As I say, I highly recommend reading the dissenting opinions here, for those of you who might be interested in criminal justice issues generally.
For the moment we’re going to focus on Judge Livingston’s dissent. It begins with a somehwat overwrought – complete with macabre imagery using such terms as “interred” – back-handed panegyric to the sanctity of Brady v. Maryland, which as I indicated before Judge Livingston misconstrues:
Until today, Brady v. Maryland, 373 U.S. 83 (1963), and its progeny represented a safeguard against the miscarriage of justice. In this Circuit — at least until such time as today’s error is corrected — Brady now includes, with our imprimatur, the right to recompense for a denial of the opportunity to commit perjury more successfully.
I concur fully in Judge Jacobs’s powerful dissent, which explains how the majority effectively (but unjustifiably) inters Heck v. Humphrey, 512 U.S. 477 (1994), as it relates to convictions obtained after an earlier verdict is set aside for Brady error. I write separately to make the point that Poventud’s claim, apart from undermining the basic premises of Heck v. Humphrey, also simultaneously distorts Brady v. Maryland and its progeny beyond recognition. Disregarding the Supreme Court’s recognition that Brady claims “have ranked within the traditional core of habeas corpus and outside the province of § 1983,” Skinner v. Switzer, 131 S. Ct. 1289, 1300 (2011), the majority ignores the single fact that Poventud’s guilty plea necessarily defeats his Brady claim on the merits by rendering implausible any contention that the undisclosed impeachment evidence is material. The undisclosed evidence (as Poventud’s guilty plea now establishes) could only have been used at trial to support a perjurious defense. Today’s startling conclusion — that in such circumstances, a defendant can nevertheless state a claim for recompense arising from Brady v. Maryland — spells serious trouble for future applications of Brady in this Circuit…The Supreme Court’s Brady jurisprudence makes clear, moreover, that constitutional error for Brady purposes is only present when, considering the undisclosed evidence in light of the record as a whole, there is reasonable doubt. Thus, the Supreme Court said in United States v. Agurs, 427 U.S. 97, 112 (1976), that, “if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed.” But if this is not the case — “[i]f there is not reasonable doubt about guilt whether or not the additional evidence is considered,” id. at 112-13 — no constitutional error has occurred…something in the majority’s analysis is amiss. That something is a basic fidelity to Brady…Brady imposes a fundamental obligation on the prosecution to disclose evidence for use at trial that is “favorable to [the] accused” and “material either to guilt or to punishment,” Brady, 373 U.S. at 87. Where nondisclosure of such evidence occurs, regardless whether the undisclosed evidence was intentionally or negligently withheld (or, indeed, withheld in the absence of any fault on the part of the prosecution team), there is constitutional error: as the Supreme Court has said, such error occurs “because of the character of the evidence, not the character of the prosecutor.” Agurs, 427 U.S. at 110.
It may be that the focus of a Brady violation is “the character of the evidence, not the character of the prosecutor”, but the reverse is true of a Mooney violation. Mooney rests on the more traditional due process grounds of “oppressive government conduct”. And there is no “materiality” requirement for a Mooney violtion. The government is prohibited from deliberately suppressing exculpatory evidence to obtain a conviction, and such a conviction violates due process of law, even if the defendant would have been found guilty anyway.
But Judge Livingston’s and the modern prosecutor’s interpretation of Brady makes it a limitation on Mooney – adding a “materialty” requirement, rather than the “extension” of Mooney that Brady explicitly proclaimed itself to be. And Brady applies whether exculpatory evidence is “intentionally or negligently” withheld, but Mooney already applied to the former.
Who, then, is advancing a “distorted” view of Brady: Poventud, or Judge Livingston?
Put succinctly, prosecutors cannot cheat to get a conviction without violating a defendant’s right to due process of law. This is such a simple and self-evident proposition that it boggles the mind that it has gotten so confused. Judge Livingston and many of her colleagues, raised in prosecutor’s offices, are missing this fundamental underpinning of the whole system.
And you have to wonder why. Maybe we’ll get to that. But not today.