Why, oh why, does this task keep falling to us over here at Lawyers on Strike?
Here’s a case out of the 1st Circuit in February of this year called Housen v. Gelb, the opinion written by the flamboyant scribe Judge Bruce Selya, whose reasoning and writing style we generally find most agreeable.
Part II-B of the opinion deals with “Prosecutorial Inconsistency”, addressing the argument of whether the government can, while still adhering to its obligation to afford criminal defendants due process of law, take one position in one case so they can get a conviction there; and then take an inconsistent position in another case so they can get a conviction there, too.
Bottom line is that this is regarded as an “open question”. In support of so regarding it, Judge Selya cites a Supreme Court case from 2005, Bradshaw v. Stumpf, which the District Court had regarded as leaving the question open. Why does the District Court think that? And why does Judge Selya then wash his hands of the question in his opinion? Probably because of the concurring opinion in Bradshaw of Justices Thomas and Scalia:
This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.
Beware of concurring opinions. For this is a flat out, absolutely incorrect statement of the law. It is not an open question, and hasn’t been since 1942. That was pretty much the whole point of Pyle v. Kansas, where the Supreme Court wrote:
and, that the record in the trial of one Merl Hudson for complicity in the same murder and robbery for which petitioner [that is, Pyle – ed.] was convicted, held about six months after petitioner’s direct appeal from his conviction, reveals that the evidence there presented is inconsistent with the evidence presented at petitioner’s trial, and clearly exonerates petitioner…Petitioner’s papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Mooney v. Holohan, 294 U.S. 103.
I shall never understand how things have gotten so confused.
I take it back. I’ll spend the rest of my life figuring that out, one way or another. Not that it matters to anyone but me. At least not right now.
Update: A slew of cases all committing the same error, none of them citing Pyle v. Kansas: Smith v. Groose (8th Cir., 2000); US v. Frye (5th Cir., 2007); Beathard v. Johnson (5th Cir., 1999); Nichols v. Scott (5th Cir., 1995); US v. Hill (11th Cir., 2011); Fotopoulos v. Secretary (11th Cir., 2008).
Ugh. When an error proliferates like this a lot of judges will conclude that it’s not an error anymore. Of course that’s wrong. Error is error. Courts of Appeal can’t write Pyle v. Kansas out of the law just by ignoring it and going the other way, and a tossed off phrase in a concurring opinion from the Supreme Court doesn’t overrule prior precedent either.
We’re a mess on due process, and a lot of that has to do with Brady. And some other things.