Maybe a better word is facile. Or cynical. Whatever the word, I think you can call what follows here intellectually and professionally irresponsible. I quote at length from a 1994 opinion for the United States Court of Appeals for the 7th Circuit in Chicago:
Here is the gist of the allegations, in the language of Buckley’s brief (footnote and citations to the record omitted):
The relevant portions of the complaint allege several separate acts of witness interrogation and coercion which occurred in the early stages of the investigation, including the repeated interrogation of [Alex] Hernandez [one of Buckley’s two codefendants], which led him to give obviously false statements which on their face inculpated Buckley; the use of reward money to coerce further false statements from Hernandez which again inculpated Buckley; and the interrogation of [Rolando] Cruz [the other co-defendant] and purchase of false inculpatory statements from him.Buckley alleges, in other words, that the prosecutors repeatedly interrogated two other persons, that the prosecutors paid them for statements inculpating him, that during the interrogations the prosecutors “coerced” them to finger him, and that the accusations Cruz and Hernandez leveled against him are “obviously false”.
The exchange of money for information may be a regrettable way of securing evidence, but it is common. So too with promises to go easy (the complaint alleges that a prosecutor implied that Cruz and Hernandez might escape the death penalty by talking freely). Buckley does not cite any case holding that this practice violates the Constitution. Concealing the payments at trial would have violated his rights; a defendant is entitled to know what the prosecutor paid for a statement (whether in cash or in lenience and related promises) so that he may expose to the jury the witness’s shortcomings and bias. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). But Buckley does not allege concealment at trial, which would in any event be comfortably within the scope of absolute prosecutorial immunity under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). His contention that the payments themselves violate the due process clause does not state a claim on which relief may be granted.
Coercing witnesses to speak, rather than loosening their tongues by promises of reward, is a genuine constitutional wrong, but the persons aggrieved would be Cruz and Hernandez rather than Buckley. Overbearing tactics violate the right of the person being interrogated to be free from coercion. Buckley cannot complain that the prosecutors may have twisted Cruz’s arm, any more than he can collect damages because they failed to read Cruz Miranda warnings (see 919 F.2d at 1244) or searched Cruz’s house without a warrant. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 795*795 L.Ed.2d 633 (1980); United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Rights personal to their holders may not be enforced by third parties. Let us suppose the prosecutors put Cruz on the rack, tortured him until he named Buckley as his confederate, and then put the transcript in a drawer, or framed it and hung it on the wall but took no other step, or began a prosecution but did not introduce the statement. Could Buckley collect damages under the Constitution? Surely not; Cruz himself would be the only victim.
This is from the opinion of Judge Easterbrook – a Federalist Society darling like his circuit-mate Richard Posner – in Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir., 1994) when the case was on remand from the Supreme Court [509 US 259 (1993)].
To be fair, before rendering this bit of circuit judge flippancy, Judge Easterbrook did complain that Buckley’s lawyers hadn’t been much help:
The Supreme Court found “unclear” the “precise contours” of Buckley’s claim that the prosecutors violated the due process clause “through extraction of statements implicating him by coercing two witnesses and paying them money.” ___ U.S. at ___, 113 S.Ct. at 2619. It evidently expected Buckley to elaborate on remand; so did we. Instead, Buckley simply referred us to the very paragraphs of the complaint that perplexed the Justices.
The point is that when a plaintiff in a section 1983 action, or for that matter a defendant in a criminal action, complains that authorities have coerced witnesses to falsely implicate him, the argument that this only tangibly harms the witnesses and not the (defendant) Plaintiff is unserious. In this instance it is probably just more judicial backlash and fallout from those 15 years or so where suppression motions were occasionally granted. Because one of the ways courts got around having to suppress things was (and still is) – as Judge Easterbrook notes above – to hold that the defendant doesn’t have standing to challenge a search if he didn’t own the house, or the car, or whatever where the drugs were found.
I mean, the obvious problem is that by any fair application of the concept of ‘standing’, a criminal defendant has standing to challenge the lawfulness of any evidence that the government intends to use against him. To preclude him from objecting on standing grounds is silly. Or would be if there was any humor in it, which when you’r e on the receiving end there usually isn’t. It’s really an abuse of language and thought and the law, and on remand from the Supreme Court, no less, Judge Easterbrook does exactly that with the Buckley case.
What’s even more of a shame is that Buckley caught on in so many ways. More:
Let us suppose the prosecutors put Cruz on the rack, tortured him until he named Buckley as his confederate, and then put the transcript in a drawer, or framed it and hung it on the wall but took no other step, or began a prosecution but did not introduce the statement. Could Buckley collect damages under the Constitution? Surely not; Cruz himself would be the only victim.
Again, this is flippant. In the first place, let’s take a situation where authorities fabricate evidence but don’t don’t ‘use’ it in any way – not at the Grand Jury, or before a judge or magistrate on warrant applications or motions, or at trial. Is it a non-problem, then?
It depends. If its non-use represents a renunciation, an abandonment of the whole effort to frame someone with ‘evidence’ you just make up or beat out of someone, then I’d agree it’s pretty much a non-problem. On the other hand, if that effort continued but with different bogus evidence then clearly it very much is a problem, because the real problem is not just this or that incident but the whole thing, the whole tainted process. You don’t have to analyze each pixel when the image is more than sufficiently clear.
It’s just sort of deliberately obtuse not to see this kind of thing, because you’re not really reasoning your way through something; rather you have a desired outcome and you’re just rationalizing. Some people are capable of nothing but the latter. And the worst thing about them is that they can’t even comprehend that others might be capable of the former. So they assume others are just like them – that is, that all of their “reasoning” is really rationalization.
And a lot of these people are prosecutors or judges. Or cops.
Shallow reasoning is a big problem in the law. Abandonment used to be a defense to a criminal charge. In fact it was very traditional, and a measure of how the law once conformed to notions of fairness and justice.
The abandonment defense was this: you started to do some terrible criminal thing but then thought better of it, listened to your conscience and turned back to the right path. You “abandoned” the crime, thoroughly renounced it before you completed it.
That was a complete defense to a charge. You’d be not guilty.
But then courts started holding – contrary to the Model Penal Code, which maybe we’ll discuss some other time – that abandonment wasn’t a defense to an ‘attempt’ charge, because you complete the ‘attempt’ by taking some tangible step towards committing a crime. So in other words, you can’t abandon the effort to do something that’s already done.
There’s a certain logic to this position, isn’t there? Except when you consider this: abandonment can only apply to attempted crimes. If you complete the crime, obviously it’s too late to abandon it; on the other hand, if you never did anything at all, there’s nothing to charge you with in the first place. So if you say that ‘abandonment’ is not a defense to an ‘attempt’ charge you’re just being disingenuous and shallow. Just come right out and say you don’t recognize abandonment as a defense at all.
But then you’d have to concede a radical departure from traditional criminal law in favor of prosecutions.
We’ve had way too much of this kind of shallow reasoning, and we reap what we sow. It’s a shame so much of it has come from Federalist Society judges.