Opposition 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 Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------KARSON THOMPSON

ERIC J.R. NICHOLS

BUTLER SNOW LLP

1400 Lavaca St., Ste. 1000

Austin, TX 78701

RANDY T. LEAVITT

Counsel of Record

LAW OFFICE OF

RANDY T. LEAVITT

1301 Rio Grande

Austin, TX 78701

(512) 476-4475

randy@randyleavitt.com

Counsel for Respondent Williamson County, Texas

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

COUNTERSTATEMENT OF

QUESTION PRESENTED

Under Brady v. Maryland, a criminal defendant

has a constitutional right to receive from the prosecution all material exculpatory evidence in time to be

used effectively at trial. 373 U.S. 83 (1963). Should the

Brady “trial right” be expanded to a plea-bargaining

right, requiring the prosecution to provide to a criminal defendant all material exculpatory evidence before

the defendant will be allowed to waive his right to trial

and enter a plea of guilty?

ii

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTION PRESENTED ...........................................................

TABLE OF CONTENTS ......................................

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

INTRODUCTION ................................................

STATEMENT OF THE CASE..............................

I. Petitioner confesses and pleads guilty ......

II. Decades later, Petitioner obtains habeas

relief based on prosecutors’ failure to disclose the victim’s inconsistent statement

during plea negotiations ............................

III. Petitioner files a § 1983 lawsuit against

Williamson County ....................................

IV. The district court grants summary judgment in favor of Williamson County and

the Fifth Circuit affirms ............................

REASONS FOR DENYING CERTIORARI .........

I.

i

ii

iv

1

2

2

3

4

5

6

This case is a poor vehicle for deciding

whether to extend Brady to the pleabargaining stage ........................................ 6

A. The Fifth Circuit affirmed on two independent, non-constitutional grounds

without reaching the Question Presented .................................................. 8

B. The Fifth Circuit could also have affirmed because the closed-file policy

was established by an official acting

for the State of Texas, not Williamson

County ................................................. 12

iii

TABLE OF CONTENTS—Continued

Page

C. Even if this Court were to extend

Brady, Williamson County could not

have acted with deliberate indifference given the law at the time the

closed-file policy was implemented ..... 14

D. Even if this Court were to extend

Brady, Petitioner’s waiver of his Brady

rights still forecloses his § 1983 claim .... 16

II.

A new constitutional rule expanding

Brady is not necessary .............................. 18

III.

The Fifth Circuit’s position in Alvarez is

correct ........................................................ 21

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

iv

TABLE OF AUTHORITIES

Page

CASES

Adams v. U.S. ex rel. McCann, 317 U.S. 269

(1942) .......................................................................18

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

382 (5th Cir. 2018) ....................................... passim

Alvarez v. City of Brownsville, Tex., 139 S. Ct.

2690 (2019) ..............................................................11

Arnone v. Cnty. of Dallas Cnty., Tex., 29 F.4th 262

(5th Cir. 2022).............................................. 12, 13, 14

Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

520 U.S. 397 (1997) ............................................. 7, 10

Bordenkircher v. Hayes, 434 U.S. 357 (1978) .............21

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

Brady v. United States, 397 U.S. 742 (1970) ........ 16, 17

Campbell v. Marshall, 769 F.2d 314 (6th Cir.

1985) ........................................................................22

City of St. Louis v. Praprotnik, 485 U.S. 112

(1988) ................................................................... 7, 12

Collins v. City of Harker Heights, Tex., 503 U.S.

115 (1992) ........................................................ 6, 7, 11

Conn. Ry. & Lighting Co. v. Palmer, 305 U.S. 493

(1939) .......................................................................10

Daves v. Dallas Cnty., Tex., 22 F.4th 522 (5th Cir.

2022) ........................................................................14

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

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

v

TABLE OF AUTHORITIES—Continued

Page

Ex parte Palmberg, 491 S.W.3d 804 (Tex. Crim.

App. 2016) ................................................................15

Friedman v. Rehal, 618 F.3d 142 (2d Cir. 2010) .........22

Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745

(5th Cir. 1993)..........................................................15

Hudak v. Illinois, 141 S. Ct. 267 (2020) .....................11

Mansfield v. Williamson County, 30 F.4th 276

(5th Cir. 2022).................................................. passim

Matthew v. Johnson, 201 F.3d 353 (5th Cir.

2000) ............................................................... 15, 16

McClatchy v. Texas, 142 S. Ct. 119 (2021) ..................11

McMillian v. Monroe Cnty., Ala., 520 U.S. 781

(1997) ........................................................... 12, 13, 14

Menna v. New York, 423 U.S. 61 (1975) ......................21

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436

U.S. 658 (1978) ................................................ passim

Muehler v. Mena, 544 U.S. 93 (2005) ..........................10

North Carolina v. Alford, 400 U.S. 25 (1970) ...............3

Oklahoma City v. Tuttle, 471 U.S. 808 (1985) ............11

Robertson v. Lucas, 753 F.3d 606 (6th Cir. 2014) .......22

United States v. Agurs, 427 U.S. 97 (1976) .............. 21

United States v. Bagley, 473 U.S. 667 (1985) ........ 9, 21

United States v. Conroy, 567 F.3d 174 (5th Cir.

2009) ........................................................................17

vi

TABLE OF AUTHORITIES—Continued

Page

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

2010) ........................................................................22

United States v. Moussaoui, 591 F.3d 263 (4th

Cir. 2010) .................................................................22

United States v. Porter, 405 F.3d 1136 (10th Cir.

2005) ........................................................................17

United States v. Ruiz, 536 U.S. 622 (2002) ........... 17, 22

Watkins v. State, 619 S.W.3d 265 (Tex. Crim.

App. 2021).......................................................... 18, 19

STATUTES

42 U.S.C. § 1983 .................................................. passim

TEX. CIV. PRAC. & REM. CODE § 103.001(a) ....................21

RULES

ALA. R. CRIM. PROC. 16.1.............................................19

ARK. R. CRIM. PROC. 17.2 ............................................19

COLO. R. CRIM. PROC. 16 .............................................19

DEL. SUP. CT. R. CRIM. PROC. 16 .................................19

FED. R. CRIM. PROC. 5(f )(1) .........................................20

FLA. R. CRIM. PROC. 3.220 ...........................................19

N.M. R. CRIM. PROC. 5-501..........................................19

SUP. CT. R. 14(a) .........................................................10

TEX. CODE CRIM. PROC. Art. 39.14 ..............................18

TEX. CODE CRIM. PROC. Art. 39.14(h) ..........................19

vii

TABLE OF AUTHORITIES—Continued

Page

TEX. CODE CRIM. PROC. Art. 39.14(j) ...........................19

VT. R. CRIM. PROC. 16 .................................................19

OTHER AUTHORITIES

United States Attorneys’ Manual § 9-5.001(B)(D) ............................................................................20

1

INTRODUCTION

In this § 1983 suit, Petitioner seeks to hold Williamson County liable for damages for violating his

constitutional right. The theory of municipal liability

is that the Williamson County District Attorney

adopted a “closed-file” approach to criminal discovery

and thereby created an environment where prosecutors could withhold and even misrepresent exculpatory

evidence in the prosecution’s possession during plea

negotiations. The constitutional right allegedly violated is the novel due process right that would arise if

this Court were to extend the trial right to obtain material exculpatory evidence created by Brady v. Maryland to the plea-bargaining stage.

In Petitioner’s view, this Court should create a new

rule of constitutional law to provide an additional due

process right to criminal defendants. And it should do

so in this case so that Petitioner can attempt to leverage that new constitutional right to hold Williamson

County liable for allegedly violating this new rule

nearly 30 years ago when Petitioner pleaded guilty to

a crime he now claims he did not commit.

While both the district court and Fifth Circuit

spoke to the importance of the constitutional question

posed by Petitioner, the case was resolved on nonconstitutional grounds using well-established principles of municipal liability. The Fifth Circuit was explicit that it “need not here reach the issue of whether

the prosecutor’s actions violated Brady and Mansfield’s due process rights.” Mansfield v. Williamson

2

County, 30 F.4th 276, 280 (5th Cir. 2022). “Even assuming that they did,” Petitioner’s case for municipal liability is fatally flawed. Id.

Petitioner does not here challenge the Fifth Circuit’s municipal liability holdings. Those holdings—

and other non-constitutional grounds available to the

lower courts—provide ample basis for affirming the

Fifth Circuit’s judgment. No matter how important or

interesting the Question Presented may be, its answer

is irrelevant to the outcome in this case. For that reason, this Court should deny the Petition.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

I.

Petitioner confesses and pleads guilty.

In the fall of 1992, Petitioner was indicted on two

counts of Aggravated Sexual Assault of a Child and one

count of Indecency with a Child. ROA.607. He stood accused of placing his finger inside the anus of a fouryear-old girl. Under initial police questioning, Petitioner repeatedly confessed and recanted his confessions. ROA.1764 n.5. He would later submit to a

polygraph examination in the hopes of proving his innocence. The polygraph results indicated deception.

ROA.1764 n.5. Upon learning those results, Petitioner

confessed again. ROA.1764 n.5.

Petitioner ultimately chose to plead guilty to the

crime of Indecency with a Child in 1993. ROA.605.

In his plea agreement, Petitioner “JUDICIALLY

3

CONFESSE[D] to committing Indecency with a Child

. . . exactly as charged within the indictment.”

ROA.605.

When he chose to plead guilty, Petitioner did not

make an Alford plea or otherwise maintain his innocence. See North Carolina v. Alford, 400 U.S. 25 (1970).

The state trial court’s judgment reflects that Petitioner

“agreed in open court and in writing to waive a jury in

the trial of this cause” and pleaded guilty. ROA.609-14.

The court found Petitioner was competent to make his

plea and was “not influenced in making said plea by

any consideration of fear, or by any persuasion prompting a confession of guilt.” ROA.609-14. Petitioner was

sentenced to 10 years in prison, but the sentence was

suspended and Petitioner was instead placed on probation. ROA.609-14.

II.

Decades later, Petitioner obtains habeas

relief based on prosecutors’ failure to disclose the victim’s inconsistent statement

during plea negotiations.

More than twenty years later, Petitioner filed an

application for a writ of habeas corpus in Texas state

court. ROA.616. He claimed to be “actually innocent

based on newly discovered evidence,” and argued his

guilty plea was invalid because the State of Texas had

failed to disclose Brady material prior to his guilty

plea. ROA.616. Specifically, Petitioner alleged the

State of Texas had failed to disclose to him and his lawyer that during a second, post-indictment interview of

4

the child victim she made statements inconsistent

with her initial accusation against Petitioner.

ROA.616, 618-19. In response, the State of Texas

agreed its prosecutors had failed to disclose exculpatory evidence and thereby violated Petitioner’s due

process rights.1 ROA.618. The State of Texas denied

Petitioner was actually innocent. ROA.616.

Without conducting an evidentiary hearing, the

state habeas court granted Petitioner partial relief.

ROA.617. The court found Petitioner’s “due process

rights were violated and that his plea was not voluntary.” ROA.621. The court expressly declined to reach

his claim of actual innocence, noting that the State of

Texas still disputed that claim. ROA.616, 621.

III. Petitioner files a § 1983 lawsuit against

Williamson County.

In 2018, Petitioner sued Williamson County.

ROA.14. He alleged a single cause of action under

§ 1983, contending he was injured “[a]s a direct and

proximate result of the unlawful withholding and

1

The Petition inaccurately represents that “the parties

agree that the prosecutors knowingly and intentionally withheld

evidence” from Petitioner. Pet., at 30. To be clear, the State of

Texas—not Williamson County—made that agreement in the

context of Petitioner’s state habeas application. Williamson

County was not party to that habeas proceeding, and the State

of Texas is not party to this suit. The cited testimony of John

Prezas—a representative of the State of Texas through the Williamson County District Attorney’s Office—establishes that the

alleged failure to disclose evidence was a working assumption

that Mr. Prezas “never actually investigated.” Pet.App.91a.

5

suppression of the exculpatory evidence” by Williamson County. ROA.28-30. He identified the Williamson

County District Attorney’s “closed-file policy” as the

official policy responsible for the purported Brady violation at the heart of this lawsuit. ROA.28; Mansfield,

30 F.4th at 278. “Closed file” referred to the prosecution’s case file, which prosecutors did not routinely

“open” to defense lawyers. ROA.15. Instead, prosecutors would provide lawyers with copies of discoverable

materials in their files (such as lab reports, videotapes,

and photographs) and provide oral disclosures of additional information, such as offense reports, and other

exculpatory evidence. ROA.1796-99 (testimony of Petitioner’s retained expert).

IV. The district court grants summary judgment in favor of Williamson County and

the Fifth Circuit affirms.

Following discovery, Williamson County filed two

motions for summary judgment on Petitioner’s § 1983

claim. ROA.595; ROA.663. The district court granted

one of those motions and did not reach the other.2

ROA.1947.

2

Although the district court declined to reach Williamson

County’s motion for summary judgment raising its municipal liability arguments, the district court did hold that Petitioner “cannot base a § 1983 municipal liability claim on a constitutional

right that does not exist.” Pet.App.23a.

6

The Fifth Circuit affirmed. Mansfield, 30 F.4th at

281. Assuming that Petitioner’s constitutional rights

had been violated, the court held that Petitioner “falls

short of alleging”—or proving, at the summary judgment stage—“either that the closed-file policy was the

moving force behind the due process violation or a ‘pattern of injuries’ suggesting that the closed-file policy

caused prosecutors to lie in plea negotiations.” Id. at

280. The Court also addressed in dicta Petitioner’s request that the Fifth Circuit panel reconsider the en

banc Fifth Circuit’s position “that Brady focuses on the

integrity of trials and does not reach pre-trial guilty

pleas.” Id. The panel declined, holding to binding Fifth

Circuit law. Id. at 280-81.

---------------------------------♦---------------------------------

REASONS FOR DENYING CERTIORARI

I.

This case is a poor vehicle for deciding

whether to extend Brady to the plea-bargaining stage.

Constitutional claims brought against municipalities under § 1983 pose two distinct inquiries of “separate character.” Collins v. City of Harker Heights, Tex.,

503 U.S. 115, 122 (1992). On one hand, there is the constitutional-violation question: were the plaintiff ’s constitutional rights violated? Id. On the other hand,

there is the municipal-responsibility question: can the

municipality be held liable for the constitutional violation, if one occurred? Id.

7

Notwithstanding the exclusive focus of Petitioner

and the amici, this is a case about the latter inquiry,

not the former. Section 1983 does not permit a municipality to be held liable simply because a municipal employee commits a constitutional tort. Monell v. Dep’t of

Soc. Servs. of City of N.Y., 436 U.S. 658, 691-92 (1978).

Courts are therefore obligated to enforce “rigorous

standards of culpability and causation” to prevent a

municipality from being held liable when its official

policy is not responsible for the alleged injury. Bd. of

Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,

404-05 (1997); Collins, 503 U.S. at 120.

The culpability standard requires official municipal action traceable to the municipality’s final policymaker. City of St. Louis v. Praprotnik, 485 U.S. 112,

127-31 (1988). And it requires plaintiffs to meet a

“stringent standard of fault” by establishing that the

municipality acted with deliberate indifference, “disregard[ing] a known or obvious consequence” of a chosen

policy. Brown, 520 U.S. at 410-11. The causation standard requires that the policy at issue be the “moving

force of the constitutional violation.” Monell, 436 U.S.

at 694. See also Brown, 520 U.S. at 404-05 (“a direct

causal link between the municipal action and the

deprivation of federal rights”). If these “rigorous”

standards are not met, even an admitted constitutional violation cannot result in municipal liability.

Monell, 436 U.S. at 691-92.

The Question Presented arises solely under the

constitutional-violation prong of this analysis. Petitioner largely ignores—and does not now challenge—

8

the numerous municipal-responsibility holdings that

can and did control the outcome of this case. An extension of Brady to the plea-bargaining stage would be

meaningless to Petitioner’s Monell claim, which is

doomed for multiple independent reasons not challenged in this appeal. Those independent grounds for

affirmance make this case an exceptionally poor vehicle for reaching the constitutional question Petitioner

poses.

A. The Fifth Circuit affirmed on two independent, non-constitutional grounds

without reaching the Question Presented.

This Court has no path to the Question Presented

because the Fifth Circuit’s opinion resolved Petitioner’s single Monell claim on two independent, nonconstitutional grounds: culpability and causation.

Mansfield, 30 F.4th at 279-80. The constitutional question was addressed only briefly, in a few sentences of

dicta reiterating the settled law in the Fifth Circuit. Id.

at 280-81. Those non-constitutional grounds for affirming, neither of which Petitioner disputes in the Petition, provide two independent obstacles to reaching the

constitutional question Petitioner would have this

Court confront.

Petitioner tries to avoid the Fifth Circuit’s nonconstitutional holdings by fracturing his § 1983 claim

into two allegedly distinct “theories.” See Pet., at 31.

But that argument is inconsistent with Petitioner’s

9

complaint, with the law governing Monell claims, and

with the Fifth Circuit’s opinion.

Petitioner alleged a single Monell claim against

Williamson County. ROA.28. As the Fifth Circuit explained, a Monell claim seeks to impose liability on a

county based on “official county policy.” Mansfield, 30

F.4th at 279. “Mansfield’s pleadings identified . . . the

closed-file policy as the official policy.” Id.3 This single

alleged policy encompassed both of the “theories” Petitioner attempts to fracture in this appeal: prosecutors

allegedly lying about exculpatory evidence rather than

disclosing it. Id. (“Mansfield argues that the closed-file

policy caused the prosecutors to violate his due process

rights by lying about evidence they were under court

order to disclose, which led to his involuntary guilty

plea.”).

The Fifth Circuit affirmed judgment in favor of

Williamson County on two separate Monell grounds,

noting that it did not need to “reach the issue of

whether the prosecutor’s actions violated Brady.”

Mansfield, 30 F.4th at 280; see also id. (“our issue

here is Monell liability”). The Fifth Circuit assumed,

3

The district court correctly concluded that a closed-file policy is “not inherently unconstitutional,” as prosecutors can meet

their constitutional disclosure obligations without providing access to their entire case file. ROA.1951 n.4; United States v. Bagley, 473 U.S. 667, 675 (1985) (“the prosecutor is not required to

deliver his entire file to defense counsel”). Mansfield did not challenge that holding in the Fifth Circuit and does not dispute it in

the Petition.

10

without deciding, a Brady violation occurred. Id. But

even if prosecutors violated Brady, Williamson

County’s alleged official policy was not “the moving

force behind the due process violation.” Id. at 281. That

is the causation holding. Id. at 280 (“we cannot conclude that the closed-file policy was the moving force

that caused the prosecutors to lie”). And even if that

policy were causally connected to the Brady violation,

it is undisputed that Petitioner failed to even allege,

much less prove at the summary judgment stage, the

“pattern of injuries” necessary to establish deliberate

indifference. Id. That is the culpability holding. See

Brown, 520 U.S. at 407, 409.

Petitioner challenges neither the culpability holding nor the causation holding. Accordingly, any challenge to those independent grounds for affirming

judgment in Williamson County’s favor has been

waived. Conn. Ry. & Lighting Co. v. Palmer, 305 U.S.

493, 496 (1939); Muehler v. Mena, 544 U.S. 93, 104 n.1

(2005) (Stevens, J., concurring). The only question “set

out in the petition” is the constitutional question. SUP.

CT. R. 14(a). For purposes of this appeal, the answer to

that question is irrelevant because the Fifth Circuit assumed it was answered in Petitioner’s favor and still

held for Williamson County on grounds not presented

to this Court for review.

Just a few years ago the Fifth Circuit, sitting en

banc, confronted the same Brady question that Petitioner presents to this Court. Alvarez v. City of Brownsville, Tex., 904 F.3d 382, 392 (5th Cir. 2018). As in this

case, the Fifth Circuit addressed that constitutional

11

question only after it had disposed of the case on two

non-constitutional Monell grounds: culpability and

causation. Id. at 390-92. Like Petitioner, the unsuccessful Monell plaintiff in Alvarez sought a writ of certiorari, presenting as the sole question “whether due

process requires the government to disclose exculpatory evidence before entering a plea agreement with a

criminal defendant.” See Petition for Writ of Certiorari,

Alvarez, 904 F.3d 382 (No. 16-40772), 2018 WL

6975659, at *i. As in this case, the Fifth Circuit’s independent holdings made the case a poor vehicle for reconsidering the reach of Brady. See Brief in

Opposition, Alvarez, 904 F.3d 382 (No. 16-40772), 2019

WL 1989188, at *19 (“the beginning and ending point

for certiorari review in this case should be the nonconstitutional issue of municipal responsibility”). This

Court denied certiorari. Alvarez v. City of Brownsville,

Tex., 139 S. Ct. 2690 (2019).4 It should do the same

here.

Avoiding the constitutional-injury question and

resolving the case on non-constitutional municipal liability grounds is consistent with the doctrine of constitutional avoidance. See Collins, 503 U.S. at 121. For

example, this Court assumed a constitutional violation

had occurred in Oklahoma City v. Tuttle and held for

the city on Monell grounds. 471 U.S. 808, 817 (1985).

4

Since Alvarez, this Court has at least twice denied certiorari in state habeas cases raising the same or substantially similar questions about the extension of the Brady due process right

to plea bargains. See Hudak v. Illinois, 141 S. Ct. 267 (2020);

McClatchy v. Texas, 142 S. Ct. 119 (2021).

12

Similarly, in City of St. Louis v. Praprotnik, this Court

expressly declined to decide whether a constitutional

violation had occurred, instead reversing because the

challenged action was not shown to be official city policy. 485 U.S. 112, 127-31 (1988). The Fifth Circuit followed this tradition here, and its resolution of the case

on unchallenged Monell grounds counsels strongly

against granting certiorari.

B. The Fifth Circuit could also have affirmed because the closed-file policy

was established by an official acting

for the State of Texas, not Williamson

County.

The parties do not dispute that the closed-file policy providing the basis for Petitioner’s Monell claim

was established by the then-elected District Attorney

in Williamson County, Ken Anderson. That undisputed

fact is also dispositive of the case and provides yet another non-constitutional basis for affirming the Fifth

Circuit’s decision. This Court’s precedent and recent

Fifth Circuit case law clearly establish that when a

Texas district attorney sets a prosecutorial policy, he

acts for the State of Texas, not the county in which he

serves.

The task of determining the status of a dual-hat

policymaker is “guided by two principles.” McMillian v.

Monroe Cnty., Ala., 520 U.S. 781, 785 (1997); Arnone v.

Cnty. of Dallas Cnty., Tex., 29 F.4th 262, 266 (5th Cir.

2022). First, the inquiry is narrow, limited to the

13

“particular area” or “particular issue” relevant to the

Monell claim. McMillian, 520 U.S. at 785. A policymaker may be a state actor when making certain decisions but a county actor when making others. Id.

Second, the inquiry is “dependent on an analysis of

state law.” Id. The question is how “relevant state law”

defines “the actual function of a government official.”

Id.

Applying these two principles to District Attorney

Anderson, he acted as a state policymaker (and not as

a county policymaker) in adopting the closed-file policy.

“Relevant Texas law inescapably points that way.” Arnone, 29 F.4th at 268. “To begin, the Texas Constitution

supports that the district attorney acts for the state.”

Id. “Texas caselaw from its highest criminal court

agrees.” Id. at 269. In Texas, “district attorneys aren’t

just empowered by the state. They are the state, complete with designation as officers of the judicial branch

of government.” Id. (cleaned up).

When District Attorney Anderson exercised his

discretion to set the discovery policy his prosecutors

would employ when prosecuting criminal offenses on

behalf of the State of Texas, he was exercising state authority and functioning as a state actor. The Fifth Circuit recently reached the same conclusion in a similar

case. Id. In Arnone, the Fifth Circuit held that “district

attorneys act for the state” when they set policies concerning “the revocation of probation or deferred adjudication.” Id. at 269-70. Like the closed-file policy

governing criminal discovery, the “polygraph policy” at

issue in Arnone was “inextricably linked to [the] use

14

of state power.” Id. Accordingly, District Attorney Anderson acted for the State of Texas in adopting the

closed-file policy, and Williamson County cannot be

held responsible for any injury allegedly caused by

that policy. Id.; McMillian, 520 U.S. at 793 (Alabama

county sheriffs “represent the State of Alabama, not

their counties,” when “executing their law enforcement

duties”); Daves v. Dallas Cnty., Tex., 22 F.4th 522, 54041 (5th Cir. 2022) (Texas county and district court

judges act on behalf of State of Texas when setting bail

policy).

Although neither court below needed to reach this

issue in light of their alternative holdings, the argument was presented at both levels. ROA.675; Appellee’s Br., Mansfield v. Williamson County, 30 F.4th 276

(No. 20-50331), 2020 WL 6833317, at *27. As a matter

of law, Williamson County cannot be liable under

§ 1983 for actions District Attorney Anderson took as

a policymaker for the State of Texas. This alternative,

non-constitutional basis for decision also makes this

matter a poor vehicle for reaching the Question Presented.

C. Even if this Court were to extend Brady,

Williamson County could not have acted

with deliberate indifference given the

law at the time the closed-file policy was

implemented.

This case is also a poor vehicle for answering the

Question Presented because Petitioner seeks a novel

15

extension of the Brady right that cannot retroactively

impose liability for a policy adopted decades ago.

Deliberate indifference requires showing that a

policymaker chose to enact a policy in the face of a

known or obvious risk that the constitutional violation

alleged would occur. Alvarez, 904 F.3d at 390. But as

the Fifth Circuit explained in Alvarez, it is legally impossible for a policymaker to act with deliberate indifference to violations of “a constitutional right that a

circuit court has expressly held does not exist—e.g., the

defendant’s right to be presented with Brady material

before entering a guilty plea.” Alvarez, 904 F.3d at 39192.

District Attorney Anderson could not have acted

with deliberate indifference to a constitutional right

that was not established—much less “clearly established”—at the time his closed-file policy was enacted

in the mid-1980s. See Alvarez, 904 F.3d at 391-92; Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 759-60

(5th Cir. 1993). Petitioner claims Texas settled the

question of Brady’s expansion to plea-bargaining with

Ex parte Lewis, 587 S.W.2d 697 (Tex. Crim. App. 1979).

But the Texas Court of Criminal Appeals itself disagrees, calling the question of whether Brady “extends

to the pretrial stage of prosecution” an “open question”

as recently as 2016. Ex parte Palmberg, 491 S.W.3d

804, 814 (Tex. Crim. App. 2016). And when the Fifth

Circuit analyzed Lewis, it concluded that its holding

was based on state law, not the United States Constitution. Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir.

2000). The Fifth Circuit therefore held that a Texas

16

state court confronted with the question in 1994, the

year after Petitioner pleaded guilty, would not have

“felt compelled to decide that a prosecutor’s failure to

disclose exculpatory information prior to entry of a

guilty or nolo contendere plea was a Brady violation,

or otherwise a violation of the Due Process Clause.” Id.

Even if this Court were to expand the Brady right

to plea negotiations as Petitioner requests, Williamson

County would still prevail on non-constitutional Monell grounds. Criminal defendants expressly take the

risk that the law might later change in their favor

when they waive their rights as part of their guilty

plea. Brady v. United States, 397 U.S. 742, 757 (1970).

The law protects the state’s interest in the finality of

judgments by prohibiting such defendants from later

invalidating their pleas once the law becomes more favorable. The Monell doctrine is at least as protective.

Monell’s stringent culpability standards do not permit

municipalities to be held liable retroactively when new

rules of constitutional law render prior policies unsound.

D. Even if this Court were to extend Brady,

Petitioner’s waiver of his Brady rights

still forecloses his § 1983 claim.

At the time Petitioner chose to plead guilty, he had

no federal constitutional right to receive exculpatory

evidence during his plea negotiations. But even if he

had such a right—or if this Court were to create one—

Williamson County still prevails because Petitioner

17

waived his right to assert a Brady violation in subsequent litigation. It is settled law in the Fifth Circuit

that “a guilty plea precludes the defendant from asserting a Brady violation.” United States v. Conroy, 567

F.3d 174, 178 (5th Cir. 2009); Alvarez, 904 F.3d at 397

(Ho, J., concurring).

“Plea bargains, by their very definition, involve the

waiver of a number of fundamental rights.” Id. at 399

(Ho, J., concurring). Among those rights is “the right to

disclosure of exculpatory evidence under Brady.” Id.

This Court “has never held that Brady establishes an

unwaivable right at the plea bargaining phase,” and in

fact “has held precisely the opposite in the context of

two different categories of Brady material.” Alvarez,

904 F.3d at 398 (Ho, J., concurring) (citing United

States v. Ruiz, 536 U.S. 622 (2002)). That idea extends

to future rights as well. “Supreme Court precedent is

quite explicit that as part of a plea agreement, criminal

defendants may waive both rights in existence and

those that result from unanticipated later judicial determinations.” United States v. Porter, 405 F.3d 1136,

1144 (10th Cir. 2005) (citing Brady v. United States,

397 U.S. 742, 757 (1970); United States v. Ruiz, 536 U.S.

622, 630 (2002)). Petitioner does not challenge this settled law or ask this Court to otherwise modify the law

of waiver such that Petitioner could assert a right he

previously waived when he agreed to plead guilty.

The only way for Petitioner to now assert the

Brady rights he waived would be for this Court to

make those rights unwaivable at the plea-bargaining

stage. Concurring in Alvarez, Judge Ho explained the

18

dangers attendant in “[f ]orcing unwaivable ‘rights’

upon the accused.” Id. at 401. By making a right to

disclosure of evidence unwaivable, this Court would

be eliminating a defendant’s right to place that benefit

on the bargaining table. See id. “We empower the accused when we allow them to waive their rights.” Id.

Telling a defendant what evidence he must obtain “is

to imprison a man in his privileges and call it the Constitution.” See id. (quoting Adams v. U.S. ex rel.

McCann, 317 U.S. 269, 280 (1942)).

II.

A new constitutional rule expanding Brady

is not necessary.

Given the ubiquity of plea bargains in the modern

criminal justice system, the rule Petitioner proposes

would have an impact on a significant number of future criminal prosecutions. It is not necessary to burden both prosecutors and criminal defendants with

another layer of constitutional compliance.

Since Petitioner pleaded guilty in 1993, the law

has steadily shifted in favor of disclosure of evidence to

criminal defendants. Texas provides a good example.

At the time Petitioner was prosecuted, there was “no

general right of discovery” in a Texas criminal proceeding. Watkins v. State, 619 S.W.3d 265, 274 (Tex. Crim.

App. 2021). In 2013, Texas “overhaul[ed]” the criminal

discovery process through the passage of the “Michael

Morton Act.” Id. at 277 (discussing TEX. CODE CRIM.

PROC. Art. 39.14). Texas law now makes “disclosure the

rule” by giving the prosecution “a free-standing duty to

19

disclose” all exculpatory, impeaching, and mitigating

evidence prior to trial and to formally document those

disclosures “before a criminal defendant can plead

guilty.” Id. at 277-78 (citing TEX. CODE CRIM. PROC. Art.

39.14(h), (j)). This state-law “duty to disclose is much

broader than the prosecutor’s duty to disclose as a

matter of due process under Brady v. Maryland.” Id. at

277.

Many other states have made early disclosure of

Brady material mandatory, setting hard deadlines for

such disclosure and imposing continuing duties to disclose. E.g., ALA. R. CRIM. PROC. 16.1 (within 14 days of

request); COLO. R. CRIM. PROC. 16 (within 21 days of

defendant’s first appearance); DEL. SUP. CT. R. CRIM.

PROC. 16 (within 20 days of request); FLA. R. CRIM.

PROC. 3.220 (within 15 days of request); N.M. R. CRIM.

PROC. 5-501 (within 10 days of arraignment). Other

states without such deadlines instead use descriptive

timeframes, such as “as soon as possible,” to mandate

timely disclosure. E.g., VT. R. CRIM. PROC. 16 (“as soon

as possible”); ARK. R. CRIM. PROC. 17.2 (“as soon as

practicable”).

Federal criminal practice has trended towards voluntary disclosure as well. In 2006, the Department of

Justice implemented training and policies for federal

prosecutors requiring them to read Brady “expansively,” to “err on the side of disclosing exculpatory and

impeaching evidence,” and to do so “reasonably

promptly” after such information is discovered. See

Brief for United States as Amicus Curiae at 14, Alvarez

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

20

2018) (No. 16-40772) 2017 WL 6453751, at *14 (citing

United States Attorneys’ Manual § 9-5.001(B)-(D)).

And in 2020, Federal Rule of Criminal Procedure 5 was

amended to mandate that every federal judge issue

both an oral and written order “confirm[ing] the disclosure obligation of the prosecutor under Brady” at the

“first scheduled court date where both prosecutor and

defense counsel are present.” FED. R. CRIM. PROC.

5(f )(1). These policies favor disclosure, including voluntary disclosure during plea negotiations, without

imposing the substantial burdens that a new constitutional rule would add to the plea-bargaining process.

See Brief for United States as Amicus Curiae, 2017 WL

6453751, at *16-17. Those burdens would be felt even

in cases where the defendant knows he is guilty and

desires to admit that guilt. See id. And they would undermine the finality of criminal convictions by providing defendants another constitutional avenue to

challenge the validity of their convictions when they

later regret their decision to admit their guilt. See id.

These substantial burdens are among the reasons the

Department of Justice has opposed efforts to expand

Brady as Petitioner requests. Id. at *12-17.

A new constitutional rule is also unnecessary because numerous other protections exist to reduce the

risk that a criminal defendant pleads guilty solely because he does not know about exculpatory evidence in

the prosecutor’s file. “Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice

in response to prosecutorial persuasion, and unlikely

21

to be driven to false self-condemnation.” Bordenkircher

v. Hayes, 434 U.S. 357, 363 (1978). This Court has held

that “a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt

from the case.” Menna v. New York, 423 U.S. 61, 62 n.2

(1975). In the unlikely scenario that an innocent person chooses to falsely plead guilty, the law provides

other avenues for reversing such convictions (i.e., habeas relief ) and even compensating the defendant.

E.g., TEX. CIV. PRAC. & REM. CODE § 103.001(a).5 No

more is needed.

III. The Fifth Circuit’s position in Alvarez is

correct.

Finally, the Petition should be denied because the

en banc Fifth Circuit’s position on the Question Presented, confirmed years ago in Alvarez and merely reiterated in dicta in this case, is correct.

“[I]t is well established that Brady is a trial right.”

Alvarez, 904 F.3d at 399 (Ho, J., concurring). Brady and

its progeny in this Court have repeatedly emphasized

that the core principle animating the disclosure rule is

the defendant’s right to a fair trial. E.g., United States

v. Agurs, 427 U.S. 97, 108 (1976); United States v.

5

Mansfield is unable to take advantage of Texas’s compensation program because he was never found to be “actually innocent” of the crime he admitted he committed, nor did the State of

Texas aver its belief in his innocence. TEX. CIV. PRAC. & REM.

CODE § 103.001(a)(2)(B), (C)(ii).

22

Bagley, 473 U.S. 667, 675 (1985); Ruiz, 536 U.S. at 628.

On this point, the Fifth Circuit is aligned with several

of its sister courts in recognizing what should be “universally acknowledged.” United States v. Mathur, 624

F.3d 498, 507 (1st Cir. 2010); United States v. Moussaoui, 591 F.3d 263, 285 (4th Cir. 2010); Friedman v. Rehal, 618 F.3d 142, 154 (2d Cir. 2010); Robertson v.

Lucas, 753 F.3d 606, 621 (6th Cir. 2014) (citing Campbell v. Marshall, 769 F.2d 314, 318, 323-34 (6th Cir.

1985)). “Extending Brady to the plea bargaining phase

thus contradicts the established understanding of

Brady as a trial right.” Alvarez, 904 F.3d at 399 (Ho, J.,

concurring).

The constitutional guarantee of a fair trial is one

of the rights a defendant chooses to waive when pleading guilty. That waiver, and the elimination of the trial

itself, renders Brady irrelevant. See Ruiz, 536 U.S. at

634 (Thomas, J., concurring) (“The principle supporting Brady . . . is not implicated at the plea stage.”).

---------------------------------♦---------------------------------

23

CONCLUSION

For the foregoing reasons, Respondent Williamson

County, Texas respectfully requests the Court deny the

Petition.

Respectfully submitted,

KARSON THOMPSON

ERIC J.R. NICHOLS

BUTLER SNOW LLP

1400 Lavaca St., Ste. 1000

Austin, TX 78701

RANDY T. LEAVITT

Counsel of Record

LAW OFFICE OF

RANDY T. LEAVITT

1301 Rio Grande

Austin, TX 78701

(512) 476-4475

randy@randyleavitt.com

Counsel for Respondent Williamson County, Texas