“Generally Subsumed”?

We suppose Scott Greenfield (SHG) might be technically right here in response to this comment over at SJ:

Isn’t this more of a Mooney v. Holohan (1935) violation rather than a Brady violation? Instead of “Oops, we forgot”, the prosecution purposefully didn’t turn the info over to the defense. Or am I splitting hairs?

…. to which SHG replies:

Mooney, which involves both the presentation of perjured testimony as well as the deliberate concealment of evidence that would have proven the testimony false, is generally subsumed in the broader rule of Brady, which applies regardless of good or bad faith by the prosecution.

…in the sense that courts have in fact developed a pattern of generally subsuming Mooney into Brady.  Most federal courts of appeal, that is.

As we have noted repeatedly (and recently), the problem with this “subsuming” business is that it winds up applying Brady’s limitations and qualifications – of which there are many – to Mooney situations, which have not been subject to limitations or qualifications at all:  federal courts of appeal have no power to limit Mooney and its progeny.  Only the SCOTUS can do that.  And they’ve never done it, and never will.

It’s a curious – not to mention wrong-headed – view coming from a criminal defense attorney, but I’ll venture a guess about why SHG has it.  Mooney, as we have so often said, is about deliberate misconduct by a prosecutor.  There are many times you might suspect that the prosecutor was acting deliberately but have no proof.  There are other times you have some proof, but then the question becomes:  how much proof is enough?  In theory, you would answer that question the same way here as in any other context; in practice, the quantum of proof in this context would have to approach or attain absolute certainty, because prosecutors are heavily favored.

How often can something be proven to near absolute certainty?  Not often.

In the next two cases of the Mooney line – Pyle v. Kansas and Napue v. Illinois – we had the exceptional circumstance.  In Pyle the prosecutors argued that Pyle had committed the murder, convicted him, and when his appeals ran out they prosecuted another guy for the same murder.  They revealed themselves, in other words.  In Napue, the prosecutor swore up and down at trial that he hadn’t given the witness a deal, then went into private practice and brought a coram nobis petition to get the witness out of prison on the ground that as a prosecutor this was the deal he had promised.  Again, he revealed himself.  In Miller v. Pate, the prosecutor paraded a pair of “blood stained” shorts in front of the jury.  It was actually red paint.  Maybe the prosecutor didn’t exactly reveal himself in that case, but the absurdity of it all was just too, too much.

In Pyle, Napue and Miller, that is (as in our case) you had absolute certainty that the prosecutor misconduct was deliberate.  It’s almost as if this is an implicit requirement of a Mooney violation:  the proof that the conduct was deliberate has to be well nigh conclusive.

That this is generally impossible is one of the reasons that Brady came along a few years after Napue and relaxed the implicit nearly impossible standard of proof.  Brady issues, then, are the subject of hearings and testimony and argument – the domain of the criminal defense trial lawyer.  So for a CDL, professionally speaking, Brady issues are meaty and significant, a great opportunity for the CDL to do his thing.

By contrast Mooney issues – in addition to being far more rare – are uninteresting, relatively speaking.  The proof of deliberateness has to be unarguable.  If you have it, there’s nothing to have a fight over.   Hearings, testimony, argument all become surplusage, at best.  Mooney issues are not an area where a CDL has any importance, at least not in the way that they are used to having importance.

So being indifferent to the corruption of Mooney being “subsumed” into Brady is a function of SHG’s sense of self importance, which often trumps everything else.  A lot of lawyers have this problem.

And their problem has become our problem, in a big way.

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