Words And Ideas Matter – The Genesis Of Catastrophic Legal Error

(Preface:  Running through all this is going to take a couple of long posts at least.  But by the end I hope to have conveyed an understanding to at least some readers of what is probably the most important issue of the law of ‘due process’ in the last half century, an issue that is bubbling up even as we speak through the federal courts of appeals and will likely be heard by the Supreme Court before long.  So if you’re interested in this kind of thing and you bear with me, I don’t think you’ll be sorry.)

The Supreme Court of the United States (“SCOTUS”) is an important institution filled with important people.  Sort of by definition:  ‘supreme’ and all that.  It is also cloistered from, and perhaps even oblivious to, the effects of its rulings.  Which is to say that the Justices rule on cases and these rulings have an impact on people and places and things well beyond their experience and knowledge.  Which just about everything is.  We try to make our Supreme Court Justices smart, and they surely are smart after a fashion.  But no one, no matter how smart, knows even a tiny fraction of all there is to know.

We are limited.  We are mortal.  Even the genuises among us.

I’m going to run through a story – a true story – of a seemingly minor error – a departure from some language in a Supreme Court case dating from 1935 – and trace it to its real life, and utterly terrible consequences in the world.  I hope you will find it as instructive as I have, without having to pay so dearly for the lesson.*

The case from 1935 is Mooney v. Holohan and can be located elsewhere, for those who like to get into the nitty gritty of things, at 294 US 103.

The question in Mooney was whether it violated a person’s right to “due process of law” under the 14th amendment to the constitution when state officials obtained a criminal conviction of that person through, inter alia, the deliberate and knowing use of perjury and/or fabricated evidence, along with the suppression of “exculpatory” evidence, which for you not in the know about such things means evidence tending to show that an accused is not guilty or even innocent.

The Court was not ambivalent about their ruling in Mooney.  They said that the proposition that deliberately obtaining a conviction with evidence known to be perjured did not violate due process “…falls with the premise.”

Fast forward a few years to Pyle v. Kansas, and the Supremes re-affirm Mooney.  Some years after that, the Supremes make it clear that even if state officials suppress evidence that would damage the credibility of one of their witnesses (through soliciting perjury) that, too, would violate due process.  That case was Napue v. Illinois, and was decided in 1959.

We’ve discussed Napue before.

A few years after Napue, in 1963 – a big year, what with presidential assassinations and whatnot – the Supremes handed down one of their most famous decisions.  At least it is famous among criminal defense lawyers.  In Brady v. Maryland, an opinion they said was an “extension” of the Mooney line of cases – that is, Mooney, Pyle and Napue – they held that there was an affirmative duty on state prosecutors to disclose to the accused and/or his attorney any exculpatory evidence in their possession.

Brady said nothing about fabricated evidence known to be false, however.  That’s a different thing.  At least sensible people think so.  It’s one thing to sit on evidence that is exculpatory.  It’s a bad thing for prosecutors to do.  But it’s quite another to just make up what you need to obtain a conviction.  That’s, you know, a felony.

Well, Brady generates a lot of litigation, as they say.  Still does.  Was the evidence “exculpatory”?  Typically, the defense says yes and the prosecution says no.  After a few arguments about that, what does the “affirmative duty” really amount to?  We’re still grappling with that one.  We’re also grapping with just when it is that the prosecution has to disclose exculpatory evidence.  In the worst case scenario (from a defense point of view) it has to be at the time of trial.

But forget about all that.  Exculpatory evidence is real evidence, whatever the arguments about its meaning.  Fabricated evidence is phony.  Made up.  And Brady said nothing about made up evidence – you know, deliberately manufactured perjury and whatnot.  Of course, it would be a twisted mind indeed that concluded as a result that Brady made the suppression of exculpatory evidence the equivalent of the out and out fabrication of evidence and subornation of perjury, when Brady said nothing about the latter.

Hold onto your hats, though.

If you’re prosecution minded, the Brady affirmative duty to disclose exculpatory evidence is discharged as long as the exculpatory evidence is disclosed by the time of trial.  If Brady is an extension of Mooney, and Brady disclosures are fine – and due process is satisfied – so long as they are made at the time of trial, what about ‘evidence’ the prosecution knows to be false, fabricated, perjured?

Enter Justice Rehnquist.

He becomes a member of the Supreme Court in 1972.  By 1977, he opines in Wainwright v. Sykes that he wants to preserve the concept of a criminal trial as being “a decisive and portentous event”, though of course only someone who has never defended in one could think that needed to be said.  Later, in a very unusual move – opining as a “circuit justice” in the course of denying a petition for a writ of certiorari (almost unheard of) in U.S. v. Bracy that Mooney – you know, the case that Brady was “extending” – stood for the proposition that “…the deliberate use of perjury or fabricated evidence at a criminal trial…” violated the defendant’s right to due process.

Oops.  Wrong.  I mean, Justice Rehnquist might have wanted Mooney to say that.  But the fact of the matter is, Mooney did not say that.

Mooney said that the deliberate use of perjury or fabricated evidence “…to obtain a conviction…” violated a defendant’s right to due process.  Convictions are “obtained” by guilty verdicts after trials, of course.  But they are also obtained by guilty pleas.  Can prosecutors and police charge you with a crime based on perjury and fabricated evidence and then threaten to use that same ‘evidence’ to convict you at trial, badgering you into a guilty plea, without violating your right to due process of law?  Justice Rehnquist’s opinion implies that would be no problem.  But he would be wrong in that respect also.  And there are other complications from this sort of willful error borne of Justice Rehnquist wanting something to be true that just isn’t so.


An opinion of a circuit justice in connection with a denial of certiorari, like Justice Rehnquist’s little misquote in U.S. v. Bracy, doesn’t make law.  It’s just one Justice’s opinion.  Unless and until that Justice gets four others to go along with him, making a majority of 5 of the 9, it’s no better or worse an opinion than anyone else’s.  And in this instance, since it’s an obvious mistake, it’s simply a wrong headed opinion even if it happens to come from a Supreme Court Justice.

Besides, the implication is that “due process” isn’t violated when the ‘process’ is phony at its very inception owing to the fact that the ‘evidence’ that gets it underway isn’t really evidence at all.  It’s just made up, like a work of fiction.  And no one could really think that criminal charges that are just made up – fabricated – by police and/or prosecutors is consistent with “due process of law”.  Right?


Let’s recap a little:  Mooney said that for state officials to “obtain a conviction” with evidence known to be false violated the accused’s right to due process of law.  Rehnquist said in 1978 that Mooney held only that knowingly introducing false evidence at a criminal trial violated the accused’s right to due process.  He was in error, and you would think that at some point, with all those smart people at the Supreme Court besides just him, that error would be corrected.

But 16 years later Justice Rehnquist is still tossing that idea around and he almost – not quite, but almost – managed to make it the law.  The case was Albright v. OliverWe’ve discussed that case beforeSeveral times.  And you really should follow those links because there’s no point in me duplicating all that here and it’s an important part of this story.

Well, after Albright we begin to see a lot of strange things, but chief among them is a surprising tendency to prosecutorial excess that I am sure will someday be noted by legal historians as a defining characteristic of an era in the law of the United States of America dating from roughly the late 1970’s to the early 2010’s.  I say “surprising” because that tendency, which was largely unchecked during that 30-40 year period, has fostered and approved a kind of governmental conduct that is completely repugnant to American traditions dating from the founding of the Republic, so obviously repugnant that it could not have occurred to our ancestors that it even needed to be said.  And yet the very obviousness of the proposition that “due” process in a criminal case could not possibly include charges fabricated out of whole cloth by government officials, a proposition that in 1935 was seen to “[fall] with the premise” somehow, in the wake of Albright, began to generate a good deal of cognitive difficulty among the nation’s jurists.

The question recurred periodically at first, which is to say infrequently.  In 2000 (6 years after Albright) the United States Court of Appeals for the 2nd Circuit in New York decided Zahrey v. Coffey and seemed to say that using fabricated evidence to prosecute someone violated their right to due process, but they weren’t real clear about it and apologized for being “in tension” with a previous ruling from the 7th Circuit in a case called Buckley v. Fitzsimmons.  The Zahrey court failed to notice that the footnote in Justice Rehnquist’s plurality opinion in Albright was an error and adopted the mischaracterization of the Mooney case.

A year after that the 9th Circuit likewise held that prosecuting someone with fabricated evidence and perjury violated their right to due process, but was openly puzzled that there didn’t seem to be any explicit authority for that proposition.  The case was Devereaux v. Abbey.

In 2004 the 1st Circuit, echoing Mooney (and, it should be said, deeply embedded American traditions) said it was “self-evident” that this sort of thing was a violation of an accused’s right to due process of law, so much so that the court declined to waste extended discussion on the point.  That case was Limone v. Condon.  But by that time, no less a prosecutorial authority than the United States Department of Justice was already disputing the self-evident (oxymoron alert!) in their own training manuals.  I quote from the DoJ’s Grand Jury Manual once again:

A few courts have dismissed indictments because of prosecutorial abuse before the grand jury on due process grounds. Dismissal on due process grounds is rare because most courts view grand jury proceedings as outside of the scope of the due process clause, the indictment being a mere technical instrument to bring on the trial.  A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

Anyway, after Limone nobody much says anything for a while.  But then in 2008 in a case that is more about prosecutor immunity from suit than it is about the scope of ‘due process’, the 8th Circuit weighs in and says somewhat breezily that prosecuting someone using fabricated and perjured ‘evidence’ violates an accused’s right to ‘substantive’ due process.  That case was McGhee v. Pottawattamie County, Iowa.

Now by this time, 14 years after Albright, a good chunk of the nation’s prosecutors are so wedded to the profoundly un-American – not to mention absurd – idea that they can fabricate criminal charges without violating anyone’s right to due process of law that the Pottwattamie ruling, far from prompting circumspection, incenses them and they want the Supreme Court to vindicate their position, notwithstanding the fact that to any sane person that position is morally and legally repulsive.  It is a measure of the gross favoritism shown to prosecutors nationwide that this could possibly have occurred, but to fully flesh that one out would take a dissertation.  So we move on, chronologically.

Our anti-hero prosecutors petition the Supreme Court for certiorari.  Observe with horror the sheer number of organized groups of prosecutor/lawyers openly advocating for the repulsive and un-American proposition we have been discussing here.

The Supreme Court grants the petition which of course only emboldens prosecutors further.

Until the argument of the case.  That took place in the well of the SCOTUS on November 2, 2009.  Over four years ago.  It was historic, and not in a good way.

The whole transcript of the argument can be found here.  But there are some passages worthy of note.  As the Court and the lawyer for the prosecutors have an exchange about police officer immunity, prosecutor immunity and where in time, precisely, it becomes a problem when prosecutors deliberately use fabricated evidence or perjury you get the following:

JUSTICE KENNEDY: So the — 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.

MR. SANDERS: Your Honor, I think it’s not the more deeply you are involved, it’s whether you are in the unique position of a prosecutor to cause injury by use of the evidence at trial. That is exclusively a prosecutorial function.

Incredibly, in the time since Pottawattamie, the nation’s prosecutors have advanced the argument, based partly on this exchange, that police officers, while not immune from suit for fabricating evidence and committing perjury, are nevertheless not liable to the injured party because only the prosecutor causes the injury – which of course is a wrongful conviction and imprisonment, or perhaps death.  But then the prosecutor cannot be held liable either, because he is absolutely immune from suit no matter what he does.

In other words:  heads I win, tails you lose.

Thus no one in the ‘law enforcement community’ is legally at fault for a wrongful conviction obtained with the deliberate use of perjury and/or fabricated evidence.  This argument is being made in cases right now, in various parts of the country, with a straight face.

Justice Sotomayor isn’t buying it:

JUSTICE SOTOMAYOR: But that makes no sense because, if you go down that road, then what you’re saying is that neither the — neither a police officer or a different prosecutor who fabricated evidence could be liable, either, because the only person who causes the deprivation is the prosecutor who uses the false evidence at trial.

Later, the deputy solicitor general arguing the case on behalf of the United States government – lamentably, on behalf of the prosecutors – recites Justice Rehnquist’s erroneous characterization in Bracy and Albright of the Mooney line of cases:

MR. KATYAL: The conceptual problem is that this Court has been explicit that section 1983 is not the font of tort law. Rather, you need to isolate a constitutional violation. Here, the constitutional violation is the due process clause. That violation begins, as this Court’s decisions in Napue and Pyle say, when the fabricated evidence is introduced at trial in order to secure a conviction.

That’s a misrepresentation of the law.  Easily discovered, since I discovered it, years ago.  Was it intentional?

Justice Kennedy gets a little annoyed:

JUSTICE KENNEDY: Suppose he [the prosecutor] knows?

MR. KATYAL: And if the prosecutor does know, we don’t think that there is a Fifth Amendment due process violation.

JUSTICE KENNEDY: Against the policeman?

MR. KATYAL: Against — against the policeman in that circumstance, because the –

JUSTICE KENNEDY: Again, the more aggravated the tort, the greater the immunity.

MR. KATYAL: And I agree that that seems a little odd –

JUSTICE KENNEDY: You’re basically saying that you cannot aid and abet someone who is immune, and that’s just not the law.

Then as the solicitor general continues down that path, Justice Sotomayor seems perhaps a bit more than annoyed:

MR. KATYAL: …And if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence. And that is the distinction between the police officer, who is liable, and the prosecutor, who is — who is absolutely immune.

JUSTICE SOTOMAYOR: A prosecutor is not going to flinch when he suspects evidence is perjured or fabricated?

To be continued…..


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