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In July 2018, NACDL published the groundbreaking report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.{1} 1 Available at https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct. The report examined specific cases, data and statistics to explain the virtual elimination of criminal trials and the massive rise in guilty pleas. Over the last 30 years, trial rates have fallen from more than 20 percent to three percent of state and federal criminal cases.{2} 2 Id. at 3, 14. The remaining 97 percent of cases were resolved through the plea bargaining process. Indeed, the Supreme Court acknowledged in two recent opinions that plea bargaining is so “central” to our system of criminal justice that the Sixth Amendment protects criminal defendants from ineffective legal representation during plea negotiations with the government.{3} 3 Lafler v. Cooper, 566 U.S. 156, 165 (2012); Missouri v. Frye, 566 U.S. 134, 140 (2012). And while plea negotiations have been recognized by the Supreme Court as a “critical stage” in the criminal justice system, an alarming 97 percent of criminal dispositions in this country do not afford defendants uniform due process guarantees of Brady v. Maryland.{4} 4 373 U.S. 83 (1963); see also Lafler, 566 U.S. at 170 (“Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”).
No Right to Giglio During Plea Bargaining
Despite the fact that plea bargaining has replaced trials in the criminal justice system, the federal courts remain divided over how Brady’s due process protections apply at this critical stage. Although Giglio defined two types of material that must be disclosed under Brady — exculpatory and impeachment evidence — the Supreme Court held in United States v. Ruiz that the trial-related rights to impeachment information in Giglio do not apply during plea bargaining — or prior to the entry of a guilty plea.{5} 5 536 U.S. 622, 625 (2002). Remarkably, the Court found that “the Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor.”{6} 6 Id. at 630 (citations omitted) (emphasis added). Ruiz did not, however, resolve the question whether the government must disclose non-impeachment, exculpatory evidence during plea negations.
Prior to Ruiz, the Supreme Court and a majority of state and federal courts treated exculpatory and impeachment evidence as “constitutionally indistinguishable” for purposes of Brady disclosures.{7} 7 See United States v. Bagley, 473 U.S. 667, 676 (1985) (“This Court has rejected any such distinction between impeachment evidence and exculpatory evidence.”); Giglio v. United States, 405 U.S. 150, 153-54 (1972). In United States v. Bagley, the Court held that impeachment evidence as well as exculpatory evidence falls within the Brady rule.{8} 8 Bagley, 473 U.S. at 676. Some courts have construed Ruiz narrowly, including the Seventh and Tenth Circuits, suggesting that the Brady rule would apply to at least exculpatory evidence prior to the entry of a plea.{9} 9 See generally McCann v. Mangialardi, 337 F.3d 782 (7th Cir. 2003) (recognizing a significant distinction between impeachment information and exculpatory evidence of actual innocence); United States v. Dahl, 597 Fed. Appx. 489, 490 (10th Cir. 2015 (reaffirming pre-plea Brady right in light of Ruiz); United States v. Ohiri, 133 Fed. Appx 555, 562 (10th Cir. 2005) (distinguishing Ruiz and recognizing a pre-plea Brady right). Other courts, including the Second, Fourth and Fifth Circuits, have read Ruiz to imply a broader rule that the government has no duty to disclose any Brady material during plea negotiations.{10} 10 See generally United States v. Conroy, 567 F.3d 174, 179 (5th Cir. 2009) (reading Ruiz as making no distinction between impeachment and exculpatory evidence); United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010), as amended (Feb. 9, 2010) (emphasizing that “[t]he Brady right … is a trial right” without deciding the issue); Friedman v. Rehal, 618 F.3d 142 (2d Cir. 2010); Campbell v. Marshall, 769 F.2d 314, 324 (6th Cir. 1985); United States v. Kidding, 560 F.2d 1303, 1313 (7th Cir. 1977); United States v. Victor Teicher & Co., 726 F. Supp. 1424, 1442-43 (S.D.N.Y. 1989); United States v. Ayala, 690 F. Supp. 1014, 1016 (S.D. Fla. 1988); United States v. Wolczik, 480 F. Supp. 1205, 1210 (W.D. Pa. 1979); People v. Simone, 401 N.Y.S.2d 130, 134 (Sup. Ct. 1977), aff’d, 71 A.D.2d 554 (N.Y. App. Div. 1979); White v. United States, 858 F.2d 416, 421-22 (8th Cir. 1988); United States v. Autullo, Nos. 88 CR 91-4, 93 C4415, 1993 WL 453446 (N.D. Ill. Nov. 4, 1993). Those courts have rejected a so-called “unprecedented expansion” of the Brady rule, which they see as focusing solely on protecting the integrity of trials.
So What About Brady?
The Supreme Court was recently presented with an opportunity to resolve this conflict in Alvarez v City of Brownsville.{11} 11 Alvarez v. City of Brownsville, 904 F.3d 382, 387 (5th Cir. 2018), cert. denied sub nom. Alvarez v. City of Brownsville, Tex., 139 S. Ct. 2690 (2019). The facts in Alvarez were relatively simple. Mr. Alvarez was arrested and jailed for public intoxication and suspicion of vehicle burglary. While awaiting arraignment, Mr. Alvarez became involved in an altercation with three jailers after which he was charged with assault on a public servant. A video of the incident later surfaced that established Mr. Alvarez’s actual innocence. The video was never shown to the defense. Mr. Alvarez was advised by his attorney to plead guilty to avoid the possibility of a harsher sentence if found guilty at trial — underscoring the operation of the trial penalty. Three years into his sentence, the video of the altercation surfaced in an unrelated lawsuit and showed the altercation was in fact started by the jailers. Mr. Alvarez was released from prison and filed a Section 1983 civil rights action against the city of Brownsville, alleging in part, that the nondisclosure of the exculpatory evidence ran afoul of the Brady rule. Although Mr. Alvarez secured a verdict in district court, the Fifth Circuit reversed en banc, holding that Brady was a trial right that does not operate at the plea bargaining stage, and rejecting the view that exculpatory evidence (as distinct from impeachment evidence) must be turned over before the entry of a guilty plea.{12} 12 Id. at 392. In an ominous foretelling, the Department of Justice as amicus argued to the en banc court that “[a] criminal defendant does not have a constitutional right to obtain material exculpatory information from the prosecution before pleading guilty.”{13} 13 Brief for the United States as Amicus Curiae, George Alvarez v. City of Brownsville, No. 16-40772, 2017 WL 6453751 *5 (C.A.5, Dec. 13, 2017). Justice Department opposition to a pre-plea Brady right should sound alarm bells over how in the future federal prosecutors will interpret DOJ policy that requires them to turn over exculpatory evidence “reasonably promptly after it is discovered.”{14} 14 United States Attorney’s Manual (USAM), § 9-5.001(D)(1). Ethical rules in a number of states require the same of prosecutors. Any delay in turning over exculpatory evidence can be expected to increase the risk that innocent defendants will be wrongfully convicted.
While the issue seemed ripe to be heard, the Supreme Court denied certiorari on June 10, 2019, leaving unanswered the question of to what extent, if any, Brady applies in the plea bargaining process. The Court’s denial of certiorari is notable in light of its frequent admonition that the Brady rule seeks “to ensure that a miscarriage of justice does not occur” — a risk that exists not just for trial convictions but also for guilty pleas.{15} 15 Bagley, 473 U.S. at 675.
As documented in NACDL’s report on the trial penalty, changes in the criminal justice system such as mandatory minimums and guideline sentencing have amplified the power possessed by prosecutors by allowing them to punish defendants who are convicted after a trial, giving the government license to dictate the terms of plea agreements.{16} 16 The Trial Penalty, at 9; see also Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books. (Nov. 20, 2014).
In the face of rising plea rates, the Supreme Court has increasingly recognized the type of due process protections that apply at the plea stage, thereby increasing the oversight function of the courts. In 2012, the Supreme Court fully extended the right to effective assistance of counsel to defendants during plea negotiations. In Missouri v. Frye, the Court affirmed the principle that plea bargaining is “not some adjunct to the criminal justice system; it is the criminal justice system.”{17} 17 566 U.S. 134, 143-44 (2012). Similarly, in Lafler v. Cooper,{18} 18 Lafler v. Cooper, 566 U.S. 156 (2012). the Court held that “[t]he Sixth Amendment requires effective assistance of counsel at critical stages” of a criminal proceeding. “Its protections,” the Court said, “are not designed simply to protect the trial, even though ‘counsel’s absence [in these stages] may derogate from the accused’s right to a fair trial.’ The constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel’s advice.”{19} 19 Id. at 165 (citation omitted).
According to the National Registry of Exonerations, U.C. Irvine Newkirk Cent. for Science & Soc., Exonerations in 2016 (2017), 45 percent (74/166) of people exonerated in 2016 pleaded guilty to crimes they did not commit.{20} 20 Available at https://www.law.umich.edu/special/exoneration/Pages/about.aspx#. An increasing number of studies conducted on factually innocent defendants who plead guilty are finding that false guilty pleas are even more common for less serious offenses.{21} 21 See John H. Blume & Rebecca K. Helm, The Unexonerated: Factually Innocent Defendants Who Plead Guilty, 100 Cornell L. Rev. 157, 170 (2014); Tina M. Zottoli, Tarika Daftary-Kapur, Georgia M. Winters & Conor Hogan, Plea Discounts, Time Pressures, and False-Guilty Pleas in Youth and Adults Who Pleaded Guilty to Felonies in New York City, 22(3) Psychol. Public Pol’y & L. 250-259 (Aug. 2016); Kevin C. McMunigal, Guilty Pleas, Brady Disclosure, and Wrongful Convictions, 57 Case W. Res. L. Rev. 651 (2006-2007). In light of this data, it is nothing short of shocking that the DOJ and at least two circuits still adhere to the view that Brady is a trial right that does not extend to the pre-plea phase of a criminal case.
Having acknowledged plea bargaining as a critical stage in the judicial process, the Supreme Court should make it clear that Brady’s constitutional protections are not limited to only the three percent of federal defendants who dare to face the risk of harsher punishment to go to trial.{22} 22 This was the case with Lafler, whose sentence after trial was over three times longer than what was offered during plea negotiations. See Lafler, 566 U.S. at 166.
About the Author
Nina J. Ginsberg, a founding partner at DiMuroGinsberg, P.C., in Alexandria, Virginia, has practiced criminal law for more than 35 years. She has represented individuals and corporations in a wide range of matters, with a focus on national security law, white collar investigations and prosecution, financial and securities fraud, computer crime, copyright fraud, and professional ethics.
Nina J. Ginsberg (NACDL Member)
DiMuroGinsberg, P.C.
Alexandria, Virginia
703-684-4333
nginsberg@dimuro.com
www.dimuro.com
@DiMuroGinsberg
