So after this rather bizarre argument at the SCOTUS (pdf) in the Pottawattamie case, those of us who are following this issue closely – all three of us – are anxiously awaiting a decision. We figure the Supreme aren’t as nuts as all that, that they’ll never say it’s not a violation of due process for state officials to just fabricate a case against someone and then prosecute them.
And in January 2010 we get our answer: there won’t be an answer. The Pottawattamie case settles for a reported $12 million (at least that part being argued in the SCOTUS) and, now lacking a ‘case or controversy’, the SCOTUS dismisses the case under their rule 46.
So there’s another lull. Not quite so long this time, though. About two and a half years later – around May of 2012 – this issue starts to heat up quite a bit in the 7th circuit. The 7th circuit had given us Buckley v. Fitzsimmons, which in some ways started the ball rolling towards the unfortunate Albright plurality in the SCOTUS, the case that has been messing this issue up since 1994.
So the 7th Circuit, in May of 2012, starts to redeem itself. In Whitlock v. Brueggemann, a three judge panel of the 7th Circuit speaks with what must be considered remarkable clarity, given that this area of the law has been so confused for so long:
We have consistently held that a police officer who manufactures false evidence against a criminal defendant violates due process if that evidence is later used to deprive the defendant of her liberty in some way. In Jones v. City of Chicago, we upheld a jury’s imposition of damages against a variety of defendants, including police officers and a crime lab technician, who “were determined to put away George Jones regardless of the evidence.” 856 F.2d 985, 993 (7th Cir.1988). We have since said that there “is no disputing that such conduct [fabricating evidence] violates clearly established constitutional rights.” Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir.2008). Indeed, in this very case, the police defendants admit that the allegations that they fabricated evidence — the same allegations as those against McFatridge — state a due process claim…In Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Supreme Court held that a prosecutor violates due process when she knowingly uses perjured testimony to secure a conviction. The question before us is whether that principle also covers the predicate step of creating the false testimony. In Napue, the Court condemned something even more innocuous — a prosecutor’s failure to correct a witness — while pointing out that it was not as bad as affirmatively “soliciting false evidence.” 360 U.S. at 269, 79 S.Ct. 1173. It is hard to see how the more egregious step of crafting false evidence is any less of a violation. That creation, whether by police officers or by a prosecutor acting in an investigatory capacity, would not happen unless the investigatory personnel intended to serve it up to the prosecutor for use at trial — which, we note, is exactly what happened here. As the First Circuit has put it, “if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit. Actions taken 582*582 in contravention of this prohibition necessarily violate due process (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction).” Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir.2004).
So, this is now getting really interesting. There goes that “self-evident” talk again, quoting Limone. Nice to see another circuit getting onboard.
Of course there is this problem: if it’s “self-evident” that fabricating a case and prosecuting it violates due process, why are prosecuting attorneys in such large numbers arguing otherwise, even in the Supreme Court, as in Pottawattamie? What has happened?
We’ll get to that, eventually. Not this post. Maybe not even this blog.
Meanwhile back to our story. The prosecutor involved in the Whitlock case, one Michael McFatridge (I’m not making that up!) doesn’t like what the 7th circuit has done in denying him immunity and all, and decides to take it up to the SCOTUS, to request that the SCOTUS look upon his plight as being one of the 80 or so out of 10,000 such requests that actually stir the souls of 4 Justices enough to actually hear argument on the matter.
The SCOTUS almost takes up the case. Almost.
So that takes us up to January, 2013. Somebody up at the SCOTUS is interested in this issue, but we don’t know who, and we don’t know how many, although there’s a good chance – not a certainty, mind you, but a good chance – that it’s less than 4 of them. Because if at least 4 of them were interested you probably would have seen McFatridge’s petition granted and argued.
But we’re not done.
Remember that Duke LaCrosse team rape scandal? Litigation aplenty over that one, and one of those lawsuits made its way to the SCOTUS this year: Evans v. City of Durham. Same issue is in there. What happens?
The SCOTUS, again, almost takes up the case. Almost.
And that takes us up to October 7, 2013. Not quite two months ago.
So let’s recap a bit. In the past year and a half we’ve had the Whitlock case from the 7th Circuit. From the same circuit we’ve also had Alexander v. McKinney, which seems to veer substantially the other way from Whitlock, and then we’ve had Julian v. Hanna (from the very prestigious Judge Posner) on October 21st – just a few weeks ago. Then Serino v. Hensley on November 4th.
Different panels, different rulings, who really knows what the 7th circuit thinks?
Another entry comes to us a bit earlier from the east – the 1st Circuit. The circuit that gave us the estimable Limone case. The opinion this year, Hernandez-Cuevas v. Taylor, frowns on such things as deliberate perjury and fabrication by police and prosecutors, but seems all hung up on due process v. 4th amendment and none too fond of its predecessor Limone.
So you couple all that with the two near cert grants at the SCOTUS and it would appear you have a really, really hot issue on your hands.
And we’re not done. Oh, no.
Right now, as we speak, there is a petition for certiorari due to be decided at the SCOTUS conference tomorrow. The name of the case is California v. Gutierrez and the issue is not quite the same but it’s close enough, and perhaps in some ways better: does “due process” as decided in Brady v. Maryland require prosecutors to disclose exculpatory evidence to the defense by the time of a preliminary hearing to determine if there is “probable cause”? Prosecutors say no. En masse. You can find the briefs in the case linked to this SCOTUS blog page.
So that brings us pretty much up to date.
We’ll post another entry to inject some sort of meaning into all this soon. But for now, it’s to be continued….