…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.
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.