No Rest For The Wearry

After something like 10 relists, we have our answer: summary reversal, a somewhat stunning result.

Alito and Thomas dissented.  Their inclinations to deny relief and to dive into the Brady quicksand of “materiality” and Kyles v. Whitley and so on are objectionable; but their more fundamental point that plenary consideration is called for is reasonable.  At least to us, though that probably doesn’t matter except maybe to us, and a few readers, and maybe a client or two.

The problem with this whole Wearry case, then, a problem we have repeatedly described and lamented before, is that the Petitioner has been oblivious to the critical distinction between inadvertent, sloppy, or even reckless conduct by a prosecutor on the one hand; and this, lifted right out of their Petition:

B.  The State Suppressed Eric Charles Brown’s Efforts to Get A Deal, Then Lied About it to the Jury.

Wearry describes, in other words, a straightforward example on all fours with Napue v. Illinois, involving deliberate prosecutor lying and cheating, but never distinguishes it from the overall Brady argument it makes.  Napue, of course, pre-dates Brady and thus is not a Brady case.  Conflating the two is an implicit acknowledgement that the Mooney line of cases has been “generally subsumed” into Brady.

We don’t favor that proposition around here.  And some far more important people don’t favor it in Boston, either.

So it’s frustrating that the SCOTUS didn’t take the opportunity to address this extremely important problem, but then since our issue wasn’t being argued maybe this is what they were doing:  when we at the SCOTUS get a case where the record shows a Mooney violation that hasn’t been adequately disputed by the State, we’re going to summarily reverse even if the Petitioner conflates Brady and Mooney.

The question we now ask ourselves – and we’re not going to answer precipitously because we are still digesting the result in Wearry – is whether this is a signal to the federal courts of appeal that well documented and undisputed lying and cheating by prosecutors should be dealt with summarily.  That may have some relevance to some things we have been up to in other venues.

As for right now our answer to this question is that we’re thinking about it a bit.

But one thing we do wish to point out for general consumption:  Did the Napue case, which we have somewhat exhaustively covered, establish a “materiality” requirement for a Mooney violation?  And the answer is in two parts, because we wish to be especially thorough and honest in our discussions of this important subject

  1.  Napue discussed the idea of materiality; but
  2.  the case in no way held that there was a materiality requirement to a Mooney violation.

Let’s flesh this out a bit.  From Napue:

The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend. As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, 1 N. Y. 2d 554, 557; 136 N. E. 2d 853, 854-855; 154 N. Y. S. 2d 885, 887:

“It is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon defendant’s guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. . . . That the district attorney’s silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.”

So, the simple answer is this:  Napue can’t be read as holding that Mooney violations are a due process violation only if they are “material”.  For that holding, you would have to have a case where the SCOTUS found both that deliberate lying and cheating had occurred AND that it didn’t matter because it wasn’t material to the conviction.  And there has never been such a ruling.

But you could argue Napue did imply that such a ruling could happen, since it discussed materiality.  We think that’s a failing argument, though, because the SCOTUS in Napue was only addressing arguments made by the State and rejecting them.  You don’t establish an important precedent, limiting a landmark due process case like Mooney, through a discussion in which the principal contention – while admittedly discussed – is actually rejected.

So the SCOTUS missed an important opportunity with the Wearry case to clarify this whole area and adopt the well reasoned and unarguable position of the 1st circuit and Judge Selya.  Or maybe they didn’t, and this was the problem:  they couldn’t reach that important clarification because it wasn’t being argued.

So they need to take up a case where it is argued.

Will they?  We’re on pins and needles over here at LoS.

One last thing.  In Wearry, and in Napue, and in a very important case which is sort of in the Mooney line (it cites Mooney) but sort of not in the Mooney line because it deals with a federal conviction and not a state conviction, the State doesn’t get to play cutesy with the facts, kind of not denying – because dishonest and perjurious – but kind of not admitting, either – because the State loses.  Observe.  And this is important:

Petitioner filed his petition for habeas corpus in the District Court, alleging upon oath that he had been coerced, by intimidation and threats by an agent of the Federal Bureau of Investigation, to plead guilty to an indictment for kidnaping, and that he is held in custody by respondent under the consequent judgment of conviction and commitment      …Respondent’s return to the order included…an affidavit of a special agent of the Bureau of Investigation, not the one mentioned in the petition, stating that petitioner, in affiant’s presence, voluntarily signed two statements confessing his guilt, and that no threat or promise to petitioner of any kind was made in affiant’s presence. The return made no denial of the allegations of coercion specifically set forth and relied on in the petition.

Emphasis supplied.

See, you have to set forth something more than a conclusory denial of allegations unaccompanied by any personal knowledge evidence.  Or at least, this is always the rule for litigants other than the government, the bank, or the insurance company.  But in rare cases like Waley, a federal court might even apply that standard to those favored types of litigant.

So maybe the summary reversal in Wearry is another indication that the tide is turning in the courts, that the favored litigants, while still favored, may not be favored so heavily that absolutely none of the usual rules will be applied against them.

That would be a good development, we think.


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