Last Thursday evening at a dinner in New Orleans, Keith Plessy and Phoebe Ferguson came together again to bestow an award on John Thompson, the noted death row exoneree, who was being feted by the Innocence Project New Orleans after nearly two decades of false imprisonment. The names of the presenters probably don't ring a bell to you until you put them together and separate them with a "versus," as in Plessy v. Ferguson. The descendants of the litigants of one of the worst Supreme Court decisions ever wanted to pay homage to a litigant who had belatedly benefited from one of its best. Who says irony is dead?
The timing of the Project's 12th anniversary "gala" was propitious. It came just four days before the 50th anniversary of the Supreme Court's decision in Brady v. Maryland, decided on this day in 1963, in which the justices unanimously declared that prosecutors have a constitutional obligation to share with criminal defendants all "exculpatory" evidence officials may have. "Society wins not only when the guilty are convicted but when criminal trials are fair," wrote Justice William O. Douglass, for the Warren Court, as it again sought in those progressive days to enhance individual rights at the expense of government power.
Thompson is a free man today because of the so-called "Brady" rule. But he likely would have been a free man all along -- without spending 14 years on death row -- had his prosecutors obeyed the law in the first place. That dichotomy is what makes Thompson such a poignant symbol of the Brady rule. He proves both that it works and that it is deeply flawed; that it saves innocent people from being railroaded by prosecutors and that countless others are wrongly convicted and imprisoned anyway. The sad truth is that 50 years after Brady, in an increasingly complex criminal justice system, too many prosecutors still hide exculpatory evidence, and too few judges do anything about it.
Like many famous Supreme Court litigants whose names become synonymous with high constitutional doctrine, John Brady was no saint. In fact, he was an admitted accomplice to murder. On June 27, 1958, he and a man named Donald Boblit robbed and killed a man named William Brooks. After his arrest, Boblit quickly told the police that he, Boblit, had alone strangled Brooks to death. But Brady's prosecutors never told his defense attorneys about this confession -- about the fact that Brady had not been the actual murderer -- and never turned over the transcript of Boblit's remarks.
Both Boblit and Brady were convicted and sentenced to death by a Maryland jury. It was only then that Brady's lawyers discovered that prosecutors had a confession from Boblit that helped exonerate Brady. (The defense found out by reading a transcript of Boblit's trial.) Brady's attorneys asked for a new trial. The trial judge refused the request but the Maryland Court of Appeals concluded that the suppression of the confession violated Brady's due process rights and that he was entitled to a new sentencing trial. Unsatisfied, wanting a new trial outright, Brady then took his cause to the Supreme Court.
The justices showed little sympathy for Brady. (Curiously, he was never re-tried.) Instead they used his case as a vehicle to memorialize a constitutional rule that burdened prosecutors with an affirmative duty to share with criminal defendants evidence that by its very definition would undermine the prosecution's case. The motives behind the suppression of the evidence didn't matter. A criminal defendant's due process rights were violated when he was tried without the benefit of the the exculpatory evidence. Here's how Justice Douglass briefly explained it in Brady v. Maryland:
An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts." A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant.
The Brady Rule Today
The justices in Brady identified a problem in criminal cases that undercuts the very foundation of a fair trial -- the government's investigative powers give it access to evidence the defense might need but otherwise never see. But the Court did not propose a universal remedy for violations caused by the suppression of evidence. Would there be an automatic new trial for the defendant from whom the evidence had been suppressed? Would cheating prosecutors be punished and, if so, how and by whom? For two decades these questions vexed judges -- in many ways they still do. But then, in 1985, the Supreme Court, now a far more conservative body, significantly altered the terms of the debate.
In a case styled United States v. Bagley, the Court effectively narrowed the reach of Brady. For a Brady violation to result in the reversal of a conviction the suppressed evidence now had to be both "exculpatory" and "material." The evidence is material," Justice Blackmun wrote in Bagley, "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." By requiring proof that the prosecution's failure to disclose evidence would have made a difference at trial, Bagley was a big victory for prosecutors and an even bigger defeat for aggrieved defendants.
The Bagley decision freed skeptical appellate judges to reject remedies for defendants even where obvious Brady violations have occurred. The results of this higher legal standard are predictable. Bennett Gershman, the longtime legal scholar, wrote in 2011 that a "prosecutor's violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies." Put more simply by John Thompson, who spoke with me Sunday by telephone, "nobody has an answer because no one wants to have an answer."
Actually, Thompson isn't quite right. The courts gave him some very clear answers. He was one month away from being executed -- one month after 14 years on death row! -- when his lawyers by chance discovered that his prosecutors had violated their Brady obligations to him by failing to disclose the results of an exculpatory blood test -- by affirmatively hiding the results of that test. The Louisiana courts quickly reversed his conviction and ordered a retrial -- at which he was acquitted -- and Thompson then won a jury award of $14 million against his prosecutor, a verdict which in 2011 was overthrown by a 5-4 vote of the U.S. Supreme Court.
To Thompson, the Brady rule as its applied today is a failure despite the fact that thousands of prosecutors around the country honorably disclose evidence to defendants -- despite the fact that a few enlightened jurisdictions have even adopted "open-file" discovery rules in criminal cases. The problem, Thompson says, is that there is little incentive for prosecutors to comply with the rule. "With power comes accountability," he told me, and yet prosecutors who he says "have the power to kill" have no accountability when it comes to hiding the evidence. "It's still happening today," he says. "We still don't have something in place 50 years later to protect us."
You can understand how Thompson has come to his views. But those views are shared by many of the experts who practice in and write about this corner of the law. "What troubles me most," law professor Stephen Bright told me last week, "is that so many Brady violations are discovered as a matter of serendipity. In capital cases, we sometimes find them by getting the prosecution's file in Open Records (or Freedom of Information) actions. But most people convicted of crimes have no lawyer to represent them after their conviction has been upheld on appeal. ... It is impossible to know how many Brady violations are never discovered ..."
When he overturned the jury's verdict in Thompson's favor, Supreme Court Justice Clarence Thomas wrote that there were other meaningful remedies available to aggrieved defendants to ensure that prosecutors complied with their Brady obligations. "Legal training and professional responsibility" were enough to immunize district attorneys from such awards, Justice Thomas wrote. But study after study proves conclusively that this is wrong -- that prosecutors are rarely sanctioned by the bar when they cheat on their disclosure obligations. "The Myth of Prosecutorial Accountability," is how the Yale Law Journal put it.
This paradigm doesn't affect the vast majority of prosecutors who try to do right by their Brady obligations. But the problem is that it also doesn't affect the small minority of prosecutors who do not. It's essentially a no-lose situation for the cheating district attorney. If she fails to disclose the evidence and doesn't get caught no one ever knows (except the condemned inmate and the real criminal). And if she fails to disclose the evidence and eventually gets caught, the wrongly convicted man is freed, but she gets to keep her job in the prosecutors' office without punishment. Under pressure to get convictions, dealing often with an overworked and understaffed defense attorney, why not take a shot and withhold the evidence?
Last month, the outer limits of these transgressions was exposed. In Texas, a state judge named Ken Anderson was arrested and charged with hiding exculpatory evidence at the expense of Michael Morton, who spent 25 years in prison for a murder he did not commit. Anderson faces relatively minor charges. But if it were up to Thompson, Anderson would be facing attempted murder charges. "What happens when we learn that a district attorney has killed an innocent man?" he asked me yesterday. "Isn't it premeditated murder? What are we willing to accept" from our prosecutors?
The Path Ahead
It's not difficult to see where the law's priorities lie. When we have disputes over money, Bright told me last week, "there is elaborate discovery with a full exchange of documents, names of witnesses, depositions, interrogatories, requests for admissions, etc. but in cases involving possible loss of life or liberty, we still have 'trial by ambush' in most jurisdictions with very little discovery." The problem of Brady enforcement is made worse, Bright says, because the complexities of today's criminal law means that "the prosecution often has no idea what the defense will be. Bright reasoned:
Even the most conscientious prosecutor may not know how critical a document may be to establishing the defendant's innocence. Plus, the prosecutor has no more incentive to turn over exculpatory evidence to the defense than the government has to provide the defendant with a good lawyer. Few prosecutors who are convinced of a defendant guilt are going to turn over evidence that may hurt their chances of obtaining a conviction. It is very easy to rationalize - from the prosecutor's view of the case - that the evidence is not really exculpatory.
The answer here is not nearly as difficult as judges and prosecutors and bar associations make it out to be. To honor the legacy of Brady, to be true to its constitutional command, to reduce the perverse incentives that now affect too many prosecutors' offices, pretrial discovery in criminal cases must be broadened to include all evidence (trial judges can protect witness security as appropriate). And there must be swift and significant punishment for prosecutors who violate the rule. John Thompson says that this isn't happening more often today because judges and lawyers want to protect each other, even at the expense of wrongly convicted criminal defendants. There is little in the record of the past 50 years that proves him wrong.