Of Backstops And Due Process

So there’s this guy from the Heritage Foundation and he went to Stanford Law and he clerked for Robert Bork and he worked in the Justice Department and so, you know, he has a great resume and he writes well and all that.

His name is Paul J. Larkin, Jr., and it’s too bad that all of his intellectual firepower has metastasized because it’s only ever lived in Washington, D.C. in the service of punditry and wonkery and in thrall to power.

Anyway, he’s got a brand new article out (here)(more footnotes than text, must be really deep) and he’s perpetuating, or trying to perpetuate, the mythology that the Mooney line of cases and their “due process” holdings are applicable only to the deliberate use of perjury at trial:

An example of the second category—actions that effectively deny a defendant a trial as we know it— …. would be the Court’s decisions barring the state from using perjured testimony to prove the defendant’s guilt (fn113) and the Court’s decisions holding that certain constitutional errors cannot be harmless under any circumstances…

Here’s foonote 113:

See, e.g., Napue v. Illinois, 360 U.S. 264 (1959) (ruling that due process forbids a prosecutor from knowingly allowing a witness’s perjury to go uncorrected at trial); Pyle v. Kansas, 317 U.S. 213 (1942) (ruling that due process forbids a prosecutor from intentionally using perjured testimony to convict a defendant); Mooney v. Holohan, 294 U.S. 103 (1935) (ruling that due process forbids a prosecutor from proving a defendant’s guilt entirely through perjured testimony); cf. Giglio v. United States, 405 U.S. 150 (1972) (ruling that due process forbids the prosecution from not disclosing to the defense evidence that impeaches the credibility of a prosecution witness); Brady v. Maryland, 373 U.S. 83 (1963) (ruling that due process forbids the prosecution from not disclosing to the defense exculpatory evidence on the issues of guilt or innocence).

Note that Napue and Pyle and Mooney are lumped together with Brady and Giglio.  Ugh.

We’ve been over this, but it bears repeating because this plainly erroneous thinking, shared by far too many in the profession, has not yet attained the status of law.  But it’s come close, and may yet come closer.  From later in the same article:

In any event, the Court has begun to walk away from its due-process-as-backstop line of precedents. The Court first put the brakes on this approach is Graham v. Connor, 490 U.S. 386 (1989), a case involving a claim of police brutality during an arrest. Reasoning that the Fourth Amendment Reasonableness Clause directly applies to arrests as “seizures,” the Court declined to provide an additional layer of review under the Due Process Clause. Id. at 395 (“[We] hold that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”) (emphasis in original). Since then, the Court has consistently ruled that the Due Process Clause does not serve as an all-purpose backstop that can be invoked when another constitutional provisions that specifically addresses the government’s conduct does not reach as far as a private party would like. See, e.g., County of Sacramento, v. Lewis, 523 U.S. 833, 843 (1998) (noting that due process analysis is inappropriate if a party’s claim is “covered by” a more specific constitutional provision); United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (same); Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (“Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims’”); e.g., id. at 273-74 (declining to interpret the Due Process Clause to impose a requirement on the states similar to what the Fifth Amendment Indictment Clause would demand). Whenever a specific constitutional provision addresses a certain type of police or judicial conduct, that provision should serve as the prism through which the courts view a constitutional challenge.

Unfortunately, we know all of those cases too well, especially Albright.  Ugh again.  This is such an inside the beltway thing.

Where is the highly credentialed and thoroughly Washingtonian Mr. Larkin going with all these footnotes?  He’s trying to scale back the reach of the due process clause, and fold it into the 6th amendment or some such:

Were the Court to decide that the Privileges or Immunities Clause incorporates the Bill of Rights, this entire line of cases would find a home in the Sixth Amendment. The Due Process Clause would still be relevant, but only as a guarantee that every person must receive the benefit of whatever law and procedure a state may adopt. That guarantee, of course, would be far more limited than the role that due process currently plays as a guarantee of fundamental fairness.

Mr. Larkin needs to read Frank v. Mangum, Waley v. Johnston and Chambers v. Florida.  Fundamental fairness is required of the government at all times, not just during criminal trials, and it’s required of both the state and federal governments, and always has been.  The due process clause did not create or impose that requirement; it was there already, and the idea of due process merely recognizes what already is.

In other words, it isn’t the due process clause that functions as a “backstop”.  It’s something else.  But as a profession we are very far astray and it’s a long way back.  In the meantime, it’s critically important that this one thin line be held.

Our job, I’m afraid.

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