Double Trouble

Sometimes we think a subject we visited previously deserves another mention or two.  We have wondered about the constitutional principle of “separation of powers” with regard to public prosecutors, who are members of both the executive and judicial branches of government.

How, we have wondered, can that be?

It appears that the question simply isn’t asked.  Or hasn’t been.  Except around here.

In practical terms we note that in the UK, lawyers are not permitted to just do prosecution or just do defense.  They must do both, periodically.  This is very much unlike our own system in the US.  True, there are prosecutors who segue from the prosecutor’s office to the defense side.  But it’s generally never to return.

And here’s a follow on problem:  judges are overwhelmingly selected from among the ones that stay, the ones that never leave the fold of the prosecutor “community”.  So we have chronicled elsewhere.

We were also able to identify, in previous discussions, other aspects of this problem that wind up being deeply troubling.

First, we violate the separation of powers by allowing attorneys who are members of the executive branch represent that same branch in court both as executive branch prosecutors and as one of the officers of the court itself.  Then, aggravating that problem, we overwhelmingly pick judges from among that same group of lawyers, judges who then talk about their job as “protecting the public”, which is flatly and dangerously wrong by any sensible interpretation.

It is a little surprising to us that arguments about this problem have apparently never been raised or addressed in an American court.  Only by our increasingly unread blog.

Then again, our ideas for amending our constitution have not gone over well before.  We see no reason to expect that this idea will catch on, or even generate any interest, either.

But that’s probably too bad.  The fact that something has no popularity doesn’t mean it’s wrong.  Just unpopular.

Ugh.

 

 

Advertisements

The SCOTUS “Materiality” Quagmire (Corrected)

(SIGNIFICANT CORRECTION APPEARS AFTER THE BREAK)

The term is coming to an end and we’re still stuck in it.  A faint effort to clarify things took place with McDonough v. Smith.  We weighed in with an amicus brief* and a motion for divided argument.  Good thing, too, because the Solicitor General also weighed in – very surprisingly on the same side of the “v” with us, and accordingly at the same time – with an amicus brief and a motion for divided argument.  The SG fared better than we did – not a surprise on that score, of course – but not as well as he might have: look at pages 25-26 of the SG brief.  We have never seen such an explicit, succinct and of course wrong-headed conflation of Brady and Mooney cases in print.  It’s actually hard to accept that it wasn’t deliberate:

In the due-process context, this Court has explained that the knowing use of fabricated evidence to obtain a conviction violates due process only where there is a “reasonable likelihood” that the evidence “could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976); cf. Strickler v. Greene, 527 U.S. 263, 281 (1999) (“[T]here is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.”).

Ugh.  We’ve been over this so many times.

Thankfully, though – and we can’t rule out that it is somewhat thanks to us and our little effort – McDonough didn’t go down that road with the SG at all.  In fact, McDonough did so little in terms of defining or clarifying anything that there were three dissenting votes for the sole proposition that the SCOTUS should never have taken up the case to begin with because it was a waste of everyone’s time and effort.

So yes, we’re still in the quicksand. But at least we haven’t sunk any deeper.

Meanwhile, the SCOTUS is still at it, and we don’t know quite what to make of it all.  We noted another case, McGee v. McFadden, here after its ninth relist.  It has now presumably been relisted again but there are no more conferences this term.  Guess it’s held until next term.  But in truth we don’t know.

We also noticed another very similar case that came to SCOTUS’ attention at about the same time as McGee.  That one was Owens v. Texas.  Seemed to us to be as good or better than McGee on the whole “materiality” thing, but it was denied on June 24th.  At least, if you look at the State’s boilerplate brief in response, they interpreted the SCOTUS interest as having to do entirely with Brady materiality.

So that’s where things are and they get quiet up at the SCOTUS for the summer.  But we’ll be keeping an eye on McGee and whatever occasional orders come down until the new term starts in October.  And if any of our readers – all three of them – come across anything else interesting along these lines, such as cases coming out of the federal courts of appeal or state high courts dealing with the same issue, we’d be grateful if you’d bring it or them to our attention.

We have our reasons.  Ugh.

---

*We note that for the second time the link to the brief we filed at the SCOTUS has disappeared. Now the SCOTUS case page just shows that the brief was filed, but there is no link, alone among all the other amicus briefs filed. We are not paranoid if they really are out to get us!  In any event, most of the brief wound up being moot in the sense that the SG abandoned the position he had taken in the Pottawattamie case 10 years ago, and argued instead that the due process proscriptions against deliberate lying a cheating by prosecutors and police were not restricted to things that happen at trial. We think it’s possible that this shift in position was due to our feeble efforts as well, but that’s a rabbit hole we doubt we’ll ever get to the bottom of.

CORRECTION:  Apparently there is another conference tomorrow. And we can’t be sure but to us it seems passing weird that McDonough is on for it, post decision and opinion.  Is the SCOTUS going to vacate its opinion and “DIG” the case? We don’t know.

And of course McGee is on for its tenth relist.  Usually, that many relists is indicative not of a cert grant but rather a dissenting opinion from the denial of cert. But we think the McGee situation is also weird, so we’re a bit bewildered by this one as well.

 

 

Long v. Pfister And Agendas And Footnotes

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?

Ugh.

Long v. Pfister

So, continuing our analysis from the last post.

Judge Easterbrook, the author of the majority opinion, was one of the early darlings of the Federalist Society, and by all accounts he’s “brilliant”.

We have to question that.  Seriously.  He may have been a smart boy at one time, but undergraduate work at the Kremlin on the Crum must have dulled his wits considerably.

And making matters worse he, like so many federal appeals court judges, has never tried a case.  And this is another situation where that matters.  Very much.

But let’s look closely at the facts presenting the issue.  Long is identified as the perp by a total of four witnesses.  Two recant prior to trial and never re-recant.  Irby recants but then re-recants and then at trial, called by the prosecution, falsely denies ever having recanted, and the prosecution knew that this testimony was false.

If you can follow all that.

The prosecution never admitted that her witness had lied and never corrected it, although it appears that the lies were amply rebutted.

Due process violation?

It appears to explicitly and squarely run afoul of Napue v. Illinois, but Judge Easterbrook says that’s not obvious to him or his colleagues in the majority.  He says that Napue was silent on such subsidiary questions as these:

• Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?

• Must the prosecutor correct false testimony when defense counsel already knows the truth?

• Does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?

• Does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?

The dissent points out that Napue itself substantially answers these questions, but the real issue here is:  where do these questions come from?  Why are they questions at all?

Let’s play the same game as Judge Easterbrook in a different setting.  The rule is, we don’t admit into evidence at criminal trials confessions that are coerced, and we confront a case where the cop held an unloaded gun to the head of the suspect and threatened to shoot him, and then after the confession apologized for his behavior.  So, following Judge Easterbrook’s methodology:

Is it really coercion when the gun isn’t actually loaded?

If it is, is the coercion cured when the cop apologizes?

The cases forbidding the admission of coerced confessions haven’t spoken to these questions, so they haven’t been clearly resolved by the SCOTUS and so habeas relief must be denied.

See how easy that was?

The point being, any idiot can come up with stupid subsidiary “questions” that undercut any proposition of any kind.  This is limited only by the how dimwitted the imagination and how strong the desire to evade the result the proposition requires.  With Judge Easterbrook, we think “very” and “very” about covers both of those.

Long is an en banc opinion, decided October 20th, and reaching the opposite result from the three judge panel that decided the case earlier.  All of this is quite rare and enhances the likeliood of SCOTUS review.  The loser has 90 days from October 20th to file a cert petition.  That would seem likely to occur, since Kirkland & Ellis has taken up Paysun Long’s plight.

Well, we like the issue.  But we don’t like the vehicle.  And while we haven’t read the briefs – though we may do that soon, too – we don’t like the way the argument goes.

Napue, like all of the Mooney cases with the possible exception of Miller v. Pate,* is about deliberate government lying and cheating.  Not lying and cheating by a government witness in and of itself but rather the government’s participation in the lying and cheating and then “obtaining a conviction” thereby.  It’s a clear cut due process violation, and that’s one of those very few “bright-line” rules.  Or at least it has been.

Judges like Easterbrook have been trying to blur that line for a long time.  Sometimes, as Easterbrook is doing here, it’s by generating artificial questions that the SCOTUS hasn’t addressed (because they don’t occur to normal and intelligent people in the first place) and pretending there’s some sort of room to get around the rule.  Other times, they’ve had to misrepresent the law, like Justice Rehnquist did in Bracy and Albright.  But one of the main tactics has been to conflate Mooney cases and Brady cases.

We have to confront Judge Easterbrook’s and Justice Rehnquist’s – let’s face it – agenda driven falsifications and dissembling directly.  We must clarify and restore the law, not move to a less pernicious confusion about it and hope for the best.  The Mooney line of cases, including Napue, has never been qualified or limited, and that’s very much unlike the Brady line of cases.  Giglio is one of the latter, and Napue is one of the former.

We don’t think Long will address the Mooney-Brady distinction, and for that reason it’s not likely to clarify much even if the SCOTUS takes it up.

Which we hope it doesn’t.  Ugh.

_________________________________________________________________________________________

*We are probably all by ourselves on this, but nevertheless, we think Miller extends the principle of Mooney to situations and results that are too absurd or stupid to tolerate in a rational system of justice.  Kind of like Judge Easterbrook’s en banc opinion under review here!

 

 

Proposal For New York Constitutional Convention

We at LoS have often wondered, in our more or less idle moments (we don’t really have any idle moments, but never mind that point for now), how crimes can be prosecuted before courts by a member of the executive branch of the government – a “District Attorney” (see People v. Leahy, 72 NY2d 510 at 513) – who is also, and simultaneously, a member of the judicial branch of the government.

Separation of Powers, anyone?

Ugh.  This is one of those thoughts that has a sort of unassailable logical validity but which will never get a serious hearing in a system dominated by political science majors.  That is, the idea has unimaginably large implications, but however airtight the reasoning it is only an argument, and arguments are cheap, so we are told.

But couldn’t we at least do a little damage control, just a little half measure that might mitigate the damage from the thorny separation of powers problem we just identified, and that might not run afoul of the political scientist’s slavish devotion to the oxymoronic “principle of utility“?  (But see an entertaining send up of Bentham, et al.)

Maybe.

Accordingly, we propose the following should be added to New York’s constitution in the section on the judiciary:

“Any attorney who has served in the office of a District Attorney or the Attorney General shall be disqualified from holding any judicial office for a period of ten (10) years after the completion of any such service.”

It is one thing to ignore the separation of powers problem posed by District Attorneys ab initio.  It is considerably worse, in view of the separation of powers doctrine as a check – however feeble – upon the abuse of power, to allow attorneys whose dominant experience in the profession is prosecuting people for crimes to also gain a foothold in the judicial branch that (supposedly) impartially adjudicates those prosecutions.

And of course, the foothold has long since been a fait d’accompli that in recent decades has metastasized into a stranglehold:  that is, former prosecutors completely dominate the judicial branch.  This is probably only our opinion, but we think this state of affairs is a deceptively large factor in wrongful convictions, not to say the power-toadying practical reality of our “justice” system.

Thoughts, anyone?

So This Is The Argument?

Seems Greenfield has been reading over here again.  On the sly, of course.

You’ve got the Brady Mooney thing and we’ve extensively chronicled how prosecutors have mangled it all up (just one example) but we have also wondered aloud – in this as in so many other aspects of the criminal justice system – whither the criminal defense bar?

Turns out they are backing up the prosecutors.  Or at least some of them are.

Oh, dear.

Anyway, a few days ago SHG got into it, and this is the position he’s carved out for himself:

Not just Brady, but the narrow and rarely used Mooney brand of intentional concealment.  The reason no one uses Mooney is that it’s nearly impossible to prove, and even if you do, judges almost never adopt it. It’s one thing to say that exculpatory evidence has not been disclosed, and another to lay blame on a prosecutor for intentional, malevolent concealment.  That’s a step too far, and the surest way to seize defeat from the jaws of victory.

Where to begin?

“No one uses Mooney”?  It’s not true – Mooney is still cited in court opinions with some frequency – but ponder that phrasing for a while.  Is Mooney just a tool, a lesser used weapon in the criminal defense lawyer’s arsenal in his campaign to game the system to win, every single time?

No.  Mooney is the law, and it has been since 1935, “use” it or not.

Besides, what is being advocated here?  That if you have a Mooney problem you should ignore it, since it is the “surest way to seize defeat from the jaws of victory”?  Victory would be assured if you “subsumed” Mooney into Brady?  And that’s because Brady is always followed by prosecutors and judges whereas Mooney is not?

That’s laughable.

Is Greenfield serious?  You uncover a Mooney situation and it’s one of those rare cases where you can prove it and you’re supposed to let it go?  A prosecutor abuses his office in the worst way he can – against your client, so it’s your responsibility to correct – and you should bury your proof, look the other way and argue something else, because it’s a “bridge too far” and the judge won’t like it?

Put another way, the argument here is that you should match the prosecutors abuse of his office with a corresponding abuse of your own.

Any lawyer who would do that has no right to complain about any atrocity the system dishes out.  The “bridge too far” is obviously the prosecutor’s conduct, not the defense lawyer fulfilling his obligation to ferret it out and obtain relief for his client, not to mention protecting the whole system from an unspeakable corruption.

It’s a really lousy argument, Scott.  We realize you’re desperate to find some basis to disagree with us on this subject, but some things are just true, or just, or unarguable.  Willful blindness for ego’s sake isn’t going to change anything, and it certainly isn’t going to help anything.

Brady Follies – Propagating The Big Lie

This looks like a law review article.  But it isn’t.  It’s in a journal of “criminology”.  Criminology is a field of study undertaken primarily by law enforcement types, and it probably doesn’t matter to anyone but us but in our opinion it is not a proper field of study for a lawyer.  Too slanted in one direction.

In any case, published in 2011 the article is as revealing as it is wrong, once you get past its basic deceptiveness:  while seeming to bemoan prosecutor lying and cheating it is in fact giving them a lot more cover than they deserve, and more importantly a lot more legal cover than they actually have.

As we have repeatedly noted in these pages, the basic error – or sleight of hand, if you’re not in a charitable mood – is to conflate the Mooney line of cases with the Brady line of cases; that is, deliberate deception of the court (Mooney) with negligent or unintentional misleading of the court (Brady).

Here’s Mooney:

Petitioner urges that the “knowing use” by the State of perjured testimony to obtain the conviction and the deliberate suppression of evidence to impeach that testimony constituted a denial of due process of law…Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise.

But here’s Brady:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

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.  And you don’t have to take our word for it.*

Yet somehow, all these qualifications and exceptions – such as a “materiality” requirement – that were later applied to the Brady line of cases also got applied to the Mooney line of cases, at least in the minds of many prosecutors.

And judges, if that’s not repeating ourselves.

Which as you’ll see further down, is more than a little ironic.  We could think of other words, too.

Anyway, there are really two lynchpins of this contention Brady = Mooney.  The first is this line out of Brady:

This ruling is an extension of Mooney v. Holohan, 294 U. S. 103, 112, where the Court ruled on what nondisclosure by a prosecutor violates due process…

And then this line:

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.

From these slender reeds, criminologist types have argued: 1) that the deliberate use of perjury by a prosecutor to obtain a conviction violates due process only if it is “material”; and 2) the only use of perjury that counts in this context is use at trial.  Perjury can otherwise be freely – and deliberately – used without due process concerns.

I would call these arguments sophistry of a very low order, but I don’t want to flatter them.

For the first argument – often called the “materiality” requirement – it is certainly a concern in a Brady situation but it is never a concern in a Mooney situation, for the simple reason that the  materiality of the deliberately perjured or suppressed or fabricated evidence has been conceded in advance:  if the evidence didn’t matter to obtain the conviction, why did the prosecution deliberately perjure or suppress or fabricate it?

Put another way, the State is judicially estopped from even arguing that the evidence they deliberately perjured or suppressed or fabricated to get their conviction didn’t matter.  It’s more than a little embarrassing that judicial estoppel must be applied to state officials as opposed to, say, ambulance chasing TV lawyers, but there it is.

Moreover, what is the line of reasoning here? That if Brady “extends” Mooney and has a materiality requirement then Brady must also limit Mooney by extending the materiality requirement to Mooney? That is a non-sequitur, and a particularly unwholesome one at that.

As to the second argument, not one of the cases in the Mooney line ever suggested that the deliberate use of perjury, etc. counted as a due process violation only if it occurred at a trial; indeed they said it counted as a due process violation if it was used “to obtain a conviction”.

Here’s Pyle v. Kansas:

Petitioner’s papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him.

Here’s Napue v. Illinois:

First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment

Here’s Miller v. Pate:

More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.

But all this aside there is even better – conclusive, really – proof that the Mooney line of cases, though related, is separate and distinct from the Brady line: Miller v. Pate is 1967** – that is, it post-dates the 1963 Brady case – and while it cites Mooney and Pyle and Alcorta and Napue it never cites Brady.

Thus when the criminology article goes on and on about how we really, really should have a more “protective” “materiality” requirement to discourage prosecutor lying and cheating it is actually making an allowance for prosecutor lying and cheating that never existed in the first place (and God willing never will exist):

Nine years after the Brady decision, the Court established the materiality standard for determining a constitutional violation in the context of a prosecutor’s knowing presentation of false testimony in Giglio v. United States

Giglio (1972) did no such thing.  In the first place, Giglio was fundamentally a Brady case:

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).

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:

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.

From this mess there, the criminology article then cites the 1976 case of US v. Agurs.  But Agurs is a Brady case.  This is out of the first paragraph:

The question before us is whether the prosecutor’s failure to provide defense counsel with certain background information about Sewell, which would have tended to support the argument that respondent acted in self-defense, deprived her of a fair trial under the rule of Brady v. Maryland, 373 U. S. 83.

The article then gets deeper into the “materiality” issue and goes on to cite United States v. Bagley (1985).  But the first paragraph of that case says:

In Brady v. Maryland, 373 U. S. 83, 87 (1963), this Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” The issue in the present case concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses.

Yup.  Bagley is a Brady case, not a Mooney case.

Finally, the article throws a bone to those victimized by prosecutor lying and cheating by eschewing the “materiality” test of Kyles v. Whitley (1995) as being too lenient with prosecutor lying and cheating.  But of course, in the first paragraph of Kyles:

After his first trial in 1984 ended in a hung jury, petitioner Curtis Lee Kyles was tried again, convicted of first-degree murder, and sentenced to death. On habeas review, we follow the established rule that the state’s obligation under Brady v. Maryland, 373 U. S. 83 (1963), to disclose evidence favorable to the defense…

Kyles is a Brady case.

To recap, there is no disputing that there is a materiality analysis and requirement before a Brady violation is held to result in a reversible due process error, because strictly speaking a Brady violation is not deliberate; but there is no such “materiality” analysis and requirement for a Mooney violation because a Mooney violation is always deliberate.  The article is arguing for a more “protective” materiality “test” that doesn’t apply to Mooney violations in the first place.

Parenthetically, it’s worth noting that what really underlies the Brady “extension” of Mooney was the realization, in 1963, that it’s virtually impossible – or at least extremely, extremely rare – for a wrongfully convicted person to actually prove that prosecutor misconduct was deliberate – not everyone gets lucky like Napue (or we) did – so they relaxed that scienter requirement in Brady.  Accordingly, it is perverse beyond words, really, that this effort by the SCOTUS to extend the reach of the “principle of Mooney” has effectively restricted it instead.  As we’ve noted before, though, one of our favorite SCOTUS justices – Whizzer White – presciently anticipated such problems when he concurred in the Brady case itself:

In my view, therefore, the Court should not reach the due process question which it decides…The result, of course, is that the due process discussion by the Court is wholly advisory…In any event the Court’s due process advice goes substantially beyond the holding below. I would employ more confining language and would not cast in constitutional form a broad rule of criminal discovery.

So, among other problems with it, Brady becomes a cautionary tale about appellate courts roaming beyond the confines of questions the case before them actually presents, into “advisory opinion” territory which, in the US at least, is a no-no.

——————————————————————————————————–

* The degree to which the criminal defense bar has itself succumbed to this same confusion, to some extent evidenced by SHG’s post, is a very large subject for another time.

**  Milller v. Pate is almost amusing. In convicting the defendant of murder at this trial, the prosecutor paraded before the jury en exhibit characterized as “blood-stained shorts”. The blood stains were actually red paint.