Last week, a three judge panel on the 7th Circuit came down with a split decision in the matter of Fields v. Wharrie. Judge Posner wrote the majority opinion and Judge Sykes dissented.
Like almost all the due process cases that we have been interested in here recently at Lawyers on Strike, Fields is an action under 42 U.S.C. 1983 and primarily deals with issues of prosecutor immunity from suit under that statute. But when you rule out “absolute” immunity as the 7th Circuit did here, and begin to consider “qualified” immunity, as the 7th Circuit also did here, you reach the question of whether there is a constitutional violation triggering section 1983 at all. Don’t ask why, it’s not important.
What is important is that in reaching this very big constitutional question at issue in Fields that shouldn’t be a big issue at all – that is, do prosecutors and/or police violate a defendant’s right to due process of law when they deliberately use perjury and fabricated evidence to prosecute him? – you have Judge Posner answering one way – that it is a violation of due process of law – and Judge Sykes answering the opposite.
Now, neither one of them has anywhere near as good a handle on this issue as we do. See here and here and here and here and here and here and here. It’s not that I blame them. I spent two years of the last ten being completely incredulous at the thought that this was a big issue myself. And I had a case where they had put a knife to my client’s throat and raped her, and by thereafter framing her for prosecution they were trying in effect to murder her (18 year old high school girl, no criminal record) through self-harm, so the issue was staring me right in the face from early on (well, relatively early). Meaning that I had a great deal at stake in it, whereas these federal judges don’t.
Anyway, I figured once I had shown what happened to her, my job was done. It took a long time to sink in that there were some warped individuals out there calling themselves judges and lawyers that didn’t believe such official conduct violated anyone’s rights, and that I would have to spend well, pretty much a decade of my life trying to dispel that idea as well.
But let’s move on. Because something is plainly afoot in the country’s federal appellate courts.
Judge Posner is one of those federal court of appeals judges that are almost like a Supreme Court Justice because he is so well known and respected. And it appears that he now gets it, in more ways than one. Because not only has he seen this due process issue and come down on the right side of it, he has gone on from there and thought about the question of how this absurdity could ever have been argued in the first place, and he is treating the formerly highly favored litigants’ attorneys who have made such arguments with a rather harsh skepticism that would have been unthinkable from any federal judge even a year or two ago.
That is the significance of an earlier decision he penned for a different three judge panel just a few months ago, Julian v. Hanna. Read the opinion. He excoriates the formerly favored litigants’ attorneys. He says their omission of citation to a well known case that didn’t support their position was “inexcusable”. He said they exceeded the boundaries of “responsible advocacy”. And then he decided squarely against the formerly favored litigants, reversing the District Court in the process with a unanimous opinion. Then a few months later – that is, last week – he has flushed Judge Sykes out of hiding and made her go on the record with an indefensible opinion in dissent saying, in effect, that deliberately using perjury and fabricated evidence to prosecute someone doesn’t violate their right to due process.
The stage is now set. All it needed was an explicit disagreement among the appeals judges. This due process issue is now ripe for Supreme Court review. That review has almost happened twice within the last year or so, and now it is sure to happen soon, quite possibly on the Fields case itself.
But the broader implications of Fields are equally significant. Judge Posner’s epiphany has surely not occurred in a vacuum. A judge on South Carolina’s Supreme Court told a gathering of prosecutors – a gathering of prosecutors! – that they’ve been indulged too much for too long and that it’s over and that if they keep it up there will be consequences. To them.
Just two weeks ago, the first en banc decision coming out of the 2nd circuit in about two years held that prosecutors might be held liable for horrifying perfidy in obtaining a conviction even where their victim had pleaded guilty.
All of these developments would have been unthinkable even three years ago.
This is what a sea change looks like when you’re in the middle of it. No one really notices at first, or at best only a few people. It’s only in retrospect that the certainty of it all becomes apparent to most people.
But the certainty is there from the beginning. There is no doubt about what is happening, finally, among some judges in this country.
It is a very, very good and encouraging development for those who are concerned about the rule of law. Just my two cents, of course.
And Judge Posner’s.
Update: Scott Greenfield notes another example. I kid you not, this stuff never used to happen. Never. You never heard a judge on the record excoriating prosecutors. Hell they would only rarely do that to defense lawyers. It’s like a memo went out somewhere, iohno.