections.

SCOTUS did engage in vigorous debate with participant counsel at oral argument; Prosecutorial (and especially Judicial Immunity) are zealously guarded by prosecutors and by Judges themselves.

IMO the main focus of the debate was how workable lines can be drawn between prosecutorial and non-prosecutorial functions.

Also IMO, the final ruling will preserve absolute prosecutorial immunity but more circumspectly define the lines between prosecutorial and non-prosecutorial functions so that this unintended paradox can be avoided.

I do not expect Nifong to be happy with the final ruling but the continuing delays may comfort him, and others.”

Anonymous said...

Is Jim Craven a radical feminist anti-capitalist who opposes white supremacy and imperialism, with a central commitment to creating a sustainable human presence on the planet?

skwilli said...

An example of trying to make chicken salad out of chicken crap. There is nothing else he can do.

No Justice, No Peace said...

Presumption of innocence v2.0

Presumption of Innocence

"...What happens if KSM (and his co-defendants) "do not get convicted," asked Senate Judiciary Committee member Herb Kohl. "Failure is not an option," replied Holder. Not an option? Doesn't the presumption of innocence, er, presume that prosecutorial failure -- acquittal, hung jury -- is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place...." - Charles Krauthammer

A "perverse moral calculus", which aptly describes the Duke hoax.

Durham jury, Duke students and Mike Nifong...failure was not an option...

No Justice, No Peace said...

How about a little discovery foreshadowing?

“…we do now have hundreds of emails that give every appearance of testifying to concerted and coordinated efforts by leading ____________s to fit the data to their conclusions while attempting to silence and discredit their critics."

“I think I'll delete the file rather than send to anyone. . . We also have a data protection act, which I will hide behind."

“…the university said it could not confirm that all the emails were authentic…”

This is interesting in another way; the PC (race, gender, class warfare) world of planted hangman nooses, vandalized property, and claims of racist emails.

“…scientists (Duke professors, administrators, etc.) appear to urge each other to present a "unified" view (Listening Statement) on the theory of___________________ (race, class and gender issues) while discussing the importance of the "common cause"; to advise each other on how to smooth over data so as not to compromise the favored hypothesis; to discuss ways to keep opposing views out of leading journals (not a problem with mainstream media); and to give tips on how to "hide the decline" of temperature (DNA testing, ATM video, etc.) in certain inconvenient data.”

“…Some of those mentioned in the emails have responded to our requests for comment by saying they must first chat with their lawyers. Others have offered legal threats and personal invective…”

“Yet all of these non-responses manage to underscore what may be the most revealing truth: That these __________s (professors, administrators, etc.) feel the public doesn't have a right to know…”

Is is difficult to imagine a similar exchange among hoax deniers?

"_____, Can you delete any emails you may have had with ______re ___________? _______ will do likewise. . . . Can you also email ______ and get him to do the same?"


"[T]ry and change the Received date! Don't give those skeptics (Durham in Wonderland, Liestoppers, Johnsonville News, etc.) something to amuse themselves with."


“It also seems _______ and his friends weren't averse to blacklisting scientists (professors) who disputed some of their contentions, or journals that published their work."I think we have to stop considering ‘_________’ as a legitimate peer-reviewed journal," goes one email, ____________’s main beef was that the journal had published several articles challenging aspects of the … theory..

“…when we've asked _______ in the past about the charge that he and his colleagues suppress opposing views, he has said he "won't dignify that question with a response." This indicates minor separation: the Duke hoax will forever has Houston Baker, Karla Holloway, Dean Sue, and others.

Discovery foreshadowing?

RighteousThug said...

skwilli - There is nothing else he can do.

You're right there, skwilli.

This is not Craven's regular stomping grounds; he's mainly state crim & bankruptcy, so he's out of his league here. Was doing his 'best' to try to piggyback off the Duke/Durham defense but was clearly rebuffed in that regard.

Wasn't it Craven who told the AG's office that he would be 'happy' to defend Nifong in these suits if he could be assured that the state would be paying the bills? Nifong & he lost on that one, too.

Craven can't be 'happy' about that.

Anonymous said...

KC, be careful what you read into an oral argument. Just because Alito and Roberts asked questions that were easy on the government and Thomas failed to ask a question doesn't mean they don't have an open mind. Supreme Court oral argument these days is theater. The justices have already read hundreds of pages of briefs on the issue(s) to be decided. Sometimes they ask easy questions b/c they don't want the arguer to give an answer that calls into question the line of reasoning they intend to use in their opinion if they are chosen to write one. And, believe it or not, Thomas' opinions are some of the better reasoned.

Finally, saying the other justices have open minds is an absolute joke. The 3 leftists on the Court (I will withold on Sotamayor(sp?) though her lower court opinions tend to show her to be in that group too) are some of the most close-minded, intellectually dishonest jurists in history - particularly Ginsberg. They will do everything in their power to draft an opinion furthering their agenda, no matter the facts or the law.

kcjohnson9 said...

To the 6.02:

As I noted in the post, Alito's and Roberts' questions were fully consistent with the overwhelmingly pro-government position they have taken on civil liberties issues since arriving on the Court. Their votes on such matters are as predictable as Ginsburg's (on the other side). Perhaps they'll approach this case with an open mind, though their questions gave no indication they'll do so.

As for Thomas, I didn't say anything about his position at all--other than to point out that, as he almost always does, he asked no questions at the oral argument.

Chris Halkides said...

I see that a couple of commenters here and on the following post have linked or referenced the theft of emails from climate scientists. One of the purloined emails talks about using a “trick.” This sounds suspicious, but the word “trick” is sometimes used among scientists in casual conversation to mean a clever method. For example, Mark Rance devised an improved way to add nuclear magnetic resonance spectra together, and my advisor called it “the Rance trick” in a scientific discussion.