Last term, the Supreme Court addressed the prosecutorial duty to disclose exculpatory evidence, also known as the Brady rule, in just one case, Turner v. U.S. As we explained here, “the Court took a fact-specific, narrow approach” and did not address any broader legal questions about the Brady doctrine. However, one should not read that outcome as an indication that such questions are non-existent. Several of the seven amicus briefs filed on behalf of the Petitioners (found at the bottom of this post)—who ultimately lost the case—identified deep doctrinal questions about the Brady rule. From this perspective, the Court’s parsimonious approach was a missed opportunity, particularly because “the Supreme Court does not often consider” Brady issues. As a new term quickly approaches, the justices have another opportunity to address lingering questions about prosecutorial accountability. This post looks at two pending petitions; both demonstrate that although the current state of law should be clear, courts have developed startling exceptions that let prosecutors off the hook for breaking constitutional rules. While we have long argued that the rules themselves should be made more robust, the Court must first recognize and enforce existing requirements. The petitions filed in Woods v. Smith and Stein v. United States make that clear.
At its conference on September 25, when the Court considers the many, many petitions that have piled up over the summer, it will take another look at the petition filed on behalf of Donyelle Woods. Mr. Woods’s lawyers, including the team at the University of Michigan Law School’s Michigan Innocence Clinic and prominent Jones Day partner Shay Dvoretzky, filed a petition for certiorari in March. According to the case docket, the State initially waived its response. The justices were preparing to conference the petition in May when it decided to request a response from the State. Empirical data suggests that the Court’s call for a response indicates the statistical likelihood of merits review is about nine times greater in this case than those in which no call is issued.
Mr. Woods’s is an innocence case. After his first trial ended in a mistrial because the jury could not reach a verdict, Mr. Woods was convicted at the second trial for the 2003 murder of Eric Harris. His petition presents two questions. The first involves an evidentiary question and the Confrontation Clause. The second question, the one of particular interest here, is:
In Banks v. Dretke, 540 U.S. 668 (2004), this Court repudiated a requirement that defendants must show prior diligence when asserting a claim under Brady v. Maryland, 373 U.S. 83 (1963): “A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.” Banks, 540 U.S. at 696. But the circuits are divided on whether this principle applies in habeas cases, with some courts—including the Sixth Circuit below—upholding state court rulings imposing so-called “due diligence” requirements. The second question presented is: Whether the Sixth Circuit erroneously upheld the state court’s unreasonable application of this Court’s Brady jurisprudence and, in doing so, exacerbated a circuit split over whether there is a defendant due diligence requirement for Brady claims on habeas review.
The Brady analysis traditionally asks three (somewhat) straightforward questions. They are: (1) Is the evidence favorable to the defendant either because it is exculpatory or impeachment material?; (2) Did the State suppress the evidence?; and (3) Would disclosure of the evidence have created a reasonable probability of a different verdict? If the answer to all of these questions is ‘yes,’ then the defendant is entitled to a new trial. If the answer to any one of them is ‘no,’ then the court will affirm the conviction and sentence. Yet, the federal Sixth Circuit layered on an additional inquiry. It asked whether the defendant’s trial team could have discovered the suppressed evidence through the exercise of due diligence. That question fundamentally changes the Brady analysis, and Mr. Woods’s petition asks whether a due diligence requirement is appropriate in the habeas context.
The Brady information at issue in Woods relates to the death of a key witness. At trial, as the Sixth Circuit acknowledged, “the prosecutor strongly, and inaccurately, implied” that the defendant was involved in the killing of Chavez Johnson, the key eyewitness to Harris murder. In post-conviction proceedings, Mr. Woods’s team discovered “the results of a police investigation indicating that Woods was not responsible for the death of a key witness—contrary to the strong implications of the prosecution at trial.” This evidence is at the heart of the petition. (It’s worth noting that this is another case in which a great deal of exculpatory evidence was suppressed. Footnote 2 of the petition highlights four categories of evidence the State failed to disclose, including open warrants against a key witness and evidence that someone else had stabbed the victim just days before the murder.)
According to the Sixth Circuit, which invoked the state court’s decision, the prosecution’s failure to disclose that law enforcement had effectively determined Mr. Woods was not responsible for killing a key State witness was not sufficient to establish suppression because the defense could have called the detective to the stand and cross-examined him about Johnson’s unrelated murder. Thus, the court found that the defense’s opportunity to learn this information through “reasonable diligence” alleviated the State of its duty to disclose what was undoubtedly evidence favorable to the defendant. This bizarre “due diligence” rule—made up by the courts and utilized in some other circuits—ignores what Brady requires. As the petition points out, “[i]n essence, the Sixth Circuit’s rule would reward the prosecutor who is especially good at hiding evidence, and manages to hide it beyond the direct appeal.”
The Supreme Court sometimes grants certiorari in order to settle a question about which courts are split. Mr. Woods’s petition makes clear that the Sixth Circuit’s opinion adopting a due diligence requirement in the Brady-habeas context is in tension with the decisions of other courts. For example, the Ninth Circuit has held that this requirement “flip[s]” the Brady standard on its head. And, as we noted in an earlier post, the Third Circuit rejected the State’s due diligence argument in James Dennis’s case last year. Oddly, the State’s brief in opposition to the petition argues that the circuit split the Petitioner identified proves there is no “clearly established federal law” that Mr. Woods needs in order to prevail in the federal habeas context. Mr. Woods’s reply succinctly responds that the split is exactly what warrants Supreme Court intervention, and points out that the failure of some courts to enforce what is clearly established law does not call into question that law’s clarity but instead further “underscores the need” for review.
Two friends-of-the-court filed amicus briefs in the case, both siding with Mr. Woods’s request for certiorari. The brief filed by the Innocence Network spells out how the Sixth Circuit’s ruling encourages non-disclosure and thereby increases the risk of wrongful conviction. This excerpt provides a powerful summary of the brief’s content:
“This Court should reject a due diligence requirement altogether, including on habeas review, because it excuses unfair trials, condones the suppression of exculpatory evidence, erodes public confidence in the criminal justice system, and forces prosecutors and courts to conduct a speculative analysis of whether a particular piece of evidence could have been uncovered by a diligent defendant.”
The Innocence Network notes that a due diligence rule implicates how a defense team must allocate its already-limited investigatory resources and unfairly “shifts” the “focus of a Brady claim” for the prosecutor to the defense lawyer, rending “the premise—and promise—of Brady  illusory.”
The Supreme Court also received an amicus brief from several former prosecutors who agree that the Sixth Circuit’s due diligence rule is unlawful and problematic. To start, it acknowledges—from the perspective of prosecutors—that the requirement “incentivizes prosecutors to err on the side of delayed disclosure or suppression of evidence where the prosecutor, in their sole discretion, decides that the evidence is marginal.” The brief sensibly notes that bright-line rules are helpful because thorny and difficult-to-answer factual disputes about whether some piece of evidence could have been discovered through “reasonable diligence” simply undermine the due process command Brady entails. After all, prosecutors are not well-positioned to know what information a defense team could discover and they should not be tasked with speculating on that score. Instead, the clear rule of Brady obligates the prosecution to disclose favorable material evidence regardless of the defense team’s investigatory conduct.
The emergence of the “due diligence” jurisprudence—and the deep circuit split it has produced—provides a compelling example of how the criminal justice system inevitably waters down rules that promote prosecutorial accountability, even when those rules emanate directly from the Constitution and the rights that it protects. This type of development may reflect the overwhelming power that prosecutors possess, a pretextual path to finality (which the system obsesses over), a systemic disdain for individuals charged with crimes, a refusal to open up the possibility of “too much justice” in cases with prosecutorial misconduct, or some combination of these factors.
Later in the term, the Supreme Court will consider a petition from a second case that raises similar concerns about the hollowing out of Brady and related cases meant to protect defendants from due process violations. Stein v. United States is a white-collar criminal case in which two of the nation’s most highly respected and successful Supreme Court advocates, Jeff Fisher and former Solicitor General Paul Clement, represent the defendant. Their petition for certiorari, filed this summer and featured on SCOTUSblog, asks the following question:
“This Court has repeatedly reaffirmed ‘that a conviction secured by the use of perjured testimony known to be such by the prosecuting attorney, is a denial of due process.’ White v. Rogen, 324 U.S. 760, 764 (1945). ‘The same result obtains when the State although not soliciting false evidence, allows it to go uncorrected when it appears.’ Napue v. Illinois, 360 U.S. 264, 269 (1959). When the prosecutor fails to fulfill his ‘duty to correct what he knows to be false and elicit the trust,’ he ‘prevent[s] . . . a trial that could in any real sense be termed fair.’ Id. at 270. The Eleventh Circuit here accepted that the government knowingly used false, material testimony to convict Mitchell Stein. The court nevertheless held that Stein received all the process he was due because the government did not suppress the evidence that proved its witnesses were, in fact, lying under oath. The question presented is: Whether the Due Process Clause excuses the government’s knowing use of false testimony where the government does not also suppress evidence indicating that the testimony was false.”
If the Eleventh Circuit’s opinion seems unfounded, you are reading the question above correctly. Nevertheless, like the contrived “due diligence” requirement several courts have embraced in the Brady context, it appears that a number of courts have also decided that the knowing presentation of perjury is not enough to require a new trial under Napue and Giglio. As the Eleventh Circuit put it below, “because Giglio error is a type of Brady violation, the defendant generally must identify evidence the government withheld that would have revealed the falsity of the testimony.” Even experienced defense attorneys who have seen a lot of judicial jujitsu may find this holding to be a head-scratcher. But, there it is. The petition characterizes its logic, or lack thereof, well:
“Although the Eleventh Circuit accepted that the government knowingly used false testimony to convict Mitchell Stein and send him to prison for 17 years, the court nonetheless held that there was no due process violation because the government did not also commit an independent constitutional violation by suppressing evidence proving that its witnesses were lying. While two wrongs do not make a right, in the Eleventh Circuit, in the absence of two wrongs (i.e., a Brady violation and a Giglio violation), there is no wrong at all.”
The appellate court’s holding is surprising because the Supreme Court long ago suggested that a Napue/Giglio violation is more offensive to fundamental tenets of justice and fairness than a Brady violation. The Tenth Circuit recently explained this point, observing that the materiality standard under Napue is easier for a defendant to satisfy because a “prosecutor’s knowing use of perjured testimony is misconduct that goes beyond the denial of a fair trial, which is the focus of Brady. It is misconduct that undermines fundamental expectations for a ‘just’ criminal-justice system.” The wrong the relevant cases seek to deter is the “deliberate deception of a court and jurors,”—whether solicited or unsolicited—irrespective of whether evidence showing there was deception was made available to the defense. Requiring defendants to prove suppression on top of the knowing use of false testimony ignores the particular wrong at issue. In its clarity, the Ninth Circuit approach reveals the flaw in the Eleventh Circuit ruling: “All perjury pollutes a trial, making it hard for jurors to see the truth. No lawyer . . . may knowingly present lies to a jury and then sit idly by while opposing counsel struggles to contain this pollution of the trial.” On the other hand, by permitting perjury where the State did not suppress evidence, the Eleventh Circuit suggests that the defense has the onus to “struggle to contain the pollution” at trial.
In Stein, the Government charged Mitchell Stein for various types of fraud, including securities fraud. The prosecution relied in large part on two alleged co-conspirators, who both agreed to be witnesses against Mr. Stein in exchange for leniency recommendations. At trial, in its bid to show that Stein fabricated product orders to bolster perceptions of the company’s early success, the prosecution put on two witnesses who testified that the information about purchase orders they had seen came only from Mr. Stein. However, both of these witnesses gave false testimony. Both had received information about a particular $50,000 order from independent sources; one saw the check and deposit slip, and another got an email from the chair of the company’s audit committee.
It turned out that the Government had actually disclosed this evidence to the defendant in a large electronic database. Mr. Stein, a lawyer who represented himself at trial, actually found the evidence that proved the witnesses’ testimony false before the trial ended and tried to introduce it, but the trial court sustained the government’s hearsay objection to it. After expressing concern that it would delay the trial if Mr. Stein took the time he needed to authenticate the documents, the court accepted a joint stipulation and read to the jury a sentence stating that an individual had paid the company $50,000 for goods he expected to receive.
Given that Mr. Stein actually attempted to show the jury that the prosecution had elicited false testimony but was effectively prohibited from doing so, this case has the kind of facts that forcefully reveal the defects in the Government’s and court’s reasoning. Jurors hearing a stipulation at the end of a complex trial that someone paid $50,000 for goods is entirely different than a prosecutor correcting its own witnesses’ testimony that Mr. Stein was the sole source of information regarding allegedly concocted money orders. The former approach leaves all kinds of room for interpretation and misinterpretation. The latter approach, however, makes totally clear that the witnesses took the stand, swore to tell the truth, and yet lied to the jury. Moreover, even if Mr. Stein had been provided the opportunity he sought to impeach the witnesses, there is a categorical difference between someone reluctantly giving contradictory information to an opposing attorney and a prosecutor standing up and admitting directly that its own witness testified falsely.
The Eleventh Circuit’s tortured reading of the Giglio and Napue jurisprudence is evident on the face of its opinion. For example, the court tries to draw a distinction between a run-of-the-mill introduction of perjury and one “where the government not only fails to correct materially false testimony but also affirmatively capitalizes on it . . . .” The court hesitantly conceded that in the circumstances where a prosecutor “capitalizes,” then a due process violation occurs. Yet, the court found in this case, “Mr. Stein offers no argument that the prosecutor capitalized on the allegedly false testimony . . . .” Looking closer, however, footnote 13 of the court’s opinion raises doubts about the purity of the prosecutor’s argument. In its words, the court wrote, “[t]o be sure, the prosecutor mentioned in passing in his closing argument [the perjured testimony] . . . [but] the prosecutor did not emphasize or capitalize on this statement by repeating it or making it the centerpiece of an argument for guilt.” These niceties—figuring out whether a lawyer “emphasized” an argument enough, truly “capitalized” on a lie to a sufficient degree, or made something central to its case—eviscerate the core constitutional protection. They also encourage prosecutors to gamble on eliciting perjury or failing to correct it when it appears.
With respect to both Woods and Stein, the Supreme Court has the opportunity to shut down judicial evasion of doctrines requiring prosecutorial accountability. The petition for writ of certiorari in Stein captures well the Court’s duty in these two instances: “This Court should send a clear signal [that its original rulings mean what they said] . . . . We have an adversary system of justice, but there are some constitutional limits that apply to the prosecutor no matter what the accused knows or does in response.”