So let’s look a little closer at the cert petition in Farrar.
It’s such a threat to do more harm than good we find it hard to believe that’s not the intention.
More specifically, it’s a strenuous effort to do – formally and explicitly – exactly what we have argued for years that the SCOTUS should never do: conflate the Brady and Mooney lines of cases.
You should follow that link. But for those too lazy to make that effort perhaps just this once we’ll cut and paste, because it’s pretty remarkable how the Farrar cert petition seems to address that long ago post precisely:
Constitutional protection against the government’s use of perjury flows from the need to “avoid an unfair trial,” not the desire to “punish society for misdeeds of a prosecutor.” Brady v. Maryland, 373 U.S. 83, 87 (1963). This Court’s no perjury precedents first addressed the deliberate use of perjury. Subsequent cases steadily clarified that the Due Process Clause is concerned with ensuring that the defendant receives a fair process—regardless of the subjective mental state of the prosecutor during trial.
Start with the groundwork. In Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam), the Court explained that “due process * * * embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions.” Id. at 112. Mooney’s basic principle would come to form the foundation for this Court’s no-perjury line of cases. As Giglio put it later, Mooney had applied that principle to hold “that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands of justice.’” Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting Mooney, 294 U.S. at 112). The Court reiterated this bedrock principle in Pyle v. Kansas. 317 U.S. 213, 216 (1942) (holding that petitioner stated a due-process violation by alleging “that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction”).
Note the references to Giglio. Here’s what we wrote about that almost five years ago:
In the first place, Giglio was fundamentally a Brady case…In the second place, the only significance of Giglio was to impute the knowledge required for the “knowing” use of perjury to any attorney in the prosecutor’s office. The intra-office assignment of a different prosecutor for the trial meant the case didn’t squarely fall within Napue, because the trial prosecutor didn’t know of the promise of leniency to the witness and thus did not act in bad faith, but Brady still applied because the promise of leniency still had to be disclosed…
We then quoted from the Giglio case itself:
The heart of the matter is that one Assistant United States Attorney—the first one who dealt with Taliento— now states that he promised Taliento that he would not be prosecuted if he cooperated with the Government… Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.
“For these purposes”. This is what we call “limiting language” in a SCOTUS opinion.
We stand by what we wrote five years ago. Giglio is a bit of a mish-mash on the Brady Mooney distinction, but fairly read changed nothing about either line of cases. Fundamentally, it was a Brady case, and really says nothing about the “principles” of Mooney beyond what Brady itself said – so very unfortunately as it turns out.
“Fairly read”. We wonder if the kind of attorneys that represent law enforcement and wind up in the appeals departments of Hogan Lovells understand what that means, when we see this in the Farrar cert petition:
Giglio held that the line of cases beginning with Mooney and extending through Brady rendered the trial prosecutor’s lack of knowledge immaterial to the due-process violation. The Court first cited Mooney and Pyle’s no-deliberate-deception rule and Napue’s failure-to-correct rule. Id. at 153. But in the very next sentence, the Court tied Mooney to Brady: “[S]uppression of material evidence justifies a new trial irrespective of the good faith or bad faith of the prosecution.” Id. at 153-154 (internal quotation marks omitted).
It’s like the author – one Catherine Emily Stetson – came over here, read our little blog post, and specifically addressed it in her cert petition, isn’t it?
Of course the “internal quotation marks omitted” part would reveal that Giglio was simply quoting Brady, more or less confirming that it was a Brady case, and that Giglio says nothing of any substance about the Mooney line of cases. But law enforcement interests have been trying to merge the two for years. Remember how we talked about that here? Of course you do.
Again, what’s the goal here? At the risk of repeating ourselves:
Mooney was decided in 1935. It has been unambiguously reaffirmed by the SCOTUS every time it was addressed: in Pyle v. Kansas (1942); Alcorta v. Texas (1957); Napue v. Illinois (1959); and Miller v. Pate (1967)
In contrast to Mooney, Brady (decided 1963) has been qualified, limited, distorted, exceptioned to death and rendered a dead letter.
Rather than abolish the significance of deliberate prosecutorial misconduct in favor of the illusory Brady “fairness”, in other words, the SCOTUS needs to do just the opposite: sharpen and clarify the distinction between Brady and Mooney.
It’s worth quoting at length from none other than Justice Rehnquist in Daniels v. Williams:
The Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. E.g., Davidson v. New Orleans, 96 U. S. 97 (1878) (assessment of real estate); Rochin v. California, 342 U. S. 165 (1952) (stomach pumping); Bell v. Burson, 402 U. S. 535 (1971) (suspension of driver’s license); Ingraham v. Wright, 430 U. S. 651 (1977) (paddling student); Hudson v. Palmer, 468 U. S. 517 (1984) (intentional destruction of inmate’s property). No decision of this Court before Parratt supported the view that negligent conduct by a state official, even though causing injury, constitutes a deprivation under the Due Process Clause. This history reflects the traditional and common-sense notion that the Due Process Clause, like its forebear in the Magna Carta, see Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 368 (1911), was ” `intended to secure the individual from the arbitrary exercise of the powers of government,’ ” Hurtado v. California, 110 U. S. 516, 527 (1884) (quoting Bank of Columbia v. Okely, 4 Wheat. 235, 244 (1819)). See also Wolff v. McDonnell, 418 U. S. 539, 558 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U. S. 114, 123 (1889)“); Parratt, supra, at 549 (POWELL, J., concurring in result). By requiring the government to follow appropriate procedures when its agents decide to “deprive any person of life, liberty, or property,” the Due Process Clause promotes fairness in such decisions. And by barring certain government actions regardless of the fairness of the procedures used to implement them, e. g., Rochin, supra, it serves to prevent governmental power from being “used for purposes of oppression,” Murray’s Lessee 332*332 v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856) (discussing Due Process Clause of Fifth Amendment).
We added a little emphasis here and there to that quote.*
The point is, the intentionality of government actors in the due process context has always been crucial. The Farrar cert petition threatens to undermine its importance.
There are other arguments that would benefit Farrar that don’t carry that downside for everyone else. So you have to wonder why Farrar is being argued this way, in a manner that just happens to advance the agenda of organized law enforcement and, you know, Judge Easterbrook of the 7th circuit.
*We note parenthetically that organized law enforcement interests are fond of citing Daniels v. Williams when a police officer is sued for Brady violations under section 1983 and they’re arguing that “qualified immunity” exonerates the officer unless his actions were deliberate. Somehow Daniels v. Williams isn’t cited in the Farrar cert petition. Hmmm.