California v. Gutierrez – Cert Denied

Sorry, another little post here that probably only lawyers will be interested in, and precious few of those.

Not much to see here:  no grant, no re-list.  A simple denial.  The fate of almost every petition that gets filed in the SCOTUS.  There doesn’t have to be a reason, and almost never is any reason given.

The reason we were interested in the petition here at Lawyers on Strike was the issue, which we described here:

…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”?

There might be a lot of reasons to be glad or frustrated by the denial.  Glad because it might be hard to see this one going the right way:  you run square into US v. Williams, which held that there was no duty on the part of federal prosecutors to present even “substantial” exculpatory evidence in their possession to a grand jury.  Or at least that an indictment could not be dismissed because of a failure to do so.

But see Justice Stevens’ dissent.  It’s a doozy.

On the other hand, they should really revisit Williams.  It was wrongly decided, just like Justice Stevens’ said.  But since that is so unlikely, better to leave bad enough alone, you might say.

We might also be glad they didn’t take it up because we’re trying to keep the focus on the deliberate use of perjury or fabricated evidence before a grand jury.  Losing the distinction between deliberate ‘framing’ of people and withholding, however inadvertently, exculpatory evidence is one of the things that has gotten us into so much trouble in the first place, as we just noted.

But then they could have taken it up, distinguished or gotten around Williams and made the obviously correct decision, which is that due process does indeed require the prosecution to provide exculpatory evidence that might change the probable cause determination before the probable cause determination is made.

I mean, duh.

And if they had ruled that way they’d be much better positioned to rule the right way on the perjury/fabricated evidence question, because although that question is distinct from the ‘exculpatory’ evidence question, the two are related and if due process applies to compel providing the latter it perforce must preclude the former.

But that fight will await another case at another time.  Soon, though, I think

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