FILED -~ APR

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1 No FILED -~ APR OFFICE OF THE CLERK IN THE bupreme ourt of tl e niteb btate DONYELLE WOODS, Petitioner, V. WILLIE SMITH, Warden, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit BRIEF FOR FORMER PROSECUTORS AS AMICI CURIAE IN SUPPORT OF PETITIONERS PAUL MARGOLIS CHAD J. RAY JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL (312) ISHAN BHABHA Counsel of Record JENNER & BLOCK LLP 1099 New York Ave. NW Suite 900 Washington, DC (202) IBhabha@jenner.com Counsel for Amici Curiae Former Prosecutors

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3 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTEREST OF AMICI CURIAE FORMER PROSECUTORS SUPPORTING PETITIONERS... 1 SUMMARY OF ARGUMENT... 2 STATEMENT OF THE CASE... 3 ARGUMENT The Sixth Circuit s decision conflicts with this Court s decision in Brady and the decisions of at least six other courts Basic Fairness suggests against a diligence requirement for relief in Brady cases The Sixth Circuit s rule is impractical for prosecutors to administer... 8 CONCLUSION... 12

4 ii TABLE OF AUTHORITIES CASES Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014)... 7 Arizona v. Gant, 556 U.S. 332 (2009)...9 Banks v. Dretke, 540 U.S. 668 (2004)...passim Brady v. Maryland, 373 U.S. 83 (1963)...passim Carter v. Bigelow, 787 F.3d 1269 (10th Cir. 2015)... 7 Dennis v. Secretary, Pennsylvania Department of Corrections, 834 F.3d 263 (3d Cir. 2016)... 6 Gideon v. Wainwright, 372 U.S. 335 (1963)...9 Giglio v. United States, 405 U.S. 150 (1972)...6 Kyles v. Whitley, 514 U.S. 419 (1995)...5, 8 Mapp v. Ohio, 367 U.S. 643 (1961)...9 Maynard v. Government of Virgin Islands, 392 F. App x 105 (3d Cir. 2010)... 6 Michigan v. Summers, 452 U.S. 692 (1981)...9 Miranda v. Arizona, 384 U.S. 436 (1966)...9 Neder v. United States, 527 U.S. 1 (1999)...6 Pennsylvania v. Ritchie, 480 U.S. 39 (1987)...6 People v. Chenault, 845 N.W.2d 731 (Mich. 2014)... 7

5 111 People v. McMullan, 771 N.W.2d 810 (Mich. Ct. App. 2009), judgment affd, 789 N.W.2d 857 (Mich. 2010)... 6 State v. Williams, 896 A.2d 973 (Md. 2006)...7 Tempest v. State, 141 A.3d 677 (R.I. 2016)...7 United States v. Agurs, 427 U.S. 97 (1976)...4, 5, 8 United States v. Bagley, 473 U.S. 667 (1985)...6 OTHER AUTHORITIES Stephanos Bibas, Brady v. Maryland: From Adversarial Gamesmanship Toward the Search for Innocence? in Criminal Procedure Stories 129 (Carol S. Steiker ed., 2006)... 5 Kate Weisburd, Prosecutors Hide, Defendants Seek: The erosion of Brady Through the Defendant Due Diligence Rule, 60 UCLA L. Rev. 138 (2012)... 10

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7 1 INTEREST OF AMICI CURIAE FORMER PROSECUTORS SUPPORTING PETITIONERS Amici are former Federal prosecutors who have dedicated years of service to the criminal justice system and have a continuing and active interest in the fair and effective administration of criminal trials.1 From amici s many years of prosecutorial experience, they understand that basic fairness and public confidence in our justice system depend upon a prosecutor s faithful compliance with his or her affirmative duty of disclosure. See Brady v. Maryland, 373 U.S. 83, 87 (1963) ("Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly."). On March 17, 2017, the Michigan Innocence Clinic filed a petition for certiorari on behalf of Donyelle Woods. The petition argued that Mr. Woods s conviction violated both Confrontation Clause and protections afforded defendants under this Court s decision in Brady v. Maryland, 373 U.S. 83 (1963). This brief focuses only on the Brady issue. Amici understand that convictions can only be properly achieved and sustained on appeal through the fair administration of justice at trial. A crucial procedural protection within the criminal justice system is the requirement that prosecutors fairly investigate 1 No counsel for a party authored this brief, in whole or in part, and no person other than the amici or their counsel contributed any money to fund its preparation or submission. Counsel for amici provided timely notice of amici s intent to file this brief, and the parties have consented. A list of amici is appended to this brief.

8 2 exculpatory evidence in the state s control and disclose such evidence to the defense. This clearly established bright line rule specifying when disclosure is required assists prosecutors by providing easy to follow guidance for complying with Brady. Amici submit this brief because the United States Court of Appeals for the Sixth Circuit s decision undermines the constitutional protections of due process and right to a fair trial and is in conflict with governing decisions of this Court. SUMMARY OF ARGUMENT Contrary to the clear mandate of Brady, some courts impose a due-diligence requirement on defendants, in effect requiring defendants to prove that they could not have received exculpatory information except from the state. Amici believe these holdings are wrong. In Brady, this Court held that prosecutors have a duty to produce all material exculpatory information in the state s possession to the defense. The Court should reaffirm this basic procedural protection and hold that no due diligence showing exists as a prerequisite to proving a Brady violation. Amici urge this Court to grant certiorari and reverse the Sixth Circuit s decision for three reasons. First, the Sixth Circuit s decision conflicts not only with Brady but with the decisions of lower courts squarely holding that no due diligence obligation exists as a prerequisite to showing a Brady violation. Second, the Sixth Circuit s decision violates notions of basic fairness in criminal procedure. And, third, the Sixth Circuit s decision is not administrable, to the harm of prosecutors and defendants alike.

9 3 STATEMENT OF THE CASE Six years after his conviction, Mr. Woods obtained post-conviction counsel. His post-conviction counsel uncovered evidence that the lead detective in Mr. Woods s case knew that a particular witness s death was unrelated to the case because of a separate investigation conducted by the same detective. This evidence would have been significant at trial because the prosecution strongly and inaccurately implied that Mr. Woods was involved in the unrelated homicide. The state trial court gave two reasons for denying relief on Mr. Woods s Brady claims. First, the trial court stated that the defense could have obtained the Brady material through its own investigation at trial. Second, the trial court stated that the relevant Brady material was never recorded or revealed to the prosecutor, and thus was outside of the prosecutor s obligations under Brady. On appeal from the district court s denial of habeas relief, the Sixth Circuit misinterpreted Brady, and held that neither of the district court s justifications was an unreasonable application of clearly established federal law. Pet.App. 42a-43a. In support of this proposition, the Sixth Circuit noted that this Court rejected a diligence requirement in Banks v. Dretke, 540 U.S. 668 (2004). Pet.App. 45a-46a. However, the Sixth Circuit explained that "the Banks Court did not clearly explain whether courts must apply a diligence requirement in a situation where, as here, there is no evidence that the prosecutor made such a representation [that all Brady evidence had been disclosed]. Though we have read Banks broadly to repudiate a diligence requirement in all Brady cases

10 4 that we consider de novo, we have never purported to decide that Banks clearly established such a rule." Pet.App. 45a (internal citations omitted). The Sixth Circuit cited cases from the Third and Fifth Circuits, requiring the defendant to show diligence, to reject the argument that the Supreme Court "clearly" rejected a diligence requirement. Pet.App. 44a-45a. ARGUMENT In its decision, the Sixth Circuit applied an excessively narrow interpretation of Brady, avoiding its own prior decisions rejecting a diligence requirement and abrogating the clearly established law in Banks. In so doing, the Court of Appeals not only misread this Court s decisions, but also promulgated a rule in conflict with two critical policy considerations that underlie Brady: (1) basic notions of fairness; and (2) practical and efficient case administration for prosecutors. The Sixth Circuit s decision conflicts with this Court s decision in Brady and the decisions of at least six other courts. In Brady, this Court established three, and only three, predicates for relief, namely that (1) evidence favorable to the defendant, (2) material either to guilt or sentencing, and (3) was suppressed by the State (willfully or inadvertently). Brady, 373 U.S. at 87; see also, Banks, 540 U.S. at 696 ("A rule thus declaring prosecutor may hide, defendant must seek, is not tenable in a system constitutionally bound to accord defendants due process."); United States v. Agurs, 427 U.S. 97, (1976) (finding that a fair trial requires

11 5 that "evidence tending to show innocence, as well as that tending to show guilt, be fully aired before the jury"). Brady was thus a shift "from traditionally unfettered adversarial combat toward a more inquisitorial, innocence-focused system." Stephanos Bibas, Brady v. Maryland: From Adversarial Gamesmanship Toward the Search for Innocence? in Criminal Procedure Stories 129, 129 (Carol S. Steiker ed., 2006). Subsequent cases have helped define the boundaries of the Brady right, but this Court has never diminished or diluted the prosecution s sole responsibility for producing exculpatory evidence to the defendant. For example, in Kyles v. Whitley, this Court emphasized "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government s behalf in the case, including the police." 514 U.S. 419, 437 (1995). The Court placed this burden on the prosecution because "a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence" and "such disclosure will serve to justify trust in the prosecutor as the representative... of a sovereignty.., whose interest.., in a criminal prosecution is not that it shall win a case, but that justice shall be done. " Id. at 439 (quoting Berger v. United States, 295 U.S. 78, 88 (1935) (ellipses in original); see also United States v. Agurs, 427 U.S. 97, 108 (1976) ("the prudent prosecutor will resolve doubtful questions in favor of disclosure."). The Court dismissed any cost this responsibility might place on the prosecution, finding "[t]o the extent [Brady s disclosure duty] places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure

12 communication of all relevant information on each case to every lawyer who deals with it." Giglio v. United States, 405 U.S. 150, 154 (1972). Thus, prosecutors have an active, ongoing duty to "assist the defense in making its case." United States v. Bagley, 473 U.S. 667, 675 n.6 (1985); Pennsylvania v. Ritchie, 480 U.S. 39, (1987). These duties are appropriate because "the central purpose of a criminal trial is to decide the factual question of the defendant s guilt or innocence" and withholding exculpatory evidence undermines this goal. Neder v. United States, 527 U.S. 1, 18 (1999) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). Since Brady, no decision of this Court has ever imposed a duty on a defendant to exercise due diligence in independently identifying Brady evidence. The Court in Banks rejected such a requirement, clearly establishing that diligence on behalf of the defendant was not part of the Brady analysis. Brady, 373 U.S. at 87; Banks, 540 U.S. at 696. The Sixth Circuit imposed such a requirement and, in doing so, noted that at least two other courts had also imposed a duty on defendants to show diligence in discovery of Brady material. Pet.App. 44a-45a (citing United States v. Brown, 650 F.3d 581,588 & n.10 (5th Cir. 2011); Maynard v. Gov t of V.I., 392 F. App x 105, 112 (3d Cir. 2010); People v. McMullan, 771 N.W.2d 810, 816 (Mich. Ct. App. 2009), judgement aff d, 729 N.W.2d 857 (Mich. 2010)). These decisions conflict not only with the decisions of this Court, but one notably conflicts with an en banc decision of the same court (Third Circuit) as well as cases of numerous other lower courts refusing to impose such a due diligence requirement. See Dennis v. Sec y, Pa. Dep t of Corr., 834 F.3d 263, (3d Cir. 2016) (en

13 7 banc); Carter v. Bigelow, 787 F.3d 1269, 1282 (10th Cir. 2015); Amado v. Gonzalez, 758 F.3d 1119, (9th Cir. 2014); Tempest v. State, 141 A.3d 677, 696 n.12 (R.I. 2016); People v. Chenault, 845 N.W.2d 731, (Mich. 2014); State v. Williams, 896 A.2d 973, (Md. 2006). 2. Basic Fairness suggests against a diligence requirement for relief in Brady cases. Brady is premised on the goals of truth seeking and fair trials. Brady, 373 U.S. at 87. These goals are achieved through the clearly established rule requiring full disclosure to the defense of evidence in the possession of the state. As a practical matter, the clearly established rule in Banks rejecting a diligence requirement for the defendant comports with basic notions of fairness. First, the evidence at issue in Brady violations is always in the possession of the state. Reducing the prosecutor s burden by requiring the defense to request the undisclosed evidence suggests that the prosecutor s disclosure duty is not absolute. This incentivizes prosecutors to err on the side of delayed disclosure or suppression of evidence where the prosecutor, in their sole discretion, decides that the evidence is marginal. Anything less than a strict compliance rule inevitably leads to less discovery and disclosure of material evidence. When evidence is withheld, the defense is unable to present it, and cannot conduct the reasonable and diligent investigation required to identify additional exculpatory evidence. Ultimately, the factfinder is prejudiced by the lack of disclosure by being denied evidence that otherwise might have been presented.

14 Second, bright line policies mandating effective investigation and production of exculpatory evidence by prosecutors, which grant defendants a fair opportunity to present their defenses, facilitate quick dispatch of non-meritorious claims on appeal The Sixth Circuit s rule is impractical for prosecutors to administer. The clearly established bright line rule in Kyles and Agurs, mandating a reasonable investigation into evidence in the state s possession and full disclosure of material exculpatory evidence to the defense assists prosecutors in administering their duties. Rather than a complicated rule with ifs, ands, or buts separated by subtle nuance, which might be impossible to apply consistently and fairly across cases, the bright line rules that this Court has provided for complying with Brady promote easy to follow guidelines for 2 There are numerous additional benefits to the states in focusing federal habeas corpus challenges. For instance, claims in federal habeas corpus petitions commonly allege ineffective assistance of counsel, based on a failure to uncover exculpatory evidence. However, the judges typically cannot distinguish whether the real attack is on counsel or on the verdict. To prevent injustice, federal judges may be tempted to give more weight to the former attack if the latter appears meritorious, even though counsel could not reasonably have prevented the outcome on the facts that were then available. If proceedings at the state level were fully litigated on the merits with full evidentiary disclosure, this problem would not exist, rendering attacks on the performance of counsel fewer and better focused, where applicable.

15 prosecutors, defense attorneys, and judges alike. For these reasons, bright line rules are commonplace in defining the scope of rights under the constitution. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961) (evidence obtained without a warrant cannot be used in a criminal trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (defendants have the right to counsel); Miranda v. Arizona, 384 U.S. 436 (1966) (police detainees must be informed of their right to remain silent and to counsel before they may give a voluntary statement); Michigan v. Summers, 452 U.S. 692 (1981) (a search warrant comes. with limited authority to detain occupants of the premises while the search is conducted); Arizona v. Gant, 556 U.S. 332 (2009) (law enforcement must demonstrate an actual and continuing threat to safety or a need to preserve evidence from tampering to justify a warrantless vehicular search incident to arrest). Disclosure to the defense of all material exculpatory evidence in the state s possession also allows the defense to fully and efficiently investigate the facts at the onset, when evidence is most likely to be available. Moreover, particularly to the extent the prosecution already possesses the evidence, the process as a whole operates more efficiently if the prosecution is required to disclose it to the defense. Disclosure costs the prosecution nothing, while conserving the defense s more-limited resources if they did not already possess the evidence. Thus, disclosure provides the factfinder with as much relevant evidence as possible, improving the likelihood for a more accurate result at trial. More accurate results at trial further benefit prosecutors by eliminating appeal arguments by the defense and reducing the number of potentially meritorious appeals and retrials.

16 10 The Court s clearly established bright line rule in Banks mandating full disclosure, without requiring diligence by the defense, also makes logical sense because prosecutors are not typically in a position to evaluate whether the defense has access to exculpatory evidence. See Kate Weisburd, Prosecutors Hide, Defendants Seek: The erosion of ~ Through the Defendant Due Diligence Rule, 60 UCLA L. Rev. 138, (2012). Eliminating deliberation by the prosecution on whether particular evidence must be produced to the defense because it might not have access to it should streamline the prosecutor s duties. It is unreasonable to force prosecutors to decide what evidence might be available to the defense, absent disclosure by the prosecution. The bright line rule mandating disclosure simplifies proceedings and removes guesswork. This rule also ensures consistent disclosure across cases, reducing concerns that prosecutors are not applying the law equally to all citizens. A more nuanced rule requiring prosecution discretion in determining what defense counsel knows or should know about certain evidence is also an impractical burden to place on prosecutors, and will not be administrable in practice. Prosecutors are simply not well positioned to know what evidence might be uncovered by a reasonably competent defense attorney.3 The defense does not have equal access to witnesses and evidence as the state. The state has law enforcement ~ Defense counsel are also poorly positioned to comply with a diligence rule because they are illogically required to request evidence that they have no reason to know exists.

17 11 personnel to conduct its investigation, and direct access to laboratories for testing of evidence, while the defense must investigate its case without similar resources. Moreover, the state s witnesses may refuse to speak with the defense, either because they do not feel comfortable being contacted by defense counsel, out of loyalty to the victim, or out of prejudice against the defendant. It is also notable that many defendants have limited capacity to assist defense counsel in overcoming the evidentiary advantage that the prosecution enjoys. First, the defendant may not have a complete understanding of the facts, and may be incarcerated, reducing their ability to assist in a full investigation. Thus, relevant exculpatory facts may be undiscoverable through the defendant. Even if potentially exculpatory facts are known to the defendant, the defendant may not disclose them because they do not understand that such facts might be helpful to their defense. The defendant also may not fully and accurately disclose relevant facts to defense counsel because of some incapacity (mental, substance use related, or otherwise), or out of distrust for defense counsel who may be seen as part of the same system as law enforcement and the prosecution. The clearly established bright line rule in Banks, requires complete disclosure by the prosecution without diligence by the defense. While no rule can completely ameliorate the defense s disadvantages, this rule mitigates the unfairness, while helping to secure a fair trial for the defendant that will be easier for the prosecution to defend on appeal.

18 12 CONCLUSION Despite disproportionately affecting the poorest among us, the principles discussed in this brief affect everyone in our society. Laws must be interpreted to the benefit of each citizen of the United States. Neither a wronged litigant nor society can afford to compromise on the administration of justice. Therefore, the Court should uphold its clearly established rules for complying with Brady, and interpret the constitution to administer justice and protect the remedies necessary to enable defendants to prove their innocence. Respectfully submitted, Dated: April 21, 2017 PAUL MARGOLIS CHAD J. RAY JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL (312) ISHAN BHABHA Counsel of Record JENNER & BLOCK LLP 1099 New York Ave. NW Suite 900 Washington, DC (202) IBhabha@jenner.com Counsel for Amici Curiae Former Prosecutors