We’re in deep, deep trouble.
Don’t know how we missed this. Except, well, we’ve been busy.
Causation, in the larger sense, is a subject for philosophy, not the law. We have determined at long last, and contrary to our impression growing up and consequently through a large portion of our adulthood, that lawyers and judges as a group are intellectually ill-equipped for any nuanced and honest analysis of any topic with any degree of subtlety. This is probably because the bulk of them were intellectually framed by being political science majors in college.
The idea of “proximate cause” – primarily a negligence concept – is okay for lawyers and judges because it is a greatly simplified version of the idea of causation generally. Beyond that they dare not go.
But then they do. Thus the trouble we are in.
So in Frost we have lots of discussion about due process and deliberate lying and cheating by a police officer or police officers and the majority finds that there was causation or at least that there could be causation:
Second, defendants miss the mark in their assessment that Frost has not raised a triable issue regarding causation. As we have explained, a “prosecutor’s decision to pursue charges rather than to dismiss [a] complaint without further action may depend on the prosecutor’s . . . assessment of the strength of the case, which in turn may be critically influenced by fabricated evidence…Here, a reasonable jury could have found that Vega’s identification “critically influenced” the decision to prosecute Frost.
We need not enter into a hypothetical discussion about what a prosecutor might or might not do if we understand that deliberate lying and cheating by a government actor corrupts the process itself, the very thing that we call “due process” and the very thing that a criminal defendant is constitutionally entitled to.
This winds up being another excuse to cabin or limit the Mooney line of cases by requiring a showing of “causation” tied to some specific act by a government actor that is more concrete than simply recognizing that the corruption of the process due to government dishonesty is sufficient by itself to amount to a fatal constitutional infirmity.
This is a much simpler way of looking at it, but it’s also more subtle, and for that reason lawyers and judges are bound to screw it up.
Indeed, this intellectual deficiency is demonstrated not only by the majority opinion but also by Judge Kearse in dissent:
But this recognition of the actual pretrial focus of Frost’s claimed deprivation of liberty highlights my doctrinal difficulty with the majority’s reinstatement of Frost’s so-called fair-trial claim…The manufacture of false evidence, in and of itself, . . . does not impair anyone’s liberty, and therefore does not impair anyone’s constitutional right.”
Well, this is the issue, isn’t it?
Our position that this latter assertion is wrong; that is, that the manufacture of false evidence, in and of itself, does constitute a deprivation of due process simpliciter, by corrupting the process itself, whether or not anyone’s “liberty” is impaired by imprisonment or pre-trial detention or whatnot.
What is most worrisome about Frost, though, is that it’s attracting the attention of the SCOTUS, having received a “Response requested” and now a relist. This may be just reflexively favoring the government as the SCOTUS is wont to do (the government is the Petitioner). But maybe not, too.
We will be keeping our eyes on this one.