When Judge Easterbrook asks this red-herring question in particular:
Must the prosecutor correct false testimony when defense counsel already knows the truth?
or when he refers to “Napue and its successors” in another red herring question, or when he refers to the “Napue-Giglio rule”, he is committing the error of conflating Mooney cases with Brady cases. And we say “error” because it’s not an arguable point. Chronology, not capable of dispute and entirely independent of the matters actually under dispute, demonstrates this absolutely.
Napue was 1959. Brady was 1963. Napue cannot possibly be a Brady case. Not to mention (again) that the whole Mooney line – that is, Mooney, Pyle, Alcorta and Napue – are cited in Miller v. Pate in 1967, making Miller the last Mooney case.
And Miller doesn’t cite Brady.
That is, Miller proves, beyond all rational questioning, that the Brady line of cases and the Mooney line of cases are distinct, even if related, because it post-dates Brady and doesn’t cite it even though it cites all the previous Mooney cases.
What about Giglio, then?
Giglio was 1972. Giglio cites Napue due to the factual similarity involving the withholding of impeachment evidence, and the impeachment evidence being a deal having been made with a prosecution witness. But that doesn’t make Giglio one of Napue’s “successors”. In fact, Napue was one of Mooney’s successors, and has no “progeny” of its own.
The Giglio opinion arguably conflates Brady and Napue, true enough:
We granted certiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v. Illinois, 360 U. S. 264 (1959), and Brady v. Maryland, 373 U. S. 83 (1963).
But this gets cleared up a few pages later:
As long ago as Mooney v. Holohan, 294 U. S. 103, 112 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with “rudimentary demands of justice.” This was reaffirmed in Pyle v. Kansas, 317 U. S. 213 (1942). In Napue v. Illinois, 360 U. S. 264 (1959), we said, “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id., at 269. Thereafter Brady v. Maryland, 373 U. S., at 87, held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.”
Emphasis, as we say, supplied. You see, the proper distinction between the Mooney line of cases and the Brady line is that good or bad faith is irrelevant in the latter, but the very essence of the former. On that particular point the two lines of cases could not be further apart. That is, that particular point is the very thing that distinguishes them. And you don’t have to take our word for it (see pp. 47-49).
So, it’s not as if the Giglio court was really confused about the difference between Mooney and Brady, they just expressed themselves poorly in the first paragraph of the opinion. After reading the rest of the opinion, no person of reasonable intelligence could maintain in good faith that Giglio was anything other than…a Brady case.
But if you graft Brady onto Napue – which is a Mooney case – then you graft Brady’s limitations onto Napue as well, and of course by extension to Mooney also. Then you have limited Mooney by stealth. And that’s what Judge Easterbrook is trying to do in Long v. Pfister, and what Justice Rehnquist tried to do in Bracy and Albright, and what the nation’s prosecutors (as a group, not every single one of them, of course) have been trying to do for decades. This effort has produced such lamentable results as Albright v. Oliver, a plurality opinion from a fractured SCOTUS where Justice Rehnquist basically sneaks his Mooney limiting agenda into a footnote.
And here’s what limiting Mooney means: the government can lie and cheat to get a criminal conviction and it doesn’t violate due process.
We do not believe such a result is tolerable in a free society. And we don’t know how any sane person could disagree. But even if some miscreant prosecutors, police and judges (repeat ourselves?) do disagree – believing perhaps that a little bit of lying and cheating is acceptable if it doesn’t affect the outcome, or some such – they should argue the point honestly and straightforwardly, taking the position that they think Mooney and its progeny were wrongly decided.
But then their honesty is the whole point in issue, isn’t it?