Brady Follies – Propagating The Big Lie

This looks like a law review article.  But it isn’t.  It’s in a journal of “criminology”.  Criminology is a field of study undertaken primarily by law enforcement types, and it probably doesn’t matter to anyone but us but in our opinion it is not a proper field of study for a lawyer.  Too slanted in one direction.

In any case, published in 2011 the article is as revealing as it is wrong, once you get past its basic deceptiveness:  while seeming to bemoan prosecutor lying and cheating it is in fact giving them a lot more cover than they deserve, and more importantly a lot more legal cover than they actually have.

As we have repeatedly noted in these pages, the basic error – or sleight of hand, if you’re not in a charitable mood – is to conflate the Mooney line of cases with the Brady line of cases; that is, deliberate deception of the court (Mooney) with negligent or unintentional misleading of the court (Brady).

Here’s Mooney:

Petitioner urges that the “knowing use” by the State of perjured testimony to obtain the conviction and the deliberate suppression of evidence to impeach that testimony constituted a denial of due process of law…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.

But here’s Brady:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Mooney was decided in 1935.  It has been unambiguously reaffirmed by the SCOTUS every time it was addressed: in Pyle v. Kansas (1942); Alcorta v. Texas (1957); Napue v. Illinois (1959); and Miller v. Pate (1967)

In contrast to Mooney, Brady (decided 1963) has been qualified, limited, distorted, exceptioned to death and rendered a dead letter.  And you don’t have to take our word for it.*

Yet somehow, all these qualifications and exceptions – such as a “materiality” requirement – that were later applied to the Brady line of cases also got applied to the Mooney line of cases, at least in the minds of many prosecutors.

And judges, if that’s not repeating ourselves.

Which as you’ll see further down, is more than a little ironic.  We could think of other words, too.

Anyway, there are really two lynchpins of this contention Brady = Mooney.  The first is this line out of Brady:

This ruling is an extension of Mooney v. Holohan, 294 U. S. 103, 112, where the Court ruled on what nondisclosure by a prosecutor violates due process…

And then this line:

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.

From these slender reeds, criminologist types have argued: 1) that the deliberate use of perjury by a prosecutor to obtain a conviction violates due process only if it is “material”; and 2) the only use of perjury that counts in this context is use at trial.  Perjury can otherwise be freely – and deliberately – used without due process concerns.

I would call these arguments sophistry of a very low order, but I don’t want to flatter them.

For the first argument – often called the “materiality” requirement – it is certainly a concern in a Brady situation but it is never a concern in a Mooney situation, for the simple reason that the  materiality of the deliberately perjured or suppressed or fabricated evidence has been conceded in advance:  if the evidence didn’t matter to obtain the conviction, why did the prosecution deliberately perjure or suppress or fabricate it?

Put another way, the State is judicially estopped from even arguing that the evidence they deliberately perjured or suppressed or fabricated to get their conviction didn’t matter.  It’s more than a little embarrassing that judicial estoppel must be applied to state officials as opposed to, say, ambulance chasing TV lawyers, but there it is.

Moreover, what is the line of reasoning here? That if Brady “extends” Mooney and has a materiality requirement then Brady must also limit Mooney by extending the materiality requirement to Mooney? That is a non-sequitur, and a particularly unwholesome one at that.

As to the second argument, not one of the cases in the Mooney line ever suggested that the deliberate use of perjury, etc. counted as a due process violation only if it occurred at a trial; indeed they said it counted as a due process violation if it was used “to obtain a conviction”.

Here’s Pyle v. Kansas:

Petitioner’s papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him.

Here’s Napue v. Illinois:

First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment

Here’s Miller v. Pate:

More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.

But all this aside there is even better – conclusive, really – proof that the Mooney line of cases, though related, is separate and distinct from the Brady line: Miller v. Pate is 1967** – that is, it post-dates the 1963 Brady case – and while it cites Mooney and Pyle and Alcorta and Napue it never cites Brady.

Thus when the criminology article goes on and on about how we really, really should have a more “protective” “materiality” requirement to discourage prosecutor lying and cheating it is actually making an allowance for prosecutor lying and cheating that never existed in the first place (and God willing never will exist):

Nine years after the Brady decision, the Court established the materiality standard for determining a constitutional violation in the context of a prosecutor’s knowing presentation of false testimony in Giglio v. United States

Giglio (1972) did no such thing.  In the first place, Giglio was fundamentally a Brady case:

We granted certiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v. Illinois, 360 U. S. 264 (1959), and Brady v. Maryland, 373 U. S. 83 (1963).

In the second place, the only significance of Giglio was to impute the knowledge required for the “knowing” use of perjury to any attorney in the prosecutor’s office.  The intra-office assignment of a different prosecutor for the trial meant the case didn’t squarely fall within Napue, because the trial prosecutor didn’t know of the promise of leniency to the witness and thus did not act in bad faith, but Brady still applied because the promise of leniency still had to be disclosed:

The heart of the matter is that one Assistant United States Attorney—the first one who dealt with Taliento— now states that he promised Taliento that he would not be prosecuted if he cooperated with the Government… Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.

From this mess there, the criminology article then cites the 1976 case of US v. Agurs.  But Agurs is a Brady case.  This is out of the first paragraph:

The question before us is whether the prosecutor’s failure to provide defense counsel with certain background information about Sewell, which would have tended to support the argument that respondent acted in self-defense, deprived her of a fair trial under the rule of Brady v. Maryland, 373 U. S. 83.

The article then gets deeper into the “materiality” issue and goes on to cite United States v. Bagley (1985).  But the first paragraph of that case says:

In Brady v. Maryland, 373 U. S. 83, 87 (1963), this Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” The issue in the present case concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses.

Yup.  Bagley is a Brady case, not a Mooney case.

Finally, the article throws a bone to those victimized by prosecutor lying and cheating by eschewing the “materiality” test of Kyles v. Whitley (1995) as being too lenient with prosecutor lying and cheating.  But of course, in the first paragraph of Kyles:

After his first trial in 1984 ended in a hung jury, petitioner Curtis Lee Kyles was tried again, convicted of first-degree murder, and sentenced to death. On habeas review, we follow the established rule that the state’s obligation under Brady v. Maryland, 373 U. S. 83 (1963), to disclose evidence favorable to the defense…

Kyles is a Brady case.

To recap, there is no disputing that there is a materiality analysis and requirement before a Brady violation is held to result in a reversible due process error, because strictly speaking a Brady violation is not deliberate; but there is no such “materiality” analysis and requirement for a Mooney violation because a Mooney violation is always deliberate.  The article is arguing for a more “protective” materiality “test” that doesn’t apply to Mooney violations in the first place.

Parenthetically, it’s worth noting that what really underlies the Brady “extension” of Mooney was the realization, in 1963, that it’s virtually impossible – or at least extremely, extremely rare – for a wrongfully convicted person to actually prove that prosecutor misconduct was deliberate – not everyone gets lucky like Napue (or we) did – so they relaxed that scienter requirement in Brady.  Accordingly, it is perverse beyond words, really, that this effort by the SCOTUS to extend the reach of the “principle of Mooney” has effectively restricted it instead.  As we’ve noted before, though, one of our favorite SCOTUS justices – Whizzer White – presciently anticipated such problems when he concurred in the Brady case itself:

In my view, therefore, the Court should not reach the due process question which it decides…The result, of course, is that the due process discussion by the Court is wholly advisory…In any event the Court’s due process advice goes substantially beyond the holding below. I would employ more confining language and would not cast in constitutional form a broad rule of criminal discovery.

So, among other problems with it, Brady becomes a cautionary tale about appellate courts roaming beyond the confines of questions the case before them actually presents, into “advisory opinion” territory which, in the US at least, is a no-no.


* The degree to which the criminal defense bar has itself succumbed to this same confusion, to some extent evidenced by SHG’s post, is a very large subject for another time.

**  Milller v. Pate is almost amusing. In convicting the defendant of murder at this trial, the prosecutor paraded before the jury en exhibit characterized as “blood-stained shorts”. The blood stains were actually red paint.


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Filed under Judicial lying/cheating, wrongful convictions

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