In a tidy illustration of how the whole 3 judge panel thing in federal courts of appeal works – or doesn’t, as the case may be – we give you the recent case of Stinson v. Gauger, with Judge Sykes writing for the majority:
Robert Lee Stinson spent 23 years in prison for a murder he did not commit. He was exonerated by DNA evidence and now sues the lead detective and two forensic odontologists who investigated the murder and later testified at trial.
A pretty dramatic opening line. But Judge Sykes doesn’t actually believe Mr. Stinson is what you’d call an innocent man:
About two days after the murder, Milwaukee homicide detective James Gauger and his partner, Tom Jackelen, assumed responsibility for the investigation. They started by reviewing the work other officers had done to that point and meeting with Dr. Johnson, who described the killer’s teeth and showed them a preliminary sketch. No police reports memorialize this meeting and the parties dispute what was said, but according to Stinson’s version of events, Dr. Johnson informed the detectives of his working hypothesis: the killer had one twisted tooth and was missing the upper right lateral incisor (the tooth just to the right of the two front teeth).
Armed with this information, the two detectives began interviewing people who lived near the scene of the crime. Stinson’s house was immediately to the north of the yard where the body was found. Gauger already knew Stinson. Two years earlier, Gauger had tried and failed to prove that Stinson was responsible for the murder of a man named Ricky Johnson. The Johnson homicide was never solved, even though a witness identified Stinson and two others as having been involved. To this day, Gauger believes that Stinson was responsible for Ricky Johnson’s murder.
See, he didn’t do the murder for which he was convicted, but he did another murder. Maybe more than one. This is what law enforcement believes, what they usually believe in such circumstances (“If he’s not guilty of this then he’s guilty of something else just as bad!”) and accordingly this is what Judge Sykes believes. It seems her primary qualification to be appointed by President GW Bush to the federal appeals court bench was that she had been married to a popular right-wing radio personality named Charlie Sykes.
They are now divorced, but never mind.
We’ve reached a stage in our social development where we call ourselves neither liberal nor conservative but rather more libertarian, but Judge Sykes is too invested in a “conservative” world view to undergo much further social development, or indeed any development at all. We might agree with her on some things, but even a cursory review of her work as a federal judge shows that her decisions are based entirely on political outlook: law enforcement wins; Christian religious causes win; corporate business interests win, unless they’re up against law enforcement or Christian religious causes.
The problem with this Stinson opinion, though, is that it’s continuing to make a hash of the Mooney-Brady progress that was recently made in such cases as Whitlock v. Brueggemann:
The core of Stinson’s case is his contention that Drs. Johnson and Rawson falsified their expert opinions and that Gauger solicited or conspired with them to do so. Recent cases in this circuit hold that a prosecutor who fabricates evidence against a suspect and later uses that evidence to convict him violates due process, and this due-process right was clearly established by at least the early 1980s. See Fields v. Wharrie (“Fields II“), 740 F.3d 1107, 1114 (7th Cir. 2014); Whitlock, 682 F.3d at 585-86. The constitutional violation occurs when the evidence is fabricated, not when the fabricated evidence is later introduced at trial—a crucial distinction because the prosecutor would have absolute immunity for any constitutional violation committed during the trial. See, e.g., Fields v. Wharrie (“Fields I“), 672 F.3d 505, 517-18 (7th Cir. 2012); Buckley v. Fitzsimmons (“Buckley IV“), 20 F.3d 789, 794-95 (7th Cir. 1994).
It’s not entirely clear that the same reasoning applies to police officers and expert witnesses who are alleged to have fabricated evidence during an investigation. Unlike prosecutors, police investigators face liability for failing to disclose their own fabrication of evidence. See, e.g., Manning, 355 F.3d at 1034. That’s because immunity doesn’t protect an officer who fails to disclose material exculpatory evidence as required by Brady, see id. at 1033, even though a prosecutor who did the same thing would have absolute immunity for the suppression, see Fields I, 672 F.3d at 514.
Note the citation to “Fields II”. Sykes, we hardly need mention for those who have been following us here closely, wrote a very strongly worded – and highly misguided – dissenting opinion in that case. She now gets to “interpret” what the case she strongly disagreed with means in another case.
Is this a problem? We think so. Judge Sykes writing in Stinson:
Whitlock thus distinguished this court’s earlier decision in Buckley IV, which rejected a due-process claim based on allegations that investigators coerced and solicited false testimony. Buckley involved a prosecutor who had been told by three different experts that a bootprint left at the scene of the crime could not reliably implicate Buckley, but sought a fourth opinion from an expert who had a reputation for producing scientifically unreliable opinion testimony. 20 F.3d at 796. She told the prosecutor and investigators “that no one but Buckley could have left the bootprint on the door—and that she could identify the wearer of a shoe with certainty even if she had only prints made with different shoes.” Id. We explained in Buckley IV that “[n]either shopping for a favorable witness nor hiring a practitioner of junk science is actionable” as a constitutional violation; a due-process violation occurs, if at all, only when the testimony is offered at trial without compliance with Brady. Id. at 796-97.
Whitlock did not disagree with Buckley IV on this point. Instead the panel distinguished shopping for unreliable experts (among other wrongful conduct at issue in Buckley IV) from the evidence falsification at issue in Whitlock, which involved feeding witnesses details of crimes that they couldn’t have known. See Whitlock, 682 F.3d at 572, 584. Why the distinction? Because “[e]vidence collected with the kind of suspect techniques [at issue in Buckley IV], unlike falsified evidence and perjured testimony, may turn out to be true.” Id. at 584. Sorting out reliable and unreliable evidence is an ordinary matter for trial, through the crucible of the adversary process, so the use of these suspect techniques doesn’t violate due process unless the evidence is introduced at trial without adequate safeguards, such as disclosure of all material exculpatory evidence as required by Brady. Subsequent cases have confirmed that the due-process cause of action recognized in Whitlock is factually limited to cases involving evidence fabrication. See Petty, 754 F.3d at 422-23; see also Fields II, 740 F.3d at 1112.
But this is what she said in her Fields II dissent, and we’re sorry for the lengthy quote but this is important:
Three months after we issued our opinion in Fields I, a new decision of this court,Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir.2012), unsettled Buckley (and by extension, unsettled Fields I as well), which led the district court to do an about-face on remand in this case. Wharrie’s new appeal requires us to decide whetherWhitlock and Buckley can be reconciled. I think the answer is plainly “no.”
As my colleagues have noted, Whitlock drew a distinction, for qualified-immunity purposes, between a prosecutor who coercively interrogates witnesses and a prosecutor who fabricates evidence. See Majority op. at 1112-13. Whitlock observed that coercion and unsavory tactics like paying for testimony and witness shopping “may be deplorable, and … may contribute to wrongful convictions, but they do not necessarily add up to a constitutional violation even when their fruits are introduced at trial … [because] [e]vidence collected with these kinds of suspect techniques, unlike falsified evidence and perjured testimony, may turn out to be true.” 682 F.3d at 584. This proposed distinction between “coerced” and “fabricated” evidence was the linchpin for distinguishing Buckley and permitting the claim against the prosecutor inWhitlock to proceed. The Whitlock panel thought the prosecutors in Buckley had been accused of coercing witnesses and using other suspect tactics but were notalleged to have fabricated evidence, and on that basis distinguished the case. Id. at 584-85.
Regrettably, that was a mistake. In fact, both Buckley and Whitlock involved allegations that prosecutors had coerced, cajoled, paid for, or otherwise solicitedfalsified statements from witnesses — in other words, they fabricated evidence. Indeed, Buckley repeatedly refers to allegations that prosecutors coercively obtained “false inculpatory statements” from witnesses and “fabricated” or “manufactured” testimony and evidence from an expert. 20 F.3d at 794-95. So regardless of whether Whitlock‘s proposed distinction between “coerced” and “fabricated” witness statements is valid in theory — and makes a difference in the constitutional analysis — it simply was not present as a factual matter and therefore cannot provide a basis on which to distinguish Buckley from Whitlock.
Yet my colleagues perpetuate the distinction here. See Majority Op. at 1109-10, 1112-13. I appreciate the force of stare decisis; we should try to harmonize the two cases if we can. With respect, however, harmonization is impossible. Whitlock andBuckley are factually indistinguishable and legally irreconcilable. They cannot both be the law. We must decide which one is correct.
For my part, I think Buckley is correct and Whitlock should be reconsidered. Because mine is the minority view here, any reconsideration of Whitlock must await a petition for rehearing en banc, which Wharrie may choose to pursue or forego. For the record, I’ll briefly sketch the conceptual difficulty Whitlock has introduced, which I believe warrants the full court’s attention.
In other words, Judge Sykes thinks the whole issue warrants en banc review by the whole court. We think she’s probably right about that in the abstract, but we nevertheless hope that doesn’t happen in the 7th circuit, because Judge Sykes has it exactly backwards: Whitlock isn’t the problem opinion; Buckley IV is.
Want proof? Keep reading Judge Sykes’ dissenting opinion (again, a long quote). It’s impenetrable and incoherent:
I have already described Buckley’s qualified-immunity holding, which was and remains sound. Whitlock rejected qualified immunity for a similarly situated prosecutor by using common-law causation principles to find an actionable constitutional violation where one did not otherwise exist. I do not agree with this development in our circuit’s law.
As I’ve explained, Buckley contains two important principles of immunity law that apply in suits alleging prosecutorial misconduct: (1) a prosecutor’s use of fabricated evidence at trial may be actionable as a violation of the defendant’s right to due process — under the rubric of Brady or perhaps more generally as a violation of the right to a fair trial — but the prosecutor is absolutely immune from suit under Imblerand related cases, see 20 F.3d at 794-95; and (2) a prosecutor’s fabrication of evidence against a suspect during an investigation is covered by qualified immunity because it doesn’t violate clearly established constitutional rights, see id. at 794-98.Whitlock’s innovation is to use common-law causation analysis to eliminate the effect of both forms of immunity. The panel held that “[t]he actions of an official who fabricates evidence that later is used to deprive someone of liberty can be both a but-for and proximate cause of the due process violation.” Whitlock, 682 F.3d at 583.
As applied to a prosecutor, this reasoning circumvents both qualified and absolute immunity. Both immunities are well established and important. See Van de Kamp,555 U.S. at 341-43, 129 S.Ct. 855 (absolute immunity); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (qualified immunity); Imbler, 424 U.S. at 424-26, 96 S.Ct. 984 (absolute immunity). Absolute immunity can sometimes produce harsh results, but it has long been thought necessary to encourage and protect the vigorous performance of the prosecutorial function. See Van de Kamp,555 U.S. at 341-43, 129 1121*1121 S.Ct. 855; Imbler, 424 U.S. at 424-26, 96 S.Ct. 984.
In a shorthand version, the rule announced in Whitlock is basically this: A prosecutor who falsifies evidence during an investigation violates no clearly established constitutional rights and thus has qualified immunity from suit (see Buckley), but his conduct is nonetheless actionable as a non-immune subsidiary “cause” (both but-for and proximate) of a due-process violation that occurs later, when the prosecutor introduces the falsified evidence at trial — even though the prosecutor is absolutely immune from suit for the due-process violation. In other words, the only conduct that can possibly form the basis of a constitutional claim — the prosecutor’s trial conduct — is fully protected by absolute immunity, but the prosecutor can be sued anyway, based on the causal link between his nonactionable investigative conduct and hisimmunized trial conduct.
Aside from destabilizing immunity law, this chain of reasoning overlooks some basic differences between common-law and constitutional torts. Common-law causation rules flow from the nature of duty and breach in tort law. Everyone has a general tort duty to refrain from doing an act or omitting a precaution that creates a foreseeable, unreasonable risk of harm to other persons or property. See generallyRESTATEMENT (SECOND) OF TORTS § 282 (1965) (defining negligence). The duty is broad and undifferentiated and is owed to everyone at all times, and anyone who breaches it is liable for harms factually and proximately caused.
Constitutional rights — and the corresponding duties imposed on governmental actors — are not like the generalized rights and duties imposed by negligence law. They are implicated at specific times and in specific circumstances. As relevant here, Fields’s due-process rights came into play after he was charged; the Brady disclosure duty is an aspect of the right to a fair trial, as is the broader right not to have the trial process subverted by the knowing introduction of falsified evidence.See Serino, 735 F.3d at 592; Newsome, 256 F.3d at 751-52; Buckley, 20 F.3d at 796-97. So Wharrie’s act of extracting a false statement from Sumner during the investigative phase of the case did not violate Fields’s due-process rights. A prosecutor who commits this kind of misconduct has behaved deplorably but has breached no constitutional duty and thus committed no constitutional wrong.
It is impenetrable and incoherent, that is, unless one adopts the erroneous notion that Mooney has been “generally subsumed” into Brady and that prosecutor lying and cheating doesn’t matter unless it occurs at a trial, because Brady doesn’t get violated until there’s a trial.
But beyond the stunning intellectual errors, it’s embarrassing that a federal judge engages in such strained reasoning and mental gymnastics in the service of the odious desire to excuse government lying and cheating and depriving the victims of it of redress. We don’t know how anyone prefers that result outside of pathological reasons.
Not to mention is is profoundly contrary to the legal traditions of this country. In 1915 – 100 years ago exactly – Judge Sykes’ and her ilk’s artificial segmentation of due process’ application to this or that “stage” of a criminal prosecution would have been seen for the disingenuous nonsense that it is. From Frank v. Mangum:
In the light, then, of these established rules and principles: that the due process of law guaranteed by the Fourteenth Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a State on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the State, and 332*332 not merely a single step in those proceedings;…
We really have degenerated morally in the last 100 years. Ugh.