Amicus Curiae Brief — Dave Elysee, Petitioner v. United States

Supreme Court briefFeb 7, 2022

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No. 21-6770

IN THE

Supreme Court of the United States

DAVE ELYSEE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICUS CURIAE

CLAUSE 40 FOUNDATION IN SUPPORT

OF PETITIONER

DOUGLAS E. LITVACK

Counsel of Record

ERIC S. FLEDDERMANN

RAYMOND B. SIMMONS

JENNER & BLOCK LLP

1099 New York Ave. NW

Washington, D.C. 20001

(202) 637-6357

dlitvack@jenner.com

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether a criminal defendant has a due process right

to mount a defense based on an inadequate police investigation into another suspect.

TABLE OF CONTENTS

QUESTION PRESENTED .............................................. i

TABLE OF AUTHORITIES ......................................... iii

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF ARGUMENT ........................................ 1

ARGUMENT ...................................................................... 4

II.

Due Process Permits Criminal Defendants

To Present Evidence Of A Police Investigation’s Unreliability. ............................................ 4

Evidence Of A Police Investigation’s Unreliability Casts Reasonable Doubt On The Prosecution’s

Case. ............................................................. 5

The Eleventh Circuit’s Decision Is

An Outlier. ................................................... 7

If The Eleventh Circuit’s Ruling Stands, It

Will Lead To More Wrongful Convictions. ....... 10

Evidence Of Unreliable Police Investigations Prevents Wrongful

Convictions By Improving Law Enforcement Accountability. ....................... 11

Failing To Protect Innocent Persons From Wrongful Convictions

Has Detrimental Consequences On

Innocent Defendants And Society

As A Whole................................................ 15

CONCLUSION ................................................................ 20

iii

TABLE OF AUTHORITIES

CASES

Alvarez v. Ercole, 763 F.3d 223 (2d Cir.

2014) ........................................................................... 9

Bowen v. Maynard, 799 F.2d 593 (10th Cir.

1986) ........................................................................... 9

Camm v. Faith, 937 F.3d 1096 (7th Cir.

2019) ....................................................................... 6, 9

Cargle v. Mullin, 317 F.3d 1196 (10th Cir.

2003) ........................................................................... 6

Chambers v. Mississippi, 410 U.S. 284

(1973) ...................................................................... 5-6

Coffin v. United States, 156 U.S. 432 (1895) ............ 11

Commonwealth v. Phinney, 843 N.E.2d

1024 (Mass. 2006) ........................................... 6, 8, 10

Conde v. Henry, 198 F.3d 734 (9th Cir.

1999) ........................................................................... 5

Crane v. Kentucky, 476 U.S. 683 (1986) ................. 2, 6

DeWitt v. District of Columbia, 43 A.3d 291

(D.C. 2012) .............................................................. 14

Fontenot v. Crow, 4 F.4th 982 (10th Cir.

2021), petition for cert. filed, No. 21-970

(U.S. Jan. 6, 2022) .................................................. 10

Furman v. Georgia, 408 U.S. 238 (1972) .................. 11

Jackson v. Virginia, 443 U.S. 307 (1979) ................ 5, 7

Kyles v. Whitley, 514 U.S. 419 (1995).......................... 9

Martin v. State, 311 So. 3d 778 (Fla. 2020),

cert. denied, 141 S. Ct. 417 (2020) ........................ 12

Nolley v. State, 237 So. 3d 469 (Fla. Dist. Ct.

App. 2018) .......................................................... 12-13

People v. Cisneros, No. B215151, 2011 WL

437791 (Cal. Ct. App. Feb. 9, 2011) ....................... 7

People v. Ridenour, No. 342748, 2019 WL

5418330 (Mich. Ct. App. Oct. 22, 2019).................. 8

Rivera v. Director, Department of Corrections, 915 F.2d 280 (7th Cir. 1990) ..................... 2, 6

Roesser v. State, 751 S.E.2d 297 (Ga. 2013) .............. 14

Schneckloth v. Bustamonte. 412 U.S. 218

(1973) ......................................................................... 5

State v. Gomes, 256 A.3d 131 (Conn. 2021) ................. 8

State v. Johnson, 447 P.3d 783 (Ariz. 2019),

cert. denied, 140 S. Ct. 1154 (2020) ........................ 8

State v. Wright, 140 A.3d 939 (Conn. 2016) ................ 8

Tompkins v. State, 872 So. 2d 230 (Fla.

2003) ......................................................................... 13

Walker v. City of New York, 974 F.2d 293

(2d Cir. 1992) .......................................................... 14

In re Winship, 397 U.S. 358 (1970) .................. 1, 4, 5, 7

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. amend. V .............................................. 1, 10

U.S. Const. amend. VI ................................................ 10

U.S. Const. amend. XIV ......................................... 1, 10

OTHER AUTHORITIES

Jeanne Bishop & Mark Osler, Prosecutors

and Victims: Why Wrongful Convictions Matter, 105 J. Crim. L. & Criminology 1031 (2015) ................................................. 16, 17

Cato Institute, Blackstone’s Ratio: Is it

more important to protect innocence or

punish guilt? (2016), https://www.cato.

org/policing-in-america/chapter-4/blackstones-ratio ............................................................. 11

Russell Covey, Police Misconduct As A

Cause of Wrongful Convictions, 90

Wash. U. L. Rev. 1133 (2013) ............................... 13

Death Penalty Information Center, Executed

but

Possibly

Innocent,

https://deathpenaltyinfo.org/policy-issu

es/innocence/executed-but-possibly-inn

ocent (last visited Feb. 3, 2022) ........................... 18

Equal Justice Initiative, Death Penalty,

https://eji.org/issues/death-penalty/ (last

visited Feb. 3, 2022) ............................................... 17

Fed. R. Crim. P. 12.1 ..................................................... 4

Fed. R. Crim. P. 12.2 ..................................................... 4

Fed. R. Crim. P. 12.3 ..................................................... 4

Jon B. Gould & Richard A. Leo, One Hundred Years Later: Wrongful Convictions

After A Century of Research, 100 J.

Crim. L. & Criminology 825 (2010) ..................... 12

Samuel R. Gross et al., Government Misconduct and Convicting the Innocent: The

Role of Prosecutors, Police and Other

Law Enforcement, Nat’l Registry of Exonerations (Sept. 1, 2020), https://www.

law.umich.edu/special/exoneration/Docu

ments/Government_Misconduct_and_C

onvicting_the_Innocent.pdf ........................... 11, 13

Samuel R. Gross et al., Race and Wrongful

Convictions in the United States, Nat’l

Registry of Exonerations (Mar. 7, 2017),

https://www.law.umich.edu/special/exoneration/Documents/Race_and_Wr

ongful_Convictions.pdf ......................................... 19

Innocence Project, DNA Exonerations in

the United States, https://innocenceproject.org/dna-exonerations-in-the-unitedstates/ (last visited Feb. 3, 2020) ......................... 16

Innocence Project, Explore the Numbers:

Innocence Project’s Impact, https://innocenceproject.org/exonerations-data/

(last visited Feb. 3, 2022) ...................................... 18

Dasha Kabakova, The Lack of Accountability for the New York Police Department’s Investigative Stops, 10 Cardozo

Pub. L. Pol’y & Ethics J. 539 (2012) .................... 15

National Registry of Exonerations, 25,000

Years Lost to Wrongful Convictions

(June 14, 2021), https://www.law.umich.

edu/special/exoneration/Documents/250

00%20Years.pdf ......................................... 15, 16, 17

vii

Darrel W. Stephens, Police Discipline: A

Case for Change, Nat’l Inst. Just. (June

2011),

https://www.hks.harvard.edu/

sites/default/files/centers/wiener/programs/pcj/files/PoliceDisciplineACaseforChange.pdf ................................................... 14, 15

INTEREST OF THE AMICUS CURIAE 1

Clause 40 Foundation is a non-partisan nonprofit organization whose mission is to honor, preserve, and promote due process rights guaranteed in the U.S. Constitution. It has a particular interest in ensuring procedural fairness in the criminal system and increasing accountability of law enforcement and prosecutors. The

Eleventh Circuit’s decision would leave criminal defendants in Florida, Georgia, and Alabama vulnerable to conviction and incarceration without their guilt proven beyond a reasonable doubt, in direct violation of the Fifth

Amendment. Amicus Curiae writes to protect those individuals’ Constitutional rights.

SUMMARY OF ARGUMENT

The Due Process Clauses require that a criminal defendant is innocent until proven guilty beyond a reasonable doubt—the highest standard of proof in the United

States legal system. U.S. Const. amend. V, XIV; see In

re Winship, 397 U.S. 358, 363-64 (1970). The reasonable

doubt standard minimizes the chances that defendants

lose their freedom—or even their lives—for crimes they

did not commit. Criminal defendants are not guilty if

any common-sense doubt of their guilt exists, even if the

trier of fact believes the defendant likely committed the

crime.

Under Supreme Court Rule 37.6, no counsel for a party authored this brief in whole or part, nor did any person or entity, other

than amicus or their counsel, make a monetary contribution to the

preparation or submission of this brief. Under Supreme Court Rule

37.2(a), counsel of record for all parties received timely notice of the

intent to file this brief and consented to this filing.

For this burden of proof to be faithfully implemented,

courts cannot categorically prohibit “as a matter of law”

the trier from hearing certain evidence that could raise

reasonable doubt about a defendant’s guilt. See Crane v.

Kentucky, 476 U.S. 683, 690 (1986) (holding that the Constitution “guarantees criminal defendants a meaningful

opportunity to present a complete defense.” (internal

quotation marks omitted)); see also Rivera v. Dir., Dep’t

of Corr., 915 F.2d 280, 281-83 (7th Cir. 1990) (reversing

on the grounds that the trial court categorically excluded exculpatory evidence of another person’s confession to the crime). That type of prohibition hamstrings

the defendant’s ability to mount a “reasonable doubt”

defense, it misleads the trier into a false sense of certainty about the verdict, and it violates the defendant’s

fundamental due process rights.

The Eleventh Circuit made that grave mistake here.

In an unprecedented decision that departs from those

reached by other federal courts of appeals and state high

courts, the Circuit prohibited, “as a matter of law,” criminal defendants from presenting a reasonable doubt defense based on the police’s failure to investigate another

suspect. The Circuit excluded this evidence because an

unreliable police investigation is not a recognized “affirmative defense,” and that even if such an affirmative

defense existed, Federal Evidence Rule 403 made the

particular evidence of a third party’s confession inadmissible. But the Eleventh Circuit missed the point by

overlooking the relevance of an unreliable police investigation to whether there is reasonable doubt that the defendant actually committed the crime. This mistake led

the Circuit into reversible legal error.

The Circuit’s legal error has serious consequences

that warrant the Supreme Court’s attention. First, the

prohibition on evidence showing an unreliable police investigation of another suspect deprives criminal defendants in Florida, Georgia, and Alabama of their due process rights by barring an entire category of evidence

that could raise reasonable doubt. The trier cannot apply the reasonable doubt standard that due process requires if evidence that may create reasonable doubt is

prohibited as a matter of law. Second, this decision

grossly deviates from the decisions of other federal

courts of appeal and state high courts in a way that

leaves criminal defendants in Florida, Alabama, and

Georgia with less ability to defend themselves than

criminal defendants elsewhere. Amicus is unaware of

any court—federal or state—that categorically prohibits

criminal defendants from presenting a reasonable doubt

defense based on an unreliable police investigation.

Third, the Eleventh Circuit’s decision will lead to more

wrongful convictions as well as additional burden and

cost to our criminal legal system. Many reputable studies find that unreliable police investigations or police

misconduct increase the likelihood of a wrongful conviction. Yet the Circuit’s decision will prevent defendants

from challenging deficient police investigations as part

of their reasonable doubt defense. And to make matters

worse, this prohibition gives law enforcement perverse

incentives to take shortcuts rather than expend resources to properly investigate crimes. The result will

be less thorough police investigations, more criminal

cases against innocent people, and more wrongful convictions.

This Court has the opportunity to address the Circuit’s grave mistake of barring a reasonable doubt defense based on unreliable police investigations in violation of the Due Process Clauses, eliminate a split in

authority, and avoid the severe consequences that follow. The Court should therefore grant the petition.

ARGUMENT

Due Process Permits Criminal Defendants To

Present Evidence Of A Police Investigation’s

Unreliability.

There are two types of defenses to criminal charges

at trial: a defendant may either (1) raise reasonable

doubt as to the prosecution’s case-in-chief, or (2) argue

an affirmative defense that justifies or excuses otherwise criminal conduct (e.g., duress or insanity). In re

Winship, 397 U.S. at 363-64; see also Fed. R. Crim. P.

12.1-12.3. In crafting its opinion, the Eleventh Circuit

disregarded how evidence of an unreliable police investigation is relevant to the first type of defense—i.e., a

reasonable doubt defense. It instead assessed only

whether such evidence is appropriate as the second type.

Pet. App. at 19a-20a. That determination tainted the entirety of the Circuit’s subsequent legal analysis, leading

the Circuit to create a significant split with other circuits

and state courts that permit evidence of an unreliable

police investigation as part of a defendant’s reasonable

doubt defense. And in the context of Rule 403, this decision forecloses the proper individualized assessment of

the probative value that evidence of an unreliable police

investigation would have on the prosecution’s prima facia case, effectively lowering the burden of proof to secure convictions of criminal defendants in violation of the

Due Process Clauses.

Evidence Of A Police Investigation’s

Unreliability Casts Reasonable Doubt

On The Prosecution’s Case.

The Eleventh Circuit should have considered the

value that evidence of an unreliable police investigation

has to a reasonable doubt defense. Reasonable doubt requires consideration of relevant evidence that tends to

suggest the innocence of criminal defendants. In re Winship, 397 U.S. at 363-64. To secure convictions, prosecutors’ prima facie case must overcome a criminal defendants’ reasonable doubt defenses. Id. As this Court has

emphasized, failing to require prosecutors to secure convictions that overcome criminal defendants’ claims of

reasonable doubt effectively lowers the required burden

of proof prosecutors must meet to secure convictions.

Id.; see also Jackson v. Virginia, 443 U.S. 307, 316 (1979)

(“no person shall be made to suffer the onus of a criminal

conviction except upon sufficient proof . . . to convince a

trier of fact beyond reasonable doubt of the existence of

every element of the offense.”); Schneckloth v.

Bustamonte, 412 U.S. 218, 248-49 (1973) (reversing a

conviction on the basis that the government failed to

prove beyond a reasonable doubt the defendant voluntarily consented to a search over the defense’s objections

that the consent was involuntary); Conde v. Henry, 198

F.3d 734, 739 (9th Cir. 1999) (holding that a trial court’s

preventing the defendant from raising a reasonable

doubt defense at closing “relieved the prosecution of its

burden to prove its case beyond a reasonable doubt.”).

Evidence of unreliable police investigations can cast

reasonable doubt on a criminal defendant’s guilt in several ways. For example, such evidence can show a police

department’s failure to properly investigate known

third-party suspects. See Chambers v. Mississippi, 410

U.S. 284, 296-97 (1973); see also Commonwealth v. Phinney, 843 N.E.2d 1024, 1033 (Mass. 2006) (noting that a

police report should have been admissible to show that

the police were on notice of another suspect but failed to

investigate that suspect). From that evidence, a jury

can legitimately question the investigation’s reliability

and rightfully find reasonable doubt in the prosecution’s

case. Phinney, 843 N.E. 2d at 1033. A lack of reliability

in who the actual culprit is can sway the jury to acquit.

Id. Additionally, evidence of shoddy investigations can

impeach the credibility of police-officer witnesses. See

Cargle v. Mullin, 317 F.3d 1196, 1216 (10th Cir. 2003)

(stating “impeachment would have shown the jury that

even the police testimony in this case may not be believed, making the jury’s task of discerning the truth of

petitioner’s guilt beyond a reasonable doubt even less attainable”). This kind of evidence can shed light on

whether the police followed appropriate procedures and

conducted proper tests, or whether police ignored evidence that did not conform with their initial hypothesis

about the case.

Courts can use, and have used, evidence showing an

unreliable police investigation as a basis to reverse convictions. See Camm v. Faith, 937 F.3d 1096, 1110 (7th

Cir. 2019) (reversing a defendant’s conviction because

law enforcement failed to test the DNA profile on relevant evidence after promising to do so); see also Crane,

476 U.S. at 687-91 (holding that trial court erred when it

categorically excluded evidence of improper police interrogation tactics used to coerce the defendant’s confession). Courts therefore cannot categorically prohibit

this evidence, especially as it relates to another suspect’s

culpability. Such a prohibition violates due process. See

Rivera, 915 F.2d at 281-83 (reversing because the trial

court categorically excluded exculpatory evidence of a

third-party’s confession to the crime); People v. Cisneros, No. B215151, 2011 WL 437791, at *8 (Cal. Ct. App.

Feb. 9, 2011) (“Evidence that someone other than the defendant committed the crime cannot constitutionally be

excluded if it is capable of raising a reasonable doubt as

to the defendant’s guilt.”).

The Circuit’s misclassification of evidence showing

an unreliable police investigation led it to commit another error: misapplying Rule 403. In its Rule 403 analysis, the Circuit should have considered all the aforementioned probative value of the evidence to support

Mr. Elysee’s reasonable doubt defense. But it never did.

Instead, the court applied Rule 403 only to the extent

that an unreliable police investigation supported a hypothical affirmative defense. Consequently, the Circuit

conducted an erroneous Rule 403 analysis that prohibited Mr. Elysee from presenting evidence in support of

his sole reasonable doubt defense, violating his constitutional right to due process. In re Winship, 397 U.S. at

363-64; see also Jackson, 443 U.S. at 316. Such a violation requires this Court’s intervention and reversal.

The Eleventh Circuit’s Decision Is An

Outlier.

The categorical exclusion of evidence showing an unreliable police investigation directly conflicts with the

rulings in the state court cases cited by Petitioner. And

federal cases discussing due process violations, such as

Brady violations, have recognized the probative value

and importance of introducing evidence of unreliable police investigations.

State courts, unlike the Eleventh Circuit, recognize

that evidence of unreliable police investigation raises

reasonable doubt. The hallmark case on this issue is

Commonwealth v. Phinney, 843 N.E.2d 1024 (Mass.

2006). There, the court considered the admissibility of

the officer’s report to show that the police knew of another suspect, and they investigated that suspect. Id. at

1028. The court held the report admissible and declared

that “[d]efendants have the right to base their defense

on the failure of police adequately to investigate a

[crime] in order to raise the issue of reasonable doubt as

to the defendant’s guilt in the minds of the jury.” Id. at

1033 (citing Commonwealth v. Bowden, 399 N.E.2d 482

(1980)). This conclusion derives from the defendant’s

right to raise doubt on the overall credibility of the evidence presented to the jury. Id.

Other states, including Connecticut, Arizona, and

Michigan, have similarly acknowledged reasonable

doubt defenses based on the unreliability of a police investigation. See State v. Wright, 140 A.3d 939, 945 (Conn.

2016) (holding that a trial court’s limitation of evidence

amounts to a due process violation when the limitation

precludes a defendant “from placing the police officers’

investigation into a meaningful context for purposes of

the defendant’s inadequate investigation defense”); see

also State v. Gomes, 256 A.3d 131, 148 (Conn. 2021) (affirming the “recognition of a defendant’s entitlement to

present an investigation inadequacy defense”); State v.

Johnson, 447 P.3d 783, 820 (Ariz. 2019) (“[Defendant] argued the investigation was inadequate and inferred that

someone else committed the crime. . . .”), cert. denied,

140 S. Ct. 1154 (2020); People v. Ridenour, No. 342748,

2019 WL 5418330, at *5 (Mich. Ct. App. Oct. 22, 2019)

(“Defendants were free to argue that the police officers’

inadequate

doubt.”).

investigation

established

reasonable

Decisions in this Court and in other federal circuit

courts addressing due process violations also support a

defendant’s right to attack the credibility of a police investigation. In Kyles v. Whitley, this Court directly alluded to the right of criminal defendants to attack “the

reliability of the [police] investigation in failing even to

consider [another suspect].” 514 U.S. 419, 446 (1995).

The logic could not follow more clearly: if the Constitution and this Court permit evidence of unreliable police

investigations to attack the reliability of the prosecution’s case, then the categorical prohibition of such evidence conflicts with the Constitution and the precedent

set in this Court. Thus, the Eleventh Circuit acted outside its authority when it categorically prohibited evidence of an unreliable investigation properly asserted to

raise reasonable doubt of Mr. Elysee’s guilt.

In addition to Kyles, several cases from federal circuit courts of appeals demonstrate how the Eleventh

Circuit’s opinion is an outlier on this issue. See, e.g., Alvarez v. Ercole, 763 F.3d 223, 233-34 (2d Cir. 2014) (finding a Sixth Amendment violation for excluding evidence

of an inadequate police investigation); see also Camm,

937 F.3d at 1110 (finding that a defendant may introduce

evidence of “shoddy” police investigations to raise reasonable doubt); Bowen v. Maynard, 799 F.2d 593, 613

(10th Cir. 1986) (stating “[a] common tactic of defense

lawyers is to discredit the caliber of the investigation or

the decision to charge the defendant, and we may consider such use in assessing a possible [due process] violation”).

To be sure, these cases dealt with Brady violations

and the suppression of evidence. However, each case

also recognized that the suppression of evidence ultimately relates to the overall reliability of the police investigation and how that reliability, or lack thereof, can

raise reasonable doubt in the minds of jurors. It follows

logically that evidence showing careless police investigations may lead the jury to believe that the police identified the wrong suspect, Fontenot v. Crow, 4 F.4th 982,

1081 (10th Cir. 2021), petition for cert. filed, No. 21-970

(U.S. Jan. 6, 2022), or that the prosecution’s evidence is

unreliable, see Phinney, 843 N.E.2d at 1033. Both inferences may lead the jury to acquit, rather than convict,

the defendant. Therefore, by categorically excluding evidence of an unreliable police investigation as a matter of

law, the Circuit simply decided this case incorrectly.

II.

If The Eleventh Circuit’s Ruling Stands, It Will

Lead To More Wrongful Convictions.

The Court should grant certiorari because allowing

the Eleventh Circuit ruling to stand will lead to more

wrongful convictions. The Circuit’s decision effectively

lowers the prosecution’s burden of proof, making it easier for prosecutors to convict innocent persons. This

holding is contrary to a host of Constitutional principles,

including the right to due process and to a fair trial. U.S.

Const. amend. V, VI, and XIV. This holding is also contrary to Americans’ correct understanding that it would

be a grave miscarriage of justice to tolerate a judicial

system that permits the incarceration of innocent

people.2 See, e.g., Furman v. Georgia, 408 U.S. 238, 367

n.158 (1972) (Marshall, J., concurring); Coffin v. United

States, 156 U.S. 432, 456 (1895). By granting review of

this case, this Court can address the fundamental role

law enforcement plays in securing wrongful convictions

and hold law enforcement accountable for their investigations. Denying review leaves those states under the

Eleventh Circuit’s jurisdiction vulnerable to the detrimental impacts associated with the incarceration of innocent people.

Evidence Of Unreliable Police Investigations Prevents Wrongful Convictions By

Improving Law Enforcement Accountability.

The actions of law enforcement play a significant role

in wrongful convictions. Police officers have discretion

during the entire investigation of a crime that shapes

who will be charged and what evidence is uncovered.

They have discretion when making an arrest, when determining which information to include in their police report, and when deciding which “leads” to investigate.

And police officers are typically a key witness at trial in

support of the prosecution’s case.3

Cato Institute, Blackstone’s Ratio: Is it more important to

protect innocence or punish guilt? (2016), https://www.cato.org/policing-in-america/chapter-4/blackstones-ratio.

Samuel R. Gross et al., Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police and Other Law

Enforcement, Nat’l Registry of Exonerations 96 (Sept. 1, 2020),

https://www.law.umich.edu/special/exoneration/Documents/Gover

nment_Misconduct_and_Convicting_the_Innocent.pdf.

Perhaps unsurprisingly, studies have shown that law

enforcement errors significantly contribute to wrongful

convictions. For example, some of the main sources of

wrongful convictions include4: (1) mistaken eye-witness

identification; (2) false confessions elicited by overly aggressive police interrogation tactics; (3) tunnel vision by

prosecution and law enforcement—that is, the phenomenon where “the more law enforcement practitioners become convinced of a conclusion . . . the less likely they are

to consider alternative scenarios that conflict with this

conclusion”5; (4) general prosecutorial and police misconduct; and (5) race biases and inadequate post-conviction

remedies.

Under the Circuit’s decision, even the sloppiest investigation can lead to a conviction because the defendant cannot present evidence of an inadequate police investigation to the jury. This categorical exclusion of evidence not only conflicts with the way other circuits and

state courts have interpreted the Constitution, but does

so in a way that creates dangerously perverse incentives

for local prosecutors. For example, state law in Florida,

where the present case originated, permits evidence of

unreliable police investigations as a means to mount a

reasonable doubt defense. See Martin v. State, 311 So.

3d 778, 806-07 (Fla. 2020) (noting that defense counsel’s

strategy was to argue that the state had not proved its

case “beyond a reasonable doubt,” in part by “calling into

question the police investigation.”), cert. denied, 141 S.

Ct. 417 (2020); see also Nolley v. State, 237 So. 3d 469,

Jon B. Gould & Richard A. Leo, One Hundred Years Later:

Wrongful Convictions After A Century of Research, 100 J. Crim. L.

& Criminology 825, 828 (2010).

Id. at 851.

476 (Fla. Dist. Ct. App. 2018) (noting it was the “defense’s argument that the police investigation was inadequate. . ..”); Tompkins v. State, 872 So. 2d 230 (Fla.

2003) (defense counsel raising multiple unreliable police

investigation defenses related both to Brady violations

and due to law enforcement losing evidence which might

have been favorable to the defendant.). The significant

split between the Circuit’s decision here and Florida

state courts will incentivize local prosecutors who receive cases supported by inadequate police investigations to refer those cases to federal prosecutors so that

the prosecution evades any need to defend the integrity

of the underlying investigation at trial. Because the

public generally has no visibility into the prosecutorial

decision-making process, this litigation tactic can occur

without the public knowing. The end result is easier convictions for the government, while depriving citizens of

their due process rights.

Preventing wrongful convictions requires scrutinizing the actions of law enforcement.6 One benefit of our

trial system is that it helps provide this scrutiny by enabling defendants to challenge legal and operational flaws

in a police investigation in order to cast doubt on the

prosecutor’s case. The ability to present this type of defense disincentivizes inadequate police investigations

and, most importantly, police misconduct. For example,

according to the National Registry of Exonerations, in

7% of all exonerations (or 178 of 2,400 exonerations), police lied about the conduct of their investigation.7

Russell Covey, Police Misconduct as a Cause of Wrongful

Convictions, 90 Wash. U. L. Rev. 1133, 1137-43 (2013).

Gross, Nat’l Registry of Exonerations, supra, at 97.

Attacking the reliability of a police investigation has led

to the exonerations or acquittals of criminal defendants

like Steven DeWitt, Christopher Roesser, and James

Walker, who were all subject to conviction on the basis

of unreliable police investigations that law enforcement

later lied about. Walker v. City of New York, 974 F.2d

293 (2d Cir. 1992); DeWitt v. District of Columbia, 43

A.3d 291 (D.C. 2012); Roesser v. State, 751 S.E.2d 297

(Ga. 2013). Mr. Elysee could have similarly exonerated

himself based on this type of defense, if he was permitted

to present it to the jury. Here, the police never investigated a confessor to a crime, which could have persuaded

the jury that the evidence offered to convict Mr. Elysee—e.g., police officer testimony—was unreliable.

Utilizing criminal trials as a mechanism to ensure law

enforcement accountability is also particularly important when considering the limited availability of

other remedies. Police officers are often not held accountable or subject to discipline by their police departments internally. Many times, unions, police chiefs, and

fellow officers are reluctant to discipline officers for misconduct due to their code of silence.8 Sometimes, there

is simply no adequate system in place to hold law enforcement accountable internally.9 Other times, when

there is a system in place, delays of months or even years

keep police officers that should be suspended or fired on

Darrel W. Stephens, Police Discipline: A Case for Change,

Nat’l Inst. Just. 4-5 (June 2011), https://www.hks.harvard.edu/

sites/default/files/centers/wiener/programs/pcj/files/PoliceDiscipl

ineACaseforChange.pdf.

Id. at 4-6.

the street.10 Those officers are free to continue abusing

their power and commit misconduct. Further, civil suits

are usually ineffective ways of ensuring police accountability. The qualified immunity doctrine has historically

been utilized to prevent liability but for a few rare

cases.11 Indeed, making sure that law enforcement is accountable for their actions starts with addressing deficiencies in their investigations from the very beginning

of the criminal trial process. The paucity of alternative

mechanisms for discouraging misconduct or inadequate

investigation by law enforcement heightens the importance of ensuring that unreliable investigations can

be challenged in criminal trials. In granting certiorari,

this Court can prevent the Circuit from foreclosing this

necessary avenue for ensuring police accountability.

Failing To Protect Innocent Persons

From Wrongful Convictions Has Detrimental Consequences On Innocent Defendants And Society As A Whole.

Wrongful convictions are a serious problem in the

United States. Since 1989, approximately 2,795 individuals have been exonerated after being wrongfully convicted for crimes they did not commit.12 The consequences of failing to protect innocent people from

wrongful convictions are plentiful and deeply

Id. at 7.

Dasha Kabakova, The Lack of Accountability for the New

York Police Department’s Investigative Stops, 10 Cardozo Pub. L.

Pol’y & Ethics J. 539, 555 (2012).

Nat’l Registry of Exonerations, 25,000 Years Lost to Wrongful Convictions 1 (June 14, 2021), https://www.law.umich.edu/special/exoneration/Documents/25000%20Years.pdf.

concerning. Wrongful convictions offer no positive benefits to public safety, cost taxpayers billions of dollars,

and unnecessarily put the liberty and lives of innocent

people at risk.

Considering public safety, cutting corners in police

investigations and convicting the wrong person does

nothing to increase safety or lower crime. Jeanne Bishop

& Mark Osler, Prosecutors and Victims: Why Wrongful

Convictions Matter, 105 J. Crim. L. & Criminology 1031,

1044 (2015). Since 1989, at least 367 people have been

exonerated by DNA evidence after being wrongly convicted.13 In nearly half of these cases, the actual offender

was later identified.14

Wrongful convictions also have steep economic costs.

Taxpayers are left holding the “hideously expensive” tab

to cover the imprisonment of innocent persons. Id. at

1045. Altogether, including thirty-six states and the

District of Columbia have so far paid an estimated $2.9

billion in compensation—$756 million in statutory

awards for wrongful imprisonment and almost $2.2 billion in judgments and settlements in civil lawsuits, have

been paid by state and municipal governments.15 The

wrongfully convicted person suffers economically both

with the initial loss of employment and the long-term difficulty in finding gainful employment after extended

Innocence Project, DNA Exonerations in the United States,

https://innocenceproject.org/dna-exonerations-in-the-united-stat

es/ (last visited Feb. 3, 2020).

Id.

Nat’l Registry of Exonerations, 25,000 Years Lost, supra,

at 4.

periods of incarceration.16 Additionally, children of incarcerated parents miss out on the economic security of

having the financial support of an additional parent.

Those children are more likely to be impoverished and in

need of social welfare (e.g., counseling and therapy). Id.

at 1045.

Moreover, the impact wrongful convictions have on

those persons spending years behind bars cannot be

overstated. Someone who is wrongfully incarcerated

loses their liberty and is severed from their family and

their community, sometimes for years. Indeed, if his

conviction is not reversed, Mr. Elysee will spend most of

the next 20 years behind bars. As of 2018, the National

Registry of Exonerations reported that exonerated defendants had collectively served 20,000 years in prison

for crimes they did not commit.17 Just over three years

later, that number now exceeds 25,000 years—and that

includes only the time served by those innocent people

that have secured their exoneration.18

The direct consequence of a wrongful conviction is

not just limited to prison time. The Equal Justice Initiative found that approximately one person on death row

has been exonerated for every nine people executed in

the United States since 1973.19 Sometimes, the exoneration does not come quickly enough. There have been

several contemporary instances of individuals who were

executed, but whose guilt was later seriously called into

Id. at 1.

Id.

Equal Just. Initiative, Death Penalty, https://eji.org/issues/death-penalty/ (last visited Feb. 3, 2022).

question.20 One of those individuals was Carlos DeLuna,

who was executed for the fatal stabbing of a Texas convenience store clerk in 1989 after the police failed to investigate an alternative suspect, Carlos Hernandez, who

had confessed to the murder.21 After DeLuna’s execution, an investigation by Columbia Law Professor James

Liebman and his students in the DeLuna Project uncovered powerful evidence of DeLuna’s innocence, including multiple deficiencies in the police investigation.22

Less tangible than the loss of time, life, or economic

resources is the societal cost of wrongful convictions in

undermining the public’s faith in the criminal system.

That loss of faith is likely increased by the fact that

wrongful convictions are likely secured disproportionately against people of color. As of December 2021, 67%

of the 237 people exonerated through the work of the Innocence Project have been people of color, 58% of them

Black.23 Looking more broadly, 47% of the individual exonerations in the United States between 1989-October

2016 were of Black defendants, and “the great majority

of more than 1,800 additional innocent defendants who

were framed and convicted of crimes in 15 large-scale

Death Penalty Info. Ctr., Executed but Possibly Innocent,

https://deathpenaltyinfo.org/policy-issues/innocence/executed-butpossibly-innocent (last visited Feb. 3, 2022).

Id.

Innocence Project, Explore the Numbers: Innocence Project’s

Impact, https://innocenceproject.org/exonerations-data/ (last visited Feb. 3, 2022).

police scandals and later cleared in ‘group exonerations’”

were Black.24

This disparity is particularly relevant to the question

presented by the petitioner because there is evidence

that wrongful convictions are more likely to involve certain deficiencies in police investigations in cases involving Black defendants. For example, according to the National Registry of Exonerations, in murder exonerations

“there is a large difference in the rate of misconduct by

police: 55% for black murder exonerees compared to 33%

for whites (and 59% compared to 44% among death-sentenced exonerees).”25 In sexual assault exonerations,

eyewitness errors—which are presumably more likely

to lead to a wrongful conviction if the police fail to conduct a thorough investigation—occurred much more often in cases involving Black defendants: 79%, compared

to 51% for White defendants.26 Therefore, a categorical

prohibition on presenting evidence of deficiencies in law

enforcement investigations as part of a defendant’s reasonable doubt defense will disproportionately impact

Black defendants, leading to more unjust convictions for

this racial group of defendants.

These already troubling statistics only include those

known individuals who have been wrongfully convicted.

Undoubtedly, there are many more individuals still incarcerated for crimes they did not commit. The public

Samuel R. Gross et al., Race and Wrongful Convictions in the

United States, Nat’l Registry of Exonerations at ii (Mar. 7, 2017),

https://www.law.umich.edu/special/exoneration/Documents/Race_

and_Wrongful_Convictions.pdf.

Id. at 6.

Id. at 11-12.

cannot maintain confidence in a criminal system that

does not produce just results. The people are right to

question the accuracy and legitimacy of criminal court

proceedings, especially considering the pervasiveness of

police misconduct in our society. The Court should grant

review and avoid blessing lackadaisical police investigations that will lead to the incarnation of more innocent

people.

CONCLUSION

The Eleventh Circuit decision violates criminal defendants’ due process rights. If this decision stands, it

will lead to more wrongful convictions and create perverse incentives for law enforcement. Accordingly, this

Court should grant certiorari so it may review, and then

reverse, the Eleventh Circuit’s outlier decision.

Respectfully submitted,