A foundational myth in the myriad considerations when a defendant “chooses” to cop a plea is that it’s consensual. That means, knowing, intelligent and voluntary. And that’s a dubious proposition at best, relying on two primary things: First, that defense counsel adequately and well advises his client. Second, that both lawyer and client possess sufficient information to make a “knowing, intelligent and voluntary” decision.
Hear that sound? That’s Wild Bill Douglas chuckling in his grave.
Taking a page from the U.S. Supreme Court’s heinous playbook, a panel of the Fifth Circuit in June of 2017 reversed a $2 million judgment a jury awarded George Alvarez. In 2006, Mr. Alvarez pled* guilty to assaulting a public servant—a charge levied against him by a detention officer at the Brownsville Police Department (BPD) who claimed that Alvarez attacked him in the jail. Years into his prison sentence, Mr. Alvarez learned of a BPD videotape which proved that the officer lied when he claimed Alvarez assaulted him.
On the bright side, revelation of the video, even post-plea (not that anyone would ever plead guilty if they were innocent, of course), resulted in Alvarez being declared actually innocent. But then came the suit for damages, the cost of putting innocent guys in prison.
Although he prevailed at trial, the appellate panel reversed, holding that the prevailing case law in the Fifth Circuit does not recognize a due process right to disclosure of exculpatory information in the pre-trial plea process.
The issue is before the Fifth Circuit, en banc, for rehearing, the issue being whether the duty to disclose Brady material arises before the prosecution takes the plea. The problem is that the duty to disclose exculpatory material was established in Brady v. Maryland, but the Supreme Court neglected to provide any mechanism for doing so. When? Where? How? Whatever.
The question the Fifth Circuit must grapple with is not small potatoes. Whether prosecutors need to disclose exculpatory evidence before accepting a defendant’s guilty plea is fundamental. Well over 90% of criminal cases in most jurisdictions result in a plea. As the Supreme Court famously wrote only a few years ago (quoting a renowned law review article): plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” If prosecutors have no constitutional disclosure obligations in these cases, it would be difficult to say they have any meaningful obligations at all.
Or to put it slightly more succinctly, since the vast majority of prosecutions end with a plea, Brady doesn’t help if the duty doesn’t arise until trial.
If all this strikes you as utterly inane, flying in the face of the notion that guilty pleas must be consensual, and that no one can make a knowing decision to take the deal rather than go to trial without knowing that there’s hard proof of innocence that the prosecutor is holding in his back pocket, it is.
So that’s the argument against the requirement that no guilty plea should be taken until after Brady is revealed? They’re busy. It’s hard. And what sort of idiot would take a plea if he wasn’t guilty anyway?
After all, if the Supremes held that the Constitution required disclosure of exculpatory material in advance of a guilty plea, and that a knowing, intelligent and voluntary decision couldn’t constitutionally be made in the absence of disclosure of exculpatory material, it would have said so. And it didn’t.
*Lawyers tend to use the word “pleaded.”