There’s been much written about the Fifth Circuit’s en banc ruling in Alvarez v. Brownsville, condemning the holding that there is no right to be provided Brady material before taking a plea. The usual suspects raise the usual reasons.
How can that be? After all, plea bargaining is not some ancillary feature to the criminal-justice system. In many ways, it is the modern criminal-justice system. More than 95 percent of criminal cases are resolved through plea agreements in the state and federal systems. Jury trials, for all their ubiquity in American films and television shows, are now the exception instead of the rule. The result is a bureaucratized method of dispensing punishment, one that sometimes evades key protections for Americans’ constitutional rights.
The answer to the “how can that be” question is long and complex, and requires one to say things one’s not supposed to say. Or there’s the mythical version, for those who refuse to hear the things one’s not supposed to say.
Plea bargaining’s flaws, as used on a massive scale today, are well established. The practice favors defendants with the financial resources to defend themselves at trial and disfavors poorer defendants who must instead rely on the overburdened public-defender system. Like virtually every other aspect of the criminal-justice system, it punishes non-white defendants more harshly than their white counterparts. Plea bargaining also shifts power away from judges and juries and hands it to state, local, and federal prosecutors instead. In doing so, it subverts the structural protections afforded to defendants by the Constitution.
It’s not that these aren’t serious problems, real problems, but rather that they reflect the fantasy version favored by the insipid. They matter only to the extent that correcting the flaws requires us to be brutishly honest about the problems. Fantasy problems beget fantasy solutions, and, much to the surprise of believers, fail miserably. How can that be? There are no such thing as unicorns, kids, no matter how much you believe there are.
As grandpappy used to say, “rich or poor, it’s good to have money.” And I can confirm that from personal experience. But contrary to the simplistic grasp of the woke, some of the people with vast sums of money, colloquially known as “drug dealers,” crash and burn in court. Money allows lawyers to spend far more time, employ far greater resources, in defense, but it doesn’t make those 32 kilos of coke vanish or the 27 names lower on the indictment decide not to flip. And if the top name belongs to a black or Hispanic face, as it occasionally does, the punishment may not bear upon his lack of privilege as much as his overwhelming evidence of guilt.
But no matter how much money the defendant has, or the color of his skin or the country of his ancestry, there remains a kicker in the Alvarez opinion that’s received almost no scrutiny, as it fails to further the narrative. But of all the issues involved, it’s the one that’s most real to the defense.
4. The Uncovering of the Video Recordings of the Incident
Approximately four years after Alvarez began to serve his prison sentence, the videos of Alvarez’s incident with Officer Arias surfaced during discovery for an unrelated § 1983 case. After the discovery of the videos, Alvarez filed an application for a writ of habeas corpus in Texas state court, claiming that the Brownsville Police Department had withheld the videos in violation of Brady.
When a person is arrested, unicorns don’t trot to the prosecutor’s office carrying bags of Brady. Somebody has to seek them, find them, disclose them to the prosecutor and, assuming the prosecutor decides, based on his keen sense of justice, that they’re worthy of disclosure, disclose them to the defense. But what if any one of these things doesn’t happen?
Rarely does Brady prove actual innocence. Most of the time, it’s the Giglio flavor, useful to impeach a prosecution witness rather than to exculpate the defendant. Upon discovery, courts can either find the error to be harmless, meaning that in the eyes of the appellate judges, it wouldn’t have had a probability of resulting in a different verdict, or remand for a new trial. It’s not that a trial mulligan isn’t better than nothing, but it’s no guarantee of a win. Not even Giglio material makes that dead body come back to life.
But in Alvarez, the video that proves innocence wasn’t discovered and disclosed in the ordinary course of investigation and prosecution. It came to light in an unrelated § 1983 case. Pure chance. Pure luck. Neither vast wealth nor Mayflower heritage would have changed that, or made it happen. It’s almost invariably a matter of pure, dumb, luck.
There is a duty on the part of the prosecution to seek out information and evidence that “tends” to exculpate the defendant or impeach a witness. Even if we assume that prosecutors try, in good faith, to fulfill their duty, and then pile on the assumption that their eyes will see things as exculpatory or impeachment as the defense counsel’s eye would, particularly given that the prosecutors have no clue what the defense has planned and thus can’t assess the full value even if they wanted to, it almost never seems to happen.
It’s a zebra, if not a unicorn, when a prosecutor hands over Brady on the eve of trial. We demand it. They shrug. “Sorry, but no Brady today.” And that’s that. That’s that when you’re about to pick a jury. It’s unlikely to be different when you’re about to cop a plea.
Years ago, I wrote about how Brady was Wild Bill Douglas’ joke on the defense, this fabulous right that was always just outside our reach. To hold that it’s acceptable for a defendant to cop that plea of convenience, unaware that there’s evidence that completely exonerates him, is outrageous, a paean to the fiction that only guilty people plead guilty. Nobody believes that crap. But if ending wrongful convictions is your gig, then face up to the real problem: if we ever learn that concealed Brady exists, it wasn’t privilege but kismet.