Roger Parker v. County of Riverside

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER WAYNE PARKER, No. 22-55614

Plaintiff-Appellee, D.C. No.

5:21-cv-01280-

v. JGB-KK

COUNTY OF RIVERSIDE; PAUL E.

ZELLERBACK; SEAN LAFFERTY; OPINION

TRICIA FRANSDAL; JEFFREY

VAN WAGENEN,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Jesus G. Bernal, District Judge, Presiding

Argued and Submitted May 8, 2023

Pasadena, California

Filed August 15, 2023

Before: Andrew D. Hurwitz and Ryan D. Nelson, Circuit

Judges. ∗

∗

This case was decided by quorum of the panel. See 28 U.S.C. § 46(d);

Ninth Circuit General Order 3.2(h).

2 PARKER V. COUNTY OF RIVERSIDE

Per Curiam Opinion;

Concurrence by Judge R. Nelson

SUMMARY **

Civil Rights/Brady

The panel reversed the district court’s denial of

defendants’ motion for judgment on the pleadings, and

remanded, in an action brought pursuant to 42 U.S.C. § 1983

alleging defendants violated plaintiff’s due process rights

under Brady v. Maryland, 373 U.S. 83 (1963), by

suppressing another person’s confession to a murder for

which plaintiff was arrested and held for almost four years

before the charges were dismissed.

The panel held that plaintiff could not show prejudice

from the nondisclosure of the confession. A Brady violation

requires that the withheld evidence have a reasonable

probability of affecting a judicial proceeding. Plaintiff did

not state a Brady claim because he did not assert the

nondisclosure would have changed the result of any

proceeding in his criminal case.

The panel rejected plaintiff’s contention that the

prejudice inquiry should be whether the withheld evidence

had a reasonable probability of affecting counsel’s

strategy. The panel noted that no court has adopted

plaintiff’s proposed rule, and most other courts require a

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PARKER V. COUNTY OF RIVERSIDE 3

conviction to establish prejudice. Moreover, here, the cause

of plaintiff’s continued detention was not the suppression of

the confession, but the District Attorney’s continued

prosecution even after receiving the confession.

The panel held that plaintiff might be able to establish a

different due process claim, as recognized in Tatum v.

Moody, 768 F.3d 806 (9th Cir. 2014), arising out of his

continued detention after it was or should have been known

that he was entitled to release. In this interlocutory appeal,

however, the panel was not asked to address the merits of

such a claim. Plaintiff can seek leave to amend his

complaint to assert that claim on remand.

Concurring, Judge R. Nelson wrote separately to address

why Brady should not be extended to pretrial proceedings,

explaining that the Supreme Court has framed Brady as a

trial right and has never extended Brady to pretrial hearings.

COUNSEL

Tony M. Sain (argued) and Abigail J.R. McLaughlin

(argued), Lewis Brisbois Bisgaard & Smith LLP, Los

Angeles, California, for Defendants-Appellants.

Kimberly S. Trimble (argued), Gerald B. Singleton, and

John C. Lemon, Singleton Schreiber LLP, San Diego,

California, for Plaintiff-Appellee.

Eva Bitran and Summer Lacey, American Civil Liberties

Union Foundation of Southern California, Los Angeles,

California; Avram Frey, American Civil Liberties Union

Foundation of Northern California, San Francisco,

California; Lauren Bonds, National Police Accountability

4 PARKER V. COUNTY OF RIVERSIDE

Project, Kansas City, Kansas; Eliana Machefsky, National

Police Accountability Project, Berkeley, California; for

Amici Curiae American Civil Liberties Union of Southern

California, American Civil Liberties Union of Northern

California, and National Police Accountability Project of the

National Lawyers’ Guild.

Whitney Z. Bernstein and Sandra C. Lechman, Bienert

Katzman Littrell Williams LLP, San Clemente, California,

for Amicus Curiae The Law Enforcement Action

Partnership.

OPINION

PER CURIAM:

Roger Wayne Parker was arrested for murder and held

for almost four years before the charges against him were

dismissed, months after another person confessed to the

crime. Years later, Parker then sued the County of Riverside

and various County officials under 42 U.S.C. § 1983,

claiming that they had violated his due process rights under

Brady v. Maryland, 373 U.S. 83 (1963), by suppressing the

separate confession. The district court denied a motion for

judgment on the pleadings on the Brady claim. We reverse

and remand, without prejudice to Parker asserting a different

due process claim. A Brady violation requires that the

withheld evidence have a reasonable probability of affecting

a judicial proceeding, and no such proceeding was affected

here.

PARKER V. COUNTY OF RIVERSIDE 5

I

Brandon Stevenson was murdered at a house Parker

shared with Willie Womack. 1 Parker was not home when

the police arrived but was detained upon his return. After a

fifteen-hour interrogation, Parker, who is developmentally

delayed, confessed to the murder but claims that he did so

“sarcastically” and because of police pressure.

Prosecutors had doubts about Parker’s guilt from the

outset. The first prosecutor assigned to the case, Deputy

District Attorney (DA) Lisa DiMaria, believed the

confession was a sham. At a staff meeting days after

Parker’s arrest, she expressed serious concerns about his

guilt. A year later, after receiving an analysis of the physical

evidence (including DNA), DiMaria requested authorization

to dismiss the case because of Parker’s likely innocence.

Assistant DA Sean Lafferty denied the request and

reassigned the case to Deputy DA Chris Ross. Lafferty

explained that the DA insisted on pursuing the charges and

DiMaria refused to prosecute because she believed Parker

was innocent. DiMaria later shared her concerns with Ross

directly.

Ross also came to question Parker’s guilt. Over the next

two and a half years, Ross repeatedly told Lafferty that

prosecutors lacked probable cause to hold Parker and could

not prove the charge. Lafferty and other supervisors

nonetheless refused to dismiss the case.

Over three years into Parker’s detention, Ross obtained

recordings of phone calls in which Womack, the former

1

We take these facts from the allegations in the complaint, which we

accept as true. See Honey v. Distelrath, 195 F.3d 531, 532 (9th Cir.

1999).

6 PARKER V. COUNTY OF RIVERSIDE

roommate, admitted to the murder. Lafferty instructed Ross

not to disclose the calls to Parker’s attorney and removed

Ross from the case.

Approximately six months after discovering the

confession, the DA’s Office requested dismissal due to

insufficiency of the evidence but did not notify Parker of

Womack’s confession. When charges were dismissed,

Parker had been detained for almost four years. There had

never been a preliminary hearing because it was “continued

several times.” Parker first learned of Womack’s confession

six years after his release, and the Superior Court later found

him factually innocent.

Parker then filed a § 1983 action against the County, DA,

and supervisors in the DA’s Office, asserting denial of due

process arising out of the suppression of exculpatory

evidence in violation of the Fifth Amendment and Brady.

The district court denied a defense motion for judgment on

the pleadings, holding that Parker stated a “Brady-related

claim” because the suppression of Womack’s confession

prolonged his pretrial detention. The district court certified

the Brady issue for an interlocutory appeal, which we

accepted.

II

We have jurisdiction under 28 U.S.C. § 1292(b). “We

review de novo a district court’s judgment on the pleadings.”

Knappenberger v. City of Phoenix, 566 F.3d 936, 939 (9th

Cir. 2009). “Judgment on the pleadings is proper when,

taking all the allegations in the pleadings as true, the moving

party is entitled to judgment as a matter of law.” Honey, 195

F.3d at 532.

PARKER V. COUNTY OF RIVERSIDE 7

III

Under Brady, “the suppression by the prosecution of

evidence favorable to an accused . . . violates due process

where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87. Brady requires the disclosure

of “impeachment evidence as well as exculpatory evidence.”

Strickler v. Greene, 527 U.S. 263, 280 (1999). Even

inadvertent failure to disclose may violate this duty, which

does not require a criminal defendant’s request. See United

States v. Bruce, 984 F.3d 884, 894 (9th Cir. 2021).

Disclosures “must be made at a time when [the] disclosure

would be of value to the accused.” United States v. Aichele,

941 F.2d 761, 764 (9th Cir. 1991) (quoting United States v.

Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988)).

A Brady violation has three elements: “The evidence at

issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler,

527 U.S. at 281–82. The parties dispute only the third

element, whether Parker can show prejudice from the

nondisclosure.

The principle underlying Brady is “not punishment of

society for misdeeds of a prosecutor but avoidance of an

unfair trial to the accused.” 373 U.S. at 87. While “[t]he

term ‘Brady violation’ is sometimes used to refer to any

breach of the broad obligation to disclose exculpatory

evidence,” the Supreme Court has explained that “there is

never a real ‘Brady violation’ unless the nondisclosure was

so serious that there is a reasonable probability that the

suppressed evidence would have produced a different

8 PARKER V. COUNTY OF RIVERSIDE

verdict.” Strickler, 527 U.S. at 281; see also Kyles v.

Whitley, 514 U.S. 419, 435 (1995) (Brady violation requires

showing “that the favorable evidence could reasonably be

taken to put the whole case in such a different light as to

undermine confidence in the verdict”).

“A ‘true’ Brady violation therefore occurs only where

. . . the evidence was material to the outcome such that the

defendant was prejudiced by the suppression.” Bailey v.

Rae, 339 F.3d 1107, 1113 (9th Cir. 2003). “Evidence is

material within the meaning of Brady when there is a

reasonable probability that, had the evidence been disclosed,

the result of the proceeding would have been different.”

Turner v. United States, 582 U.S. 313, 324 (2017) (cleaned

up); see also United States v. Kohring, 637 F.3d 895, 913

(9th Cir. 2011) (observing that a new trial is usually “the

appropriate remedy” for a Brady violation (quoting United

States v. Chapman, 524 F.3d 1073, 1086 (9th Cir. 2008)));

United States v. Jernigan, 492 F.3d 1050, 1053 (9th Cir.

2007) (en banc) (“The touchstone of materiality review is

whether admission of the suppressed evidence would have

created a reasonable probability of a different result.”

(cleaned up)).

We have applied Brady in the pretrial context. For

instance, “a defendant challenging the voluntariness of a

guilty plea may assert a Brady claim.” Sanchez v. United

States, 50 F.3d 1448, 1453 (9th Cir. 1995). We assess

prejudice in this circumstance by asking “whether there is a

reasonable probability that but for the failure to disclose the

Brady material, the defendant would have refused to plead

and would have gone to trial.” Id. at 1454. Likewise, we

have held that Brady applies to a hearing on a motion to

suppress. See United States v. Gamez-Orduño, 235 F.3d

453, 461 (9th Cir. 2000). Even in the pretrial context, the

PARKER V. COUNTY OF RIVERSIDE 9

inquiry is “if there is a reasonable probability that, had the

evidence been disclosed, the result of the proceeding would

have been different.” Id.

The difficulty in this case is that there was no judicial

proceeding that could be affected by the withheld

confession. Without that, Parker cannot show Brady

prejudice, and his Brady claim fails. 2

Parker seeks to extend our rule, asserting that the

prejudice inquiry should be whether the withheld evidence

had a reasonable probability of affecting his counsel’s

strategy. Had the DA’s Office turned over the confession,

Parker contends, there is a reasonable probability that his

counsel would have demanded a preliminary hearing rather

than consent to continuances that prolonged his pretrial

detention.

But Parker’s harm did not result from a proceeding

tainted by nondisclosure, and we see no reason to extend

Brady beyond its limited purpose. Although Brady sounds

in due process, see Dist. Att’y’s Off. for the Third Jud. Dist.

v. Osborne, 557 U.S. 52, 68 (2009), it remedies the injustice

that results when “a state has contrived a conviction through

the pretense of a trial,” Brady, 373 U.S. at 86 (quoting

Mooney v. Holohan, 294 U.S. 103, 112 (1935)). To

implicate Brady, the harm must result from the

government’s failure to disclose material exculpatory or

impeaching evidence. Here, the cause of Parker’s continued

detention was not the suppression, but the DA’s continued

prosecution even after receiving Womack’s confession. Had

2

We reject Parker’s argument that Mathews v. Eldridge, 424 U.S. 319

(1976), controls whether the Brady claim is viable. Whether additional

procedural safeguards are warranted, see id. at 335, is irrelevant to

whether Parker meets Brady’s substantive requirements.

10 PARKER V. COUNTY OF RIVERSIDE

the DA immediately dismissed the charges against Parker

after learning of the confession, he would not have been

detained for the extra six months, whether or not the

confession had been turned over.

No court has adopted Parker’s proposed rule. Indeed,

most other courts have required a conviction to establish

prejudice. See Livers v. Schenck, 700 F.3d 340, 359 (8th Cir.

2012) (rejecting applicability of Brady to pretrial

proceedings); Becker v. Kroll, 494 F.3d 904, 924 (10th Cir.

2007) (“A plaintiff cannot establish materiality unless the

case goes to trial and the suppression of exculpatory

evidence affects the outcome.”); Flores v. Satz, 137 F.3d

1275, 1278 (11th Cir. 1998) (per curiam). These courts

reason that Brady requires a conviction because the Supreme

Court has instructed that “Brady is violated only when ‘there

is a reasonable probability that the suppressed evidence

would have produced a different verdict.’” Livers, 700 F.3d

at 359 (quoting Strickler, 527 U.S. at 281); see also Becker,

494 F.3d at 924 (describing Brady as “framing the right to

exculpatory evidence only in terms of providing a fair trial”);

Flores, 137 F.3d at 1278 (Brady not implicated because the

plaintiff “did not suffer the effects of an unfair trial”). But

neither the Ninth Circuit nor any other circuit has found

Brady prejudice when the nondisclosure did not affect the

outcome of a criminal proceeding.

Parker did not state a Brady claim because he does not

claim the nondisclosure would have changed the result of

any proceeding in his criminal case. On appeal, Parker cited

Tatum v. Moody, which holds that a defendant can state a

due process claim arising out of “continued detention after it

was or should have been known that [he] was entitled to

release.” 768 F.3d 806, 816 (9th Cir. 2014) (quoting Lee v.

City of Los Angeles, 250 F.3d 668, 683 (9th Cir. 2001)).

PARKER V. COUNTY OF RIVERSIDE 11

Parker may well be able to state such a claim, but it is not a

Brady claim. The claim recognized in Tatum, which “can be

characterized as one . . . of mistaken identity,” id. at 815,

does not rest on prosecutors’ failure to provide the defense

with material exculpatory evidence, see Lee, 250 F.3d at

683–85. Indeed, Tatum did not rely on Brady, but instead on

Baker v. McCollan, 443 U.S. 137, 145 (1979), for the

proposition that under certain circumstances, “detention

pursuant to a valid warrant but in the face of repeated

protests of innocence will after the lapse of a certain amount

of time deprive the accused of liberty without due process of

law.” Tatum, 768 F.3d at 816 (cleaned up).

In this interlocutory appeal, however, we are not asked

to address the merits of a Tatum–Lee claim. On remand,

Parker can seek leave to amend his complaint to assert that

claim. 3

IV

Because there was no judicial proceeding, Parker cannot

show that he was prejudiced by any failure to disclose Brady

evidence.

REVERSED AND REMANDED. Each party to bear

its own costs.

3

Parker suggested for the first time at argument that his complaint stated

a general due process claim. We do not interpret his extant complaint,

which cites Brady and tracks the elements of a Brady claim, to do so.

The district court also did not read Parker’s complaint more broadly.

And Parker’s answering brief omitted this argument and discussed non-

Brady cases only to support his Brady claim.

12 PARKER V. COUNTY OF RIVERSIDE

R. NELSON, Circuit Judge, concurring:

I write separately to address why Brady should not be

extended to pretrial proceedings. The Supreme Court has

framed Brady as a trial right; it has never extended Brady to

pretrial hearings. Where the Supreme Court is silent, we

should extend precedent to novel contexts only when

consistent with the Constitution’s text and original public

meaning, neither of which appear to support applying Brady

pretrial. In previously extending Brady, we have eschewed

the Supreme Court’s guidance and split from most of our

sister circuits. While our pretrial Brady cases do not control

the outcome in this case, making en banc review

unwarranted here, we should correct this error in an

appropriate case.

I

We are bound to follow Supreme Court precedent. See

Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). We

do not, however, “dissect the sentences of the United States

Reports as though they were the United States Code.” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

Instead, we “read general language in judicial opinions” to

“refer[] in context to circumstances similar to the

circumstances then before the Court and not referring to

quite different circumstances that the Court was not then

considering.” Illinois v. Lidster, 540 U.S. 419, 424 (2004).

Brady arose in the context of a suppressed confession

that led to a criminal conviction, and its facts illustrate the

contours of the due process right recognized. The petitioner,

John Brady, and his companion, Boblit, were found guilty of

first-degree murder and sentenced to death. See Brady v.

Maryland, 373 U.S. 83, 84 (1963). Brady admitted his

PARKER V. COUNTY OF RIVERSIDE 13

participation but claimed that Boblit did the actual killing.

See id. After an unsuccessful appeal, Brady learned that the

prosecution had withheld Boblit’s out-of-court statement

admitting to the homicide. See id. Brady then sought post-

conviction relief because of the suppressed statement, and

the Maryland Court of Appeals (then the court of last resort

in Maryland) recognized a due process violation. See id. at

85. The question before the Supreme Court was “whether

petitioner was denied a federal right when the Court of

Appeals restricted the new trial to the question of

punishment.” Id.

The Supreme Court largely relied on three precedents to

support its holding, each of which focused on erroneous

convictions obtained through an unfair trial. See id. at 86–

87. First, Mooney v. Holohan explained,

[Due process] is a requirement that cannot be

deemed to be satisfied by mere notice and

hearing if a state has contrived a conviction

through the pretense of a trial which in truth

is but used as a means of depriving a

defendant of liberty through a deliberate

deception of court and jury by the

presentation of testimony known to be

perjured.

294 U.S. 103, 112 (1935) (emphasis added). Second, in Pyle

v. Kansas, the Supreme Court reiterated its concern with a

conviction resulting from “perjured testimony, knowingly

used by the State authorities to obtain his conviction, and

from the deliberate suppression by those same authorities of

evidence favorable to him.” 317 U.S. 213, 216 (1942)

(emphasis added). Finally, in Napue v. Illinois, the Court re-

14 PARKER V. COUNTY OF RIVERSIDE

emphasized “[t]he principle that a State may not knowingly

use false evidence, including false testimony, to obtain a

tainted conviction.” 360 U.S. 264, 269 (1959). Brady

distilled the principle of those decisions as “avoidance of an

unfair trial to the accused.” 373 U.S. at 87 (emphasis

added).

Since Brady, the Supreme Court has repeatedly

emphasized the fairness of trial when analyzing Brady

prejudice. See, e.g., United States v. Agurs, 427 U.S. 97, 112

(1976) (“The proper standard of materiality must reflect our

overriding concern with the justice of the finding of guilt.”);

Strickler v. Greene, 527 U.S. 263, 281 (1999) (“[T]here is

never a real ‘Brady violation’ unless the nondisclosure was

so serious that there is a reasonable probability that the

suppressed evidence would have produced a different

verdict.”); Turner v. United States, 582 U.S. 313, 324 (2017)

(“A reasonable probability of a different result is one in

which the suppressed evidence undermines confidence in the

outcome of the trial.” (cleaned up)).

Put simply, Brady’s due process holding is confined to

trial. Nothing in these decisions suggests that Brady applies

in pretrial proceedings.

II

A

The Supreme Court’s silence does not foreclose our

extension of Brady to pretrial proceedings. But we should

do so only if consistent with the Constitution’s text and

original public meaning. While that issue can be fully

addressed in a future case, the Constitution does not appear

to support our extension. And the Supreme Court’s

PARKER V. COUNTY OF RIVERSIDE 15

instruction in related areas strongly suggests that we should

rethink our caselaw.

While we are bound to follow the Supreme Court’s

precedents, “our fidelity is not blind.” NLRB v. Int’l Ass’n

of Bridge, Structural, Ornamental, & Reinforcing Iron

Workers, Local 229, 974 F.3d 1106, 1116 (9th Cir. 2020)

(Bumatay, J., dissenting from the denial of rehearing en

banc). “We always have a ‘duty to interpret the Constitution

in light of its text, structure, and original understanding,’” id.

(citation omitted), and should not extend “ahistorical,

atextual” precedent beyond its original scope and context,

Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 945 (9th Cir.

2021) (R. Nelson, J., dissenting from the denial of rehearing

en banc). “So if we are forced to choose between upholding

the Constitution and extending precedent in direct conflict

with the Constitution, the choice should be clear: Our duty

is to apply the Constitution—not extend precedent.” Texas

v. Rettig, 993 F.3d 408, 417 (5th Cir. 2021) (Ho, J.,

dissenting from the denial of rehearing en banc) (cleaned

up).

“In light of the Supreme Court’s silence on” the

application of Brady to pretrial proceedings, “we must look

to the Constitution’s original meaning.” Preterm-Cleveland

v. McCloud, 994 F.3d 512, 545 (6th Cir. 2021) (en banc)

(Bush, J., concurring). The Fifth and Fourteenth

Amendments prohibit the federal and state governments

respectively from depriving a person “of life, liberty, or

property, without due process of law.” U.S. Const. amends.

V & XIV. Admittedly, the term “due process” is ambiguous.

See Max Crema & Lawrence B. Solum, The Original

Meaning of “Due Process of Law” in the Fifth Amendment,

108 Va. L. Rev. 447, 451 (2022). Early American law,

however, suggests that the right crafted by Brady was itself

16 PARKER V. COUNTY OF RIVERSIDE

not encapsulated in the traditional conception of due process.

See Michael Moore, Criminal Discovery, 19 Hastings L.J.

865, 865–70 (1968). The early courts appear to have

adopted the English common-law rule that courts lacked the

power, without legislation, to order prosecutors to reveal

evidence in the state’s possession. See id. at 866. Indeed,

even in 1923, courts rejected pretrial discovery for criminal

defendants. Cf. United States v. Garsson, 291 F. 646, 649

(S.D.N.Y. 1923) (L. Hand, J.) (“Why [the criminal

defendant] should in advance have the whole evidence

against him to pick over at his leisure, and make his defense,

fairly or foully, I have never been able to see.”). Given that

Brady is in tension with the text and original public meaning

of the Constitution, we should not extend it as we have.

Separately, as I have previously noted, our holding that

Brady applies during plea bargaining conflicts with the

Supreme Court’s decision in United States v. Ruiz, 536 U.S.

622 (2002). See United States v. Harshman, No. 19-35131,

2021 WL 3929926, at *2–4 (9th Cir. Sept. 2, 2021) (R.

Nelson, J., concurring). Ruiz held that “the Constitution

does not require the Government to disclose material

impeachment evidence prior to entering a plea agreement

with a criminal defendant.” 536 U.S. at 633. In reaching

this holding, the Supreme Court reasoned that “a

constitutional obligation to provide impeachment

information during plea bargaining, prior to entry of a guilty

plea, could seriously interfere with the Government’s

interest in securing those guilty pleas that are factually

justified, desired by defendants, and help to secure the

efficient administration of justice.” Id. at 631. By allowing

criminal defendants to raise Brady claims at the plea stage,

we may undermine the goals of plea bargaining that the

Supreme Court has identified.

PARKER V. COUNTY OF RIVERSIDE 17

In short, the Constitution’s text and original public

meaning counsel against extending Brady. And Supreme

Court precedent suggests that Brady should not apply during

plea bargaining, or at least, that we should revisit this issue

with the benefit of Ruiz.

B

What about our sister circuits? Not all have addressed

the issues in Sanchez v. United States, 50 F.3d 1448, 1453

(9th Cir. 1995) (plea hearing), and United States v. Gamez-

Orduno, 235 F.3d 453, 461 (9th Cir. 2000) (suppression

hearing). But published decisions from other circuits

conflict with our holdings and confirm that we have

stretched the Brady right too far.

The First, Third, Fourth and Fifth Circuits underscore

Brady’s concern with fairness in the ultimate conviction and

accordingly reject its application to plea hearings. “To

constitute a Brady violation, the nondisclosure must do more

than impede the defendant’s ability to prepare for trial; it

must adversely affect the court’s ability to reach a just

conclusion, to the prejudice of the defendant.” United States

v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984), abrogated on

other grounds by Dennis v. Sec’y, Pa. Dep’t of Corr., 834

F.3d 263, 289–93 (3d Cir. 2016) (en banc). “It is, therefore,

universally acknowledged that the right memorialized in

Brady is a trial right.” United States v. Mathur, 624 F.3d

498, 507 (1st Cir. 2010); see also United States v.

Moussaoui, 591 F.3d 263, 285 (4th Cir. 2010). Rejecting the

extension of Brady to pretrial plea negotiations, the First

Circuit explained, “courts enforce Brady in order ‘to

minimize the chance that an innocent person [will] be found

guilty.’” Mathur, 624 F.3d at 507 (citation omitted). The

Fourth Circuit reasoned similarly: “When a defendant pleads

18 PARKER V. COUNTY OF RIVERSIDE

guilty, those concerns [of a fair verdict] are almost

completely eliminated because his guilt is admitted.”

Moussaoui, 591 F.3d at 285. And the importance of the plea

hearing “provides no support for an unprecedented

expansion of Brady.” Mathur, 624 F.3d at 507; see also

Alvarez v. City of Brownsville, 904 F.3d 382, 394 (5th Cir.

2018) (“In sum, case law from the Supreme Court, [the Fifth

Circuit], and other circuits does not affirmatively establish

that a constitutional violation occurs when Brady material is

not shared during the plea bargaining process.”).

The Sixth, Eighth, Tenth, and Eleventh Circuits parse the

Supreme Court’s materiality test—which requires the

suppressed evidence to affect the verdict or outcome of

trial—to limit Brady prejudice to cases in which the criminal

defendant is convicted. “A plaintiff cannot establish

materiality unless the case goes to trial and the suppression

of exculpatory evidence affects the outcome.” Becker v.

Kroll, 494 F.3d 904, 924 (10th Cir. 2007); see also Livers v.

Schenck, 700 F.3d 340, 359 (8th Cir. 2012) (in qualified

immunity context, no Brady violation absent conviction);

Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998).

Likewise, when “the underlying criminal proceeding

terminated in appellant’s favor, he has not been injured by

the act of wrongful suppression of exculpatory evidence.”

McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir.

1988).

The Seventh Circuit has “expressed doubt that an

acquitted defendant can ever establish the requisite prejudice

for a Brady claim.” Alexander v. McKinney, 692 F.3d 553,

556 (7th Cir. 2012). Having yet to decide the issue, the

Seventh Circuit has allowed Brady claims where “an

acquitted defendant showed that disclosure of the suppressed

evidence would have altered the decision to go to trial.” Id.

PARKER V. COUNTY OF RIVERSIDE 19

Note, however, that the Seventh Circuit’s analysis differs

from ours in focusing on the prosecutor’s decision, rather

than the defendant’s, to proceed to trial. See Parish v. City

of Chicago, 594 F.3d 551, 554 (7th Cir. 2009) (“Parish may

still have had a Brady-type due process claim after he was

acquitted, if (as he alleges) prompt disclosure of the

suppressed evidence would have altered the prosecution’s

decision to proceed to trial.”).

Against these persuasive decisions, our only ally is the

Second Circuit. See United States v. Overton, 24 F.4th 870,

878 (2d Cir. 2022). Adopting a similar prejudice test, the

Second Circuit allows Brady claims during a plea hearing.

See id. But the Second Circuit did not consider whether

extending Brady adhered to the Constitution’s original

public meaning. See Miller v. Angliker, 848 F.2d 1312,

1319–22 (2d Cir. 1988).

In sum, all but two of our sister circuits have

appropriately limited Brady to trial. We should join them in

an appropriate case.

III

Our duty is to uphold the Constitution. We have

deviated from its text and original public meaning in

extending Brady. In an appropriate case, we should realign

our Brady caselaw with the Constitution and the prevailing

view among the other circuits.