Continuing Confusion…

…generated by Albright v. Oliver, in a case scheduled to be argued in the SCOTUS on Tuesday.

The case is Rehberg v. Paulk.  Via the SCOTUS blog:

…Paulk makes an interesting observation via extended footnote:  the Court is determining whether absolute immunity applies to a civil claim that the Court has not recognized.  In Albright v. Oliver (1994), the Court declined to create a Fourteenth Amendment substantive due process claim for malicious prosecution.  Rather, the Court held that to the extent any constitutional claim for malicious prosecution existed, it lay within the confines of a more specific constitutional provision. The Albright majority declined to speculate whether the Fourth Amendment encompasses such a claim, but in a concurring opinion Justice Ginsburg strongly urged that it did.  Having prevailed on absolute immunity in the Eleventh Circuit, Paulk had no reason to challenge the Eleventh Circuit’s determination that a malicious prosecution claim falls within the Fourth Amendment. But his footnote amply makes the point that the question is hardly a clear one for the Court, albeit it one for another day.

The question “is hardly a clear one” because (among other things) the SCOTUS has only confronted it in the context of actions under 42 U.S.C. 1983, where it gets all bound up with immunity issues.  “Conflated”, the Court sometimes actually admits.

And the SCOTUS did not hold in Albright that “…to the extent any constitutional claim for malicious prosecution existed, it lay within the confines of a more specific constitutional provision.”  Albright was a plurality opinion.  There were four votes rejecting the proposition that such a claim was grounded in the due process clause – not five.  Justice Stevens pointed this out in dissent.  He was right.

While this may indeed be a question for another day, it’s a pity that day hasn’t already come:  this is precisely the question the Sephora Davis matter helps answer, and in a procedural posture where it is not subject to the confusion that accompanying immunity questions have historically generated.  The question has two parts:  first you have to decide whether the constitution has been violated at all by perjury used pre-trial, and if so how.  Only then would you apply any immunities.  Neither of the two parts to the question have been answered by the SCOTUS, and the nation’s prosecutors are taking advantage of that in truly hideous fashion.

But when I brought the Sephora Davis petition in 2010 I was a bit too early, apparently.  Again, among other things.

If I take the issue to the District Court in Rochester – a big ‘if’, at this point – and the Court rules against me there won’t be time or resources to appeal and get the issue before the SCOTUS that way before the case becomes moot in March.

OTOH, if the District Court were to rule in my favor, appealing would be up to the State.  They might or might not appeal, but whether they do or don’t there is no danger of the case becoming moot.

The case belongs in the SCOTUS, not a District Court, because the SCOTUS has to answer the question.  A District Court can answer it, of course, but that doesn’t change or clarify the law in the whole country, and the Pottawattamie case showed that this is necessary:  prosecutors are very aware of the liberties they have taken, and are taking, with Albright v. Oliver’s footnote.

I don’t know why this has to be my job.  I’m really in no position to do it.  Haven’t been for some time now.

Correction:  Once timely filed the case doesn’t become moot upon the completion of the petitioner’s sentence.  See Carafas v. Lavallee, 391 US 234 (1968)

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Filed under Striking lawyers, wrongful convictions

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