The Epidemic of Brady Violations: Explained
By Jessica Brand
In our Explainer series, Fair Punishment Project lawyers help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines — like bail, civil asset forfeiture, or the Brady doctrine — so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.
In 2003, Brooklyn prosecutors charged John Giuca with killing a 19-year-old college student to earn “street cred” with the Ghetto Mafia gang. A jailhouse informant’s testimony claiming that Giuca confessed to him in prison formed a critical piece of the government’s case. At trial, the government insisted that the jailhouse snitch had no deal with the government. That was a lie. Fifteen years later, a court of appeals tossed out Giuca’s murder conviction, finding that the jury may well have acquitted Giuca if it had known the truth.
In courtrooms across America, prosecutors regularly withhold evidence from the defense that could blow holes in their cases. That’s a violation of the Brady doctrine, based on a 1963 Supreme Court ruling that requires them to disclose any information favorable to the defense.
When prosecutors withhold evidence they are duty-bound to turn over, they undermine the Constitution, the Supreme Court’s case law, and the premise of justice.
What is the Brady doctrine?
Under the Supreme Court’s 1963 case Brady v. Maryland, the prosecution has an ironclad duty to disclose, before trial, evidence that could undercut its case — “Brady material.” If the prosecution doesn’t do that, it violates the Constitution. The case involved John Leo Brady, a man convicted of first-degree murder because prosecutors suppressed evidence that his accomplice confessed to the actual killing. The Supreme Court recognized that “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair,” and that a prosecutor should not be the “architect of a proceeding that does not comport with standards of justice.”
What qualifies as Brady material?
Brady material includes any evidence that is favorable to the defense — and that encompasses a lot of information. That means anything that can help the defense attack the prosecution’s case.
The prosecutor is responsible for disclosing anything known by members of the prosecution team , which includes law enforcement, forensic investigators, and other experts. Under Kyles v. Whitley, a case interpreting the Brady doctrine, the government cannot claim ignorance. It must actually find out what information is in the files of the people on whose work and expertise it relies. This rule is important. Making prosecutors immune from Brady when the material is in the police or analysts’ files would create perverse incentives for prosecutors not to know about information favorable to the defense.
Evidence suggesting someone other than the accused committed the crime
In a case that landed before the U.S. Supreme Court during its 2016–17 term, Turner v. United States, for example, prosecutors withheld evidence during a 1985 trial that a witness saw someone other than the defendant lurking around the crime scene, and then fleeing from it, shortly after the murder. That person had a lengthy criminal record, which included committing violent crimes in that part of town. The prosecution never turned over that information, which was clearly Brady material. [Thomas L Dybdahl / The Guardian & Marshall Project]
In a 6–2 opinion, the U.S. Supreme Court later affirmed the conviction, taking comfort in the prosecutor’s claim that they were now carefully guarding their own hen house and had adopted a “generous policy of discovery.” [Jessica Brand / Slate]
Evidence of a witness’s prior inconsistent statements (known as Giglio material)
In 1985, police recovered Bridgett Lamon’s body in a dumpster in east Anaheim, California. They also recovered semen from her vagina. Three months later, police found Catherine Tameny dead in her Anaheim apartment, with semen deposited on her underwear in the bathroom and saliva on her chest. Two decades later, after cold hits revealed various suspects, Lynn Johnson went to trial for the Lamon murder — he matched the semen, and Wendell Lemond went to trial for the Tameny murder — he did not match the semen. Both men were convicted.
Forensic analyst Mary Hong gave critical testimony in both cases, but her testimony could not be reconciled. In the Lamon case, she claimed that the low quantity of semen found meant it had been left there within 24 hours of the crime scene, which made Johnson the likely killer. But 15 months later, in the Tameny case, she testified that the low quantity of semen left on the underwear meant it was deposited more than 24 hours prior to the crime, and so the jury should not worry about the lack of a match with Lemond. Tameny could have had sex with someone else but then, over a day later, Lemond could have murdered her.
The government never disclosed Hong’s inconsistent testimony, but years later, a public defender discovered it. “It’s beyond sick. [In] how many other cases has [Hong] adjusted her opinion so it could work for the prosecution?” the public defender asked. Now, a judge has ordered a briefing on whether the government failed to turn over material Brady evidence — evidence of the examiner’s inconsistent analysis, or, put differently, its flip-flopping. [R. Scott Moxley / OC Weekly]
Evidence of a witness’s motive to lie (Banks v. Dretke)
Witnesses don’t always testify out of the goodness of their hearts, and any reason they might have to gain favor with the prosecution is Brady material. In a 1992 trial, the state of Texas accused Cameron Todd Willingham of killing his children by arson, eventually putting him to death. Not only did the state use now-discredited arson evidence, but the prosecutor also failed to disclose a deal the prosecutor struck with a jailhouse snitch so the snitch could receive a reduction in charges. This should have been disclosed as Brady material. [Jordan Smith / The Intercept] [Radley Balko / Washington Post] [David Grann / The New Yorker]
Information that casts doubt on the credibility of the police
In Baltimore, video uncovered during the summer of 2017 showed what appeared to be police officers planting evidence at a crime scene (they later claimed it was a “reenactment”). That evidence cast serious doubt on the officers’ credibility and on the integrity of their investigation, and therefore qualified as Brady material. [Eric Levenson, Lauren del Valle & Darran Simon / CNN]
Information that casts doubt on a crime lab technician
In San Diego, California, a judge recently reversed Florencio Jose Dominguez’s murder conviction. Four days before trial, the San Diego Police Department Crime Lab changed how it interpreted DNA mixtures — biological evidence containing DNA from more than one person. Under the new DNA interpretation protocols, analysts could draw no conclusions about whether Dominguez contributed to the DNA profile. And yet the DNA analyst — who spearheaded the change — took the stand and testified using the old procedures and declared a match between Dominguez’s known profile and that found at the crime scene without telling the defense about the change in protocol. The defense lawyer learned about it by accident after Dominguez spent five years behind bars. In October 2017, a court reversed Dominguez’s conviction, finding a Brady violation. [Greg Moran / San Diego Union-Tribune]
In Massachusetts, for years, state lab chemist Sonja Farak used many of the drugs she was supposed to be testing, and she did so while at work. Did that compromise the integrity of her work and investigation? You bet. That evidence was therefore Brady material in all the cases where she testified as an expert witness. (The prosecution, however, failed to timely disclose it, which a judge later called a “fraud on the court.”) [Jennifer Laurin / In Justice Today] [Jessica Brand / In Justice Today]
As a general rule: If the defense would want to know about it, it’s probably Brady.
The Effects of Brady Violations Are Serious
Brady violations not only send potentially innocent people to prison, but they reinforce a win-at-all costs mentality that undermines the pursuit of justice.
John Thompson spent 18 years in prison, 14 on death row, convicted of a murder and armed robbery. The Orleans Parish (LA) district attorney’s office suppressed blood evidence that exculpated him, discovered by the defense just before Thompson’s execution date. Released in 2003, he died of a heart attack in 2017, his life in the free world cut short. [Radley Balko / Washington Post]
Michael Wearry was also placed on Louisiana’s death row for a 1998 murder because of the prosecution’s failure to play fair. Their case relied on two eyewitness accounts. After a jury convicted Wearry and sentenced him to death, significant Brady evidence emerged. Contrary to the prosecution’s representations at trial, one of the witnesses had twice sought a more lenient sentence in exchange for his testimony, and the police had told him they would “talk to the DA if he told the truth.” Evidence also showed that the other witness gave an account that was impossible. He accused an accomplice of running, bending, lifting, and crawling into a cargo space. But the prosecutor failed to disclose that the guy had just had knee surgery and couldn’t do any of that. The state also kept mum about a prison informant’s attempt to manipulate other witnesses into giving incriminating statements. In 2016, the Supreme Court reversed Wearry’s death sentence and conviction. [Heidi Kinchen / The Advocate]
And there is the aforementioned Cameron Todd Willingham. As has been well documented, he ended up on death row after prosecutors presented shoddy arson evidence as fact and failed to disclose evidence that its star witness made a deal with the government — the most basic of Brady evidence. In February 2004, the state of Texas executed him. [Maurice Possley / Washington Post]
Why do Brady violations persist?
Ask any public defender in the country, and they will tell you that Brady violations occur regularly in the courthouse. The National Registry of Exonerations estimates that over 50 percent of wrongful convictions occur because of official misconduct.
At best, prosecutors commit Brady violations because they are fallible, and they suffer from confirmation bias, which leads them to focus on evidence that validates what they already believe. At worst, they care only about conviction rates, and, as former Ninth Circuit appellate judge Alex Kozinski believes, “they consider [Brady violations] feathers in their caps.” [Thomas Dybdahl / In Justice Today]
Meanwhile, there are surely cases where evidence is never uncovered, never heard by a judge or a jury, and the defendant remains unaware of its existence. Even when it is uncovered, however, the penalties for prosecutors can be virtually meaningless. Here’s why:
Because prosecutors claim evidence is not “material”
Prosecutors often argue that they only must turn over exculpatory evidence that is “material” — evidence that creates a reasonable probability of a different outcome. There are several problems with this argument.
First, the government is relying on a post-trial standard. When the defense uncovers suppressed evidence after trial, it must show that there is a reasonable probability of a different outcome to obtain a new trial (discussed more later). But the Supreme Court has made clear that while a failure to disclose may only rise to a constitutional violation if the evidence is material, the government’s pretrial disclosure obligations are broader. (Strickler v. Greene, see also the D.C. Court of Appeals in Boyd v. United States)
This makes sense because prosecutors, convinced they have a strong case and that the defendant is guilty, aren’t very good at assessing what evidence might be “material” to the defense. For this reason, the Supreme Court has urged prosecutors to err on the side of disclosure. (Kyles v. Whitley)
Because courts are hesitant to reverse convictions
Courts will only reverse a conviction and send it back for a new trial based on a Brady violation if the suppressed evidence was “material” — if there is a reasonable probability that, had it been disclosed, it could have affected the case’s outcome. There must be a chance, in other words, that confronted with the evidence, at least one juror might have found reasonable doubt. [Lorenzo Johnson / HuffPost]
But courts regularly apply this standard in the strictest way possible. Mario Owens, one of three men on Colorado’s death row, has claimed that prosecutors committed at least 22 Brady violations in his case, including paying witnesses thousands of dollars to testify against him. According to the defense complaint, prosecutors also threatened one of the main witnesses with murder charges if he didn’t testify against Owens. Numerous witnesses received lenient sentences. The prosecutor’s office didn’t dispute this misconduct, but instead argued that evidence of these extensive payments and leniency would not have mattered to the case’s outcome. A judge who heard the claims agreed, and the case will now go up on appeal. [Susan Greene / The Colorado Independent]
It is nearly impossible to sue prosecutors in civil court.
Individual prosecutors are shielded by absolute immunity for “prosecutorial actions.” They have qualified immunity for “administrative” or “investigative” acts — still an exceedingly difficult standard to meet that requires showing a violation of a clearly established statutory or constitutional right. [Alexa Van Brunt / The Guardian] [Will Baude / Washington Post]
Notably, a petition for certiorari filed in January asks the Supreme Court to reconsider its qualified immunity doctrine. In that case, police officers choked a woman to death while trying to get drugs out of her mouth as she sat in the back of the police car. Showing how hard it is to sue prosecutors or the police, the Fifth Circuit found immunity: “Previous law has provided no guidance regarding what is precisely reasonable and what is unreasonable regarding the use of force to an individual’s throat where the individual appears to be concealing something in their mouth.” [Will Baude / Washington Post]
State bar associations rarely discipline bad actors.
In New Orleans, there is a long-standing culture of Brady violations. As of 2015, courts had overturned at least 36 convictions due to prosecutors behaving badly in New Orleans — nine of them involved defendants on death row. [Radley Balko / Washington Post] According to Radley Balko’s investigative report, a defense attorney filed eight complaints with the Office of Disciplinary Council in 2011. It took three and a half years for him to receive notice that the office even received them. [Radley Balko / Washington Post]
Other studies confirm that state bars rarely discipline Brady violators. In 2010, for example, the Northern California Innocence Project found that the state bar “publicly disciplined only one percent of the prosecutors in the 600 in cases in which the courts found prosecutorial misconduct.” [Bidish Sarma / American Constitution Society blog]
Courts are hesitant to impose disciplinary sanctions.
Recently, the Louisiana Supreme Court gave a Vernon Parish assistant district attorney a pass after he explicitly told a detective to remove exculpatory evidence from a police report before turning it over to the defense, and also instructed the trial prosecutor not to turn the information over to the defense. The real police report only came to light during the defendant’s third trial. The Louisiana Supreme Court cleared the prosecutor of misconduct because the evidence came to light during the third trial, and therefore did not affect the case’s outcome. [John Simerman / The New Orleans Advocate]
Prosecutors can avoid admitting misconduct by negotiating deals.
In February 2018, the state of Missouri and the city of St. Louis settled a civil rights lawsuit brought by the family of George Allen Jr., who was wrongfully convicted of killing and raping a woman in 1982. Allen was sentenced to 95 years in prison when he was 26 years old and served nearly 30 years before his conviction was thrown out in 2012 due to Brady violations and new DNA evidence. The state and city defendants would not admit to claims of withholding Brady evidence but agreed to pay nearly $14 million to Allen’s family. [Rachel Lippmann / St. Louis Public Radio]
In New Orleans, the government recently agreed to a reduction in sentence from life without parole to 25 years for Jeremy Burse, accused of shooting a friend during a botched robbery attempt when he was 15. Prosecuting attorney Laura Rodrigue claimed she did this because of the “devastating losses” both families suffered, and that it was part of the office’s “restorative justice program.” But in reality, settling the case helped prevent a finding about whether she threatened to prosecute the state’s key witness if he didn’t testify, and then offered him a new attorney for his pending case in exchange for testimony — evidence not disclosed at trial. The witness later wrote that he had not seen the shooting, but Rodrigue “said that they would charge me for having a role in [the] murder if I did not testify. I was very scared.” [Victoria Law / In Justice Today]
And defending bad behavior is not necessarily a hindrance to political advancement.
President Trump nominated Kyle Duncan to the Fifth Circuit Court of Appeals. Duncan defended the prosecutors who sent John Thompson, an innocent man, to Louisiana’s death row by suppressing blood evidence that exculpated him. Before the Supreme Court, Duncan successfully argued that the office should bear no liability for actions that kept Thompson in prison for 18 years. [Laverne Thompson / New York Times]
Some places have rules that protect bad actors — especially when they are police. In Los Angeles, the sheriff’s department has a list of 300 deputies who have a history of lying and misconduct — evidence that could undermine their credibility on the stand. Some of these individuals are accused of lying to cover up their own illegal use of force. But the list is secret. Even prosecutors don’t have access to it. The Supreme Court of California is set to review whether this is constitutional in 2018, which could have ripple effects across the state, where similar police protections apply. [Maya Lau, Ben Poston, & Corina Knoll / Los Angeles Times]
Efforts to curb Brady violations
In several cases, defendants have successfully challenged Brady violations and won their freedom. And occasionally, the prosecutors who failed to disclose information have faced repercussions.
In Virginia in 2011, a U.S. District Court overturned Justin Wolfe’s capital murder conviction after the prosecution’s key witness revealed that police strong-armed him into testifying and fed him information about the case — again, Brady evidence that should have been disclosed. [Dahlia Lithwick / Slate]
In New Orleans, Robert Jones is currently suing the city after he spent 23 years in jail for a rape and murder he did not commit. He alleges that since the 1970s, NOLA prosecutors have buried evidence favorable to the defense in at least 45 prosecutions. That includes his case, where prosecutors withheld evidence strongly indicating that a different man, Lester Jones (no relation), committed the rape and murder. The victim’s description of the attacker matched Lester; the rape took place near Lester’s home; Lester possessed jewelry from the robbery; Lester himself had made a statement implicating Robert Jones but recanted it before trial; and the crime was part of a series of attacks matching two committed by Lester — and a third similar attack occurred after police had already arrested and jailed Robert. Robert Jones served more than 23 years in jail before a judge overturned his conviction. [Michael Wines / New York Times]
Also in New Orleans, the district attorney’s office agreed to the release of Albert Wolfe after an undisclosed police report cast serious doubt on his murder conviction. In the report, the government’s star witness, and the only witness who tied Wolfe to the murder, gave a vastly different account than he did at trial. At the age of 43, Wolfe was released after spending 22 years behind bars. [Matt Sledge / New Orleans Advocate]
In Orange County, California, law enforcement has run an extensive and systematic snitch operation, secretly placing a few informants in jail next to different defendants awaiting trial, hoping to obtain confessions. The informants, accused of murder themselves, hoped for leniency. The prosecution did not disclose what law enforcement had done. As a result, a judge removed the entire Orange County district attorney’s office from a high-profile death penalty prosecution and precluded the government from seeking the death penalty. In December 2016, federal officials placed the office of Orange County District Attorney Tony Rackauckas under investigation. [R. Scott Moxley / OC Weekly]
In Bexar County, Texas, DA Nico LaHood threatened two defense attorneys after they uncovered potential Brady violations during trial and suggested they would ask for a mistrial and a bar to future prosecution. LaHood claimed he would shut down their practices for requesting such a remedy, and at a hearing, the judge said she feared physical violence. One of the lawyers he threatened defeated LaHood in the 2018 Democratic primary. [Brian Chasnoff / San Antonio Express-News] [Larry Hannan / In Justice Today]
