Jean v. Collins

Filed: August 15, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-7694

(CA-94-62-4-H2)

Lesly Jean,

Plaintiff - Appellant,

versus

Delma Collins, etc., et al.,

Defendants - Appellees.

O R D E R

The court further amends its opinion filed July 31, 2000, and

amended August 11, 2000, as follows:

On page 16, first full paragraph, line 6 -- the phrase “on

restrictive interpretation” is corrected to read “on a restrictive

interpretation.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

Filed: August 11, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-7694

(CA-94-62-4-H2)

Lesly Jean,

Plaintiff - Appellant,

versus

Delma Collins, etc., et al.,

Defendants - Appellees.

O R D E R

The court amends its opinion filed July 31, 2000, as follows:

On page 36, second full paragraph, line 16 -- “id. at 10" is

changed to read “id.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LESLY JEAN,

Plaintiff-Appellant,

v.

DELMA COLLINS, Chief of Detectives

of the City of Jacksonville,

No. 95-7694

Individually; JAMES SHINGLETON,

Police Officer with the City of

Jacksonville, North Carolina, Police

Department, Individually,

Defendants-Appellees.

On Remand from the United States Supreme Court.

(S. Ct. No. 98-980)

Argued: October 25, 1999

Decided: July 31, 2000

Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN,

WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL,

MOTZ, TRAXLER, and KING, Circuit Judges, and HAMILTON,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by published per curiam opinion. Chief Judge Wilkinson

wrote an opinion concurring in the judgment, in which Judge Wid-

ener, Judge Wilkins, Judge Niemeyer, Judge Williams, and Judge

Traxler joined. Judge Murnaghan wrote a dissenting opinion, in

which Judge Michael, Judge Motz, Judge King, and Senior Judge

Hamilton joined. Judge Luttig wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard Brooks Glazier, BEAVER, HOLT, RICHARD-

SON, STERNLICHT, BURGE & GLAZIER, P.A., Fayetteville,

North Carolina, for Appellant. Kenneth Ray Wooten, WARD and

SMITH, P.A., New Bern, North Carolina, for Appellees. ON BRIEF:

Rebecca J. Britton, BEAVER, HOLT, RICHARDSON, STERN-

LICHT, BURGE & GLAZIER, P.A., Fayetteville, North Carolina, for

Appellant. John R. Green, Jr., WARD and SMITH, P.A., New Bern,

North Carolina, for Appellees.

_________________________________________________________________

OPINION

PER CURIAM:

This case came to be argued before the en banc court on October

25, 1999. The judgment of the district court is hereby affirmed by an

equally divided en banc court. Separate opinions follow seriatim.

AFFIRMED.

WILKINSON, Chief Judge, with whom Judges Widener, Wilkins,

Niemeyer, Williams, and Traxler join, concurring in the judgment:

We concur in the court's judgment dismissing this case against

North Carolina police officers Delma Collins and James Shingleton.

Plaintiff Lesly Jean contends that Officers Collins and Shingleton vio-

lated his Fourteenth Amendment due process rights by failing to turn

over exculpatory evidence to the prosecutor. Because plaintiff alleges

at most a negligent miscommunication between these officers and the

prosecutor, we would conclude that the officers have not deprived

Jean of any Fourteenth Amendment right. As a result, we do not

believe there can be any § 1983 liability. For the facts of this case we

would rely on our earlier en banc opinion. See Jean v. Collins, 155

F.3d 701, 703-05 (4th Cir. 1998) (en banc). In that case, we held that

as of "1982, a reasonable police officer would not have known that

his failure to turn over such evidence violated a criminal defendant's

clearly established constitutional rights." Id. at 708. The Supreme

2

Court then granted certiorari, vacated the judgment, and remanded to

this court for further consideration in light of Wilson v. Layne, 526

U.S. 603 (1999). See Jean v. Collins, 526 U.S. 1142 (1999). It is in

light of Wilson then that we address the question of when police offi-

cers are liable under § 1983 for allegedly withholding exculpatory

evidence from the prosecution and by extension a criminal defendant.

I.

Wilson's directions are straightforward ones. "A court evaluating a

claim of qualified immunity `must first determine whether the plain-

tiff has alleged the deprivation of an actual constitutional right at all

. . . .'" Wilson, 526 U.S. at 609 (quoting Conn v. Gabbert, 526 U.S.

286, 290 (1999)); accord Siegert v. Gilley, 500 U.S. 226, 232 (1991).

We must initially ask, therefore, if Jean has alleged a Fourteenth

Amendment due process violation by Officers Collins and Shingleton.1

Deciding this issue first can save a defendant from having "to engage

in expensive and time consuming preparation to defend the suit on its

merits." Siegert, 500 U.S. at 232. It "also promotes clarity in the legal

standards for official conduct, to the benefit of both the officers and

the general public." Wilson, 526 U.S. at 609 (citing County of Sacra-

mento v. Lewis, 523 U.S. 833, 841-42 n.5 (1998)).

In Jean v. Rice, 945 F.2d 82 (4th Cir. 1991), we held that Jean's

due process rights had been violated. Specifically, we noted that "the

government's failure [to turn over material impeachment evidence to

the defense] was a violation of the principles announced in Brady and

its progeny." Id. at 87. As a result of the prosecutor's Brady violation,

Jean's request for a writ of habeas corpus was granted. See id. The

question before us now is whether there was an additional constitu-

tional violation in this case -- a due process violation by Officers

_________________________________________________________________

1 In his dissenting opinion, our brother Murnaghan chides us for rein-

venting our theory of the case. This statement overlooks the fact that this

case is here on remand from the Supreme Court in light of Wilson v.

Layne. Wilson requires that this court address "whether the plaintiff has

alleged the deprivation of an actual constitutional right at all." 526 U.S.

at 609 (internal quotation marks omitted). It would be surprising if our

court had not reviewed its earlier approach in light of Wilson's directive.

Indeed, it would be irresponsible for us not to do so.

3

Collins and Shingleton for withholding from the prosecutor the hyp-

nosis recordings and reports.

The Supreme Court decisions establishing the Brady duty on the

part of prosecutors do not address whether a police officer indepen-

dently violates the Constitution by withholding from the prosecutor

evidence acquired during the course of an investigation. See, e.g.,

Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405

U.S. 150 (1972); United States v. Agurs, 427 U.S. 97 (1976); United

States v. Bagley, 473 U.S. 667 (1985). Recent cases, including some

from this circuit, have pointed toward such a duty. This court has

noted that, "[a] police officer who withholds exculpatory information

from the prosecutor can be liable under . . . section 1983," Goodwin

v. Metts, 885 F.2d 157, 162 (4th Cir. 1989), but only where "the offi-

cer's failure to disclose the exculpatory information deprived the

§ 1983 plaintiffs of their right to a fair trial," Taylor v. Waters, 81

F.3d 429, 436 n.5 (4th Cir. 1996). And in Carter v. Burch, the court

noted that a police officer's actions in failing to turn over materially

exculpatory evidence to a prosecutor "violate[d] [the § 1983 plain-

tiff's] constitutional rights." 34 F.3d 257, 264 (4th Cir. 1994). Other

circuits have also suggested that there may be a duty here. See Brady

v. Dill, 187 F.3d 104, 114 (1st Cir. 1999); Walker v. City of New York,

974 F.2d 293, 298-99 (2d Cir. 1992); Geter v. Fortenberry, 849 F.2d

1550, 1559 (5th Cir. 1988); Sanders v. English, 950 F.2d 1152, 1162

(5th Cir. 1992); Jones v. City of Chicago, 856 F.2d 985, 993-96 (7th

Cir. 1988); McMillian v. Johnson, 88 F.3d 1554, 1566-70 (11th Cir.),

amended by 101 F.3d 1363 (11th Cir. 1996).

These cases have left unclear the exact nature of any duty that the

law imposes on police with regard to exculpatory evidence. Several

characteristics of this duty, however, seem evident. First, alleged fail-

ures to disclose do not implicate constitutional rights where no consti-

tutional deprivation results therefrom. In this context, the

constitutional deprivation must be defined as a deprivation of liberty

without due process of law. In the absence of a cognizable injury,

such as a wrongful criminal conviction, police suppression of evi-

dence might still give rise to claims under state law. But unless the

§ 1983 plaintiff can point to a constitutional injury caused by the sup-

pression, no § 1983 remedy will lie. See Albright v. Oliver, 510 U.S.

266, 270-71 n.4 (1994) (plurality opinion) (substantive due process

4

cannot transform a state law malicious prosecution claim into a con-

stitutional claim); id. at 281-86 (Kennedy, J., joined by Thomas, J.,

concurring in judgment) (same); Taylor, 81 F.3d at 436 & n.5 ("To

the extent that Goodwin bases its holding on a conclusion that the

officer's failure to disclose exculpatory evidence deprived the § 1983

plaintiffs of a liberty interest in avoiding prosecution on less than

probable cause, that reasoning has been rejected in Albright.").

Second, to speak of the duty binding police officers as a Brady

duty is simply incorrect. The Supreme Court has always defined the

Brady duty as one that rests with the prosecution. See, e.g., Brady,

373 U.S. at 87 ("suppression by the prosecution of evidence favorable

to an accused upon request violates due process"); Giglio, 405 U.S.

at 154 (satisfying Brady "is the responsibility of the prosecutor");

Moore v. Illinois, 408 U.S. 786, 794 (1972) ("The heart of the holding

in Brady is the prosecution's suppression of evidence . . . ."); Agurs,

427 U.S. at 108 ("the prosecutor's constitutional duty to disclose");

Bagley, 473 U.S. at 676 ("the prosecutor failed to disclose evidence");

Kyles v. Whitley, 514 U.S. 419, 437 (1995) ("the prosecution, which

alone can know what is undisclosed, must be assigned the consequent

responsibility to gauge the likely net effect of all such evidence and

make disclosure when the point of `reasonable probability' is

reached").

The Brady duty is framed by the dictates of the adversary system

and the prosecution's legal role therein. Legal terms of art define its

bounds and limits. The prosecutor must ask such lawyer's questions

as whether an item of evidence has "exculpatory" or "impeachment"

value and whether such evidence is "material." It would be inappro-

priate to charge police with answering these same questions, for their

job of gathering evidence is quite different from the prosecution's

task of evaluating it. This is especially true because the prosecutor can

view the evidence from the perspective of the case as a whole while

police officers, who are often involved in only one portion of the case,

may lack necessary context. To hold that the contours of the due pro-

cess duty applicable to the police must be identical to those of the

prosecutor's Brady duty would thus improperly mandate a one-size-

fits-all regime.

Third, it would be impermissible to hold the police liable for due

process violations under § 1983 where they have acted in good faith.

5

In Daniels v. Williams, the Supreme Court stated "that the Due Pro-

cess Clause is simply not implicated by a negligent act of an official

causing unintended loss of or injury to life, liberty, or property." 474

U.S. 327, 328 (1986). The Fourteenth Amendment mandates, "nor

shall any State deprive any person of life, liberty, or property, without

due process of law." U.S. Const. amend. XIV, § 1. Daniels holds that,

as a matter of plain constitutional text, no "deprivation" occurs on

account of official negligence. 474 U.S. at 330-33. Indeed, negligent

conduct cannot by definition establish the "affirmative abuse of

power" necessary to constitute a due process deprivation. See id. at

330-32. Under Daniels, then, police officer negligence or inadver-

tence in failing to turn over evidence cannot be actionable under

§ 1983.

In an analogous case to the present, the Supreme Court refused to

find that police officers violated the Due Process Clause in the

absence of evidence that they acted in bad faith. In Arizona v. Young-

blood the Court addressed that area of the law that "might loosely be

called . . . constitutionally guaranteed access to evidence." 488 U.S.

51, 55 (1988) (internal quotation marks omitted). Youngblood

involved police who failed to refrigerate clothing which contained

semen stains and to perform tests on other semen samples. Id. at 53-

55, 58. The defendant argued that properly preserved evidence might

well have shown that he was innocent of any sexual assault. The

Youngblood Court held, however, that "unless a criminal defendant

can show bad faith on the part of the police, failure to preserve poten-

tially useful evidence does not constitute a denial of due process of

law." Id. at 58.

While Youngblood dealt with the failure to preserve evidence, its

principles are certainly applicable to the present situation. Here, as in

Youngblood, the prosecutor and ultimately the defense allegedly

failed to receive exculpatory evidence from the police. Here, as in

Youngblood, the police officers' actions were alleged to constitute a

due process violation. The Youngblood Court stressed its "unwilling-

ness" to read the Due Process Clause to impose "on the police an

undifferentiated and absolute duty" in that context. Id.

We similarly decline to impose a sweeping duty on police in the

6

instant situation and note the obvious drawbacks of doing so.2 For

instance, such a duty would widen the legal gulf between prosecutors

and police to such an extent as to make scapegoats of police for every

item of evidence discovered post-trial. Prosecutors plainly enjoy

absolute immunity in the exercise of their prosecutorial duties, of

which the disclosure of Brady material to the defense is clearly one.

See Kalina v. Fletcher, 522 U.S. 118, 123-29 (1997); Burns v. Reed,

500 U.S. 478, 486 (1991); Imbler v. Pachtman, 424 U.S. 409, 413-16,

430-31 (1976). To confer on prosecutors absolute immunity while

denying to police the right to argue even bona fides would multiply

exponentially litigation against even conscientious officers.

Further, the law has already placed ultimate responsibility upon the

prosecutor for disclosing Brady material to the defense. When Brady

violations occur, criminal defendants may have their convictions

overturned. Because police knowledge is plainly imputed to the pros-

ecution for purposes of the prosecutor's Brady duties, see Kyles v.

Whitley, 514 U.S. 419, 437-38 (1995), the prosecutor bears the

responsibility for implementing procedures designed to ensure that

police officers turn over all evidence to him, see Giglio, 405 U.S. at

154. To hold officers responsible under § 1983 for internal miscom-

munications that Kyles and Giglio charge the prosecution with pre-

venting is to have § 1983 suits and Brady doctrine heading in

diametrically opposed directions. Moreover, the § 1983 suit could

well set up a continual exercise in finger-pointing between prosecu-

tors and police over whose fault it was that the evidence never

reached the defendant. Making internal communications between

prosecutors and police the customary subject of § 1983 litigation

would thrust the federal courts deep into the operations of state prose-

_________________________________________________________________

2 Our brother Murnaghan's dissent has a fundamental problem: it con-

flates the standards of a Brady violation with the standards of a § 1983

claim. The problem with this line of argument is simply that the Supreme

Court does not accept it. Indeed, the dissent's frustration on remand owes

to the fact that it runs headlong into the Supreme Court's decisions in

Daniels and Youngblood. Despite its strenuous efforts, the dissent has

failed to circumnavigate or otherwise explain away these two highly per-

tinent precedents. See, e.g., Post at 23 ("Daniels is a difficult case

because the Court, along with judicial commentators, often describe the

opinion as having `overruled' Parratt.").

7

cutors' offices, a breach of federalism principles for which the Due

Process Clause of the Constitution provides no warrant.

This danger is plainly illustrated by this action. The prosecutor in

Jean's case, Walter Vatcher, made clear via two affidavits that Offi-

cers Collins and Shingleton had indeed disclosed substantial amounts

of information to him with regard to the hypnoses. Vatcher stated that

the officers had "informed [him] of the existence of the hypnoses and

identification procedures" used in the Jean investigation. Vatcher was

further informed that "there were some changes in[Shingleton's]

description after hypnosis," specifically "that under hypnosis

[Shingleton] no longer recalled any facial hair and his description of

the [suspect's] shirt may have changed somewhat." Vatcher also

reported that the two officers had told him of the hypnosis informa-

tion months before trial and that he received "complete updates on the

investigation, including facts concerning the identification procedures

used." Vatcher, in fact, commended Officers Shingleton and Collins

for turning over "all [of the] evidence that [he] requested from them."

There is even substantial evidence via affidavits from Smith, Collins,

Shingleton, and Wilson that Vatcher had been told of the existence of

the hypnosis recordings and reports. Vatcher, however, stated in one

of his affidavits that he did not "recall being made aware of record-

ings and written records."

The difficulty of trying to sort out such everyday communications

between prosecutor and police underscores the need to insist at a

minimum that an actual bad faith deprivation of due process rights be

alleged. The conduct of Shingleton and Collins lies well below this

threshold. While Jean contends that the officers acted in a "willful,

wanton and reckless manner," conclusory allegations will not suffice.

See, e.g., Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 684-91 (4th

Cir. 2000); Hartley v. Parnell, 193 F.3d 1263, 1268 (11th Cir. 1999);

Wilkinson v. Russell, 182 F.3d 89, 105-06 (2d Cir. 1999); Torres v.

United States, 200 F.3d 179, 186 (3d Cir. 1999). Jean simply is

unable to provide evidence of a bad faith deprivation carried out by

Collins and Shingleton -- a matter on which the burden plainly rests

with the plaintiff.3 For example, Jean does not claim that Collins and

_________________________________________________________________

3 In many instances the first prong of Wilson v. Layne can be resolved

on the pleadings alone. However, that makes little sense where a volumi-

8

Shingleton destroyed or otherwise failed to preserve the evidence that

is now at issue -- a fact which alone tends to negate any inference

of bad faith. And while Jean again claims in conclusory fashion that

the hypnosis recordings and reports were "patently exculpatory," he

does not point to any evidence showing that the officers actually

knew of the significance of these items. Moreover, Jean conceded

both in his brief and at oral argument that Vatcher at the very least

was made aware of the existence of the two hypnoses. In sum, Jean

points to nothing that resembles the kind of affirmative misuse of

power that the Supreme Court has indicated would implicate due pro-

cess protections.4

_________________________________________________________________

nous record is before us. Circuit courts, including this one, have not hesi-

tated after Wilson to address the record in determining whether plaintiff

has alleged a violation of a constitutional right. See, e.g., Suarez Corp.

Indus. v. McGraw, 202 F.3d 676, 684-91 & n.18 (4th Cir. 2000) ("Thus,

SCI's claim . . . is undermined by the evidence in the record."); Hartley

v. Parnell, 193 F.3d 1263, 1269 n.2 (11th Cir. 1999) ("We note that

. . . there is no evidence in the record . . . ."); Wilkinson v. Russell, 182

F.3d 89, 105 (2d Cir. 1999) ("The record reveals another key source of

information supporting defendants' decision . . . ."). Indeed, the concern

expressed in Siegert that defendants not be put through unnecessary dis-

covery would be vitiated if we failed to take account of the ample record

that has already been assembled in this case. 500 U.S. at 231. It would

simply impose an unnecessary burden on defendants to move beyond

Wilson's first prong when the record before us conclusively points to the

absence of any constitutional deprivation.

4 Our brother Luttig contends in dissent that "Jean has never even had

the cause, much less the opportunity, to develop a record with regard to

Collins' and Shingleton's state of mind in withholding the evidence."

Post at 38. This assertion, however, is belied by the record itself. With

respect to cause, the dissent apparently overlooks that Jean claimed bad

faith in his complaint. By doing so, Jean himself indicated that the offi-

cers' state of mind was relevant to the success of his suit. Indeed, since

the very first day that Jean was arrested, it has always been to his advan-

tage to place the conduct of the police in the worst possible light. And

Jean has enjoyed ample opportunity to uncover the existence of officer

bad faith. Over seventeen years have now transpired since the time of

Jean's arrest and trial. During that time, Jean has been allowed extensive

discovery. During his habeas case, Jean deposed both Officer Collins and

Officer Shingleton. When the officers moved for summary judgment in

9

Because there was no threshold bad faith deprivation, the precise

contours of any duty on the police in situations such as these is some-

thing we need not explore in detail.5 Several points, however, are

clear. A Brady violation that resulted in the overturning of the § 1983

plaintiff's conviction is a necessary, but not a sufficient, condition for

§ 1983 liability on the part of the police. It is a necessary condition

because the Brady violation establishes the requisite threshold of con-

stitutional injury (a conviction resulting in loss of liberty) below

which no § 1983 action can lie. It is not a sufficient condition, how-

ever, because the Brady duty is a no fault duty and the concept of

constitutional deprivation articulated in both Daniels and Youngblood

requires that the officer have intentionally withheld the evidence for

the purpose of depriving the plaintiff of the use of that evidence dur-

ing his criminal trial. This is what is meant by "bad faith." And that

must be established on the basis of evidence, including among other

things the nature of the withheld material, that would negate any neg-

ligent or innocent explanation for the actions on the part of the police.

Of course the bad faith manipulation of evidence on the part of the

police cannot be countenanced. Constitutional absolution for the con-

cealment, doctoring, or destruction of evidence would fail to protect

the innocent, fail to assist the apprehension of the guilty, and fail to

safeguard the judicial process as one ultimately committed to the

ascertainment of truth. But what occurred here was at worst a negli-

_________________________________________________________________

the instant proceedings, Collins and Shingleton submitted affidavits in

which they specifically rejected Jean's contention that they acted in bad

faith. Jean responded by submitting more than 650 pages of, inter alia,

affidavits, exhibits, deposition transcripts, hypnosis transcripts, hypnosis

worksheets, police reports, and police notes. Yet, as our brother Luttig

correctly points out, the record as to officer bad faith is "entirely unde-

veloped." Post at 38. The reason for this is not that Jean has lacked cause

and opportunity to uncover such evidence, for he has had no shortage of

either. Rather, it is because his seventeen-year search and voluminous

submissions have uncovered nothing that raises a triable issue of fact on

this point.

5 We also do not address what sort of immunities the officers might

claim if a constitutional violation had been properly alleged against

them. Immunities appear by way of defense. And Wilson v. Layne makes

clear that we need not proceed to address the immunity issue if no consti-

tutional violation has been alleged. 526 U.S. at 609.

10

gent miscommunication among Vatcher, Collins, and Shingleton --

an incident for which Vatcher under Brady, Giglio, and Kyles bears

ultimate responsibility. Any decision on Vatcher's part not to request

additional hypnosis information cannot possibly be recast seventeen

years later as a bad faith constitutional deprivation perpetrated by

these officer defendants.

II.

As Jean has failed to allege a constitutional violation on the part

of Collins and Shingleton, we would affirm the judgment.

MURNAGHAN, Circuit Judge, with whom Circuit Judges

MICHAEL, MOTZ, and KING, and Senior Circuit Judge HAMIL-

TON join, dissenting:

The fate of Lesly Jean's § 1983 action is lamentable, though

scarcely surprising. What is surprising is the tenuous methodology the

concurrence employs to extinguish his civil rights action. In recent

years, the Supreme Court has undeniably restricted the availability of

§ 1983, particularly as a mode of redressing due process violations.

Nonetheless, the Court still recognizes some situations, however cir-

cumscribed, where § 1983 damages remain viable.

The concurrence's analysis of Jean's § 1983 claim reflects a funda-

mental misunderstanding of the Supreme Court's jurisprudence in this

area. While the opinion is rhetorically consonant with the Court's

skepticism about civil rights litigation, it is substantively at odds with

the Court's caselaw on § 1983 and with accepted understandings of

the Due Process Clause. Accordingly, I dissent.

I.

From the outset, I have been of the view that Brady v. Maryland,

373 U.S. 83 (1963), controls the analysis of Jean's civil rights claim.

It is true that Brady involved suppression of evidence by a prosecutor,

whereas Jean's claim alleges suppression of evidence by police offi-

cers. However, the post-Brady case of Barbee v. Warden, Maryland

Penitentiary, 331 F.2d 842 (4th Cir. 1964), clarified that the State's

disclosure obligation applies to police officers as well as prosecutors:

11

[I]t makes no difference if the withholding [of exculpatory

evidence] is by officials other than the prosecutor. The

police are also part of the prosecution, and the taint on the

trial is no less if they, rather than the State's Attorney, were

guilty of the nondisclosure. If the police allow the State's

Attorney to produce evidence pointing to guilt without

informing him of other evidence in their possession which

contradicts this inference, [police] officers are practicing

deception not only on the State's Attorney but on the court

and the defendant.

Id. at 846 (emphasis added) (footnote omitted).

As these lines from Barbee suggest, the Brady disclosure regime

is about getting exculpatory evidence into the hands of the defendant,

not about disaggregating the State's prosecutorial team into discrete

sub-groups and having a defendant's constitutional rights turn on such

rigid formalisms. This is why Brady's compulsory disclosure require-

ment applies to all officials working in furtherance of the State's pros-

ecution.

Of course, the manner in which prosecutors and police officers

comply with Brady is different, reflecting their different functions in

the criminal justice system. Police officers do not disclose evidence

to criminal defendants directly. Instead, the police accumulate evi-

dence and then ministerially deliver it to the prosecutor. The prosecu-

tor then makes a discretionary legal judgment about whether the

evidence is material and exculpatory, such that Brady compels its dis-

closure to the defendant. This functional differentiation, however,

should not obscure the fact that Brady creates a singular constitutional

duty, which prosecutors and police officers are capable of breaching

in factually different ways.

II.

The concurrence does not seriously dispute that a Brady violation

occurred. Instead, the dispute is whether Jean can redress this Brady

violation in a § 1983 damages action against Officers Collins and

Shingleton.

12

Section 1983 is not a repository of substantive rights but is simply

a remedial mechanism for vindicating rights with independent consti-

tutional foundations. See Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979) (holding that § 1983 "is not itself a source of substantive

rights, but a method for vindicating federal rights elsewhere con-

ferred").

The constitutional right in the instant case could not be any clearer.

In Jean v. Rice, 945 F.2d 82 (4th Cir. 1991), we held that the State

of North Carolina violated Jean's due process rights, as recognized in

Brady, when Officers Collins and Shingleton withheld hypnosis-

related evidence from the prosecutor -- evidence that could have

assisted Jean in impeaching the credibility of key government wit-

nesses. See id. at 87. Because we have already established that a

Brady violation occurred, there is a core constitutional offense that

forms the basis for a § 1983 action. The availability of § 1983 as a

remedial measure would seem to follow inexorably from the very fact

of the underlying Brady violation.

Not so to the concurrence. In order to block what it regards as a

frivolous lawsuit, the concurrence has labored assiduously to divorce

Jean's § 1983 action from the underlying Brady violation that engen-

dered it. See ante at 3 ("In Jean v. Rice . . . we held that Jean's due

process [Brady] rights had been violated. . . . The question before us

now is whether there was an additional constitutional violation in this

case -- a due process violation by Officers Collins and Shingleton for

withholding from the prosecutor the hypnosis recordings and

reports.") (emphasis added). The challenge for the concurrence has

been coming up with a way to say two seemingly contradictory

things: that while Jean's Brady rights were clearly violated, entitling

him to reversal of his conviction, Jean can not vindicate his Brady

rights against Collins and Shingleton in a separate § 1983 damages

action.

A.

Since the inception of this case, the concurrence has had consider-

able difficulty explaining its way out of this paradox. In our first en

banc opinion dealing with Jean's case, the majority relied on qualified

13

immunity to shut down Jean's § 1983 action.1 The majority began by

holding that the obligation of police officers to disclose exculpatory

evidence to prosecutors was now a matter of settled law. See Jean v.

Collins, 155 F.3d 701, 710 n.3 (4th Cir. 1998) ("More recently this

circuit has recognized that the failure of police officers to turn over

evidence to a prosecutor may violate a criminal defendant's constitu-

tional right to receive such evidence.") (citing Taylor v. Waters, 81

F.3d 429, 436 n.5 (4th Cir. 1996); Carter v. Burch, 34 F.3d 257, 264

(4th Cir. 1994); and Goodwin v. Metts, 885 F.2d 157, 162-63 (4th Cir.

1989)); see also id. ("[T]he decisions in Taylor, Carter, and Goodwin

now provide notice to police officers that they can be subject to mon-

etary damages under section 1983 for failure to disclose exculpatory

evidence to the prosecutor.").

While well-settled today, the first en banc majority found that the

"police to prosecutor" disclosure obligation was not clearly estab-

lished in 1982 when Collins and Shingleton withheld the hypnosis

evidence. The majority distinguished Brady-- a pre-1982 case that

seemed to establish the applicable disclosure requirements -- by

holding that it only imposed a disclosure obligation on the State

generically. The disclosure duty's specific application to police offi-

cers, according to the majority, was a post-1982 doctrinal develop-

ment. See Jean, 155 F.3d at 710 n.3. Thus, the officers were entitled

to a defense of qualified immunity.

B.

The Supreme Court's remand, which instructed us to reconsider

Jean's case in light of Wilson v. Layne, 526 U.S. 603 (1999), gave the

majority a chance to revisit its first en banc opinion. Wilson held that

a court considering a defense of qualified immunity should first ask

whether the disputed state action would violate present-day constitu-

tional law, before reaching the backward looking question of whether

_________________________________________________________________

1 Because the first en banc hearing produced a majority, rather than an

evenly divided panel, I use the term "majority" rather than "concurrence"

when referring to the first en banc opinion. Despite the difference in

nomenclature, both the first en banc "majority" opinion and the second

en banc "concurring" opinion were written by the same author. That is

why I emphasize the discontinuities between the two opinions.

14

the illegality of the state conduct was "clearly established" at the time

it occurred. See id. at 609.

Pursuant to Wilson's directive, the majority (reconstituted as a

"concurrence") now asks whether the failure of police officers to

deliver exculpatory evidence to prosecutors would violate due process

guarantees under year 2000 jurisprudence. See ante at 4-5. In its first

en banc opinion, the majority held that the police-specific disclosure

obligation was clearly established today, just not when Collins and

Shingleton withheld the hypnosis evidence in 1982. Repudiating the

position the majority took in the first en banc opinion, the concur-

rence now answers this question differently, holding that police offi-

cers have no independent duty (at least no independent Brady duty)

under year 2000 due process principles to disclose exculpatory evi-

dence to prosecutors. See ante at 4-5.

The concurrence defends this Janus-faced maneuver by seeking

refuge in the Supreme Court's directive to revisit Jean's case in light

of Wilson. See ante at 3 n.1 ("It would be surprising if the court had

not reviewed its earlier approach in light of Wilson's directive.

Indeed, it would be irresponsible for us not to do so."). This appeal

to Wilson, however, is unavailing. All Wilson said was: "Answer the

year 2000 question first," not "Answer the year 2000 question differ-

ently."

The real explanation for the concurrence's vacillation has to do

with post hoc misgivings about the impact of its first en banc opinion.

Dismissing Jean's case on a qualified immunity rationale got rid of

one irksome civil rights plaintiff; but by recognizing a police-specific

disclosure obligation under year 2000 law, the concurrence unwit-

tingly opened the flood gates, inviting future criminal defendants to

extort money damages from "cops on the beat" every time a problem

with exculpatory evidence arises. In order to seal the rupture its first

en banc opinion created, the concurrence now holds that police offi-

cers who withhold exculpatory evidence from prosecutors are not

independently liable for Brady violations, even under year 2000 juris-

prudence. Thus, under the concurrence's new formulation, Brady can

never furnish the doctrinal basis for a § 1983 action against police

officers who fail to disclose exculpatory evidence. This was true in

15

1982, when Collins and Shingleton withheld evidence from Lesly

Jean (see en banc #1) and it remains true today (see en banc #2).

III.

The concurrence has several theories about why criminal defen-

dants who are the victims of police non-disclosure may not rely on

Brady to generate § 1983 actions against the offending police officers.

The theories fall roughly into two categories. The first group relies on

restrictive interpretations of Brady and the substantive constitutional

rights it creates. The second group relies on a restrictive interpretation

of § 1983 by grafting heightened culpability requirements onto the

§ 1983 apparatus. These culpability requirements exceed what is

required to prove a violation of the underlying constitutional right; but

according to the concurrence, they must be established in order to

trigger the heavy remedial machinery of a § 1983 damages action.

A.

The first way the concurrence deflects Jean's § 1983 claim is by

manipulating the substantive basis of his claim: the right to exculpa-

tory evidence established in Brady. The concurrence frames Jean's

Brady claim in police-specific terms, as premised on the failure of

police officers to disclose exculpatory evidence to prosecutors. See

ante at 4. The concurrence then describes the Brady duty in such a

restrictive way that police officers (and thus Jean's claim) fall outside

its ambit. See ante at 5.

The concurrence produces this perverse result by articulating the

State's Brady duty in prosecution-specific terms. This narrow con-

struction of Brady derives from the concurrence's adherence to an

elaborate legal fiction called the "imputed to" theory. See ante at 7-8.

Under this theory, police officers are indirectly subject to Brady, in

the sense that they are expected to furnish prosecutors with evidence

they accumulate. Police officers, however, are not directly subject to

Brady because the disclosure duty it creates is ultimately the prosecu-

tor's responsibility. Thus, when police officers fail to disclose excul-

patory evidence, Brady "imputes" these non-disclosures to the

prosecution for purposes of assessing the State's overall compliance

with Brady.

16

Because the prosecution is charged with "constructive" knowledge

of all evidence in the possession of its sub-agents, failure of the police

to hand over exculpatory evidence can imperil the integrity of the

State's prosecution, often leading to reversal of criminal convictions

(as happened in the instant case). Non-disclosures, however, cannot

subject the police to civil liability because the police have no indepen-

dent duty to criminal defendants under Brady, requiring them to sup-

ply the prosecutor with exculpatory evidence. Instead, the State's

Brady obligation to criminal defendants is discharged through the

instrumentality of the prosecutor.

At its simplest level, the concurrence's "imputed to" theory is an

attempt to shift blame for the Brady violation in this case onto the

prosecutor (Mr. Vatcher), who conveniently enjoys absolute immu-

nity from damages actions. See Imbler v. Pachtman, 424 U.S. 409,

424-27, 431 n.33 (1976).

The concurrence also attempts to buttress the "imputed to" theory

by resting it on more principled foundations -- some precedential,

some policy-based. Neither precedent nor policy, however, support

this attempt to circumscribe the State's Brady duty.

1.

First, the concurrence claims to derive the "imputed to" theory

from the language of Brady itself, along with the language of several

post-Brady opinions, which describe the State's disclosure duty in

prosecution-specific terms. See Brady, 373 U.S. at 87 ("[S]uppression

by the prosecution of evidence favorable to an accused upon request

violates due process . . . ."); Moore v. Illinois, 408 U.S. 786, 794

(1972) ("The heart of the holding in Brady is the prosecution's sup-

pression of evidence . . . ."); United States v. Agurs, 427 U.S. 97, 108

(1976) (referring to "the prosecutor's constitutional duty to disclose").

Conspicuously absent from the concurrence's discussion, however,

is the important post-Brady case of Barbee, which dispelled the

notion that the police are exempt from the Brady disclosure duty. In

Barbee, police officers failed to disclose exculpatory ballistics and

fingerprint tests that tended to show a revolver other than the defen-

dant's was responsible for the crime in question. See Barbee, 331

17

F.2d at 844. We found that the ballistics and fingerprints tests were

indeed exculpatory because they undermined the testimony of several

witnesses who had identified the defendant's revolver as the weapon

used in the shooting. Thus, we held that the police should have dis-

closed the exculpatory evidence and issued a writ of habeas corpus.

See id. at 847.

In defending the non-disclosure, the State of Maryland argued that

there was no constitutional infirmity because the duty of disclosure

fell on the prosecution, not the police. See id . at 844. Because the

prosecution had no knowledge that the police were in possession of

the exculpatory evidence, the State argued that no Brady violation had

occurred. See id. We rejected this formalistic distinction, holding that

when "the police allow the State's Attorney to produce evidence

pointing to guilt without informing him of other evidence in their pos-

session which contradicts this inference, [police] officers are practic-

ing deception not only on the State's Attorney but on the court and

the defendant." Id. at 846 (emphasis added) (footnote omitted).

It is difficult to reconcile the concurrence's "imputed to" theory

with Barbee's plain statement that the police misconduct practiced a

deception "not only" on the prosecutor, but on the court "and the

defendant." Of course, the police officer's duty is to disclose to the

prosecution rather than to the defendant directly; but according to

Barbee, the constitutional injury arising from an officer's non-

disclosure runs directly from the police to the defendant, unmediated

by the prosecutor. See id. ("Failure of the police to reveal . . . material

evidence in their possession [to the prosecution] is equally harmful to

a defendant whether the information is purposefully, or negligently,

withheld.") The factual interposition of the prosecutor between the

police and the defendant does not transform the prosecutor into a

supervening legal cause of the constitutional injury.

The Supreme Court confronted a similar issue years later in Kyles

v. Whitley, 514 U.S. 419 (1995). There, the State of Louisiana made

the same argument the State of Maryland made in Barbee: namely,

that the State should not be held accountable under Brady for evi-

dence known only to police investigators and not to the prosecutor.

See id. at 438. In language echoing Barbee, the Court criticized the

State's attempt to draw a formalistic dichotomy between police and

18

prosecutors and rejected the State's "argument for excusing a prose-

cutor from disclosing what he does not happen to know." Id. The

State's disclosure obligation under Brady applies even when the pros-

ecutor is completely in the dark, the Court held, because the ultimate

injury to the defendant is the same, regardless of whether the police

or the prosecutor is to blame. Thus, like Barbee, the Kyles opinion

made clear that the goal of Brady was getting exculpatory evidence

to the defendant, not creating an analytical patchwork of legally dis-

tinct disclosure duties for every sub-group working in furtherance of

the State's criminal prosecution.

Some of the language in Kyles did suggest that, as a practical mat-

ter, the prosecutor's office is the fulcrum of the Brady disclosure obli-

gation. See id. at 437 ("[T]he individual prosecutor has a duty to learn

of any favorable evidence known to the others acting on the govern-

ment's behalf in the case, including the police."). The insight here,

however, was pragmatic rather than doctrinal. Because Kyles involved

a habeas petition rather than a § 1983 damages action, the Court was

obviously more concerned with the pragmatic question of how to

keep the State from evading its Brady obligation than it was with the

legal question of how to carve up the State's investigative-

prosecutorial team, either as an abstract doctrinal exercise or for pur-

poses of allocating distinct spheres of civil liability. Thus, the fact that

Kyles made the prosecutor vicariously responsible when police offi-

cers fail to disclose exculpatory evidence does not mean that Kyles

also placed police officers beyond constitutional reproach for their

personal role in subverting the State's Brady duty.

2.

The concurrence also advances a policy argument in support of its

"imputed to" theory. See ante at 7-8. The concurrence argues that only

prosecutors are trained to make the nuanced and quintessentially legal

judgment of whether a piece of evidence is truly exculpatory, such

that disclosure to the defendant is constitutionally compelled. Because

police officers are unfamiliar with the "[l]egal terms of art," ante at

5, necessary to make this complex determination, it would be unfair

to hold them monetarily liable when they blunder. On this view, the

"imputed to" theory, which places ultimate constitutional responsibil-

ity for exculpatory evidence problems in the hands of the prosecutor,

19

is merely a recognition of the prosecutor's special institutional com-

petence -- and of the unfairness involved in asking a police officer

to pay money damages for mistakes he was not trained to avoid.

This observation is a strawman that confuses the crucial issue. It

presupposes that when a police officer discloses evidence to a prose-

cutor, the act is functionally identical to the discretionary legal judg-

ment prosecutors make when disclosing evidence directly to criminal

defendants. In reality, the two acts are incommensurable. Requiring

police officers to disclose evidence to prosecutors does not require

technical legal expertise because the act is essentially ministerial, not

discretionary. The police officer's duty is not to determine whether

the evidence is material and exculpatory. His duty is simply to collect

the evidence and to disclose all of it to the prosecutor, who then

makes the discretionary legal judgment about its material, exculpatory

attributes. Thus, there is no reason to "impute" the misconduct of

police officers to prosecutors when police officers are perfectly capa-

ble of understanding their ministerial function and still choose to dis-

regard it -- not out of ignorance but out of dereliction.

B.

By cabining Brady so that the duty it creates applies only to prose-

cutors, the "imputed to" theory helps the concurrence extinguish

Jean's § 1983 claim. It does so by eroding the constitutional theory

on which his § 1983 claim is based: the theory that police officers

independently violate Brady when they withhold evidence from pros-

ecutors.

The concurrence also attacks Jean's § 1983 action from another

angle. The strategy behind the "imputed to" theory was to cripple

Jean's § 1983 claim by eroding its underlying constitutional founda-

tion. The concurrence's second strategy is to target the § 1983 reme-

dial apparatus itself: specifically, by creating heightened culpability

requirements that plaintiffs must meet in order to convert constitu-

tional injuries they have suffered into the basis for money damages.

The concurrence resorts to this second strategy, rather than resting

on the "imputed to" theory, in order to resolve a doctrinal problem

created by the "bad faith" requirement the concurrence inartfully

20

derives from Daniels v. Williams, 474 U.S. 327 (1986), and Arizona

v. Youngblood, 488 U.S. 51 (1988). According to the concurrence, cit-

izens who allege violations of the Due Process Clause must make a

threshold showing that the due process violation occurred in a culpa-

ble, "bad faith" manner. Because Jean failed to prove that Collins and

Shingleton withheld the hypnosis evidence with the requisite degree

of culpability, the concurrence holds that Jean's claim fails on that

ground alone. See ante at 6-8.

The problem with the concurrence's "bad faith" thesis, however, is

that Brady makes the non-disclosure of exculpatory evidence a viola-

tion of the Due Process Clause "irrespective of the good faith or bad

faith" of the non-disclosing official. Brady, 373 U.S. at 87; see also

Barbee, 331 F.2d at 846 ("If the police silence as to the existence of

the [exculpatory] reports resulted from negligence rather than guile,

the deception is no less damaging."). The concurrence is therefore

placed in the untenable position of having to reconcile this language

with the central proposition of its opinion: that only "bad faith" fail-

ures to withhold exculpatory evidence violate due process.

Much of the concurrence's opinion is a misguided search for the

theory that explains why "bad faith" is not required to prove due pro-

cess violations under Brady, but is required for every other due pro-

cess violation -- including the due process claim Jean has brought

against Collins and Shingleton (which apparently rests on some other

strand of due process jurisprudence, independent of Brady, that the

majority never fully specifies).

1.

Rather than working with the limits of the caselaw, the concurrence

invents a theory out of whole cloth. According to the concurrence, the

"bad faith" requirement does not apply to all due process cases. Nor

does it apply to every § 1983 action. It only applies to that subset of

cases that involve both § 1983 and the Due Process Clause -- that is,

where criminal defendants are dissatisfied with the conventional due

process remedy of a new trial and turn to § 1983 as a supplemental

remedial mechanism. When criminal defendants seek nothing more

than a new trial to redress a due process infirmity, Brady's "no fault"

principles apply, and the defendant gets a new trial regardless of the

21

good faith or bad faith manner in which the due process violation

occurred. When criminal defendants seek money damages under

§ 1983, however, the "fault-based" doctrines articulated in Daniels

and Youngblood apply. Unless the due process violation occurred in

a culpable, "bad faith" manner, no damages remedy will lie. See ante

at 9.

Thus, what the concurrence contemplates is a two-tiered regime,

with one set of "no fault" standards for proving garden-variety viola-

tions of the Due Process Clause and a heightened, more stringent set

of "fault-based" standards for redressing those same due process vio-

lations in § 1983 damages actions. In so holding, the concurrence

invents a new theory of civil rights litigation that departs from estab-

lished understandings of § 1983 and the Due Process Clause.

2.

The Supreme Court has rejected the concurrence's two-tiered for-

mulation in Parratt v. Taylor, 451 U.S. 527 (1981). There, the Court

held unequivocally that § 1983 does not create a heightened culpabil-

ity requirement above and beyond the culpability required to establish

a violation of the underlying constitutional right. See id. at 534

("Nothing in the language of § 1983 or its legislative history limits the

statute solely to intentional deprivations of constitutional rights.");

see also id. ("Section 1983, unlike its criminal counterpart, 18 U.S.C.

§ 242, has never been found by this Court to contain a state-of-mind

requirement.").

The concurrence presumably thinks that Parratt is inapposite

because the concurrence believes (falsely) that it has derived the

heightened culpability requirement from the Due Process Clause, as

interpreted in Daniels and Youngblood, rather than from § 1983 itself.

On this theory, all Parratt forecloses is the grafting of a scienter

requirement onto the whole § 1983 apparatus; but if the scienter

requirement comes from the underlying constitutional right (here, the

Due Process Clause), there is no Parratt problem.

There are two responses to this specious argument. One is that the

concurrence's two-tiered formulation, while ostensibly derived from

the Due Process Clause, still violates Parratt because its effect is to

22

endow § 1983 with a heightened scienter requirement. Reading a cul-

pability requirement into the Due Process Clause and then applying

it only to due process claims brought under § 1983 is an end run

around Parratt. Such differential treatment of "ordinary" constitu-

tional claims, on one hand, and "§ 1983" constitutional claims, on the

other hand, is the very thing that Parratt prohibits.

The second, and more important, response is that the two-tiered

formulation the concurrence purports to derive from the Due Process

Clause has no credible foundation in due process jurisprudence. The

concurrence has simply misunderstood the two due process cases on

which it relies: Daniels and Youngblood.

3.

Daniels is a difficult case because the Court, along with judicial

commentators, often describe the opinion as having "overruled" Par-

ratt. This is only true in part, however. Parratt is a case with two sep-

arate, but easily confused, holdings. One holding was reaffirmed by

Daniels; the other holding Daniels overruled.

Parratt dealt with a § 1983 action where the underlying constitu-

tional claim involved a violation of the Due Process Clause. Parratt

first addressed the question of whether § 1983 itself imposed a thresh-

old scienter requirement on every constitutional claim brought under

its auspices. The Court framed the inquiry as "whether mere negli-

gence will support a claim for relief under § 1983." See Parratt, 451

U.S. at 532.

The Court began by quoting the language of § 1983, which speaks

of creating a damages remedy for "deprivations" of constitutional

rights effected under color of state law. See 42 U.S.C. § 1983. The

question in Parratt was whether "deprivation" in this context con-

noted a heightened state-of-mind requirement, based on the theory

that § 1983 damages remedies should be reserved for only the most

egregious, willful constitutional violations. The Court said "No." See

Parratt, 451 U.S. at 534 ("Nothing in the language of § 1983 . . . lim-

its the statute solely to intentional deprivations of constitutional

rights"); see also id. at 535 ("[Section] 1983 affords a civil remedy

23

for deprivations of federally protected rights . . . without any express

requirement of a particular state of mind.") (emphasis added).

Having decided that § 1983 contains no scienter requirement, the

Parratt court went to the underlying constitutional claim the plaintiff

had asserted (a violation of the Due Process Clause) and asked if that

constitutional provision contained its own internal scienter require-

ment, similar to other constitutional provisions like the Equal Protec-

tion Clause (which requires proof of "purposeful" discrimination). See

id. at 547-48 (Powell, J., concurring) ("[This case] requires the Court

to determine whether intent is an essential element of a due process

claim, just as we have done in cases applying the Equal Protection

Clause . . . .").

If the Due Process Clause were to contain a scienter requirement,

the Court thought it would be found in the term"deprivation" as it

appears in the text of the Due Process Clause.2 See id. at 548 (Powell,

J., concurring) ("In the due process area, the[scienter] question is

whether intent is required before there can be a`deprivation' of life,

liberty, or property."). The Parratt Court held that the term "depriva-

tion" in the Due Process Clause contained no scienter requirement --

just as the term "deprivation" in the text of § 1983 was devoid of a

state-of-mind requirement. See id. at 536-37.

Justice Powell's concurrence, however, raised serious concerns

about the majority's failure to recognize a scienter requirement as

part of the Due Process Clause. According to Justice Powell, "`depri-

vation' connotes an intentional act denying something to someone, or,

at the very least, a deliberate decision not to act to prevent a loss." See

id. at 548. Thus, in Justice Powell's view, merely negligent invasions

of life, liberty or property by the State, "causing unintended loss of

or injury to [protected liberty or property interests]," do not work "a

deprivation in the constitutional sense." Id . Consequently, according

to Powell, "[t]he most reasonable interpretation of the Fourteenth

Amendment would limit due process claims to such active depriva-

tions." Id. Under this formulation, states should only be required to

_________________________________________________________________

2 The Due Process Clause states:"[N]or shall any State deprive any

person of life, liberty, or property, without due process of law." U.S.

Const. amend. XIV, § 1 (emphasis added).

24

provide citizens with "due process of law" when they invade a life,

liberty, or property interest in a culpable manner.

Several years later, the Court revisited Parratt in Daniels v. Wil-

liams. The Daniels court reaffirmed the first holding of Parratt. See

Daniels, 474 U.S. at 329-30 ("In Parratt v. Taylor, we granted certio-

rari . . . to decide whether mere negligence will support a claim for

relief under § 1983. . . . [W]e concluded that § 1983, unlike its crimi-

nal counterpart, 18 U.S.C. § 242, contains no state-of-mind require-

ment independent of that necessary to state a violation of the

underlying constitutional right. We adhere to that conclusion.")

(emphasis added) (internal quotations and citations omitted).

Daniels, however, did modify Parratt in another sense. Having

determined that § 1983 contains no independent state-of-mind

requirement, the Daniels Court addressed the legally distinct question

of whether the Due Process Clause of the Fourteenth Amendment

contains a state-of-mind requirement. See id. at 330 ("[I]n any given

§ 1983 suit, the plaintiff must still prove a violation of the underlying

constitutional right; and depending on the right, merely negligent con-

duct may not be enough to state a claim.")

Parratt had held that the Due Process Clause, unlike the Equal Pro-

tection Clause, contains no culpability requirement. Daniels overruled

Parratt on this one point alone, adopting the position of Justice Pow-

ell, who had criticized the reasoning of Parratt on the ground that the

word "deprive" in the Due Process Clause connotes more than a

merely negligent act. Thus, Daniels "overrule[d] Parratt to the extent

that it state[d] that mere lack of due care by a state official may

`deprive' an individual of life, liberty, or property" under the Due

Process Clause. See Daniels, 474 U.S. at 330-31.

Thus, after Daniels, a violation of the Due Process Clause requires

proof of two elements: (1) that the state official "deprived" (i.e., cul-

pably denied) a citizen of life, liberty, or property and (2) that the "de-

privation" occurred "without due process of law." If these two

requirements are met, a due process violation is established. There are

no additional culpability requirements or conditions precedent that

must be satisfied in order to redress the due process violation in a

§ 1983 damages action.

25

4.

The concurrence has considerable difficulty with the concept of

"deprivation" articulated in Daniels. The concurrence seems to think

that it has two separate applications in the instant case, when in reality

it has only one. According to the concurrence, § 1983 plaintiffs seek-

ing money damages for the non-disclosure of exculpatory evidence

must first prove that the non-disclosure "deprived" them of their lib-

erty interest in not going to jail. See ante at 4 ("[A]lleged failures to

disclose do not implicate constitutional rights where no constitutional

deprivation results therefrom. In this context, the constitutional depri-

vation must be defined as a deprivation of liberty without due process

of law. . . . [There must be] a cognizable injury, such as a wrongful

criminal conviction . . . ."). Here, "deprivation" seems to mean "in-

fringement," devoid of any "bad faith" connotation; and the "liberty"

interest that is the object of the "deprivation" seems to mean freedom

from incarceration.

The concurrence, however, then abruptly shifts to a new defini-

tional framework. According to the concurrence, proof that the non-

disclosure of exculpatory evidence resulted in your incarceration is

just a baseline requirement. This sort of "deprivation" of "liberty" is

good enough to get your conviction reversed. If a criminal defendant

turns around and seeks money damages under § 1983, however, he

must prove a different type of "deprivation" of a different type of "lib-

erty." Specifically, says the concurrence, the criminal defendant must

prove that the state actors who withheld the exculpatory evidence cul-

pably "deprived" him of his "liberty" interest in unfettered access to

exculpatory evidence. See ante at 10.

Two things immediately stand out. First, the concurrence has sur-

reptitiously changed its definition of the underlying "liberty" interest.

Second, the concurrence has surreptitiously changed the definition of

"deprivation." Whereas "deprivation" in the earlier context just meant

"infringement," without any scienter component, "deprivation" in this

latter context requires the showing of "bad faith" discussed in Daniels

-- a perplexing and incongruous result the concurrence produces

through judicial sleight-of-hand. Cf. ante at 4 ("In this context [where

only a new trial is at stake], the constitutional deprivation must be

defined as a deprivation of liberty [i.e., incarceration] without due

26

process of law"), with ante at 10 ("[Proof of incarceration] is not a

sufficient condition [for § 1983 damages], however, because the

Brady duty is a no fault duty . . . [whereas] the concept of constitu-

tional deprivation articulated in both Daniels and Youngblood

requires that the officer have intentionally withheld the evidence for

the purpose of depriving the plaintiff of the use of that evidence dur-

ing his criminal trial. That is what is meant by`bad faith.'").

5.

In reality, the "bad faith" requirement discussed in Daniels attaches

to the "deprivation" component of the Due Process Clause in every

due process case, not just § 1983 cases. This is because Daniels is a

restrictive interpretation of the Due Process Clause itself, not a

restriction on the operation of § 1983.3

_________________________________________________________________

3 Potential confusion is created by the fact that Daniels' "deprivation"

doctrine was created to deal with a special problem not present in the

instant case: the prolific conversion of mundane state torts into federal

due process violations. Parratt, for example, involved an allegation that

the State had "deprived" a prisoner of his "property" by accidentally los-

ing his $23.00 hobby kit. Likewise, Daniels involved an allegation that

the State "deprived" a prisoner of his "liberty" interest in avoiding bodily

harm when a prison official accidentally left a pillow on a staircase,

causing the prisoner to trip and injure himself.

The Supreme Court was concerned that federalizing such minor claims

would turn the Due Process Clause into "a font of tort law to be superim-

posed upon whatever systems may already be administered by the

States." See Daniels, 474 U.S. at 332 (quoting Paul v. Davis, 424 U.S.

693, 701 (1976)).

Thus, in order to shut down federal due process claims based on the

accidental loss of hobby kits and misplaced pillows on staircases, Dan-

iels sought to limit due process violations to those situations where the

State's infringement of a citizen's liberty or property interest is more

than merely negligent. The way Daniels did this was by reading a

scienter requirement into the term "deprivation" in the Due Process

Clause, requiring proof that the State culpably infringed those liberty or

property interests as the predicate triggering the State's obligation to pro-

vide "due process of law."

Because the "deprivation" requirement came into being to limit the

promiscuous federalization of state torts, the "deprivation" requirement

27

The crucial point the concurrence overlooks is that, in a non-§ 1983

context, where a defendant seeks only a reversal of his conviction on

due process grounds, the requirement that the defendant prove a "bad

faith" deprivation of some protected liberty interest is satisfied by the

simple act of the State's prosecution -- a deliberate, intentional effort

by the government to send a citizen to jail. It may seem strange to

refer to every prosecution as being in "bad faith," unless the prosecu-

tion was executed in an unprincipled manner. But the "bad faith"

requirement in Daniels, rooted in the word "deprivation," simply

means a state action that is more than merely negligent -- an act that

involves the willful, intentional use of government power to invade

some protected life, liberty, or property interest possessed by its citi-

zens. See Parratt, 451 U.S. at 548 (Powell, J., concurring) ("A `depri-

vation' connotes an intentional act denying something to someone

. . . ."); see also id. at 548 n.4 ("[T]o `deprive' is to dispossess;

bereave; divest; to hinder from possessing . . . ."). It is these types of

intentional, willful exertions of government authority that raise the

"abuse of power" concerns at the heart of the Due Process Clause --

concerns the Due Process Clause mitigates by making the government

observe certain procedural safeguards prior to effecting the depriva-

tion of those protected interests. See Daniels, 474 U.S. at 331 (hold-

ing that the Due Process Clause was "intended to secure the

individual from the arbitrary exercise of the powers of government")

(quoting Hurtado v. California, 110 U.S. 516, 527 (1884)).

Because Daniels creates only one "deprivation" analysis, rather

than two, the concurrence's two-tiered formulation of Jean's case is

analytically indefensible. The only thing that could save the concur-

rence's approach is if there were two underlying liberty interests:

first, a liberty interest in avoiding incarceration (which the state "de-

prives" when it intentionally brings a prosecution that results in a con-

viction); and second, a liberty interest in unfettered access to

exculpatory evidence (which state officers "deprive" when they with-

hold evidence in a culpable, intentional manner).

_________________________________________________________________

looks like it might only apply to those cases where plaintiffs take a state

tort, attempt to recharacterize it as a due process violation, and then use

it as the basis for a § 1983 money damages remedy. But this is not the

case, as I explain in the ensuing pages.

28

To my knowledge, no court has ever recognized this type of free-

standing liberty interest in exculpatory evidence; and I would be sur-

prised if the Supreme Court, which has severely cut back on the

expansion of fundamental liberty interests under substantive due pro-

cess jurisprudence, would countenance the concurrence's curious

effort to do so.4 See Paul v. Davis, 424 U.S. 693, 710-14 (1976).

The concurrence's approach is foreclosed by Graham v. Connor,

490 U.S. 386 (1989). In Graham, the Supreme Court held that, where

a particular constitutional provision "provides an explicit textual

source of constitutional protection" against a particular sort of govern-

ment behavior, that specific constitutional provision and "not the

more generalized notion of `substantive due process' must be the

guide for analyzing these claims." Id. at 395. In other words, courts

may not recharacterize state misconduct as a violation of "fundamen-

tal" liberty interests under substantive due process jurisprudence

when there is a preexisting constitutional provision that already pro-

scribes the same conduct.

In the instant case, the right to exculpatory evidence is already pro-

tected under the procedural component of the Due Process Clause.

Under this constitutional doctrine, States may not "deprive" citizens

of their liberty interest in avoiding incarceration unless they first pro-

vide "due process of law" -- a term that encompasses the panoply of

procedural safeguards we associate with the concept of a "fair trial."

Brady is a case in this long doctrinal development elaborating the ele-

ments of a "fair trial." It held that part of the "process" the State must

provide, prior to effecting the deprivation of a criminal defendant's

liberty, is an unconditional right of access to exculpatory evidence.

See Brady, 373 U.S. at 87.

_________________________________________________________________

4 At times, even the concurrence seems unsure about what it is doing.

It creates what looks like a freestanding liberty interest in exculpatory

evidence, holding that Jean must prove a "bad faith" deprivation of that

interest in order to state a § 1983 damages action. See ante at 9. But the

concurrence also requires, as an antecedent criterion, that the "depriva-

tion" of the liberty interest in exculpatory evidence result in Jean's incar-

ceration. See ante at 4-5, 9. If the right to exculpatory evidence is its own

separate liberty interest, however, "bad faith" deprivations of that free-

standing, legally distinct interest should create actionable due process

violations regardless of whether there is an underlying incarceration

associated with it.

29

Thus, because the right to exculpatory evidence is already pro-

tected under procedural due process, Graham prohibits the concur-

rence from recharacterizing the police officers' withholding of

evidence as governed by substantive due process (based on the unsup-

portable notion that there is a "fundamental" liberty interest in excul-

patory evidence).5

_________________________________________________________________

5 The concurrence's reliance on Arizona v. Youngblood, 488 U.S. 51

(1988), is similarly misplaced. Youngblood held that when police officers

lose or misplace potentially exculpatory evidence, this does not violate

a criminal defendant's procedural due process right to a "fair trial"

unless the mismanagement of evidence was in "bad faith." See id. at 58.

The concurrence conflates Youngblood's "bad faith" principle with

Daniels' requirement that "deprivations" of liberty or property interests

involve a minimum level of culpability. See ante at 5-6. The notion of

"bad faith" as used in Youngblood, however, is distinguishable from the

culpability requirement Daniels attaches to the term "deprivation" in the

Due Process Clause. "Bad faith" in Youngblood limits what states must

provide, in terms of "due process of law," prior to effecting a deprivation

of a criminal defendant's liberty interest in avoiding incarceration. The

culpability requirement discussed in Daniels, by contrast, limits the

range of state action that will count as an actionable "deprivation" of lib-

erty or property in the first instance -- the predicate that triggers the

state's obligation to provide "due process of law."

The way to think about the distinction between Daniels and Young-

blood in the instant case is as follows. The"fair trial" guarantee under

the Due Process Clause, among other things, endows criminal defendants

with certain procedural safeguards relating to the State's management

and disclosure of evidence. To state a due process claim based on the

State's failure to observe these evidentiary safeguards, a criminal defen-

dant must first prove a culpable "deprivation" of his liberty. See Daniels.

In the context of a criminal trial, the "deprivation" of liberty flows from

the criminal prosecution itself -- an intentional effort to dispossess a citi-

zen of his freedom by putting him in jail.

The criminal defendant must then prove that the culpable "depriva-

tion" of his liberty (i.e., his incarceration) occurred "without due process

of law." If the State has failed to disclose patently exculpatory evidence,

the incarceration occurred "without due process of law" regardless of the

good faith or bad faith of the non-disclosing official. See Brady. But if

the State merely loses or mismanages evidence that could have been

exculpatory, the incarceration comports with "due process of law" unless

the mismanagement of evidence was in "bad faith." See Youngblood.

30

IV.

The errors in the concurrence's analysis all seem to derive from its

belief that Jean's habeas petition and his § 1983 action rest on differ-

ent legal foundations. For purposes of getting his conviction reversed,

the concurrence says that Jean properly relied on Brady and tradi-

tional procedural due process principles, which delineate the ele-

ments of a "fair trial." See Jean v. Rice. To get money damages for

the non-disclosure of exculpatory evidence, however, the concurrence

thinks that Jean needs a different legal theory, which treats the right

to exculpatory evidence as a "fundamental" liberty interest rather than

a "fair trial" guarantee. As part of this legal theory, Jean must also

prove that the "deprivation" of his liberty interest in exculpatory evi-

dence occurred in "bad faith" -- a culpability requirement the concur-

rence lifts from Daniels and then selectively applies only in that

subset of cases where due process claims are brought under § 1983.

The assumption that informs the concurrence's two-tiered approach

seems to be that there are two different types of due process viola-

tions, each of which is correlated with a different type of due process

remedy. When the due process violation involves the state's failure

to provide a procedural safeguard that comprises one element of a

"fair trial" (such as the right to exculpatory evidence), the concurrence

thinks the sole remedy is a new trial. A § 1983 damages remedy,

however, is only available under the concurrence's analysis when the

due process violation involves tortious conduct by a state official --

specifically, that subset of tortious conduct discussed in Daniels,

involving culpable "deprivations" of state-created liberty or property

interests.

This is presumably why the concurrence refuses to analyze Jean's

§ 1983 action as a simple attempt to vindicate the Due Process

Clause's "fair trial" guarantee. Instead, when money damages are at

stake, the concurrence implies that the non-disclosure of exculpatory

evidence must be treated as a tortious interference with a criminal

defendant's liberty interest in exculpatory evidence, rather than a pro-

cedural defect in the criminal defendant's "fair trial." Believing that

the non-disclosure of exculpatory evidence is actionable under § 1983

only on a "tort" theory, rather than a "fair trial" theory, the concur-

31

rence analyzes Jean's section 1983 action as a tort-like claim, rather

than a Brady claim.

A.

Though the concurrence never fully specifies the tort that encom-

passes the right to exculpatory evidence, it appears to be the tort of

malicious prosecution. This tort, recognized in most states, protects

criminal defendants from the malicious institution or continuation of

criminal proceedings that are unsupported by probable cause. See

Goodwin v. Metts, 885 F.2d 157, 160 n.1 (4th Cir. 1989). Liability for

malicious prosecution attaches not only to prosecutors who pursue

criminal convictions without probable cause; it also attaches to police

officers who cause an unfounded prosecution to continue by failing

to tell the prosecutor about new exculpatory evidence uncovered since

the defendant's arrest and indictment. See id . at 161-62.

As the Supreme Court noted in Albright v. Oliver, 510 U.S. 266

(1994), "the extent to which a claim of malicious prosecution is [also]

actionable under § 1983 is one on which there is an embarrassing

diversity of judicial opinion." Id. at 270 n.4 (internal quotations omit-

ted). In Goodwin, decided three years before Albright, we considered

a claim of malicious prosecution brought against a police officer who

failed to disclose exculpatory information to a prosecutor -- evidence

that would have caused the prosecutor to drop the charges had he

been informed of its existence. The plaintiff brought state common

law claims for malicious prosecution and a § 1983 federal claim,

based on the theory that the Due Process Clause constitutionalizes the

state tort of malicious prosecution. We agreed, holding that "[a]

police officer who [maliciously] withholds exculpatory information

from the prosecutor can be liable [for malicious prosecution] under

both section 1983 and the state common law." Id. at 162.

B.

Recasting Jean's § 1983 claim on the malicious prosecution foun-

dation recognized in Goodwin has two implications. First, the use of

a "tort-based" theory rather than a "fair trial" theory enables the con-

currence to apply Daniels' "deprivation" requirement in the selective

manner it desires. Specifically, the malicious prosecution framework

32

forces Jean to prove that the "tort" Collins and Shingleton committed

when they withheld the hypnosis evidence culpably infringed Jean's

liberty interest in exculpatory evidence. Second, the requirement that

malicious prosecution claims be supported by evidence of "malice"

also ratchets up the culpability bar, even if only rhetorically, and

makes it that much harder for Jean to state a successful claim for

money damages.

In Albright, however, the Supreme Court called the theory behind

the concurrence's tort-based approach into question when it held that

the Due Process Clause does not recognize a fundamental "liberty"

interest in being free from malicious prosecution. See Albright, 510

U.S. at 269-71. Subsequently, in Taylor v. Waters, 81 F.3d 429 (4th

Cir. 1996), we saved our malicious prosecution jurisprudence from

invalidation by issuing a saving construction of Goodwin. Specifi-

cally, we held that "[t]o the extent that Goodwin based its holding on

a conclusion that the officer's failure to disclose exculpatory evidence

deprived the § 1983 plaintiffs of a liberty interest in avoiding prosecu-

tion on less than probable cause, that reasoning has been rejected in

Albright. . . . But, to the extent that Goodwin ruled that the officer's

failure to disclose the exculpatory information deprived the § 1983

plaintiffs of their right to a fair trial, its holding is not affected by

Albright." Id. at 436 n.5.

Thus, as a result of Albright, we were forced to recast the constitu-

tional basis of malicious prosecution, employing a "fair trial" due pro-

cess rationale, rather than a "tort-based" due process rationale. When

police officers maliciously withhold exculpatory evidence from pros-

ecutors, this violates the Due Process Clause because it denies crimi-

nal defendants a "fair trial" -- not because it creates a tortious

interference with a liberty interest in exculpatory evidence. Thus, con-

trary to the concurrence's suggestion, malicious prosecution can not

furnish the tort on which to hang Jean's § 1983 action.6

_________________________________________________________________

6 Because Taylor precludes a tort-based approach to the right to excul-

patory evidence, Jean's assertion of this right against Collins and

Shingleton must be treated under the "fair trial" strand of due process

jurisprudence (i.e., under procedural due process). There are two possible

sources of relief for Jean within this procedural due process framework:

33

C.

More fundamentally, the concurrence's belief that § 1983 claims

must proceed on a tort theory, or not at all, is entirely misplaced. This

would only be the case if: (1) section 1983 damages were expressly

reserved for due process violations involving tortious conduct; and (2)

failures to comport with the Due Process Clause's "fair trial" guaran-

tee (as expressed in cases like Brady) entitled criminal defendants

only to a new trial. Neither proposition is supportable.

The Due Process Clause's "fair trial" guarantee, usually discussed

under the heading of procedural due process, prohibits the State from

depriving its citizens of liberty in a criminal trial unless it first

observes certain procedural safeguards. While the focus in procedural

due process cases is on the State's non-compliance with certain delin-

eated "procedures," the constitutional injury in such cases goes

beyond the denial of the "process" that is due. A better description of

the constitutional injury would be "the deprivation of liberty without

due process of law."

Reconceptualizing the constitutional injury in procedural due pro-

cess cases to encompass the underlying liberty deprivation puts con-

siderable strain on the concurrence's suggestion that a "new trial" is

_________________________________________________________________

(1) Brady, which held that criminal defendants are denied a "fair trial"

when the State fails to disclose exculpatory evidence, regardless of the

good faith or bad faith of the non-disclosing official; and (2) Taylor,

which held that criminal defendants are denied a"fair trial" when police

officers perpetuate a groundless criminal prosecution by maliciously

refusing to turn over exculpatory evidence that would have caused the

prosecutor to drop the case.

Because Jean rested his § 1983 claim on Brady, rather than Taylor,

Brady should presumptively guide our analysis. Recourse to Taylor

would only be required if reliance on Brady was foreclosed by the "im-

puted to" theory (that is, if Brady did not impose disclosure duties

directly on police officers). Because the "imputed to" theory is a red her-

ring, it does nothing to disturb Brady's applicability to police officers

like Collins and Shingleton. Accordingly, I would analyze Jean's case

under Brady rather than Taylor.

34

the sole remedy when the State fails to observe a procedural require-

ment, such as the obligation to disclose exculpatory evidence. While

Jean finally persuaded this court to vacate his conviction because of

the due process infirmities surrounding the officers' non-disclosure of

the hypnosis evidence, this belated remedy was hardly commensurate

with the extent of his constitutional injuries. The harm Jean endured

was the deprivation of his liberty without due process of law, not

merely the denial of some freestanding procedural interest in exculpa-

tory evidence. Consequently, the nine years he spent in jail are part

of the corpus of compensable injuries he sustained.

Without a § 1983 damages action, Jean will not receive compensa-

tion for the full extent of his injuries. The concurrence, however,

obstinately adheres to the view that the Due Process Clause's "fair

trial" guarantee is vindicated solely through new trials -- with § 1983

damages reserved for due process violations involving tortious acts by

state officials. This two-tiered interpretation of the rights and reme-

dies created by the Due Process Clause is indefensible analytically.

And in human terms, the concurrence's flawed analytical construct

works a more profound injustice by denying a deserving civil rights

plaintiff the relief to which he is entitled.

I respectfully dissent.

LUTTIG, Circuit Judge, dissenting:

The Supreme Court remanded this case to us for reconsideration in

light of Wilson v. Layne, 526 U.S. 603 (1999). In Wilson, the Court

held that "[a] court evaluating a claim of qualified immunity `must

first determine whether the plaintiff has alleged the deprivation of an

actual constitutional right at all . . . .'" id. at 608 (quoting Conn v.

Gabbert, 526 U.S. 286, 290 (1999)), before proceeding to determine

whether a right that existed was clearly established at the time that the

unconstitutional conduct allegedly occurred. The plaintiff in this case,

Lesly Jean, alleges that his constitutional rights under Brady v. Mary-

land, 373 U.S. 83 (1963), were violated, and, at least according to the

concurrence, separately that his due process rights were violated, by

the conduct of defendant police officers Collins and Shingleton.

As to Jean's Brady allegation, the concurrence categorically holds

today that Brady is not violated when a police officer fails, for what-

35

ever reason, to produce exculpatory and material evidence to the pros-

ecutor, and therefore that a police officer can never be liable under

Brady for the non-production of information to the prosecution. In

reaching this holding, the concurrence reasons that Brady is violated

only when the prosecution fails to provide exculpatory and material

information to the defendant. The concurrence thus concludes that

Jean has not alleged a violation of his constitutional rights under

Brady by alleging that officers Collins and Shingleton failed to pro-

duce exculpatory evidence to the prosecution. I need not, and do not,

express a view on this question.

As to the allegation of a separate due process violation, the concur-

rence also holds that, although Brady is not violated by such, the due

process clause itself might independently be violated if an officer fails

to provide exculpatory information to the prosecution. The concur-

rence holds that an independent due process violation (independent of

Brady, that is) can be established, if at all, only upon proof that the

officer "intentionally withheld [ ] evidence for the purpose of depriv-

ing the plaintiff of the use of that evidence during his criminal trial."

Ante at 10.

Having so held with respect to the possibility of an independent

due process violation, the court proceeds to conclude not that Jean has

or has not alleged a due process violation, but, rather, that he has not

proven that the officers in this case deprived him of due process by

intentionally withholding the evidence at issue for that purpose. See,

e.g., ante at 8 ("The conduct of Shingleton and Collins lies well below

this threshold [of bad faith withholding of exculpatory informa-

tion]."); id. ("Jean simply is unable to provide evidence of a bad faith

deprivation carried out by Collins and Shingleton-- a matter on

which the burden plainly rests with the plaintiff."); id. at 8 ("[Jean]

does not point to any evidence showing that the officers actually

knew of the significance of [the evidence at issue]."); id. ("Jean points

to nothing that resembles the kind of affirmative misuse of power that

the Supreme Court has indicated would implicate due process protec-

tions."); id. at 10 ("Because there was no threshold bad faith depriva-

tion . . . ."); id. ("[Bad faith] must be established on the basis

of evidence . . . ."). Indeed, the concurrence tellingly concludes its

opinion as follows: "What occurred here was at worst a negligent mis-

36

communication among Vatcher, Collins, and Shingleton. . . ." Id. at

10-11.

I am not in a position, on the record before us, to draw such a con-

clusion, nor, in my opinion, is the court. And I do not even believe

that it is appropriate under the qualified immunity scheme to dispose

of Jean's claim on this ground. The only task properly before this

court is to determine whether the plaintiffs have alleged the violation

of a constitutional right, and, if so, whether that right was clearly

established at the time that the alleged violation occurred -- and no

more.

If the concurrence is not to undertake the proper qualified immu-

nity analysis, then the proper course is to remand the case to the dis-

trict court for further proceedings, assuming, that is, that we are going

to impute to Jean first, the allegation of an independent due process

violation, and second, even the specific allegation of an intentional

withholding for the purpose of depriving Jean of his rights, as the

concurrence does. Such a remand would permit Jean to develop, if

possible, evidence to support the allegation imputed to him by the

concurrence, that the information was intentionally withheld for the

purpose of preventing him from using it at trial.

While the concurrence deemphasizes the fact, Jean's central (and

I believe only) theory from the outset of this case has been that the

failure of officers Collins and Shingleton to produce to the prosecu-

tion certain exculpatory evidence constituted a Brady violation. Given

that there is no mens rea requirement under Brady, Jean has had the

opportunity to develop all the facts relevant to this claim. But it is a

different matter altogether with respect to the alleged independent due

process violation that the concurrence ascribes to Jean (albeit in my

view questionably). With respect to this claim, Jean had no notice

even that such a claim might exist, much less that, in order to prove

such a claim, he would be required to establish that the evidence was

intentionally withheld from him for the specific purpose of preventing

him from using that evidence at trial. In other words, until today, Jean

not only had no reason to believe that a violation of due process other

than that recognized under Brady existed; neither did he have any rea-

son to believe that he would be required to prove specific intent --

and the specific intent newly held to be required by the concurrence

37

today -- in order to establish a due process violation by the non-

production of exculpatory evidence. Therefore, Jean has never even

had the cause, much less the opportunity, to develop a record with

regard to Collins' and Shingleton's state of mind in withholding the

evidence. Indeed, the only record that exists is as to what information

was and was not produced to the prosecution by the defendants.

Given that Jean heretofore did not have reason to believe that he

should develop a record as to the defendants' state of mind, I believe

that the court is obliged at a minimum to permit Jean the opportunity

to establish on remand that Collins and Shingleton intentionally with-

held the evidence in question for the purpose of preventing him from

using it at trial. I simply do not believe it is right to dismiss out of

hand Jean's central allegation that his rights under Brady v. Maryland

were violated; ascribe to him a different due process violation than

the one he clearly contemplated; create for the first time the substan-

tive standard that will govern the disposition of such a claim; and then

conclude from a record entirely undeveloped as to the substantive ele-

ments of that new cause of action not even that he has failed to allege

a violation, but that he has failed to prove that violation -- and failed

to do so as a matter of law. I therefore dissent from the judgment of

the court.

38