I. INTRODUCTION. SUNIL BHAvEt

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1 THE INNOCENT HAVE RIGHTS TOO: EXPANDING BRADY V. MARYLAND TO PROVIDE THE CRIMINALLY INNOCENT WITH A CAUSE OF ACTION AGAINST POLICE OFFICERS WHO WITHHOLD EXCULPATORY EVIDENCE I. INTRODUCTION SUNIL BHAvEt Imagine being charged with a crime you did not commit. The accusations embarrass you, your spouse, your parents, and your children. You are innocent, so you hire a lawyer-a pricey lawyer-to defend you. You have spent a lot of money to defend your good name and your character and, in the end, you are acquitted. Now suppose that soon after your acquittal you discover that the police withheld exculpatory evidence from the prosecutor in an effort to secure a false conviction. 1 You feel taken advantage of and viot J.D., St. Louis University, As an Illinois Assistant Attorney General, the author represented the defendants in Bielanski v. County of Kane, 550 F.3d 632 (7th Cir. 2008). See infra notes and accompanying text. The analysis in this Article, however, should in no way be construed to reflect the views of the Office of the Illinois Attorney General. 1. Such actions, if taken by a prosecutor in the context of a guilty verdict would, of course, be in derogation of procedural due process under the Fifth and Fourteenth Amendments to the United States Constitution. See Brady v. Maryland, 373 U.S. 83, 87 (1963). The United States Supreme Court, however, has yet to extend the Brady holding to claims that police officers, as opposed to prosecutors, withheld material, exculpatory evidence from the defense. Michael Avery, Paying for Silence: The Liability of Police Officers Under Section 1983 for Suppressing Exculpatory Evidence, 13 TEMP. POL. & Cry. RTS. L. REv. 1, 1-2 (2003). But see Youngblood v. West Virginia, 547 U.S. 867, 870 (2006) (noting lower federal courts permit convicted plaintiffs to bring civil rights Brady claim against police). "[A] Brady suppression occurs when the government fails to turn over even evidence that is 'known only to police investigators and not to the prosecutor.'" Youngblood, 547 U.S. at 870; see also Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008) (stating Brady "duty extends to the police"); Brady v. Dill, 187 F.3d 104, 114 (1st Cir. 1999); Hart v. O'Brien, 127 F.3d 424, (5th Cir. 1997); McMillian v. Johnson, 88 F.3d 1554, 1569 (11th Cir. 1996); Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992); Walker v. Lockhart, 763 F.2d 942, 958 (8th Cir. 1985) ("Police are treated as an arm of the prosecution for Brady purposes."). But see Moldowan v. City of Warren, 578 F.3d 351, (6th Cir. 2009) (Kethledge, J., concurring in the judgment in part, dissenting in part) (cautioning courts not to extend a Brady obligation to police officers because prosecutors already have an obligation to disclose exculpatory evidence in possession of police and the extension of Brady to police would "significantly] increase... lawsuits against police officers").

2 CREIGHTON LAW REVIEW [Vol. 45 lated. Not only have you spent a lot of money to defend yourself, but you also have endured the social stigma attached to being charged with a crime. However, can you sue the police who "wronged" you? And to a broader inquiry, did the police "wrong" you? This Article examines the issue of suing police officers civilly for money damages, pursuant to 42 U.S.C. 1983, under Brady v. Maryland, 2 where the plaintiff has not been convicted of criminal charges. 3 A civil rights suit brought pursuant to 1983 can be an effective way for plaintiffs to redress the constitutional wrongs that police officers have committed against them. 4 Through the possibility of compensatory and punitive damages, 1983 suits against police officers could serve as an effective deterrent against the withholding of exculpatory evidence to obtain convictions. 5 But can a criminally innocent plaintiff sue civilly under Brady? Pursuant to Brady, the Fourteenth Amendment's Due Process Clause requires the disclosure of exculpatory evidence to a criminal defendant if the evidence is "material" to the defendant's guilt or innocence. 6 At this time, five federal circuits have either explicitly rejected civil Brady claims where the plaintiff was not convicted of criminal charges or at least suggested that such claims would not be U.S. 83 (1963). 3. This Article does not discuss Brady liability as it relates to prosecutors. Whether a prosecutor who withholds material, exculpatory evidence from the defense in a criminal case can be sued under any legal theory is an open question. See, e.g., Richard Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. REV. 693, (1987). As far as liability under 42 U.S.C is concerned, the Supreme Court has held that a prosecutor is immune from a suit alleging suppression of exculpatory evidence. Imbler v. Pachtman, 424 U.S. 409, 427 (1976); see Michael Avery, Obstacles to Litigating Civil Claims for Wrongful Conviction: An Overview, 18 B.U. PuB. INT. L.J. 439, 448 (2009) ("[Tlhe police are the only potential parties... who can be held liable when the defendant is not apprised of evidence tending to establish innocence[ I because prosecutors are protected by the doctrine of absolute immunity."); see also Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999); Reid v. New Hampshire, 56 F.3d 332, 336 (1st Cir. 1995); Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994); Casey-El v. Hazel, 863 F.2d 29, 30 (8th Cir. 1988); Myers v. Morris, 810 F.2d 1437, (8th Cir. 1987); Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986); Hillard v. Williams, 540 F.2d 220, (6th Cir. 1976). 4. The very purpose of 1983 suits supports this conclusion. As the Supreme Court has stated, "[T]he basic purpose of a section 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights." Carey v. Piphus, 435 U.S. 247, 254 (1978). But 1983 creates no substantive rights. Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Instead, 1983 may be utilized to redress rights that are established elsewhere. Moldowan v. City of Warren, 578 F.3d 351, 376 (6th Cir. 2009); Sykes, 13 F.3d at 519. For an in-depth analysis of 1983 lawsuits as they relate to police misconduct, see Wayne C. Beyer, Police Misconduct: Principles Governing Money Damages and Other Relief Under 42 U.S.C. 1983, 32 TORT & INS. L.J. 154 (1996). 5. Smith v. Wade, 461 U.S. 30, (1983) (recognizing that punitive damages available for 1983 claims). 6. Brady, 373 U.S. at 87.

3 20111 THE INNOCENT HAVE RIGHTS TOO viable. 7 This Article argues that courts must recognize civil Brady claims where the plaintiff has not been convicted of the underlying criminal charges. Indeed, the United States Supreme Court has never limited a cause of action under Brady to only those plaintiffs who have been convicted of crimes. Truth be told, the Supreme Court's Brady analysis always has been conducted in the context of criminal or postconviction relief proceedings where the remedy sought for a Brady violation is a new trial, not money damages. Accordingly, traditional Brady analysis (in the criminal law setting) is misplaced. Part II of this Article discusses the formulation of the Brady doctrine and the evolution of the prejudicial-error prong within that test. It contends that, regardless of whether withheld exculpatory evidence is "material," or in other words, prejudicial to the victim of a Brady violation, precedent holds that the Due Process Clause of the Fourteenth Amendment is violated whenever the police withhold Brady evidence. Courts must recognize that prejudice under Brady is not of constitutional magnitude; rather, the prejudicial-error analysis under Brady always has been concerned with whether the Brady violation warrants a new criminal trial. However, because a plaintiff alleging a civil Brady claim does not seek a new trial, the absence of a criminal conviction should not bar recovery under Part III analyzes the federal cases that hold that a civil Brady claim cannot be brought pursuant to 1983 without a finding of prejudice. These cases generally hold that no prejudice ensues from the nondisclosure of exculpatory evidence because the plaintiff was never convicted and, hence, did not receive an unfair trial. These cases hold that, at a minimum, Brady-prejudice must involve a conviction based on the withheld evidence Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (finding no Brady liability because "a defendant who is acquitted cannot be said to have been deprived of the right to a fair trial"); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998) ("Plaintiff, however, was never convicted and, therefore, did not suffer the effects of an unfair trial. As such, the facts of this case do not implicate the protections of Brady."); Taylor v. Waters, 81 F.3d 429, (4th Cir. 1996) (holding there is no settled authority establishing the illegality of an officer's conduct in withholding exculpatory evidence from unconvicted plaintiffs); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988) (holding no Brady violation and stating, "Because the underlying criminal proceeding terminated in appellant's favor, he has not been injured by the act of wrongful suppression of exculpatory evidence"); see also Rogala v. District of Columbia, 161 F.3d 44, (D.C. Cir. 1998) (adopting decision of district court that police officers did not violate due process by failing to preserve witness because plaintiffs were never prosecuted). 8. A few cases in the Northern District of Illinois have found Brady liability where a plaintiff has not been convicted. See Mosely v. City of Chicago, No. 6 C 6314, 2007 WL (N.D. Ill. Sept. 4, 2007); Gomez v. Riccio, No. 02 C 5911, 2005 WL (N.D. Ill. Nov. 1, 2005); Craig v. Chi. Police Officers, No. 05 C 0172, 2005 WL (N.D. Ill. June 9, 2005); Kidd v. City of Chicago, No. 02 C 9534, 2003 WL

4 CREIGHTON LAW REVIEW [Vol. 45 Nevertheless, the federal courts' analyses fail to examine the true damages caused by the withholding of exculpatory evidence. The federal courts' premise, that withholding exculpatory evidence violates due process only if the evidence is "prejudicial," or in other words, if disclosure of the evidence would warrant a new criminal trial, ignores the fact that the remedy sought by a civil Brady claim is not a new trial. 9 The damage suffered by a civil Brady plaintiff is not a criminal conviction. It is, instead, the monetary loss associated with facing charges without the benefit of the withheld exculpatory evidence. Thus, in this sense, due process is violated by the mere withholding of exculpatory evidence. 10 Brady introduced the notion of "prejudicial error" in the criminal law setting, not in the civil setting." In the criminal context, or postconviction relief context, it makes sense to apply prejudicial error to Brady claims because the remedy sought in those cases is a new trial. Indeed, a new trial should be granted only if the claimed error was prejudicial. If the error was not prejudicial, then the absence of the error would have had no effect on the outcome of the trial, and a new trial would not be warranted. 12 Under 1983, however, the usual remedy sought is not a new trial but, rather, money damages. 13 Thus, it makes little sense to limit a 1983 suit, premised on a Brady claim, to instances where the withheld evidence would have warranted a new criminal trial. While the extent to which a new trial would have been warranted may be relevant to the amount of damages suffered by the plaintiff, it is irrelevant on the issue of whether the police violated the accused's due (N.D. Ill. Sept. 26, 2003); Carroccia v. Anderson, 249 F. Supp. 2d 1016 (N.D. Ill. 2003). But see Gregory v. Oliver, 226 F. Supp. 2d 943 (N.D. Ill. 2002) (holding no Brady claim where plaintiff acquitted at criminal trial). Standing as district court opinions, these cases have little precedential value. 9. Under Brady analysis in the criminal setting, materiality is defined as 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.'" Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). 10. The cases pre-dating Brady that support this proposition include Mooney v. Holohan, 294 U.S. 103 (1935), Pyle v. Kansas, 317 U.S. 213 (1942), and Alcorta v. Texas, 355 U.S. 28 (1957). 11. Rosen, supra, note 3, at 705 ("[T]he concept of materiality in a Brady case is equivalent to the concepts of prejudice or harmless error courts employ in other areas of criminal law."). 12. Id. at Of course, 1983 "creates no substantive rights" on its own. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (citing Baker v. McCollan, 443 U.S. 137, 140, 144 & n.3 (1979)). But where a constitutional right is violated by a state actor, 1983 "provides remedies for deprivations of [such a] right[ I." Tuttle, 471 U.S. at 816 (citing Baker, 443 U.S. at 140, 144 & n.3 (1979)).

5 20111 THE INNOCENT HAVE RIGHTS TOO process rights. 14 Focusing attention on the remedy sought by the cause of action helps show when prejudicial error is or is not relevant in Brady claims. In civil Brady cases, prejudicial error is irrelevant. Part IV addresses civil Brady claims in the context of a living constitution. In today's society, the prevalence of police misconduct in the form of withholding exculpatory evidence to secure convictions requires a civil remedy, which will deter such misconduct. Thus, under a living constitutional theory, the Fourteenth Amendment should be interpreted to mean that one is denied due process if the police have withheld Brady evidence from one's criminal trial, irrespective of whether a criminal conviction results. 15 Finally Part V offers a conclusion. In the end, allowing plaintiffs-especially criminally innocent ones-who have been denied Brady evidence the right to sue the police for money damages is essential to protecting the Fourteenth Amendment and guaranteeing that future police misconduct will not continue. II. EVOLUTION OF THE BRADY DOCTRINE A. PRE-BRADY PRECEDENT Although Brady v. Maryland 16 is generally considered to be the cornerstone case with respect to the government's obligation to turn over exculpatory evidence, the United States Supreme Court laid the groundwork nearly thirty years earlier in Mooney v. Holohan' 17 for what eventually came to be known as the Brady doctrine. There, Thomas Mooney claimed that his conviction for murder-and subsequent sentence of death-was based on the government's knowing use of perjured testimony and that authorities deliberately suppressed exculpatory evidence. I8 Mooney argued that the deliberate withholding of exculpatory evidence during his criminal trial resulted in a denial of due process of law. 19 The Court analyzed the case under the legal framework of the Due Process Clause of the Fourteenth Amend- 14. In a non-brady context, the plaintiff in Haupt v. T.D. Dillard, 17 F.3d 285, (9th Cir. 1994), claimed a due process violation for denial of a fair criminal trial, pursuant to 1983, notwithstanding his acquittal. The Ninth Circuit held that "[tihe fact that [the plaintiffi ultimately was acquitted speaks only to the amount of damages he suffered; it is irrelevant to whether he has a cause of action." Id. at For a comparison between the development of common law and constitutional interpretation under a living constitutional theory, see DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010). Professor Strauss maintains that virtually all Supreme Court precedent applies the common law and "the text of the Constitution will play, at most, a ceremonial role." Id. at U.S. 83 (1963) U.S. 103 (1935). 18. Mooney v. Holohan, 294 U.S. 103, 110 (1935). 19. Mooney, 294 U.S. at 110.

6 CREIGHTON LAW REVIEW [Vol. 45 ment. 20 The Court held that a criminal defendant is denied due process when a conviction is obtained through suppression of evidence and use of perjured testimony. 2 1 Interestingly, the Court made no reference to the necessity of prejudice to sustain a claim that due process had been violated. In Pyle v. Kansas, 2 2 the Court again took up the issue of the effect of a conviction obtained through perjured testimony and suppression of exculpatory evidence. Harry Pyle was a Kansas prisoner who appealed a state court order denying his petition for writ of habeas corpus. 2 3 While his application to the Court was crudely written, it was clear that he claimed that his conviction was obtained by "testimony known to be perjured, and by the suppression of testimony favorable to him." 24 Citing Mooney, the Court held that Pyle's allegation "sufficiently charge[d] a deprivation of rights guaranteed by the Federal Constitution." 25 Again, the Court held that a criminal defendant is denied due process when exculpatory evidence is suppressed. 26 However, the Court did not engage in any analysis regarding the prejudicial impact of the suppression. 2 7 The Court made no mention of prejudice as an element of a due process claim based on the withholding of exculpatory evidence. 28 In 1957, the Warren Court heard the case of Alcorta v. Texas, 29 in which it addressed the issue of whether the suppression of exculpatory evidence from a criminal defendant violated due process. 30 In Alcorta, a jury convicted Alvaro Alcorta of murder for killing his wife. 3 1 His defense at trial was that he caught his wife and a stranger kissing in a car, and upon seeing this, he snapped and killed her under sudden passion. 3 2 Under then-present Texas law, his crime, if committed under sudden passion, would have resulted in a maximum sentence of five years imprisonment, 3 3 as opposed to the death sentence he received for murder. 34 At his habeas corpus hearing, the prosecutor in 20. Id. at Id. at The Mooney Court did not provide Thomas Mooney with relief, however, because it ultimately held that he failed to exhaust state remedies. Id. at U.S. 213 (1942). 23. Pyle v. Kansas, 317 U.S. 213, 213 (1942). 24. Pyle, 317 U.S. at Id. at Id. 27. See id. 28. See id U.S. 28 (1957). 30. Alcorta v. Texas, 355 U.S. 28, 31 (1957). 31. Alcorta, 355 U.S. at Id. at Id. at Id.

7 20111 THE INNOCENT HAVE RIGHTS TOO his murder trial admitted that the man having an affair with Alcorta's wife confessed to the affair and also confessed to having sex with Alcorta's wife several times prior to her murder. 35 The prosecutor also admitted that he did not disclose the confession to Alcorta at any time prior to the murder conviction. 36 Relying on both Mooney and Pyle, the Court's per curium opinion held that Alcorta had been denied due process of law. 37 Again, the Court found that due process was violated by the mere suppression of exculpatory evidence. 38 Interestingly, it was in Alcorta that the Court for the first time took an unprecedented step by discussing the prejudicial impact that the suppression of evidence had on Alcorta's trial. 39 It is most likely the case, however, that the Court discussed prejudice-which appears as dicta-to emphasize the severity of the constitutional violation. After all, the suppressed evidence was exactly in line with Alcorta's defense during his criminal trial. The Court retreated from its prejudicial impact discussion two years later, however, in Napue v. Illinois, 4 0 and reverted back to its opinion that suppression of exculpatory evidence by itself violates due process. In Napue, the prosecutor cut a deal with its chief witness against the defendant. 4 1 When the prosecutor asked the witness at Henry Napue's trial if he had entered into any deals in exchange for his testimony, the witness denied that a deal had been made. 4 2 There was testimony at trial, however, that an unnamed public defender had agreed to help the witness if he testified. 4 3 The Court framed the question presented as follows: "[W]hether on these facts the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied [the defendant] due process of law in violation of the Fourteenth Amendment to the Constitution of the United States." 44 The Court first reaffirmed its holding in Mooney and Pyle, stating that "a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." 45 Not only did the prosecutor use false evidence, but he also suppressed evidence of the deal with the witness from the defen- 35. Id. at Id. at Id. 38. See id. at Id U.S. 264 (1959). 41. Napue v. Illinois, 360 U.S. 264, 265 (1959). 42. Napue, 360 U.S. at Id. 44. Id. 45. Id. at 269.

8 CREIGHTON LAW REVIEW [Vol. 45 dant. 46 The Court then found that the suppression of the evidence (the deal) violated due process of law, even though the evidence may not have been prejudicial. 47 The Court determined the prosecutor's suppression of evidence alone was sufficient to turn the trial into a "tainted" one. 48 What can be gleaned from pre-brady precedent such as Mooney, Pyle, Alcorta, and Napue is a settled rule: the mere withholding of exculpatory evidence during a criminal prosecution violates due process. 49 Thus, under this precedent, a plaintiff who has had exculpatory evidence withheld from his or her criminal case would be able to state a cause of action against the police under Brady. As the next section demonstrates, that fundamental premise remains unaltered, notwithstanding the introduction of the prejudicial-error test applicable in the criminal law setting. Thus, it is crucial at this juncture to bear in mind the dichotomy between a Brady claim in the criminal setting versus a Brady claim in the civil context. As will be discussed later, 50 it is only in the former set of cases that the prejudicial-error test has any value. B. BRADY AND ITS PROGENY In 1963, the United States Supreme Court issued its seminal opinion, Brady v. Maryland, 51 analyzing the Fourteenth Amendment's Due Process Clause with respect to a claim that exculpatory evidence was suppressed. 52 John Brady and his co-defendant, Mr. 46. Id. 47. See id. at Id. The Court concluded its opinion, however, by stating that the suppression of evidence and false testimony may have affected the outcome of the trial. Id. at 272. Admittedly, this language does speak in terms of "prejudicial impact" of the suppression of evidence, but once again, the Court's use of the word "may" indicates its opinion on this issue was merely dicta. Indeed, the Court did not premise its holding on there being prejudice to the defendant, and only in the final sentence, with no citation of authority, did the court speak in terms of prejudice. 49. In Brady, the Supreme Court noted that the "correct constitutional rule," drawn from Mooney, Pyle, Alcorta, and Napue, was that "'suppression of evidence favorable' to the accused was itself sufficient to amount to a denial of due process." Brady v. Maryland, 373 U.S. 83, (1963) (quoting United States ex rel. Almeida v. Baldi, 195 F.2d 815, 820 (3d Cir. 1952) (emphasis added)). 50. See infra notes and accompanying text U.S. 83 (1963). 52. Today, Brady is considered a landmark decision that transformed criminal discovery, but cases that immediately followed it either ignored its holding or severely marginalized it. See, e.g., Moore v. Illinois, 408 U.S. 786, 798 (1972); Giles v. Maryland, 386 U.S. 66, 74 (1967); Miller v. Pate, 386 U.S. 1, 6-7 (1967). Though Brady still is considered a heroic achievement protecting the constitutional rights of criminal defendants, Professor Scott Sundby contends that the Court has significantly narrowed Brady's scope from pre-trial discovery rights "to a post-trial remedy for government mis-

9 2011] THE INNOCENT HAVE RIGHTS TOO Boblit, were convicted of murder and sentenced to death. 53 On July 9, 1958, Boblit confessed that it was he who committed the actual homicide, not Brady. 54 The two were tried separately, and the government withheld evidence of Boblit's confession from Brady and his counsel until a conviction had been secured. 55 After discovering that the government had withheld Boblit's confession, Brady moved for post-conviction relief, and the Court of Appeals of Maryland sustained his claim that the government's suppression of the confession violated due process. 56 The U.S. Supreme Court noted that the Court of Appeals of Maryland had primarily relied on United States ex rel. Almeida v. Baldi, 57 a United States Court of Appeals for the Third Circuit case. 58 The Court pointed out that Baldi interpreted the holding in Pyle as meaning that "'suppression of evidence favorable' to the accused was itself sufficient to amount to a denial of due process." 59 The Court stated that the rule announced in Baldi, that the mere suppression of exculpatory evidence was a denial of due process, was the "correct constitutional rule." 60 However, the Court then reached past this well-settled rule by introducing the notion of "material evidence," and held-for the first time-"that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution." 61 Thus, the Court in Brady for the first time held that (1) the defendant must make a "request" for the exculpatory evidence and (2) the evidence must be "material to either guilt or to punishment." 62 It is not clear whether the Court, in Brady, intended to stray from its prior precedent, which held that suppression of exculpatory evidence standing alone violates due process. By introducing the notion of materiality (i.e., by holding that only evidence that is "material either to guilt or to punishment" can fall within the purview of the Due conduct." Scott E. Sundby, Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland, 33 McGEoRGE L.REv. 643, 644 (2002). 53. Brady v. Maryland, 373 U.S. 83, 84 (1963). 54. Brady, 373 U.S. at Id. 56. Id. at F.2d 815 (3d Cir. 1952). 58. Brady, 373 U.S. at Id. at 87 (quoting United States ex rel. Almeida v. Baldi, 195 F.2d 815, 820 (3d Cir. 1952)). 60. Brady, 373 U.S. at Id. at Id.

10 CREIGHTON LAW REVIEW [Vol. 45 Process Clause), the Court may have narrowed the constitutional harm. 63 On the other hand, the Court also stated that "[s]ociety 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." 64 It can reasonably be inferred that the withholding of favorable evidence regardless of the prejudicial impact that it ultimately may have on the trial is, in effect, treating the accused unfairly and, thus, a violation of procedural due process. 6 5 Indeed, reading Brady's policy rationale along with its holding leads one to believe that the Court did not mean that for due process to be violated the suppression of exculpatory evidence must be "prejudicial" to the outcome of the trial. Rather, the Court meant that the suppression of exculpatory. evidence merely be "material," or in other words "favorable" to the defendant to violate the Due Process Clause. 66 This holding was the holding in Mooney v. Holohan, 6 7 Pyle v. Kansas, 68 Alcorta v.texas, 69 and Napue v. Illinois 70 and, therefore, it makes sense that Brady simply restated those holdings, albeit by using the word "material" instead of the word "favorable." Moreover, this was the holding in Baldi, a case that Brady relied upon heavily. 7 1 Accordingly, one reasonable reading of Brady is that the Court held that the suppression of favorable evidence standing alone violates due process, but a new criminal trial is not the appropriate remedy unless the sup- 63. Id. 64. Id. 65. For example, in Haupt v. T.D. Dillard, 17 F.3d 285, 287 (9th Cir. 1994), the plaintiff alleged that the prosecutor and police officer intimidated the judge into changing jury instructions. The plaintiff was ultimately acquitted of the underlying criminal charges but later sued the police under 1983 for violating his right to due process-a fair trial-under the Fifth Amendment. The court held that "[t]he fact that [the plaintiff] ultimately was acquitted speaks only to the amount of damages he suffered; it is irrelevant to whether he has a cause of action." Haupt, 17 F.3d at 287. One can extrapolate from Haupt that whether a constitutional violation occurs is mutually exclusive from the issue of whether prejudice or harm (in a criminal case, that being a conviction) ensues. The fact that one is acquitted relates only to the amount of damages he or she is entitled to receive for the constitutional violation. 66. For a discussion on what constitutes "favorable" evidence under Brady, see Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. TEx. L. REV. 685, (2006) U.S. 103 (1935) U.S. 213 (1942) U.S. 28 (1957) U.S. 264 (1959). 71. Brady, 373 U.S. at 86-87; Baldi, 195 F.2d at 820 (holding suppression of "favorable" evidence standing alone violates procedural due process).

11 20111 THE INNOCENT HAVE RIGHTS TOO pressed evidence is "material," or otherwise prejudicial to the accused. 72 In 1985, the Court extended the Brady doctrine, as it had by then come to be known, in United States v. Bagley 73 to include the suppression of impeachment evidence. In Bagley, the Court stated: "The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and 'material either to guilt or to punishment.'" 74 The Court went on to explain that the materiality language in Brady concerned the possibility that the suppressed evidence could have affected the ultimate outcome of the criminal trial. 7 5 After reaffirming that the Brady doctrine is constitutionally based in the Due Process Clause of the Fourteenth Amendment, 76 the Court held that the touchstone inquiry that must be decided is whether the defendant received a "fair trial." 7 7 The Court thus concluded that a Brady violation results when suppressed evidence yields an unfair trial, and an unfair trial can only occur if the suppressed evidence was "material." 78 Furthermore, the Court defined "material evidence" as that evidence which, if suppressed, would "undermine confidence in the outcome of the trial." 79 Thus, in Bagley, the Court departed from its reliance on previous cases such as Mooney, Pyle, Alcorta, and Napue, as well as the Third Circuit's Baldi standard-that the mere suppression of favorable evidence constitutes a due process violation-by refocusing the analysis on the issue of materiality. The Bagley Court, however, noted that its materiality test was not necessarily an element of due process but, rather, analogous to the prejudicial-error (or harmless-error) standard in criminal cases. 8 0 The dissenting opinion of Justice Thurgood Marshall highlighted the fact that the court's primary consideration was 72. Brady did, however, unnecessarily narrow the scope of due process by requiring that the defendant make a request for exculpatory evidence, but the Court ultimately abandoned the "request" element in United States v. Agurs, 427 U.S. 97, 107 (1976); see also Strickler v. Greene, 527 U.S. 263, 280 (1999) (recognizing the Court has held a duty to disclose exculpatory information exists regardless of a defendant's request); Rosen, supra note 3, at 705 (stating that the Brady concept of materiality was "equivalent to the concepts of prejudice or harmless error courts employ in other areas of criminal law") U.S. 667 (1985). 74. United States v. Bagley, 473 U.S. 667, 674 (1985) (quoting Brady, 373 U.S. at 87). 75. Bagley, 473 U.S. at U.S. CONST. amend. XIV. 77. Bagley, 473 U.S. at 675, Id. at Id. 80. See id. at , 680 n.9.

12 CREIGHTON LAW REVIEW [Vol. 45 whether the suppression of favorable evidence constituted "harmless error." 8 1 In Kyles v. Whitley, 8 2 the Court again stressed that prejudicialerror review had been subsumed by the "materiality" requirement. The Kyles Court stated that once "a reviewing court applying Bagley has found constitutional error[,] there is no need for further harmlesserror review." 8 3 Because the Bagley materiality standard required a harmless-error analysis, the Court held that once a Bagley-error existed, an additional harmless-error analysis would be redundant. 8 4 Thus, pursuant to post-brady cases, the Court has maintained that a Brady violation in the criminal context does not require a new criminal trial unless the Brady violation is prejudicial. 8 5 C. THE SUPREME COURT'S BRADY ANALYSIS LIMITS PREJUDICIAL- ERROR OR HARMLESS-ERROR REVIEW TO THE CRIMINAL CONTEXT The United States Supreme Court's precedent discussed above is notable for two reasons. First, prior to Brady v. Maryland, 8 6 the Supreme Court considered the withholding of exculpatory evidence, without any prejudice to the criminal defendant, to be a violation of due process under the Fourteenth Amendment. Second, the Supreme Court's Brady cases thus far have been limited to only the criminal context, where the remedy sought is a new trial, not money damages. It is within this context and this context alone, that the Supreme Court has introduced the concept of "materiality," or in other words, prejudicial error See id. at (Marshall, J., dissenting) (understanding the Court's materiality standard as a "harmless error" test and concluding that when the government suppresses evidence that might impeach a sole witness, harmless error always results). Justice Marshall argued the harmless error test fails to acknowledge the reality that "[n]o prosecutor can know prior to trial whether such evidence will be of consequence at trial; the mere fact that it might be, however, suffices to mandate disclosure." Id. at (majority opinion). As Professor Richard Rosen stated, the Brady concept of materiality was "equivalent to the concepts of prejudice or harmless error courts employ in other areas of criminal law." Rosen, supra note 3, at 705. The Court developed the harmless-error standard applied in criminal cases beginning in Chapman v. California, 386 U.S. 18, 24 (1967), which held that a conviction tainted by constitutional error must be set aside unless the error complained of "was harmless beyond a reasonable doubt." U.S. 419 (1995). 83. Kyles v. Whitley, 514 U.S. 419, 435 (1995). 84. Kyles, 541 U.S. at See, e.g., Branks v. Dretke, 540 U.S. 668, 691 (2004); Strickler v. Greene, 527 U.S. 263, 282 (1999) U.S. 83 (1963). 87. Rosen, supra note 3, at 705 (stating the Brady concept of materiality was "equivalent to the concepts of prejudice or harmless error courts employ in other areas of criminal law").

13 2011] THE INNOCENT HAVE RIGHTS TOO This is an important point, as prejudicial error is vital in criminal cases because the remedy sought under Brady in the criminal setting is not money damages but, rather, a new trial. The logic in prejudicial-error analysis is that if the defendant suffered no prejudice from the constitutional error, then a new trial is not required. Thus, in the criminal context, there is no harm to a defendant who would have been convicted in the absence of the withholding of exculpatory evidence. However, prejudicial-error analysis has no place in determining whether money damages, as opposed to a new trial, should be awarded pursuant to 42 U.S.C in civil cases. As the Court repeatedly held prior to Brady, in cases such as Mooney v. Holohan, 8 Pyle v. Kansas, 8 9 Alcorta v. Texas, 90 and Napue v. Illinois,91 mere withholding of exculpatory evidence is itself a constitutional harm. 9 2 Additionally, when Brady and its progeny introduced the concept of prejudicial error, or "materiality," to the analysis, it did so only to determine whether a new trial was warranted in the criminal context. 9 3 In the civil context, the question is not whether the plaintiff, who has been acquitted yet also denied Brady evidence, deserves a new trial. Instead, the question becomes how much harm has the plaintiff suffered by the withholding of exculpatory evidence. That question, then, is related to the amount of damages the plaintiff is entitled to receive, not to the initial inquiry of whether the plaintiff may state a 1983 cause of action for a Brady violation. 94 Unfortunately, the federal circuits that have considered this issue have not agreed. Instead of recognizing that prejudicial-error analysis has no place in civil Brady cases, as opposed to the criminal context, these courts continue to apply the wrong framework-they focus on whether the civil Brady plaintiff has suffered harm warranting a new criminal trial, not whether the plaintiff simply has suffered injury from the Brady violation U.S. 103 (1935) U.S. 213 (1942) U.S. 28 (1957) U.S. 264 (1959). 92. See supra notes and accompanying text. 93. In Strickler v. Greene, 527 U.S. 263, (1999), the Court acknowledged that the term "Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence." The Court went on to note, however, that a Brady violation is not of sufficient magnitude to require a new criminal trial unless the violation was prejudicial to the accused. See id. 94. In a non-brady context, the plaintiff in Haupt v. T.D. Dillard, 17 F.3d 285, (9th Cir. 1994), claimed a due process violation for denial of a fair criminal trial, pursuant to 1983, notwithstanding his acquittal. The Ninth Circuit held that "[tihe fact that [the plaintiff] ultimately was acquitted speaks only to the amount of damages he suffered; it is irrelevant to whether he has a cause of action." Id. at 287.

14 CREIGHTON LAW REVIEW [Vol. 45 III. FEDERAL APPELLATE CASES DENYING PLAINTIFFS A CIVIL BRADY RIGHT IN THE ABSENCE OF A CRIMINAL CONVICTION The United States Supreme Court has yet to decide whether a plaintiff who has not been criminally convicted may state a cause of action under Brady v. Maryland 9 5 pursuant to 42 U.S.C However, five federal circuits have examined the issue. These courts generally have held that where a plaintiff has not been convicted criminally, the suppression of exculpatory evidence by the police is not actionable under 1983 because the evidence cannot be deemed material, or in other words, the plaintiff has not been prejudiced by the suppression. 97 Such holdings assume that the prejudicial-error prong under the Brady doctrine is implicit in the Due Process Clause of the Fourteenth Amendment; the discussion above, however, clarifies that is not the case. 9 s The federal circuits have missed the mark on this issue. As the Supreme Court discussed in United States v. Bagley 9 9 and Kyles v. Whitley, 100 prejudicial error is not an element of due process but, rather, it is a part of the appellate review conducted in criminal cases to determine whether a new trial is warranted Accordingly, the U.S. 83 (1963). 96. Bielanski v. County of Kane, 550 F.3d 632, 644 (7th Cir. 2008) ("The Supreme Court has yet to address the situation alleged here, where certain evidence was withheld by the prosecution and yet the defendant was still acquitted."). 97. See Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (finding no Brady liability because "a defendant who is acquitted cannot be said to have been deprived of the right to a fair trial"); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998) ("Plaintiff, however, was never convicted and, therefore, did not suffer the effects of an unfair trial. As such, the facts of this case do not implicate the protections of Brady."); Taylor v. Waters, 81 F.3d 429, (4th Cir. 1996) (holding that, under the Fourteenth Amendment's Due Process Clause, no "settled authority" exists to conclude that a police investigator's failure to disclose exculpatory evidence to an unconvicted plaintiff is unconstitutional); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988) (holding no Brady violation existed and stating that "[blecause the underlying criminal proceeding terminated in appellant's favor, he has not been injured by the act of wrongful suppression of exculpatory evidence"); see also Rogala v. District of Columbia, 161 F.3d 44, (D.C. Cir. 1998) (adopting decision of district court that police officers did not violate due process by failing to preserve witness because plaintiffs were never prosecuted); Gregory v. Oliver, 226 F. Supp. 2d 943 (N.D. Ill. 2002) (holding no Brady claim where plaintiff acquitted at criminal trial). But see Mosely v. City of Chicago, No. 6 C 6314, 2007 WL (N.D. Ill. Sept. 4, 2007); Gomez v. Riccio, No. 02 C 5911, 2005 WL (N.D. Ill. Nov. 1, 2005); Craig v. Chi. Police Officers, No. 05 C 0172, 2005 WL (N.D. Ill. June 9, 2005); Kidd v. City of Chicago, No. 02 C 9534, 2003 WL (N.D. Ill. Sept. 26, 2003); Carroccia v. Anderson, 249 F. Supp. 2d 1016 (N.D. Ill. 2003). 98. See supra notes and accompanying text U.S. 667 (1985) U.S. 419 (1995) See Kyles v. Whitley, 514 U.S. 419, 435 (1995); United States v. Bagley, 473 U.S. 667, , 680 n.9 (1985); Rosen, supra note 3, at 705. For the origin of the

15 20111 THE INNOCENT HAVE RIGHTS TOO analyses of these courts should be rejected because prejudicial-error review is not applicable under 1983 claims alleging Brady violations.' 0 2 A. THE TENTH CIRCUIT: MORGAN V. GERTZ In Morgan v. Gertz, l03 the United States Court of Appeals for the Tenth Circuit dealt with the issue of whether a plaintiff who has been acquitted at a criminal trial can bring a 42 U.S.C lawsuit claiming deprivation of due process on the ground that the police intentionally destroyed exculpatory evidence before trial.' 0 4 Albert Morgan was tried for the sexual assault of his stepdaughter.1 05 When the police interviewed the stepdaughter, she indicated that she had not been sexually abused.' 0 6 After some time, her biological father requested that the police interview her again, and this time she stated that Morgan had sexually assaulted her.' 0 7 The police, however, taped the second interview over the recording of the first interview During discovery, the prosecutor disclosed that the stepdaughter originally indicated that she had not been sexually abused The prosecutor, knowing that the first interview had been effectively destroyed, prepared a summary of that interview for Morgan." 0 The harmless-error (or prejudicial-error) test in criminal cases, see Chapman v. California, 386 U.S. 18, 24 (1967). The harmless-error test articulated in Chapman has typically been limited to only the criminal context. Meehan Rasch, California's Dueling Harmless Error Standards: Approaches to Federal Constitutional Error in Civil Proceedings and Establishing the Proper Test for Dependency, 35 W. ST. U. L. REv. 433, 434 (2008). Though habeas corpus review is generally related to the criminal context, the Supreme Court has held that the Chapman harmless-error review standard does not apply on habeas review. See Brecht v. Abrahamson, 507 U.S. 619, (1993). By removing Chapman harmless-error review from habeas proceedings, "the Court [has increased] the possibility that a conviction will stand despite a constitutional error that had a prejudicial impact on the verdict." Leslie R. Stern, Comment, Constitutional Law-Less Onerous Harmless Error Standard Applies on Habeas Corpus Review-Brecht v. Abrahamson, 113 S. Ct (1993), 28 SUFFOLK U. L. REv. 172, (1994) In addition to the cases discussed in this section, two judges on a panel of the Ninth Circuit Court of Appeals have expressed their views as to whether a plaintiff who has not been convicted of a crime may sue the police under 1983 for Brady violations. Judge Gwin has stated that without a conviction, a Brady claim cannot stand. Smith v. Almada, 640 F.3d 931, 945 (9th Cir. 2011) (Gwin, J., specially concurring). On the other hand, Judge Nelson believes that a criminal conviction is no bar to asserting a civil Brady claim. Id. at 948 (Nelson, J., dissenting). The Ninth Circuit, however, has no majority view on this issue F.3d 1307 (10th Cir. 1999) Morgan v. Gertz, 166 F.3d 1307, 1309 (10th Cir. 1999) Morgan, 166 F.3d at Id Id See id Id Id.

16 CREIGHTON LAW REVIEW [Vol. 45 jury convicted Morgan of the crime, but the trial judge did not enter a conviction, instead finding that the police's destruction of the first interview was willful and egregious and that Morgan had been denied a fair trial under Brady. 1 1 ' The court entered a judgment of acquittal, and one year later, Morgan sued the police for the mishandling of exculpatory evidence The Tenth Circuit began its analysis by distinguishing the case at bar from Brady v. Maryland" 1 3 by noting that Brady dealt with the wrongful nondisclosure of evidence, and the case at bar concerned the wrongful non-preservation of evidence The court, however, continued its analysis under the Brady framework. Citing United States v. Bagley, 1 15 Kyles v. Whitley, 116 United States v. Agurs, 1 17 and Brady (in essence Brady and its progeny), the court stated that "[tihe duties to disclose and preserve impeachment/exculpatory evidence are grounded in the due process right to a fair trial." 1 18 The court relied on Bagley for the proposition that the withholding or destroying of evidence violates due process only if the defendant has been denied a fair trial. 119 The court then examined a dichotomy of cases involving Brady claims under First, in cases where no conviction resulted, the court noted the cases held that a defendant could not have been denied a fair trial and, therefore, a cause of action could not have existed.' 20 In the second set of cases, where the court had affirmed but later overturned a plaintiffs conviction in a collateral proceeding, a plaintiff could pursue a civil Brady claim. 121 With little other analysis conducted, the Tenth Circuit relied on the first set of cases and found that because Morgan had not been convicted, his case fell within the group of cases that held the plaintiff could not state a cause of action. 122 The Tenth Circuit held that "[riegardless of any misconduct by government agents before or during trial, a defendant who is ac Id. at Id U.S. 83 (1963) Morgan, 166 F.3d at U.S. 667 (1985) U.S. 419 (1995) U.S. 97 (1976) Morgan, 166 F.3d at Id Id. (citing Rogala v. District of Columbia, 161 F.3d 44, (D.C. Cir. 1998); Taylor v. Waters, 81 F.3d 429, 434 n.4, (4th Cir. 1996); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988); Nygren v. Predovich, 637 F. Supp. 1083, 1087 (D. Colo. 1986)) Morgan, 166 F.3d at 1310 (citing McMillian v. Johnson, 88 F.3d 1554, & n.12 (11th Cir. 1996); McDonald v. Illinois, 557 F.2d 596, 603 (7th Cir. 1977)) Morgan, 166 F.3d at 1310.

17 2011] THE INNOCENT HAVE RIGHTS TOO quitted cannot be said to have been deprived of the right to a fair trial." 1 23 In affirming the dismissal of Morgan's cause of action, the Tenth Circuit misconstrued the Brady analysis in the context of The court proceeded with the premise that Morgan's action was in the criminal setting, in which the remedy sought is a new trial. Moreover, because the court held that his acquittal precluded a finding of an unfair trial, it assumed that he was not entitled to relief. In essence, the court conducted prejudicial-error review and held that Morgan had not been denied due process of law under the Brady theory because the destruction of the exculpatory evidence was not prejudicial to Morgan's criminal case; indeed, Morgan had been acquitted notwithstanding the destruction of the favorable evidence. However, here, Morgan did not request a new trial; he sued under 1983 for money damages. 124 Thus, the fact that he had been acquitted is irrelevant. Rather, the focus in his case should have been directed at whether the police officer's destruction of exculpatory evidence, standing alone, violated his constitutional right to due process. Under the Court's holdings in Mooney v. Holohan, 12 5 Pyle v. Kansas, 126 Alcorta v. Texas, 127 and Napue v. Illinois, 128 and even arguably Brady, that answer would have been yes. 129 Nevertheless, the Tenth Circuit confused the constitutional due process issue with the issue of prejudicial-error review. Consequently, Morgan was denied relief because he could not prove that the error prejudiced him. 130 This, of course, is an absurd result because prejudice in a civil action is, in essence, being injured or damaged. Morgan certainly had suffered an injury through the police's destruction of favorable evidence The police's misconduct resulted in a charge of sexual assault of his stepdaughter And the mere charge, along with all of its attendant embarrassment and emotional trauma, should have been sufficient for purposes of proving damages Id Id. at U.S. 103 (1935) U.S. 213 (1942) U.S. 28 (1957) U.S. 264 (1959) See supra notes and accompanying text Morgan, 166 F.3d at See id. at Id.

18 CREIGHTON LAW REVIEW [Vol. 45 B. THE SIXTH CIRCUIT: MCCUNE V. CITY OF GRANvD RAPIDS In McCune v. City of Grand Rapids, 133 James McCune was on duty as a Grand Rapids Parks patrol officer when the police asked him to act as an undercover officer to investigate thefts and drug crimes To McCune's surprise, however, officers arrested him for his involvement in activities he undertook in furtherance of the police's own investigation When exculpatory evidence of McCune's involvement as an undercover officer came to light, the police suppressed it McCune remained incarcerated on criminal charges for nearly a year before the prosecutor finally dropped the case One of the allegations McCune brought against the officers was a 42 U.S.C claim based on the withholding of exculpatory evidence. 138 The United States Court of Appeals for the Sixth Circuit cursorily examined McCune's Brady v. Maryland 13 9 claim by disposing of it in a final paragraph with no citation of authority Incredibly, the court simply held that "[b]ecause the underlying criminal proceeding terminated in [McCune's] favor, he has not been injured by the act of wrongful suppression of exculpatory evidence." 14 1 The Sixth Circuit's holding on the Brady issue was based on no real analysis and, thus, F.2d 903, 904 (6th Cir. 1988) McCune v. City of Grand Rapids, 842 F.2d 903, 904 (6th Cir. 1988) McCune, 842 F.2d at Id Id Id. at U.S. 83 (1963) See McCune, 842 F.2d at Id. But the court did state in dicta "[Tihe wrongful suppression of exculpatory evidence may be relevant to [a plaintiffs] claim of malicious prosecution." Id. There exists a circuit split concerning whether a malicious prosecution claim is viable as a constitutional cause of action under 1983 in federal court. The Second, Third, Fourth, Fifth, and Seventh Circuits allow plaintiffs to bring a malicious prosecution claim under See Goodwin v. Metts, 885 F.2d 157 (4th Cir. 1989); Raysor v. Port Auth., 768 F.2d 34 (2d Cir. 1985); Losch v. Borough of Parkesburg, 736 F.2d 903 (3d Cir 1984); Inada v. Sullivan, 523 F.2d 485 (7th Cir. 1975). On the other hand, the First, Sixth, Eighth, and Ninth Circuits have declined to allow a malicious prosecution claim under See Kohl v. Casson, 5 F.3d 1141 (8th Cir. 1993); Morales v. Ramirez, 906 F.2d 784 (1st Cir. 1990); Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir. 1987); Vasquez v. City of Hamtramck, 757 F.2d 771 (6th Cir. 1985). The Supreme Court has failed in its effort to resolve the circuit split, issuing six separate opinions in Alrbight v. Oliver, 510 U.S. 266 (1994). Subsequently, with respect to malicious prosecution claims in federal court, the Tenth Circuit aptly noted, "Albright [has] muddied the waters rather than clarified them." Taylor v. Meacham, 82 F.3d 1556, 1561 n.5 (10th Cir. 1996). Thus, it still is unclear whether a malicious prosecution claim is viable in federal court. While not necessarily a conclusive reason, the lack of clarity provides some justification for allowing a civil Brady claim to be brought by criminally innocent plaintiffs. Otherwise, these plaintiffs may have no remedy for a vindictive prosecution, based on the withholding of exculpatory evidence, in federal court.

19 2011] THE INNOCENT HAVE RIGHTS TOO the court never analyzed the dichotomy between a Brady claim brought in the civil context as opposed to the criminal context. Moreover, the assertion that McCune did not suffer any injury provides a clear example of why civil Brady claims under 1983 cannot be analyzed under a framework applicable to criminal law. Certainly, McCune was "unharmed" in the sense that he did not have an unfair trial. That is, however, only because he never received a trial. It is indisputable, though, that he was injured civilly by the withholding of exculpatory evidence. The police thanked McCune for his service to them by arresting him, jailing him for nearly a year, and then suppressing evidence pertaining to his innocence, thus likely prolonging his detention. There is no doubt that McCune was injured. Nevertheless, because the Sixth Circuit addressed his claim within the criminal law framework, it denied him relief, and the police escaped without punishment. Such a result is, to say the least, shocking. Had the court correctly examined United States Supreme Court precedent and held that the mere withholding of the exculpatory evidence violated McCune's due process rights, he would have received the compensation that he deserved. C. THE ELEVENTH CIRCUIT: FLORES v. SATZ In Flores v. Satz, 142 Miguel Flores alleged that his Fourteenth Amendment due process rights were violated when the prosecutor who brought charges against him withheld exculpatory evidence. 143 A trial was never held, and Flores was never convicted of the charges. 144 The United States Court of Appeals for the Eleventh Circuit quickly disposed of the Brady v. Maryland 145 issue by holding that, because Flores had not been criminally convicted of the charged crime, he did not "suffer the effects of an unfair trial." 1 46 Consequently, the court found no due process violation could have resulted In support of its holding, the court relied on two criminal cases from the United States Court of Appeals for the Fifth Circuit: United States v. McKinney 148 and United States v. O'Keefe. 149 However, both McKinney and O'Keefe were criminal cases, not civil cases brought F.3d 1275 (11th Cir. 1998) Flores v. Satz, 137 F.3d 1275, (11th Cir. 1998). The defendants in Flores were prosecutors, who, the court noted, were "probably entitled to absolute immunity." Flores, 137 F.3d at 1278 n.6. The absolute immunity defense, however, was not argued on appeal. Id Id. at U.S. 83 (1963) Flores, 137 F.3d at See id F.2d 1036 (5th Cir. 1985) F.3d 885 (5th Cir. 1997).

20 CREIGHTON LAW REVIEW [Vol. 45 under 42 U.S.C Moreover, McKinney was not even relevant to the issue presented in Flores. In McKinney, the question was whether the timing of the disclosure had prejudiced the defendant by causing a wrongful conviction, not whether a criminally innocent plaintiff could state a civil Brady claim. 150 Again, like the United States Courts of Appeals for the Tenth and Sixth Circuits, it made little sense for the Eleventh Circuit to analyze a civil Brady claim under the same framework applicable to Brady claims made in criminal cases. By employing prejudicial-error analysis, the court concluded that Flores was not entitled to a new trial even though he had not sought a new trial in the first place. Flores sought money damages for the wrongful suppression of exculpatory evidence, which violated his constitutional rights. Because the court failed to recognize that civil Brady cases require a different analysis than the prejudicial-error analysis applicable to criminal cases, Flores was left with no remedy. D. THE FOURTH CIRCUIT: TAYLOR V. WATERS In Taylor v. Waters, 15 1 Clarence Taylor sued an investigator involved in prosecuting a drug charge against him under, inter alia, a Brady v. Maryland 15 2 theory on the ground that the investigator failed to disclose exculpatory evidence to the prosecutor The prosecutor dismissed the charges two months after Taylor's arrest and before the preliminary hearing The United States Court of Appeals for the Fourth Circuit analyzed Taylor's Brady claim under a qualified immunity framework The court focused not on whether the investigator's withholding of exculpatory evidence was a constitutional violation but, rather, whether the law was "clearly established" that such conduct was a violation of due process. 156 On this issue, the court noted that at the time, the United States Supreme Court had held that pre-trial detainees could invoke the Fourth Amendment, not due process under the Fourteenth Amendment. 157 Thus, the court held that Taylor's claim failed because he had not clearly established that the investigator's conduct violated the Fourteenth Amendment United States v. McKinney, 758 F.2d 1036, (5th Cir. 1985) F.3d 429 (4th Cir. 1996) U.S. 83 (1963) Taylor v. Waters, 81 F.3d 429, 432 (4th Cir. 1996) Taylor, 81 F.3d at Id. at Id See id. at (citing Gerstein v. Pugh, 420 U.S. 103, 125 n.27 (1975)) Id. at 436.

21 20111 THE INNOCENT HAVE RIGHTS TOO The Taylor court's analysis is weak for a number of reasons. First, the court never decided the substantive issue of whether the withholding of exculpatory evidence, without a conviction, violates due process. 159 Instead, it merely considered whether the law had clearly established that such conduct violated substantive due process as part of its qualified immunity analysis. 160 Second, the court framed Taylor's claim as one alleging prosecution without probable cause, as opposed to one under a Brady theory What Taylor alleged, however, was that the investigator's "failure to disclose exculpatory information... to the prosecutor violated his constitutional rights," namely "his right to due process of law as guaranteed under the Fourteenth Amendment." 16 2 Thus, clearly, the court should have analyzed Taylor's claim within the Brady context-procedural due process-as opposed to a malicious prosecution claim. Third, the court acknowledged Brady's viability as constitutional law, but pointed out that Brady protected only the right to a "fair trial," and Taylor never received a trial.' 6 3 The Taylor court performed little analysis except to simply parse Brady's language of a right to a fair trial and, in conclusory fashion, asserted that no trial occurred. However, the court's superficial analysis shows only that it would not find prejudicial error notwithstanding a due process violation. Had Taylor sought the remedy of a new trial, there would be no injury because no wrongful conviction occurred in the first place. Ultimately, Taylor sought money damages for having to defend against charges, 16 4 so he could have been injured notwithstanding the fact that he did not stand trial. To be sure, the injury here would be the humiliation and financial hardship resulting from the need to defend a criminal case. Thus, like the other federal cases denying relief to non-convicted plaintiffs who alleged a civil Brady claim, in Taylor, the Fourth Circuit incorrectly applied the prejudicial-error analysis by 159. See id. at See id. at 435. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citations omitted). To determine whether a government official is entitled to qualified immunity from a damages claim, a two-part inquiry is employed. Callahan, 555 U.S. at 232. The court must determine whether the facts alleged by the plaintiff state a constitutional claim. Id. The court also must determine whether the constitutional right alleged to be violated by the defendants was "clearly established" at the time of the defendant's alleged misconduct. Id. Courts are not bound to analyze these two prongs in a particular order. Id. at Taylor, 81 F.3d at Id. at See id. at 436 n Id. at 432.

22 22 CREIGHTON LAW REVIEW [Vol. 45 failing to distinguish a civil Brady claim from a claim for a new trial in the criminal law context. E. THE SEVENTH CIRCUIT 1. Christman v. Hanrahan In Christman v. Hanrahan, 165 the United States Court of Appeals for the Seventh Circuit confronted the issue of whether evidence that the prosecution temporarily suppressed but disclosed before the end of trial, resulted in a violation of procedural due process, notwithstanding the plaintiffs ultimate acquittal. 166 The plaintiff, Donald Christman, allegedly killed a storekeeper during an attempted robbery on November 6, The victim's wife witnessed the killing, and four months later at a police lineup, she identified the plaintiff as the killer. 168 Soon thereafter, however, she called the police to report that she was not sure whether the plaintiff was the killer The police allegedly filed the wife's partial-recantation of the identification in a supplemental report, and the police and prosecutor allegedly altered the report during discovery. 170 On appeal, the Seventh Circuit began its analysis by assuming that the allegations in the complaint were true (as required under the standard of review); the court found that the police and the prosecutor "were guilty of serious misconduct." 17 1 The court stressed, however, that a constitutional deprivation of liberty does not necessarily result just because exculpatory evidence has been withheld Citing Brady v. Maryland, 1 73 the Seventh Circuit noted, "If evidence concerning the telephone call had been suppressed until after the trial was concluded, and if the jury had returned a guilty verdict, unquestionably plaintiff would have been deprived of his liberty without due process."174 The court stated that, although it did "not condone the defendants' egregious misconduct, the trial itself, viewed as an entirety, was not fundamentally unfair."' 75 The court considered two theories to determine whether the plaintiff was deprived of a federally protected right. 176 The first theory was F.2d 65 (7th Cir. 1974) Christman v. Hanrahan, 500 F.2d 65, 66 (7th Cir. 1974) Christman, 500 F.2d at Id Id Id Id. at Id U.S. 83 (1963) Christman, 500 F.2d at Id Id.

23 2011] THE INNOCENT HAVE RIGHTS TOO that a plaintiff has a constitutional right to immediate disclosure of materially favorable evidence, and the government's failure to immediately disclose that evidence, even if harmless, violates that right. 177 The second theory considered by the court was that a plaintiff has a right to a fair trial, so that the non-disclosure of materially favorable evidence violates that right only if the non-disclosure has "some prejudicial impact on the defense."' 7 8 The court accepted the second theory, denying the plaintiff relief The court conceded that the wife's telephone call partially recanting her identification of the plaintiff was Brady evidence,' 8 0 but it based its holding on the fact that the timing of the disclosure of the telephone call did not ultimately prejudice the plaintiff; that is, the delayed disclosure did not deprive the plaintiff of a fair criminal trial.' 8 ' Once again, the Seventh Circuit-like the other courts-analyzed Christman's civil Brady claim under the criminal law framework. By relying on criminal law prejudicial-error analysis, the court failed to recognize that the relief Christman sought was not a new trial, but money damages.' 8 2 The Christman court left open one point of interest: although the court denied Christman's relief because of lack of prejudice, it avoided the issue of "whether a delayed disclosure might be sufficiently prejudicial to deprive an accused of a fair trial notwithstanding his acquittal." 1 83 Thus, the Seventh Circuit left open the inquiry of whether a conviction at trial is necessary to state a Brady claim under 42 U.S.C In Bielanski v. County of Kane, 3 however, the Seventh Circuit closed that issue nearly thirty-five years later. 2. Bielanski v. County of Kane In Bielanski v. County of Kane,185 Lorri Bielanski was only fifteen years old when she "was falsely accused of sexually abusing [her] sixyear-old neighbor." She was acquitted of all charges before she filed a 42 U.S.C lawsuit against a police officer, among others, based on the withholding of exculpatory evidence.' 8 7 She claimed that the police withheld the following evidence from her: that (1) the 177. Id Id. at Id. at 67, Id. at See id. at See id. at Id. at 68 n F.3d 632 (7th Cir. 2008) F.3d 632 (7th Cir. 2008) Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008) Bielanski, 550 F.3d at

24 CREIGHTON LAW REVIEW [Vol. 45 child victim was on medication for Attention Deficit Hyperactivity Disorder; (2) the victim had previously acted out sexual acts and engaged in sexually inappropriate behavior; and (3) the victim's parents had suggested to the victim that somebody had sexually abused him before the victim accused Bielanski. l8 8 After Bielanski discovered that the police had failed to disclose this information, which the court accepted as "material," she filed a 1983 claim seeking money damages. 8 9 The issue presented, which the United States Court of Appeals for the Seventh Circuit noted had not been settled by the United States Supreme Court, was whether a plaintiff who had been acquitted in a criminal trial could state a claim for due process violations under a Brady v. Maryland, 90 theory against the police, where the police had wrongfully withheld exculpatory evidence The court expressed doubt "'that an acquitted defendant can ever establish the requisite prejudice for a Brady violation.'"' 192 The court held that "the harm Brady aims to prevent" is a trial unworthy of confidence and, here, Bielanski received a fair trial. 193 Moreover, because earlier disclosure of the withheld evidence would not have resulted in the dismissal of the charges against Bielanski prior to trial, she could not state a claim for damages under Brady. 194 Of course, like the other federal cases preceding it, the court in Bielanski superficially analyzed whether a 1983 plaintiff had been denied the right to a fair criminal trial. The court concluded that Bielanski was undeserving of a Brady remedy, namely a new trial, because she had been acquitted in the first instance However, it does not logically follow that she did not suffer an unfair trial generally, or that she had not been prejudiced by having allegedly false accusations, based upon withheld Brady evidence, lodged against her. For 188. See id. at 634, Id. at U.S. 83 (1963) Bielanski, 550 F.3d at Id. (quoting Carvajal v. Dominguez, 542 F.3d 561, 570 (7th Cir. 2008)). But see Parish v. City of Chicago, 594 F.3d 551, 554 (7th Cir. 2010) ("[Plaintifl] may still have... a Brady-type due process claim after he was acquitted, if... prompt disclosure of the suppressed evidence would have altered the prosecution's decision to proceed to trial."). Parish suggests that a plaintiff "may have" a Brady claim notwithstanding acquittal of the underlying criminal charges. Parish, 594 F.3d at 554. A due process violation, however, should not be dependent on whether earlier disclosure of Brady evidence would have altered the prosecutor's decision to proceed to trial. Instead, withholding Brady evidence per se violates due process. See supra notes and accompanying text. The impact of withholding the evidence concerns only damages, not whether a cause of action has been stated. See Haupt v. T.D. Dillard, 17 F.3d 285, (9th Cir. 1994) Bielanski, 550 F.3d at Id Id.

25 20111 THE INNOCENT HAVE RIGHTS TOO example, she undoubtedly could have spent large sums of money to defend against possibly baseless claims, and she likely suffered injury in the sense of damage to her reputation. Like the other circuits that have addressed this issue, the Seventh Circuit failed to recognize that a plaintiff can be prejudiced in other ways than a wrongful conviction. F. THE FEDERAL CIRCUITS HAVE INCORRECTLY ANALYZED CML BRADY CLAIMS PURSUANT TO 42 U.S.C UNDER THE CRIMINAL LAW FRAMEWORK In each appellate decision discussed above, the courts, without always explicitly saying so, focused their Brady v. Maryland,1 9 6 analysis on traditional prejudicial-error review applicable in criminal cases. However, this sort of review, as identified in United States v. Bagley and Kyles v. Whitley, 198 is appropriate only on either direct review of a criminal conviction or in post-conviction relief proceedings, where the criminal defendant seeks a new trial In none of the federal appellate cases discussed above did the plaintiff seek a new trial; none of them needed one. Instead, the plaintiffs sought money damages for having to endure the pain, humiliation, and financial costs associated with being accused of the crimes In each of the federal cases discussed in the previous section, the plaintiffs were indeed prejudiced by the government's withholding of exculpatory evidence. If the government would have disclosed the evidence, the plaintiffs may not have suffered the prejudices attached with being wrongfully accused of crimes, be it financial damage, reputational harm, or otherwise. When Brady is viewed in this light-presenting a dichotomy between due process claims in the criminal and civil context-the Fourteenth Amendment must be interpreted so that an unconvicted criminal defendant will have a chance to prove a Brady claim. The appellate decisions have strayed from United States Supreme Court precedent and, as a result, have limited Brady in a manner that the Supreme Court did not envision. Finally, it is patently absurd to allow those who have been criminally convicted to have their due process rights vindicated under U.S. 83 (1963) U.S. 667 (1985) U.S. 419 (1995) See Kyles v. Whitley, 514 U.S. 419, 435 (1995); United States v. Bagley, 473 U.S. 667, & n.9 (1985) In a non-brady context, the plaintiff in Haupt v. T.D. Dillard, 17 F.3d 285, (9th Cir. 1994), claimed a due process violation for denial of a fair criminal trial, pursuant to 1983, notwithstanding his acquittal. The Ninth Circuit held, "The fact that [the plaintiff] ultimately was acquitted speaks only to the amount of damages he suffered; it is irrelevant to whether he has a cause of action." Id. at 287.