Supreme Court of the United States

No. 16-619 ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- DAVID WHITE, v. Petitioner, NEWTON CONDICT, IV, Respondent. --------------------------------- --------------------------------- On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit --------------------------------- --------------------------------- BRIEF FOR THE NATIONAL POLICE ACCOUNTABILITY PROJECT AS AMICUS CURIAE IN SUPPORT OF PETITION --------------------------------- --------------------------------- PATRICK G. GECKLE THE LAW OFFICES OF PATRICK G. GECKLE, LLC Suite 1200 1515 Market Street Philadelphia, PA 19102 (215) 735-3326 pgeckle@pgglaw.com Counsel for Amicus Curiae ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

i TABLE OF CONTENTS Page Table of Contents... i Table of Authorities... ii Interest of the Amicus Curiae... 1 Summary of Argument... 2 Argument... 3 I. Law Enforcement Misconduct Is a Significant Cause of Unwarranted Incarceration and Inflicts Considerable Harm Through the Deprivation of Liberty of Innocent People... 3 II. The Deliberate Failure to Provide Exculpatory Evidence to a Person Charged with a Crime Violates that Individual s Rights to Procedural Due Process... 7 Conclusion... 11

ii TABLE OF AUTHORITIES Page CASES Albright v. Oliver, 510 U.S. 266 (1994)... 8 Baker v. McCollan, 443 U.S. 137 (1979)... 10, 11 BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986)... 10 Brady v. Maryland, 373 U.S. 83 (1963)... 7, 8 District Attorney s Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009)... 8 Franks v. Delaware, 438 U.S. 154 (1978)... 10 Gerstein v. Pugh, 420 U.S. 103 (1975)... 6 Liston v. County of Riverside, 120 F.3d 965 (9th Cir. 1997)... 10 Little v. Streater, 452 U.S. 1 (1981)... 8 McCann v. Mangialardi, 337 F.3d 782 (7th Cir. 2003)... 9 Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009)... 9 Monell v. Dep t of Soc. Servs., 436 U.S. 658 (1978)... 11 Monroe v. Pape, 365 U.S. 167 (1961)... 11 Reid v. State of New Hampshire, 56 F.3d 332 (1st Cir. 1995)... 9 Sanders v. English, 930 F.2d 1152 (5th Cir. 1992)... 10 Tatum v. Moody, 768 F.3d 806 (9th Cir. 2014) cert. denied, 132 S.Ct. 2312 (2015)... 9

iii TABLE OF AUTHORITIES Continued Page White v. McKinley, 519 F.3d 806 (8th Cir. 2008)... 9 Wilson v. Russo, 212 F.3d 781 (3d Cir. 2000)... 10 CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const. amend. IV... 10 U.S. Const. amend. XIV... 9 42 U.S.C. 1983... passim OTHER AUTHORITIES Confronting Confinement, Report of the Commission on Safety and Abuse in America s Prisons, John J. Gibbon, Nicholas deb. Katzenbach Commission Co-chairs, June 2006 www.vera.org/publications/confrontingconfinement... 5, 6 Justice Anthony M. Kennedy, Speech at American Bar Association Annual Meeting, August 9, 2003, available at www.supremecourt. gov/publicinfo/speeches/sp_08_09_03.htlm... 3 Michael Avery, Paying for Silence; The Liability of Police Officers Under Section 1983 for Suppressing Exculpatory Evidence 13 Temple Pol. and Civ. Rts. Law Rev. 1 (2003)... 7 Mission Statement, The National Registry of Exonerations, available at www.law.umich.edu/ special/exoneration/pages/mission.aspx... 4

iv TABLE OF AUTHORITIES Continued Page The National Registry of Exonerations, Exonerations in 2015, February 3, 2016, available at www.law.umich.edu/special/exoneration/ Documents/Exonerations_in_2015.pdf... 4

1 INTEREST OF THE AMICUS CURIAE 1 The National Police Accountability Project (NPAP) was founded in 1999 by members of the National Lawyers Guild to address allegations of misconduct by law enforcement and corrections officers by coordinating and assisting civil rights lawyers. The project presently has more than five hundred attorney members throughout the United States. NPAP provides training and support for attorneys and other legal workers, public education and information on issues related to misconduct and accountability, and resources for nonprofit organizations and community groups involved with victims of law enforcement misconduct. NPAP also supports legislative efforts aimed at increasing accountability, and appears as Amicus Curiae in cases, such as this one, which present issues of particular importance for the clients of its lawyers, incarcerated and prosecuted as a result of the deliberate suppression of exculpatory evidence by police officers or detectives. --------------------------------- --------------------------------- 1 Pursuant to Supreme Court Rule 37, the parties were given 10-day notice and have provided written consent for the filing of this Amicus brief on behalf of Petitioner. No counsel for a party authored this brief in whole or in part, or made a monetary contribution intended to fund the preparation or submission of this brief. Only Amicus Curiae, its members and its counsel made a monetary contribution to the preparation or submission of this brief.

2 SUMMARY OF ARGUMENT Law enforcement misconduct has resulted in the unjustified imprisonment of too many individuals. The members of NPAP are engaged regularly by innocent individuals who have suffered the horrors of wrongful incarceration. Despite the recurring nature of the problem of unwarranted incarceration resulting from law enforcement misconduct this Court has never explicitly held that when the deliberate withholding of exculpatory evidence by a law enforcement officer results in prolonged incarceration a constitutional right is violated. The dreadful nature of many prisons and jails is researched and documented. The deprivation of liberty suffered by someone wrongfully incarcerated is beyond significant. Just as clear, the deliberate failure of a law enforcement officer to provide exculpatory evidence that would free someone from jail violates that individual s right not to be deprived of liberty without due process of law. The facts of this case are straight forward. Petitioner White was subjected to the horrors and indignity of incarceration for eight months for a crime he clearly did not commit. Respondent Condict was aware for almost the entirety of that eight months that White should not be in jail. More specifically, Condict was in possession of powerful exculpatory evidence which he deliberately withheld and had it been given to the prosecuting attorney, would have certainly resulted in White s release. The decision of the Court below left

3 Petitioner without a remedy. The issues raised by Petitioner are of critical importance and need to be clarified. --------------------------------- --------------------------------- ARGUMENT I. LAW ENFORCEMENT MISCONDUCT IS A SIGNIFICANT CAUSE OF UNWAR- RANTED INCARCERATION AND INFLICTS CONSIDERABLE HARM THROUGH THE DEPRIVATION OF LIBERTY OF INNO- CENT PEOPLE. In 2003 Justice Kennedy spoke about the injustices in our prison and correctional systems. He remarked that when the doors lock against the prisoner, we do not think about what is behind it. Speech at American Bar Association Annual Meeting, August 9, 2003, available at www.supremecourt.gov/publicinfo/ speeches/sp_08_09_03.htlm. Justice Kennedy, of course, was speaking to the moral obligation of the bar to address the inadequacies of jails and prisons and injustices inflicted on men and women who are being denied their liberty. All too often there is also a failure to recognize that the people locked away in those jails and prisons are there as a result of police misconduct. This case is about the duty of law enforcement officers to come forward when they possess persuasive evidence that an innocent person is experiencing the inadequacies and injustices of our prison and jail

4 system. The problem of innocent people spending considerable time in jails and prisons for crimes they did not commit is a significant one. The National Registry of Exonerations, a joint project of the University of California Irvine Newkirk Center of Science and Society, of the University of Michigan Law School and the Michigan State University College of Law, has documented 1,935 exonerations during the time period 1984 to the present. The national registry collects, analyses and disseminates information about all known exonerations of innocent criminal defendants in the United States. See Mission Statement, The National Registry of Exonerations, available at www.law.umich.edu/special/exoneration/pages/ mission.aspx In the year 2015, 149 defendants were exonerated, a new record. Critical to the issues in this case is the fact that official misconduct played a role in 65 of those exonerations, or over 43 percent. The National Registry of Exonerations, Exonerations in 2015, February 3, 2016, available at www.law.umich.edu/special/exoneration/ Documents/Exonerations_in_2015.pdf What these numbers made clear is that official misconduct, particularly misconduct on the part of law enforcement, continues to plague our criminal justice system resulting in the infliction of the horrors of incarceration upon innocent people. The numbers reflected above of course, could very well be only the tip of the iceberg. Those numbers only represent incarcerated individuals who

5 have had the good fortune to obtain competent, dedicated counsel who are able to root out the government misconduct. It is hardly news that incarceration is unpleasant. However, the depth of the despair and indignity visited upon someone who is in jail is too often unrecognized. [T]he public knows very little about the conditions of confinement and whether they are punishing in ways that no judge or jury ever intended; marked by the experience of rape, gang violence, abuse by officers, infectious disease and never ending solitary confinement. Unless the experience of incarceration becomes real through the confinement of a loved one or through a family member who works day to day in a correctional facility, jails and prisons and the people inside them are far removed from our daily concerns. Confronting Confinement, a Report of the Commission on Safety and Abuse in America s Prisons, John J. Gibbon, Nicholas deb. Katzenbach Commission Co-chairs, June 2006 available at www. vera.org/publications/confronting-confinement, p. iii. Violence is a serious problem in American prisons and jails. There is disturbing evidence of individual assaults and patterns of violence in some U.S. prisons and jails.... Former prisoners recounted gang violence, rape, beatings by officers and in one large jail, a pattern of illegal and humiliating strip-searches. Id. p. 11, 12. The inadequacy of medical care provided in jails and prisons has been well documented: High

6 rates of disease and illness among prisoners, coupled with inadequate funding for correctional healthcare endangers prisoners, staff and the public.... [M]ost correctional systems are set up to fail. They have to care for a sick population on shoestring budgets and with little support from community healthcare providers and public health authorities. Id. p. 13. When someone is deprived of their liberty through incarceration the deprivation is enormous and far reaching. It affects not only the incarcerated individual themself but many others. It is well known that jailing people prior to conviction often breaks up families and results in devastating separation from partners, the loss of custody of children and traumatic effects on those children and fewer caregivers for the elderly and disabled. Financial and emotional hardships punishes not only the accused but their families as well. The fact that an accused suffers a deprivation of liberty during the pretrial phase of a criminal case has been recognized by the Court: [t]he consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect s job, interrupt his source of income, and impair his family relationships. Gerstein v. Pugh, 420 U.S. 103 at 114 (1975). --------------------------------- ---------------------------------

II. 7 THE DELIBERATE FAILURE TO PRO- VIDE EXCULPATORY EVIDENCE TO A PERSON CHARGED WITH A CRIME VIO- LATES THAT INDIVIDUAL S RIGHTS TO PROCEDURAL DUE PROCESS. When police officers deliberately fail to provide exculpatory evidence to a prosecutor an innocent person remains in jail. The decision of the Court below left Petitioner, an obviously innocent man who spent eight months suffering in jail, without a remedy. Petitioner has raised an issue of grave importance which needs to be clarified. Although the Supreme Court has never considered the substantive scope of the Section 1983 claim for the failure to disclose exculpatory evidence, it is clear from its decisions following Brady v. Maryland, 373 U.S. 83 (1963), that such a failure violates the procedural due process rights of a criminal defendant. 2 Although Brady identified the suppression of exculpatory evidence simply as a due process violation, id. at 87, without specifying whether substantive or procedural due process was at stake, subsequent cases have clarified the issue. The right of a criminal defendant to receive exculpatory evidence derives from concerns 2 This analysis is set forth in greater detail in Michael Avery, Paying for Silence; The Liability of Police Officers Under Section 1983 for Suppressing Exculpatory Evidence 13 Temple Pol. and Civ. Rts. Law Rev. 1 (2003). That article comprehensively explores the issues raised by Section 1983 claims for the failure by police officers to disclose exculpatory evidence to prosecutors.

8 about the fairness of the procedures by which a defendant may be prosecuted and convicted, not from concerns about whether there is sufficient governmental interest in punishing convicted criminals. Procedural due process was identified as the relevant constitutional right at stake in District Attorney s Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009) where the Court began its analysis of preand post-conviction entitlements to exculpatory evidence by noting that the due process clause of the 14th Amendment imposes procedural limitations on a state s power to take away protected entitlements. Id. at 2319. The Osborne Court s discussion of a potential right to post-conviction access to DNA evidence is framed in terms of what procedures are required by the Constitution. Chief Justice Roberts specifically distinguished the Court s conclusion that the due process clause does not require post-conviction access to DNA evidence from the principles of Brady v. Maryland where the Court held that due process requires a prosecutor to disclose material exculpatory evidence to the defendant before trial. Id. For other Supreme Court decisions indicating that Brady involves a procedural due process right, see Albright v. Oliver (Chief Justice Rehnquist, joined by Justices O Connor, Scalia, and Ginsburg, suggesting that the Brady line of cases protected procedural due process rights), 510 U.S. at 273, n.6, and Little v. Streater, 452 U.S. 1 (1981) (violation of procedural due process for state to refuse to bear cost of blood grouping tests for indigent defendant in civil paternity action brought

9 by state welfare department). See also, e.g., White v. McKinley, 519 F.3d 806, 813-14 (8th Cir. 2008) (failure to disclose exculpatory evidence analyzed as procedural due process claim); Moldowan v. City of Warren, 578 F.3d 351, 377, n.6 (6th Cir. 2009) (failure to furnish exculpatory evidence is a procedural due process violation); McCann v. Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003) (failure to disclose exculpatory evidence is a procedural due process violation); Reid v. State of New Hampshire, 56 F.3d 332, 341 (1st Cir. 1995) (because New Hampshire law provided no remedy for procedural due process violation of failing to disclose exculpatory evidence, plaintiff had federal claim under Section 1983). Recently the Ninth Circuit addressed these issues in a case involving detectives who deliberately withheld powerful exculpatory evidence of a detainees innocence from a prosecutor. The Ninth Circuit concluded: Where as here, investigating officers acting with deliberate indifference or reckless disregard for a suspect s right to freedom from unjustified loss of liberty, failed to disclose potentially dispositive exculpatory evidence to the prosecutor, leading to the lengthy detention of an innocent man, they violate the due process guarantee of the Fourteenth Amendment. Tatum v. Moody, 768 F.3d 806, 816 (9th Cir. 2014), cert. denied, 132 S.Ct. 2312 (2015). It might be noted that the law is clearly established that making material false statements and/or excluding material exculpatory information from an affidavit in support of an arrest warrant will violate a subject s constitutional right to be free from an

10 unreasonable seizure under the Fourth Amendment. Franks v. Delaware, 438 U.S. 154 (1978). Although Franks dealt with affirmative misrepresentation of facts in a warrant, the lower federal courts have consistently held that the Franks decision compels the conclusion that law enforcement officers are also liable under Section 1983 for material omissions of exculpatory information from warrant affidavits. 3 Shortly after Franks was decided, the Court decided Baker v. McCollan where the Court recognized that after the lapse of a certain amount of time, the detention of an individual in the face of repeated protests of innocence will deprive the accused of liberty 3 See, e.g., Liston v. County of Riverside, 120 F.3d 965, 973 (9th Cir. 1997) (holding that whether the alleged judicial deception was brought about by material false statements or material omissions is of no consequence ); Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000) (finding that a constitutional violation can be shown if evidence is adduced that the affiant to an arrest warrant recklessly disregarded the truth in his warrant application, including omissions of exculpatory evidence. The Wilson Court was also confronted by a claim from the plaintiff that his continued incarceration after the defendant detective learned of exculpatory facts was unconstitutional. Finding that the exculpatory information did not dissipate probable cause, the Court declined to address the issue but noted that other courts had found that law enforcement officers do have a duty to inform prosecutors of exculpatory information citing Sanders v. English, 930 F.2d 1152, 1162 (5th Cir. 1992) ( [F]ailure to disclose... undeniably credible and patently exculpatory evidence to the prosecuting attorney s office plainly exposes defendant police officers to liability under Section 1983. ); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) ( the continuation of even a lawful arrest violates the Fourth Amendment when the police discover additional facts dissipating their earlier probable cause.

11... without due process of law. 443 U.S. 137, 145 (1979). Although the Court concluded that a detention of three days did not amount to such a deprivation, Petitioner White was confined for eight months for a crime he clearly did not commit. --------------------------------- --------------------------------- CONCLUSION The Petition for a Writ of Certiorari makes abundantly clear that every circuit court in the country has held that an officer has the duty to report exculpatory information. Condict recklessly disregarded that duty and allowed an innocent man to stay in jail for eight months. Fifty-five years ago this Court made clear that under Section 1983 a [person is] responsible for the natural consequences of his actions. Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part on other grounds by, Monell v. Dep t of Soc. Servs., 436 U.S. 658 (1978). Respondent Condict should be held responsible for the natural consequences of his actions. Respectfully submitted, PATRICK G. GECKLE THE LAW OFFICES OF PATRICK G. GECKLE, LLC Suite 1200 1515 Market Street Philadelphia, PA 19102 (215) 735-3326 pgeckle@pgglaw.com Counsel for Amicus Curiae