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SCOTUS doesn’t alter Brady v. Maryland

Charles Turner, et al., v. United States, USSC Nos. 15-1503 & 15-1504, 2017 WL 2674152 (June 22, 2017), affirming Turner v. U.S., 116 A.3d 894 (D.C. App. 2015); Scotusblog page (including links to briefs and commentary)

In granting cert in this case the Court told the parties to brief one issue: Whether the convictions of the petitioners must be set aside under Brady v. Maryland, 373 U.S. 83 (1963). We thought the case might be the occasion for the Court to say something important about Brady, but that didn’t happen. The Court simply says the issue before it “is legally simple but factually complex” (slip op. at 11), applies the Brady standard without alteration or elaboration, and concludes the convictions stand.

Turner and seven others were convicted for a notorious D.C. kidnapping, sexual assault, and murder of Catherine Fuller at a trial in which each defendant argued he wasn’t involved and tried to pin blame on his co-defendants. Long after trial the defendants discovered the prosecution had withheld evidence that a person named McMillan had been seen nearby; he was not charged in this case, but was later convicted of very similar offenses. The government also failed to disclose evidence that could have been used to impeach prosecution witnesses. The government conceded it violated Brady, but argued the undisclosed evidence wasn’t “material” because the failure to disclose doesn’t undermine confidence in the outcome of the trial. (Slip op. at 9-10). A majority of the Court agrees:

Considering the withheld evidence “in the context of the entire record,” … we conclude that it is too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards. As petitioners recognize, McMillan’s guilt (or that of any other single, or near single, perpetrator) is inconsistent with petitioners’ guilt only if there was no group attack. But a group attack was the very cornerstone of the Government’s case. The witnesses may have differed on minor details, but virtually every witness to the crime itself agreed as to a main theme: that Fuller was killed by a large group of perpetrators. The evidence at trial was such that, even though petitioners knew that Freeman saw two men enter the alley after he discovered Fuller’s body, that one appeared to have a bulky object hidden under his coat, and that both ran when the police arrived, none of the petitioners attempted to mount a defense that implicated those men as alternative perpetrators acting alone.

…. The problem for petitioners is that their current alternative theory would have had to persuade the jury that both Alston and Bennett falsely confessed to being active participants in a group attack that never occurred; that Yarborough falsely implicated himself in that group attack and, through coordinated effort or coincidence, gave a highly similar account of how it occurred; that Thomas, a disinterested witness who recognized petitioners when he happened upon the attack and heard Catlett refer to it later that night, wholly fabricated his story; that both Eleby and Jacobs likewise testified to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave the park to rob her. (Slip op. at 12-13).

As to the undisclosed impeachment evidence, the Court concludes that “was largely cumulative of impeachment evidence petitioners already had and used at trial” and therefore doesn’t undermine confidence in the verdict. (Slip op. at 13-14).

Kagan (joined by Ginsburg) dissents because “[w]ith the undisclosed evidence, the whole tenor of the trial would have changed. Rather than relying on a ‘not me, maybe them’ defense, … all the defendants would have relentlessly impeached the Government’s (thoroughly impeachable) witnesses and offered the jurors a way to view the crime in a different light. In my view, that could well have flipped one or more jurors—which is all Brady requires.” (Dissent at 2). Contrary to the majority, then, the defense that there was no group attack but that McMillan (and perhaps one accomplice) was responsible “had game-changing potential exactly because it challenged the cornerstone of the Government’s case.” (Dissent at 4). And the Government’s case “wasn’t nearly the slam-dunk the majority suggests. No physical evidence tied any of the defendants to the crime—a highly surprising fact if, as the Government claimed, more than ten people carried out a spur-of-the-moment, rampage-like attack in a confined space.” (Dissent at 5). Add to that the serious credibility problems of the government’s eyewitnesses and the lengthy jury deliberations, and the result is that “[h]ad the defendants offered a unified counter-narrative, based on the withheld evidence, one or more jurors could well have concluded that the Government had not proved its case beyond a reasonable doubt.” (Dissent at 6).

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