Perspective Would Be Nice

The day after the off-off-year elections – previously discussed here if you must obsess about them – the nation moved on to other matters. That was over. The Republicans picked up two governorships and the Democrats picked up two House seats, and Maine became another state that will not agree gays should be allowed to marry each other. The only surprise was that matter up in New York’s 23rd Congressional District, where the tea-baggers and the combined forces of Glenn Beck, Sarah Palin, Dick Armey and his FreedomWorks outfit, and the Family Research Council, and Rush Limbaugh, Fox News and the editorial board of the Wall Street Journal, swung into action and backed the rather hapless but ideologically pure candidate from the Conservative Party, and forced the moderate Republican candidate out of the race. Yes, as Maine was flooded with Mormons from Utah, spreading the word on the importance of traditional marriage, and not mentioning that polygamy thing, every hamlet from Oswego to Plattsburg was filled with the Beck-Palin acolytes, and the press. Of course that helps the local economy – hotels and restaurants were filled, and the news vans needed fuel and so on. But it didn’t amount to much in the end. The gay marriage thing in Maine had always been a long shot, and the voters in NY23 seemed a bit irritated with the outsiders from Alaska to Texas telling them how they should vote, and they elected the Democrat, somewhat by default. And the safe Republican seat, since years before the Civil War, flipped Democratic. And that was that.

Can we move on now? It’s over.

But Rick, the News Guy in Atlanta, sent this along:

So what do the NY23 results tell our conservative friends about how things are going to be different now, anything? No, probably not. But maybe you can extent our thanks to them anyway for our new congressman. We’re always in the need for another one of those. In fact, I hope they’re right about purity on their side, and this whole little scenario repeats itself on a nationwide basis next year.

Not that I’m singing in the streets about Virginia and New Jersey, of course; those do, I think, portend something that Democrats need to heed concerning 2010. But at least the exit polls show it wasn’t about Obama, as so many Republicans seem to think it was.

As for NY23, a morning-after survey of the blogs showed an odd thing. That was actually a “victory” for the Beck-Palin crowd. They really showed the Republican “moderates” (Limbaugh says a moderate is anyone with no principles at all) that they can punish them for their lack of backbone. Handing the Democrats this seat shows those wishy-washy moderate establishment Republican bastards a thing or two – see Red State and Michelle Malkin.

But the Democrats picked up two more house seats (add CA10) thank you very much. That makes healthcare reform just a little more likely. Their “purity purge” is pretty cool for the Democrats. As for New Jersey and Virginia, well, yes, local, but a warning of sorts.

Rick added this:

Speaking of Sarah Palin, is this not a great example of that old “putting lipstick on a pig” thing Obama was talking about? And speaking of Michelle Malkin, just this morning I reread Frank Rich’s pre-election take on NY23 in which he says – “Mocking Newt’s presumed 2012 presidential ambitions, Michelle Malkin imagined him appointing Al Sharpton as secretary of education and Al Gore as ‘global warming czar.’ She’s quite the wit.”

Those last four words are such an economical comeuppance that I just had to laugh.

As for Glenn Beck’s reaction, see Alex Koppelman:

If it weren’t for Glenn Beck, Doug Hoffman and his unlikely insurgent third-party candidacy in New York’s 23rd Congressional District might never have happened. Hoffman did, after all, recently name Beck as one of his mentors, and the Fox News and radio host gave the candidate a boost by putting him on the air.

So it was only natural that Beck would weigh in on Hoffman’s loss to Democrat Bill Owens during his radio show on Wednesday. And it wasn’t particularly surprising that Beck, like some of his ideological allies, would say the defeat was really a win. In fact, he said it was “setting the stage” for something next year that would “dwarf” the midterm elections of 1994, when Republicans swept back into power in Congress.

Yep, the next time, 2010, the people who believe in him and his values will sweep all Democrats and all impure Republicans from office – anyone can see that. He’s started the revolution. Someone had to do it. He, and Sarah Palin and Michele Bachmann, supported by the impassioned writing of Michelle Malkin and Bill Kristol (the man who made Dan Quayle vice president and almost pulled it off with Sarah Palin), are the future.

Well, maybe – or maybe not. Koppelman has the transcript of what Beck was saying about how this loss in upstate New York would mean certain victory in 2010 at the link, if you want to be convinced. Koppelman also notes that during this day-after-the-election radio broadcast, Beck suffered an attack of appendicitis – Beck didn’t make it to Fox News studios for his afternoon television show, as it was off to “an undisclosed hospital” to have his appendix removed. When it rains it pours. Times are tough.

But enough is enough, and the next elections are a year away. Other things are happening – curious things, startling things. For example, the Supreme Court is in full session again, hearing oral arguments on thorny issues. And you know that when any matter gets bumped on appeal from district court up to circuit court, and then on appeal up to the Supreme Court, that’s because there are good arguments on both sides, and the final thing to do is to look into the matter and decide how the constitution actually applies. That’s their job, to be the final arbiter, to settle things one way or the other.

And what they do affects us all. In Plessy v Ferguson (1896) they decided that “separate but equal” was just fine, upholding segregation, and in 1954, in Brown, they decided that, well, nope, that made no sense, and they ordered that public schools be desegregated. That caused no end of trouble. You have to pay attention to these folks. It’s not for nothing that people get all hot and bothered when one of these nine lifetime appointments falls open and the president has to nominate someone new, and the Senate must confirm the appointment. It’s a big deal – bigger than who will be the congressman from an odd and obscure district in upstate New York for the next two years, or who, other than Tony Soprano, now runs New Jersey.

And Obama, with a Democratic Senate, managed to get that Hispanic woman, Sonya Sotomayor, on the court, over the howls of much the same crowd that flooded upstate New York – she said she believed in empathy, and God knows where that could lead. Scruffy dark people who talk funny would so be getting things they didn’t deserve. And she thought her background, as a woman, from a minority, might add some needed perspective. That was even worse – the wealthy white male pro-business anti-labor praise-Jesus perspective might get lost in the shuffle, and such wealthy white males “built America and deserve more” – or so Pat Buchanan argued.

It didn’t do any good. She was confirmed, and she is on the court. As they say, elections have consequences, and America elected Obama.

And on Wednesday, November 4, an odd case came up for oral argument at the new and less white Supreme Court – Pottawattamie County v. McGhee. This is not a minor congressional race in an odd corner of nowhere, of course, but it is interesting. And Slate’s Dahlia Lithwick attended the oral arguments and reports on that event in The Framers on the Framers.

And this one matters, as Lithwick say the case is one of those “instances of shocking constitutional wrongs that cannot be corrected by constitutional courts.” It was a mess.

The facts, as she summarizes them:

In 1977, two young African-Americans – Terry Harrington and Curtis McGhee – were arrested for the murder of John Schweer, a retired police officer in Council Bluffs, Iowa. They served 25 years in prison until it was revealed that police detectives and the prosecutors in the case may have set them up. Among other things, the prosecutors, Dave Richter and his assistant Joseph Hrvol, failed to turn over evidence showing that their initial suspect, Charles Gates, had been seen with a shotgun by other witnesses at the crime scene and failed a polygraph test. Instead, the prosecutor and cops relied on the testimony of Kevin Hughes, a 16-year-old accused of stealing a car. The police promised to help him with his various criminal charges, and possibly offered him a $5,000 reward, for his assistance with the Schweer investigation.

You could say that they suborned perjury, but that wasn’t exactly it. But it was close, as the flaky Kevin Hughes was an eager fellow:

Hughes’ helpfulness evidently knew no bounds. It ranged from naming all sorts of culprits with solid alibis to changing his recollections about the murder weapon until it fit the crime. Hughes eventually settled on Harrington and McGhee as the murderers and testified against them at trial. Police knew Hughes’ story was fishy. Nevertheless, both defendants were sentenced to life in prison. Some 25 years later, after the misconduct was uncovered, the Iowa Supreme Court overturned both convictions, and the men were freed.

But that wasn’t enough. Even if they let you go and say, oops, sorry, twenty-five years in jail can make you grumpy, and Harrington and McGhee sued state officials. Lithwick cites the code they used – 42 U.S.C. § 1983 – which provides for civil suit against “every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”

Actually, it’s pretty simple. If you have the authority to use the law, you can’t use it to take away people’s rights, which in this case was putting them in the slammer for twenty-five years. It’s an abuse of power, you see.

But the question in this case is whether the two prosecutors are entitled to absolute immunity from such suits. And that, it seems, has been the rule since 1990, although it’s a little complicated:

The Supreme Court has held that while cops have only limited immunity from lawsuits, prosecutors enjoy what’s known as absolute immunity for their conduct under most circumstances. (Otherwise every conviction would end in a lawsuit.) But Harrington and McGhee claim that a prosecutor’s immunity should not extend to helping the police long before the trial, by, say, collecting false statements and coerced testimony. The district court denied immunity to the prosecutors, and the 8th Circuit agreed that they were not absolutely immune for the misconduct that happened before the trial.

So the lower courts said that while prosecutors enjoying an absolute immunity for their conduct is a very practical arrangement, in this case that was bullshit. They may not have participated in the actual trial itself, but they set these two up. Something should be done. There should be redress. The courts should not just shrug and say too bad, but sometimes it just sucks to be you, doesn’t it?

But when things get to the highest court, there’s always an argument the other way, that absolute immunity is what the Supreme Court established long ago, and the law is the law.

Lithwick relates what happens next:

Stephen Sanders, an associate at Mayer Brown, represents the two prosecutors this morning. He garners – by my count –five questions that begin with the phrase “that makes no sense” or something to that effect. Unfortunately for Sanders, the most important iteration of this phrase comes from Justice Anthony Kennedy, whose vote generally tends to be decisive in the whole “Sucks to Be You” class of cases. It is Kennedy who interrupts him to ask whether the court was merely “wasting our time” or “just spinning our wheels” in a 1990 case that gave prosecutors immunity for misconduct if its fruits were not introduced at trial. Kennedy and Justice Antonin Scalia also get Sanders to concede that if a police officer passed along fabricated evidence or another prosecutor – one not involved in the trial – did so, that conduct would not be immune from suit.

Kennedy looks annoyed. “So the law is, the more deeply you’re involved in the wrong, the more likely you are to be immune? That’s a strange proposition.”

Adds Justice Ruth Bader Ginsburg: “It’s strange to say a prosecutor who wasn’t involved in the trial would have liability, but as long as the prosecutor turns the investigatory material over to himself, there’s absolute immunity.”

You can see how complicated this gets, but the defense, trying to get the two prosecutors off the hook, makes it even worse:

Sanders explains that fabricated evidence itself doesn’t constitute a constitutional violation because that can happen only when it’s introduced at trial. Justice Sonia Sotomayor – sporting earrings the size of small saucepans today – cuts him off. “But that makes no sense, because neither a police officer nor a different prosecutor who fabricated evidence would be liable,” if the constitutional violation only happens at trial.

And then Ginsburg can’t understand how the prosecutor cannot be said to have caused the original constitutional violation – “If this fabrication had not occurred, there never would have been any trial.”

And on and on it goes. An attorney on the side of the prosecutors says the prosecutors may have fabricated evidence, but they didn’t actually participate in the trail itself, so stop picking on them. And really, Harrington and McGhee are asking this court “to announce for first time ever that there is a free-standing due process right not to be framed.”

Well, yes, they are. That’s the whole point. But the conservative strict-constructionists go on to argue that, damn, that wasn’t written down way back when, so there is no such right. The guys in the powdered wigs didn’t mention it. And Justice Breyer gets pissed at that, saying that of course “there is no free-standing right. There is just a right not to convict a person with made-up evidence.”

And on it goes, in even more detail. But it comes down to former Solicitor General Paul Clement representing the two wrongfully convicted defendants:

If the court’s going to go back to first principles, let’s look at the statute Congress passed in 1871. … This is one of the great civil rights statutes. I think it’s clear, from this court’s cases, that the police officer that engages in misconduct has committed a grave, grave constitutional violation and ought to be liable. I think the prosecutor who engages in the pretrial misconduct and then doesn’t participate in the trial is just as liable as that police officer. And I can’t think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct, but completed the scheme by committing further misconduct at trial.

Well, the ruling on this will come in a few months, as is usually the case. But this is serious stuff. In the Beck-Palin world it may not merit a comment, as it is complicated, but in another way it’s quite simple. It has to do with your basic right to fair treatment. Should you have a right not to be framed, by the government, for something you did not do? It doesn’t get more basic than that. And it makes a scattering of off-year elections seem like small beans.

Some perspective would be nice.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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