What standard applies to the materiality of evidence withheld from criminal defendants by the government in order to assess whether a due process violation occurred, and should that standard differ based on the strength of the government’s case?
This case will address whether certain undisclosed evidence falls under the standard for prosecutorial disclosures as described by Brady v. Maryland, 373 U.S. 83 (1963). The defendants, Russell Overton and Charles Turner, were convicted of a murder that occurred in 1984 and contend that several pieces of evidence were improperly withheld by the prosecution, resulting in a violation of their Fifth Amendment right to due process. The United States asserts that the evidence in question does not fall within the scope of the Brady standard, and therefore no post-conviction relief is required. The outcome of this case will further articulate the standards of materiality, favorability, and suppression under Brady and elucidate what information a criminal defendant has a constitutional right to know before trial.
Questions as Framed for the Court by the Parties
Whether petitioners' convictions must be set aside under Brady v. Maryland, 373 U.S. 83 (1963).
Christopher and Charles Turner, Clifton Yarborough, Kevin Smith, Levy Rouse, and Timothy Catlett were convicted for the 1984 murder of Catherine Fuller.
Fuller’s beaten and violently sodomized body was found in a garage in an alley. She had suffered massive blunt force injuries. The investigators were unable to recover any physical evidence that could identify the perpetrator, and the medical examiner could not determine from Fuller’s injuries whether she had been attacked by a single attacker or by a large group. The police interviewed over 400 individuals in the area, but the “break” in the case came in late November when Carrie Eleby, a sixteen-year-old PCP user, told a detective that Calvin Alston confessed to committing the murder.
After intense questioning, Alston gave a videotaped confession in which he named Yarborough, Catlett, Overton, and Christopher Turner. Thirteen individuals were eventually indicted as the police came to believe that Fuller was confronted by a large group of teenagers who initially set out to rob her but ended up killing her. Harry Bennett and Calvin Alston pled guilty and agreed to testify for the government.
The government’s case relied on the testimony of the two cooperating witnesses. Bennett and Alston’s recollection of the events differed in some key respects, including who participated in attacking Fuller. They disagreed on Yarborough’s presence and participation in the events and could not agree on who sodomized Fuller. Four other witnesses with significant credibility problems corroborated Bennett and Alston’s account. Two of them, Carrie Eleby and Linda Jacobs, were PCP users. Melvin Montgomery testified to seeing a group of teenagers approaching Fuller, but not the struggle between them. Fourteen-year-old Maurice Thomas testified to seeing a group of people surround Fuller in the alley and one of the defendants strike Fuller, causing her to fall to the ground. Overton, Smith, Christopher and Charles Turner, and Rouse presented alibi defenses.
After deliberating for seven days, the jury found Catlett, Rouse, Smith, Charles Turner, and Webb guilty, but it found Harris and Ruffin not guilty. After two more days of deliberations, the jury found Overton and Christopher Turner guilty.
The convicted individuals maintained their innocence and continued to investigate the case. They discovered that the prosecution withheld information that might have helped their case, including witness sightings of James Blue and James MacMillan, two violent criminals known for victimizing women and sodomizing their victims with objects, around the alley and garage on the day of Fuller’s murder. The police also withheld evidence further impeaching Eleby, who had been on PCP when reviewing police photos and who had coerced her friend, Jacobs, into making false statements to the police.
Christopher and Charles Turner, Rouse, Yarborough, Smith, and Catlett brought an action to vacate their convictions. The D.C. Court of Appeals held that the petitioners failed to show a reasonable probability that the outcome of their trial would have been different if the government had disclosed the withheld evidence in a timely fashion. The case was joined with that of their co-defendant, Overton, and granted certiorari review by the Supreme Court.
IS THE EVIDENCE COVERED BY BRADY?
Charles Turner and Russell Overton argue that Brady v. Maryland, 373 U.S. 83 (1963), requires the prosecution to disclose all evidence that is both favorable and material to the defense or risk constitutional error. Turner and Overton claim that the following three pieces of evidence were material, favorable to the defense, and suppressed by the prosecution: (1) Ammie Davis’s testimony that she and her girlfriend saw James Blue grab the victim on the day of the murder; (2) several individuals’ testimonies implicating known criminal James McMillan or a smaller number of attackers in the crime; and (3) further impeachment evidence of eyewitness Eleby. Turner and Overton claim that the lower courts erroneously applied a higher standard of materiality when determining that this evidence did not fall under Brady. Turner and Overton claim that defendants need only demonstrate a reasonable likelihood, not a legal certainty, that the suppressed evidence would have affected the jury’s verdict, which requires only a small shift in balance between the prosecution and the defense. Turner and Overton claim that access to these pieces of evidence would have enabled them to pursue an alternative perpetrator defense, which they argue would have had a significant impact on the outcome of the trial. Turner and Overton also contend that further impeachment evidence of Eleby, including her PCP use, her fabrication of false testimony, and her encouragement of Kaye Porter to commit perjury, would have seriously injured the strength of the prosecution’s case and made an impact at trial. Turner and Overton pay specific attention to Eleby’s testimony and the materiality of the suppressed impeachment evidence because she was the only eyewitness who did not recant her testimony and may have been the deciding factor between conviction and acquittal.
The United States concurs with Turner and Overton that Brady requires prosecutorial disclosure of evidence that is favorable and material to the defense, but maintains that the prosecution complied with its obligations because the standards for favorability, materiality, and suppression under Brady were not met. The United States maintains that the lower courts applied the traditional Brady standard and correctly concluded that the evidence in question was not material. The United States supports this contention by alleging that Turner and Overton must do more than raise a “mere possibility” of an alternative perpetrator to qualify evidence for Brady disclosure and that the defendants would have failed to do so. The United States contends that the evidence Turner and Overton claim implicates Blue, McMillan, or a smaller number of attackers would not have made an impact at trial for several reasons; Davis’s testimony implicating Blue would likely have not been admissible because Davis was deceased at the time of the trial, and her testimony would not fall into a hearsay exception. The United States rejects Turner and Overton’s claims that they could have located Davis’s girlfriend to corroborate the testimony and further disputes the credibility of Davis’s testimony, even if corroborated and admitted, by highlighting her inconsistent statements and cavalier attitude, which the government argues would have been rejected by the jury. The United States continues to contest the materiality of the McMillan and small group evidence by highlighting all the other evidence the jury would have to reject to find for the defense, including guilty pleas by two codefendants, uncontested eye witness testimony, and Turner and Overton’s own statements. The United States also contends that the testimony implicating McMillian is not favorable to the defense because it does not refute the prosecution’s theory of a large group attack and therefore does nothing to undermine the case against Turner and Overton. The United States also rejects the argument that the prosecution suppressed evidence of McMillan’s later criminal activity because the prosecution cannot violate Brady by failing to disclose evidence that does not exist yet. In contrast to Turner and Overton, the United States minimizes the importance of Eleby’s testimony and the impeachment evidence against her by emphasizing that her PCP use was known to the jury, that she did not fabricate evidence, but merely falsely corroborated testimony, and that the witness she influenced was only a minor element of the case against Turner and Overton.
HOW STRONG IS THE CASE AGAINST TURNER AND OVERTON?
Turner and Overton assert that the United States’ case against them is particularly weak and that this weakness should inform the standard for materiality under Brady v. Maryland. Turner and Overton point to the jury’s declaration that a unanimous vote would be impossible, its protracted deliberations, and the multitude of votes it took prior to reaching a verdict as evidence of the government’s weak case. Turner and Overton also highlight the lack of physical evidence implicating them in the crime and the credibility issues that the government’s witnesses encountered during trial, both of which are particularly relevant to determining whether evidence is covered by Brady. Turner and Overton further call into question the strength of the government’s case by referencing the acquittal of codefendant Harris. Turner and Overton maintain that Harris’s acquittal signals that the jury did not credit the testimonies from two codefendants, Bennett and Alston, who pleaded guilty. Turner and Overton use Harris’s acquittal not only to question the weight the jury afforded Bennett and Alston’s testimonies but also to show that their convictions rested on a single eye witness’s testimony. Turner and Overton emphasize that inconsistent statements, perjury, later recantation, and compelling incentives to testify weaken the credibility of Bennett and Alston’s testimonies, and the government’s case overall, and therefore should alter the standard for materiality under Brady. Next, Turner and Overton argue that the government’s weak case increases the importance of inquiring into the reliability and thoroughness of the police investigation, and thus a wider range of evidence should fall under Brady. Finally, Turner and Overton point to two exculpatory witnesses, Montgomery and Thomas, and their own maintained innocence in the face of significant incentives to plead guilty, as further evidence of the government’s weak case against them.
The United States maintains that its case against Turner and Overton is strong and that, contrary to Turner and Overton’s claim, this was not a marginal case. The United States supports its claim that it has a strong case against Turner and Overton by summarizing the evidence against them: a clear and undisputed description of the crime, testimony from several eye witnesses, statements from two convicted participants, and Turner and Overton’s own corroborating and incriminating statements. The United States asserts that the length of the jury’s deliberations is not indicative of a close case, but rather reflects the complexity of the ten-defendant case spanning six weeks of trial. The United States next refutes the claim that Harris’s acquittal was the result of a weak case by the government by highlighting the unique circumstances in Harris’s case. The United States explains Harris’s acquittal by highlighting his five alibi witnesses and his decision to take the stand in his own defense and further asserts that the testimony by Alston and Bennett was substantially stronger against Turner and Overton. The United States further maintains that the inconsistencies and contradictions in Alston and Bennett’s testimony are the result of a complicated and chaotic attack and that the testimony does not lack credibility because the major details of the crime were corroborated and reliable. The United States also contends that Alston and Bennett’s recantations were correctly deemed “preposterous” by the trial court and should not influence the standard of materiality under Brady. The United States also refutes the fact that the strength of its case should prompt an inquiry into the reliability and thoroughness of its investigation because it pursued any leads in a timely manner, and any undisclosed information would have had a minimal impact on an otherwise strong case. Finally, the United States refutes that Montgomery and Thomas’s testimony is wholly favorable to Turner and Overton because their testimony corroborates the government’s description of the crime and does not necessarily exculpate the defendants.
HOW MUCH EVIDENCE SHOULD THE GOVERNMENT RELEASE TO GIVE DEFENDANTS A FAIR TRIAL?
The Cato Institute, in support of Turner and Overton, points out that the Brady materiality rule considers the criminal trial as the chosen forum for ascertaining the truth about criminal accusations, independent of the prosecutor’s private deliberations. The Cato Institute maintains that attempts to heighten this standard frustrate the purpose of a criminal trial, and advocates that the Supreme Court preserve the current Brady standard. The Innocence Network, in support of Turner and Overton, argues that under this standard, courts cannot suppress plausible alternative perpetrator evidence absent strong objective evidence of guilt. The National Association of Criminal Defense Lawyers (“NACDL”), in support of Turner and Overton, adds that courts should consider the cumulative effect of individual pieces of evidence in crafting a complete narrative.
The Texas Public Policy Foundation, while also supporting Turner and Overton, argues that the materiality standard of review needs to be abandoned due to its conceptual unworkability from the perspective of a prosecutor. TPPF argues that prosecutors are biased by virtue of their job, and even fair-minded prosecutors have cognitive difficulty crediting evidence at odds with their theory of the case as per the disclosure standard set up by Brady. TPPF further argues that this creates a perverse incentive for prosecutors, who may tend to suppress evidence in hopes of later justifying it with materiality. TPPF suggests that even more problematic is the lack of incentives to seek out and disclose evidence.
SHOULD POST-TRIAL EVENTS BE COVERED BY BRADY?
A group of former prosecutors, in support of Turner and Overton, argue that post-trial events in all cases should be included by the Brady rule to uphold the constitutional principle of fairness that undergirds Brady. Former Prosecutors suggest that post-trial events should be used in a probative way to show that suppressed evidence would have affected the outcome of the trial. The Innocence Network contends that ignoring post-trial events that help to demonstrate the materiality of pre-trial evidence encourages prosecutors to be biased towards excluding potentially exculpatory evidence.
The Center on Wrongful Convictions of Youth (“the Center”), in support of Turner and Overton, advocates a contextual approach to the determination of materiality in cases with defendants who are minors because of the increased risk of false confessions and untruthful evidence. The Center argues that unreliable or contaminated evidence that was obtained using coercive tactics from minors has a sufficient risk factor to justify allowing more exculpatory evidence, even where that evidence is post-trial.
SHOULD PETITIONERS SEEKING RELIEF UNDER BRADY BEAR THE BURDEN OF PROOF?
The Cato Institute argues that the Court should keep the petitioner’s burden of proof under the materiality standard as articulated in Kyles v. Whittley, 514 U.S. 419 (1995). The Cato Institute explains that this standard obligates the defendant to show that the withheld evidence “undermines confidence in the outcome of the trial” rather than requiring the defendant to show that the suppressed evidence “would have led the jury to doubt virtually everything that the government’s eyewitness said about the crime” as stated by the lower court. According to the Cato Institute, heightening the standard undermines the central reasoning in Brady, which focuses on “truth seeking as a function of the trial process.”
TPPF argues that the petitioner’s burden of showing that the suppressed evidence was material upon appeal accounts for the low reversal rate (14–21%) of Brady challenges. Instead, TPPF argues that the standard should be replaced by the Chapman harmless error standard. TPPF contends that this would shift the burden upon the government in establishing that the suppressed evidence could only result in a harmless error. Wilfredo Lora, a Dominican immigrant who was deported due to a conviction he hopes to challenge under Brady, points out that courts receiving successive motions to set aside convictions under 28 U.S.C. 2255 are not required to direct the government to submit a substantive response. As a result, Lora argues that there is no evidentiary basis upon which a district can decide whether it will allow or deny the petitioner permission to seek relief.
- Adam Liptak, Justices to Hear Cases on Withheld Evidence and Bad Advice, New York Times (Dec. 14, 2016).
- Bert, The U.S. Supreme Court Agrees to Review Brady Allegations in Decades Old Washington D.C. Murder, Prosecutorial Accountability (Jan. 1, 2017).
- Lyle Denniston, Court to Clarify Suspects Brady Rights, Constitution Daily (Dec. 15, 2016).