It has two primary sources: the late Justice Rehnquist and the United States Court of Appeals for the 7th circuit.
We described Justice Rehnquist’s contribution previously, here:
He becomes a member of the Supreme Court in 1972. By 1977, he opines in Wainwright v. Sykes that he wants to preserve the concept of a criminal trial as being “a decisive and portentous event”, though of course only someone who has never defended in one could think that needed to be said. Later, in a very unusual move – opining as a “circuit justice” in the course of denying a petition for a writ of certiorari (almost unheard of) in U.S. v. Bracy that Mooney – you know, the case that Brady was “extending” – stood for the proposition that “…the deliberate use of perjury or fabricated evidence at a criminal trial…” violated the defendant’s right to due process.
Oops. Wrong. I mean, Justice Rehnquist might have wanted Mooney to say that. But the fact of the matter is, Mooney did not say that.
Mooney said that the deliberate use of perjury or fabricated evidence “…to obtain a conviction…” violated a defendant’s right to due process. Convictions are “obtained” by guilty verdicts after trials, of course. But they are also obtained by guilty pleas. Can prosecutors and police charge you with a crime based on perjury and fabricated evidence and then threaten to use that same ‘evidence’ to convict you at trial, badgering you into a guilty plea, without violating your right to due process of law? Justice Rehnquist’s opinion implies that would be no problem. But he would be wrong in that respect also. And there are other complications from this sort of willful error borne of Justice Rehnquist wanting something to be true that just isn’t so.
Justice Rehnquist’s Bracy opinion was 1978. By 1994 he managed to include the same idea in the plurality opinion of Albright v. Oliver.* In a footnote:
Similarly, other cases relied on by the dissent, including Mooney v. Holohan, 294 U. S. 103 (1935), Napue v. Illinois, 360 U. S. 264 (1959), Brady v. Maryland, 373 U. S. 83 (1963), Giglio v. United States, 405 U. S. 150 (1972), and United States v. Agurs, 427 U. S. 97 (1976), were accurately described in the latter opinion as “dealing with the defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution.” Id., at 107.
Prior to Justice Rehnquist’s Albright opinion, however, the 7th circuit had already taken this misshapen due process ball and had run pretty far with it. A few months ago we mentioned their 1990 opinion in Buckley v. Fitzsimmons, authored by Judge Easterbrook. We said we might return to the subject at a later date, and now make good on our threat.
Buckley v. Fitzsimmons went up the SCOTUS in 1993, resulting in a more or less landmark opinion regarding prosecutor “absolute immunity”, police officer “qualified immunity” and the nature of constitutional violations by police and/or prosecutors in the course of carrying out criminal prosecutions. The net result for the case, however, was a “remand” to the 7th circuit so they could take another crack at it. But things only got more confused from there.
In the first place, on remand Judge Easterbrook offered a rather stunning musing that could only be the product of that form of lunacy peculiar to those who have read about things but never done them, a category too many federal appeals court judges fall into:
Coercing witnesses to speak, rather than loosening their tongues by promises of reward, is a genuine constitutional wrong, but the persons aggrieved would be Cruz and Hernandez rather than Buckley…Let us suppose the prosecutors put Cruz on the rack, tortured him until he named Buckley as his confederate, and then put the transcript in a drawer, or framed it and hung it on the wall but took no other step, or began a prosecution but did not introduce the statement. Could Buckley collect damages under the Constitution? Surely not; Cruz himself would be the only victim.
What sort of prosecution is it when officials torture witnesses to get them to implicate the Defendant? There is an obvious answer: it is a thoroughly and malevolently corrupted process that can never be the process that is “due”. It does not matter that the officials never “use” such evidence, even in Judge Easterbrook’s preposterous scenario where the evidence thus obtained is stuffed in a drawer or “hung on a wall”, and we are not the only ones who have noticed the nonchalant impertinence of the example: a former Solicitor General exposed this as the absurdly hypothetical and risible proposition it is in his brief before the Supreme Court in 2009:
Fabricated evidence has little to recommend it as a wall hanging but is quite useful in framing innocent individuals, and that is precisely how it was used here.
(See pp. 22 et seq.)
You know, of course. Evidence isn’t fabricated in the unattached abstractions of Judge Easterbrook’s mind but rather to falsely implicate specific individuals, and the best – and really only sane – way to look at it is that it deprives those individuals of due process of law a priori; that is, regardless of whether the fabricated evidence is “used” and before the question of whether there was a deprivation of life, liberty or property even arises. The relevant question being: what sort of prosecution would ever, remotely require the fabrication of evidence by government officials? One brought in bad faith by those officials, by their own admission through their very act of fabricating evidence. Obviously.
This part of the due process muddle could arise only among a judiciary in which empiricism and positivism (among other intellectual disorders) have collectively run amok while even the vestiges of natural law have disappeared. And so it is perhaps fitting that the only Supreme Court Justice who is on record as harboring some adherence to principles of natural law noticed the 7th circuit’s problems in this area as long ago as 2001.
In the second place, there is a somewhat remarkable conflation of immunity issues and constitutional issues at work. Remarkable because the judicial tendency towards this conflation was noted by the SCOTUS itself in its second consideration of the Buckley case on appeal from the 7th circuit, the majority accusing the dissent of precisely this intellectual error:
In general, the dissent’s distress over the denial of absolute immunity for prosecutors who fabricate evidence regarding unsolved crimes, post, at 283-285, like the holding of the Court of Appeals, seems to conflate the question whether a § 1983 plaintiff has stated a cause of action with the question whether the defendant is entitled to absolute immunity for his actions.
Yet in the wake of Buckley this “conflation” problem went viral among the federal courts of appeal and in the United States Department of Justice and with all that, and in conjunction with Justice Rehnquist’s contribution of footnote 6 in the Albright case, the completely novel and otherwise contrary-to-precedent idea that due process applied only to a criminal trial and not other aspects of a government criminal prosecution gained a foothold in the nation’s courts.
Why do we say “completely novel” and “contrary to precedent”? Consider Frank v. Mangum (1915):
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 not merely a single step in those proceedings…
Chambers v. Florida(1940) found that the due process rights of criminal defendants who had pleaded guilty (i.e., no trial at all) were violated:
From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the “law of the land” evolved the fundamental idea that no man’s life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.
See? A charge must not only be “fairly tried”; it must be fairly made if the requirements of due process of law are being observed.
In 1942 Waley v. Johnston specifically held that a guilty plea prompted by the threat to use perjury and/or fabricated evidence violated the Defendant’s right to due process of law, citing the Mooney case that Justice Rehnquist’s footnote 6 in Albright tried to confine to “…the [due process] right to a fair trial…”
In 1945 Justice Frankfurter put it this way in Malinski v. New York:
The exact question is whether the criminal proceedings which resulted in his conviction deprived him of the due process of law by which he was constitutionally entitled to have his guilt determined. Judicial review of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.
This passage in Malinski was quoted, and reaffirmed, in 1952 in Rochin v. California at page 169.
So here’s what happened: dividing up the criminal prosecution process into segments (“investigative phase”, etc.) in the 1980’s and 90’s so as to determine when a prosecutor might be liable and not immune for a constitutional violation (Buckley) bled over into the discussion of due process that was also often at issue in such cases; and this began to erode, in the minds of many judges, the previously (since the 1930’s) well settled, traditional and obvious application of “due process” to – well – the whole process.
The 7th circuit’s Buckley case is a major culprit in all this. So is the Supreme Court’s Albright case, which also originated in the 7th circuit and is being reconsidered soon, in Manuel v. City of Joliet, which is also – misereri nostri Deus omnium – a 7th circuit case. Unfortunately, as you can see if you follow the link, the Manuel case is reconsidering Albright only on 4th amendment grounds. And if that continues through to the bitter end, the enormous and erroneous due process implications of the plurality Albright case won’t be reconsidered at all and may even wind up being inadvertently ratified by a majority.
At the very least, unless the SCOTUS addresses these due process problems when it reconsiders Albright in the Manuel case the confusion about them will continue and possibly even intensify.
This is in lawyer terms, a dire situation.
One important aspect of all this to mention parenthetically – because important.
There is a notable Supreme Court opinion from 1992 – United States v. Williams – that basically refused to impose Brady disclosure requirements on prosecutors in presenting their cases to a Grand Jury. We don’t like the Williams case at all, but it is interesting on numerous levels, not least of which is a majority opinion by Scalia and a powerful dissent by Stevens in which Thomas actually joined winding up on the opposite side of Scalia which was, you know, much unusual.
But the most important thing to remember about Williams is that although Brady is a due process case, it is a subset of due process and an historically anomalous one at that, because whereas traditional due process concerns centered around deliberate government perfidy,** Brady was an extension of due process analysis into what one sagacious appeals court judge has termed a “no-fault” disclosure requirement placed upon prosecutors.
Put another way, bad as Williams is it cannot be read to make grand jury proceedings exempt from due process concerns (As the DOJ has unfortunately stated. As we have noted before); it only exempts them from the narrower subset of Brady concerns. That is, Williams applies as long as the prosecutor isn’t deliberately misleading the grand jury.
It would be nice to be able to say that it was clear that prosecutors deliberately misleading grand juries to get indictments was another matter entirely but the SCOTUS, having itself muddied these waters rather badly in Williams, should clean up the mess. Their trip next term, via the Manuel case, to revisit Albright would be a good opportunity to do just that since Albright, Buckley and Williams are more or less of a piece, but somebody has to get down there and argue the Albright due process problems and no one is doing that at this point. 20-30 years of due process confusion (“an embarrassing diversity of judicial opinion”) in the nation’s federal courts of appeals, on very fundamental questions dealing with “due process of law” is at stake and it might be another 20-30 years (miserere nobis) before another opportunity to clarify these things presents itself.
And, for a change, could we have a SCOTUS case from outside the 7th circuit?
Ugh, in other words.
*Justice Rehnquist did not get a majority of the SCOTUS to sign off on this proposition. He was shy one vote. Deo Gratias.
** We quote. And it’s a quote from Justice Rehnquist, no less: