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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?

law enforcement has qualified immunity for misconduct (which, practically speaking is basically absolute immunity with a few extra steps)

Not really. A Reuters study found that, in excessive force cases against police, appellate courts granted qualified immunity in 44% of cases in 2005-2007 and 57% of cases in 2017-2019. Another study found lower numbers. And Short Circuit's weekly case summary usually includes a fair number of denials, as well as grants.

The grants of immunity are nevertheless too frequent, IMHO. But it is hardly automatic.

In how many of the cases where they did not grant qualified immunity, was it because they dismissed the case on other grounds first?

I believe the second link includes relevant data on that IIRC.

These are great resources and it's a big omission on my end that I neglected to find them on my own. Had I been asked to estimate how often QI is granted, I probably would've said 70-80%, which is clearly erroneous on my part. I'm guessing my mistake was probably borne out of the availability heuristic combined with never thinking to conduct a systemic research (something I regularly excoriate others for not doing). QI is still prevalent, and I do wonder how much it discourages marginal cases from ever being filed. Either way, I was wrong with my comparison so thanks for bringing this to my attention, I will edit my post above.

QI is still prevalent, and I do wonder how much it discourages marginal cases from ever being filed.

That's a good question, though there do seem to be plenty of plaintiff's attorneys who make a living filing these types of suits. But maybe less so in, eg, the Fifth Circuit, which one of the links indicates has a high level of QI grants.

It's true that there are plenty of attorneys who make a good living off of §1983 (see Benjamin Crump) but that's not really indicative of anything on its own. Lawyers are able to shift between practice areas fairly easily, and so each practice area has a self-correction mechanism in place in case any particular market gets too saturated. Ideally we'd compare the number of attorneys pursuing §1983 claims to some sort of baseline expectation, but I admit I don't have a good suggestion.