Amicus Curiae Brief — Troy Mansfield, Petitioner v. Williamson County, Texas

No. 22-186

IN THE

Supreme Court of the United States

__________

TROY MANSFIELD,

Petitioner,

v.

WILLIAMSON COUNTY, TEXAS,

Respondent.

__________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

__________

BRIEF OF GOV. TOM CORBETT, JOSÉ GARZA,

AND H. JOSEPH PINTO III AS AMICI CURIAE

IN SUPPORT OF PETITIONER

__________

BRADLEY E. OPPENHEIMER

Counsel of Record

MATTHEW J. WILKINS

D. CHANSLOR GALLENSTEIN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(boppenheimer@kellogghansen.com)

September 29, 2022

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

I. The Decision Below Conflicts with

Fundamental Notions of Due Process

and Would Render Brady a Dead Letter ........ 3

A. Withholding Exculpatory Evidence

Presents an Unacceptable Risk of

Punishing the Innocent and Therefore Violates Due Process ........................... 4

1. Ensuring that the innocent are

not convicted is a fundamental

tenet of our justice system .................... 4

2. The fundamental interests underlying Brady rights are fully present at the plea-bargaining stage ......... 8

B. The Brady Right Is Largely a Dead

Letter Unless It Applies at the PleaBargaining Stage ...................................... 10

C. This Case Warrants Review Because

It Conflicts with These Fundamental

Principles .................................................. 12

II. This Court’s Review Is Warranted To

Resolve Important Conflicts Between

Jurisdictions ................................................... 13

III. Requiring That Prosecutors Disclose

Exculpatory Evidence at the PleaBargaining Stage Will Promote Desirable Results ...................................................... 18

ii

A. This Requirement Acts as a Check

on the Government’s Power in Plea

Bargaining, Which Is Otherwise

Largely Unrestrained ............................... 18

B. This Requirement Can Help Preserve

and Restore Americans’ Faith in Their

Justice System .......................................... 19

CONCLUSION.......................................................... 23

iii

TABLE OF AUTHORITIES

Page

CASES

Alvarez v. City of Brownsville, 904 F.3d 382

(5th Cir. 2018)...................................................... 17

Boykin v. Alabama, 395 U.S. 238 (1969) ................. 18

Brady v. Maryland, 373 U.S. 83 (1963) ............2, 8, 12

Buffey v. Ballard, 782 S.E.2d 204 (W. Va. 2015) ...... 14

Carroll v. State, 474 S.E.2d 737 (Ga. Ct. App.

1996)..................................................................... 15

Coffin v. United States, 156 U.S. 432 (1895) ......... 6, 8

Dassey v. Dittmann, 877 F.3d 297 (7th Cir.

2017)..................................................................... 22

Kyles v. Whitley, 514 U.S. 419 (1995) ....................... 10

Lafler v. Cooper, 566 U.S. 156 (2012)................... 2, 10

Lewis, Ex parte, 587 S.W.2d 697 (Tex. Crim.

App. 1979) ............................................................ 15

Medel v. State, 184 P.3d 1226 (Utah 2008) .............. 14

Missouri v. Frye, 566 U.S. 134 (2012) ...................... 12

Moore v. City of E. Cleveland, 431 U.S. 494

(1977) ..................................................................... 4

Patterson v. New York, 432 U.S. 197 (1977) .............. 4

Stanley v. Illinois, 405 U.S. 645 (1972) .................... 12

State v. Davis, 823 S.W.2d 217 (Tenn. Crim.

App. 1991) ............................................................ 15

State v. Gardner, 885 P.2d 1144 (Idaho Ct.

App. 1994) ............................................................ 15

State v. Hill, 630 S.E.2d 274 (S.C. 2006) ................. 15

State v. Huebler, 275 P.3d 91 (Nev. 2012) ............... 14

iv

State v. Parsons, 775 A.2d 576 (N.J. Super. Ct.

App. Div. 2001) .................................................... 15

State v. Sturgeon, 605 N.W.2d 589 (Wis. Ct.

App. 1999) ............................................................ 15

United States v. Agurs, 427 U.S. 97 (1976) .............. 13

United States v. Mathur, 624 F.3d 498 (1st Cir.

2010)..................................................................... 13

RULES

Fed. R. Crim. P. 11(b) ............................................... 18

D. Mass. Crim. R. 116.2(b) ....................................... 13

Sup. Ct. R.:

Rule 37.2(a) ............................................................ 1

Rule 37.6 ................................................................ 1

W.D. Tex. Crim. R. 16(b)(1)(C)(i).............................. 13

Alaska R. Crim. P. 16(b)(3)....................................... 15

Fla. R. Crim. P. 3.220(b) ........................................... 15

Minn. R. Crim. P. 9.01, subd. 1(6) ............................ 15

N.J. Ct. R.:

Rule 3:13-3(a)....................................................... 15

Rule 3:13-3(b)....................................................... 15

Tex. Code Crim. Proc. Ann.:

Art. 39.14(a) ....................................................15, 16

Art. 39.14(h) ......................................................... 15

v

ADMINISTRATIVE MATERIALS

Bureau of Justice Statistics, U.S. Dep’t of

Justice:

Felony Defendants in Large Urban Counties, 2009 – Statistical Tables (Dec. 2013),

https://bjs.ojp.gov/content/pub/pdf/fdluc09.

pdf ........................................................................ 11

Felony Sentences in State Courts, 2006 –

Statistical Tables (Dec. 2009; rev. Nov. 22,

2010), https://bjs.ojp.gov/content/pub/pdf/fssc

06st.pdf ................................................................ 11

Sourcebook of Criminal Justice Statistics –

2003 (2005), https://www.ojp.gov/pdffiles1/

Digitization/208756NCJRS.pdf........................... 11

OTHER MATERIALS

Adams’ Argument for the Defense (Dec. 3-4,

1770), available at https://founders.archives.

gov/documents/Adams/05-03-02-0001-00040016 ........................................................................ 7

Marc Allen, Non-Brady Legal and Ethical

Obligations on Prosecutors to Disclose

Exculpatory Evidence, Nat’l Registry of

Exonerations (July 2018), https://www.law.

umich.edu/special/exoneration/Documents/

NRE_Exculpatory_Evidence_Obligations_

for_Prosecutors.pdf .............................................. 16

Steve Almasy, ‘Making a Murderer’: Brendan

Dassey conviction overturned, CNN (Aug.

12, 2016), https://www.cnn.com/2016/08/12/

us/making-a-murderer-brendan-dasseyconviction-overturned/index.html ....................... 22

vi

Am. Bar Ass’n Standing Comm. on Ethics &

Prof ’l Resp., Prosecutor’s Duty to Disclose

Evidence and Information Favorable to the

Defense, Formal Opinion 09-454 (July 8,

2009), available at https://legaltimes.typepad.

com/files/aba_opinion.pdf .................................... 16

Americans Overwhelmingly Support Prosecutorial Reform, Poll Finds, ACLU (Dec. 12,

2017), https://www.aclu.org/press-releases/

americans-overwhelmingly-supportprosecutorial-reform-poll-finds ............................ 20

2 Aristotle, Problems (W.S. Hett trans., Harvard

Univ. Press rev. ed. 1957), available at

https://archive.org/details/problems02arisuoft/

page/n3/mode/2up .................................................... 6

Stephanos Bibas:

Designing Plea Bargaining from the

Ground Up: Accuracy and Fairness Without

Trials as Backstops, 57 Wm. & Mary L.

Rev. 1055 (2016) .............................................. 9, 18

Plea Bargaining Outside the Shadow of

Trial, 117 Harv. L. Rev. 2463 (2004) .................. 10

Regulating the Plea-Bargaining Market:

From Caveat Emptor to Consumer Protection, 99 Calif. L. Rev. 1117 (2011) ...................... 11

Bible, Genesis .............................................................. 5

4 William Blackstone, Commentaries on the

Laws of England (1769), available at

https://archive.org/details/lawsofenglandc04

blacuoft/mode/2up ................................................. 7

vii

Ronald A. Cass, Power Failures: Prosecution,

Power, and Problems, Federalist Soc’y (Dec.

17, 2015), https://www.fedsoc.org/commentary/

publications/power-failures-prosecutionpower-and-problems ............................................ 20

Ctr. for Prosecutor Integrity, An Epidemic of

Prosecutor Misconduct (Dec. 2013), http://

www.prosecutorintegrity.org/wp-content/

uploads/EpidemicofProsecutorMisconduct.

pdf ........................................................................ 21

Code of Justinian:

Book 1 – Concerning

the Composition of a New Code (Fred H.

Blume et al. trans.), available at https://

uwdigital.uwyo.edu/islandora/object/wyu%

3A14972#page/436/mode/2up................................ 6

David S. D’Amato, Prosecutors are mainly to

blame for the criminal justice crisis,

The Hill (Aug. 21, 2019), https://thehill.com/

opinion/criminal-justice/458176-prosecutorsare-mainly-to-blame-for-the-criminal-justicecrisis/ .................................................................... 20

Angela J. Davis, Federal Prosecutors Have

Way Too Much Power, N.Y. Times (Jan. 14,

2015), https://www.nytimes.com/roomfordebate/

2012/08/19/do-prosecutors-have-too-muchpower/federal-proscutors-have-way-too-muchpower .................................................................... 21

Dig. L. 48, tit. 19, l. 5 .................................................. 6

Emily Ekins, Cato Inst., Policing in America:

Understanding Public Attitudes toward the

Police. Results from a National Survey

(Dec. 7, 2016), https://www.cato.org/sites/

cato.org/files/survey-reports/pdf/policing-inamerica-august-1-2017.pdf ................................... 8

viii

Daniel Epps, The Consequences of Error in

Criminal Justice, 128 Harv. L. Rev. 1065

(2015) ................................................................. 5, 6

John Fortescue, A Learned Commendation of

the Politique Lawes of Englande (Robert

Mulcaster trans., 1969) (1567) .............................. 6

Bennett L. Gershman, Threats and Bullying

by Prosecutors, 46 Loyola U. Chi. L.J. 327

(2014) ................................................................... 20

2 Matthew Hale, Pleas of the Crown .......................... 6

Laural L. Hooper, Jennifer E. Marsh &

Brian Yeh, Treatment of Brady v. Maryland

Material in United States District and State

Courts’ Rules, Orders, and Policies, Report

to the Advisory Committee on Criminal

Rules of the Judicial Conference of the

United States (Oct. 2004), https://www.

uscourts.gov/sites/default/files/bradymat_1.

pdf ........................................................................ 14

Jeffrey M. Jones, Confidence in U.S. Institutions Down; Average at New Low, Gallup

(July 5, 2022), https://news.gallup.com/

poll/394283/confidence-institutions-downaverage-new-low.aspx ......................................... 21

Letter from B. Franklin to B. Vaughan

(Mar. 14, 1785), available at https://founders.

archives.gov/documents/Franklin/01-43-020335........................................................................... 7

Gerard E. Lynch, Our Administrative System

of Criminal Justice, 66 Fordham L. Rev.

2117 (1998) .......................................................... 19

2 Moses Maimonides, The Commandments

(Charles B. Chavel ed. & trans., Soncino

Press 1967)............................................................. 5

ix

Increase Mather, Cases of Conscience Concerning Evil Spirits Personating Men, Witchcrafts, Infallible Proofs of Guilt in Such

as Are Accused with That Crime (1693),

available at https://salem.lib.virginia.edu/

speccol/mather/mather.html ................................. 7

Model Rules of Professional Conduct (2021) ........... 16

Janet Moore, Democracy and Criminal Discovery Reform After Connick and Garcetti,

77 Brook. L. Rev. 1329 (2012) ............................. 17

Nat’l Registry of Exonerations:

2021 Annual Report (Apr. 12, 2022), https://

www.law.umich.edu/special/exoneration/

Documents/NRE%20Annual%20Report%20

2021.pdf .................................................................... 9

Annual Report (Mar. 31, 2020), https://www.

law.umich.edu/special/exoneration/Documents/

Exonerations_in_2019.pdf ..................................... 9

Annual Report (Mar. 30, 2021), https://www.

law.umich.edu/special/exoneration/Documents/

2021AnnualReport.pdf .......................................... 9

Innocents Who Plead Guilty (Nov. 24, 2015),

https://www.law.umich.edu/special/

exoneration/Documents/NRE.Guilty.Plea.

Article1.pdf ............................................................ 9

Clark Neily, Cato Inst., Prisons Are Packed

because Prosecutors Are Coercing Plea Deals.

And, Yes, It’s Totally Legal (Aug. 8, 2019),

https://www.cato.org/commentary/prisonsare-packed-because-prosecutors-are-coercingplea-deals-yes-its-totally-legal ............................ 20

x

Robert E. Scott & William J. Stuntz, Plea

Bargaining as Contract, 101 Yale L.J. 1909

(1992) ................................................................... 18

Daniele Selby, Only One Prosecutor Has Ever

Been Jailed for Misconduct Leading to a

Wrongful Conviction, The Innocence Project

(Nov. 11, 2020), https://innocenceproject.org/

ken-anderson-michael-morton-prosecutorialmisconduct-jail/............................................... 15-16

4 The Digest of Justinian (Alan Watson ed.,

Univ. of Penn. Press 1985) .................................... 6

The Truth About Trials, The Marshall Project

(updated Nov. 4, 2020), https://themarshall

project.org/2020/11/04/the-truth-about-trials ....... 11

Alexander Volokh, n Guilty Men, 146 U. Pa. L.

Rev. 173 (1997) ...................................................... 5

Brian Witte, ‘Serial’ host: Evidence that freed

Syed was long available, Assoc. Press (Sept.

20, 2022), https://apnews.com/article/adnansyed-crime-maryland-baltimore-27123d46

cbb0e4a48b0e5d30b22ed647 ............................... 22

INTEREST OF AMICI CURIAE 1

Amici curiae, Gov. Tom Corbett, José Garza, and

H. Joseph Pinto III, are current and former state

and federal prosecutors. Governor Tom Corbett is

the former Governor and Attorney General of the

Commonwealth of Pennsylvania. He also previously

served as the United States Attorney for the Western

District of Pennsylvania. José Garza is the District

Attorney for Travis County, Texas (which is adjacent

to Williamson County). He was elected in 2020 after

serving as a federal public defender in the Western

District of Texas and Deputy General Counsel for the

House Committee on Education and Labor. H. Joseph

Pinto III is a former Assistant United States

Attorney for the Western District of Kentucky. He

previously served as a trial attorney in the Antitrust

Division of the Department of Justice. Amici join

this brief solely in their individual capacities and

not as representatives of their employers or former

employers.

Amici have a range of political views. Amici are

unanimous, however, in their view that factually

innocent defendants should not be imprisoned on the

grounds that they decided to accept a plea bargain

while the government had undisclosed exculpatory

evidence in its possession. Amici also believe that

a consistent rule would give prosecutorial teams

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amici or their counsel, made a monetary

contribution intended to fund the preparation or submission

of this brief. Pursuant to Rule 37.2(a), counsel for amici also

represent that all parties were provided notice of amici ’s

intention to file this brief at least 10 days before its due date

and that the parties have consented to the filing of this brief.

2

necessary guidance on when their duty to disclose

exculpatory evidence begins.

Accordingly, amici submit this brief to urge the

Court to grant certiorari.

SUMMARY OF ARGUMENT

“[C]riminal justice today is for the most part a

system of pleas, not a system of trials.” Lafler v.

Cooper, 566 U.S. 156, 170 (2012). With 97% of federal

convictions and 94% of state convictions coming as a

result of guilty pleas, see id., it is more important

than ever for principles of fundamental fairness and

due process to apply at the plea-bargaining stage.

This case, in which the court of appeals held that

prosecutors may withhold exculpatory evidence at

the plea-bargaining stage, presents an issue of profound importance for our criminal justice system that

merits this Court’s review.

First, withholding exculpatory evidence at the pleabargaining stage transgresses fundamental notions

of due process and would render the right this Court

articulated in Brady v. Maryland, 373 U.S. 83 (1963),

a dead letter. For millennia, from Aristotle to Blackstone to the present, the foundations of our justice

system have recognized that it is crucial to avoid

punishing the innocent. This Court’s decision in

Brady reaffirmed that concept. See id. at 87 (“Society

wins not only when the guilty are convicted but when

criminal trials are fair; our system of . . . justice

suffers when any accused is treated unfairly.”). But

in many jurisdictions, only a few percent of criminal

defendants—those who go to trial—are afforded the

protection guaranteed by Brady. If Brady is to mean

anything, it must apply at the plea-bargaining stage.

Second, jurisdictions throughout the Nation have

long been deeply split over this question, with the

3

decision below further entrenching the divide.

Whether a criminal defendant is entitled to receive

exculpatory materials at the plea-bargaining stage

varies from State to State, from federal district court

to federal district court, and from circuit to circuit—

and, indeed, sometimes within those different jurisdictions even at a single location. That split requires

this Court’s intervention. It also demonstrates the

error of the decision below: contrary to the policy

concerns frequently cited to justify the outcome the

lower court reached, requiring disclosure of exculpatory materials at the plea-bargaining stage does not

interfere with the operation of the plea-bargaining

system, as decades of experience in jurisdictions

throughout the Nation have demonstrated.

Third, this Court’s intervention on the important

question presented by this case can help ensure the

integrity of the American justice system and help

promote public trust in prosecutors’ offices.

The petition for certiorari should be granted to

address this important issue.

ARGUMENT

I. The Decision Below Conflicts with Fundamental Notions of Due Process and Would

Render Brady a Dead Letter

This case warrants this Court’s review because

the Fifth Circuit’s erroneous decision conflicts with

some of the deepest-rooted fundamental principles

of justice in our legal system. In a just system, no

innocent person should be imprisoned for a crime

they did not commit. Nor should the innocent

be bluffed into an unwarranted plea deal simply

because the other side holds all the leverage and

withholds critical information that it would otherwise

ultimately be required to provide to the defendant.

4

A. Withholding Exculpatory Evidence Presents an Unacceptable Risk of Punishing

the Innocent and Therefore Violates Due

Process

1. Ensuring that the innocent are not

convicted is a fundamental tenet of our

justice system

Due process protects those “principle[s] of justice so

rooted in the traditions and conscience of our people

as to be ranked as fundamental.” Patterson v. New

York, 432 U.S. 197, 201-02 (1977). Among the most

fundamental principles of our criminal justice system

is the principle that innocent persons should not

be wrongfully convicted. Withholding exculpatory

evidence from a criminal defendant before accepting

a guilty plea, however, poses an unacceptably high

risk of violating that critical tenet of our justice

system. The decision below warrants this Court’s

review because—as its own author observed—it will

conflict with deep-seated principles of justice. See

App. 11a-12a (Higginbotham, J., concurring) (“[w]e

must bring exculpatory evidence within the reach of

Brady and refuse to sanction lying by prosecutors to

avoid Brady obligations”).

Here, the practice of withholding exculpatory

evidence from criminal defendants at the pleabargaining stage violates the fundamental principle

that we must not, in our zeal to convict the guilty or

our desire for efficient prosecution, likewise condemn

the innocent. The “teachings of history” and “the

basic values that underlie our society,” Moore v. City

of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality),

unambiguously establish this central principle. It

dates back thousands of years and is deeply rooted in

the religious and secular foundations that underlie

5

Western civilization generally and our criminal justice

system specifically.2

In Judeo-Christian religious tradition, the principle

of not punishing the innocent pre-dates even the Ten

Commandments. In the Book of Genesis, for example, after God announced his plan to destroy the city

of Sodom, Abraham objected: “Will you sweep away

the righteous with the wicked? . . . Far be it from

you to do such a thing—to kill the righteous with

the wicked.”3 God confirmed that he would spare

the city if even just 10 righteous persons could be

found there.4 And though fewer than 10 could be

found, God still waited to destroy Sodom until Lot,

the last righteous man in the city, could escape with

his family.5 Reflecting on this story in the twelfth

century A.D., the great Jewish philosopher Maimonides would say that “ ‘[i]t is better and more satisfactory to acquit a thousand guilty persons than to put a

single innocent man to death once.’ ”6

Secular history bears out the same fundamental

principle. Writing in the fourth century B.C., Aristotle said that “ ‘[e]very one of us would rather acquit a

guilty man as innocent than condemn an innocent

2 Many of the examples below come from Alexander Volokh,

n Guilty Men, 146 U. Pa. L. Rev. 173 (1997). Professor Volokh’s

article provides a valuable and entertaining overview of this

principle from ancient times through the present.

3 Genesis 18:23, 25.

4 Genesis 18:32.

5 Genesis 19:12-22.

6 Daniel Epps, The Consequences of Error in Criminal

Justice, 128 Harv. L. Rev. 1065, 1077 (2015) (quoting 2 Moses

Maimonides, The Commandments 270 (Charles B. Chavel ed. &

trans., Soncino Press 1967)).

6

man as guilty . . . . For when there is any doubt one

should choose the lesser of two errors.’ ”7

The Romans adopted this wisdom from the Greeks.

Emperor Trajan wrote in the first century A.D. that

“ ‘it was better to let the crime of a guilty person go

unpunished than to condemn the innocent.’ ” Coffin

v. United States, 156 U.S. 432, 454 (1895) (quoting

Dig. L. 48, tit. 19, l. 5). And, nearly 500 years later,

the Byzantine Roman Emperor Justinian I echoed

that principle in multiple of the foundational works

of the civil-law tradition.8

This principle flowed from religious and civil-law

traditions into the English common law. English

Chief Justice John Fortescue wrote in 1471 that

he “would rather wish twenty evil doers to escape

death through pity than one man to be unjustly

Lord Hale wrote in 1678 that “ ‘it is

condemned.”9

better five guilty persons should escape unpunished

than one innocent person should die.’ ” Coffin, 156

U.S. at 456 (quoting 2 Matthew Hale, Pleas of the

Crown 290). And Blackstone concurred in 1769:

7 Id. (quoting 2 Aristotle, Problems bk. XXIX at 145 (W.S.

Hett trans., Harvard Univ. Press rev. ed. 1957), available at

https://archive.org/details/problems02arisuoft/page/n3/mode/2up).

8 See 4 The Digest of Justinian 360 (Alan Watson ed., Univ. of

Penn. Press 1985) (“[I]t was preferable that the crime of a guilty

man should go unpunished than an innocent man be condemned.”);

Code of Justinian: Book 1 – Concerning the Composition of a

New Code 436 (Fred H. Blume et al. trans.) (declaring that it is

no “matter of small importance to rashly condemn an innocent

party”), available at https://uwdigital.uwyo.edu/islandora/object/

wyu%3A14972#page/436/mode/2up.

9 John Fortescue, A Learned Commendation of the Politique

Lawes of Englande 63 (Robert Mulcaster trans., 1969) (1567).

7

“[T]he law holds, that it is better that ten guilty

persons escape, than that one innocent suffer.”10

The English colonists brought this aversion to

punishing the innocent with them to America.

Thus, even during the Salem witch trials in 1692, the

Rev. Increase Mather, who was then the president

of Harvard College, stated that it “were better that

ten suspected witches should escape, than that one

innocent person should be condemned.”11

The Founders likewise knew and respected this

principle. John Adams invoked it in his defense of

the British soldiers charged with committing the

Boston Massacre: “We are to look upon it as more

beneficial, that many guilty persons should escape

unpunished, than one innocent person should suffer.

The reason is, because it’s of more importance to

community, that innocence should be protected, than

it is, that guilt should be punished.”12 And Benjamin

Franklin similarly wrote in 1785: “That it is better

100 guilty Persons should escape, than that one

innocent Person should suffer, is a Maxim that has

been long & generally approv’d.”13

10

4 William Blackstone, Commentaries on the Laws of

England 352 (1769), available at https://archive.org/details/

lawsofenglandc04blacuoft/mode/2up.

11

Increase Mather, Cases of Conscience Concerning Evil

Spirits Personating Men, Witchcrafts, Infallible Proofs of Guilt

in Such as Are Accused with That Crime 66-67 (1693) (capitalization modernized), available at https://salem.lib.virginia.edu/

speccol/mather/mather.html.

12 Adams’ Argument for the Defense (Dec. 3-4, 1770), avail-

able at https://founders.archives.gov/documents/Adams/05-03-020001-0004-0016.

13 Letter from B. Franklin to B. Vaughan (Mar. 14, 1785),

available at https://founders.archives.gov/documents/Franklin/0143-02-0335.

8

After the Founding, this Court recognized that the

fundamental principle of avoiding punishing the

innocent is intimately connected to criminal due

process. For example, it forms the basis for the presumption of innocence and the beyond-a-reasonabledoubt standard. See Coffin, 156 U.S. at 453-54.

Modern polling shows that a strong majority of

Americans across the political spectrum continue to

agree that it is worse to imprison the innocent than

to let the guilty go free.14

This central principle also underlies Brady rights.

As the Court explained in Brady v. Maryland, 373

U.S. 83 (1963), withholding evidence that “would

tend to exculpate”—i.e., show the innocence of—the

accused “casts the prosecutor in the role of an architect of a proceeding that does not comport with

standards of justice.” Id. at 87-88. This is because

“our system of . . . justice suffers when any accused is

treated unfairly.” Id. at 87.

2. The fundamental interests underlying

Brady rights are fully present at the

plea-bargaining stage

Withholding exculpatory evidence during plea

bargaining prioritizes obtaining convictions over

ensuring that the innocent are not unjustly punished. This risk is not just theoretical. Deprived of

exculpatory evidence, and threatened with ruinous

alternatives, many innocent persons have in fact

accepted guilty pleas. “[T]he recent wave of DNA

exonerations has revealed many guilty-plea convic14 See Emily Ekins, Cato Inst., Policing in America: Understanding Public Attitudes toward the Police. Results from a

National Survey 6, 59-60 (Dec. 7, 2016), https://www.cato.org/sites/

cato.org/files/survey-reports/pdf/policing-in-america-august-12017.pdf.

9

tions of defendants who are factually innocent.”15

Approximately “15% of known exonerees pled guilty,”

including roughly half of those exonerated of

manslaughter, two-thirds of those exonerated of drug

crimes, and four-fifths of those exonerated of sex

offender registration violations.16 That overall ratio

has been roughly the same in the most recent years

for which data were available.17 And for certain

crimes in some jurisdictions, the ratio can be

substantially higher: for example, from 2014-2015

there were “71 drug exonerations in Harris County

(Houston), Texas, and the defendants pled guilty in

every one of them.”18

15

Stephanos Bibas, Designing Plea Bargaining from the

Ground Up: Accuracy and Fairness Without Trials as Backstops,

57 Wm. & Mary L. Rev. 1055, 1059-60 (2016).

16 Nat’l Registry of Exonerations, Innocents Who Plead Guilty

1 (Nov. 24, 2015) (“NER, Innocents Who Plead Guilty”),

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

Guilty.Plea.Article1.pdf. This fraction is most likely an undercount of innocent defendants who enter guilty pleas, because

“innocent defendants who plead guilty almost always get lighter

sentences than those who are convicted at trial – that’s why

they plead guilty – so there is less incentive to pursue exoneration.” Id.

17 For example, false confessions were involved in roughly

17% (24/143) of exonerations in 2019, 10% (13/129) in 2020,

and 12% (19/161) in 2021. See Nat’l Registry of Exonerations,

Annual Report 2 (Mar. 31, 2020), https://www.law.umich.edu/

special/exoneration/Documents/Exonerations_in_2019.pdf; Nat’l

Registry of Exonerations, Annual Report 2 (Mar. 30, 2021),

https://www.law.umich.edu/special/exoneration/Documents/2021

AnnualReport.pdf; Nat’l Registry of Exonerations, 2021 Annual

Report 4 (Apr. 12, 2022), https://www.law.umich.edu/special/

exoneration/Documents/NRE%20Annual%20Report%202021.pdf.

18 NER, Innocents Who Plead Guilty at 2 (emphasis added).

10

Indeed, at the plea-bargaining stage, the effect of

withholding exculpatory evidence can be particularly

acute. Overstating the strength of the prosecution’s

case in connection with plea bargaining “is likely to

work particularly well against innocent defendants,

who are on average more risk averse than guilty

defendants.”19 Without a rule expressly requiring

disclosure of Brady material at the plea-bargaining

stage, that overstatement can happen even despite

diligent efforts by the prosecutor to make those

disclosures.20

B. The Brady Right Is Largely a Dead Letter

Unless It Applies at the Plea-Bargaining

Stage

The dispensation of a criminal case by plea bargaining is not a new idea. Although “a full-dress

criminal trial” has long been considered “the exorbitant gold standard of American justice,” Lafler v.

Cooper, 566 U.S. 156, 186 (2012) (Scalia, J., dissenting), the plea bargain has for (at least) eight decades

been the most prevalent way by which criminal cases

are decided—in both federal and state courts. In

1945, more than 85% of federal convictions were

19 Stephanos Bibas, Plea Bargaining Outside the Shadow of

Trial, 117 Harv. L. Rev. 2463, 2495 (2004).

20 For example, “no one doubts that police investigators

sometimes fail to inform a prosecutor of all they know.” Kyles v.

Whitley, 514 U.S. 419, 438 (1995). A prosecutor might turn over

what she believes to be all exculpatory evidence at the pleabargaining stage, but investigators may have withheld other

exculpatory evidence from the prosecutor herself because they

are not compelled to turn it over until trial. An express rule

requiring earlier disclosure of those materials would force

investigators to provide that evidence to prosecutors earlier, or

else risk being responsible for a conviction being overturned on

appeal.

11

obtained through guilty pleas.21 That number has

grown steadily since, such that in recent decades

roughly 97% of federal felony convictions have come

through guilty pleas.22 State courts are comparable.23 And in the Nation’s 75 largest counties, 98% of

felony convictions have been obtained through plea

bargains.24 Plea bargaining is now (and has long

been) the norm.25

As a result, if Brady rights do not attach at

the plea-bargaining stage, then they will not exist for

the vast majority of criminal defendants—in some

jurisdictions, virtually all of them. That would be

inconsistent with fundamental notions of justice as

described above.26

21

See Bureau of Justice Statistics, U.S. Dep’t of Justice,

Sourcebook of Criminal Justice Statistics – 2003, at 423 (2005),

https://www.ojp.gov/pdffiles1/Digitization/208756NCJRS.pdf.

22 See The Truth About Trials, The Marshall Project (updated

Nov. 4, 2020), https://themarshallproject.org/2020/11/04/the-truthabout-trials.

23

See Bureau of Justice Statistics, U.S. Dep’t of Justice,

Felony Sentences in State Courts, 2006 – Statistical Tables 25

(Dec. 2009; rev. Nov. 22, 2010) (94% of state felony convictions

in 2006 obtained through guilty pleas), https://bjs.ojp.gov/content/

pub/pdf/fssc06st.pdf.

24

See Bureau of Justice Statistics, U.S. Dep’t of Justice,

Felony Defendants in Large Urban Counties, 2009 – Statistical

Tables 24 tbl. 21 (Dec. 2013), https://bjs.ojp.gov/content/pub/pdf/

fdluc09.pdf.

25

See Stephanos Bibas, Regulating the Plea-Bargaining

Market: From Caveat Emptor to Consumer Protection, 99 Calif.

L. Rev. 1117, 1137-38 (2011).

26 As this Court has recognized: “To note the prevalence of

plea bargaining is not to criticize it. The potential to conserve

valuable prosecutorial resources and for defendants to admit

their crimes and receive more favorable terms at sentencing

12

Due process exists “to protect the fragile values of a

vulnerable citizenry from the overbearing concern for

efficiency and efficacy.” Stanley v. Illinois, 405 U.S.

645, 656 (1972). And plea bargains should maintain

the same sense of fundamental fairness that trials

ensure. Cf. Frye, 566 U.S. at 144 (recognizing that

criminal defendant is entitled to assistance of counsel

at plea-bargaining stage).

C. This Case Warrants Review Because

It Conflicts with These Fundamental

Principles

The holding below is inconsistent with these fundamental principles of justice. Allowing prosecutors

to skirt a due process right simply to obtain a conviction flies in the face of the notions of fundamental

fairness that are central to our justice system. See

Brady, 373 U.S. at 87 (“our system of . . . justice

suffers when any accused is treated unfairly”).

This case provides a stark example of how unfair

treatment of the accused can offend fundamental

notions of due process and result in unjust punishment of the innocent. Petitioner pleaded guilty to

“one of the most heinous crimes—sexual misconduct

with a child—without knowing that the victim had

told prosecutors that ‘nothing happened.’ ” App. 13a

(Costa, J., specially concurring). The prosecutors

were under a Brady order and, despite knowing that

they would have to disclose the evidence, lied to

petitioner. App. 11a (Higginbotham, J., concurring).

As this Court has recognized, “there are situations in

which evidence is obviously of such substantial value

means that a plea agreement can benefit both parties.”

Missouri v. Frye, 566 U.S. 134, 144 (2012). But even the

most well-intentioned pursuit of efficiency cannot override

fundamental due process protections.

13

to the defense that elementary fairness requires it to

be disclosed even without a specific request.” United

States v. Agurs, 427 U.S. 97, 110 (1976). As the

author of the decision below expressly recognized, the

court of appeals’ decision in this case represents a

“signal flaw in the jurisprudence of plea bargaining”

that “[o]nly the Supreme Court can fully address.”

App. 12a (Higginbotham, J., concurring).

II. This Court’s Review Is Warranted To

Resolve Important Conflicts Between Jurisdictions

The decision below deepens a significant conflict

between jurisdictions, including the federal courts of

appeals and state courts—with conflicts sometimes

arising even in the same State. See App. 12a n.9

(Higginbotham, J., concurring) (describing circuit

split). This case in particular demonstrates the

conflict: the Fifth Circuit held that there is no Brady

right at the plea-bargaining stage, yet Texas law

provides that there is one—so a Texas criminal

defendant’s rights will differ significantly if charges

are brought in state court or federal district court,

and may even differ depending on which federal

district in Texas hears the case.27

As Judge

Higginbotham noted below, “[t]he cold reality is that

27 In the Western District of Texas, for example, local rules

provide that Brady material must be disclosed within 14 days of

arraignment, see W.D. Tex. Crim. R. 16(b)(1)(C)(i)—even though

the court below held that no such right exists throughout the

broader Fifth Circuit. This anomaly is not limited to the Fifth

Circuit. For example, the First Circuit has held that Brady

rights do not attach at the plea-bargaining stage. See United

States v. Mathur, 624 F.3d 498, 506-07 (1st Cir. 2010). But at

least one district court within that circuit has local rules that

require such disclosure within 28 days of arraignment. See

D. Mass. Crim. R. 116.2(b).

14

the want of certitude shadows the federal criminal

dockets across the country.” App. 13a (Higginbotham, J., concurring); see also App. 15a (Costa, J.,

specially concurring) (“[W]hat is not tenable is affording defendants in many jurisdictions a constitutional

right to exculpatory evidence before they are deprived

of their liberty while those in [the Fifth] [C]ircuit do

not enjoy the same protection.”).

Many jurisdictions across the Nation already

require prosecutors to disclose exculpatory evidence

at the plea-bargaining stage, including jurisdictions in

which one amicus, Mr. Garza, has served as a prosecutor. By 2004, 30 of the 94 federal district courts

had a local rule governing the disclosure of Brady

materials, and many of those districts required

Brady disclosure within 28 days of arraignment or

sooner.28 Several States also require prosecutors to

hand over exculpatory evidence at the plea-bargaining

stage. See, e.g., Buffey v. Ballard, 782 S.E.2d 204,

216 (W. Va. 2015) (“[A] defendant is constitutionally

entitled to exculpatory evidence during the plea

negotiation stage.”); State v. Huebler, 275 P.3d 91,

96-98 (Nev. 2012); Medel v. State, 184 P.3d 1226,

1234 (Utah 2008) (“Surely, if there is any evidence

suggesting factual innocence—even if it is impeach28 See Laural L. Hooper, Jennifer E. Marsh & Brian Yeh,

Treatment of Brady v. Maryland Material in United States District and State Courts’ Rules, Orders, and Policies, Report to the

Advisory Committee on Criminal Rules of the Judicial Conference of the United States, tbl. 2 (Oct. 2004), https://www.uscourts.

gov/sites/default/files/bradymat_1.pdf.

In amici ’s experience, plea bargains ordinarily occur much

closer to trial and much later than 28 days after arraignment.

As a result, such deadlines for disclosing Brady material have

the practical effect of extending Brady’s protection to the pleabargaining stage.

15

ment evidence—the prosecution will always have a

constitutional obligation to disclose that evidence to

the defendant before plea bargaining begins.”); State

v. Hill, 630 S.E.2d 274, 279 (S.C. 2006); State v. Parsons, 775 A.2d 576, 579-80 (N.J. Super. Ct. App. Div.

2001); State v. Sturgeon, 605 N.W.2d 589, 593-94

(Wis. Ct. App. 1999); Carroll v. State, 474 S.E.2d 737,

739 (Ga. Ct. App. 1996); State v. Gardner, 885 P.2d

1144, 1149-50 (Idaho Ct. App. 1994); State v. Davis,

823 S.W.2d 217, 219-20 (Tenn. Crim. App. 1991); Ex

parte Lewis, 587 S.W.2d 697, 701 (Tex. Crim. App.

1979) (“[T]he prosecutor’s duty to disclose favorable

information (whether relating to the issue of competence, guilt, or punishment) extends to defendants

who plead guilty as well as to those who plead not

guilty.”). Others have rules of criminal procedure

that explicitly require prosecutors to hand over

exculpatory evidence in early stages, albeit without

necessarily making specific reference to plea bargaining. See, e.g., Alaska R. Crim. P. 16(b)(3); Fla. R.

Crim. P. 3.220(b); Minn. R. Crim. P. 9.01, subd. 1(6);

N.J. Ct. R. 3:13-3(a), (b); Tex. Code Crim. Proc. Ann.

art. 39.14(a), (h).29

Texas’s law is illustrative. In 2014, in response to

flagrant prosecutorial misconduct by the Williamson

County District Attorney (the same one who prosecuted petitioner), the State amended its rules of

criminal procedure with the “Michael Morton Act.”30

29 Many of these States have enacted so-called “open-file”

policies under which the prosecution must provide the defense

with everything in its file without regard to the materiality

of the evidence. These examples are illustrative and do not

represent all state laws requiring the disclosure of exculpatory

evidence.

30 See Daniele Selby, Only One Prosecutor Has Ever Been

Jailed for Misconduct Leading to a Wrongful Conviction, The

16

Like other “open-file” policies, Texas’s rule requires

that, upon request of the defendant, the State must

provide “any offense reports, any designated documents, papers, written or recorded statements of the

defendant or a witness, including witness statements

of law enforcement officers.” Tex. Code Crim. Proc.

Ann. art. 39.14(a).

Other sources of authority, including ethical rules,

may require that prosecutors disclose exculpatory

evidence at these early stages. For example, Rule

3.8(d) of the Model Rules of Professional Conduct

imposes an ethical obligation on prosecutors to

“make timely disclosure to the defense of all evidence

or information known to the prosecutor that tends

to negate the guilt of the accused or mitigates the

offense.” Every State and the District of Columbia

has adopted this rule.31 Depending on how those

ethical rules are interpreted, disclosure may have to

occur before the plea-bargaining stage in order to be

“timely.”32

Innocence Project (Nov. 11, 2020), https://innocenceproject.org/

ken-anderson-michael-morton-prosecutorial-misconduct-jail/.

31 See Marc Allen, Non-Brady Legal and Ethical Obligations

on Prosecutors to Disclose Exculpatory Evidence, Nat’l Registry

of Exonerations at 5-7 tbl. 1 (July 2018), https://www.law.

umich.edu/special/exoneration/Documents/NRE_Exculpatory_

Evidence_Obligations_for_Prosecutors.pdf.

32 The American Bar Association (“ABA”) has clarified that,

in certain other respects, this ethical rule is “more demanding

than the constitutional case law.” ABA Standing Comm. on

Ethics & Prof ’l Resp., Prosecutor’s Duty to Disclose Evidence

and Information Favorable to the Defense, Formal Opinion 09454, at 4 (July 8, 2009), available at https://legaltimes.typepad.

com/files/aba_opinion.pdf. But it has not expressly addressed

whether the “timel[iness]” requirement in the ethical rule is

intended to be more demanding than or merely equal to the

constitutional minimum.

17

These jurisdictions stand in conflict with those,

including the Fifth Circuit in the decision below, that

have held that no Brady disclosures are required

at the plea-bargaining stage. This Court’s review

is warranted to address this deep and important

conflict.

Notably, the mere existence of this conflict negates

many of the arguments in favor of the Fifth Circuit’s

decision below. For example, the concurrence in a

recent en banc decision by the Fifth Circuit (which

the court below held foreclosed petitioner’s claim)

worried that extending the Brady right to the pleabargaining stage would somehow cause prosecutors

to offer less favorable deals or simply stop offering

deals altogether. See Alvarez v. City of Brownsville,

904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J.,

concurring). But for decades, various jurisdictions

have recognized and implemented a pre-plea right to

exculpatory evidence. None has had any problem

doing so. Pleas have not stopped in the many jurisdictions described above that have recognized a right

to pre-plea disclosure of Brady material—including

jurisdictions in which certain amici have worked as

prosecutors. Indeed, one commentator has suggested

that open discovery rules increase the speed and

efficiency of the plea-bargaining process.33

That is consistent with amici ’s own experience as

prosecutors. Should this Court require as a uniform

nationwide rule that prosecutors disclose Brady

material at or before the plea-bargaining stage, we

see no credible reason to think that the rule would be

33 See Janet Moore, Democracy and Criminal Discovery

Reform After Connick and Garcetti, 77 Brook. L. Rev. 1329,

1383 (2012).

18

unworkable. No serious practical impediments stand

in the way of this Court’s review.

III. Requiring That Prosecutors Disclose Exculpatory Evidence at the Plea-Bargaining

Stage Will Promote Desirable Results

A. This Requirement Acts as a Check on the

Government’s Power in Plea Bargaining,

Which Is Otherwise Largely Unrestrained

Requiring prosecutors to disclose exculpatory

evidence at the plea-bargaining stage would act as

a check on the government’s power in plea bargaining, which is otherwise largely unrestrained. Plea

bargaining is largely unsupervised and generally

involves only the prosecutor and the defendant—no

jury or judge determines the truth or fairness of

plea bargaining as it is ongoing. Indeed, as some

commentators have noted, most plea bargains are

reached “between attorneys familiar with only the

basics of the case, with no witnesses present, leading

to a proposed resolution that is then ‘sold’ to both the

defendant and the judge.”34

34 Robert E. Scott & William J. Stuntz, Plea Bargaining as

Contract, 101 Yale L.J. 1909, 1911-12 (1992). To be sure, judges

do enter the process as a check at the plea-colloquy stage, but

their ability to scrutinize the parties’ bargain is generally limited to ensuring procedural (rather than substantive) fairness.

See Bibas, 57 Wm. & Mary L. Rev. at 1065 (noting that judges

in a plea colloquy “have no evidence in the record, no access

to discovery, and no sense of the victim, the defendant, and

the circumstances of the alleged crime”); see also Fed. R. Crim.

P. 11(b); Boykin v. Alabama, 395 U.S. 238, 243 & n.5 (1969)

(requiring that the record of a guilty-plea allocution reflect a defendant’s affirmative waiver of her right to a jury trial, right to

confront her accusers, and privilege against self-incrimination).

As Judge Lynch explained, “[t]he substantive evaluation of the

evidence and assessment of the defendant’s responsibility is . . .

19

Our adversarial system can create perverse incentives for unchecked prosecutors to withhold exculpatory evidence at the plea-bargaining stage. The

overriding goal for prosecutors should be to ensure

just results; but some prosecutors may prioritize

their personal “win” rate (i.e., the proportion of cases

ending in conviction rather than acquittal). A weak

case brought to trial might turn into an acquittal;

a plea bargain in that same case, even for a minimal

sentence, would count as a conviction. As a result,

some prosecutors might feel pressure to bluff the

defendant into pleading guilty, thereby securing the

conviction and avoiding the risk of an acquittal at

trial. And, as described supra note 20, prosecutors

can even be made to engage in such “bluffing” unwittingly, if investigators fail to disclose Brady material

to them in the first place. A clear rule that Brady

material must be disclosed at the plea-bargaining

stage would eliminate these pressures and thereby

promote the integrity of the criminal justice system.

B. This Requirement Can Help Preserve and

Restore Americans’ Faith in Their Justice

System

Pleas obtained under the pall of withheld exculpatory evidence diminish the public’s confidence by

increasing the likelihood of imprisoning the innocent.

In recent years, the criminal justice system

generally and prosecutors specifically have received

criticism from all corners. Clark Neily of the Cato

Institute has written that “prisons are packed because

made . . . in the office of the prosecutor.” Gerard E. Lynch, Our

Administrative System of Criminal Justice, 66 Fordham L. Rev.

2117, 2123 (1998) (exploring the inquisitorial role of the prosecutor in criminal proceedings).

20

prosecutors are coercing plea deals.”35 Ronald Cass

has written for The Federalist Society that “prosecutorial discretion” today poses “risks to government

structure, personal liberty, and ordinary market

competition.”36 Taylor Pendergrass of the ACLU

Campaign for Smart Justice has called prosecutors

“the most powerful, unaccountable, and least transparent actors in the criminal justice system.”37 David

D’Amato of The Heartland Institute has written that

“prosecutors are among the greatest dangers to the

rule of law and the most socially destructive forces in

American life today.”38

Academics have been critical as well. Professor

Bennett Gershman has written that “one of the most

prominent features of U.S. prosecutors is their ability

to threaten, intimidate, and embarrass anyone—

defendants, witnesses, lawyers—without any accountability, or apology.”39 And Professor Angela Davis

35 Clark Neily, Cato Inst., Prisons Are Packed because Prose-

cutors Are Coercing Plea Deals. And, Yes, It’s Totally Legal

(Aug. 8, 2019) (capitalization omitted), https://www.cato.org/

commentary/prisons-are-packed-because-prosecutors-are-coercingplea-deals-yes-its-totally-legal.

36 Ronald A. Cass, Power Failures:

Prosecution, Power, and

Problems, Federalist Soc’y (Dec. 17, 2015), https://www.fedsoc.

org/commentary/publications/power-failures-prosecution-powerand-problems.

37 Americans Overwhelmingly Support Prosecutorial Reform,

Poll Finds, ACLU (Dec. 12, 2017), https://www.aclu.org/pressreleases/americans-overwhelmingly-support-prosecutorial-reformpoll-finds.

38 David S. D’Amato, Prosecutors are mainly to blame for the

criminal justice crisis, The Hill (Aug. 21, 2019), https://thehill.

com/opinion/criminal-justice/458176-prosecutors-are-mainly-toblame-for-the-criminal-justice-crisis/.

39 Bennett L. Gershman, Threats and Bullying by Prosecutors, 46 Loyola U. Chi. L.J. 327, 328 (2014).

21

has written in the New York Times that “prosecutors

control the criminal justice system through their

charging and plea bargaining powers,” powers that

they exercise “behind closed doors” to make decisions

that they “are not required to justify or explain . . . to

anyone.”40

These sentiments are not unique to think tanks

and ivory towers; they have spread to the broader

public. Public polling shows that, as far back as

2013, nearly 43% of the public believed that prosecutor misconduct was widespread.41 And Gallup’s most

recent annual survey of public confidence in U.S.

institutions shows that just 14% of the population

has a “great deal” or “quite a lot” of confidence in the

criminal justice system.42

The growing popularity of media depicting prosecutorial corruption and misconduct is another symptom

of (and perhaps contributor to) the public’s growing

mistrust of prosecutors and the criminal justice

system. Popular podcasts such as Serial and In

the Dark have publicized prosecutorial misconduct

that has led to the release of individuals who spent

decades in prison for crimes they may not have

40 Angela J. Davis, Federal Prosecutors Have Way Too Much

Power, N.Y. Times (Jan. 14, 2015), https://www.nytimes.com/

roomfordebate/2012/08/19/do-prosecutors-have-too-much-power/

federal-proscutors-have-way-too-much-power.

41 See Ctr. for Prosecutor Integrity, An Epidemic of Prosecutor

Misconduct 5 (Dec. 2013), http://www.prosecutorintegrity.org/

wp-content/uploads/EpidemicofProsecutorMisconduct.pdf.

42 Jeffrey M. Jones, Confidence in U.S. Institutions Down;

Average at New Low, Gallup (July 5, 2022), https://news.gallup.

com/poll/394283/confidence-institutions-down-average-new-low.

aspx.

22

committed.43 And the popular docuseries Making a

Murderer prominently featured accusations that the

prosecution coerced Brendan Dassey to plead guilty

to murder (accusations that a federal magistrate

judge and panel of the Seventh Circuit found sufficient to overturn Dassey’s conviction and grant a

writ of habeas corpus, though the en banc Seventh

Circuit would later reverse based on the deferential

standard applicable to habeas review).44

The public’s frustration with unchecked prosecutorial power, misconduct, and the growth of the prison

population is also evident in the election of reformoriented prosecutors in both large and small jurisdictions around the country. Amici have a wide range

of political views; but whether one agrees or disagrees with reform-oriented prosecutors’ practices

and policies, their rise is indicative of public frustration with prosecutors and with the criminal justice

system as a whole.

The public’s lack of faith in prosecutors negatively

affects prosecutors’ ability to do their jobs. In amici ’s

experience, public cooperation is important to effective

prosecution. Prosecutors rely on cooperation from

the public to report crimes, provide information

during investigations, serve as witnesses, and more.

As faith in prosecutors and the criminal justice system

43 See Brian Witte, ‘Serial’ host:

Evidence that freed Syed

was long available, Assoc. Press (Sept. 20, 2022), https://apnews.

com/article/adnan-syed-crime-maryland-baltimore-27123d46cbb

0e4a48b0e5d30b22ed647.

44 See Steve Almasy, ‘Making a Murderer’: Brendan Dassey

conviction overturned, CNN (Aug. 12, 2016), https://www.cnn.com/

2016/08/12/us/making-a-murderer-brendan-dassey-convictionoverturned/index.html; see also Dassey v. Dittmann, 877 F.3d

297, 318 (7th Cir. 2017) (en banc).

23

erodes, the public’s willingness to fill these roles

decreases. Conversely, as the standing of prosecutors

in the public’s perception rises, so too do the public’s

willingness to work with prosecutors and prosecutors’

ability to administer justice.

Amici know that recognizing defendants’ right to

exculpatory evidence at the plea-bargaining stage is

not a panacea. Not all of the public’s growing

distrust of prosecutors stems from the current lack

of such a right in parts of the country. But it

contributes. As the above examples from surveys

and popular media show, public awareness of the

overwhelming power prosecutors possess in plea

bargaining is growing. And part of the message the

public gets is that prosecutors can withhold exculpatory evidence from the defendant the prosecutor is

trying to persuade to plead guilty. Requiring prosecutors to disclose exculpatory evidence at the pleabargaining stage by recognizing a Brady right at

that stage would help to remove the suspicion that

the government knowingly obtains pleas of innocent

persons by withholding exculpatory evidence.

CONCLUSION

The petition for a writ of certiorari should be

granted.

24

Respectfully submitted,

BRADLEY E. OPPENHEIMER

Counsel of Record

MATTHEW J. WILKINS

D. CHANSLOR GALLENSTEIN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(boppenheimer@kellogghansen.com)

September 29, 2022