Hold onto the Brady rule

Posted: Jun 27, 2006 12:01 AM

More than 40 years have passed since Justice William O. Douglas wrote the Supreme Court's opinion in Brady v. Maryland, but its value as a check against overzealous prosecutors remains undiminished. We had a reminder of this protection in a little-noticed order from the court a week ago.

In an unsigned opinion, the court directed the Supreme Court of Appeals of West Virginia to take a second look at the case of Denver A. Youngblood Jr. Three years ago a jury convicted him of sexual assault. Several months after his trial ended with a sentence of 26 years in prison, it became evident that the state had withheld significant evidence in his favor. Under what is known as the Brady Rule he moved to set aside the verdict.

Youngblood argued, unsuccessfully, that an investigator had discovered "new and exculpatory evidence, in the form of a graphically explicit note." A state trooper had seen the note but declined to take possession of it. The note, which the Supreme Court chastely declined to quote, squarely contradicted the state's account of the incident and directly supported Youngblood's defense of consensual sex.

In their petition to the high court, lawyers for Youngblood cite to the seminal case of John Brady in Maryland in 1963. Let me summarize: John Brady, 25, fell in love with Mrs. Nancy B. When it became evident that she was expecting his child, he panicked. He needed money, presumably for an abortion. Somehow he enlisted Nancy's brother Donald in a scheme to steal a car and rob a bank.

The plot evidently failed in every way. The conspirators stole a car and kidnapped the owner, William Brooks. They drove him a few miles away and then strangled him. Promptly apprehended, they went separately on trial for Brooks' murder in the summer of 1958. Both would be found guilty and both would be sentenced to death.

Brady was tried first. Donald had made five different confessions, the last of them specifically admitting his own primary role in the killing. The prosecution sat on this evidence at Brady's trial but it soon surfaced. Brady then moved for a reduction in his sentence, but the Maryland courts turned him down. Justice Douglas' landmark opinion in Brady's favor came down in May 1963.

Thus emerged the Brady Rule. It requires prosecutors to turn over to the defense any evidence that might tend to negate guilt or reduce punishment. Said Justice Douglas, "Society wins not only when the guilty are convicted, but when criminal trials are fair." He added, "Our system of justice suffers when any accused is treated unjustly."

Since then the Brady Rule has been invoked in hundreds of trials, often to the discomfiture of prosecutors and the pleasure of counsel for the defense.

In 1995, to cite a representative example, the Supreme Court voted 5-4 to order a new trial for Curtis Lee Kyles in a New Orleans murder case. The government prosecutor had failed in his duty to turn over to the defense certain favorable evidence known to police. Justice Antonin Scalia filed a lively dissent. He said that Justice David Souter, writing for the majority, "having improvidently decided to review the facts of this case, goes on to get the facts wrong."

In 1999, Justice John Paul Stevens spoke for a 7-2 court in a case arising from the murder of Leanne Whitlock, a student at James Madison University in Virginia. On a January night in 1990, two thugs abducted her, raped her repeatedly, and finally killed her by crushing her head with a 63-pound boulder. The defendants were caught almost immediately, tried separately and sentenced to death. Much later it appeared that the prosecution knowingly had withheld some critical evidence. A U.S. District Court vacated the conviction of Tommy David Strickler, but the 4th U.S. Circuit reversed and eventually the Supreme Court agreed that the sentence should be affirmed.

Justice Stevens summed up the Brady Rule: "The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment." Then Stevens watered down his explanation. The prosecution's failure to disclose must be "so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."

Last week's order in the Youngblood case will not mark an end to appeals based upon the Brady Rule. It's a good rule, though it doesn't always work in a defendant's favor. Preserve it!