Brady’s Bastard Children II

Let’s get into it a little more.  First, the facts.  Of course, we start with the facts.  We are lawyers here at Lawyers on Strike.

So this guy Poventud was convicted of attempted murder in 1998 in New York State courts, after a trial, and sentenced to a long term of imprisonment.  After serving about 9 years of it, the state courts vacated his conviction and ordered a new trial because of…..Brady violations.

Thus the title of this post, and the previous one.  I thought you might be wondering.

Anyway the State is doing what the State does in those situations:  blustering, chest thumping, we’re going to appeal, we’re going to try you again, we’re going to win again anyway – but since you’ve already served 9 years we’ll be really, really nice and lenient and let you plead guilty to a lesser offense and you’ll get time served and you’ll be out.  Which is more than you deserve, you lousy criminal piece of shit.

This is the graciousness with which the State ordinarily handles a loss, as they did at the hands of Mr. Poventud.  Maybe it’s understandable here, even if it’s wrong:  because if Mr. Poventud is not a criminal piece of shit someone else is.

But I digress.

So anyway.  It goes down like this:

The prosecution filed a notice of appeal; successfully argued that Poventud be denied bail; and offered him immediate release in exchange for a guilty plea to a non-violent, Class E felony charge of third-degree attempted robbery. By this time, Poventud had been incarcerated for nearly nine years. Poventud testifies that during his imprisonment he endured gruesome and repetitive physical and sexual abuse; that he attempted suicide; and that he suffered from depression and post-traumatic stress disorder. In January 2006, Poventud accepted the terms of the plea bargain and went home….Poventud now contends that he was deceived into pleading guilty. He alleges that the assistant district attorney knew, but did not disclose, that the district attorney’s office had decided not to perfect its appeal. Poventud alleges further that the ADA withheld crucial information from the defense. When he learned of these omissions, Poventud stayed the instant federal suit and moved in state court to have his guilty plea vacated as involuntarily given. The New York Supreme Court for Bronx County granted an evidentiary hearing on the question of voluntariness, but Poventud withdrew his motion without prejudice. He says he did this after learning that he had multiple myeloma, after nearly dying from kidney failure, and after undergoing bone and stem cell transplants and chemotherapy. Poventud asserts that he thought the stress and infection risks of a new trial, together with the possibility, however remote, of returning to jail, would kill him.


You remember how Norm Pattis says that criminal court cases often involve tales of horror?

By any sane measure, Poventude’s guilty plea was a plea of convenience.  But it wasn’t an Alford plea, so the judge asked him a couple of questions and Poventud said yes and that was that.  It’s important to bear this in mind:  this guilty plea was the only way Poventud could avoid the certainty of additional years in prison.

In other words, this was a plea of convenience and nothing more.  Its probative value about what actually occurred, to a sane person, is nil.




Read the dissenting opinions.  One is by Judge Jacobs.  We have had occasion to discuss Judge Jacobs before (here and here), very early on in the blog, and damned if he doesn’t vindicate us all over again.

The other is by Debra Ann Livingston.

We haven’t examined Judge Livingston’s opinions before. 

But we will now.

Conveniently, she very explicitly and succinctly exhibits the very Brady confusion we just mentioned about two months ago.  That is, she treats a prosecutor’s inadvertent failure to disclose exculpatory evidence and his deliberate suppression of exculpatory evidence as if these are the same “due process” problem

She really should have come over here before issuing that opinion, but never mind.

Observe.  We quote:

Heck itself involved a Brady claim. See Heck, 512 U.S. at 479 (stating that Heck’s pro se complaint alleged, inter alia, that the defendants had “knowingly destroyed evidence which was exculpatory in nature and could have proved [Heck’s] innocence”


But deliberately destroying someone’s evidence of innocence is not a simple Brady violation, it’s a Mooney violation:

Petitioner charges that the State holds him in confinement without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. The grounds of his charge are, in substance, that the sole basis of his conviction was perjured testimony, which was knowingly used by the prosecuting authorities in order to obtain that conviction, and also that these authorities deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him…Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise. (Emphasis supplied.)

As we peons over here at Lawyers on Strike said in November:

Now, it’s true that as you get to the serious end of Brady violations – that is, the deliberate withholding/hiding/destroying of exculpatory evidence – it becomes a distinction without a difference, as they say.  But the key to understanding Brady is that the case really wasn’t about the serious end violations.  Those were assumed to be covered by MooneyBrady was “extending” the principle of Mooney both to place an affirmative duty on prosecutors to search their files and to err on the side of disclosure if there’s some question about whether the subject evidence is “exculpatory” or not.

None of this implied – except possibly, let us face it, to a very warped mind indeed – that the out and out, deliberate willful and malicious fabrication of evidence and subornation of perjury was not different from the inadvertent failure by a prosecutor to disclose exculpatory evidence.  Brady called the latter a due process violation as well; but the former had been held to be not just a due process violation, but an obvious due process violation even at the time of Mooney, which is to say 1935 – almost 80 years ago.


There is more to say here.  Next post.



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