SCOTUS’ Fantasy Trial

The majority in Turner v. United States, which included all but Justices Kagan and Ginsburg (Gorsuch did not participate, which means Sotomayor was singing soprano to Alito’s bass), pulled a shrewd move.

The Government does not contest petitioners’ claim that they withheld evidence [that] was “favorable to the defense.” Petitioners and the Government, however, do contest the materiality of the undisclosed Brady information. Such “evidence is ‘material’ . . . when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469–470. “A ‘reasonable probability’ of a different result” is one in which the suppressed evidence “ ‘undermines confidence in the outcome of the trial.’ ” Kyles v. Whitley, 514 U. S. 419, 434. To make that determination, this Court “evaluate[s]” the withheld evidence “in the context of the entire record.” United States v. Agurs, 427 U. S. 97, 112. Pp. 9–11.

Held? No Brady violation because the favorable evidence deliberately withheld from the defense at trial would not have had a “reasonable probability” of changing the outcome, and was thus not material. See what they did there?

There is an incentive system underlying the majority’s opinion, that if a prosecutor deliberately conceals exculpatory evidence from the defense and obtains a conviction, and decades later, the defense somehow learned of the existence of this withheld Brady (a very unlikely event, but it happens) the worst that can come of it is that the defendants get a new trial, this time with the exculpatory evidence.

But to get to the prosecution’s worst case scenario, the defense has to be lucky enough to somehow find out about the Brady material, and then do what the defense wouldn’t have to do had it been disclosed as the law seemingly requires, show that it had a probability of changing the result. By that time, the defendants may have spent years, if not decades, in prison, so even if a new trial is ordered, and witnesses from years ago are no longer available, the best the defense can hope for is to beat the rap after years lost to the concealment of the Brady material.

As Jessica Brand of the Fair Punishment Project explains, the Supreme Court effectively gave dirty prosecutors a free pass on their concealment of exculpatory evidence.

While everyone—including the government—agreed that prosecutors should have turned over the evidence at trial, the justices upheld the convictions. (The decision was 6–2 because Justice Neil Gorsuch did not participate.) In his opinion, Justice Stephen Breyer wrote that the illegally suppressed evidence was probably not strong enough to overcome the government’s “group attack theory,” the “cornerstone of [its] case.” In other words, no harm, no foul.

Brand attributes this gesture of kindness toward the dirty prosecutors because of their dubious claim that they’ve cleaned up their act.

More broadly, most of the court took comfort in the government’s assurance that, since the U.S. Attorney’s Office adopted a 2006 training manual, it adhered to a “generous policy of discovery,” disclosing any “information that a defendant might wish to use.”

Problem solved? Not so fast, as there remains another piece of this puzzle that is easy to miss, but fortunately Justice Elena Kagan saw it in her  dissent.

Consider two criminal cases. In the first, the government accuses ten defendants of acting together to commit a vicious murder and robbery. At trial, each defendant accepts that the attack occurred almost exactly as the government describes—contending only that he wasn’t part of the rampaging group. The defendants thus undermine each other’s arguments at every turn.

In the second case, the government makes the same arguments as before. But this time, all of the accused adopt a common defense, built around an alternative account of the crime. Armed with new evidence that someone else perpetrated the murder, the defendants vigorously dispute the government’s gang-attack narrative and challenge the credibility of its investigation. The question this case presents is whether such a unified defense, relying on evidence unavailable in the first scenario, had a “reasonable probability” (less than a preponderance) of shifting even one juror’s vote. Cone v. Bell, 556 U. S. 449, 452, 470 (2009); see Kyles v. Whitley, 514 U. S. 419, 434 (1995).

Indeed, this is what makes Justice Sonia Sotomayor’s joining the majority so disturbing, as she is the only justice on the court who did her time in the trenches. Kagan, an academic before doing some appellate arguments, managed to cobble together a scenario where the exculpatory information, witnesses naming someone other than the defendants as the perpetrator, would have a reasonable probability of changing the outcome. Or, in the dulcet tones of the majority, materiality.

But even Kagan’s yeoman effort at imagining the trial use of Brady falls significantly short. Trials are messy. Trials are dynamic. Ask the right question and you get an answer that changes everything. Having exculpatory evidence in hand before trial doesn’t merely allow the defense an opportunity to investigate, but craft a strategy that encompasses the available evidence. It’s not just what the evidence shows, but how the strategy enables the defense to use tactics it didn’t realize were available.

The majority’s assumption is that the materiality of Brady material is based upon the trial happening just as it happened, except plus this bit of information. While this is conceptually possible, it’s almost inconceivable. Trials don’t work that way. Trials are dynamic, in a constant state of flux with each question, each answer, offering infinite paths down which to go. No one, trial judge or lawyers, has the slightest clue how everything will unfold in advance. One word in an answer, one odd facial expression, can change the direction of a trial in ways no one could anticipate.

What, then, would the introduction of exculpatory evidence mean to a trial? Everything? Nothing? Who knows?

That’s the point, that the majority has superimposed its fantasy of how the trial would have played out to rationalize cutting the dirty prosecutor in Turner a break. Whether they’re right on their fantasy is undermined by Kagan’s dissent. But the entirety of the enterprise of Turner is based on a huge, steaming pile of malarkey. Whatever the trial might have looked like had the Brady not been concealed, it would not be the Supreme Court’s fantasy of the exact same trial plus this one piece of evidence.

Every trial lawyer knows that, including Sotomayor, who should have been the justice to explain how trials work instead of joining the majority in cutting the dirty prosecutor a break.

17 thoughts on “SCOTUS’ Fantasy Trial

  1. B. McLeod

    Completely inconsistent with the recent decision in which they allowed post-sentencing withdrawal of a plea in a case of overwhelming evidence of guilt, on the grounds that the defendant might have fought the charge if accurately informed of the possibility of deportation. I think they keep a roulette wheel somewhere in chambers, and they’re using it to decide criminal appeals.

    1. SHG Post author

      Not that it’s entirely fair to compare apples to Chevys, but it seems that the roulette wheel has a prosecutor’s finger either pushing it or pulling it. When there’s no prosecutorial misconduct at stake, the Court allows the defendant a bit more latitude.

  2. Richard Kopf


    Have any of the various US Attorneys in New York (or even just AUSAs) adopted an “open file” policy for mill run cases where defense counsel is invited to review the prosecutor’s charging file early on in the process?

    All the best.


    1. SHG Post author

      It’s more of an individual AUSA position as to what and when to disclose, though none of my cases have ever been mill run cases. That said, I still wouldn’t trust open file discovery, whether because the agents concealed evidence from the AUSA (knowing that the dopey kid would give it up) or just because I’m a skeptical kinda guy who is unwilling to put my client’s life at risk based upon trusting the prosecution.

  3. PseudonymousKid

    Dear Papa,

    Gramps Posner was right after all. Disappointing decision from the Supremes. Have they ever heard of the butterfly effect?


      1. Casual Lurker

        I’ve observed that you like to write. You seem to be pretty good at it. Having spent time in the trenches you’re well equipped to flesh-out the issues, which were well known before the case was heard. Of course, everyone likes to gripe, post hoc.

        And speaking of the butterfly effect, you, no doubt, filed an amicus brief, right? Right?!?!?…

  4. Norahc

    Is there a way to get to the point that a Constitutional violation means the evidence is excluded for good? Or would that entail reversing too many things like parallel construction, Third Party Doctrine, etc…?

    1. SHG Post author

      Not sure what you’re asking, but why would the defense want concealed Brady material to be excluded for good?

  5. John Barleycorn

    See how easy that was!

    “Old peoples music”…. who knew it could be so therapeutic.

  6. Ryan

    All the things that aren’t picked up by the court reporter are just so critical and underappreciated and can be flipped by that nondisclosed evidence. Hell forget the demeanor of the witnesses, the whole feel of the trial imputed to the jury from the demeanor, behavior and reactions of the judge(whose condesending scowl alone can throw a jury trial), the sheriff’s and the lawyers can turn by the introduction of a particular piece of evidence.

    1. SHG Post author

      Kinda pathetic that the Supreme Court justices (except Sotomayor) never experienced any of this.

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