With apologies, probably only lawyers will really understand this post. Nevertheless, on to it.
Shepard’s is this service that’s been around for a log time helping lawyers to find cases (usually published opinions from appellate courts) dealing with a specific subject, where those cases have been cited by other cases, whether the citations are favorable or unfavorable – and very importantly, whether a case has been overruled and is no longer good law.
In recent years of course all these functions have been computerized and data-based and Shepard’s is primarily an online tool.
So recently I was checking Shepard’s for any recent developments relating to a case that’s been pretty important fodder for discussion around here for quite some time: Mooney v. Holohan, 294 US 103 (1935). That’s a US Supreme Court case.
And Shepards contains a warning that Mooney has been “abrogated”. The warning then directs the reader by hyperlink to an unpublished opinion from a case in an intermediate state appeals court in Arizona – State v. Branch, decided April 17th of this year.
This unpublished opinion maintains that while under Mooney the prosecution’s knowing use of perjured or false testimony in a criminal case is a denial of due process, Mooney has been qualified to include a “materiality standard”: that is, there is only a denial of due process of law when the perjury or false testimony affected the outcome of a criminal trial.
Two things about this. First, it’s not true. Mooney has never been limited or qualified, and we can hope never will be.
But second, how can Shepard’s issue a “warning”, complete with the red stop sign symbol, that a US Supreme Court case has been “abrogated” by an unpublished opinion from an intermediate appellate court in Arizona? State intermediate appellate courts don’t have the authority to limit or abrogate US Supreme Court precedents.
Who is running things over there at Shepard’s?