Thursday, September 20, 2018

Fifth Circuit: Prosecutors needn't disclose evidence of innocence before plea deals

The Fifth Circuit ruled in a Texas case that the constitutional requirement that prosecutors disclose exculpatory evidence under Brady v. Maryland doesn't kick in until trial, so there is no obligation for the government to tell a defendant about exculpatory evidence when they enter a plea deal. USA Today reporter Brad Heath walked through the details on Twitter. From Judge Costa's dissent: "It is difficult to think of greater deprivations of that liberty than the government’s allowing someone to be held in prison without telling him that there is evidence that might exonerate him." Embarrassing.

This was an en banc decision by the whole court, upholding an earlier ruling by a three-judge panel. See prior Grits coverage here and here, and a discussion of the case on the July 2017 Reasonably Suspicious podcast.

This case stemmed from a 17-year old defendant who was beaten up and choked by a Brownsville jailer then charged with assaulting an officer. He pled guilty to avoid a lengthy prison sentence, but years later, video of the incident showed the jailer instigated the incident and the teen was a victim. A jury awarded the man $2.3 million, but the Fifth Circuit threw that out, insisting the state did no wrong because the prosecutor had no obligation to inform the defendant at the time he pled that the government was in possession of video showing he was innocent.

FWIW, in state-court cases in Texas, the Michael Morton Act now does require prosecutors to disclose exculpatory evidence if the defense requests it, even in the pretrial phase of the prosecution. But that's because Texas has bolstered defendants' position in statute in response to repeated false convictions. The Fifth Circuit has made it clear that, in their opinion, access to that information is not a constitutional right.

The circuits are split on this issue and Grits would love to see SCOTUS take it up, leaving aside who would be the 9th justice to hear it. These innocence issues cut across party lines, and would likely cut across factions on SCOTUS, as well.

14 comments:

Lee said...

Is there not an edict somewhere that requires prosecutors to see justice done? Why would the 5th Circuit not penalize them for that?

What kind of defense attorney does not ask to see all the evidence before their client pleads out?

Anonymous said...

Did one of the justices on this court have a financial stake in the insurance company that is going to pay out the $2.7 million? My lord the gymnastics they have gone through on this. Imagine if the tables were turned and the State learned there was a video that a bystander took that showed the teen instigated the fight, there would be all sorts of reasons why the bystander has no right to privacy or property in that prosecution.

Unfathomable, I hope this sees a rise in everything at least being 'set for trial' at the federal level and when the judge's ask why, we can explain 'Because your honor, we are not entitled to exculpatory evidence unless we are going to trial under the current law.' I seem to think there will be some new scheduling orders in place real quick.

In response to Lee, no they will not be punished. Texas has this nonsense 'not to convict but to seek justice.' Any dime store prosecutor will mention that in their jury selection or opening and sometimes close that they are not there to convict but to seek justice. There's no punishment or threat of anything if they don't follow it. Prosecutors sure do love to bemoan how they have a hard job, and their job is not easy by any means. But I can promise you, getting a certified letter from Texas Bar that they have to respond to is not one of them.

Next time you go to the doctor ask yourself if there was a sign on the front door that said 'Note: You may complain to Texas Medical Board about this Doctor and how he does things but he practices in a field of medicine that we do investigate complaints—except this one time when there was a bunch of media coverage about an innocent guy getting 25 years in prison, so we kind of had to do something and so we gave out a small fine—but other than that don't even bother complaining to us about anything this doctor does.' Would you feel real confident in what that doctor know regarding your health, and if you agree with his diagnosis and sign on the dotted line and accept his diagnosis?

Drew Willey said...

Not only does MMA require pre-plea disclosure, so does Prosecutor ethics rules, see Rule 3.09(d) of the Tex. Disciplinary Rules Prof’l Conduct, which requires a prosecutor in a criminal case to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in con-nection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibil-ity by a protective order of the tribunal” and Schultz v. Comm’n for Lawyer Discipline, SBOT Case No. D0121247202 (Tex. Dec. 17, 2015); ABA Formal Op. 09-454.

Federal 5th Circuit giving a pass on what is clearly required by all other entities shows how little regard they have for liberty over dollars. Guess that's been the history of American south, in general, though.

Anonymous said...

Kind of reminds me of a t-shirt I saw on an army outpost in Colombia in the 1980s.

Shoot them all!! Let God sort them out!

Same principal, ain't it?

SMH

Anonymous said...

Its up to the victim now. "When the courts fail us there is no justice except that which we bring ourselves".

Anonymous said...

We have gone from "Truth, Justice, and the American Way" to what we have today.

Go figure.

Anonymous said...

"Power tends to corrupt and absolute power corrupts absolutely."

Another good reason defendants should have active representation in the indictment process. How many individuals sit in jail pre trial because this kind of evidence was withheld from a grand jury returning the indictment.

Much needs to be done to curtail or balance the absolute power given to prosecutors.

Soronel Haetir said...

Grits,

Sorry but the entire point of a plea bargain is to dispense with the truth (whatever it might be), I see no reason to deviate from that here.

Anonymous said...

Yeah, who cares about innocent people in prison, or impropper sentencing. Nobody should have to deal with the criminal justice system any more than necessary, just sign on the line kid...

Anonymous said...

With 95-98% of cases closed by plea bargains, this decision might as well repeal Brady altogether.

D007 said...

I have lived in Texas all my life so I shouldn't be shocked, but I am. Shocked, dismayed, horrified...How can any prosecutor withhold that kind of evidence and still be considered ethical? It is a clear violation of even the most rudimentary concepts of good and bad, justice ...

Soronel Haetir said...

Ethics is not the same as a constitutional violation. The bar for the latter is a higher hurdle to cross.

Anonymous said...

Is there enough will for a legislative fix?

Brad Walters said...

The kind that handle 500 cases a year to perpetuate the plea mill. At $200 or so dollars per case the attorney can make over a 100k per year. To collect 200 per case to convince appointed clients to plead. Sad sellouts.