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
On March 29, 2017, the Supreme Court will hear oral arguments in the consolidated cases of Turner v. United States and Overton v. United States. The Court does not rule upon questions pertaining to prosecutorial misconduct and the State’s duty to disclose exculpatory evidence very often. When it does, it tends to rely on decisions handed down decades ago despite evidence that courts struggle to enforce the relevant principles consistently and appropriately. The Turner-Overton matter thus presents both an opportunity and a challenge to the justices. The opportunity? An uncommon occasion upon which it can clarify principles and curtail the confusion that permeates lower courts’ opinions. The challenge? Moving beyond the facts presented and penetrating the deeper questions that reside beneath the surface.
The question presented by these cases is a relatively narrow one: whether the Petitioners’ convictions must be set aside under Brady v. Maryland. That question is one the Court itself generated; the Petitioners initially asked the Court to resolve thornier questions that sometimes arise when the State fails to turn over all exculpatory evidence before trial. While it appears that SCOTUS will most likely take its well-worn minimalist approach in the Brady due process context here, several pleadings demonstrate that deeper, systemic concerns warrant attention.
Last year, I wrote for the ACS here about one of the chief concerns underpinning the case: that prosecutors decide whether to disclose exculpatory information pre-trial based on their prospective assessment of whether withholding it would make a “material” difference at trial. To recap the Brady test courts use post-trial: a new trial must be granted where the defendant 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 “any reasonable likelihood” it could have “affected the judgment of the jury.” (Wearry v. Cain (2016) (internal citations omitted)). Tying prosecutors’ disclosure determinations to their own predictions about materiality is problematic for a bevy of reasons (explored in greater depth in my previous ACS post). But, what is truly worrisome is that the Supreme Court justices have not acknowledged or fully grasped how their Brady rulings influence prosecutorial disclosure decisions.
In the oral argument in Smith v. Cain in 2011, several justices expressed dismay when the prosecutor arguing the case informed them that the lawyers in her office making disclosure decisions did not simply consider whether information is exculpatory, but also gauged whether it was material. Some vocalized their concerns with this approach. Justice Kennedy posited a distinction between a Brady “obligation” to turn over evidence before trial and a Brady “violation” based on an appellate court’s post-trial assessment of materiality:
And with all respect, I think you misspoke when you – you were asked what is – what is the test for when Brady material must be turned over. And you said whether or not there’s a reasonable probability . . . that the result would have been different. That’s the test for when there has been a Brady violation. You don’t determine your Brady obligation by the test for the Brady violation. You’re transposing two very different things. And so, that’s incorrect.
If there is a distinction—and there surely should be one—the Court’s jurisprudence provides no guidance on how to identify it.
Indeed, consider what the Solicitor General has argued in Turner and Overton. Although there is no dispute that the prosecution failed to turn over several categories of exculpatory evidence, the Government’s brief on the merits states, “[t]he government complied with is obligations under Brady v. Maryland, 373 U.S. 83 (1963). Nondisclosures violate Brady only when withheld information is both favorable and material.” See how easily the Government elides that distinction between a Brady obligation and a Brady violation? In the first two sentences in the summary of its argument, the Government exploited a jurisprudential problem that the justices should address.
One of the seven amicus briefs filed in support of the Petitioners provides a clear solution. According to the brief filed on behalf of Texas Public Policy Foundation, FreedomWorks, Cause of Action Institute and the American Legislative Exchange Council (organizations committed to liberty, free enterprise and limited government), the Court should make clear that the prosecution’s due process obligation is to turn over all evidence favorable to the defendant. After all, “[r]equiring production of all favorable evidence solves the problem that prosecutors face in administering the current materiality standard.” Providing constitutional clarity on this point would be a great service to the criminal justice system. As an amicus brief filed by over 30 former federal and state prosecutors points out, “[z]ealously protecting Brady is especially important at a time when . . . public confidence in the criminal justice system is declining.” That prosecutors withhold exculpatory information because they forecast its immateriality is a troubling and legitimacy-shaking reality.
Although making clear that prosecutors have a constitutional obligation to turn over all exculpatory evidence regardless of materiality before trial seems like low-hanging fruit, the Court has allowed confusion on this issue to fester for decades. Perhaps the justices will sidestep the issue again, as they ultimately did in Smith, because resolving it is not essential to answering the narrow question presented. But, that is true in every Brady case that reaches the Court (because there is no clear vehicle to raise the “obligation” question to SCOTUS in a pre-trial context). Hopefully the justices will recognize that the continued and opportunistic conflation of prosecutors’ pre-trial duty to disclose and the post-trial assessment of materiality must be halted.
At the heart of this case is a conundrum implicating the “materiality” standard. Courts around the country have demonstrated a reluctance to grant defendants new trials under Brady, rendering the materiality standard a very difficult one for defendants to meet. In a joint analysis of a random sample of several hundred Brady cases, the VERITAS Initiative of Santa Clara University School of Law and the National Association of Criminal Defense Lawyers found that courts affirmed convictions in which prosecutors withheld exculpatory evidence 86 percent of the time. Only 14 percent of cases involving this serious form of prosecutorial misconduct resulted in a new trial. Organizations across the political spectrum understand that the paltry reversal rate reflects a serious problem with judicial implementation of SCOTUS’s materiality standard. In its amicus brief, the Cato Institute persuasively explains that “[t]he decision below is just the most recent in a long line of attempts by lower courts to heighten the Brady materiality standard.”
The Cato Institute’s brief debunks the Government’s claim that the suppressed evidence was clearly not material because that is what the lower courts found. The Respondent’s brief states “[t]his was not a close case. Ten different judges in the District of Columbia have examined Petitioners’ convictions, and every one of them has been thoroughly convinced of Petitioners’ guilt.” Not so fast. In Wearry v. Cain (2016), this Court reversed a capital conviction in a per curiam opinion that held that the suppressed evidence was material “beyond doubt.” Yet, not a single judge in the Louisiana courts found materiality. Similarly, in Smith v. Cain (2011), 11 state court judges affirmed the conviction and not one dissented; SCOTUS nonetheless reversed in an 8-1 slam-dunk opinion. So the lower courts’ unanimity is far from persuasive here, even accepting that D.C. courts are obviously not the same as Louisiana courts; indeed, it may just prove the point that Cato’s brief makes. (For a more complete view of the actual evidence the State suppressed, the Open File provides a thorough look here.)
Because the squishy materiality standard has embroiled the Court in an ongoing project of policing Brady’s implementation, one may be tempted to ask whether the time has come to chart a new course. The Cato Institute does not propose this solution; instead, it suggests that SCOTUS should do what it has “consistently” done “in past cases”—find the evidence material. In other words, the Court should double down on and enforce the intended parameters of materiality. The former prosecutors endorse this outcome. Two amicus briefs suggest another possibility, however. The brief for the Texas Public Policy Foundation et al. argues that lower courts’ struggles with materiality demonstrate that the doctrine is unworkable. Rather than requiring the defendant to prove that his use of the suppressed evidence would have undermined confidence in the verdict, the brief proposes that once the defendant establishes the prosecution suppressed favorable evidence, the State should have the burden to prove that the error was harmless beyond a reasonable doubt. This well-settled harmless-error doctrine—regularly used in other contexts—“will give prosecutors a far stronger incentive than they have now to take seriously their disclosure obligations.” Professor Alan Morrison, who authored an amicus brief on behalf of a prisoner named Wilfredo Lora, similarly submitted that “[t]he simplest way to decrease the incentives for withholding exculpatory and impeachment material from the defense counsel is to place the burden of proving that a new trial is not warranted on the party that withheld that material in the first place—the Government.”
If SCOTUS is committed to a minimalist approach, deeper questions may not be fully aired in this case, but they deserve to be. The merits briefs that the parties have filed (here is Overton’s, here is Turner et al.’s, and here is the Government’s) ably focus on the specific facts developed below. While the Government’s brief emphasizes what it considers the “overwhelming” evidence introduced against the Petitioners, it glosses over the profound doubts that Petitioners could have raised at trial had they been given access to the exculpatory information the State instead suppressed. The former prosecutors’ amicus provides a powerful antidote to the Government’s myopia: “[f]rom amici’s many combined years of prosecutorial and supervisory experience, they appreciate that some Brady cases raise close questions. This, however, is not one of them. To the contrary, this case presents precisely the type of egregious evidence suppression that this Court has prohibited.”
The Turner-Overton case is likely to be another in the line that reminds lower courts that materiality is not an impossible hurdle for defendants to overcome. Yet, it has the potential to be much more. There should be no doubt that much more is needed. Prosecutorial misconduct pervades the criminal justice system. Despite Brady’s promise, the malleable materiality standard has been bent in the State’s favor. If the Court does not change the standard itself, a finding of materiality in Turner-Overton may provide temporary assistance, but a band-aid will not suffice where an amputation is needed.