Circuit Split: Are Brady Claims Available for Defendants Who Plead Guilty When the Prosecution Withholds Materially Exculpatory Evidence?

Kyle Greene, Associate Member, University of Cincinnati Law Review

Intro

A Brady claim affords defendants a new trial when the prosecution knowingly withholds impeachment or exculpatory evidence. There is little debate about the Brady requirement to disclose evidence favorable to the defendant during trial. However, a more controversial concept related to Brady is the requirement of disclosing material evidence to a defendant during the plea bargaining stage. The Supreme Court weighed in on this in U.S. v. Ruiz.[1] While Ruiz definitively ruled out the availability of Brady claims for withholding impeachment evidence during plea bargaining, they inadvertently opened the door for circuit splits by failing to explicitly answer whether materially exculpatory evidence must be disclosed under Brady during the plea bargaining stage.[2] The Fifth, First, Second, and Fourth Circuits all agree that prosecutors only have a duty to disclose evidence found in trial preparation, but the Seventh, Ninth, and Tenth Circuit suggest that prosecutors should disclose known exculpatory evidence prior to a defendant’s guilty plea because failure to do so would render the plea essentially involuntary.[3]

Background

Brady v. Maryland [4] has long established the principle that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either the guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”[5]  Since Brady, the Supreme Court has further modified the requirement of a Brady claim by holding that the duty to disclose exculpatory evidence applies even when there has been no request by the accused.[6] The Court later explained that the duty to disclose under Brady encompasses impeachment evidence as well as exculpatory evidence, and that evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”[7] Additionally the rule applies to evidence know by police investigators and prosecutors have a duty to learn of any favorable evidence known to anyone acting on the government’s behalf.[8] Strickler v. Greene set a three component test for evaluating a brady claim: evidence must be suppressed by the state, the evidence must be favorable to the accused, and prejudice to the defendant must have ensued.[9]

This blog will lay out the gateway the Supreme Court in Ruiz opened for circuit courts: whether exculpatory evidence must be shared with defendants before they plea guilty in exchange for a lesser sentence. It will examine the difference in reasoning between the circuit court split, and finally suggest that the Supreme Court should grant certiorari  to a close case to set forth a more stringent test than the traditional Brady test to definitively provide recourse for defendants who enter into guilty pleas without full knowledge of the evidence.

U.S. v. Ruiz.

Immigration agents found thirty kilograms of marijuana in Angelo Ruiz’s suitcase on her way to California.[10] Federal prosecutors’ offered Ruiz a plea deal for reduced sentencing. The plea deal contained terms requiring the prosecution to turn over any known information establishing innocence of the defendant while also requiring the defendant to waive any right to impeachment information related to witnesses, as well as the right to receive information supporting an affirmative defense. Ruiz refused, arguing that her guilty plea could not be voluntary unless “the prosecutors first made the same disclosure of material impeaching information the prosecutors would have had to make had the defendant insisting upon a trial.”[11] The Ninth Circuit agreed with Ruiz and ordered her guilty plea void. The Supreme Court heard the case and reversed holding that Brady’s application to impeachment information only applies to Fifth Amendment due process concerns in relation to the “fairness of a trial, not to whether a plea is voluntary.”[12]

The Supreme Court stated that due process considerations in trial proceedings are not as prevalent in a guilty plea because it is difficult to discern what constitutes “critical information” so early in a case.[13] “The degree of help that impeachment information can provide will depend upon the defendant’s own independent knowledge of the prosecution’s potential case.”[14] The Court reasoned that because it’s hard to distinguish what the defendant knows will impeach a witness at trial, the prosecution will never be able to meet the burden of full disclosure without compromising their case.[15]

Furthermore, the Supreme Court considered practical due process concerns including “the nature of the private interest at stake, the value of the additional safeguard, and the adverse impact of the requirement upon the government’s interest.”[16] With this in mind, the Court pointed out that the plea agreement requiring the government to provide any information establishing innocence of the defendant, along with the guilty plea safeguards provided for in Federal Rules of Criminal Procedure, already sufficiently addresses the chance that innocent people will plead guilty to crimes.[17] Lastly, the Court decided that requiring such “premature disclosure of government witnesses could disrupt ongoing investigations and expose prospective witnesses to serious harm.”[18] This would also require the government to spend more resources on trial preparation prior to a plea deal, or require the government to stop relying on plea bargains, which make up ninety percent of federal criminal case dispositions.[19]

The analysis seems to conclude that the level of disclosure required by prosecutors during plea deal arrangements is already sufficiently taken care of. However, this particular case dealt with impeachment information of a witness. The Supreme Court was not willing to require prosecutors to disclose witness impeachment information because it is difficult to discern the degree of help it will provide to a defendant.  Justice Thomas notes in his concurrence that by turning the analysis in part on the difficulty discerning the degree of help such evidence will provide a defendant, the majority implicitly leaves the door open for Circuit Courts to find a requirement to disclose unfavorable evidence in cases where the evidence is more obviously helpful to the defendant.[20] More importantly, Ruiz concerned only impeachment evidence, and did not directly address the requirement to disclose materially exculpatory evidence prior to a guilty plea. This ambiguity is where the Circuit Courts have split.

The Argument for Guilty Plea Disclosure: U.S. v. Ohiri

In U.S. v. Ohiri[21], the Tenth Circuit relied heavily on Ruiz’s implicit distinction between impeachment and materially exculpatory evidence to hold that a defendant is entitled to file a Brady claim where the government withholds exculpatory evidence in an “eleventh hour” guilty plea.[22]

Ohiri entered a guilty plea for conspiracy to dispose and store hazardous waste in violation of the Resources and Conservation Recovery Act.[23] After the guilty plea, Ohiri appealed, alleging a violation of due process and a Brady violation, claiming that the prosecution withheld evidence that a co-defendant  signed an Acceptance of Responsibility Statement (“Acceptance Statement”). Ohiri argued that the Acceptance Statement amounted to exculpatory evidence, therefore, any guilty plea he entered was involuntary.[24] The Tenth Circuit Court of Appeals agreed with Ohiri and distinguished the case from Ruiz, “the evidence withheld by the prosecution in this case is alleged to be exculpatory, and not impeachment evidence.”[25] The Tenth Circuit justified the distinction by noting that the Supreme Court in Ruiz implied that “impeachment evidence differs from exculpatory evidence in that it is not ‘critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant.’”[26] The Tenth Circuit continued on to say “[t]he Supreme Court did not imply that the government may avoid the consequences of a Brady violation if the defendant accepts an eleventh-hour plea agreement while ignorant of withheld exculpatory evidence.”[27]

The Tenth Circuit used the implicit distinction in Ruiz between impeachment and exculpatory evidence to hold that plea deals receive Brady protections when the withheld evidence is exculpatory. In Ohiri’s case, the prosecution withheld the Acceptance Statement from the defendant during plea bargaining and the Statement was materially exculpatory, therefore, it should be subject to Brady.[28]

The Argument Against Brady Claims in a Guilty Plea: Alvarez v. City of Brownsville.[29]

In contrast, the Fifth Circuit in Alvarez drew a hard line, declining to extend a defendant’s constitutional right to assert a Brady violation in guilty pleas. Moreover, The Fifth Circuit found no implicit distinction between impeachment and exculpatory evidence in their interpretation of Ruiz.[30]

Alvarez pled guilty to assault on a public servant stemming from an altercation he had with an officer while being moved to a holding cell.[31] Four years after Alvarez began his prison sentence, a video surfaced of the alleged assault that exonerated Alvarez. Based on the video, the Texas Court of Criminal Appeals concluded Alvarez was actually innocent of assault and all charges against Alvarez were dismissed.[32] Alvarez then filed a motion for damages resulting from a Brady violation. The District court granted damages amounting to 2.3 million dollars. The City of Brownsville appealed, and the Fifth Circuit reversed the decision ruling that Alvarez waived the right to assert a Brady claim when he entered a guilty plea.[33]

The Fifth Circuit recognized that the Supreme Court in Ruiz “did not explicitly address whether the withholding of exculpatory evidence during the plea bargaining process would violate a defendants constitutional rights.”[34] However, the Fifth Circuit followed its own precedent and concluded that “[u]nequivocally, the court rejected the defendant’s argument that Ruiz states that impeachment and exculpatory evidence should be treated differently, and that exculpatory must be turned over before the entry of a guilty plea.”[35] The Fifth Circuit went on to cite Second Circuit and First Circuit cases that support a similar conclusion, explaining that Brady claims focus on protecting the integrity of a trial, thus when there is no trial, there is no constitutional due process violation possible under Brady.[36]

Analysis

Clearly there is a split in opinion on whether Ruiz implicitly distinguishes between impeachment and exculpatory evidence during plea negotiations, or whether Ruiz concretely ruled out any use of Brady during the plea process. Those for the expansion of Brady in guilty pleas will see no difference between the need for material exculpatory evidence before trial or during plea bargaining in order to make an informed decision on how to proceed in a case. On the other hand, those against will note that protections are already in place for plea bargaining, and Brady’s primary focus is on a fair trial not a fair plea bargain.

Ruiz’s note on the fact that plea bargaining makes up ninety percent of federal criminal cases is unconvincing. If judicial efficiency is so valuable that we are willing to forego diligent investigation and fair knowledge, then the justice system is no better than a manufacturer looking for the best way to bottle a beverage. However, holding the plea bargaining process to the same prosecutorial standard doesn’t seem plausible either. Evidence that may seem important early on in a case may fizzle out and vic versa, and as Ruiz points out, it can be nearly impossible to determine what witness will be of value when it comes to trial. However, the value of a piece of DNA evidence found on the scene, or of point blank statements made by other suspects admitting guilt are obviously easier to see the importance of even at the plea bargain stages.

Ultimately the Supreme Court should take another case to fix the circuit split they created. A test more stringent than the Brady claim standard during trial should be applied when exculpatory evidence is withheld during plea bargaining. A test that focuses on the obvious impact such critical evidence would have on a defendant’s decision to enter a guilty plea would be appropriate. For instance, under the current Brady standard evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”[37] In a regular Brady claim a “showing of materially does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the Defendant’s acquittal.”[38] However, A heightened standard on probability prong from “reasonable probability” to something akin to a “clear and convincing” probability that had the evidence been disclosing the defense, the result of the proceeding would have been different might modify Brady to better fit nature of a case at the plea stage. Likewise, requiring a “preponderance demonstration” when applying Brady to plea bargaining might alleviate the concerns of the prosecution while still providing an important evidentiary check on prosecutors and law enforcement in egregious circumstances. Thus, exculpatory evidence withheld from a defendant during plea bargaining would need to be affirmatively proven as material by a preponderance of  the evidence for Brady to apply. Both alternatives accomplish the same goal. Defendants are afforded some remedy against injustice without compromising the prosecution’s case or law enforcement’s investigation so early on. The heightened Brady standard may be a high burden, but it is better than a categorical exclusion from Brady claims for innocent defendants induced to take guilty pleas. A criminal charge, especially for those who are actually innocent can be a terrifying experience. Even those who know they are innocent may be induced to take a guilty plea when the alternative is substantially more time in prison.[39] The risk of rolling the dice and receiving substantially more prison time simply isn’t worth it for many innocent defendants.[40] The appeal of less time can only be exacerbated when the defendant is unaware of materially exculpatory evidence. Extending Brady claims to apply, atleast when the evidence withheld is obviously exculpatory, to guilty pleas would instill actual innocent defendants with the due process rights afforded to them by the Constitution, while not raising the burden on prosecutors to disclose all possible relevant information too early in a case.

Conclusion

In Ruiz, the Supreme Court only dealt with witness impeachment evidence and did not weigh in on whether Brady claims should be excluded when the evidence withheld is more clearly exculpatory. Since then, a circuit split has ensued, and without further clarity from the highest court, district courts will be left to their own devices to decide whether they believe a Brady claim is available during plea bargaining. The justice system owes defendants a clear standard on whether recourse is available when prosecutors withhold materially exculpatory evidence. The Supreme Court needs to take a closer case in the future to once and for all set the outer limits of Brady. A system that does not safeguard defendants when obvious exculpatory evidence is withheld can not be tolerated. For that reason, the Supreme Court should set a heightened materiality standard under Brady to hold prosecutors accountable in exceptional cases.

[1] United States v. Ruiz, 536 U.S. 622 (2002).

[2] See id. 628-630.

[3] Bernie Pazanowski, “No Right to Favorable Evidence Before Pleading Guilty, Bloomberg Law. (Sept. 20, 2018 12:10 PM), https://news.bloomberglaw.com/us-law-week/no-right-to-favorable-evidence-before-pleading-guilty/.

[4] Brady v. Maryland, 373 U.S. 83 (1963).

[5]Id. at 87-88.

[6] United States v. Agurs, 427 U.S. 97, 107 (1976).

[7] United State v. Bagley, 473 U.S. 667, 676, 682 (1985).

[8] Kyles v. Whitley, 514 U.S. 419, 437 (1995).

[9] Strickler v. Greene, 527 U.S. 263, 289 (1999).

[10] Ruiz, 536 at 628.

[11] Id. at 629.

[12] Id.

[13] Id. at 630.

[14] Id.

[15] Id.

[16] Id. at 631. (citing Ake v. Oklahoma, 470 U.S. 68, 77 (1985)).

[17] Id. (see also Fed. R. Crim. Pro. 11).

[18] Id. at 632.

[19] Id.

[20] Id. at 633. (Justice Thomas, J., concurring).

[21] United States v. Ohiri, 133 Fed. Appx. 555 (10th Cir. 2005) (unpublished)

[22] Id.

[23] Id. at 556.

[24] Id.

[25] Id. at 562.

[26] Id. (quoting Ruiz, 536 U.S. at 632).

[27] Id.

[28] Id.

[29] Alvarez v. City of Brownsville, 16-40772, 2018 WL 4441619 (5th Cir. Sept. 18, 2018).

[30] Id. at 4.

[31] Id. at 1

[32] Id.

[33] Id.

[34] Id.

[35] Id. at 6.

[36] Id. at 7.

[37] United State v. Bagley, 473 U.S. 667, 676, 682 (1985).

[38] Kyles, 514 U.S. at 434.

[39] See Judge John Kane, Plea Bargaining and the Innocent, The Marshall Project. (Dec. 26, 2014 1:04 PM), https://www.themarshallproject.org/2014/12/26/plea-bargaining-and-the-innocent.

[40] Lucian E. Dervan and Vanessa A. Edkins Ph.D.,The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 103 J. Crim. L. & Criminology 1, 17 (2013), https://scholarlycommons.law.northwestern.edu/jclc/vol103/iss1/1.

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