Judge Selya Gets It.

He’s on the Court of Appeals for the 1st Circuit.

Drumgold v. Callahan puts it this way:

We have been careful to distinguish between the proscription originating in Mooney and Pyle against the deliberate suppression of evidence and the more recent affirmative disclosure obligation announced in Brady.

Yes, they have been careful.  And Selya nailed it in the case cited next, Haley v. City of Boston:

1. No-Fault Nondisclosure. In the first of his two section 1983 forays against the detectives, Haley alleges that they abridged his due process rights by failing to comply with the disclosure obligation imposed by the Fifth and Fourteenth Amendments and explicated by the Supreme Court in Brady v. Maryland…..

Judge Selya even understands that the “materiality” issue belongs to Brady, not Mooney:

The Brady Court wielded a scalpel, not a meat-axe. The Justices made it transparently clear that the newly announced no-fault disclosure obligation does not cover all evidence but, rather, only “evidence [that] is material either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.Ct. 1194; see United States v. Trainor, 423 F.2d 263, 264 (1st Cir.1970).

And to drive the point home, he discusses the Mooney due process requirements (deliberate suppression) separately from Brady (“no-fault” suppression), using a “2” to differentiate it:

2. Deliberate Suppression. Haley’s second section 1983 claim against the detectives is more promising. This claim draws sustenance from a line of cases flowing from the Supreme Court’s seminal decision in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), which held that state actors violate an accused’s due process rights when they engage in “deliberate deception.” Id. at 112, 55 S.Ct. 340. Haley avers that the detectives violated a proscription, developed in Mooney‘s pre-1972 progeny, against intentionally concealing evidence and permitting false testimony to be given at a defendant’s trial.[3]

Someday, we hope Judge Selya will read Pyle v. Kansas again.  But we’ve loved him over here ever since we read Limone v. Condon:

The amended complaints paint a sordid picture. Although the misdeeds described therein are many and varied, the plaintiffs’ claims may be distilled into two basic allegations: first, that the appellants purposefully suborned false testimony from a key witness; and second, that the appellants suppressed exculpatory evidence in an effort both to cover up their own malefactions and to shield the actual murderers (one of whom was being groomed as an FBI informant). The complaints weave these allegations together. From that platform, the plaintiffs asseverate that an individual’s right not to be convicted by these tawdry means — his right not to be framed by the government — is beyond doubt.

This is easy pickings…some truths are self-evident. This is one such: if any concept is 45*45fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit…Actions taken in contravention of this prohibition necessarily violate due process (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction)…That ends this phase of our archival journey into the annals of constitutional jurisprudence. We conclude, without serious question, that Mooney and its pre-1967 progeny provided reasonable law enforcement officers fair warning that framing innocent persons would violate the constitutional rights of the falsely accused.

We need Judge Selya’s clarity on this issue all over the country.  Judge Posner has “evolved” since he and Judge Easterbrook caused a lot of confusion out of the 7th Circuit in the 1990’s, but the 7th circuit is still a mess, and it’s messing up everyone else, and basically Selya owns this issue.

Along with us.

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