Daily Archives: July 30, 2015

A Hot Mess. Ugh.

Here’s a recent (July 24th) District Court opinion out of the 7th circuit, illustrating once again how the law is in an appalling state of confusion about some of the most basic things.  Like the government lying and cheating to convict people who then spend decades of their lives in prison for crimes they didn’t commit.

Another 1983 action, where immunity issues get all mixed up with constitutional issues.  But first let’s note just how disingenuous the opinion is here.  The Plaintiff alleges fabrication of evidence:

Specifically, he alleges that Juarez [ a police officer – ed.] deliberately doctored the photo array that he showed the victim at the hospital, causing her to falsely identify him as the attacker.

But by the time the court gets around to discussing this just a paragraph or so later, the “deliberate” conduct had become a “flaw”:

The same holds for Juarez’s allegedly flawed photo array procedures, as explained by Petty…

And then what is obviously a Mooney claim undergoes judicial metamorphosis and becomes….a Brady claim (if you’ve been reading, even just recently and a little, you should know exactly what we’re talking about):

Given the circumstances, Juarez did not “suppress” evidence in violation of Brady.

Deliberately altering evidence is a Mooney violation, not a Brady violation.  It is a more serious due process violation than Brady and is not subject to any qualification other than this:  if it is used “to obtain a conviction” it is a due process violation – and has been an obvious due process violation since 1935.  The court’s discussion of photo arrays and Brady in this context is completely wrong.

The judge then makes that other error about Mooney that law enforcement/institutional litigant types also love dearly:  that deliberate use of fabricated evidence counts as a due process violation only if it is used at a criminal trial:

to violate due process, the falsified evidence must have “involved not merely the fabrication, but the introduction of the fabricated evidence at the criminal defendant’s trial.”

Here the court is not just wrong but dishonest.  The judge is quoting from Fields v. Wharrie .  We discussed that case quite a bit, right after it came out, so we know that that quote is cynically taken out of context. Here’s the actual quote, right after Fields had cited the Mooney line of cases:

It is true that the cases we’ve just cited involved not merely the fabrication, but the introduction of the fabricated evidence at the criminal defendant’s trial.

That quote is on p. 1114 of the Fields opinion.  The Fields court included that sentence because it had just opined on page 1112 that a constitutional due process harm occurs when fabricated evidence is used before a grand jury (before trial) to indict someone:

Nor is the only harm that resulting from the conviction and the sentence. In the present case, as in our recent decision in Julian v. Hanna, 732 F.3d 842, 847 (7th Cir.2013), the fabrication of evidence harmed the defendant before and not just during the trial, because it was used to help indict him.

The point is that really, this is just too much to overcome without – well – misrepresenting the Fields opinion:

Furthermore, that passage from Fields appears in a hypothetical in which a prosecutor, acting in an investigative capacity, fabricates evidence that a second prosecutor then uses to obtain a conviction. 740 F.3d at 1112. The hypothetical thus explicitly involved the introduction of fabricated evidence at trial; the question was whether the first prosecutor—the one who fabricated the evidence but then dropped out of the case—could be held liable for the fabrication. Fieldsanswered “yes.” Ibid. But nowhere did Fields question the requirement that the fabricated evidence must be introduced at trial; to the contrary, it reaffirmed that requirement. Id. at 1114 (requiring “the introduction of the fabricated evidence at the criminal defendant’s trial” as an element of the Whitlock fabrication tort).

This is just not true.  The “passage” does not appear in the hypothetical about prosecutor A and B.  It doesn’t even relate to that hypothetical.  Fields did not establish or purport to establish any “elements” of a so-called “Whitlock fabrication tort.”

Read the whole opinion.  The judge is just bending over backwards to throw out the criminal defendant Plaintiff’ case, a Plaintiff who spent years in prison for a crime for which he was only later – much later – exonerated.  Pretty sick.  But the judge has got the very, very bestest credentials, though.  Yale, Stanford, 2nd in his class, institutional employment of various kinds including the Justice Department, and he’s never represented an actual human being and probably never tried a case.

He could be on the SCOTUS someday, and his opinion in this case will gain him points with the Justice Department and law enforcement, who will probably forever remain potent forces in judicial selection.  That’s probably what this boils down to.

Bennie Starks, that wrongly convicted guy?  Who gives a shit about him?

Congratulations to Judge Gary Feinerman, though, on a good career move.  Even if it’s a terrible injustice and a dishonest opinion, because only hoi polloi care about that kind of thing.

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