by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.
SCOTUS’s decision last week in Wearry v. Cain has provided us with plenty of thought-provoking material, ranging from the Louisiana judiciary’s failure to comply with Brady to the possibility that the opinion may influence the proceedings in Adnan Syed’s post-conviction case. The case may be most notable, however, for raising a critical and lingering question regarding prosecutors’ Brady behavior: Do Supreme Court justices understand how prosecutors actually decide whether to disclose exculpatory evidence to criminal defendants? Given that individuals’ constitutional due process rights are at stake, this question goes to the heart of how Supreme Court opinions actually play out in the real world.
Unfortunately, the few signals the justices emit suggest that they may not realize the import of their decisions when it comes to prosecutorial accountability. Under Brady, a court must grant the defendant a new trial where he has proven: (1) suppression—that the State actually failed to turn over the information at issue; (2) favorability—that the information would have helped the defendant; and (3) materiality (also known as prejudice)—that, had it been disclosed before the trial, there was a reasonable probability the information would have had some effect on the case’s outcome. The Supreme Court has held that a defendant must prevail on all three issues to establish a due process violation occurred. In its words, “showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more . . . .” In short, unless a defendant proves prejudice, the Court does not label the State’s conduct a constitutional violation.
Given that the Court’s Brady jurisprudence provides guidance about what is and what is not a constitutional violation, one might expect the justices to realize that prosecutors necessarily rely on that jurisprudence to inform their decision making processes. Indeed, the Court itself has observed in Connick v. Thompson that “Prosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain.” Yet, if that’s the case, then it is odd that several sitting justices have expressed surprise about what prosecutors tell them they do in deciding whether to disclose evidence to the defendant before trial.