Petition of the Day…

on the SCOTUS blog is…..Long v. Pifster.

Ugh.  SCOTUS keeps revisiting this issue without clearing it up.  Do prosecutors get to lie and cheat to “obtain a conviction” without violating the defendant’s right to due process of law?  Such a hard, hard question.

Of course, merely being a SCOTUSblog petition of the day doesn’t mean there will be a grant.  But with an en banc opinion by Judge Easterbrook of the 7th circuit being appealed and Kirkland & Ellis representing the poor schmuck, it’s a pretty good bet.

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2 Comments

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2 responses to “Petition of the Day…

  1. Chris_Halkides

    I thought that the prosecutor had a responsibility to do justice, but I am probably being naive.

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  2. Well, they do have that responsibility, and you’re not being naive. The question that comes up is whether there is any enforcement mechanism for that responsibility. That’s one question, anyway.

    Also, there is a more specific responsibility not to use evidence – or argument, for that matter – known to be false or wrong. That applies to any officer of the court, but especially government lawyers and prosecutors. And he who uses it must correct it: it’s not enough to just throw it out there, let the jury decide and only if it matters to the outcome does it become an issue (“materiality test”).

    To a large extent this is what Long v. Pfister is about, although I wish the issue were presented more clearly. I suspect that even though this was an en banc opinion, and even though a response has been requested, this one will not be taken up. But that may be more wishful thinking on my part than anything else.

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