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naraburns  nihil supernum  1yr ago (text post)   34482 thread views

Culture War Roundup for the week of March 6, 2023

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Much of the criminal justice systems operates on an assumption (or rather, an aspiration) that prosecutors and law enforcement should be trusted to carry out their duties honestly. While I don't believe this assumption is worth much, it's the reality we live in given the limited avenues for redress available. For one, prosecutors and judges have absolute immunity for misconduct, and law enforcement has qualified immunity for misconduct (which, practically speaking is basically absolute immunity with a few extra steps Edit: as @Gdanning mentions here, I significantly overstated the equivalence here). If you get fucked over by any of them, tough luck. Two, law enforcement has a close working relationship with prosecutors, and most judges are former prosecutors. Because of how the adversarial system is structured, there's a systemic bias against ruling in favor of defendants' (read: criminal's) rights. This is especially a problem when you consider that literally the only source of search and seizure precedent comes by definition from criminals asking a court to ignore damning evidence because it was illegally seized.

I just described a system where the levers of power are held by a fairly cloistered group of people, and it all skews heavily on the side against the meek defendant. There are indeed some attempts to artificially inject fairness into the system. Because civil lawsuits are assumed (not always reasonably) to involve two opposing parties on roughly equivalent footing, the evidentiary standard there is preponderance, which is basically 50% plus one. But for criminal trials, where it's the full weight of the government bearing down on a single person, it's beyond a reasonable doubt, which is basically you better goddamn be real fucking sure. Another difference pertinent for this post is what would be referred to as Brady obligations, where prosecutors are obligated to turn over every evidence which might be helpful to the defendant (who, unlike a civil litigant, has no equivalent obligation to the other side).

For the most part, verifying that a prosecutor has met their Brady obligations is near-impossible. Prosecutors are considered part of law enforcement, and they naturally have access to an entire universe of information which the other side will never see (for example, details about ongoing investigations which would tip off the subjects if it was revealed prematurely) so whether or not they've turned over every Brady material is an exercise in trust. I have to trust that the prosecutors aren't lying, and that they reviewed all the evidence they have and made a fair assessment on whether or not it's exculpatory. This is why virtually every Brady scandal involves exculpatory evidence that came to light accidentally. A fuck-up, in other words.

And oh man was there ever a fuck-up.

This happened this week during the jury trial of Ethan Nordean, a Proud Boys leader charged with seditious conspiracy stemming from his actions in January 6th. I haven't followed his case at all, but his defense attorney just filed this banger of a notice regarding the testimony of FBI agent Nicole Miller. As a government witness, Miller has an obligation to turn over any written statements she made regarding the subject of her testimony (this is known as a Jencks obligation). FBI agents use an instant messaging system called Lync, and Miller handed over a spreadsheet with 25 rows of Lync messages. Miller testified that this was her entire Jencks obligations, and she denied withholding any messages about Nordean's conspiracy charges, denied withholding any messages about whether anyone listened in on attorney-client calls, and denied withholding any messages about whether any reports (dear heavens) were falsified. And so forth. Miller just said no, absolutely not, no way.

Normally this is where the story would end, except Nordean's attorney revealed that the spreadsheet Miller had sent contained about a thousand hidden Excel rows, many of which absolutely one hundred percent directly contradicted Miller's testimony. For example, there were messages about:

  • An agent asking Miller to edit a confidential informant report to remove mentioning the agent was present

  • An agent reviewing attorney-client communication about trial strategy

  • Agents openly expressing doubt about a Proud Boys leader's involvement in a conspiracy

And so on.

I'm certainly excited to see how Miller tries to get out of this vise. My assumption is that the prosecutor will dismiss charges against Nordean in a feeble attempt to make this go away (or a judge can do it for them, which is what happened with the Bundy ranchers).

It's certainly fucking funny that an FBI agent tried hiding Excel rows thinking they were deleted (this is known as the peek-a-boo fallacy). More seriously, FBI agents are acting this brazenly even though they're well aware how much public scrutiny is directed towards J6 cases. I think one can reasonably assume they'd have even fewer scruples in cases involving defendants no one gives a shit about.

Some jurisdictions (starting with North Carolina in 2004) have what's called an open-file discovery rule where everything in the case file (no matter how banal) is provided to the defendant by default. Tucker Carlson got access to and released footage of Jacob Chansley (aka QAnon shaman who was sentenced to 41 months in prison) calmly walking inside the capitol, which appears to contradict his charging documents. More relevantly, Chansley's attorney apparently never got that footage before. I assume the government will now argue that the footage they kept hidden wasn't that exculpatory but really, that should always be up to the defense attorney to decide.

Of course, even if open-file became the norm, law enforcement will get wise not to put incriminating statements on paper (hot tip: when doing FOIA requests, pay attention to any email or text that asks to speak on the phone about a sensitive subject). So beyond open-file discovery, I'd also keep riding my other cute little hobby horses and argue this is another reason to jettison qualified/absolute immunity. Anyone disagree?

I want to hear the steelman for qualified immunity, because the most salient times it comes up are when it’s being abused. In other words, I have the urge to play devil’s advocate, but I’m underqualified.

As for the case itself—good God, the FBI is like a parody of itself. It’s on par with the Alex Jones blunder. I am struggling to imagine the train of thought. The benefit seems so low that the expected cost, the risk of any real consequences for getting caught, must have been minuscule. For all I’ve said about the unlikelihood of election fraud, at least the motive was obvious.

This is what the Supreme Court said:

When government officials abuse their offices, "action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees." Harlow v. Fitzgerald, 457 U. S., at 814. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Ibid. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e. g., Malley v. Briggs, 475 U. S. 335, 341 (1986) (qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"); id., at 344-345 (police officers applying for warrants are immune if a 639*639 reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth, 472 U. S. 511, 528 (1985) (officials are immune unless "the law clearly proscribed the actions" they took); Davis v. Scherer, 468 U. S. 183, 191 (1984); id., at 198 (BRENNAN, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra, at 819. Cf., e. g., Procunier v. Navarette, 434 U. S. 555, 562 (1978). Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the "objective legal reasonableness" of the action, Harlow, 457 U. S., at 819, assessed in light of the legal rules that were "clearly established" at the time it was taken, id., at 818.

Note also that, if it is too easy to successfully sue public officials, then those officials will be extremely reluctant to pursue miscreants with deep pockets.

Note also that, if it is too easy to successfully sue public officials, then those officials will be extremely reluctant to pursue miscreants with deep pockets.

I hadn't considered this point before. It seems salient but can you expand upon it a bit?

Well, it seems to me that, in the absence of some sort of immunity, a DA, police department, etc, which had a choice of a) investigating a crime supposedly committed by a wealthy person; and 2) 1nvestigating a crime supposedly committed by a non-wealthy person, would be foolish to choose #1. They would risk being personally sued if they made any mistake at all, or even if they didn't; a wealthy person can afford to file frivolous lawsuits for the purpose of harassment.

I want to hear the steelman for qualified immunity, because the most salient times it comes up are when it’s being abused.

I think there's a place for something resembling a minimal version of qualified immunity: we should protect civil servants from criminal prosecution for carrying out their duties in good faith, or we won't be able to hire any good civil servants. Minor mistakes in the moment, especially for a high-stakes roles like police officers, are unavoidable.

But I will agree with you that current jurisprudence goes way too far in assuming good faith.

I want to hear the steelman for qualified immunity, because the most salient times it comes up are when it’s being abused. In other words, I have the urge to play devil’s advocate, but I’m underqualified.

I'm not well-acquainted enough with the facts and arguments to feel comfortable engaging someone who is, but in case no one else steps up the plate: I think the idea is that you don't want civil servants like police officers to face the possibility of ruinous civil lawsuits for just doing their job and making some sort of honest mistake. I think (although I'm not as confident about this) that you can instead civilly sue the department as opposed to the individual officer. That spreads out the risk and costs of litigating.

It's also extremely important to point out that qualified immunity has absolutely nothing to do with protecting anyone from CRIMINAL culpability. Officers who commit crimes are routinely brought to justice and qualified immunity has no bearing whatsoever on any of it.

the risk of any real consequences for getting caught, must have been minuscule

Yep. It's extremely rare for me to find evidence of police misconduct in my own cases but one of them happened to get news coverage because I got a great ruling all thanks to some very very lucky video footage. But when I first watched the footage I couldn't believe I was interpreting what I was seeing correctly. Everyone seemed to chill that I wondered for a long time "it's not plausible that they're casually [redacted] on video, I must be misunderstanding something."

I'm surprised that you're giving the FBI any good faith at all. Not intending this as some kind of gotcha, but did you pay attention to the crossfire hurricane scandal and the Mueller probe? There's so much bad faith and naked criminality in the FBI that I can't imagine trusting them at all (to say nothing of their hobby of manufacturing terror plots).

Crossfire hurricane scandel? Where can I read more about this?

That's a good question and I honestly don't have a solid resource for you. I followed the scandal as it developed over time, and that means that I can't really give you a single unified source on it - but for the record, the Crossfire Hurricane probe was what eventually got turned into the Mueller special counsel.

Where do you see me giving the FBI any good faith? The post your responding to was a story expressing skepticism to the point of disbelief because the misconduct I witnessed was conducted so casually that I wondered if I was missing something (I wasn't).

Oh, I meant that initial "it's not plausible that they're casually [redacted] on video, I must be misunderstanding something." reaction. That's far more faith than I'd give the FBI.

I don't know if this is missing context but I was talking about my work as a criminal defense attorney. I wasn't talking about FBI agents, these were just some random detectives. Across hundreds and hundreds of cases, I watch a lot of very boring video footage that mostly shows my client acting like a total dipshit and the cops being dutiful about their jobs and I get lulled into a sort of slumber. So when I do see clear instances of casual misconduct, for a moment it feels like I'm the victim of a optical illusion because it's just so damn unusual to get it on video.

The good news in this [real case I'm being super vague about] is that my job is explicitly not to assume good faith. So I conducted my own investigation and felt confident enough I did my homework before launching my broadside motion. The cops did not do well during cross-examination and the judge agreed with my argument and explicitly found them to be lying. They were very much not happy with me given the career consequences involved.

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