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."