Daily Archives: May 10, 2014

Continuing Brady Follies

You just can’t make this stuff up.  At least once a month for a year now, this or that court has waded into the Brady quagmire, got stuck and made it deeper.

The latest installments – one not from a court but from a law review – are interesting, as these things go.  First you have a case out of the United States Court of Appeals for the 3rd Circuit, which usually sits in Philadelphia.  The name of that case is Halsey v. Pfeiffer, and you can find it here.

Halsey very explicitly makes the same Brady interpretation mistake we have been noting for months now.*  There should be a rule at this point that any federal appeals court issuing an opinion citing Brady v. Maryland must be thoroughly familiar with the posts dealing with that case here at Lawyers on Strike because here, not constrained by the requirement of a case and controversy, we can bloviate at will, but in a good way where we clear up all the confusion.

The bottom line, as you have learned from our efforts here, is this:  there is no “materiality” requirement before a defendant’s due process right is violated when police or prosecutors deliberately fabricate evidence to implicate him.  Materiality is a Brady requirement, not a Mooney requirement, and deliberately fabricating evidence comes under the latter, not the former.

So the Halsey court, in so imposing a materiality requirement, is limiting Mooney.  But only the Supreme Court can limit Mooney, not a federal appeals court, and guess what?  The Supreme Court will never, ever limit Mooney.  Some of the Supremes might be crazy enough to want to, but even then they won’t.

Too embarrassing.

Then, just a few days ago, the University of Illinois law review publishes an article online going on and on for 44 pages.  The article is so far behind the curve on the issue that although I have linked to it I really can’t recommend reading it.  Far less painful and far more illuminating to just read over here.  But if you’re curious to see a supposedly “top 20” law school‘s law review miss the issue that we here at Lawyers on Strike have been actually litigating since at least 2006, and get the law utterly wrong in the process, have a gander.  Most egregiously, this is an article published in March that cites a Fields v. Wharrie opinion from 2012 but fails to note a later and far more interesting Fields v. Wharrie opinion – same case, second round of appeals – from 2014 that we are all too familiar with over here.  Seriously, if the article hasn’t made it into print in the official law review yet they should just pull it.  Nobody much reads law reviews, really, but this is a hot issue right now and botching the issue so badly could wind up being pretty embarrassing .  Which I think this particular law school doesn’t need right now.  It’s the one thing law review articles are not supposed to do – completely miss the issue they are supposedly expounding upon.  I mean, they’re not known for their scintillating prose, right?

See, if you want to expound on this issue you have to keep up with us here at Lawyers on Strike. 



* If you want to understand this post you’ll have to follow that link, and even the links in that link, unless you’re completely all over this issue like we are.  And if you are, and it’s not because you’ve been reading us over here, we’d love to hear from you, because as far as we know we’re the only lawyer on earth that has a good handle on the whole thing.  In some ways we wish we didn’t, but that’s another subject.

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