Of Backstops And Due Process

So there’s this guy from the Heritage Foundation and he went to Stanford Law and he clerked for Robert Bork and he worked in the Justice Department and so, you know, he has a great resume and he writes well and all that.

His name is Paul J. Larkin, Jr., and it’s too bad that all of his intellectual firepower has metastasized because it’s only ever lived in Washington, D.C. in the service of punditry and wonkery and in thrall to power.

Anyway, he’s got a brand new article out (here)(more footnotes than text, must be really deep) and he’s perpetuating, or trying to perpetuate, the mythology that the Mooney line of cases and their “due process” holdings are applicable only to the deliberate use of perjury at trial:

An example of the second category—actions that effectively deny a defendant a trial as we know it— …. would be the Court’s decisions barring the state from using perjured testimony to prove the defendant’s guilt (fn113) and the Court’s decisions holding that certain constitutional errors cannot be harmless under any circumstances…

Here’s foonote 113:

See, e.g., Napue v. Illinois, 360 U.S. 264 (1959) (ruling that due process forbids a prosecutor from knowingly allowing a witness’s perjury to go uncorrected at trial); Pyle v. Kansas, 317 U.S. 213 (1942) (ruling that due process forbids a prosecutor from intentionally using perjured testimony to convict a defendant); Mooney v. Holohan, 294 U.S. 103 (1935) (ruling that due process forbids a prosecutor from proving a defendant’s guilt entirely through perjured testimony); cf. Giglio v. United States, 405 U.S. 150 (1972) (ruling that due process forbids the prosecution from not disclosing to the defense evidence that impeaches the credibility of a prosecution witness); Brady v. Maryland, 373 U.S. 83 (1963) (ruling that due process forbids the prosecution from not disclosing to the defense exculpatory evidence on the issues of guilt or innocence).

Note that Napue and Pyle and Mooney are lumped together with Brady and Giglio.  Ugh.

We’ve been over this, but it bears repeating because this plainly erroneous thinking, shared by far too many in the profession, has not yet attained the status of law.  But it’s come close, and may yet come closer.  From later in the same article:

In any event, the Court has begun to walk away from its due-process-as-backstop line of precedents. The Court first put the brakes on this approach is Graham v. Connor, 490 U.S. 386 (1989), a case involving a claim of police brutality during an arrest. Reasoning that the Fourth Amendment Reasonableness Clause directly applies to arrests as “seizures,” the Court declined to provide an additional layer of review under the Due Process Clause. Id. at 395 (“[We] hold that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”) (emphasis in original). Since then, the Court has consistently ruled that the Due Process Clause does not serve as an all-purpose backstop that can be invoked when another constitutional provisions that specifically addresses the government’s conduct does not reach as far as a private party would like. See, e.g., County of Sacramento, v. Lewis, 523 U.S. 833, 843 (1998) (noting that due process analysis is inappropriate if a party’s claim is “covered by” a more specific constitutional provision); United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (same); Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (“Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims’”); e.g., id. at 273-74 (declining to interpret the Due Process Clause to impose a requirement on the states similar to what the Fifth Amendment Indictment Clause would demand). Whenever a specific constitutional provision addresses a certain type of police or judicial conduct, that provision should serve as the prism through which the courts view a constitutional challenge.

Unfortunately, we know all of those cases too well, especially Albright.  Ugh again.  This is such an inside the beltway thing.

Where is the highly credentialed and thoroughly Washingtonian Mr. Larkin going with all these footnotes?  He’s trying to scale back the reach of the due process clause, and fold it into the 6th amendment or some such:

Were the Court to decide that the Privileges or Immunities Clause incorporates the Bill of Rights, this entire line of cases would find a home in the Sixth Amendment. The Due Process Clause would still be relevant, but only as a guarantee that every person must receive the benefit of whatever law and procedure a state may adopt. That guarantee, of course, would be far more limited than the role that due process currently plays as a guarantee of fundamental fairness.

Mr. Larkin needs to read Frank v. Mangum, Waley v. Johnston and Chambers v. Florida.  Fundamental fairness is required of the government at all times, not just during criminal trials, and it’s required of both the state and federal governments, and always has been.  The due process clause did not create or impose that requirement; it was there already, and the idea of due process merely recognizes what already is.

In other words, it isn’t the due process clause that functions as a “backstop”.  It’s something else.  But as a profession we are very far astray and it’s a long way back.  In the meantime, it’s critically important that this one thin line be held.

Our job, I’m afraid.

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Tolerance For Ambiguity

Again, SHG is not technically wrong in this comment:

You sound as if you’ve been overloaded to the point of head explosion. Tough nuggies. This is reality, and it’s messy. Tolerance for ambiguity is one of the foremost qualities needed to practice criminal law. Not everyone has it.

It would be almost axiomatic:  by nature, the criminal defense position would have to be more sensitive to nuances and ambiguities.  The prosecution narrative is always blunt:  the defendant is a no-good criminal scumbag.  The defense doesn’t assume the burden of the reverse narrative – that the defendant is a great civic hero.

But once again there’s more than a little irony going on.  A tolerance for ambiguity should not become perverted into commitment to ambiguity, a slavish devotion to ambiguity as an overarching principle of action and a framework for understanding anything, no matter what the evidence is.  Dare we say it, that winds up being – well – an unambiguous fealty to the principle of ambiguity.  It’s oxymoronic.

SHG has been explaining himself well the last few days.  We’re grateful, albeit somewhat frustrated and maybe a bit saddened: he stubbornly clings to a failed and rapidly receding professional self concept that has ill-served him, his clients, the profession and the justice system itself.  He’s unreflective about that, and about the possibility that his dominance of a tiny corner of the internet, a part of the “blawgosphere” – has stagnated, aged and withered just as he and his self-concept have.  One’s a metaphor for the other, maybe.

He has exhausted his shtick, methinks.  The gritty, gutsy trench lawyer, the lazy and self-entitled youth that aren’t sufficiently in the SHG mold, and maybe a dozen or so other tired themes have run their course.  It isn’t a weariness that has come out of nowhere, of its own accord.  SHG brings it with him, in more ways than one.

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“Generally Subsumed”?

We suppose Scott Greenfield (SHG) might be technically right here in response to this comment over at SJ:

Isn’t this more of a Mooney v. Holohan (1935) violation rather than a Brady violation? Instead of “Oops, we forgot”, the prosecution purposefully didn’t turn the info over to the defense. Or am I splitting hairs?

…. to which SHG replies:

Mooney, which involves both the presentation of perjured testimony as well as the deliberate concealment of evidence that would have proven the testimony false, is generally subsumed in the broader rule of Brady, which applies regardless of good or bad faith by the prosecution.

…in the sense that courts have in fact developed a pattern of generally subsuming Mooney into Brady.  Most federal courts of appeal, that is.

As we have noted repeatedly (and recently), the problem with this “subsuming” business is that it winds up applying Brady’s limitations and qualifications – of which there are many – to Mooney situations, which have not been subject to limitations or qualifications at all:  federal courts of appeal have no power to limit Mooney and its progeny.  Only the SCOTUS can do that.  And they’ve never done it, and never will.

It’s a curious – not to mention wrong-headed – view coming from a criminal defense attorney, but I’ll venture a guess about why SHG has it.  Mooney, as we have so often said, is about deliberate misconduct by a prosecutor.  There are many times you might suspect that the prosecutor was acting deliberately but have no proof.  There are other times you have some proof, but then the question becomes:  how much proof is enough?  In theory, you would answer that question the same way here as in any other context; in practice, the quantum of proof in this context would have to approach or attain absolute certainty, because prosecutors are heavily favored.

How often can something be proven to near absolute certainty?  Not often.

In the next two cases of the Mooney line – Pyle v. Kansas and Napue v. Illinois – we had the exceptional circumstance.  In Pyle the prosecutors argued that Pyle had committed the murder, convicted him, and when his appeals ran out they prosecuted another guy for the same murder.  They revealed themselves, in other words.  In Napue, the prosecutor swore up and down at trial that he hadn’t given the witness a deal, then went into private practice and brought a coram nobis petition to get the witness out of prison on the ground that as a prosecutor this was the deal he had promised.  Again, he revealed himself.  In Miller v. Pate, the prosecutor paraded a pair of “blood stained” shorts in front of the jury.  It was actually red paint.  Maybe the prosecutor didn’t exactly reveal himself in that case, but the absurdity of it all was just too, too much.

In Pyle, Napue and Miller, that is (as in our case) you had absolute certainty that the prosecutor misconduct was deliberate.  It’s almost as if this is an implicit requirement of a Mooney violation:  the proof that the conduct was deliberate has to be well nigh conclusive.

That this is generally impossible is one of the reasons that Brady came along a few years after Napue and relaxed the implicit nearly impossible standard of proof.  Brady issues, then, are the subject of hearings and testimony and argument – the domain of the criminal defense trial lawyer.  So for a CDL, professionally speaking, Brady issues are meaty and significant, a great opportunity for the CDL to do his thing.

By contrast Mooney issues – in addition to being far more rare – are uninteresting, relatively speaking.  The proof of deliberateness has to be unarguable.  If you have it, there’s nothing to have a fight over.   Hearings, testimony, argument all become surplusage, at best.  Mooney issues are not an area where a CDL has any importance, at least not in the way that they are used to having importance.

So being indifferent to the corruption of Mooney being “subsumed” into Brady is a function of SHG’s sense of self importance, which often trumps everything else.  A lot of lawyers have this problem.

And their problem has become our problem, in a big way.

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Judge Selya Gets It.

He’s on the Court of Appeals for the 1st Circuit.

Drumgold v. Callahan puts it this way:

We have been careful to distinguish between the proscription originating in Mooney and Pyle against the deliberate suppression of evidence and the more recent affirmative disclosure obligation announced in Brady.

Yes, they have been careful.  And Selya nailed it in the case cited next, Haley v. City of Boston:

1. No-Fault Nondisclosure. In the first of his two section 1983 forays against the detectives, Haley alleges that they abridged his due process rights by failing to comply with the disclosure obligation imposed by the Fifth and Fourteenth Amendments and explicated by the Supreme Court in Brady v. Maryland…..

Judge Selya even understands that the “materiality” issue belongs to Brady, not Mooney:

The Brady Court wielded a scalpel, not a meat-axe. The Justices made it transparently clear that the newly announced no-fault disclosure obligation does not cover all evidence but, rather, only “evidence [that] is material either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.Ct. 1194; see United States v. Trainor, 423 F.2d 263, 264 (1st Cir.1970).

And to drive the point home, he discusses the Mooney due process requirements (deliberate suppression) separately from Brady (“no-fault” suppression), using a “2” to differentiate it:

2. Deliberate Suppression. Haley’s second section 1983 claim against the detectives is more promising. This claim draws sustenance from a line of cases flowing from the Supreme Court’s seminal decision in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), which held that state actors violate an accused’s due process rights when they engage in “deliberate deception.” Id. at 112, 55 S.Ct. 340. Haley avers that the detectives violated a proscription, developed in Mooney‘s pre-1972 progeny, against intentionally concealing evidence and permitting false testimony to be given at a defendant’s trial.[3]

Someday, we hope Judge Selya will read Pyle v. Kansas again.  But we’ve loved him over here ever since we read Limone v. Condon:

The amended complaints paint a sordid picture. Although the misdeeds described therein are many and varied, the plaintiffs’ claims may be distilled into two basic allegations: first, that the appellants purposefully suborned false testimony from a key witness; and second, that the appellants suppressed exculpatory evidence in an effort both to cover up their own malefactions and to shield the actual murderers (one of whom was being groomed as an FBI informant). The complaints weave these allegations together. From that platform, the plaintiffs asseverate that an individual’s right not to be convicted by these tawdry means — his right not to be framed by the government — is beyond doubt.

This is easy pickings…some truths are self-evident. This is one such: if any concept is 45*45fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit…Actions taken in contravention of this prohibition necessarily violate due process (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction)…That ends this phase of our archival journey into the annals of constitutional jurisprudence. We conclude, without serious question, that Mooney and its pre-1967 progeny provided reasonable law enforcement officers fair warning that framing innocent persons would violate the constitutional rights of the falsely accused.

We need Judge Selya’s clarity on this issue all over the country.  Judge Posner has “evolved” since he and Judge Easterbrook caused a lot of confusion out of the 7th Circuit in the 1990’s, but the 7th circuit is still a mess, and it’s messing up everyone else, and basically Selya owns this issue.

Along with us.

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Sometimes we go on a little too much, and it obscures a simple truth that could be, and should be, succinctly stated.

The problem with Judge Gary Feinerman’s opinion in Starks v. City of Waukegan is that it writes Mooney v. Holohan and all of its SCOTUS progeny out of the law, when they have never been overruled or even limited or qualified.  Ever.  They are now and have been since 1935 the law, which every court in this country is solemnly bound to follow.  And they were unquestionably correct in their holdings, from any rational or sane or rudimentary moral perspective.

And if any court, anywhere in this country ever explicitly disregarded them there would be hell to pay, as well there should be.  But what has happened, and what the Starks opinion embodies, is the overruling of the Mooney line of cases through a transparent sophistry that properly has no place in the legal profession or the judiciary at all.

Now, there’s more to be said about that last point, having to do with the separation of powers.  But we said we were going to be succinct, so that awaits another turn at bat.

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A Hot Mess. Ugh.

Here’s a recent (July 24th) District Court opinion out of the 7th circuit, illustrating once again how the law is in an appalling state of confusion about some of the most basic things.  Like the government lying and cheating to convict people who then spend decades of their lives in prison for crimes they didn’t commit.

Another 1983 action, where immunity issues get all mixed up with constitutional issues.  But first let’s note just how disingenuous the opinion is here.  The Plaintiff alleges fabrication of evidence:

Specifically, he alleges that Juarez [ a police officer – ed.] deliberately doctored the photo array that he showed the victim at the hospital, causing her to falsely identify him as the attacker.

But by the time the court gets around to discussing this just a paragraph or so later, the “deliberate” conduct had become a “flaw”:

The same holds for Juarez’s allegedly flawed photo array procedures, as explained by Petty…

And then what is obviously a Mooney claim undergoes judicial metamorphosis and becomes….a Brady claim (if you’ve been reading, even just recently and a little, you should know exactly what we’re talking about):

Given the circumstances, Juarez did not “suppress” evidence in violation of Brady.

Deliberately altering evidence is a Mooney violation, not a Brady violation.  It is a more serious due process violation than Brady and is not subject to any qualification other than this:  if it is used “to obtain a conviction” it is a due process violation – and has been an obvious due process violation since 1935.  The court’s discussion of photo arrays and Brady in this context is completely wrong.

The judge then makes that other error about Mooney that law enforcement/institutional litigant types also love dearly:  that deliberate use of fabricated evidence counts as a due process violation only if it is used at a criminal trial:

to violate due process, the falsified evidence must have “involved not merely the fabrication, but the introduction of the fabricated evidence at the criminal defendant’s trial.”

Here the court is not just wrong but dishonest.  The judge is quoting from Fields v. Wharrie .  We discussed that case quite a bit, right after it came out, so we know that that quote is cynically taken out of context. Here’s the actual quote, right after Fields had cited the Mooney line of cases:

It is true that the cases we’ve just cited involved not merely the fabrication, but the introduction of the fabricated evidence at the criminal defendant’s trial.

That quote is on p. 1114 of the Fields opinion.  The Fields court included that sentence because it had just opined on page 1112 that a constitutional due process harm occurs when fabricated evidence is used before a grand jury (before trial) to indict someone:

Nor is the only harm that resulting from the conviction and the sentence. In the present case, as in our recent decision in Julian v. Hanna, 732 F.3d 842, 847 (7th Cir.2013), the fabrication of evidence harmed the defendant before and not just during the trial, because it was used to help indict him.

The point is that really, this is just too much to overcome without – well – misrepresenting the Fields opinion:

Furthermore, that passage from Fields appears in a hypothetical in which a prosecutor, acting in an investigative capacity, fabricates evidence that a second prosecutor then uses to obtain a conviction. 740 F.3d at 1112. The hypothetical thus explicitly involved the introduction of fabricated evidence at trial; the question was whether the first prosecutor—the one who fabricated the evidence but then dropped out of the case—could be held liable for the fabrication. Fieldsanswered “yes.” Ibid. But nowhere did Fields question the requirement that the fabricated evidence must be introduced at trial; to the contrary, it reaffirmed that requirement. Id. at 1114 (requiring “the introduction of the fabricated evidence at the criminal defendant’s trial” as an element of the Whitlock fabrication tort).

This is just not true.  The “passage” does not appear in the hypothetical about prosecutor A and B.  It doesn’t even relate to that hypothetical.  Fields did not establish or purport to establish any “elements” of a so-called “Whitlock fabrication tort.”

Read the whole opinion.  The judge is just bending over backwards to throw out the criminal defendant Plaintiff’ case, a Plaintiff who spent years in prison for a crime for which he was only later – much later – exonerated.  Pretty sick.  But the judge has got the very, very bestest credentials, though.  Yale, Stanford, 2nd in his class, institutional employment of various kinds including the Justice Department, and he’s never represented an actual human being and probably never tried a case.

He could be on the SCOTUS someday, and his opinion in this case will gain him points with the Justice Department and law enforcement, who will probably forever remain potent forces in judicial selection.  That’s probably what this boils down to.

Bennie Starks, that wrongly convicted guy?  Who gives a shit about him?

Congratulations to Judge Gary Feinerman, though, on a good career move.  Even if it’s a terrible injustice and a dishonest opinion, because only hoi polloi care about that kind of thing.

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United States v. Agurs

It was, as we’ve repeatedly noted before, a Brady case and not a Mooney case.

But because Brady and Mooney are related, albeit distinct, Justice Stevens (who wrote the Agurs majority opinion) briefly discussed Mooney:

The rule of Brady v Maryland, 373 U. S. 83, arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.

In the first situation, typified by Mooney v. Holohan, 294 U. S. 103, the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.[7] In a series of subsequent cases, the Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair,[8] and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.[9] It is this line of cases on which the Court of Appeals placed primary reliance. In those cases the Court has applied a strict standard of materiality, not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process. Since this case involves no misconduct, and since there is no reason to question the veracity of any of the prosecution witnesses, the test of materiality followed in the Mooney line of cases is not necessarily applicable to this case.

Let’s put it another way:  the Agurs case says absolutely nothing of any importance about Mooney.  It certainly does not establish that Mooney has a “materiality” requirement because in the highlighted passage it explicitly tells us that everything it is saying about Mooney is dicta.

Mooney was a landmark due process case.  It is not to be limited or qualified by dicta in subsequent cases that are really about something else.  Which Agurs was.  Namely Brady, not Mooney.

Nevertheless, it is one of the ironies of this whole sordid tale that Justice Stevens’ opinion in Agurs  wound up being a significant contributor to the serious confusion around the country on this Brady-Mooney business that we, and we alone it sometimes seems, have had to contend with.  The reason for the irony is that Justice Stevens later wrote very powerful – and in our opinion unarguably correct – dissents in two other cases where Justices who fundamentally disagreed with him capitalized on this Agurs mistake:  United States v. Williams and Albright v. Oliver.


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