In A Footnote…

…specifically footnote #1 in the dissenting (en banc, no less) opinion of the latest Cole v. Carson decision (we’ve kicked that one around before) coming out of the United States Court of Appeals for the fifth circuit:

We do not challenge the majority’s decision to leave in place fabricated evidence charges against these two officers and Officer Carson… The Supreme Court has not been clear on the constitutional basis for such a claim, so we have no ground to criticize the majority. Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017), with McDonough v. Smith, 139 S. Ct. 2149 (2019), (refusing to rule on the constitutional grounding of such claims).

Institutionally speaking, that is, we just don’t know any more exactly why the fabrication of evidence by law enforcement officials or prosecutors is a constitutional problem.  We haven’t known since 1994 – a quarter century ago – since the SCOTUS decided Albright v. Oliver, a “plurality opinion” case which ironically had nothing to do with fabricated evidence, but in its own footnote cited Mooney v. Holohan and its progeny, which did.

We’re fatigued on the point here at LoS.  We actually tried to help out with the McDounough case, and maybe we did because it seems at least no more damage was done in the wake of that one.

But the bottom line is that we’re very confused about the simplest thing. We just wrote about that in a different context, but it’s the same macro-problem.  It’s an epistemological crisis in the legal profession and the judiciary, an epistemological crisis that is actually deadly in practical terms even though epistemology is probably the most thoroughly academic and theoretical subject that exists.

It’s horribly fascinating.  The 7th circuit is as incoherent as the 5th and the SCOTUS at this point.  The 2nd?  Well, that’s where McDonough came from.

At least the 1st circuit has some clarity on it all.  But they’re all by themselves at this point.




Filed under epistemology, wrongful convictions

3 responses to “In A Footnote…

  1. kent

    It is amazing how insane some of these courts are becoming. I mean its freakin’ fabricating evidence! … how does such actions ever even be considered to be under a qualified immunity?!


    • Well, as succinctly as I can put it. If you want to get absurdly literal, the Mooney line of cases applies only where there has been a conviction. So the exact same conduct – fabricating evidence – is plainly a due process violation when it results in a conviction. Where the SCOTUS has gotten very confused and confused everyone else is: what happens when there ISN’T a conviction? That was Albright, Manuel, and McDonough. This circumstance arises in a 1983 action after the criminal proceedings are over, and by definition in these circumstances those proceedings have terminated favorably to the Plaintiff.

      SCOTUS keeps trying to define the scope of the wrong in this circumstance narrowly, thus they entertained and then finally rule in Manuel that where there has been an extended pretrial detention but no conviction there is a 1983 cause of action under the 4th amendment. Manuel declined to rule on whether there is a due process violation as well. Then they took up McDonough and declined to rule on that question in that case also, even though that is really the only reason they took it up (See Alito’s opinion in Manuel). Which was kind of an absurd approach, so in McDonough you get three dissenters on the sole ground that they should never have taken up the case in the first place.

      The obvious solution to this is to recognize that fabricating evidence corrupts the “process”, and that the 1983 Plaintiff is injured by the corrupted process, unless and until it terminates favorably But it appears that some SCOTUS justices are reluctant to rule that way, probably because the “mechanism of harm” – that is, the “process” – is broadly defined and they have a vague sense of “floodgates” – the rabble having too much access to federal courts, which they see as being the province of elite lawyers who work for the government or banks or insurance companies or white shoe law firms.

      Or, let me be more succinct. They’re lapsing into incoherence on this issue because they’re snobs, and that governs their thinking more than anything else.

      So my conclusion is that they don’t really like the argument I made in this brief:

      Click to access 20190304152753898_finalbrief.pdf

      because a) it’s obviously correct; and at the same time b) it undermines the pecking order that is dearer than anything else, certainly dearer than the plight of some schmuck who wasn’t smart enough (like they are) to avoid criminal legal trouble. So if you look at the case page the link to that brief, alone among all the other entries for parties and amicus, has disappeared:

      Then again, our motion for divided argument is still there, and in some ways made a better argument than our brief did. I don’t know if you ever read that motion:

      Click to access 20190403141504155_divargparanumbers.pdf

      The most interesting development in McDonough was that the Solicitor General quietly abandoned the position the government had taken in the Pottawattamie case, which was also the position taken in the Albright plurality’s footnote and in Justice Rehnquist’s 1978 Bracy opinion. Together these are the primary ostensible sources of the confusion regarding due process and fabrication of evidence and the Mooney line of cases and all that.

      So we await another turn at bat in the SCOTUS on this issue. The 5th circuit’s en banc Cole v. Carson came down on August 21st but really doesn’t present the issue anymore. I’m not aware of any other cases in the federal appeals courts. Some case presenting a Mooney issue coming out of state courts would be good, because timing is also important. The McDounough case implies the SCOTUS should be very open to a case presenting the issue that McDonough declined to advance. But they’d be more open this term than next, and more open the next than the one after that, because McDonough should be fresh in their minds. Less work to get back up to speed when the issue has receded.


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