10th Circuit Hears Oral Argument in Fugitives' Case Against BATF Agents For Illegal Wiretapping

The Tenth Circuit Court of Appeals heard oral arguments last week in a civil case brought by Pamela Phillips against BATF Agents whom she claims illegally wiretapped her. The issue is whether the BATF agents are immune from her suit.

There is an active arrest warrant out for Phillips in Arizona, on charges she conspired to commit first degree murder by hiring a former boyfriend to kill her husband. Her husband, real estate developer Gary Triano was killed in 1996 when a pipe bomb in his car exploded at a country club in Tuscon. She took off, reportedly to....Switzerland. [More...]

Lt. Michael O'Connor of the Pima County Sheriff's Department said last week that there is still a warrant outstanding to arrest Phillips on a charge of conspiracy to commit first-degree murder in Triano's death.

"We are working with the United States Marshals Service and the Swiss authorities because we believe she's actually in Switzerland," O'Connor said.

Background on the case, which has been in the news for years in these parts, is here. Phillips argues in the lawsuit that the BATF agents included information about the illegally taped calls in a 2006 search warrant for her home in Aspen, the purpose of which was to gather evidence to connect her to the murder. Her lawyers say they offered to surrender her and expected her to return, but she hasn't.

She filed suit in 2007. The lower court rejected the agents' claims they were immune. Last week, the Tenth Circuit didn't refuse to hear the case because Phillips won't return to the U.S. to face the murder charge.

In a court filing, Justice Department lawyers have stated that if Phillips' lawsuit is allowed to proceed, the government may argue it should be dismissed because of her status as a fugitive.

May argue? What are they waiting for? Maybe it's not a winnable argument? Maybe not all fugitives are prohibited from litigating their claims in court? They certainly don't seem to be in civil cases.

Yet, Phillips also has a 2008 DUI case in Aspen.

She was arrested Aug. 31, on suspicion of driving under the influence of alcohol or drugs. She was scheduled to be arraigned Tuesday but did not attend the hearing.

Pitkin County Judge Erin Fernandez-Ely said Phillips was not required to attend. But the judge did order Phillips to attend her next scheduled hearing Dec. 16 at the Pitkin County courthouse.

So she's a fugitive in that criminal case. But that also didn't stop the 10th Circuit from hearing her civil lawsuit lawsuit last week. Authorities say they will arrest her should she return:

“We believe the suspect is overseas. Our information is that she is in Europe,” said Rick Kastigar, Bureau Chief of the Pima County Sheriff's Department, on Thursday afternoon. “We know she has a daughter in Switzerland.”

He added Phillips would be arrested should she try to re-enter the United States through a normal entry point.

Also in 2008, Phillips was allowed to challenge a request for her deposition in a civil lawsuit brought against her by her step-children. Her status is hardly a secret. Phillips has been featured on both America's Most Wanted and Dateline.

As I wrote here, even Roman Polanski was allowed to defend the civil lawsuit brought by the victim in his criminal case while in France. (news article on that here.)

Why is a fugitive allowed to participate in a civil case to defend or advance his or her property and economic interests, but not allowed to defend their liberty interest in a criminal case, particularly when the challenge (and the reason they became a fugitive) is based on allegations of official misconduct in that very proceeding?

Pamela Phillips has never been brought before a court or pleaded guilty. Yet, she is wanted, and there apparently is an outstanding arrest warrant out for her for conspiracy to commit first degree murder. And, she's been allowed (so far) to challenge the evidence used to obtain that warrant in a civil proceeding. Could Polanski sue former DA Ted Wells, the estate of the Judge, the L.A. District Attorney's office and the Superior Court of Los Angeles in a federal civil action for the violation of his constitutional right to due process of law and a fair sentencing proceeding, and have the illegality of their actions determined while he's in Switzerland?

I have no idea, but as I said the other day, there seems to be an inconsistency in the application of the civil and criminal laws applicable to challenges by fugitives, and I'm not sure why, or that the distinction is fair.

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    TL, you ask: (5.00 / 1) (#5)
    by scribe on Sat Oct 03, 2009 at 09:48:40 AM EST
    Could Polanski sue former DA Ted Wells, the estate of the Judge, the L.A. District Attorney's office and the Superior Court of Los Angeles in a federal civil action for the violation of his constitutional right to due process of law and a fair sentencing proceeding, and have the illegality of their actions determined while he's in Switzerland?

    The problem for Polanski filing such a suit is manifold. A few years back when I was defending prosecutors against civil suits such as the one you suggest, I had winnowed my defenses down to about 7, each of which was independently sufficient to get a dismissal right out of the box.

    As to the judge:  he has absolute immunity - the "judicial immunity" - from civil suits for anything he does while in the judicial role.  This is an ancient immunity and has been reaffirmed within the last 20 years or so by the US S.Ct.

    As to the prosecutor:  he has asbolute immunity - the "prosecutorial immunity" - from civil suits for anything he does while in the prosecutorial role, i.e., "as an advocate for the state".  You can look it up:  Imbler v. Pachtman, a US S.Ct. case from the late 60s, involving a man convicted of a murder he had not committed, by a California Court.  the prosecutorial immunity is before the S.Ct. again this term in the Pottowatomie [sp] County case out of Iowa - a prosecutor knowingly framed two guys for a murder (i.e., knowingly put in false evidence that pointed to them and away from his interests) and they both did over 25 years based on that framing.  I expect these former defendants will come away empty-handed.

    All the lawyers and judges and support personnel get the benefit of the absolute judicial proceedings immunity, though the scope of that varies from state to state.  Anything said or done in the furtherance of judicial proceedings comes within that immunity.

    Any claim Polanski would make would wind up being devolved to something called a malicious prosecution claim.  An essential element of that cause of action is that you are innocent of the crime you were prosecuted for and that they prosecuted you without probable cause.  This leads to two interesting problems.

    First, if he was arrested pursuant to a judicial warrant (on a complaint or information), then to issue that there had been a judicial finding of probable cause.  So long as that finding (i.e., the arrest warrant) stands, he can't prove his civil case b/c there was probable cause.

    Second, if he was indicted, that indictment is a finding by the grand jury that it is more likely than not that he committed the crime alleged, i.e., that there is probable cause.  Again, so long as the indictment stands, he can't prove his civil case.  

    In federal civil cases where a plaintiff was alleging misconduct in a state criminal case, I used to combine these two principles (depending on which obtained in the particular case) with the Rooker-Feldman doctrine for a particularly nasty (as in lethal to the plaintiff's case) motion to dismiss.  Rooker-Feldman doctrine says, in so many words, that federal district courts do not review (or even question) the validity or content of duly entered state court decisions, nor do they sit as courts of appeal from decisions of state courts.  If the plaintiff wanted to get a civil case going, he would have to have had the warrant vacated and/or the indictment vacated in the state court, something (a) no one ever thinks about (they're much too happy just to get a dismissal) and (b) they would have been way out of time to do by the time they got around to realizing they needed to do it.  A couple years ago, the S.Ct really reined in the Rooker-Feldman doctrine (it was getting entirely too potent in a plethora of contexts), so I don't know whether it would work this way any more;  I haven't had any of those cases since that S.Ct. decision.

    And then, finally there's another element to the malicious prosecution claim which any plaintiff has to prove:  that he was innocent of the crime charged.  It can't be a malicious prosecution if you were, actually or arguably, guilty.   The core problem with bringing a malicious prosecution claim for Polanski is that he has (at a minimum) indicated an intent to plead guilty or already has pleaded guilty to a crime.  To prove he was not guilty, he would have to admit that, when he said under oath that he was guilty, he was lying.  Problematic, at best.

    If, on the other hand, no judgment in the criminal matter has been entered, then discovery is, of course, in order in the civil action.  That means, for example, that the plaintiff will have to give his deposition and answer written questions under oath - interrogatories.  There is a corollary rule which addresses this and which makes worse an already bad situation for the plaintiff:  when you sue, you waive your right to refuse to answer questions about the subject matter of the suit.  You sue someone for breaking your arm means you have to answer questions about your arm, how you use it, the treatment you receive, etc.

    The problem with that rule for a plaintiff is that it has been interpreted through the decades in scads and scads of cases that this rule means a plaintiff must answer questions about the crime and any invocation of the Fifth Amendment to prevent or preclude questions along one line or another means he must accept his case being dismissed.

    I once defended a prosecutor in a case where the plaintiffs were suspected of a murder, but were being held on forgery charges, and they argued they had been maliciously prosecuted by being improperly put under a very high bail because of the suspicion (but no charge) of the murder.    "Fine", I said.   "You say your clients are innocent of the murder and that supports their malicious prosecution claims against the prosecutor?"
    "Yes", came the response from their lawyer.
    "OK," I said.  "I'll take their depositions.  Since the prosecutor is a party, he has a right to be there and, as my client, can feed me all the questions I want to ask.  Because bringing and maintaining the suit is a waiver of the Fifth Amendment, your clients will have to answer them.  Under oath.  And, by the time I get done, they will both be looking at the business end of a needle."

    That case went away within a week.

    And, BTW, you see that with respect to all of these defenses, no one ever reaches the merits of the case.  

    So, in conclusion, Polanski can file a suit, but he has no realistic chance of succeeding.

    It's not whether he succeeds (none / 0) (#6)
    by Jeralyn on Sat Oct 03, 2009 at 10:15:29 AM EST
    It's whether through discovery in the civil suit, he could get the facts to establish the misconduct in the criminal case. If through depositions and production of documents, it came to light there was illegal collusion designed to thwart the plea agreement at his sentencing (which his lawyers and the original DA have said in sworn declarations occurred the day before  sentence was to be imposed), the District Attorney's office would be hard-pressed not to dismiss the criminal case.

    He doesn't have to win the civil case for that to happen. He just has to have access to the courts to compel discovery. Pamela Phillips seems to be doing it with an outstanding arrest warrant for murder and an FTA in a DUI case.


    Under the civil rights laws, (none / 0) (#9)
    by Peter G on Sat Oct 03, 2009 at 11:00:17 AM EST
    as they presently stand, for the first reason elaborated by Scribe -- immunity -- the answer to your question, Jeralyn, is (perhaps unfortunately) No. Short answer: RP can't get that discovery by filing suit, because discovery would in all likelihood be stayed while the ex-judge's and ex-prosecutor's motions to dismiss on absolute immunity grounds are litigated, and the motions to dismiss would almost certainly be granted, thus ending the case. (Most of the rest of what Scribe wrote, imho, is off base -- whether a federal civil rights case has to meet the elements of a state malicious prosecution tort claim, and how the Fifth Amendment privilege would apply -- at least as to the Polansky question you posed, but not worth addressing here.)  

    ok, but what about (none / 0) (#12)
    by Jeralyn on Sat Oct 03, 2009 at 11:10:36 AM EST
    Ted Wells and the DA's office? Do they have immunity? He was the original DA assigned to the case (during the investigation and obtaining of search warrants) and the calendared DA in the judge's court even after he was removed from the case. The court found the BATF agents in Phillips case don't have immunity -- that's the issue the 10th Circuit held oral argument on last week.

    I don't know the answer, that's why I'm asking.


    never mind (none / 0) (#13)
    by Jeralyn on Sat Oct 03, 2009 at 11:18:41 AM EST
    I thought you said only the judge has absolute immunity but you said Wells and the DA's office does as well.

    Is the law different for law enforcement officers than it is for prosecutors and judges? Or maybe Phillips hasn't sought discovery yet because the agents responded to her complaint with a motion to dismiss. If the 10th Circuit says the agents aren't immune, will she then move for discovery and they respond with a motion for stay alleging she's a fugitive and has no right to ask for it? Maybe that's why they said they will raise the issue in the future if the case gets that far.


    Yes. And prosecutor acting outside (none / 0) (#14)
    by oculus on Sat Oct 03, 2009 at 11:21:08 AM EST
    of his job description is in jeopardy.  For example, participating in execution of search warrant.  Doesn't seem to be anything wrong w/search warrant or how executed in Polanski case though.  Not the issue.  If I were representing Polanski in a civil lawsuit against the judge and DDA, I would argue the judge does not have judicial immunity for having a press conference in his chambers on a pending sentence.  Probably wouldn't fly though.

    so is the former DA (none / 0) (#16)
    by Jeralyn on Sat Oct 03, 2009 at 11:32:57 AM EST
    immune from claims he acted ultra vires -- outside his legal authority as a prosecutor -- by engaging in sentencing discussions with the judge when he was no longer assigned to the case? Is the DA's office immune from liability for his legal conduct because it was not foreseeable and outside the scope of his duties?

    Are principles of agency law applicable?

    I guess I'm not seeing why a court found the BATF agents aren't immune but Wells (or a judge acting illegally) would be.  Maybe I'll look it up or ask Pamela Phillips lawyer if he knows the answer.


    Law enforcement officers have to rely on (none / 0) (#17)
    by oculus on Sat Oct 03, 2009 at 11:35:32 AM EST
    qualified immunity, which is usually resolved on motion for summary judgment.  

    Ah, thank you (none / 0) (#19)
    by Jeralyn on Sat Oct 03, 2009 at 11:37:48 AM EST
    So the judge and prosecutor have absolute immunity while cops and law enforcement agents have qualified immunity?

    More complicated than that. Have to (none / 0) (#22)
    by oculus on Sat Oct 03, 2009 at 11:42:39 AM EST
    prove up elements of qualified immunity.  Here is an accurate discussion:  Cornell

    In a word, yes. (none / 0) (#26)
    by scribe on Sat Oct 03, 2009 at 12:26:17 PM EST
    They all have immunity and (none / 0) (#15)
    by scribe on Sat Oct 03, 2009 at 11:25:40 AM EST
    more importantly, there is a welter of case law from the US Supreme Court which says, in so many words, that the immunity is useless if the prosecutor defendants have to go through the burden and distraction of discovery, so all issues of immunity are to be decided first, before any discovery takes place.

    And, further, in federal court any decision by the district court denying a summary judgment which was sought on the grounds of immunity is immediately appealable to the Circuit (and, if it survives there, the Supreme Court) as it is an exception to the general rule which prohibits interlocutory appeals.

    Seeking discovery would be a useless exercise.


    if it was so clear cut (none / 0) (#18)
    by Jeralyn on Sat Oct 03, 2009 at 11:36:58 AM EST
    why did a federal district court deny the agents' immunity claim? Ok, I was hoping to avoid this, but I guess I'll go get the pleadings in the Phillips case.

    The agents' immunity in investigating (5.00 / 1) (#23)
    by scribe on Sat Oct 03, 2009 at 11:45:16 AM EST
    would be a qualified immunity, not an absolute one.

    The qualified immunity would be, paraphrased in so many words, that they would be immune if they did not violate a constitutional right of which a reasonable agent would reasonably have been aware.  This formulation allows courts to say "well, this is a constitutional right, but no one had ever raised the issue about it before, so a reasonable agent would not have known he was violating the Constitution, therefore these agents are going to be immune.  But, in the future, they would not be."  Kind of like giving a dog one free bite, and then the dog owners look for every way they can scheme to say Rover never bit before.

    But, in this case, the district court said, in so many words, that these agents violated right(S) they knew or should have known were clearly defined, and therefore would not be entitled to the qualified immunity.  Thus, the immediate appeal - denial of a claim of immunity is an exception to the rule barring interlocutory appeals.


    Immunity for police & other LEOs (none / 0) (#21)
    by Peter G on Sat Oct 03, 2009 at 11:38:59 AM EST
    is not the same at all. Prosecutors and judges (acting w/in the broad limits of the job description, as Oculus usefully clarifies) have "absolute" immunity.  LEOs have only "qualified" immunity, that is, they are only immune from civil rights civil liability if their actions are undertaken in good faith. To put it the other way, they are only liable if a properly trained officer would know that the alleged misconduct was unconstitutional under then-existing law.  What actions did any LEOs participate in that allegedly violated RP's constitutional rights?  I thought it was only DA Wells and the judge, conspiring ex parte to fix the sentence and violate the plea agreement?

    you thought right (none / 0) (#24)
    by Jeralyn on Sat Oct 03, 2009 at 12:10:00 PM EST
    Yes, it's only the prosecutor and judge (not law enforcement) whose conduct is at issue in Polanski's case.

    Thanks for answering the question. With absolute (vs. qualified immunity) for judges and prosecutors, there's no way for Polanski to bring a civil suit. Phillips suit is only against law enforcement officers.

    It will be interesting to see if the 10th Circuit upholds her right to sue the agents, if she is allowed to continue litigating the case given her fugitive status.

    Thanks, Peter.


    Jeralyn, did you know Philip Vannatter, who (none / 0) (#25)
    by oculus on Sat Oct 03, 2009 at 12:23:16 PM EST
    was involved in O.J. Simpson double homicide case, was the lead officer on Polanski case?  If the latter had followed your admonition and kept his mouth shut when the officer and DDA arrived at the hotel w/search warrant, where might Polanski be today?

    yes I knew that (none / 0) (#34)
    by Jeralyn on Sat Oct 03, 2009 at 06:48:20 PM EST
    I didn't trust him in OJ -- he's the one who played it funny with the vial with OJ's blood reference and made contradictory statements about why they went to OJ's house to begin with. I wouldn't trust him in any case, but he isn't the issue here. This isn't about the offense but whether the judge committed misconduct during court proceedings.

    PeterG, I;'ve successfully defended (none / 0) (#30)
    by scribe on Sat Oct 03, 2009 at 05:35:20 PM EST
    a number of federal civil rights cases brought by disgruntled criminal defendants against prosecutors, both before and after conviction, and I'm speaking from experience of actually researching the caselaw, running it through Shepards and writing the briefs and then litigating the issues in real courts before real judges.

    Regardless of how Polanski structured his arguments, they would devolve to a malicious prosecution claim, or to any other species of tort in which he would have to prove his innocence.  He would not be alleging false imprisonement, nor battery, nor anything other than being subjected to (the threat of) punishment through some egregious violation of law, morals or good faith, all of which fall under the heading of a malicious prosecution.

    Even if it didn't, there is a line of cases out of the Supreme Court (the name of the leading case escapes me right now) which states that for a former criminal defendant to even have standing to bring a federal civil rights claim, the judgment of conviction must first be either reversed, vacated, or vitiated by a habeas petition.  So long as the judgment of conviction stands, his civil rights claim does not even accrue.

    Please don't tell me I'm off base.


    Heck v. Humphrey. (none / 0) (#31)
    by oculus on Sat Oct 03, 2009 at 05:41:37 PM EST
    Terrific case!!!!

    Thanks! I just looked it up (none / 0) (#33)
    by scribe on Sat Oct 03, 2009 at 05:50:58 PM EST
    and posted a comment on it downthread.

    Heck kills more civil rights claims than anyone has any idea, because it deprives a plaintiff of standing so long as that judgment exists.  The only "good" thing which can come out of Heck, insofar as criminal defendant/civil plaintiff is concerned, is that the rule Heck enunciates can result in a toll on the running of the various statutes of limitation (and of state-law tort notice periods, sometimes) and thus preserve an otherwise long-since time-barred claim.

    And, if you want a real extended course in complicated rules, start asking about how to calculate statutes of limitations for civil rights suits.  I've seen a couple where the rules could interact to yield the result that the statute of limitations was already run out before it had begun to run.

    Don't ask how.  It would take forever to explain.


    Sorry you took it personally, (none / 0) (#35)
    by Peter G on Sat Oct 03, 2009 at 09:38:40 PM EST
    Scribe.  I didn't say you were off base; I said that some of your analysis in that comment was off base.  Not doubting your experience, just disputing its applicability to RP's rather unusual claim of misconduct.  Not to bore everyone with a lawyers' debate, but (a) it's just not true that a due process violation -- such as RP's complaint that a member of the prosecutor's office interfered ex parte with the defendant's benefit of a plea agreement -- has the same elements as a common law tort, such as false imprisonment, or would require the defendant to prove his innocence.  Even the guilty have due process rights at sentencing under Santobello.  (b) Heck v. Humphrey only applies to section 1983 claims that, were they to prevail, would necessarily imply the invalidity of the conviction or sentence.  The suit that Jeralyn hypothesized, as I understood it, would not carry this implication, so Heck doesn't apply.  (c) It is not true, as you further asserted, that by filing the sort of suit that Jeralyn hypothesized the defendant would waive his Fifth Amendment privilege against compulsory self-incrimination.  Cases interpreting and applying the Supreme Court's 1920 decision in Arndstein v. McCarthy all agree on this.  However, having sued, he would have to submit to discovery.  If (being a fugitive and all) he failed to appear for deposition, he could be sanctioned, including potentially by dismissal of his lawsuit.  Likewise, if he did submit to civil discovery but then stood on the privilege and wouldn't answer relevant questions, an adverse inference could be drawn against him, or he might even lose the case on summary judgment for failure to provide evidence sufficient to meet his burden of proof.

    Would you permit a criminal defendant (none / 0) (#37)
    by oculus on Sat Oct 03, 2009 at 10:50:31 PM EST
    in Polanski's circumstances to appear for deposition and respond to interrogatories and document requests under oath?

    In my experience, not a good idea.  


    Of course not. (none / 0) (#38)
    by Peter G on Sat Oct 03, 2009 at 11:05:20 PM EST
    I was just correcting some details of aspects of what Scribe posted that I thought were legally incorrect.  I don't disagree with his main point(s) at all, or yours (in this case ... for a change!).

    I find you to be quite knowledgeable (none / 0) (#39)
    by oculus on Sat Oct 03, 2009 at 11:42:04 PM EST
    (and temperate) in your comments.  Keep up the good work.

    My comment stems from a case in which I was defending a government agency.  Plaintiffs were tax protestors.  Their attorney kept objecting at their depositions but couldn't spit out Fifth Amendment.  They were later charged and convicted.


    thanks, so now I have to correct myself (none / 0) (#40)
    by Peter G on Sat Oct 03, 2009 at 11:57:03 PM EST
    "appear for deposition" - yes; that is required, and not excused by the Fifth Amendment.
    "respond to interrogatories ... under oath" - no, that's what the Fifth Amendment privilege protects against
    "respond to ... document requests under oath" - that's trickier.  There is a limited privilege to resist document production under Hubbell, but mostly the Fifth Amendment doesn't apply to the production of pre-existing documents.
       As for tax protesters, God bless 'em.  I've represented about half a dozen in recent years.  Their cases are always interesting, since the government hates them so much (understandably).  And they generally have more money than the average person to pay for counsel (for obvious reasons).

    Respond to interrogatories under oath: (none / 0) (#41)
    by oculus on Sun Oct 04, 2009 at 12:14:43 PM EST
    Response may be a claim of privilege.
    Same re document production, except the response must include a specific list of docs which are not being produced because of the specified objection(s).

    The tax protestors in the case I handled were such fervent believers in their cause.  I suppose they may be "birthers" now.


    Maybe Mr. Polanski thinks that would (none / 0) (#10)
    by oculus on Sat Oct 03, 2009 at 11:06:37 AM EST
    be a waste of his money.

    Of course Polanski can defend himself (5.00 / 1) (#7)
    by Steve M on Sat Oct 03, 2009 at 10:39:17 AM EST
    No one is stopping him from appearing and defending himself.  Nobody forced him to flee in the first place rather than defend himself against the charges.

    What he wants, though, is a one-sided defense where if he wins he gets to go free, and if he loses he gets to remain a fugitive anyway.  Heads I win, tails you lose.  Small wonder that no court will entertain a claim by a litigant who says, "I'm only going to respect your authority if you rule in my favor."

    Are you just not reading (none / 0) (#8)
    by Jeralyn on Sat Oct 03, 2009 at 10:53:07 AM EST
    and determined to repeat your points which misrepresent the facts and fail to address the issues? If so, enough.

    The discussion is about how one fugitive is able to use the court to litigate issues regarding alleged unconstitutional acts by federal agents that led to the gathering of evidence that in turn resulted in an arrest warrant on a murder charge. She hasn't returned to the U.S. and yet her claim is proceeding through the court.

    Polanski has been allowed to litigate the victim's civil case while a fugitive in France.

    But he's being prevented (so far) from litigating the alleged illegality and misconduct in his criminal case because he's not returned.

    So the fact that he could return is irrelevant to the queation being posed.

    Either discuss the distinction or provide the legal answer but don't keep writing things like "no one is stopping him from returning." The issue is whether there's any way for him to litigate his claims without returning.


    I can indeed read (5.00 / 1) (#28)
    by Steve M on Sat Oct 03, 2009 at 01:52:24 PM EST
    The government hasn't made the fugitive disentitlement argument yet, unlike in the Polanski case.  Should we infer that it must be a bad argument?  I would infer that the government would have rather obtained complete dismissal, pursuant to qualified immunity, as opposed to obtaining only a temporary respite which is what the fugitive disentitlement doctrine would provide.

    As far as I can determine, fugitives have even fewer rights in federal court than they do in California state court.  An instructive discussion appears in Degen v. United States, 517 U.S. 820:

    In accord with these principles, we have held federal courts do have authority to dismiss an appeal or writ of certiorari if the party seeking relief is a fugitive while the matter is pending. Several reasons have been given for the rule. First, so long as the party cannot be found, the judgment on review may be impossible to enforce. This was the rationale of the first case to acknowledge the doctrine: "It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render." Second, we have said an appellant's escape "disentitles" him "to call upon the resources of the Court for determination of his claims." The cases cited so far involved the dismissal of fugitives' petitions in this Court. In reviewing similar practices in state courts for conformity with the Due Process Clause, we have noted further reasons for them: disentitlement "discourages the felony of escape and encourages voluntary surrenders," and "promotes the efficient, dignified operation" of the courts. See also Allen v. Georgia, 166 U.S. 138 (1897).

    The Degen court went on to consider whether the doctrine should be extended to prevent a fugitive in a criminal case to contest a related forfeiture proceeding.

    We have yet to consider two other purposes said to be advanced by disentitlement: The need to redress the indignity visited upon the District Court by Degen's absence from the criminal proceeding, and the need to deter flight from criminal prosecution by Degen and others. Both interests are substantial, but disentitlement is too blunt an instrument for advancing them. Without resolving whether Degen is a fugitive in all the senses of the word debated by the parties, we acknowledge disquiet at the spectacle of a criminal defendant reposing in Switzerland, beyond the reach of our criminal courts, while at the same time mailing papers to the court in a related civil action and expecting them to be honored. Cf. United States v. Sharpe, 470 U.S. 675, 681-682, n. 2 (1985). A court made rule striking Degen's claims and entering summary judgment against him as a sanction, however, would be an arbitrary response to the conduct it is supposed to redress or discourage.

    Shortly thereafter, however, Congress responded by passing 28 USC 2466, which overruled Degen by statute and granted the courts authority to apply the fugitive disentitlement doctrine even in forfeiture actions.

    Or, to put it succinctly: this is a very broad and longstanding doctrine we're dealing with!

    One key difference between civil and criminal proceedings is that if a fugitive defends himself through counsel in a civil case, the court's power can flow both ways.  If the fugitive loses, a judgment can be entered against him, and it will be binding by virtue of his appearance.  But in a criminal case like Polanski's, no trial can be held.  If the court heard his motion to dismiss and decided to reject it, the proceedings could not continue, because of the general prohibition against trials in absentia in civil proceedings.  So the equities of the two situations are considerably different.


    Happy you can read. But while you (none / 0) (#29)
    by oculus on Sat Oct 03, 2009 at 02:26:02 PM EST
    are researching and writing, your team is beating up my team!

    thank you Steve (none / 0) (#36)
    by Jeralyn on Sat Oct 03, 2009 at 10:22:13 PM EST
    I appreciate your taking the time to post a substantive response.

    I think it depends on the judge. The judge (none / 0) (#11)
    by oculus on Sat Oct 03, 2009 at 11:09:14 AM EST
    handling his case now sd.:  you gotta be here.  See Miura matter I linked to earlier in the week in one of the Polanski threads.  Miura seemed to be able to litigate double jeopardy claim from Japan.  Same court. Different judge.  

    The laws about "fugitives" and (none / 0) (#20)
    by scribe on Sat Oct 03, 2009 at 11:38:50 AM EST
    persons outside the jurisdiction differ in the civil and criminal contexts and differ from state to state.  

    Assume the person who is a criminal defendant and has not shown up for that criminal case also has a civil case going, as a plaintiff.

    As to the civil case, one can argue with some force and a straight face that just because she is outside the jurisdiction is irrelevant.  She is employed or something in a distant jurisdiction and has to be there for whatever reason she claims, but that does not preclude her from suing a defendant in the US jurisdiction.  Indeed, if she had a civil beef with that defendant and sought to sue them in the distant jurisdiction where she now lives, that case could (and would) be dismissed for lack of personal jurisdiction in the distant jurisdiction because the defendant had no connection to that distant jurisdiction.  At best if she were to sue in the distant jurisdiction, it would be dismissed under the doctrine of forum non conveniens with instructions for her to re-file in the defendant's home jurisdiction.  

    As long as she complies with her discovery requirements, there is no reason to dismiss the case.  Think of all the times a person/company from, say, New York, sues a person/company in California, even when the issue is over something that happened in, say, Texas.  Happens every day - the New Yorker may never get on a plane to go to Cali, even for discovery.  Nowadays they can do depositions by video-conference.

    The issue is in the criminal case.  In many jurisdictions, there is case law to the effect that if you go fugitive, you forfeit your right to do things like interpose a defense to the criminal charge, take an appeal from the conviction, and so on.  The trigger for all of those, of course, is a finding of being a "fugitive", whatever that might be under state law.  And that disability disappears once the fugitive returns (voluntarily or otherwise).  But more than anything else that disability is founded in the theory of the fugitive-ness being a species of contempt, and therefore depriving one of the right to participate (just like Mr. Disruptive In Court gets to watch by video from another room) until the contempt is purged.

    Two wholly different animals.


    Thank you (none / 0) (#1)
    by brianj52 on Sat Oct 03, 2009 at 02:04:43 AM EST
    In all the brouhaha surrounding the Polanski case, both the defenders and the attackers have missed the basic legal questions surrounding the entire case. The guilty plea (this week, Jon Stewart asked if there was going to be a trial about his guilt), the plea agreement, and the judge who, from the bench, declared he would not be bound by it.

    Then of course, the DA who now, after an interview for a documentary which he affirmed in multiple venues, is now asserting that he lied, with the only other witness dead.

    I'm not a lawyer, but I have an interest as someone who might someday be charged and would want to know my rights and be represented by effective counsel. That's why I read this blog (and if I could afford her, I'd hire Jeralyn at the drop of a hat). The Polanski case is a legal mess. A huge mess. Thank you, Jeralyn, for reminding us of the intricacies that are overlooked in the so-called arguments surrounding it.

    Well the standards of proof in criminal (none / 0) (#2)
    by cawaltz on Sat Oct 03, 2009 at 04:13:00 AM EST
    and civil cases are different would be my guess and would be my argument if I were to argue the whys. In criminal court there is a much higher standard of proof required for fairly obvious reasons(guilt beyond a reasonable doubt vs. preponderance of evidence). Furthermore in criminal proceedings it is the government who brings forth charges in order to punish and deter behavior while a civil charge is merely to  address compensation for the victim. It would make sense if someone's basic liberties were on the line that you would want to err on the side of justice being done. I'd imagine it would be for the same reason I don't need to show up to a civil hearing(a judgment would just be placed against me if I didn't mount a defense) but if I failed to show up for a criminal proceeding I could have a bench warrant issued against me for failure to appear and charges added to those I would be already facing.

    good question jeralyn, (none / 0) (#3)
    by cpinva on Sat Oct 03, 2009 at 04:58:43 AM EST
    Could Polanski sue former DA Ted Wells, the estate of the Judge, the L.A. District Attorney's office and the Superior Court of Los Angeles in a federal civil action for the violation of his constitutional right to due process of law and a fair sentencing proceeding, and have the illegality of their actions determined while he's in Switzerland?

    which seems to already be answered. the real question, with respect to mr. polanski's case:

    why hasn't he, in all this time, filed a civil suit, against those he claim committed acts which hurt him, while he was in europe?

    he certainly has the financial wherewithal to do so, yet he never has. is he just getting bad lawyering from his counsel?

    Perhaps he is getting good lawyering (none / 0) (#4)
    by Steve M on Sat Oct 03, 2009 at 09:03:36 AM EST
    as I see little chance that such a case would ever be heard while he is a fugitive, for the same reason that his motion to dismiss was denied last year, and it would probably only serve to heighten the efforts of the authorities to bring him to justice.

    actually, (none / 0) (#27)
    by cpinva on Sat Oct 03, 2009 at 01:06:03 PM EST
    that's sort of what i thought too. all of this just strikes me as chaff, thrown out by mr. polanski's defenders, in an effort to divert attention from the fact that he pled guilty, then took off, to avoid serving his sentence.

    You ask: (none / 0) (#32)
    by scribe on Sat Oct 03, 2009 at 05:44:56 PM EST
    why hasn't he, in all this time, filed a civil suit, against those he claim committed acts which hurt him, while he was in europe?

    The short answer is that the law says he can't.  

    Bringing a civil rights case would implicate  Heck v. Humphrey, 512 U.S. 477 (1994) because to prove his case he would have to prove these people did him wrongs which resulted in his being convicted and that he would not have been absent their wrongs.  In short, the Supreme Court in Heck held that before a section 1983 cause of action accrues, the plaintiff "must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. Until the plaintiff can prove that the underlying criminal judgment has been reversed, expunged, invalidated, or called into question on federal habeas, he has no cause of action.

    So, he has been getting good lawyering which has told him to waste neither his time, his money, nor his effort on something which cannot succeed.


    What chutzpah! (none / 0) (#42)
    by diogenes on Sun Oct 04, 2009 at 05:36:16 PM EST
    She was caught on tape conspiring to commit murder and is a fugitive from justice and SHE's the victim???