Recently, the Second Circuit’s clerk’s office has gotten a lot of bad press. They have attempted to hide opinions and obscure the government’s positions. They have been jerks about briefs. But, today, Norm Pattis has something good to say about a clerk named Erin in the Second Circuit.
As you know, the imagination of the public is captured by awards of “punitive damages” and “jackpot justice.” Most of this stuff is just propaganda spread by lawyers and various thinktanks on behalf of their clients. Not that there is anything wrong with that. Heck, if you can’t be a real lawyer, just write about “policy” and “tort reform.”
I wonder if all the normal “Tort Reform” mouthpieces are going to condemn the Second Circuit’s decision as “judicial activism” and jackpot justice and condemn their lawyers as being “trial lawyers.” After all, punitive damages over a billion dollars seem quite large.
But “Lady of Silences” has. And since she is a former law clerk on a Federal Court of Appeals, she is deemed to be credible. Very credible.
She says thus:
But the retraction here was remarkable because it was, in effect, censorship and what some have characterized as a blatant attempt by the government to try to cover up exactly what its agents did to Mr. Higazy. The court's opinion no doubt had been circulated among the judges and law clerks involved in the case before it was released (almost always the case and almost certainly for a high-profile decision such as this), and apparently none of them perceived any error in the summary of events contained in the original opinion (which the government alleged was information from an appendix that had been placed under seal by the trial court).
Our big post on Higazy-gate appears here. My post about why Volokh elects to let one of the biggest First Amendment stories of the year go appears here. Kerr, on the other hand, finds yet another angle on Waterboardinggate (i.e. that people were fired for offering opinions that the practice was illegal).
I am somewhat surprised to see that there has not been too
much blogosopheric coverage of the Second Circuit’s failed attempt to redact
details of Higazy v. Millenium Hotel and Resorts, in which the government
conceded that an FBI agent coerced a false confession from the plaintiff. At a minimum, the Second's Actions would seem to raise many First Amendment issues. I can't seem to find anything on VC.
Truth be told, many Americans think that coerced confessions
(true or false) are a good thing. They
think that it is is “activist” to require the exclusion of such confessions
from jury trials, thinking that a jury can determine for itself whether a
confession is true or not. Some would
even go so far as to hold that details of how a confession is extracted are
inadmissible if the government says that it doesn’t want a jury to know them. Moreover, in a “national security” context, a
false confession might serve a useful purpose. (Obviously the actual useful purpose of a false confession would be
secret, but that isn’t the point.)
But why are not more First Amendment types angry about the
Second Circuit’s redaction and subsequent fruitless phone call to Howard
Bashman who has become a hero of the First Amendment by posting the full decision? Doesn’t the public have an
interested in knowing the methods used to extract confessions (true or false)
from individuals? “Wait A Second” speculates the Second Circuit’s
behavior is a "Everything is different after 9/11” approach. Under this approach Arabs that hate America have been deemed to modify our constitution via violent acts. Is this what happened? It gets worse: the Second Circuit, itself has held that even in civil trials there is a First Amendment right to discovery materials that serve are necessary to the judicial process. The Second uses the concept of a "judicial document" (which is different than a "judicial record") to describe documents that are subject to disclosure U.S. v. Amodeo, 44 F.3d 141 (2d Cir. 1995). It wote:
While we think that it is proper for a district court, after
weighing competing interests, to edit and redact a judicial document in
order to allow access to appropriate portions of the document, we
consider it improper for the district court to delegate its authority
to do so. It is not apparent here whether the district court merely
accepted the representations of the Court Officer with regard to the
matters claimed to be inappropriate for release or made its own
determination. What is clear is that the court released Exhibit A
exactly as edited and redacted by the Court Officer and without making
any written findings of its own.
It seems to us that the district court should make its own
redactions, supported by specific findings, after a careful review of
all claims for and against access. See
In re New York Times Co.
, 834 F.2d 1152, 1154 (2d Cir. 1987),
485 U.S. 977
(1988). Such findings would provide us with a basis for effective review in the event of a future appeal.
Press- Enterprise Co. v. Superior Court
464 U.S. 501, 510
(1984). The findings may be sealed to the extent that their articulation reveals information that should not be disclosed.
United States v. Haller
, 837 F.2d 84, 88 (2d Cir. 1988).
So, there you have it. Fact-finding is needed in the Second Circuit when the underlying document is at relevant to the judicial process. Any assertion of a privilege by the government must be supported by facts and factual findings. This didn't happen. In fact, Mr. Bashman told ABA Journal that the Second offered no good reason for the redactions. In fact, the statements were not even made by the government, but rather by the plaintiff. Bashman wrote:
No one from the 2nd Circuit has attempted to explain to me the
so-called security concerns--which as far as I can tell based on my own
analysis apparently arise from certain statements attributed to Mr.
Higazy in the opinion's factual recitation--that led the 2nd Circuit to
remove the opinion from its Web site after the opinion had been posted
there for all to see and access.
Now, in notes attached to the redaction, the Second seems to say that the defendant (a government employee) coerced a confession. Does that mean that it is no longer relevant to the judicial proceedings? Doubtful. Since this matter will be headed back to the District Court, the government’s concession on the confession will be relevant to, at the very least, determining damages. Likewise, the Second Circuit, in determining that the government employee was not entitled to qualified immunity seems to have actually used the government employee’s behavior as a means to determine that he wasn’t entitled to qualified immunity. But, maybe I am wrong. Maybe there is some justification for this. The Second doesn’t give it. The Second’s failed attempt at suppression of the facts seems to indicate that they think they must accept the government’s assertions about what is or is not a judicial document at face value. [An alert reader has suggested that the government could be trying to argue not a “law enforcement privilege” but an “orderly conduct of foreign relations” privilege. However, no such evidentiary privilege exists.]
But, maybe the constitution should be changed by the Americans that are empowered to amend to (as opposed to Arabs that violently killed people on 9/11). Who knows? Maybe the public will agree with the government: confessions
extracted under coercion serve a useful purpose. Maybe the constitution will be amended to
suit the government’s needs. After all coerced confessions do the following: 1) instill respect for the law; 2) separate people of high moral character (that won’t confess under torture) from people of low moral character; 3) might result in information about other people; 4) provide a useful outlet for the frustration of people that would otherwise be bullies that now work for “law enforcement”; 5) allow the listener to create reality, as they are no more “true or false” than the observer is willing to believe in the first place (I don’t know why so-called conservatives don’t take up the banner of post-modernism); and 6) such confessions do not result in any real harm to the republic if a non-American is abused.
For a related story, see our coverage of the DOJ's rationale for not taping confessions, which is, essentially that juries might not like the methods we use to extract them. Or, in their words, juries should not see or hear the confessions (or judge their propriety) because, in the DOJ's words, “Perfectly
lawful and acceptable interviewing techniques do not always come across
in recorded fashion to lay persons as proper means of obtaining
information from defendants."
Okay, here is the Blog Coverage:
Patterico's Pontifications ("Was a Passage Omitted from a Recent Second Circuit Opinion for “Security” Reasons — Or to Cover Up Material Embarrassing to the FBI?")
Psychsound ("A tale of two decisions (or, how the FBI gets you to confess")
US v. Cole, 06-0226. What was the judge thinking? Of course not. . The second holds that “The notice given during the course of the sentencing hearing and put into effect less than two hours later was insufficient. Failure to give such reasonable notice constitutes plain error.”
The judge also claimed that the defendant had waived his right to object to the PSR by not seeking “administrative resolution” of it, and therefore wouldn’t consider an objection to a enchantment that was reserved in the plea agreement, and therefore, he the judge wouldn’t entertain it. Apparently, the Judge said that counsel violated the “local procedural guidelines rule.” This isn’t a rule. This document of “best practices.” “Cole and the Government agree paragraph three does not have the force of a local rule; it was not adopted by a majority of judges following a period of appropriate public notice and comment.” The government claims it is a “standing order.” Looking at Fed. R. Crim. P. 57(b), the court concludes that it is a “standing order” and therefore this exhaustion requirement would need to be a “matter of detail” and must be consistent with federal law. The court concludes that this “standing order” (if it can be called that) is inconsistent with Fed. R. Crim. P. 32(f) and (i), which not only imposes additional burdens on the parties, but does so in a way that differs across forums.
In his dissent in Husain v. Springer, 04-5250 (2nd Cir., July 13, 2007) (covered at DotD here), Judge Dennis Jacobs of the Second Circuit explains why the majority should not have taken the free speech claims of a student newspaper seriously. Here are choice tidbits from Judge Jacobs:
I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.
But this is not a case that should occupy the mind of a person who has anything consequential to do.
The gist of the complaint is that the editors’ speech was chilled, which is deemed to be a bad thing. [Even if you disagree with the notion of chilled speech, one probably understand why it is a big issue.]
Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it. [It isn’t silly to the plaintiffs, who think their rights were violated. Besides, jury trials are usually over things that seem silly to the uninvolved. Like whether poor people should die in jail or not.]
Contrary to the impression created by the majority’s lengthy formal opinion, this case is not a cause célèbre; it is a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit. [That is for the jury to decide. And, since you never had your opinions stifled, Judge, I don’t think you would understand.]
On the merits, I would affirm for the reasons given in Judge Gershon’s careful and thorough opinion (which I have read). [Really?]
If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys’ fees in excess of one-third of two dollars. [Does he really think that low of juries? I guess he does. After all, they lack his education and manners. Of course, "anything is possible" with judges, too.]
So, is this the kind of opinion that constitutes good legal
writing? Is this what law schools teach
people to write?
Beldarblog (predictably) defends the practice of not taking
the arguments of the litigants and fellow judges seriously here. I
wonder if he would feel the same way if his paying clients were told by a court
that their gripes, were just not worth of being heard by a court because of who they were.
For some reason, I didn’t post the 5/23 decision in which the Second Circuit reversed Judge Kaplan’s decision to use his ancillary jurisdiction to allow (upper middle class) criminal defendants to proceed civilly against their former employer breaching their agreement to pay their attorneys fees. Our earlier coverage was here.
Essentially the court holds:
While we do not exclude the possibility of a legitimate ancillary proceeding involving a non-party to the primary litigation, we believe that the requisite compelling circumstances will be rare, as the need for such a proceeding generally will be far less pressing than in cases involving parties already before the court. In the present matter, the prejudice to KPMG is clear, and the need for the ancillary proceeding is entirely speculative.
Tnx. WCCPB. That said, the indictment might be dismissed. See here for that order. See our earlier coverage here and here.
So parsimony does matter after all. SL&P analyzed the lack of attention paid to the parsimony clause of 18 U.S.C. § 3553(a)(2)here, here, here, and here. But, an alert reader points to today's unpublished decision in U.S. v. Rosa, the “[g]overnment concedes that remand is necessary because the District Court made statements inconsistent with the 'parsimony clause' in 18 U.S.C. § 3553(a)—that is, the statutory mandate to 'impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2).”
In US v. Amerson, the Second Circuit does some strange things with the practice (i.e. The Justice For All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 and § 503 of the PATRIOT Act) of taking DNA samples from non-violent probationers. Granted, many of us fear our neighbors, and think we would all be better off if everyone was in some database (except ourselves), but, the Second's perverse "logic" as to why “special needs” probably requires some analysis.