Amicus Curiae Brief — Turner v. United States, 137 S. Ct. 614 (2016) (No. 15-1503)

| Supreme Cout, US.

RECORD FILED

AND FEB - 3 2017

OFFICE OF THE CLERK _

No. 15-1503

IN THE ees

Supreme Court of the United States

CLIFTON E. YARBOROUGH, CHRISTOPHER D. TURNER,

KELVIN D. SMITH, CHARLES S. TURNER,

LEVY ROUSE, & TIMOTHY CATLETT,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari

To The District of Columbia Court Of Appeals

BRIEF OF THE INNOCENCE NETWORK AS

AMICUS CURIAE IN SUPPORT OF PETTTIONERS

SETH MILLER RICHARD W. MARK

PRESIDENT Counsel of Record

INNOCENCE NETWORK AMER S. AHMED

Innocence Project GABRIEL K. GILLETT

of Florida, Inc. LAURA F. CORBIN

100 East Park Ave. TIMOTHY SUN

Tallahassee, FL 32301 GIBSON, DUNN & CRUTCHER LLP

DAVID DEBOLD 200 Park Ave.

& CRUTCHER LLP (212) 351-4000

1050 Connecticut Ave., NW rmark@gibsondunn.com

Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ..........2-...:c0ce0000000 1

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

I. Brady Disclosures Are Fundamental to a

Criminal Trial’s Truth-Seeking Function

and to the Prevention of Wrongful

III Ti trend sadadaessoaibaidaniadiiiesiunsccnssdiunetees 5

A. Brady’s Materiality Test Must Be

Applied with the Objective of

Promoting Fair Trials that Reach

Verdicts Worthy of Confidence. .................... 6

B. The Proper Application of Brady Is

Essential To Avoid Wrongful

SE ee 8

ll. Information About Alternative

Perpetrators Is Classic Exculpatory

Evidence That Is Material Absent Strong

Inculpatory Physical Evidence. ........................ 12

A. This Court Has Long Recognized that

Evidence of an Alternative

Perpetrator is Critical Exculpatory

Evidence Necessary To Present A

I iiccrcuccindsmdstabasocsateiiinteninte 14

il

B. Alternative-Perpetrator Evidence Is

Presumptively Material Under Brady

Where Strong Inculpatory Physical

Evidence Is Lacking. ...............cccccccccssccseseess 17

C. The D.C. Court of Appeals’s

Interpretation and Application of

Brady Violated Petitioners’ Right To

A Fair Trial, Rendering Their Guilty

Verdicts Unworthy of Confidence............... 21

Ili. Courts Should Consider All Available

Information When Evaluating Brady

aT EES ik Rca 24

A. This Court Has Permitted the

Consideration of Post-Trial Events In

Determining Whether Brady Was

B. Circuit Courts and State Courts Use

Post-Conviction Events In

Determining Whether Brady Was

, TC RR mle ge Aa ENS St aS 27

C. Considering Post-Conviction Events

In Determining Whether Brady Was

Violated Is Workable For Prosecutors

And Administrable For Courts. .................. 29

SEITE sicisiessnehianennsedenteiaeeniennainbanieassnscnioastd 32

a laisiinionccisicnnncsamnibenidavadeiineetasipeiieiniiiamnines la

ill

T. OF A O S

Page(s)

Cases

Banks v. Reynolds,

54 F.3d 1508 (10th Cir. 1995)........................ 19, 27

Bies v. Sheldon,

776 F.3d 386 (Gth Cir. 2014).........................220.... 19

Bowen v. Maynard,

799 F.2d 593 (10th Cir. 1986)................ccccceeeeecees 19

Brady v. Maryland,

LTTE RE RT ESI passim

Canales v. Stephens,

765 F.3d 561 (6th Cir. 2014)...............cccccccccocccoees 20

Carillo v. Cnty. of Los Angeles,

798 F.3d 1210 (9th Cir. 2015)...............ccccccccccccees 18

Chambers v. Mississippi,

a oi cccnsictnseliies 12, 16

Clemmons v. Delo,

124 F.3d 944 (Sth Cir. 1997).................cccccccreeseees 19

Crane v. Kentucky,

cc sentinndsgnancansebentsnmei 16, 22

Floyd v. State,

902 So.2d 775 (Fla. 2005) ................... iilcaniciichdaeae 20

Green v. Georgia,

I 16

iv

State ex rel. Griffin v. Denney,

re DI, ID ciceccecenscsvoccccesesssnssocccoers 28

Grube v. State,

995 P.2d 794 (Idaho 2000) .........................ssecsceees 20

Gumm v. Mitchell,

775 P.3a 345 (Cth Cir. BO14)........ccccsccccceceeeess 19, 23

Harrington v. State,

659 N.W.2d 509 (Iowa 2003).................... 20, 23, 28

Holmes v. South Carolina,

ee a cscsmscentnctnennenns 4, 16,17

Jarrell v. Balkcom,

735 F.2d 1242 (11th Cir. 1964)............................ 21

Kyles v. Whitley,

BR Re MI I ccnccdvecacnsosesassactcocssncnssonte passim

Leka v. Portuondo,

I TID nn ncoctnnonenupnediosesnnneios 27

Miller v. Angliker,

848 F.2d 1312 (2d Cir. 1968) ..................0......20000. 19

People v. Beaman,

I 20

Provience v. City of Detroit,

529 F. App’x 661 (6th Cir. 2013)..................cceeee 11

Smith v. Cain,

I IID cnsininiternintasasebinnmedtcqeneiiiininn 1

Smith v. Holtz,

Be Be Ge Gy GI vnccvcccecsvcecoveccovscenccevese 20

United States v. Agurs,

ES Se a passim

United States v. Bagley,

I oc scconenecsceunnusnnesnsiosons passim

United States v. Diaz,

BOO Be Oe GR COUP. GBB) .....00.cccccerccccccsccoceccccees: 30

United States v. Jernigan,

492 F.3d 1050 (9th Cir. 2007).................ccceeceeeeees 17

United States v. Olsen,

787 F.3d 625 (Sth Cir. 2013)................cccccccccccsceee 31

Washington v. Texas,

TES eT ONT 16

Wearry v. Cain,

Ey GE GOD aneccsseccccoscsccossscseseocsosesses 22, 26

Williams v. Ryan,

623 F.3d 1258 (9th Cir. 2010)........................ 18, 27

Wood v. Bartholomew,

gE Ea are 25, 26, 27

Woodworth v. Denney,

396 S.W.3d 330 (Mo. 2013)................00---ssssssseeee 28

Other Authorities

John H. Blume et al.,

Every Juror Wants a Story:

Narrative Relevance, Third Party

Guilt, and the Right to Present a

Defense, 44 AM. CRIM. L. REV. 1069

SEG icasstrcevcssneintehipcbienenciniiidediiithansevedbinidiedanian 10, 23

Bennett L. Gershman,

Reflections on Brady v. Maryland, 47

SD, "Heike Ces NG > IEEE GID cxccvescvccesssnpascessssescesensenine 9

Jon B. Gould et al.,

Predicting Erroneous Convictions, 99

IOWA L. REV. 471 (2014)............ssccccssscssssrenseeseees 8,9

Government Misconduct,

INNOCENCE PROJECT OF MINNESOTA

Eis Se Picerntescscossssssoseusenisviantnesninicsnisiannal 8

Lissa Griffin,

Innocence and the Suppression of

Exculpatory Evidence by Prosecutors,

in Controversies in Innocence Cases

in America (Sarah Lucy Cooper ed.

Adrian T. Grounds,

Understanding the Effects of

Wrongful Imprisonment, 32 CRIME &

EE: Bh Gece neciinessnnersctasscdiesabiaianendiciennieaamnaiaian 11

Peter A. Joy,

The Relationship Between

Prosecutorial Misconduct and

Wrongful Convictions: Shaping

Remedies for a Broken System, 2006

Wis. L. REV. 399 (2006)..............................-.

James S. Liebman et al.,

Capital Attrition: Error Rates in

Capital Cases, 1973-1995, 78 TEx. L.

BT ictieetctnncecccsscvesceseesescoococesoees

Daniel S. Medwed,

Brady’s Bunch of Flaws, 67 WASH &

LEE L. REV. 1533 (2010)................00000-0000000.

Michael Morton,

INNOCENCE PROJECT (February 2,

N.Y.S. BAR Ass’N,

Task Force on Wrongful Convictions,

Final Report of the N.Y. State Bar

Association’s Task Force on

Wrongful Convictions (2009) ............c00..0000.

David S. Schwartz & Chelsey B. Metcalf,

Disfavored Treatment of Third-Party

Guilt Evidence, 2016 Wis. L. REV. 337

si adbdessidtenseusanentecededsensssnecsestncerssesosoecesesees

Thomas P. Sullivan & Maurice Possley,

The Chronic Failure to Discipline

Prosecutors for Misconduct:

Proposals for Reform, 105 J. CRIM. L.

& CRIMINOLOGY 881 (2015)...................000000

vill

Jerry Watkins,

INNOCENCE PROJECT (February 2,

Citizens’ Attitudes Toward Wrongful

Convictions, 37 CRIM. JUST. R. 51

"ile lit Sec SSS

INTEREST OF AMICUS CURIAE'

The Innocence Network is an affiliation of organi-

zations from around the world dedicated to providing

pro bono legal and investigative services to individu-

als seeking to prove their innocence, and working to

redress the causes of wrongful convictions. The sixty-

seven current members of the Network represent hun-

dreds of prisoners with innocence claims in all fifty

states, the District of Columbia, and abroad.”

The Innocence Network and its members are ded-

icated to improving the accuracy and reliability of the

criminal] justice system. Drawing on lessons from

cases in which innocent persons were convicted, the

Innocence Network advocates study and reform de-

signed to enhance the truth-seeking functions and

procedures of the criminal justice system to ensure

that future wrongful convictions are prevented.

The Innocence Network frequently files amicus

briefs in cases raising important issues of criminal

law, including the due process protections afforded by

Brady v. Maryland, 373 U.S. 83 (1963). See, e.g.,

Smith v. Cain, No. 10-8145 (U.S. 2011). In those

briefs and elsewhere, the Innocence Network has em-

phasized the importance of interpreting Brady

1 All parties have consented to the filing of this brief. Amicus

states that this brief was not authored in whole or in part by

counsel for any party, and that no person or entity other than

amicus, its members, or its counsel made a monetary contribu-

tion intended to fund the preparation or submission of this brief.

The Mid-Atlantic Innocence Project, a member of the Innocence

Network and co-counsel for a petitioner, has not made a mone-

tary contribution intended to fund the preparation or submission

of this brief.

2 The appendix lists the Innocence Network’s members.

2

broadly in order to guarantee fair trials and secure

justice.

The Innocence Network files this brief to under-

score that it is especially important for the Court to

reject the limitation of Brady reflected in the District

of Columbia Court of Appeals’s ruling. The Innocence

Network’s extensive experience with wrongful convic-

tions and exonerations shows that evidence of an al-

ternative perpetrator is quintessentially exculpatory

and material under Brady in a case lacking strong

physical evidence of a defendant’s guilt, because ac-

cess to such evidence undoubtedly is critical to guar-

anteeing a fair trial. In addition, a Brady analysis

properly considers all available facts, including infor-

mation materializing post-trial, when evaluating the

materiality of evidence withheld pre-trial.

SUMMARY OF ARGUMENT

Petitioners were convicted of the 1984 robbery,

sodomy, and murder of Mrs. Catherine Fuller in

Washington, D.C. After petitioners learned years

later that prosecutors had withheld exculpatory evi-

dence in their possession pre-trial—including evi-

dence pointing to two other suspects—petitioners

sought relief under Brady. The court below denied

post-conviction relief.

This Court should reverse the judgment of the

court below and take the opportunity to instruct lower

courts on the correct application of the Brady materi-

ality analysis. At a minimum, Brady presumptively

requires prosecutors to disclose alternative-perpetra-

tor evidence, which is crucial to developing a complete

defense and which has been considered material evi-

dence since the Brady decision itself. Brady also obli-

gates courts to consider all available information in

3

analyzing the materiality of undisclosed evidence, be-

cause post-conviction events often bear directly on the

importance of undisclosed evidence, and neither truth

nor justice will be advanced by disregarding such

facts.

I. Brady seeks to ensure that criminal trials are

just and the resulting verdicts worthy of confidence.

United States v. Bagley, 473 U.S. 667, 675, 682 (1985);

United States v. Agurs, 427 U.S. 97, 112 (1976). Stud-

ies—including those conducted by Innocence Network

members—confirm that Brady violations are strongly

correlated with wrongful convictions. A Brady viola-

tion has especially severe impact on a defendant when

the withheld exculpatory material is evidence of an al-

ternative perpetrator, as in this case. Research shows

such evidence is often crucial to a defendant’s ability

to present a complete narrative that could influence a

jury’s deliberations over whether the prosecution has

met its burden of proving guilt beyond a reasonable

doubt. Wrongful convictions not only deprive an indi-

vidual of life and liberty without justification, but also

have a devastating impact on the very fabric of our

civil society, which depends on continued confidence

in the justice system. Accordingly, this Court should

reject the lower court’s limitation on what can be con-

sidered when evaluating materiality under Brady.

II. This Court should hold that alternative-perpe-

trator evidence is presumptively material under

Brady, absent strong physical evidence of a defend-

ant’s guilt. Evidence of an alternative perpetrator is

fundamental to a defendant’s ability to develop chal-

lenges to whether the prosecution has proven its case.

Suppression of alternative-perpetrator evidence here

violated Brady and warrants vacating petitioners’

convictions.

4

The D.C. Court of Appeals’s interpretation of

Brady—to permit suppression of alternative-perpe-

trator evidence when no physical evidence connects a

defendant to the crime—cannot be squared with this

Court’s teachings. Alternative-perpetrator evidence

has been at the center of the development of the Brady

doctrine, see Brady, 373 U.S. at 84; Kyles v. Whitley,

514 U.S. 419, 432-54 (1995), and this Court has found

such evidence critical to a defendant’s ability to pre-

sent a complete defense, see, e.g., Holmes v. South

Carolina, 547 U.S. 319, 324 (2006). This Court should

clearly state, as many lower courts have already done,

that alternative-perpetrator evidence is presump-

tively material, at least in the absence of strong phys-

ical evidence of the defendant’s guilt.

The decision below deviates from these prece-

dents. It blessed the withholding of evidence pertain-

ing to two alternative perpetrators in a case that was

devoid of any inculpatory physical evidence, and

which “easily could have gone the other way.” A1751.

In this instance, the withholding of that evidence ren-

dered the trial unfair because it obviously had the po-

tential to affect the defense’s preparation and presen-

tation of the case to the jury.

Ill. The court below further diverged from Brady

and this Court’s precedents by flatly refusing to con-

sider relevant post-conviction events when assessing

whether the evidence the prosecutor concededly sup-

pressed pre-trial was material under the circum-

stances. The objectives of truth-seeking and fairness

that animate Brady are served by considering ail in-

formation that bears on the materiality of the sup-

pressed evidence. Nothing in the Brady “totality of

the circumstances” inquiry suggests that the materi-

ality analysis must be limited by an arbitrary

5

timeframe or date cutoff. Bagley, 473 U.S. at 683.

Thus, this Court and others have factored post-convic-

tion information into their evaluation of Brady mate-

riality.

Prosecutors in practice already consider future

events—most fundamentally, how the trial might un-

fold—in assessing the materiality of evidence. Agurs,

427 U.S. at 108; Kyles, 514 U.S. at 438-39. Brady’s

legal construct that prosecutors know and recognize

material evidence when they see it (or when other

members of law enforcement see it) is entirely con-

sistent with assuming prosecutors know which close

evidence might turn out to satisfy the Brady materi-

ality standard post-trial. Nor will prosecutors face

personal or professional disapprobation if it is later

determined that withheld evidence is actually mate-

rial—the purpose of Brady is not to pillory prosecu-

tors, but to ensure the finding of guilt is as just and

accurate as humanly possible. Agurs, 427 U.S. at 110;

see also Brady, 373 U.S. at 87. Experience shows that

reviewing courts can administer this holistic standard

without difficulty, and, by considering all available in-

formation, courts may be saved from making hair-

splitting judgments in close cases.

ARGUMENT

I. BRApDyY DISCLOSURES ARE FUNDAMENTAL TO A

CRIMINAL TRIAL’S TRUTH-SEEKING FUNCTION

AND TO THE PREVENTION OF WRONGFUL

CONVICTIONS.

The job of prosecutor has traditionally attracted

diligent public servants who pursue justice by follow-

ing their Brady obligations. Nonetheless, when the

government withholds exculpatory evidence, as does

happen, that is a leading cause of convictions of the

6

innocent. The Brady disclosure obligation helps to

promote fair trials that produce verdicts worthy of

public confidence. Brady helps to minimize the risk

that an individual’s life will be forever altered by the

manifest injustice of a wrongful conviction.

A. Brady’s Materiality Test Must Be Applied

with the Objective of Promoting Fair

Trials that Reach Verdicts Worthy of

Confidence.

The overarching purpose of Brady is “to ensure

that a miscarriage of justice does not occur.” Bagley,

473 U.S. at 675. Accordingly, “(t/]he proper standard

of materiality must reflect our overriding concern

with the justice of the finding of guilt.” Agurs, 427

U.S. at 112. Although “evidence is material only if

there is a reasonable probability that, had the evi-

dence been disclosed to the defense, the result of the

proceeding would have been different,” the Court has

underscored that “la} ‘reasonable probability’ is a

probability sufficient to undermine confidence in the

outcome.” Bagley, 473 U.S. at 682 (emphasis added).

That is, faith in the integrity of the verdict—which de-

pends on the completeness of the evidentiary record

available for presentation to the jury—is the touch-

stone for the Brady rule.

The truth-and-justice-seeking function that ani-

mates Brady would be severely jeopardized if the

Court were to narrow Brady as the court below did—

(i) permitting courts to find Brady satisfied where ev-

idence of alternative perpetrators, available prior to

trial, was not disclosed despite the absence of strong

physical evidence inculpating defendants, and (ii) pre-

venting courts from taking into account all of the facts

available at the time the conviction is reviewed, in-

7

cluding facts materializing post-trial, when determin-

ing the materiality of withheld information. This

Court should reject those crabbed rules and reinforce

that the Brady doctrine is designed to ensure the fun-

damental fairness of the trial.

Our adversarial system of criminal justice de-

pends on the effective functioning of the Brady doc-

trine. Strict compliance with Brady’s disclosure rule

helps mitigate the unavoidable information imbal-

ance between government investigators and criminal

defendants, thereby affording the accused a fair op-

portunity to present a complete defense to the jury.

See Brady, 373 U.S. at 87. Moreover, a clear standard

tending towards over-disclosure in close cases allevi-

ates “the natural condition of cognitive bias” that af-

fects a prosecutor, who—“convinced in the justice of

his indictment”—“may be unable to put himself in the

defense lawyer’s position” and “cannot know the po-

tential uses the defense lawyer may have for the evi-

dence.” Thomas P. Sullivan & Maurice Possley, The

Chronic Failure to Discipline Prosecutors for Miscon-

duct: Proposals for Reform, 105 J. Crim. L. &

CRIMINOLOGY 881, 915-16 (2015) (collecting author-

ity).

The important upstream impact of the Brady

rule—viz., as a guiding principle for prosecutors mak-

ing pre-trial decisions about what to turn over—is

only amplified downstream, in the reviewing court.

That is where any disclosure errors born of prosecutor

bias in the strength of the state’s narrative can and

should be corrected. See ibid. Although this Court

has never endorsed an “open-file policy,” neither has

it permitted Brady to devolve into a sufficiency-of-the-

evidence rule; Brady would be stripped of its vitality

if the mere existence of some inculpatory evidence in

8

the post-conviction record sufficed to overcome a

Brady challenge. The key consideration is not, as the

D.C. Court of Appeals wrongly assumed, whether the

jury could have reached a guilty verdict had the evi-

dence been disclosed to the defense. Rather, the

Brady analysis asks whether a due-process violation

occurred when the jury was allowed to deliberate

without the defense’s getting access to, and the right

to make use of, the exculpatory evidence the govern-

ment possesses.

B. The Proper Application of Brady Is Es-

sential To Avoid Wrongful Convictions.

When the government withholds material, excul-

patory evidence—whether knowingly or inadvert-

ently—it denies the defendant a fair trial and risks

convicting an innocent. Given the large number of

prosecutions nationwide, it only takes Brady viola-

tions in a small proportion to infect a great many

cases.

Studies by Innocence Network members have re-

vealed an undeniable correlation between Brady vio-

lations and wrongful convictions. See, e.g., Govern-

ment Misconduct, INNOCENCE PROJECT OF

MINNESOTA, http://ipmn.org/causes-and-remedies-of-

wrongful-convictions/government-misconduct (last

visited February 2, 2017) (finding Brady violations in

37% of 74 wrongful convictions). The Innocence Net-

work is not alone in identifying and quantifying this

alarming correlation. Another study compared

wrongful convictions with “near misses”—factually-

innocent indicted individuals who were acquitted or

against whom charges were dropped—to determine

“how the criminal justice system can and does ‘get it

right’ when faced with an innocent defendant.” Jon B.

Gould et al., Predicting Erroneous Convictions, 99

9

IOWA L. REv. 471, 477, 482 (2014). The study found

Brady violations to be statistically significant predic-

tors of wrongful convictions, “severely harm|[ing] the

system’s ability to self-correct from initial errors” that

resulted in indictment of an innocent. Jd. at 501. A

substantial body of empirical research has reached

the same conclusion. ?

That Brady violations correlate to wrongful con-

victions is not surprising. It has long been recognized

that withholding exculpatory evidence may impair the

“preparation or presentation of the defendant’s case.”

Bagley, 473 U.S. at 683. This information disparity is

especially damaging to the defense when the undis-

closed evidence relates to an alternative perpetrator.

Studies analyzing juror behavior show that jurors are

more likely to credit a defendant’s version of events if

presented with a complete and coherent narrative—

3 See, e.g., Lissa Griffin, Innocence and the Suppression of Ex-

culpatory Evidence by Prosecutors, in Controversies in Innocence

Cases in America 79 (Sarah Lucy Cooper ed. 2014) (noting that

the second-most “frequent basis for wrongful convictions has

been prosecutorial suppression of exculpatory evidence”); N.Y.S.

BAR ASS’N, Task Force on Wrongful Convictions, Final Report cf

the N.Y. State Bar Association’s Task Force on Wrongful Convic-

tions 19, 24-26 (2009) (identifying Brady violations as among the

causes of over 50% of fifty-three wrongful convictions and com-

piling examples of violations); Bennett L. Gershman, Reflections

on Brady v. Maryland, 47 S. TEx. L. REV. 685, 686 & n.8 (2006)

(cataloging sources finding that “hundreds of convictions have

been reversed because of the prosecutor's suppression of excul-

patory evidence”); Peter A. Joy, The Relationship Between Prose-

cutorial Misconduct and Wrongful Convictions: Shaping Reme-

dies for a Broken System, 2006 Wis. L. REV. 399, 403 n.20, 425

n.134 (2006) (citing studies linking Brady violations to wrongful

convictions); James S. Liebman et al., Capital Attrition: Error

Rates in Capital Cases, 1973-1995, 78 TEX. L. REV. 1839, 1850,

1864 n.79 (2000) (finding Brady violations were one of “the two

most common errors” leading to reversals of death sentences).

10

including, in particular, evidence of who other than

the defendant may have committed the crime—to

counter the narrative presented by the prosecution.

See John H. Blume et al., Every Juror Wants a Story:

Narrative Relevance, Third Party Guilt, and the Right

to Present a Defense, 44 AM. CRIM. L. REV. 1069, 1087-

91 (2007). “Jury research has long established that

jurors tend to base decisions on the presentation of a

persuasive story, the strength of which is judged in

part on the completeness of key story elements.” Da-

vid S. Schwartz & Chelsey B. Metcalf, Disfavored

Treatment of Third-Party Guilt Evidence, 2016 Wis. L.

REV. 337, 341 (2016) (highlighting the value of alter-

native-perpetrator evidence).

Brady violations upend lives. A few examples of

Brady’s power illustrate the risks of limiting the doc-

trine.

e Michael Morton served over twenty-four years in

prison for murdering his wife before being exoner-

ated. At his trial, prosecutors withheld critical ex-

culpatory evidence, including his son’s eyewitness

account of the crime, his neighbors’ statements

that on the day of the crime another man had

parked behind the Mortons’ home and walked into

the woods nearby, and that someone in another

city attempted to use Mrs. Morton’s credit card af-

ter her murder. The withheld evidence pointed to

a man who, after Mr. Morton’s conviction, commit-

ted another murder very similar to Mrs. Morton’s.

Michael Morton, INNOCENCE PROJECT,

http://www .innocenceproject.org/cases/michael-

morton (last visited February 2, 2017).

e Jerry Watkins served thirteen years for abducting,

raping, and murdering an eleven-year-old girl be-

fore being exonerated. He was convicted although

11

no physical evidence connected him to the crime.

After trial, he learned that prosecutors had inves-

tigated other suspects and had withheld an eyewit-

ness’s account of the abduction that pointed to a

different suspect. Jerry Watkins, INNOCENCE

PROJECT, http://www.innocenceproject.org/cases/

jerry-watkins (last visited February 2, 2017).

e Dwayne Provience served eight years in prison for

murder before he was able to prove his innocence.

The prosecution failed to disclose a note from po-

lice files indicating that an alternative perpetrator

might have committed the crime. The note showed

that—one month after the murder for which

Provience was convicted—another murder oc-

curred in the neighborhood, with the apparent mo-

tive of preventing the second victim from offering

evidence exculpating Provience and inculpating

the alternative perpetrator. Provience v. City of

Detroit, 529 F. App’x 661, 666-67 (6th Cir. 2013)

(denying qualified immunity and finding that the

note was “clearly material exculpatory evidence”).

These are but three illustrations of where actually

innocent defendants were convicted after the prosecu-

tor withheld exculpatory alternative-perpetrator evi-

dence. The consequences of years unjustly spent in

prison can never be erased, nor can the harm of a

wrongful conviction ever truly be corrected. Adrian T.

Grounds, Understanding the Effects of Wrongful Im-

prisonment, 32 CRIME & JUST. 1, 1-3 (2005).

Moreover, faith in our justice system is critical to

a just and ordered civil society. Yet wrongful convic-

tions erode that confidence. In one study, 75% of those

surveyed believed wrongful convictions occur occa-

sionally or frequently, and 57% responded that wrong-

ful convictions happen frequently enough to justify

12

major changes in how criminal suspects are prose-

cuted. See, e.g., Marvin Zalman et al., Citizens’ Atti-

tudes Toward Wrongful Convictions, 37 CRIM. JUST. R.

51, 57, 60 (2012). Holding that Brady’s materiality

standard recognizes the special power of alternative-

perpetrator evidence will foster confidence that the

criminal justice system is fundamentally concerned

with seeking truth, and engender “trust in the prose-

cutor as the representative of a sovereignty whose in-

terest in a criminal prosecution is not that it shall win

a case, but that justice shall be done.” Kyles, 514 U.S.

at 439 (internal quotations and alterations omitted).

Il. INFORMATION ABOUT ALTERNATIVE

PERPETRATORS IS CLASSIC EXCULPATORY

EVIDENCE THAT IS MATERIAL ABSENT

STRONG INCULPATORY PHYSICAL EVIDENCE.

Suppression of exculpatory information rises to the

level of materiality under Brady when “the favorable

evidence could reasonably be taken to put the whole

case in such a different light as to undermine confi-

dence in the verdict.” Kyles, 514 U.S. at 435. In Kyles,

as in Brady itself, this Court found that materiality

standard satisfied when the government failed to dis-

close evidence relating to an alternative perpetrator.

The Court should take this opportunity to provide

guidance that alternative-perpetrator evidence is pre-

sumptively material under Brady, at least where

there is not strong physical evidence of a defendant’s

guilt. That rule would be consistent with this Court’s

cases holding that evidence relating to an alternative

perpetrator is so often “critical” to a defendant’s con-

stitutional right to put on a defense that it may justify

displacing state-law procedural rules limiting its ad-

missibility. See, e.g., Chambers v. Mississippi, 410

U.S. 284 (1973). It would also comport with the pro-

13

disclosure approach followed by the many federal and

state courts that have interpreted Brady to require

disclosure of evidence of a plausible alternative perpe-

trator when the government lacks strong physical ev-

idence inculpating a defendant.

In this case, concededly exculpatory evidence relat-

ing to two plausible alternative perpetrators was sup-

pressed by the government before the trial. The pros-

ecution knew that James McMillan was present at the

scene of the crime (multiple witnesses confirmed it),

had an object hidden under his coat (the object used to

sodomize Mrs. Fuller was never found), was “acting

suspiciously,” and fled when police arrived. Pet’rs. Br.

19-20. The prosecution also was aware not only that

McMillan lived in the neighborhood in which Mrs.

Fuller was murdered, but that—mere weeks after

Mrs. Fuller’s murder, and before petitioners’ trial—

McMillan had violently assaulted and robbed two

other middle-aged women in the neighborhood, crimes

for which he was convicted and served time. Ibid. Un-

surprisingly, McMillan was investigated as a suspect

in the murder of Mrs. Fuller, and may have been in-

terviewed by the lead prosecutor on the case. bid.

Yet McMillan’s identity, the witnesses confirming his

suspicious behavior, and his series of attacks on

women in the neighborhood were withheld from the

defense.

Significant evidence about James Blue was also

suppressed. Just three weeks after Mrs. Fuller’s hom-

icide, a witness told investigators that on the day of

that murder James Blue had pulled a woman into an

alley and beaten and killed her—but the government

(inexplicably) never followed up on that statement.

Id. at 18. Blue, who had previously committed crimes

with similar characteristics, was released from prison

14

the very day Mrs. Fuller was killed. Shortly before

petitioners’ trial, Blue murdered the individual who

had implicated him in the Fuller murder. Yet the

prosecution apparently never breathed a word to the

defense about Blue. Ibid.

This alternative-perpetrator evidence was not dis-

closed even though the prosecutors knew that the case

record was devoid of inculpatory physical evidence or

any other reliable indicia of petitioners’ guilt, and re-

plete with physical evidence incompatible with the

government’s group-attack theory of the crime. This

Court should find that the withholding of alternative-

perpetrator evidence here violated Brady; petitioners’

convictions should be vacated.

A. This Court Has Long Recognized that Ev-

idence of an Alternative Perpetrator is

Critical Exculpatory Evidence Necessary

To Present A Complete Defense.

Evidence of alternative perpetrators has been of

central importance to this Court’s development of

both the Brady doctrine and the right of a criminal

defendant to present a complete defense and receive a

fair trial.

Withheld alternative-perpetrator evidence was at

issue in the very case that established the Brady doc-

trine. In Brady v. Maryland, Brady claimed that pros-

ecutors had improperly suppressed admissions by

Boblit, his companion, of having committed the actual

killing. 373 U.S. at 84. This Court agreed, holding

that suppression of such alternative-perpetrator evi-

dence—no less than using perjured or false evidence—

can render both the guilt and sentencing phase of a

trial “unfair ... to the accused,” in contravention of

constitutional due process. Jd. at 87.

15

More recently, in an opinion canvassing decades

of Prady jurisprudence and establishing the leading

framework for analyzing Brady claims, this Court

again recognized the exculpatory force of alternative-

perpetrator evidence. In Kyles v. Whitley, this Court

held that the prosecution’s withholding of evidence,

including evidence pointing to Beanie, an alternative

perpetrator, violated due process. See 514 U.S. at 432-

41, 445-49, 453-54. The Court hypothesized that if ev-

idence that Beanie had framed Kyles for the murder

had been disclosed, the defense might have benefitted

in at least three ways: presenting the evidence at trial

“would have allowed the jury to infer that Beanie was

anxious to see Kyles arrested”; Kyles would have been

able to “attack[] the reliability of the investigation in

failing even to consider Beanie’s possible guilt”; and

the evidence would have “magnified the effect on the

jury of explaining how” Beanie knew to direct police

to the location where incriminating physical evidence

“happened to be recovered.” Jd. at 429, 445-47. The

existence of other “inconclusivel]” physical evidence

against the petitioner made no difference, because it

would “hardly have amounted to overwhelming proof

that Kyles was the murderer,” a level of proof the pros-

ecution bore the burden of establishing. Jd. at 451,

453. The withheld evidence, including the alterna-

tive-perpetrator evidence, undermined confidence in

the verdict.

Thus, from the inception of the Brady rule

through the doctrine’s evolution, this Court has recog-

rized that alternative-perpetrator evidence is of par-

amount value to mounting an effective defense and

lies at the heart of the prosecution’s disclosure obliga-

tions under Brady. A defendant may use such evi-

dence to uncover other witnesses and leads, to point

16

the jury towards the possibility of another’s culpabil-

ity, or even to call into question the reliability and

thoroughness of the state’s investigation. See id. at

429, 446-47. When such evidence is withheld, the

state’s “case [is) much stronger, and the defense case

much weaker, than the full facts would have sug-

gested.” Id. at 429.

Outside of the Brady context too, this Court has

recognized that a criminal defendant’s right to a

“meaningful opportunity to present a complete de-

fense” often depends upon alternative-perpetrator ev-

idence. Holmes, 547 U.S. at 324 (quoting Crane v.

Kentucky, 476 U.S. 683, 690 (1986)). In defining that

constitutional right, this Court has described alterna-

tive-perpetrator evidence as “relevant and material,”

and deemed such evidence so important that barring

its admission at trial violates a defendant’s right to

“present [his] version of the facts” to the jury. Wash-

ington v. Texas, 388 U.S. 14, 19, 23 (1967). Thus, evi-

dentiary rules mandating the exclusion of “critical ev-

idence” of third-party guilt deny the defendant “a trial

in accord with ... fundamental standards of due pro-

cess” and “defeat the ends of justice.” Chambers, 410

U.S. at 302; see also Green v. Georgia, 442 U.S. 95, 97

(1979) (per curiam) (characterizing alternative-perpe-

trator evidence as “highly relevant,” and holding that

its exclusion, under state hearsay rules, “constituted

a violation of the Due Process Clause”).

These cases led this Court most recently to the

conclusion that a trial court cannot constitutionally

exclude alternative-perpetrator evidence based on its

pre-trial belief that “there is strong evidence of ...

guilt.” See Holmes, 547 U.S. at 324-26, 328-31. As the

Court explained, “[j)ust because the prosecution’s evi-

dence, if credited, would provide strong support for a

17

guilty verdict, it does not follow that evidence of third-

party guilt” may be excluded; “the strength of the

prosecution’s case cannot be assessed without making

the sort of factual findings that have traditionally

been reserved for the trier of fact.” 7d. at 330-31.

The Holmes line of cases is complementary au-

thority that supports treating alternative-perpetrator

evidence as presumptively material (absent strong in-

culpatory physical evidence). Under this Court’s prec-

edents, the fundamental right to present a complete

defense is impaired—in violation of Brady—if evi-

dence of alternative perpetrators is withheld in ad-

vance of trial.

B. Alternative-Perpetrator Evidence Is Pre-

sumptively Material Under Brady Where

Strong Inculpatory Physical Evidence Is

Lacking.

Consistent with this Court’s view, the federal

courts of appeals and state high courts have long un-

derstood that alternative-perpetrator evidence is ma-

terial under Brady in cases where physical evidence

of the defendant’s guilt is infirm.

Applying this Court’s precedents in a case where

“Injo physical evidence tied” the defendant to the

crime, the en banc Ninth Circuit held that “[w]ithhold-

ing knowledge of a second suspect conflicts with the

Supreme Court’s directive that ‘the criminal trial, as

distinct from the prosecutor’s private deliberations, be

preserved as the chosen forum for ascertaining the

truth about criminal accusations.” United States v.

Jernigan, 492 F.3d 1050, 1056-57 (9th Cir. 2007) (en

banc) (quoting Kyles, 514 U.S. at 440). Shortly there-

after, a panel of the Ninth Circuit—also in a case with

“little physical evidence connecting” the defendant to

18

the crime—“recognized the principle that the govern-

ment may not, consistent with Brady, suppress infor-

mation that another person committed the crime for

which the defendant is on trial.” Williams v. Ryan,

623 F.3d 1258, 1266 (9th Cir. 2010).

In reaching that categorical conclusion, the Wil-

liams court noted that “evidence suggesting an alter-

nate perpetrator is classic Brady material.” Jd. at

1265 (quotation marks omitted). Such information

concerning a possible alternative suspect has the

power to fundamentally change “the preparation or

presentation of the defendant’s case,” Bagley, 473 U.S.

at 683; if “disclosed to the defense,” it would allow the

defendant to contact other witnesses, highlight “in-

consisten|cies|] with the State’s theory at trial,” and

also “point to an alternative suspect who may himself

have been responsible for the brutal crime,” Williams,

623 F.3d at 1265-66. Indeed, the disclosure rule re-

garding alternative-perpetrator evidence was, in the

Ninth Circuit’s view, so clearly established decades

ago that “[a]ny reasonable police officer in 1984 would

have understood that evidence potentially inculpating

another person fell within Brady’s scope.” Carillo v.

Cnty. of Los Angeles, 798 F.3d 1210, 1226 (9th Cir.

2015), cert. denied, Ditsch v. Carillo, 136 S. Ct. 1671

(2016).

The Sixth Circuit has used similarly categorical

language in holding that suppressing evidence of a “le-

gitimate” alternative perpetrator violates Brady when

the state’s case lacks physical evidence. In companion

cases where “[t]he state never discovered any physical

evidence linking” either defendant to the crime, that

court explained that “[o]n its face, the nondisclosure

of the identities” of alternative perpetrators works “an

egregious breach of the state’s Brady obligations.”

19

Gumm ov. Mitchell, 775 F.3d 345, 364, 371 (6th Cir.

2014); Bies v. Sheldon, 775 F.3d 386, 400-01 (6th Cir.

2014). Although prosecutors are not “necessarily re-

quired to disclose every stray lead and anonymous

tip,” they “must disclose the existence of ‘legitimate

suspect(s]’....” Gumm, 775 F.3d at 364 (citations omit-

ted, emphasis added); Bies, 775 F.3d at 400. Endors-

ing the Ninth Circuit’s view that “[wlithholding

knowledge of a second suspect” cannot be squared

with Brady, the court readily concluded that “the

state’s failure to turn over ... evidence implicating

other individuals in the murder and calling into ques-

tion the state’s own account of the crime can ‘Teason-

ably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.”

Gumm, 775 F.3d at 364, 373 (quoting Kyles, 514 U.S.

at 435); Bies, 775 F.3d at 400, 403.

Other circuits have reached analogous conclu-

sions. The Tenth Circuit, for example, has found al-

ternative-perpetrator evidence material under Brady

where prosecutors lack physical evidence of guilt, be-

cause such evidence “creates reasonable doubt” that

the defendant committed the crime, and “in the hands

of the defense, it could [be] used to uncover other leads

and defense theories and to discredit the police inves-

tigation.” Bowen, 799 F.2d at 612-13; see also Banks

v. Reynolds, 54 F.3d 1508, 1517-18, 1521 (10th Cir.

1995); Miller v. Angliker, 848 F.2d 1312, 1314-15,

1322-23 (2d Cir. 1988). The Eighth Circuit has held

that undisclosed alternative-perpetrator evidence was

material even where the prosecution’s case was

strong. Clemmons v. Delo, 124 F.3d 944, 947, 951 (8th

Cir. 1997). No federal court of appeals has held that

alternative-perpetrator evidence is categorically im-

material in the absence of strong physical evidence of

a defendant’s guilt.

20

So, too, state high courts have held that withhold-

ing alternative-perpetrator evidence violates Brady in

cases where strong physical evidence of the defend-

ant’s guilt is absent. These courts, like their federal

counterparts, have explained that alternative-perpe-

trator evidence is “bedrock Brady material|[]” which, if

suppressed, justifies “ordering new trials” in cases

where “physical evidence against the defendant is not

as strong.” Floyd v. State, 902 So.2d 775, 783-87 (Fla.

2005) (quotation marks omitted); see also, e.g., People

v. Beaman, 890 N.E.2d 500, 511-14 (Ill. 2008) (failing

to disclose alternative-perpetrator evidence material

where “tenuous” and “circumstantial” evidence

against defendant was not “particularly strong evi-

dence of his guilt”); Harrington v. State, 659 N.W.2d

509, 515, 524-25 (lowa 2003) (concluding that alterna-

tive-suspect evidence would have been “the center-

piece of a consistent theme that the State was prose-

cuting the wrong person” where “physical evidence

linking Harrington to the crime was minimal”).

The approach taken by federal and state appellate

courts reveals a consistent theme: suppression of al-

ternative-perpetrator evidence is excused only in the

narrow category of cases where there is either strong

physical evidence of the defendant’s guilt, or only min-

imal evidence pointing to a third party. See, e.g.,

Canales v. Stephens, 765 F.3d 551, 575-76 (5th Cir.

2014) (finding suppression immaterial when defend-

ant’s “confessional letter describing the murder step-

by-step” made other suspect “not a particularly plau-

sible one”); Smith v. Holtz, 210 F.3d 186, 196, 198-99

(3d Cir. 2000) (noting “physical evidence ... inexorably

tied” defendant to the crime); Grube v. State, 995 P.2d

794, 799 (Idaho 2000) (highlighting physical evidence

inculpating defendant). In other words, those courts

have adopted (nothing more than) the common-sense

21

exception that, although “Brady requires the prosecu-

tion to produce evidence that someone else may have

committed the crime,” it need not produce evidence

where “the ‘other suspects’ ... were ephemeral.” Jar-

rell v. Balkcom, 735 F.2d 1242, 1258 (11th Cir. 1984).

Petitioners’ case does not come close to falling

within that exception.

C. The D.C. Court of Appeals’s Interpreta-

tion and Application of Brady Violated

Petitioners’ Right To A Fair Trial, Ren-

dering Their Guilty Verdicts Unworthy

of Confidence.

This Court’s cases, together with the circuit and

state courts’ application of those rulings, make two

things clear. First, information about alternative per-

petrators is material exculpatory evidence that must

presumptively be disclosed unless there is strong

physical evidence of a defendant’s guilt. Second, the

reason such alternative-perpetrator evidence is so in-

dispensable is that confidence in a guilty verdict can-

not be assured if the jury never had a chance to ob-

serve what defense counsel could have done with such

information. Simply put, the disclosure of alterna-

tive-perpetrator information is likely to fundamen-

tally change the course of a case, and justice suffers if

such evidence is considered not material.

Had the D.C. Court of Appeals correctly applied

those principles, it would have found that suppressed

evidence implicating James McMillan and James

Blue was material under Brady. McMillan was iden-

tified by multiple witnesses as fleeing the crime scene

with something hidden under his coat, and had robbed

and assaulted two other middle-aged women near the

crime scene just weeks after Mrs. Fuller’s murder.

22

Blue slaughtered a witness who told police that he had

murdered a woman in an alley the day of Mrs. Fuller’s

homicide, a statement the prosecution never followed

up on (let alone disclosed). Nonetheless, absent the

evidence connecting those suspects to the crime scene,

petitioners were unable to question the rigor of the

government investigation or to present the jury with

a counter-narrative in the form of an alternative-per-

petrator theory to explain not only (i) why prosecutors

lacked solid physical evidence of their guilt, but also

(ii) why the only physical evidence prosecutors did

have flatly contradicted the state’s group-attack the-

ory of the crime.

In these circumstances, the “exclusion of this kind

of exculpatory evidence deprives a defendant of the

basic right to have the prosecutor’s case encounter

and survive the crucible of meaningful adversarial

testing.” Crane, 476 U.S. at 690-91 (quotation marks

omitted). Indeed, it is fanciful to say with confidence

that the case would have unfolded the same way if the

government had complied with its Brady obligations.

“Even if the jury—armed with all of this new evi-

dence—could have voted to convict [petitioners],” this

Court should “have ‘no confidence that it would have

done so.” Wearry v. Cain, 136 S.Ct. 1002, 1007 (2016)

(per curiam) (citation omitted). The Brady inquiry

manifestly “does not require demonstration by a pre-

ponderance that disclosure of the suppressed evidence

would have resulted ultimately in the defendant’s ac-

quittal.” Kyles, 514 U.S. at 434.

This Court should, therefore, reverse the decision

below based on the clear, administrable rule the lower

courts have extrapolated from its Brady cases: alter-

native-perpetrator evidence is material under Brady

absent strong physical evidence of a defendant’s guilt.

23

Making that common-sense rule explicit would mini-

mize the burden on prosecutors and judges by provid-

ing well-defined guidance in an area of law that has

long been fraught with difficult judgment calls. See,

e.g., Kyles, 514 U.S. at 439-40. In particular, a rule of

presumptive disclosure could help to resolve the ten-

sion inherent in a prosecutor’s assessing the weak-

nesses of the state’s case. Such a rule would enhance

confidence in verdicts in two important ways. First, it

would leave to defense counsel, not to the “prosecu-

tor’s private deliberations,” the evaluation of how to

use evidence pointing to alternative perpetrators. Id.

at 440. Second, it would enable defendants to present

a case that the jury is most likely to credit—a com-

plete and coherent narrative that includes evidence of

who other than the defendant might have committed

the crime. See Blume, supra, at 1087-91; see also, e.g.,

Gumm, 775 F.3d at 370-71 (noting disclosure of alter-

native-perpetrator evidence “would have provided a

compelling counter-narrative to the state’s theory of

the case”); Harrington, 659 N.W.2d at 524-25 (finding

it “more probable that the jury would have disre-

garded or at least doubted” testimony by a supposed

accomplice “had there been a true alternative sus-

pect”). “The defendant’s ability to tell the right

story—and to tell it completely”—is not only “a pow-

erful influence on the outcome of a trial,” but “central

to the protection of his constitutional right to present

a complete defense.” Blume, supra, at 1091.

Holding that alternative-perpetrator evidence is

material absent strong physical evidence of guilt also

furthers the policy concerns undergirding the Brady

doctrine and the sanctity of the fair-trial right that the

rule is designed to protect. Where evidence is allowed

to be withheld in such circumstances, it harms the in-

tegrity of guilty verdicts and undermines faith in

24

criminal convictions nationwide.

Ill, Courts SHOULD CONSIDER ALL AVAILABLE

INFORMATION WHEN EVALUATING BRADY

MATERIALITY.

In 1992, after petitioners’ convictions, McMillan

assaulted, sodomized, and murdered another woman

in an alley just three blocks from where Mrs. Fuller

was found. Pet’rs. Br. 20. This crime was strikingly

similar to the brutal murder of Mrs. Fuller. An expert

testified at petitioners’ post-conviction hearing that

sexual assaults with these characteristics are rare—

which raises the obvious question whether McMillan,

acting alone, committed both heinous murders. Id. at

23.

In deciding petitioners’ Brady claim, however, the

D.C. Court of Appeals refused to consider McMillan’s

1992 crime. Instead, it announced a per se rule that

information that post-dates a defendant’s conviction

is “not relevant to whether the government violated

its Brady obligations” to a defendant and has “no bear-

ing on the question of the materiality of any evidence

that the government actually did withhold from the

defense.” App. to Pet. for Cert. 36a.

The Brady error here was manifest based on the

evidence withheld before trial, even absent any con-

sideration of post-conviction information. Nonethe-

less, under this Court’s precedents, McMillan’s 1992

crime bears on, and confirms, the materiality of evi-

dence withheld from the petitioners, and should have

been considered as part of the “totality of the circum-

stances” test for determining whether Brady was vio-

lated. See Agurs, 427 U.S. at 112; Kyles, 514 US. at

25

434, 440. When analyzing materiality properly, con-

sideration of available post-conviction information is

consistent with the animating principles of Brady.

A. This Court Has Permitted the Considera-

tion of Post-Trial Events In Determining

Whether Brady Was Violated.

This Court has considered post-trial events that

shed light on the materiality of undisclosed evidence.

In Wood v. Bartholomew, this Court described post-

trial events as the “best possible proof” of whether

suppressed evidence was material under Brady, and

summarily reversed because the circuit court had

“disregarded” post-conviction testimony in its Brady

analysis. 516 U.S. 1, 7-8 (1995). That post-conviction

evidence, adduced years after the trial, consisted of

testimony from counsel about how the undisclosed ev-

idence might have impacted the trial. Jd. Similarly,

in Kyles, this Court found that post-conviction infor-

mation, incluaing the testimony of the prosecutor and

the detective at petitioner’s post-conviction hearing,

“confirmed” the materiality of undisclosed evidence.

514 U.S. at 448. The post-conviction testimony called

into question the integrity of the investigation, and

suggested that an alternative perpetrator may have

framed the defendant.

Consistent with Wood and Kyles, this Court

should endorse the proposition that courts may con-

sider post-con iction information for any purpose

bearing on the materiality of withheld evidence.

Brady always envisioned the materiality analysis as a

holistic inquiry, without arbitrary or fixed limits on

what could be evaluated. The reviewing court must

assess the possibility of “any adverse effect that the

prosecutor’s failure to respond might have had on the

preparation or presentation of the defendant’s case”

26

and whether “such effect might have occurred in light

of the totality of the circumstances.” Bagley, 473 U.S.

at 683 (emphasis added). To that end, this Court has

time and again reaffirmed the core principle that

Brady materiality is a fact-intensive analysis that

should take all available evidence into account. See

id.; Wood, 516 U.S. at 7-8; Kyles, 514 U.S. at 434, 441

(evidence must be evaluated “cumulativel[ly]”);

Wearry, 136 S.Ct. at 1007 (finding error in considering

materiality of evidence “in isolation rather than cu-

mulatively”).

No part of the Brady doctrine incorporates a rigid

time limit on what can be considered in the material-

ity analysis. Brady seeks to “preserve the criminal

trial ... as the chosen forum for ascertaining the truth

about criminal accusations” and to ensure the “justice

of the finding of guilt.” Kyles, 514 U.S. at 440; Agurs,

427 U.S. at 112. There is nothing to be gained in eval-

uating the “truth about criminal accusations” or the

“justice of the finding of guilt” if the post-conviction

court shuts its eyes to events that bear directly on the

materiality of undisclosed evidence based solely on a

time limitation. In nfact, consideration of how post-

trial information might bear on the significance of

suppressed pre-trial facts actually enhances the truth-

seeking function of a criminal trial. Either the infor-

mation, considered with the whole case record, will re-

inforce that the trial was fair, or it will justify vacating

a verdict that is unworthy of confidence.

Finally, there is “a significant practical difference

between the pretrial decision of the prosecutor and the

post-trial decision of the judge.” Agurs, 427 US. at

108. The prosecutor must assess materiality pre-trial,

with necessarily incomplete information about how

the trial might unfold and with a necessarily skewed

27

outlook given his sponsorship of the indictment.

Agurs, 427 U.S. at 108; Kyles, 514 U.S. at 438-39. The

post-conviction court, on the other hand, has the ben-

efit of a full trial and post-conviction record, including

any directly relevant information that materializes

years after the trial. See Wood, 516 U.S. at 7-8; Kyles,

514 U.S. at 448. In reversing the D.C. Court of Ap-

peals’s erroneous decision to the contrary, this Court

should endorse the consideration of post-trial events

in a Brady analysis, and encourage courts to weigh all

available information when adjudicating materiality.

B. Circuit Courts and State Courts Use

Post-Conviction Events In Determining

Whether Brady Was Violated.

Following this Court’s precedents, multiple fed-

eral circuit courts have factored post-conviction infor-

mation into their evaluation of Brady materiality. For

example, the Ninth Circuit analyzed two declarations,

executed years after the conviction, to dwter:.zine the

materiality of undisclosed evidence of au aiternative

perpetrator. Williams, 623 F.3d at 1265. In the

court’s view, the post-conviction information con-

firmed that those witnesses could in fact inculpate a

third party and exculpate the petitioner. Jd. at 1262-

63, 67-68. Likewise, the Second Circuit considered

post-conviction affidavits of eyewitnesses—who re-

canted their testimony after seeing suppressed evi-

dence—and found that it was “likely that [the undis-

closed evidence] would have had seismic impact,” in

part because it would have “furnished the defense

with promising lines of inquiry.” Leka v. Portuondo,

257 F.3d 89, 97, 106 (2d Cir. 2001). The Tenth Circuit

has also looked to post-conviction testimony of trial

counsel as a useful indicator of the materiality of the

withheld evidence. Banks, 54 F.3d at 1520.

28

The Missouri and lowa Supreme Courts have sim-

ilarly considered post-conviction events to help gauge

the materiality of undisclosed evidence. Relying on

Kyles, the Missouri high court has specifically in-

structed courts reviewing “an alleged Brady violation”

to “consider[] all available evidence uncovered follow-

ing the trial.” State ex rel. Griffin v. Denney, 347

S.W.3d 73, 77-79 (Mo. 2001) (emphasis added) (citing

Kyles, 514 U.S. at 448); see also Woodworth v. Denney,

396 S.W.3d 330, 338 (Mo. 2013). Applying that prin-

ciple, the court found suppression of evidence that an

alternative perpetrator possessed a weapon at the

time of the crime material in light of a post-conviction

confession implicating the alternative perpetrator.

Griffin, 347 S.W.3d at 77-79. The lowa Supreme

Court considered a police officer’s post-trial testimony

that an alternative perpetrator was “the prime sus-

pect” in an investigation as indicating the importance

of withheld police reports chronicling the investiga-

tion and the likelihood that the defense strategy

would have been different had those reports been dis-

closed. Harrington, 659 N.W.2d at 524.

Numerous federal circuit courts and state high

courts have found post-conviction events useful for the

difficult task of “reconstructing in a post-trial proceed-

ing the course that the defense and the trial would

have taken,” had suppressed evidence been disclosed.

Bagley, 473 U.S. at 683. The D.C. Court of Appeals

stands alone in categorically barring consideration of

such information. That aberrant decision should be

reversed.

29

C. Considering Post-Conviction Events In

Determining Whether Brady Was Vio-

lated Is Workable For Prosecutors And

Administrable For Courts.

Allowing courts to consider post-conviction events

in determining materiality will advance the goals of

Brady, without creating difficulties in practice. Pros-

ecutors will carry on just as they do today, striving to

assess the materiality of evidence using incomplete

information, but with a stronger incentive to err on

the side of over-disclosure. Courts will carry on as

many already do, using post-conviction events that

shed new light on undisclosed evidence to assist in

Brady materiality analyses.

The Constitution requires prosecutors to make

difficult pre-trial judgment calls regarding the poten-

tial materiality of exculpatory evidence, and to at-

tempt to engage in the “totality of the circumstances”

Brady analysis while only knowing a fraction of the

relevant circumstances. “The significance of an item

of evidence can seldom be predicted accurately until

the entire record is complete.” Agurs, 427 U.S. at 108.

As a result, a prosecutor will always “be forced to

make judgment calls about what would count as fa-

vorable evidence, owing to the very fact that the char-

acter of a piece of evidence as favorable will often turn

on the context of the existing or potential evidentiary

record.” Kyles, 514 U.S. at 438-39; see also Daniel S.

Medwed, Brady’s Bunch of Flaws, 67 WASH & LEE L.

REV. 1533, 1558 (2010) (noting prosecutors must

make “an artificial, prospective assessment about how

particular items of evidence fit within the jigsaw puz-

zle of a possible trial”). Even the most conscientious

30

prosecutor runs the risk of having a case unfold unex-

pectedly—which might portend a Brady violation—af-

ter electing to withhold certain evidence.

The fact that materiality is a moving target re-

quiring some prediction on the part of prosecutors has

never been accepted as a justification to narrow

Brady. See Kyles, 514 U.S. at 439. Brady is premised

not on a prosecutor’s actual knowledge or the known

effect of a piece of evidence on a case. Rather, when

assessing the sufficiency of disclosure, the court as-

sumes a prosecutor knows of exculpatory evidence

possessed by members of his team, Kyles, 514 U.S. at

437-38, and “recognize[s] [the] significance” of excul-

patory evidence he opts to withhold “even if he has ac-

tually overlooked it,” Agurs, 427 U.S. at 110. The re-

viewing court passes no personal or professional judg-

ment on the prosecutor who errs—*[i]f the suppres-

sion of evidence results in constitutional error, it is be-

cause of the character of the evidence, not the charac-

ter of the prosecutor.” Ibid; see also Brady, 373 US.

at 87. Thus, asking prosecutors to consider not only

how evidence might play into a defense—but also how

evidence might become amplified in light of subse-

quent events bearing on that information—does not,

as the court below wrongly suggested, require prose-

cutors to “do the impossible and disclose evidence that

does not yet exist.” App. to Pet. for Cert. 36a; see

United States v. Diaz, 176 F.3d 52, 107, 109 (2d Cir.

1999). Rather, it asks them to undertake a similar

analysis to that which they already conduct.

Undoubtedly, this Court’s endorsement of a rule

allowing consideration of ail available facts in analyz-

ing materiality would encourage the prudent prosecu-

tor to err on the side of disclosing information availa-

ble pre-trial instead of “tacking too close to the wind.”

31

Kyles, 514 U.S. at 439-40; see also Agurs, 427 U.S., at

108 (“[T]he prudent prosecutor will resolve doubtful

questions in favor of disclosure”). “This is as it should

be.” Kyles, 514 U.S. at 439. “The prudence of the care-

ful prosecutor should not ... be discouraged.” Jd. at

440. The decision below encourages the opposite,

however: It incentivizes prosecutors to amplify their

chances of obtaining convictions by withholding excul-

patory evidence and gambling that there will be no

consequences post-conviction for failing to disclose ev-

idence that, in hindsight, would have mattered to the

preparation and presentation of the defense. United

States v. Olsen, 737 F.3d 625, 633 (9th Cir. 2013) (“By

raising the materiality bar impossibly high, the panel

invites prosecutors to avert their gaze from exculpa-

tory evidence, secure in the belief that, if it turns up

after the defendant has been convicted, judges will

dismiss the Brady violation as immaterial.”)

(Kozinski, J., dissenting from denial of rehearing en

banc).

A true “totality of the circumstances” analysis of

Brady materiality, taking into account post-conviction

information, will also be administrable in the courts.

The fact that a number of courts already follow this

genuinely holistic approach provides the best evidence

that all could feasibly do so. In fact, a contrary rule is

likely to prove far more difficult to administer. The

court would be put in the position of attempting to ig-

nore post-conviction information that could signifi-

cantly complement its assessment of how material to

the defense directly-related (but undisclosed) evi-

dence might have proven. That challenging task is

neither advisable, nor consistent with the foundations

of Brady. When the integrity of a guilty verdict is at

_—

32

stake—which is the core concern of the Brady doc-

trine—arbitrary bright-line rules that promote non-

disclosure have no place in this Court’s jurisprudence.

CONCLUSION

For the reasons stated above and in Petitioners’

briefs, the judgment below should be reversed and the

convictions should be vacated.

Respectfully submitted,

SETH MILLER RICHARD W. MARK

PRESIDENT Counsel of Record

INNOCENCE NETWORK AMER S. AIIMED

Innocence Project GABRIEL K. GILLETT

of Florida, Inc. LAURA F. CORBIN

100 East Park Ave. TIMOTHY SUN

Tallahassee, FL 32301 GIBSON, DUNN & CRUTCHER LLP

DAVID DEBOLD 200 Par k Ave.

GIBSON, DUNN New York, NY 10166

& CRUTCHER LLP (212) 351-4000

1050 Connecticut Ave., NW rmark@gibsondunn.com

Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

February 3, 2017

la

APPENDIX

The Innocence Network’s member organizations in-

clude: the Actual Innocence Clinic at the University of

Texas School of Law; After Innocence; Alaska Inno-

cence Project; Arizona Justice Project; California In-

nocence Project; Center on Wrongful Convictions;

Committee for Public Counsel Services Innocence Pro-

gram; Connecticut Innocence Project/Post-conviction

Unit; Duke Center for Criminal Justice & Profes-

sional Responsibility; Exoneration Initiative; George

C. Cochran Mississippi Innocence Project; Georgia In-

nocence Project; Griffith University Innocence Pro-

ject; Hawai’i Innocence Project; Idaho Innocence Pro-

ject; Illinois Innocence Project; Innocence & Justice

Project at the University of New Mexico School of

Law; Innocence Project; Innocence Project Argentina;

Innocence Project at UVA School of Law; Innocence

Project London; Innocence Project of Minnesota; Inno-

cence Project New Orleans; Innocence Project New

Zealand; Innocence Project Northwest; Innocence Pro-

ject of Florida; Innocence Project of lowa; Innocence

Project of Texas; Irish Innocence Project at Griffith

College; Italy Innocence Project; Justicia Reinvindi-

cada — Puerto Rico Innocence Project; Kentucky Inno-

cence Project; Knoops’ Innocence Project; Life After

Innocence; Loyola Law School Project for the Inno-

cent; Michigan Innocence Clinic; Michigan State Ap-

pellate Defender Office — Wrongful Conviction Units;

Mid-Atlantic Innocence Project; Midwest Innocence

Project; Montana Innocence Project; Nebraska Inno-

cence Project; New England Innocence Project; New

York Law School Post-Conviction Innocence Clinic;

North Carolina Center on Actual Innocence; Northern

California Innocence Project; Office of the Ohio Public

2a

Defender, Wrongful Conviction Project; Ohio Inno-

cence Projet; Oklahoma Innocence Project; Oregon

Innocence Project; Pennsylvania Innocence Project;

Reinvestigation Project; Resurrection After Exonera-

tion; Rocky Mountain Innocence Center; Sellenger

Centre Criminal Justice Review Project; Taiwan As-

sociation for Innocence; The Association in Defence of

the Wrongly Convicted; The Israeli Public Defender;

Thurgood Marshall School of Law Innocence Project;

University of Baltimore Innocence Project Clinic; Uni-

versity of British Columbia Innocence Project at the

Allard School of Law; University of Miami Law Inno-

cence Clinic; Wake Forest University Law School In-

nocence and Justice Clinic; West Virginia Innocence

Project; Western Michigan University Cooley Law

School Innocence Project; Wisconsin Innocence Pro-

ject; Witness to Innocence; and Wrongful Conviction

Clinic at Indiana University.