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The U.S. Supreme Court handed down its opinion in the consolidated cases of Turner v. United States and Overton v. United States last week. We covered the case details at length in an earlier post, here. The key legal issue—“the primary and dispositive question with respect to all of appellants’ Brady claims”—is materiality.  We observed:

The Turner and Overton cases are clearly important on their own terms. They also present the Supreme Court with an important opportunity to provide clarity to some questions surrounding the Brady doctrine. But, the way in which the Court granted certiorari signals that it may do less of what it is meant to do—resolve confusion and splits in the lower courts—and do more resolving of fact-intensive disputes that only affects the parties. This “minimalist” approach—typical of the 8-justice Court—may satisfy the requirements of justice here, but would regrettably leave defendants around the country stuck with ambiguities and jurisprudential flaws that result in less fair trials.

As many anticipated, the Court took a fact-specific, narrow approach. Amy Howe at SCOTUSblog explains, “The Supreme Court rarely weighs in on cases that are ‘legally simple but factually complex.’ . . . But ‘legally simple but factually complex’ is exactly how Breyer described the issue before the court today.” Somewhat surprisingly, Breyer’s majority opinion on behalf of six justices rejected the defendants’ claim and affirmed their convictions. Justice Kagan authored a dissenting opinion in which Justice Ginsburg joined. (The newest justice, Justice Gorsuch, did not participate in this decision.)

Because the opinion leaves the law fully intact and merely plunges into the facts of the crime and investigation—and the justices’ views on whether there was a reasonable probability that the disclosure of the exculpatory evidence would have led to a different verdict—this post will not fixate on its text. Suffice to say, Justice Breyer’s opinion concludes that the suppressed evidence “is too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards.” The result is unsettling for two reasons. One, as our earlier post explored in-depth, a lot of evidence was suppressed. Two, as that post explained, a victory for the defendants seemed particularly important when one considers the state of the criminal justice system:

At the very least, given the current climate around prosecutorial misconduct and other recent missed opportunities, the Court ought to leave no doubt that the State violated the Constitution when it failed to disclose whole swathes of favorable evidence in a case with such incredibly high stakes.

In her SCOTUSblog post, Amy Howe also raised questions about the outcome and the process by which the case came to occupy the Court’s docket. “Given the heavily fact-intensive nature of the case, it’s hard to know exactly why the justices agreed to review it in the first place. The lack of a compelling legal question was apparent to them from the outset . . . .” She proposes the theory that the justices originally anticipated reversing the convictions when it agreed to hear the case, but then changed course when looking at the case more closely. Some prominent court watchers, including Howe and former Solicitor General Walter Dellinger, credit the Government’s lawyer, Michael Dreeben, for stellar advocacy at the oral argument. Perhaps that made a difference.

The question presented was narrow at the start. Yet, a flurry of amicus briefs filed with the Court suggested not only a different result, but also an opportunity to improve the Brady doctrine. Perhaps the Court was too quick to draw the conclusion that this case was “legally simple.” The amicus briefs—seven of them altogether, all in support of the Petitioners’ position—raised important arguments that should not be lost even though the case was lost. Below is a bullet-pointed summary of each brief’s central points. Some of these briefs underscore major doctrinal questions that deserve closer scrutiny. The Open File preserves their messages here, recognizing that they contain crucial ideas that deserve widespread circulation and understanding.

Former prosecutors’ brief (34 of them):

  • Public confidence in the criminal justice system is particularly threatened at this time
  • Based on experience, this is not a close case—the Petitioners should win new trials
  • Prosecutorial suppression of exculpatory evidence is a perennial problem
  • The suppressed evidence here was quintessential Brady material

Cato Institute brief:

  • The Court should not permit lower courts to implicitly raise threshold for materiality; the court below “severe misapplied” materiality standard in this case
  • Lower courts keep getting Brady materiality wrong and SCOTUS has had to keep intervening
  • Brady violations are too common, and the ruling below encourages more of them

Brief for Texas Public Policy Foundation, FreedomWorks, Cause of Action Institute, and American Legislative Exchange Council:

  • The Court should replace its materiality test with the Chapman harmless-error standard
  • Long-running efforts to fix the Brady materiality have failed; the standard is susceptible to narrow reading and application
  • The Department of Justice has resisted reform efforts to broaden the prosecutorial duty to disclose
  • Court should make the prosecutors’ constitutional duty to disclose clear—all favorable evidence should be turned over
  • Requiring prosecutors to turn over all exculpatory evidence, regardless of materiality, solves the deep problem of asking prosecutors to apply materiality test in a pre-trial anticipatory posture

Innocence Network brief:

  • Brady promotes truth-seeking and fair trials
  • This case involves quintessential Brady material, and Brady material is key to preventing wrongful convictions
  • Evidence pointing to other possible perpetrators is of “paramount value”
  • This sort of alternate-perpetrator evidence should be considered presumptively material, particularly where physical evidence is lacking
  • Courts can, should, and do consider evidence discovered after trial when conducting Brady analyses

National Association of Criminal Defense Lawyers brief:

  • Defense attorneys could have used suppressed evidence to create a compelling and coherent narrative that the alternate perpetrator was responsible for the crime
  • The decision below improperly minimized the importance of each piece of exculpatory evidence
  • By withholding evidence, the Government was able to turn the defendants against each other rather than enabling them to come up with a cohesive strategy

Center on Wrongful Convictions of Youth:

  • False confessions cause wrongful convictions
  • This case presents the hallmarks of false confessions
  • The majority opinion below assumed the confession was legitimate
  • The Brady evidence of another possible perpetrator would help show a confession is false

Brief filed on behalf of Wilfredo Lora by G.W. Law School Dean Alan Morrison:

  • The Government should bear the burden of demonstrating why suppressed evidence did not influence the verdict


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