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?
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!