Eighth Circuit Holds that Fabricating Evidence is Not Conscience Shocking

What is the difference between fabricating evidence and merely misinterpreting evidence?  Abstractly, that's a tough question.  If I say fingerprints match when they don't: Am I lying or just incompetent?  Remember, too, that my testimony is evidence.  To lie about my observations is to fabricate a story - which is the fabrication of evidence.

With that question in mind, let's take look at Akins v. Vaughan, 08-3753 (8th Cir. Dec. 18, 2009) (here).  In Akins v. Vaughan, a police deputy fired at a motorist.  The motorist claimed that the police officer was behind him when shots were fired.  Police claimed that the deputy was in front of the motorist.  The deputy opened fired on the motorist to save his own life.

The motorist was criminally charged with attempting to run down a police officer.

Now, back to the first question.  Did the investigator fabricate or misinterpret evidence?

As the lead criminalinvestigator, Robert Vaughan gathered and examined the evidence, including the van, andinterviewed witnesses, including Akins’s mother and Deputy Crouch. Vaughan detailed his findings in his report. At a deposition prior to Akins’s criminal trial, Vaughan testified that a bullet hole he discovered towards the rear of the van was an exit hole from a bullet that had passed through the inside of the van.
OK.  The "scientific evidence" confirmed the officer's story.   Or not:
At his criminal trial, Akins highlighted various inconsistencies in the officers’ testimony and prosecution’s evidence. Younger testified that he fired all seven shots prior to or while being run over by the van. Akins confronted Vaughan with physical evidence that showed that the bullet hole towards the rear of the van was an entry hole and that the bullet had been shot from behind the van. Vaughan corrected his deposition testimony on the stand, and his trial testimony established that Younger was behind the van when he fired the shot, not in front of it.
 Slip op. at 4.  Notice the sleight of hand.  The investigator "corrected" his deposition testimony.  Because, hey, who can tell the difference between an entry and exist hole, right?  Certainly officer Robert Vaughn can't.

The Eighth Circuit put its stamp of approval on police perjury and falsification of evidence:
Akins highlights multiple errors and inconsistencies in Trammell’s and Vaughan’s investigation, but he has failed to show conscience-shocking reckless orintentional conduct.
Slip op. at 9.  "Errors" and "inconsistencies."  Really...What?

Seriously, let's take a step back.  A man was on trial.  A criminal trial.  He was going to go to prison.  The only issue in the case - the only issue that would decide freedom or prison - was whether the motorist was moving towards or away from the police.

Now, you are probably not a "forensic" scientist.  I am not.  I do know, though, that entry holes in the back of a vehicle indicate that the person fired the gun at - you guessed - the back of the vehicle.  Which would mean that the officer was behind the motorist.  Which would mean that the motorist never drove his car towards police.  Not guilty.  False prosecution.  Simple stuff.

It's not so simple, however, when you're more concerned with insulating police from liability than with following the law.  No doubt the Federalist Society (of which I was once a member) will hold a press conference decrying this judicial activism.  How can anyone who cares about the rule of law not become outraged and shocked when police fabricate evidence in an attempt to convict an innocent man?  Yet the Eight Circuit doesn't even care.

This wasn't merely negligence.  Negligence requires something other than intentional misconduct.  Does anyone here want to swear a blood oath that a criminal investigator can't tell the difference between entry holes and exit holes?

This was a complete distortion of the criminal process.  Such a distortion was not, however, conscience shocking.  Which makes one wonder: Can you shock something that is dead?