Sometimes statistics don’t lie.
Turns out there’s a handy and way succinct statistical demonstration that our “justice system” – well – isn’t. After all, one necessary condition of a functioning one would have to be the overcoming of differentials in power, prestige and so on in the contest between competing narratives.
In other words, the little guy and the big guy are supposed to fight it out on an even playing field. Does this happen? Not as far as the judiciary is concerned, and a cursory review of a few SCOTUS opinions and their citation patterns prove it.
Take one of our favorite cases around here, Mooney v. Holohan. Decided in 1935, it was a decision in favor of the the most despised little guy, the criminal defendant. As of today, more than 80 years later, it has been cited 3,140 times according to Google Scholar. With the exception of Napue v. Illinois its “progeny”, as we say, were generally cited far less: Pyle v. Kansas (844 times since 1942); Waley v. Johnston (910 since 1942); Alcorta v. Texas (795 times since 1957); Miller v. Pate (767 times since 1967).
Our system never really liked Mooney, we surmise. Of course, you might include another (and far more famous) case among its progeny – namely Brady v. Maryland, which has been cited 34,392 times since 1963. But the reason for the exponential increase in citations is that Brady, while explicitly an “extension” of the Mooney case, has in practice become a limitation on it. We’ve discussed this lamentable state of affairs extensively before. A lot. Put another way, Brady became far more popular among our judges because it rationalized findings against the little guy that might otherwise have been compelled by Mooney.
But now, contrast and compare. If there is a SCOTUS case that can be truly said to embody, as a practical matter, the “principle” of favoring the big guy over the little guy, it would be 2009’s Ashcroft v. Iqbal. We could explain at length why this is so, but let’s avoid that – because tedious – and just ask our readers (all three of them) to accept that proposition with our solemn assurance that it is unarguable.
Ashcroft has been cited almost 140,000 times in less than ten years.
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Let’s unpack the Mooney thing a little more. A little closer to home, too.
Cited a little more than 3,100 times in 80+ years, how many of those were in the New York Court of Appeals (the state’s highest court)?
Five. The last time Mooney was cited there was 1980 – almost 40 years ago – in an opinion by then Judge Sol Wachtler.
Sol Wachtler famously coined the expression that a prosecutor could get a grand jury to “indict a ham sandwich“, which we’ll stipulate was a clever turn of phrase. Later in life, he became famous for other things, a few of which led to his becoming a guest of the federal government. While the feds were entertaining him, he was stabbed, in a place called Butner Correctional Facility. These experiences taught him an empathy he presumably previously lacked. His license to practice law in New York was (quite improbably, we might add) restored in 2007. Good for him, we say.
Did Sol Wachtler, unlike most appellate judges nowadays, ever try a case to a jury as a lawyer? We don’t know, and can’t find out from anything on the web. Possibly. We hazard a guess, though, that he never tried one representing a criminal defendant. We quote extensively:
It is well settled that the defendant’s right to due process is violated if the People knowingly use perjured testimony on any material point … However, there is no reason why a disputed claim of fabricated evidence, involving only the credibility of witnesses, may not be resolved in the usual manner, by submitting the matter to the jury at trial…. It is hard to imagine … that jurors would hold a confession against the defendant if they find that it was entirely fabricated by the police. Notably the cited cases upholding the defendant’s constitutional right to a trial free of deliberately perjured testimony involved motions made after trial in which the perjury was conceded or irrefutably established, and the only question for the court concerned the materiality of the evidence. They did not involve pretrial or trial motions, requiring the court to pass upon pure questions of fact and credibility customarily reserved for the jury.
It would be difficult to pack more errors about Mooney into a short passage, but Judge Wachtler did pretty well.
First, the question of “materiality”. It’s a prosecutor favorable, conviction-preserving escape valve for a Brady violation (which properly speaking is unintentional), not a Mooney violation (which is deliberate). As we (and Judge Selya) have repeatedly noted.
Put another way, we would have to be stupid to allow a party to litigation to deliberately mislead us to a favorable outcome and then, when caught, argue that their own dishonesty did not affect the outcome.
Speaking of stupid, the whole point of Mooney and its progeny is that the 14th amendment requires the state to provide a remedy (“corrective process”) for state sponsored perjury and similar perfidy. The state had argued otherwise. The SCOTUS didn’t waste a lot of verbiage on the argument:
Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise.
The “corrective process” the SCOTUS was referring to could not have been the trial, as Judge Wachtler wrote, because the right to a trial already existed quite apart from anything held in Mooney. Because 6th and 14th amendments. Duh.
This error is exacerbated by Judge Wachtler’s later reference to a “…defendant’s constitutional right to a trial free of deliberately perjured testimony…”, because the right recognized by Mooney and its progeny was about being convicted, not just being tried, thus 1942’s Waley v. Johnston and Walker v. Johnston and 1943’s New York ex. rel. Whitman v. Wilson all cited Mooney and all involved guilty pleas, not trials.*
Lastly, “…it is hard to imagine that jurors would hold a confession against the defendant if they find that it was entirely fabricated by the police.” Seriously, Judge Wachtler? What’s “hard to imagine” is that a jury would ever actually find that a confession, or any other evidence for that matter, was fabricated by police in the first place, even when it’s absolutely clear that it was. If this was a situation “to be resolved in the usual manner” about the “credibility of witnesses” – that is, by letting a jury sort it all out – Mooney and its progeny would not exist. But they do exist.
Not to mention that with good reason, based on experience, prosecutors expect their witnesses to be believed and are therefore very comfortable with “credibility” contests. Indeed, this where the temptation for them to fabricate evidence and commit perjury comes from in the first place.
Mooney quite properly places the responsibility to check this temptation on the system’s officials – judges and lawyers (prosecuting and defending alike), not juries. It’s the only conclusion that makes any sense. That isn’t, in other words, stupid.
Apparently the state of the law as practiced, though, is that Mooney – a truly landmark due process case – for more than 80 years has never really been implemented (indeed, many seem to believe it has been “generally subsumed” into Brady).
But you can’t have a right without a remedy – way basic.
At some point we have to go there. Maybe like this. But we’d have to trust the criminal defense bar not to abuse the remedy, and to that extent abandon its cult of “zealous advocacy“. And we don’t, obviously.
It’s a mess. Ugh.
* We also hazard a guess that Judge Wachtler’s law clerk found Bracy v. United States and was relying on that in drafting the opinion. It should go without saying, but lamentably does not, that Bracy was not a decision of the SCOTUS and is not in any sense case law. See more here. Again, quelle stupid. Ugh.