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After rehearing en banc the case of Alvarez v. The City of Brownsville, the Fifth Circuit Court of Appeals issued a disconcerting decision. If it was not bad enough that the Department of Justice was angling for an ultra-narrow understanding of prosecutors’ ethical duties under Brady, the en banc Court took the bait—hook, line, and sinker. Our earlier post about the case sets out all of the important issues at stake. Today, we take a brief look at what the Court decided and what many of the judges expressed in a number of concurring opinions attached to the ruling. In classic understatement, the majority opinion states: “[We] also decline[] the invitation to disturb [our] precedent concerning a defendant’s constitutional right to Brady material prior to entering a guilty plea.”

The Court emphasized that Mr. Alvarez’s claim for relief was based on the State’s failure to disclose exculpatory evidence before he pled guilty to the crime (though he was later exonerated). The Court concluded that caselaw “does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” It is certainly true that some courts have not interpreted Brady to apply to pre-trial litigation and plea-bargaining. Yet, some courts have. And the Fifth Circuit altogether ignores reality in plowing towards its conclusion. Consider this excellent analysis by Matt Ford:

Plea bargaining’s flaws, as used on a massive scale today, are well established. The practice favors defendants with the financial resources to defend themselves at trial and disfavors poorer defendants who must instead rely on the overburdened public-defender system. Like virtually every other aspect of the criminal-justice system, it punishes non-white defendants more harshly than their white counterparts. Plea bargaining also shifts power away from judges and juries and hands it to state, local, and federal prosecutors instead. In doing so, it subverts the structural protections afforded to defendants by the Constitution.

Worst of all, the phenomenon appears to be sending countless defendants to prison who are actually innocent of the crimes for which they plead guilty. Thanks to the coercive power that flows from prosecutorial discretion and mandatory-minimum sentences, defendants may logically conclude that it’s safer to plead to a few years for a crime they didn’t commit than risk decades behind bars. Costa noted in his dissent that a nationwide registry for exonerations includes 73 Americans who had pleaded guilty to serious offenses like murder and manslaughter.

The majority and concurring opinions mention none of these facts. Instead, they silently shelter the elephant in the room—prosecutorial power—and elevate (debatable) historical arguments and (overblown) practical concerns about how a broad Brady doctrine would affect the system. Reading these opinions is like watching a room full of prosecutors trip over each other in an effort to reach the podium and defend law enforcement power at the expense of accountability. Indeed, maybe that is exactly what they represent.

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