White Collar Criminal Defense Attorney
Case Consultation

Understanding the Brady Principle

“For [many] years I have watched the great stars march and wondered if I would be alive to watch them another day. I have died a thousand deaths during the past years. Each day I die a little more. I am no longer captain of my fate. My fate now rests with lawyers and judges and…should all else fail, with governors. And, if I have faith, with God. But it is hard for me to have faith, as it has no mass…. I need something tangible, something I can reach out to and feel its solidness. Continual monotony and regimentation destroys faith. It will in time destroy the mind…. I am alone, without love, without friends, without hope. My only companion is fear, and fear is deaf and dumb. It walks into the cell, unbidden, and it sits watching. Sometimes…I hear footsteps and I wonder if someone is coming with good news. They have me caged, I wait their pleasure.”

                                                          – John Leo Brady; Between Life and Death, 295-96.             

The Brady Principle

The Brady principle is a “rule of fairness.” In the landmark case of Brady v. Maryland, John Leo Brady and a companion were both convicted of first-degree murder and sentenced to death. The companion made a series of statements, one of which indicated that it was he, and not Brady, who actually committed the murder.  Prosecutors turned over all of the companion’s statements except the one that exculpated Brady.   In 1963, the United States Supreme Court ruled that suppression of evidence favorable to the accused by the prosecution violates constitutional due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The motivating force behind the Supreme Court’s decision in Brady was the belief that “society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” The Court went on further in Brady to state that a prosecutor should not be the “architect of a proceeding that does not comport with standards of justice.” Brady, 373 U.S. at 87- 88.  Brady’s progeny has expanded and broadened the duty of the prosecutor by establishing that an individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.

The Burden is on the Defendant

A criminal defendant alleging a Brady violation bears the burden to show prejudice, to show a reasonable probability that the undisclosed evidence would have produced a different verdict. To establish a Brady violation, the defendant must show that the evidence at issue was favorable to the accused, either because it is exculpatory or is impeaching; that the evidence was suppressed, willfully or inadvertently by the state; because the evidence was material, its suppression resulted in prejudice; and the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. 667 (1985); U.S. v. Agurs, 427 U.S. 97 (1976); Strickler v. Greene, 527 U.S. 263 (1999).

A state post-conviction or habeas corpus petition is the appropriate way to raise the issue of a Brady claim. If Brady material is discovered after the defendant has not only been convicted, but lost his or her appeal and lost a post-conviction case, the defendant must show cause why he didn’t raise the claim in his first petition and show actual prejudice from the violation.  In Strickler, Supreme Court held that when a defendant files a successor habeas petition under Brady, and proves that the State withheld evidence, that constitutes cause for not presenting the claim earlier.

Examples of Brady Material that must be disclosed

  • Inconsistent descriptions by different witnesses of the criminal or the crime.
  • Pending charges against the police informant.
  • That the police had other leads and information that they failed to follow up on or investigate, that could have pointed the finger at someone other than the defendant.
  • An ongoing investigation of the police informant concerning other crimes.
  • Evidence relevant to mitigating punishment—even though it actually helps establish the defendant’s guilt.

Notable Brady Cases:

Smith v. Cain, 132 S. Ct. 627 (U.S. 2012): Smith was convicted of murdering five people in an armed robbery and sentenced to life in prison without parole.  The decision was based on the testimony of a single eyewitness, who survived the shooting rampage that was committed by several men.  After being convicted, Smith obtained detective’s notes, which contained statements by the witness that conflicted with his testimony identifying him as a perpetrator and indicated he could not identify any of the men involved in the robbery.  The Supreme Court held 8-1 that the failure to disclose the witness’ statements violated Brady.

Connick v. Thompson, 131 S. Ct. 1350 (U.S. 2011): John Thompson was convicted of murder in 1985 and sentenced to death.  After spending 18 years in prison, Thompson’s private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at trial.  His convictions were overturned, and he was awarded $15 million after suing Harry Connick Sr. (Harry Connick Jr.’s father) , the Louisiana district attorney, for inadequately training his prosecutors.  The verdict was overturned by the Supreme Court, with the majority arguing that the District Attorney could not be held responsible for a single action from one of its prosecutors.

In re Morton, 326 S.W.3d 634 (Tex. App. Austin 2010): Michel Morton was released in 2011 after being wrongfully convicted and sentenced to life in prison in Texas for the murder of his wife, Christine Morton. After spending nearly a quarter century in prison, DNA evidence supported his claim of innocence and linked Christine Morton’s murder to another man. Former State District Judge Ken Anderson, who had become a judge, oversaw the wrongful conviction as a prosecutor and was convicted of contempt of court for withholding evidence that not only pointed to Morton’s innocence but allowed a murderer to remain free to kill another woman. Anderson was forced to surrender his license to practice law and served ten days in jail. On May 16, 2013, days after the 50th anniversary of Brady, the Governor of Texas signed Texas Senate Bill 1611, also called the Michael Morton Act, into law. The Act is designed to ensure a more open discovery process and remove barriers to accessing evidence.

United States v. Stevens, 715 F. Supp. 2d 1 (D.D.C. 2009): Senator Ted Stevens’ conviction on seven felony counts of concealing more than a quarter of a million dollars in house renovations and gifts from a powerful oil contractor that lobbied him for government aid was set aside and indictment dismissed.  The senator lost a tight re-election race in 2008, only days after he was convicted.

A whistleblower from within the FBI revealed that prosecutors had withheld potentially favorable evidence to the Alaska senator. A criminal contempt investigation was ordered on the basis of prosecutorial misconduct. United States District Judge Emmet G. Sullivan, who dismissed the case, stated, “In nearly 25 years on the bench, I have never seen anything approaching the mishandling and the misconduct I have seen in this case.”

Kyles v. Whitley, 514 U.S. 419 (1995): Kyles was convicted of first-degree murder and sentenced to death.  Police collected eyewitness statements containing physical descriptions of the attacker which were inconsistent with characteristics of Kyles and did not disclose them to the defense. The Supreme Court imposed an affirmative duty on prosecutors to become aware of and to disclose any favorable evidence held by others acting on the government’s behalf, including the police.

United States v. Bagley, 437 U.S. 667 (1985): Bagley was indicted on firearms and narcotics charges. Defense requested that the prosecution disclose any deals or promises made to witnesses in exchange for their testimony. The prosecution failed to disclose that its two key witnesses worked with the Bureau of Alcohol, Tobacco, and Firearms in an undercover investigation of Bagley.  The Supreme Court held that Brady requires disclosure of impeachment evidence.

United States v. Agurs, 427 U.S. 97 (1976): Agurs was convicted of murder after a trial where the defense argued he had acted in self-defense.  The state had failed to disclose the victim’s criminal record.  The Supreme Court held that prosecutors are obligated to turn over exculpatory evidence, even if defense counsel does not ask for it.

United States v. Giglio, 405 U.S. 150 (1972): A key witness against Giglio testified at trial that he had not received a promise for leniency from the state in return for his testimony.  Unknown to the trial prosecutor, the witness had received a promise of leniency from another prosecutor in the office. The Supreme Court clarified that Brady obligation extends to all prosecutors in the office.  Such offices must create systems to ensure that such information is disclosed.

Contact an Attorney

If you have been wrongly convicted of a crime you require the skillful representation of a criminal defense attorney who has experience in alleging Brady violations. Contact our office today to learn more about the steps that he and his legal team can take to help you in your pursuit of freedom and in clearing your name.