A polite but urgent note to my judge-friends: The nation’s premier law-enforcement agency has effectively admitted that it coerced one of the most powerful men on the planet into pleading guilty to a crime it now says he didn’t commit. This is happening *regularly* on YOUR watch.
I'll not belabor the point though I could go on all night. The integrity of your institution is at stake here, and the Flynn case should be a wakeup cal. Please do yourselves, your branch, and countless innocents a favor and act accordingly. Thank you.
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Judge Carlton Reeves has criticized qualified immunity before, but wow, he really cut loose this time. It's extremely rare for a sitting judge to express this level of disdain for a legal doctrine that SCOTUS has consistently and repeatedly affirmed. /1 s3.documentcloud.org/documents/2467…
What gives Judge Reeves' latest assault on QI such force is that (virtually?) nobody disputes any of his points—namely, that SCOTUS invented QI out of whole cloth in direct (and increasingly indisputable) contravention of statutory text and unambigous legislative purpose. /2
At this point, the *only* "defense" (if one can call it that) offered by QI's vanishingly small coterie of defenders is that SCOTUS has been getting it wrong for nearly half a century and Congress has done nothing to correct that error, so why should either of them bother now? /3
Just beneath the surface of the Trump immunity case lies the fact that our CJ system has gone so off the rails that few people—especially if they’ve done anything interesting like run for office or start a business—can be confident they haven’t committed multiple felonies. /1
Is it reasonable for future presidents and executive-branch officials to be concerned that the decision whether to prosecute them for *something* they did in office will end up being purely a matter of prosecutorial largesse? Absolutely—just like the rest of us. /2
We live in a wildly overcriminalized society where even the govt has lost track of how many laws are on the books—true fact: DOJ has repeatedly tried and failed to count just the number of federal criminal laws on the books, which is of course just the tip of the iceberg. /3
Why have retaliatory-arrest cases—including recently argued Gonzalez v. Trevino—so confounded SCOTUS? Simple: Because courts have become deeply committed to ensuring that govt officials who’ve been plausibly accused of misconduct can avoid jury trials. /1 scotusblog.com/case-files/cas…
Consider how low the stakes are for the govt officials in Gonzales compared to most criminal defendants—none are going to jail, it’s highly unlikely any will be fired or meaningfully disciplined if found liable, and they’ll be indemnified for any damage award regardless. /2
Truly, the stakes could scarcely be lower for the govt defendants who’ve been plausibly alleged to have grossly abused their official powers to inflict political payback on a 76yo grandmother, FFS. So why on earth are the justices tying themselves up in knots over these cases? /3
More thoughts on qualified immunity. Besides the fact that it is lawless, immoral, and bad policy, QI reflects breathtaking political naïveté by gratuitously creating a policy that confers a massive institutional benefit on a powerful special interest (LEOs) that’s paid for by /1
Victims of civil rights violations. Contrary to the self-serving pablum you’ll hear from its various apologists, QI’s primary function in our system is not to protect cops from frivolous lawsuits (there are other tools for that), it’s to protect cops from MERITORIOUS claims. /2
Good example is the cops whom Tony Timpa called for help during a mental health crisis and ended up asphyxiating him while joking about it. They fought like cats for QI precisely because they understood how a jury was likely to—and ultimately did—react. /3 keranews.org/criminal-justi…
US police are very good at going after low-hanging fruit like traffic infractions, nonsense regulatory infractions, and low-level drug crimes—which is why ~80% of arrests are for misdemeanors. But they’re just awful at solving serious crimes like murder and rape, which is why /1
US clearance rates for homicide and other serious crimes are among the lowest in the developed world. Also, police enjoy low levels of trust in communities where crime is most prevalent, partly because they prioritize enforcement of BS “crimes” like this and partly because /2
They are, as an institution, fundamentally untrustworthy. Police are trained to use deceit as a routine investigative tool, and recordings of police blatantly lying to motorists, bystanders, random teenagers, etc, are endemic. One thing that would go a long way to restoring /3
1/ Few policy choices are more clearly spelled out in the text of the Constitution than the decision to embrace "Blackstone's ratio"—i.e., it's better that ten guilty men go free than one innocent man be convicted. That's why the Bill of Rights spills so much ink on crim pro.
2/ Of course, a govt that believes you are guilty of a crime—and is staffed by careerists with a clinically delusional sense of their own infallibility that flows from their near-total unaccountability—would strongly prefer not to be on the wrong end of Blackstone's ratio.
3/ Might there be some way for govt officials who operate the machinery of criminal adjudication to hack the defendant-favoring constitutional design that includes such things as proof beyond a reasonable doubt, jury unanimity, double jeopardy, and no appeals from acquittals?