Here are my seven favorite Brady decisions:
1. BRADY V. MARYLAND, 373 U.S.83 (1963)
Both Brady and his co-defendant were found guilty of first-degree murder and sentenced to death. After trial, the prosecutor disclosed to Brady that the co-defendant admitted to the homicide. The court held that the prosecutor’s suppression of the confession violated the Due Process Clause of the 14th Amendment. Accordingly, the prosecutor must disclose to the defendant all material evidence that is exculpatory.
What is material? Anything that has a bearing on guilt or innocence or on sentencing. This disclosure is required irrespective of the good or bad faith of the prosecutor.
2. GIGLIO V. UNITED STATES, 405 U.S. 150 (1972)
A key witness against Petitioner testified at trial that he had not received a promise for leniency from the state in return for his testimony. The defense cross-examined the witness about any promises of leniency. The witness denied that he was given any promises of leniency or promises not to be prosecuted.
The prosecutor who had presented the case to the grand jury had given the witness a promise of immunity. He signed an affidavit stating that he did not prosecute the witness because he had given the witness immunity. However, the prosecutor trying the case signed an affidavit stating that the witness had not been prosecuted for different reasons.
Defendant was convicted of forging money orders. While the appeal was pending, defendant discovered new evidence that government failed to disclose. That is, that the government’s key witness was given a promise not to be prosecuted in return for his testimony. The key witness was the defendant’s alleged coconspirator and the only witness linking the defendant to the crime.
The Supreme Court held that the prosecution was obligated to disclose to the defense any promise or expectation of leniency it offered to a witness. It clarified that the state’s Brady obligation extends to all prosecutors in the office, and that it is up to such offices to create systems to ensure that such information is disclosed. Further, the Court clarified that impeachment evidence – evidence affecting the credibility of a witness – is Brady material and must be disclosed.
The big take away: When the reliability of a given witness may determine guilt or innocence, the prosecutor must disclose evidence affecting the credibility of that witness.
3. UNITED STATES v. AGURS, 427 U.S. 97 (1976)
The Petitioner was convicted of murder after a trial in which he argued he had acted in self-defense. Subsequently petitioner sought a new trial because the state had failed to disclose the victim’s criminal record. The U.S. Supreme Court held that there was little difference between a general request by defense counsel for Brady material and the absence of a request altogether, and it found that prosecutors are obligated to turn over exculpatory evidence whether or not defense counsel asks for it.
4. STATE v. JONES, 120 Ariz. 556, 587 P.2d 742 (1978)
The Arizona Supreme Court issued sanctions against the Office of the Maricopa County Attorney for failing to turn over potential exculpatory evidence to defense attorneys in violation of Brady v. Maryland and Rule 15.1. The Court ordered dismissal of two affected counts with prejudice (at the appeal stage) because of he discovery violation.
The ordered retrial on those two counts was quashed. The Court admonished the prosecutors, “If you are in doubt as to whether or not a defendant knows of certain exculpatory evidence already known to the State, reveal it.” It referenced possible ethical violations for the State’s failure to disclose exculpatory evidence.” Moreover, the also stated that Rule 15.1, is an expression of due process. State v. Jones, 120 Ariz. 556, 560, 587 P.2d 742, 746 (1978).
5. KYLES v. WHITLEY, 514 U.S. 419, 437 (1995)
In Kyles, the United States Supreme Court reversed a murder conviction upon discovering that the state had withheld evidence in violation of Brady. The evidence withheld by the state included, among other things, inconsistent eyewitness statements and inconsistent statements made by an “associate” of the defendant who allegedly had knowledge of the crime and access to the location where items taken from the victim were found. The Court held that the disclosure of the withheld evidence undermined confidence in the outcome of the trial and therefore made a different result reasonably probable.
In reaching this determination, the Court found that the withheld evidence would have “raised opportunities to attack not only the probative value of crucial physical evidence and the circumstances in which it was found, but the thoroughness and even the good faith of the investigation.” The Court also stated that the evidence withheld denied the defense the ability to “undermine the ostensible integrity of the [police] investigation” and “[lay] the foundation for a vigorous argument that the police had been guilty of negligence.”
Ultimately, the Supreme Court stated that: “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression “undermines confidence in the outcome of the trial.”
The big take away: “The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995)
6. COLORADO v. CORSON, 2013 COA 4. No. 11CA0241.
Defendant David Corson appealed the district court’s order denying his motion for post-conviction relief, which alleged that the nondisclosure of the complaining witness’s juvenile adjudications rendered his plea invalid and his counsel ineffective. The order was reversed and the case was remanded.
In 2001, Corson worked as a substance abuse counselor at a juvenile facility. K.B., a 17-year-old resident of the facility, alleged that Corson and she had engaged in a sexual relationship while she resided at the facility. After Corson pleaded guilty to sexual assault on a child by one in a position of trust, which was made in exchange for dismissal of the pattern of abuse count, Corson discovered evidence showing K.B. had previously made false allegations of sexual assault and had resulting juvenile adjudications for false reporting that the prosecution had not disclosed to the defense.
The Brady Issue: Corson contended that the district court erred in denying his motion, asserting that his guilty plea was unintelligent and involuntary because (1) the prosecution failed to comply with its discovery obligations, and (2) the prosecution made an affirmative misrepresentation regarding the existence of exculpatory evidence that induced this plea. Corson also contended that the prosecution’s nondisclosure of exculpatory evidence and its affirmative misrepresentation concerning its existence caused defense counsel to erroneously assess the case, rendering counsel ineffective.
“Corson also filed a discovery motion that requested K.B.’s medical and treatment records and alerted the prosecution that, “based on information and belief, [K.B.] has a reputation for making untruthful statements as well as having a past criminal history.” The prosecution’s response stated that “[the prosecution] ha[d] provided all information pertaining to the victim, which [was] in the possession of the Office of the District Attorney” and characterized the request as “nothing more than a fishing expedition.” The court never ruled on Corson’s discovery motions.”
The court found the prosecution did not merely decline to turn over information, but it made an affirmative representation that it had no discoverable evidence. Nothing in the law requires defendants to “scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed.” “A rule declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.”
7. MILKE v. RYAN, 711 F.3d 998 (9th Cir. 2013).
This case went all the way through the Arizona State Court System and the conviction was only reversed after it traveled by Habeas Corpus into the 9th Circuit. Debra Milke was convicted of murder, conspiracy to commit murder, child abuse and kidnapping of her 4-year-old son and sentenced to death. The jury convicted Milke primarily based on the testimony of the detective who allegedly took her confession. The detective had a well-documented history of misconduct and resulting disciplinary action. Milke petition for habeas corpus was denied by the district court.
Milke appealed, arguing that the failure of the prosecution to turn over evidence of the officer’s previous Brady violates violated one of the elements of fairness under Brady v. Maryland and Giglio v. United States, which “is the prosecution’s obligation to turn over exculpatory evidence.” The Ninth Circuit agreed and held that the state had acted contrary to the established precedent when it failed to disclose information regarding the history of misconduct of one of the state’s key witnesses, without which the jury could not return a fair conviction.
The Arizona Supreme Court issued two decisions this week providing guidance as to scope of