The U.S. Supreme Court handed down its opinion in the consolidated cases of Turner v. United States and Overton v. United States last week, rejecting the defendant’s “Brady” claims and affirming their convictions. The Court focussed on whether there was a reasonable probability that the disclosure of the exculpatory evidence would have led to a different verdict— the majority concluded that the suppressed evidence “is too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards.” The conclusion is particularly troubling since a lot of evidence was suppressed in the case, and because the opportunity to make an important statement about prosecutorial accountability was missed.

From the amicus briefs:

Former prosecutors’ brief (34 of them):

• Public confidence in the criminal justice system is particularly threatened at this time
• Based on experience, this is not a close case—the Petitioners should win new trials
• Prosecutorial suppression of exculpatory evidence is a perennial problem
• The suppressed evidence here was quintessential Brady material

Cato Institute brief:

• The Court should not permit lower courts to implicitly raise threshold for materiality; the court below “severe misapplied” materiality standard in this case
• Lower courts keep getting Brady materiality wrong and SCOTUS has had to keep intervening
• Brady violations are too common, and the ruling below encourages more of them

Brief for Texas Public Policy Foundation, FreedomWorks, Cause of Action Institute, and American Legislative Exchange Council:

• The Court should replace its materiality test with the Chapman harmless-error standard
• Long-running efforts to fix the Brady materiality have failed; the standard is susceptible to narrow reading and application
• The Department of Justice has resisted reform efforts to broaden the prosecutorial duty to disclose
• Court should make the prosecutors’ constitutional duty to disclose clear—all favorable evidence should be turned over
• Requiring prosecutors to turn over all exculpatory evidence, regardless of materiality, solves the deep problem of asking prosecutors to apply materiality test in a pre-trial anticipatory posture

Innocence Network brief:

• Brady promotes truth-seeking and fair trials
• This case involves quintessential Brady material, and Brady material is key to preventing wrongful convictions
• Evidence pointing to other possible perpetrators is of “paramount value”
• This sort of alternate-perpetrator evidence should be considered presumptively material, particularly where physical evidence is lacking
• Courts can, should, and do consider evidence discovered after trial when conducting Brady analyses

National Association of Criminal Defense Lawyers brief:

• Defense attorneys could have used suppressed evidence to create a compelling and coherent narrative that the alternate perpetrator was responsible for the crime
• The decision below improperly minimized the importance of each piece of exculpatory evidence
• By withholding evidence, the Government was able to turn the defendants against each other rather than enabling them to come up with a cohesive strategy

Center on Wrongful Convictions of Youth:

• False confessions cause wrongful convictions
• This case presents the hallmarks of false confessions
• The majority opinion below assumed the confession was legitimate
• The Brady evidence of another possible perpetrator would help show a confession is false

Brief filed on behalf of Wilfredo Lora by G.W. Law School Dean Alan Morrison:

• The Government should bear the burden of demonstrating why suppressed evidence did not influence the verdict

Art collector Agnes Gund recently sold her 1962 Roy Lichtenstein “Masterpiece” for $165 million, among the 15 highest known prices ever paid for an artwork, and used the proceeds to to create a fund that supports criminal justice reform and seeks to reduce mass incarceration in the United States.

The Art for Justice Fund — to be announced Monday at the Museum of Modern Art, where Ms. Gund is president emerita — will start with $100 million of the proceeds from the Lichtenstein.

Former Dallas Police Chief David Brown is publishing a book, Called To Rise, detailing his 33-year-career in law enforcement and suggesting directions for the next generation of policing. In an interview with The Crime Report, Chief Brown discusses criminal justice reform:

“I understand how people may not get it initially, including people who are policy makers. I [came] into the profession without a full range of knowledge and experience on what the shortcomings of traditional policing does to the community. I fully understand, for example, Attorney General Jeff Sessions wanting to revert (to tough sentencing guidelines). He doesn’t have that experience, so it just seems like the way to fight crime is to just lock people up. We know through research and experience that we weren’t any safer when we are in a “lock them up, tough-on-crime culture.” But human nature sometimes drives us to make decisions not based on facts. People generally sense that if you put a bad guy in jail, they’ll be safer, when that is absolutely not the case.

You have to find a way to peel back the layers, and find root causes, and mitigate the root causes where they occur, whether that’s mental illness, drug addiction, job training, opportunities in the community, or economic development. You have to find those root causes to have a really clean sense of what would make us safer, what impacts these communities. We criminalize poverty, we criminalize mental illness, we criminalize drug addiction, and those are treatable things that we can resolve with policy. Handcuffs are not the solution.”

The Nevada legislature passed two laws last week designed to counter prosecutorial misconduct – or at least give some defendants the ability to undo suspect plea agreements. Unfortunately, one was substantially gutted under pressure from prosecutors and police.

The bill that passed after being substantially watered down was AB376. If passed as originally drafted, it could have exacted penalties for the misconduct like withholding evidence, requiring prosecutors to share evidence with the defense 30 days prior to trial or risk exclusion, broadening the scope of favorable evidence they are required to share and mandating that courts dismiss charges when prosecutors showed bad faith in failing to turn evidence over. After objections from prosecutors and police, all that survived was a requirement that prosecutors press charges within 72 hours against defendants in custody.

Another bill allowing certain defendants to undo plea agreements, supported by prosecutors, also passed and was signed into law by the governor.