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Wrongful convictions have long been one of the most troubling aspects of American law. It is understood, of course, that the criminal justice system is not, and cannot be, totally free of error. Nevertheless, the fact that “a large number of innocent people have been convicted of serious crimes, an alarming number of whom were sentenced to death [,]” 1cries out for procedural protections designed to minimize wrongful conviction. At the fourth annual Summit on Indigent Defense Improvement sponsored by the American Bar Association, legal experts identified the major reasons for wrongful convictions, and offered mechanisms for minimizing their occurrence. Professor Adele Bernhard identified the major reasons as false confessions coerced by police, erroneous identifications by prosecution witnesses, prosecution witnesses “who embellish or trim their testimony to please prosecutors or gain a promised benefit,” and prosecutorial discovery violations that deny defense attorneys exculpatory material guaranteed by Brady v. Maryland. 2A major cause is inadequate representation of indigent criminal defendants, stemming in large measure from inadequate funding of public defenders and assigned counsel. This problem is especially acute in death penalty cases. Peter Neufeld, founder and codirector of the Innocence Project at Benjamin Cardozo School of Law, pointed out that �1983 civil rights damages claims filed on behalf of exonerated convicts often uncover Bradyviolations. Of course, a viable �1983 remedy for Bradyviolations might help induce compliance with Brady.In fact, there seems to be an increase in federal court �1983 actions alleging Bradyviolations. �1983 ‘Brady’ Litigation Is Complex It is well-established that, at least in some circumstances, a Bradyviolation may support a �1983 claim for relief. Unfortunately, there are numerous obstacles to recovery. As a result, litigation of �1983 Bradyclaims is often multifaceted and complex. Part of the difficulty, perhaps a major part, stems from the attempt to import a federal constitutional fair trial right into affirmative civil rights litigation. While a worthy goal, the effort entails several doctrinal difficulties. In Brady v. Maryland, 3the U.S. Supreme Court held that a prosecutor has a due process duty to disclose exculpatory material to the defense. Because this is an absolute duty, the good faith or bad faith of the prosecutor is irrelevant. Thus, even an inadvertent or negligent failure to disclose exculpatory material to the defense may give rise to a Bradyviolation. In other words, what is critical is the character of the evidence, not the character of the prosecutor. 4The rationale is that disclosure of exculpatory material is necessary to vindicate the accused’s right to a fair trial. The Bradyright to exculpatory material is thus best understood as a procedural due process right. 5 Supreme Court decisional law holds that [t]here are three components to a true Bradyviolation:
[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the state, either willfully or inadvertently; and [3] prejudice must have ensued. 6
Prejudice means a “reasonable probability,” not merely a “reasonable possibility,” that the outcome would have been different if the exculpatory material had been disclosed. 7 The Many ‘Brady’ Issues Bradyhas generated a dazzling array of issues, many of which can be quite difficult. For example, does Bradyrequire disclosure of nonadmissible evidence?; when must the prosecutor disclose exculpatory material?; does it matter whether the defense has requested Bradymaterial?; and, how do courts determine whether there is a reasonable probability the result would have been different which, by its nature, is a hypothetical inquiry? Lower federal court decisional law consistently holds that a Bradyviolation may give rise to a �1983 damages claim. 8The �1983 claim, however, cannot be asserted against a prosecutor because prosecutors are absolutely immune from monetary liability for carrying out their advocacy functions, which include withholding exculpatory material from the defense. 9Because absolute prosecutorial immunity applies regardless of the prosecutor’s motives, 10the immunity protects a prosecutor even when she deliberately withholds exculpatory material. 11 A Bradyclaim may be asserted against a police officer based on the officer’s failure to disclose exculpatory material to the prosecutor. 12The Bradyrule encompasses exculpatory evidence known only to the police and not the prosecutor. 13This means that the prosecutor’s office must establish a line of communication with the police to insure that the police turn over all exculpatory material to the prosecution. 14Unlike the prosecutor, the police officer is not protected by absolute immunity, but by qualified immunity. The dispositive issue on qualified immunity is whether the officer violated clearly established federal law. In other words, did the police officer violate a clearly established due process obligation to disclose exculpatory material to the prosecutor? 15 Before reaching the “clearly established” issue, a court has to decide whether the police officer’s failure to disclose exculpatory material violated the Due Process Clause. In other words, before deciding whether the officer violated clearly established federal law, it must first be determined whether the officer violated federal law. 16 “Several circuits have recognized that police officers and other state actors may be liable under �1983 for failure to disclose exculpatory information to the prosecutor.” 17But what does the plaintiff have to demonstrate in order to establish a due process violation by the police? This is where the analysis gets sticky. It will be recalled that in Brady, the Supreme Court held that in the context of a criminal prosecution, a prosecutor’s failure to disclose exculpatory material to the defense violates due process regardless of the prosecutor’s good or bad faith. Thus, even a prosecutor’s negligence or inadvertence can violate Brady.However, in the context of a �1983 claim for relief, the U.S. Supreme Court in Daniels v. Williams 18held that an official’s negligence cannot support a �1983 due process claim. This means that �1983 procedural and substantive due process claims must be premised upon some type of intentional, deliberate or reckless official conduct. 19 ‘Brady,’ ‘Daniels’ Clash There is an obvious tension between the decisions in Bradyand Daniels, and it is not obvious how it should be resolved. When the U.S. Court of Appeals for the Fourth Circuit confronted this issue in Jean v. Collins, 20the circuit judges, sitting en banc, split 5-5 on the issue. Jean’s federal petition for habeas corpus was granted based on a Bradyviolation. Jean then sought damages under �1983 against the police officer who negligently failed to disclose the information to the prosecutor. Five judges in the “majority” for the equally divided court found that, in the context of a �1983 claim, police obligations under Bradyare not the same as those of prosecutors, and that the police violate due process only when they act in bad faith, which means when a police officer “intentionally withheld the evidence for the purpose of depriving the plaintiff of the use of that evidence during his criminal trial.” 21 The rationale for this view is that the police officer’s obligation to the prosecutor is not identical, and should not be analyzed in the same manner, as the prosecutor’s duty to the defense. The police officer’s job is to gather evidence, while the prosecutor’s job is to evaluate it. By contrast, the five other circuit judges viewed the due process violation by the police as flowing directly from the Bradyline of decisions, and saw no basis for distinguishing between the obligation of prosecutors and the police to disclose exculpatory evidence. Circuits Back ‘Jean’ The great weight of circuit court authority agrees with the “majority” position in Jean v. Collins.For example, in Villasana v. Wilhoit , 22the Eighth Circuit held that only a prosecutor has an absolute due process duty to disclose exculpatory material, and that a �1983 due process Bradyclaim against a police officer requires a showing that the officer intentionally or in bad faith failed to disclose exculpatory material to the prosecutor. 23Therefore, ” Bradyensures that the [criminal] defendant will obtain relief from a conviction tainted by the state’s nondisclosure of materially favorable evidence, regardless of fault, but the recovery of �1983 damages requires proof that a law enforcement officer other than the prosecutor intended to deprive the defendant of a fair trial.” 24 In Porter v. White, 25the Eleventh Circuit recently held that a law enforcement officer’s negligence or inadvertence in failing to turn over exculpatory Bradymaterial to the prosecution does not give rise to a �1983 due process claim. The court found that the “no fault” Bradyobligation imposed on prosecutors in criminal prosecutions does not govern �1983 Bradyclaims against law enforcement officers. Rather, the �1983 due process claim is governed by the decision in Daniels v. Williamsthat a law enforcement officer’s negligence is insufficient to support a �1983 due process claim. Because Bradyis a trial right, a criminal defendant who did not have a criminal trial cannot base a �1983 claim on a Bradyviolation. 26In Taylor v. Waters, 27the Fourth Circuit ruled that an investigator’s failure to disclose exculpatory evidence to the prosecution did not violate due process because the criminal charges against the plaintiff were ultimately declared nolle prosequi. The court also found that there was no Fourth Amendment violation because “the failure of an officer to disclose exculpatory evidence after a determination of probable cause has been made by a neutral detached magistrate does not render the continuing pretrial seizure of a criminal suspect unreasonable under the Fourth Amendment.” 28The Tenth Circuit held that because Bradyis grounded on the due process right to a fair trial, a criminal defendant who was acquitted cannot be said to have been denied a fair trial. 29 In Steidl v. Fermon , 30the Seventh Circuit recently held that, although Bradyis a trial right, a �1983 Bradyclaim against police officers may be based upon their failure to disclose exculpatory material known to the officers at the time of trial, which they failed to disclose during post-conviction proceedings. The court ruled that “[f]or evidence known to the state at the time of the trial, the duty to disclose extends throughout the legal proceedings that may affect either guilt or punishment, including post-conviction proceedings.” 31Therefore, police officers may be liable under �1983 for failure to disclose exculpatory material to the prosecutor, even during post-connection proceedings. Materiality Element A Bradyviolation requires a showing that there is a “reasonable probability” that if the exculpatory material had been disclosed, the result would have been different. This is the “third” element of a Bradyclaim, frequently referred to as the materiality element. In a habeas corpus proceeding, this would clearly be an issue of law for the court. It is unclear, however, whether in a �1983 suit the issue should be decided by the court as a matter of law or by the jury. In Smith v. Holtz, 32the Third Circuit held that plaintiff’s �1983 Bradyclaim was without merit because the jury determined on special interrogatory that the evidence in question was not material. The circuit court rejected plaintiff’s argument that the issue should not have been submitted to the jury, but noted that the district judge stated that even if the issue had been left to the district court, it would have found that the evidence was not material. Smiththus does not definitively resolve whether the materiality issue is for the court or jury. A �1983 municipal liability claim may be premised upon a Bradyviolation if it can be demonstrated that the violation of the �1983 plaintiff’s due process rights is attributable to the enforcement of a municipal practice or policy. In Walker v. City of New York, 33the Second Circuit held that a �1983 municipal liability claim may be based upon a district attorney’s deliberately indifferent failure to train assistant district attorneys about their Bradyobligations. True, the court in Walkerpointed out that the events in question occurred only seven years after Bradywas decided, when the intricacies of Bradywere not so obvious that training or supervision was not necessary. But even today, many Bradyintricacies remain. Moreover, even if assistant district attorneys do not need Bradytraining, it is likely that there is a need to train the police about their Bradyobligations. One final point, and it is a significant one. Under the doctrine of Heck v. Humphrey, 34a �1983 damages claim that implicates the validity of a conviction or sentence is not cognizable unless and until the conviction or sentence has been overturned, either on appeal, in a collateral proceeding or by executive order. Because a Bradyclaim by definition questions the validity of the conviction or sentence, Heckbars the assertion of the claim until the conviction or sentence is overturned. 35This, of course, is a highly significant obstacle to litigation of Brady�1983 claims. Of course, as Jean v. Collinsillustrates, even a criminal defendant who prevails in a habeas corpus proceeding under the Bradyno-fault standard might not succeed in the �1983 action under a due process fault standard. Monetary Remedy? A meaningful monetary remedy for Bradyviolations might motivate fuller compliance by prosecutors and the police. Unfortunately, the present law is filled with so many obstacles and impediments that recovery of damages for Bradyviolations is the exception rather than the rule. Addendum On April 14, the U.S. Supreme Court granted certiorari in a case raising the issue of the scope of prosecutorial immunity relating to �1983 Bradyclaims. The specific issue is whether absolute immunity encompasses a Bradyclaim growing out of alleged failures of supervisory officials in the district attorney’s office. The case is Van de Kamp v. GoldsteinNo. 07-854. See Linda Greenhouse, “Justices Accept Question of Prosecutors as Lawyers or Managers,” The New York Times, April 15, 2008, p. A14, col.1. Martin A. Schwartz is a law professor at Touro College – Jacob D. Fuchsberg Law Center in Central Islip. He also is the co-chair of the Practising Law Institute annual program in �1983 litigation and author of a multivolume treatise on �1983 litigation. Endnotes: 1. Michael Avery, “Paying for Silence: The Liability of Police Officers Under �1983 for Suppressing Exculpatory Evidence,” 13 Temple Pol. &.Civ.Rts.L.Rev.1 (Fall 2003). 2. 373 U.S. 83 (1963). See 76 U.S.L.W. 2500 (Feb. 26, 2008) (“Criminal Defense Panelists Offer Methods to Prevent, Overturn Wrongful Convictions”). 3. 373 U.S. 83 (1963). 4. Strickler v. Greene,527 U.S. 263, 288 (1999) (quoting United States v. Agurs,427 U.S. 97, 110 (1976). 5. Michael Avery, “Paying for Silence: The Liability of Police Officers Under Section 1983 for Suppressing Exculpatory Evidence,” 13 Temp. Pol. &.Civ.Rts.L.Rev.1 (Fall 2003). 6. Strickler v. Greene,527 U.S. 263, 281-82 (1999). 7. Id. at 296. The “different outcome” may be with respect to guilt or the sentence. 8. See, e.g., Steidl v. Fermon,494 F.3d 623 (7th Cir. 2007); Gibson v. Superintendent of New Jersey Dept. of Law and Public Safety,411 F.3d 427 (3d Cir. 2005) cert denied, 542 U.S. 1035 (2006), Villasana v. Wilhoit,368 F.3d 976 (8th Cir. 2004). 9. Imbler v. Pachtman,424 U.S. 409 (1976); Yairis v. County of Delaware,465 F.3d 129 (3d. Cir. 2006). Villasana v. Wilhoit,368 F.3d 976 (8th Cir. 2004), cert. denied, 125 S.Ct. 1345 (2005); Fullman v. Gradick,739 F.2d 553 (11th Cir. 1984). See also, Jean v. Collins,221 F.3d 656, 661 (4th ed. 2000) (en banc). 10. Bernard v. County of Suffolk,356 F.3d 495 (2d Cir. 2004). 11. Imbler v. Pachtman,424 U.S. 409 (1976); Campbell v. Maine,787 F.2d 776 (1st Cir. 1986); (�1983 claims asserting, inter alia, Bradyviolations). 12. See cases, cited in note 8, supra. 13. See Strickler v. Greene,527 U.S. 263, 280-81 (1999). 14. Kyles v. Whitley,514 U.S. 419, 437 (1995) (“individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.”) 15. See, e.g., Gibson v. Superintendent of New Jersey Dept. of Law and Public Safety,411 F.3d 427, 443 (3d Cir. 2005) (police officers protected by qualified immunity because their duty to disclose the exculpatory material to the prosecutor was not clearly established in 1994); Geter v. Furtenberry, 849 F.2d 1550 (5th Cir. 1988) (police officer who deliberately conceals exculpatory material violates clearly established federal law). 16. See, e.g., Scott v. Harris,127 S.Ct. 1769, 1774 (2007); Saucier v. Katz,533 U.S. 194, 201 (2001). 17. Gibson v. Superintendent of New Jersey Dept. of Law and Public Safety,411 F.3d 427, 443 (3d Cir. 2005). See, e.g., Johnson v. Dossey,2008 WL 364590 (7th Cir. Feb. 28, 2008). 18. 474 U.S. 327 (1986). 19. See Martin A. Schwartz, “Section 1983 Litigation: Claims and Defenses,” �3.06 (4th ed. 2004). 20. 221 F.3d 656 (4th Cir. 2000) (en banc). 21. Id. at 663. Because the en banc court was divided, the decision of the circuit panel in favor of defendants were affirmed. 22. 368 F.3d 976 (8th Cir. 2004), cert. denied, 125 S.Ct. 1345 (2005). 23. Accord White v. McKinney,514 F.3d 807 (8th Cir. 2008). 24. Villasana,368 F.3d at 980. 25. 483 F.3d 1294 (11th Cir. 2000). 26. Becker v. Kroll , 494 F.3d 904, 924 (10th Cir. 2007), cert. denied, 76 U.S.L.W. 3349 (U.S. 2008). 27. 81 F.3d 429 (9th Cir. 1996). 28. Taylor v. Waters,81 F.3d at 437. 29. Morgan v. Gertz,166 F.3d 1307 (10th Cir. 1996). 30. 494 F.3d 623 (7th Cir. 2007). 31. Id. at 630. The court did not decide whether a Bradyviolation may be based on the prosecutor’s failure to disclose exculpatory material learned post-trial. 32. 219 F.3d 186 (3d Cir.), cert. denied, 531 U.S. 880 (2000). 33. 974 F.2d 293 (2d Cir. 1992), cert denied, 507 U.S. 961, 972 (1993). 34. 512 U.S. 477 (1994). 35. See, e.g., Amaker v. Weiner,179 F.3d 48 (2d Cir. 1999); Boyd v. Biggers,31 F.3d 279 (5th Cir. 1994).

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