Seventh Circuit Rules - Acquittal Bars a Due Process Civil Brady Claim

Today the Seventh Circuit has finally made clear that an acquittal bars a Due Process Brady Claim and has rejected the "prospective approach" to Brady analysis taken by a majority of the District Court Judges.

“The constitutional violation alleged in this case was a violation of due process for failure to turn over exculpatory/impeaching evidence to the defendant as constitutionally requireda so-called Brady violation. Brady v. Maryland, 373 U.S. 83 (1963).”

A Brady violation can be broken down into three basic elements: (1) the evidence at issue is favorable to the accused, either being exculpatory or impeaching; (2) the evidence must have been suppressed by the government, either willfully or inadvertently; and (3) there is a reasonable probability that prejudice ensuedin other words, “materiality.” 

Two Important discussions on this:

“A lying witness is certainly not a Brady violation. It is already established law that Brady does not extend so far as to provide relief in a situation where “a police officer makes a false statement to a prosecutor.” Harris v. Kuba, 486 F.3d 1010, 1017 (7th Cir. 2007) (“Harris essentially seeks an extension of Brady to provide relief if a police officer makes a false statement to a prosecutor by arguing that an officer is ‘suppressing’ evidence of the truth by making the false statement. This court has already fore- closed this extension.”); see also Sornberger v. City of Knox- 

ville, 434 F.3d 1006, 1029 (7th Cir. 2006) (“The Constitution does not require that police testify truthfully; rather the constitutional rule is that the defendant is entitled to a trial that will enable jurors to determine where the truth lies.” (citations omitted)). 

Moreover, both Hunter and Dominguez were accessible to the defense for the hearing on the motion to suppress the identification in the criminal case. It is Carvajal’s responsibility to probe the witnesses and investigate their versions of the relevant events. There was nothing preventing Carvajal from discovering and drawing out this discrepancy between the officers’ stories during the suppression hearing. 

 

On the Kennelly Prospective Approach:

The district court’s “prospective” test does not seem to accurately capture what Brady protects and misunderstands  the “materiality” requirement in a true Brady violation.

[T]he term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidencethat is, to any suppression of so-called “Brady material”although strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. 

 

 “[T]he question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 289. Therefore, while a prosecutor has to make decisions about what is Brady material prospectively, so to speak, a true constitutional violation is measured with the outcome in mind.2

 

We are equally doubtful, given the considerations in deciding whether to recognize a Bivens cause of action that such an action exists for a Brady violation. Most specifically it seems that there is an “alternative, existing process for protecting the interest”: namely, the disclosure obligation put on the prosecution under Brady itself protects the defendant’s interest in a fair trial, and, the fact that if a criminal defendant does establish a Brady violation he already has a remedy in getting his conviction overturned (of course, an acquittal from the outset, as the defendant received here, is even better). 


Key Footnote:

The plaintiff, as well as Illinois district judges in similar cases, pointed to Carey v. Piphus, 435 U.S. 247 (1978), in support. We find this reliance misplaced. In addressing a high school stu- dent’s suspension without a hearing, the Court concluded that “the denial of procedural due process should be actionable for nominal damages without proof of actual injury.” Id. at 266. In doing so, the Court was focusing on fair process and was not holding that there was any actual damage or harm resulting from the insufficient process. Therefore, there is not a parallel from Carey’s holding to the materiality/prejudice requirement of Brady, which requires more in order to establish the constitutional violation at issue. Additionally, unlike the instant case, Carey was a § 1983 action.

Carvajal v. Dominquez

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