In what should not be, but is, an earth-shattering decision, the Second Circuit did the unthinkable. In the en banc decision in Poventud v. City of New York, the court held that a defendant who had been denied Brady with a reasonable probability of having affected the outcome of his case could maintain a §1983 action even though he subsequently took a plea of convenience.

Poventud served nine years out of a ten to 20 year sentence before his conviction for attempted murder was reversed.  It was learned during the retrial of a co-defendant that a key witness identified another person as the shooter, but that this exculpatory information was not disclosed.  After his conviction was vacated, he was offered a plea to one year, which would preclude a prosecution appeal of the reversal or retrial. It means time served, and he would walk out. Poventud took the deal.

After, he sued for the violation of his civil rights for denial of the Brady material.  In the Southern District of New York, Judge Deborah Batts dismissed under Heck v. Humphrey, requiring a termination in favor of the accused as a predicate to maintaining the action, and concluding that his allocution on his guilty plea precluded his claim of damage for the Brady violation.

The original circuit panel reversed, holding that Heck didn’t apply and the defendant “could sue under § 1983 because he was no longer in custody and had no access to federal habeas relief.”  In one of its extremely rare en banc rulings, the full circuit vacated the panel’s opinion, but similarly reversed Judge Batts’ dismissal.

The opinion, by Judge Richard Wesley, stated (with emphasis added and paragraph breaks for readability):

Herein lies the district court’s error. The district court treated Poventud’s case as though it were a malicious prosecution claim. It measured his admission in the subsequent plea agreement against his claims in his Brady submission. Because his 2006 plea was at odds with his alibi defense at his 1998 trial, Judge Batts concluded that his recovery for a Brady claim would call his plea into question.

That view misunderstands Brady and its correlation to § 1983 claims asserting only violations of the right to due process. The district court’s view incorrectly presumes that, on the facts of this case, the State could violate Poventud’s Brady rights only if Poventud is an innocent man.

This last restriction has no basis in the Brady case law; materiality does not depend on factual innocence, but rather what would have been proven absent the violation. “[T]he scope of a defendant’s [Brady-based] constitutional right[ ]is ultimately defined retrospectively, by reference to the likely effect that the suppression of particular evidence had on the outcome of the trial.”

Even the less-than-innocent are entitled to constitutional rights, so much so that having prevailed upon their deprivation (even if only after the accidental discovery, as seems to always be the case with a Brady denial), a subsequent admission of guilt doesn’t absolve the prosecution of the taint.  This is huge.

The rule was that a guilty defendant could obtain no damages because  he was, well, guilty. The rationale was not that his rights couldn’t be violated, but rather that he was due no compensation since he suffered no loss by dint of guilt. After all, what is a criminal’s loss for having paid the price of his crime?

The flaw of this rationale is that the Constitution applies to the guilty and innocent alike, and the deprivation of constitutional rights, in this case Brady, of the guilty defendant must either carry a consequence or be rendered a nullity.  A right without a remedy is no right at all.

In Poventud, the court concluded that the prosecutor had no idea that the witness had identified another person as the shooter in a photo array, and did not intentionally deny the Brady material. But at the co-defendant’s retrial, when the witness testified as to the ID, it became clear that key evidence to Poventud’s defense was denied, enough so as to prevail on that most elusive of claims.

But the underpinning of this decision is also remarkable:  Poventud, rather than face a prosecution appeal or retrial, took a plea that allowed him to walk out of prison.  One would ordinarily expect the fiery rhetoric of the guilty in a decision such as this, but it’s not there. Its absence speaks volumes.

While the circuit didn’t go so far as to concede the fallacy, there doesn’t seem to be any doubt that the judges tacitly acknowledge that Poventud took a plea of convenience, opting to plead guilty to get out of prison and willing to tell whatever story was necessary to accomplish that end.  It’s not that Poventud was a guilty man, but having spent nine years in prison already, he would do whatever he had to do to get out now, without further risk, and end his nightmare.

Indeed, in addressing the dissenting opinions, Judge Wesley writes in footnote 17:

The dissents ignore the important fact that Poventud’s guilty plea in 2006 was not to the same charges for which he was originally convicted and sentenced to prison. Judge Livingston’s reprisal of Judge Jacob’s lengthy dissent, in particular, ignores that Poventud was lawfully convicted only of a class E felony and sentenced to one year’s imprisonment. Guilt of a lesser crime is not inconsistent with the existence of reasonable doubt at an earlier trial for a more serious crime. Poventud’s later plea does confirm some criminal liability for the acts that occurred in Duopo’s cab, but it does not reaffirm that he would indisputably have been found guilty of attempted murder and sentenced to at least nine years’imprisonment at his 1998 trial.

Judge Livingston’s dissent also reveals an inability or unwillingness to distinguish between an argument that Poventud is innocent and an argument that the State did not carry its burden of proving him guilty beyond a reasonable doubt. This is why she argues that Poventud’s later-established presence at the scene of the crime precludes him from alleging that the State did not prove him guilty beyond a reasonable doubt.

That the majority of the en banc court supported Poventud’s right to a remedy for his constitutional deprivation, despite his guilty plea and despite his inability to prove actual innocence, is about as clear an acknowledgement that they understood the plea to be one of convenience rather than a meaningful admission of guilt, eliminating all sympathy and adhering to the harshness of denying the guilty any remedy for constitutional deprivations.