Catastrophe (cont’d.)(x2)


You may be asking yourself, if you are normal and all, how an argument – to the effect that state officials such as police and prosecutors can fabricate evidence and commit perjury to prosecute you without violating your rights – ever gained traction with anyone, let alone judges, let alone cause Supreme Court Justices to become confused.

Good question.  We just reviewed the history, here and here.  But I suppose there is a bit more to be said at this juncture.  We press forward, then.  To what might be termed “the bastard child of Brady v. Maryland.”

First, it cannot be gainsaid that in the same 30+ year period over which this catastrophe has developed American courts have been very, very friendly to the arguments of state officials, and especially prosecutors.  Every statistical measure proves it, especially an incarceration rate that is anomalously high  in the history of civilized nations and a rather dramatic departure from American tradition.  In part this was a reaction to the previous 20 or so years in which a number of significant, if ultimately ineffective, curbs were placed by the courts athwart criminal prosecutions and everybody was upset about that, which is why we had “Dirty Harry” in the early 1970’s followed by progressively less entertaining sequels.

We won’t dwell on that part at length here because it deserves a great deal of study, sociological and otherwise.  Moving on, then.

More specifically, picking apart the case law, it seems that some very fundamental distinctions got blurred, or even lost.

The first of these is the distinction between “suppressing” exculpatory evidence – which after Brady meant everything from deliberately hiding it and covering it up to inadvertently forgetting to disclose it or not even realizing it existed because maybe a prosecutor wasn’t familiar with every single thing in every single file – on the one hand; and deliberately fabricating evidence, frequently through the subornation of perjury from vulnerable witnesses, which is how cops like to do it.

Now, it’s true that as you get to the serious end of Brady violations – that is, the deliberate withholding/hiding/destroying of exculpatory evidence – it becomes a distinction without a difference, as they say.  But the key to understanding Brady is that the case really wasn’t about the serious end violations.  Those were assumed to be covered by MooneyBrady was “extending” the principle of Mooney both to place an affirmative duty on prosecutors to search their files and to err on the side of disclosure if there’s some question about whether the subject evidence is “exculpatory” or not.

None of this implied – except possibly, let us face it, to a very warped mind indeed – that the out and out, deliberate willful and malicious fabrication of evidence and subornation of perjury was not different from the inadvertent failure by a prosecutor to disclose exculpatory evidence.  Brady called the latter a due process violation as well; but the former had been held to be not just a due process violation, but an obvious due process violation even at the time of Mooney, which is to say 1935 – almost 80 years ago.

So that’s one way the case law got screwed up.

Another way the case law got screwed up is that this issue has come up almost exclusively in the context of civil actions under 42 U.S.C. 1983 and gets “conflated” with immunity issues.  Imbler v. Pachtman, Buckley v. Fitzsimmons, Albright, Limone, Devereaux, Zahrey, Pottawattamie – all of these cases were actions brought by the exonerated and the courts that considered them were primarily concerned about shielding the defendants from suit owing to their immunity, and only secondarily with deciding whether their right to due process had been violated.

The third way the case law got screwed up – and I actually have some small amount of sympathy for this one – is that the courts are reluctant to find that due process has been violated when the process seems to have worked; that is, when the criminal charges have been dropped or there has been an acquittal.  Thus in Serino, Albright and Alexander courts found against the Plaintiffs, who had been acquitted at trial or at least never convicted.  But in Pottawattamie, Whitlock and Julian the courts found in favor of the plaintiffs, who had all been convicted and imprisoned.

The fourth way the case law got screwed up is over the meaning of “due process”.  It’s a big idea in the law, but most lawyers and judges are confused about its “boundaries”, if you will.  Some believe that any unfairness is a violation of due process. 

That is, of course, untrue.

There is a long tradition and lots of case law associating violations of the right to due process of law primarily with deliberate, malicious and/or oppressive government conduct.  The less serious Brady violations – that is, inadvertent or accidental non-disclosure of exculpatory evidence – is a departure from this tradition.  But the deliberate use of perjury and fabricated evidence by government officials in a criminal prosecution fits squarely within the tradition. 

So, by way of contrast, it is entirely possible that a criminal defendant might be the victim of perjury or fabricated evidence – a “frame-up job” – but unless it is done deliberately by the government officials or with their knowledge it is not a violation of due process.  And outside of Brady, if you’re looking for a due process violation the key is deliberate and/or malicious conduct by a government official.

See how easy this is?  To clear this all up, I mean.

The law is not an especially challenging area of endeavor, intellectually speaking.  And it shouldn’t be.  Everyone has to follow it.  You shouldn’t need a degree.

If only prosecutors and judges adhered to that, we wouldn’t be in this mess.

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