The job of the prosecutor is to hold the public accountable. But when the tables are turned—when the prosecutor is the one who allegedly flouted the law—it is, paradoxically, enormously difficult for victims to achieve recourse. Lawyers yesterday sparred at the U.S. Court of Appeals for the 5th Circuit over one such barrier preventing someone from suing a former assistant district attorney accused of misconduct so egregious that one judge on the 5th Circuit described it last year as "utterly bonkers."

At the center of the case is Ralph Petty, whose yearslong career included work as both an assistant district attorney and a law clerk—at the same time, for the same judges. In practice, that means his arguments as a prosecutor were sometimes performance art, because, as a law clerk, he had the opportunity to draft the same rulings he sought in court. It doesn't take a lawyer to deduce that the set-up presents troubling implications for due process.

One of Petty's alleged victims, Erma Wilson, would like the opportunity to bring her civil suit against him before a jury. In 2001, she was convicted of cocaine possession after police found a bag of crack on the ground near where she and some friends were gathered. Law enforcement offered to let her off if she implicated the guilty party; she said she didn't know.

Years later, that conviction continues to haunt her. Most notably, it doomed any chance of her fulfilling her lifelong dream of becoming a nurse, because Texas, where she lives, does not approve registered nursing licenses for people found guilty of drug-related crimes.

Wilson's conviction coincided with the beginning of Petty's dual-hat arrangement in Midland County, Texas. Though he was not the lead prosecutor on her case, she alleges he "communicated with and advised fellow prosecutors in the District Attorney's Office" on her prosecution while simultaneously working for Judge John G. Hyde, who presided over her case, giving him "access to documents and information generally unavailable to prosecutors." (Hyde died in 2012.)

"Further undermining confidence in Erma's criminal proceedings, Petty and Judge Hyde engaged in ex parte communications concerning Erma's case," her lawsuit reads. "Consequential motions, such as Erma's motion to suppress, were resolved in the prosecution's favor throughout trial. And despite the weak evidence against her, Erma's motion for a new trial was not granted. Any of these facts by itself undermines the integrity of Erma's trial. Together, these facts eviscerate it." 

Typically prosecutors are protected by absolute immunity, which, as its name implies, is an even more robust shield than qualified immunity. But that issue is not before the 5th Circuit, because Wilson must overcome another barrier: Someone who has been convicted of a crime may not sue under Section 1983—the federal statute that permits lawsuits against state and local government employees for alleged constitutional violations—unless "the conviction or sentence has been reversed on appeal or otherwise declared invalid," wrote Judge Don Willett for the 5th Circuit in December. "The wrinkle here is that Petty's conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence."

But Willett—the same judge who characterized Petty's alleged malfeasance as "utterly bonkers"—did not appear happy with his own ruling, which he said came because his hands were tied by precedent. He invited the 5th Circuit to hear the case en banc, where all the judges on the court convene to reconsider an appeal, as opposed to a three-judge panel (the usual format for evaluating cases).

The court accepted. "The defendants say that [Wilson is] forever barred from invoking that federal cause of action or any other federal cause of action unless she first persuades state officials to grant her relief. If they never do, she can never sue," Jaba Tsitsuashvili, an attorney at the Institute for Justice who is representing Wilson, argued yesterday. "In most circuits, that argument would be rejected, and rightly so."

At the center of the case is Heck v. Humphrey (1994), a Supreme Court precedent that, as Willett noted, forecloses Section 1983 relief for plaintiffs alleging unconstitutional convictions if his or her criminal case was not resolved with "favorable termination." The catch: Most federal appeals courts have established that Heck does not apply when federal habeas relief is no longer available, as is the case with Wilson. The 5th Circuit is an exception.

Perhaps soon it won't be. Yet even if the judges agree with Tsitsuashvili's interpretation of the law, Wilson is not in the clear. She will then have to explain why Petty is not entitled to absolute immunity, which inoculates prosecutors from facing such civil suits if their alleged misconduct was carried out in the scope of their prosecutorial duties. It is nearly impossible to overcome. But Petty may not be a candidate for it, because his malfeasance was technically not committed as a prosecutor. It was committed as a law clerk.

Should Wilson be granted the privilege to sue, it will be the first time an alleged victim of Petty's gets a tangible chance at recourse. There was, of course, the fact that he was disbarred, but defendants whose trials were marred by Petty likely take little comfort in that, particularly when considering it came in 2021—two years after he retired.

The post Can This Woman Sue the Rogue Prosecutor Who Allegedly Helped Upend Her Life? appeared first on Reason.com.

Looks like Steve Bannon could finally be headed to prison. A federal appeals court in Washington D.C. upheld his contempt of Congress conviction today for defying subpoenas by the Jan 6th committee. From Meidas Touch Network:

The United States Circuit Court for the District of Columbia has officially rejected Steve Bannon's appeal of his contempt of Congress convictions for his failure to comply with lawful subpoenas issued by the January 6th Committee.

— Read the rest

The post Hello prison! Steve Bannon loses after federal appeals court upholds his conviction appeared first on Boing Boing.

Looks like Steve Bannon could finally be headed to prison. A federal appeals court in Washington D.C. upheld his contempt of Congress conviction today for defying subpoenas by the Jan 6th committee. From Meidas Touch Network:

The United States Circuit Court for the District of Columbia has officially rejected Steve Bannon's appeal of his contempt of Congress convictions for his failure to comply with lawful subpoenas issued by the January 6th Committee.

— Read the rest

The post Hello prison! Steve Bannon loses after federal appeals court upholds his conviction appeared first on Boing Boing.

In December 2022, Reason reported that both state and federal wildlife agents routinely trespass onto private land and plant cameras. Two Tennessee homeowners successfully sued the state over the practice, and a three-judge panel ruled in their favor. The state appealed the decision, and this week the court of appeals ruled in the homeowners' favor.

At issue is a state law allowing officers of the Tennessee Wildlife Resource Agency (TWRA) to "go upon any property, outside of buildings, posted or otherwise," in order to "enforce all laws relating to wildlife." In the case of Terry Rainwaters and Hunter Hollingsworth, TWRA officers not only entered their respective properties but also installed trail cameras to look for hunting violations, all without a warrant and ignoring "No Trespassing" signs. A lawsuit filed by the Institute for Justice (I.J.) on behalf of Rainwaters and Hollingsworth asked the court to declare the law unconstitutional and issue an injunction against the TWRA, barring it from carrying out any further unwarranted intrusions.

Under the "open-fields doctrine," Supreme Court precedent dating back to Prohibition holds that undeveloped land on someone's property lacks the same rigorous Fourth Amendment protections as their home and the "curtilage," the area immediately surrounding the home.

In March 2022, a three-judge panel from the Benton County Circuit Court ruled in the homeowners' favor, finding that the state constitution provided more protections than the Fourth Amendment. It determined that the state law allowing the TWRA practice created an "intolerable risk" of abuse and was "facially unconstitutional," but it stopped short of issuing an injunction. The state appealed the decision the following month.

In a hearing before the Tennessee Court of Appeals Western Section on June 20, 2023, I.J. attorney Josh Windham argued that the state law is unconstitutionally broad. "It allows TWRA officers to enter and roam around private land, fishing for evidence of crime," Windham said. "It doesn't require consent. It doesn't require warrants. It doesn't require probable cause….It's a blank check for officers to invade private land whenever and however they please."

Amanda Jordan argued for the Tennessee Attorney General's office that the statute was not unconstitutional and that the policy was necessary for the TWRA to do its job. She argued that "it's the particular purpose and function of the TWRA which makes such warrantless entry reasonable."

Judge Jeffrey Usman asked Jordan why, if the state would need a warrant in order to enter someone's property to look for criminal violations, it should not also need a warrant to do the same for civil violations of hunting laws. Jordan agreed that "while normal law enforcement officers would not be able to enter" without a warrant, "you have to look at the state's interest in furthering its duty of protecting and preserving" Tennessee's wildlife.

But Usman pressed further, asking whether the state has "an even stronger interest in protecting persons than wildlife." Further, he asked, "If you can't enter to investigate a crime being committed against a person…why is the interest greater to enter to protect wildlife?"

In a decision issued Thursday, the court of appeals ruled in favor of the property owners. The TWRA claimed that the homeowners' claims of injury were "speculative" as "TWRA agents have not entered the Plaintiffs' lands since September 2018." The court disagreed: Writing for a unanimous court, Usman noted in the decision,

Even if the TWRA has not entered the Plaintiffs' properties since 2018, it continues to assert its power to do so. The TWRA has asserted a continuing right to enter upon the Plaintiffs' properties. At oral argument, the TWRA suggested that if the Plaintiffs want to keep the TWRA off of their land in the future that they should desist in hunting.

"At the most foundational level," the court determined, "the statute is facially constitutional because there are applications of the statute that are constitutionally permissible," including "wild waste land areas." But in this specific scenario, where wildlife agents planted cameras on homeowners' land without ever even pursuing a warrant, the court found the TWRA's actions unconstitutional as applied.

"The TWRA's contention is a disturbing assertion of power on behalf of the government that stands contrary to the foundations of the search protections against arbitrary governmental intrusions in the American legal tradition, generally, and in Tennessee, specifically," Usman wrote. "What the TWRA claims is reasonable is not."

"Our entire theory of the case was vindicated by this decision," Windham tells Reason. "The part that goes against the trial court ruling [says] that the statute can be constitutionally applied to land where people haven't taken any steps to exert control or exert their privacy, which is a rule we don't particularly object to."

The post Tennessee Appeals Court Rules Against Wildlife Agents Who Planted Cameras on Private Land appeared first on Reason.com.