The United States Constitution requires prosecutors to give the defense “exculpatory” evidence—information that casts doubt on the government’s case. Federal Judge Alex Kozinski has lambasted prosecutors for regularly hiding such evidence, known as Brady material, noting that “Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to the unsettling trend.” He blamed judges for the government’s frequent misbehavior: “Some prosecutors don’t care about Brady because courts don’t make them care.”
While Kozinski’s criticism created headlines, it appears not much has changed. In an opinion that went largely unnoticed at the end of the U.S. Supreme Court’s term, the court addressed a case, Turner v. United States, in which the prosecution suppressed evidence suggesting that someone other than the defendants committed a heinous murder. In a 6–2 ruling, the court chose to give the government a free pass for this bad behavior.
The case involved the 1984 kidnapping, robbery, and murder of 49-year-old Catherine Fuller in Washington. On her way to go shopping, Fuller was sodomized, robbed of $40 and cheap jewelry, and killed. A street vendor found her body in a garage abutting an alley just hours after she left home.
During the trial, prosecutors for the U.S. Attorney’s Office for the District of Columbia wove a terrifying narrative about Fuller being attacked by more than a dozen young men, among them Charles S. Turner, from a street gang known as the 8th and H Street Crew; 10 of those men were charged as co-defendants. The government lacked physical evidence tying the defendants to the crime. Instead, it based its case largely on the testimony of two witnesses who pleaded guilty to the murder in exchange for reduced charges and lighter sentences. The two testified that, along with the other defendants, they robbed and brutally assaulted Fuller. After deliberating for a week, the jury acquitted two of the defendants and convicted the other eight.
Two decades later, the Mid-Atlantic Innocence Project uncovered evidence that the prosecutors had withheld from the defense. It turned out that the street vendor who found Fuller had seen two men, one with a bulge under his coat, run to the alley, stop by the garage, stay there for five minutes, and run as the police approached. After examining the government’s files, the Innocence Project learned that the street vendor had revealed that one of the men he’d seen was named James McMillan—information the government had withheld despite the defense’s requests. Two other witnesses also observed McMillan near the crime scene and described his “suspicious behavior,” evidence prosecutors also withheld. Soon after Fuller’s murder, police arrested McMillan for beating and robbing two other women in that same neighborhood.
McMillan would have been a good suspect for the defense to investigate had they known about him. Indeed, years after the trial, McMillan robbed, sodomized, and murdered another young woman in an alley just a few blocks from where Fuller was killed.
In 2010, the defendants moved for a new trial. This term, Turner v. United States reached the U.S. Supreme Court.
At stake was whether the justices would hold prosecutors accountable for what are known as Brady violations. Under the Supreme Court’s landmark 1963 ruling in Brady v. Maryland, the government must disclose any evidence that casts doubt on the prosecution’s case. Known as Brady material, such evidence can include, for instance, a prosecutor’s promise of money in exchange for a witness’s testimony, a witness’s inconsistent statements about what he saw during the crime, or evidence that someone besides the defendant was lurking around the crime scene. If the government doesn’t turn this information over, it’s in violation of the U.S. Constitution.
While everyone—including the government—agreed that prosecutors should have turned over the evidence at trial, the justices upheld the convictions. (The decision was 6–2 because Justice Neil Gorsuch did not participate.) In his opinion, Justice Stephen Breyer wrote that the illegally suppressed evidence was probably not strong enough to overcome the government’s “group attack theory,” the “cornerstone of [its] case.” In other words, no harm, no foul.
More broadly, most of the court took comfort in the government’s assurance that, since the U.S. Attorney’s Office adopted a 2006 training manual, it adhered to a “generous policy of discovery,” disclosing any “information that a defendant might wish to use.”
Recent cases in D.C., prosecuted by the same office that prosecuted the Fuller case, suggest the justices’ faith in the office’s new policy is misplaced.
In 2011, the D.C. Court of Appeals reversed a murder conviction because the government waited until trial to disclose that the eyewitness saw the shooter use his left hand, while the defendant, Tyree Miller, was right-handed. In 2014, the same court reversed Alonzo Vaughn’s conviction for assaulting a prison guard. The government’s case hinged largely on the testimony of a corrections officer who, unbeknownst to the defense but known to the government, had falsely accused another inmate of a different prison guard attack, landing him under investigation. That same year, the D.C. Court of Appeals reversed Lamont Biles’ two convictions for deceptive labeling—Biles was caught purportedly selling counterfeit DVDs—because the government withheld evidence indicating that the arresting officer conducted an illegal search and seizure.
Then there was 30-year-old Joseph Harrington’s 2009 murder trial, in which the government claimed he had stabbed a man to death in a park. Prosecutors failed to mention that their star witness was spotted at the murder scene holding a large knife, and that when asked about her involvement, she responded, “self-preservation is the first rule of law.” The D.C. Superior Court trial judge called this nondisclosure “conscious and deliberate.”
These cases are just a sampling, but they suggest the court might have been too eager to credit the government’s assertion that its adoption of a new discovery policy in 2006 was truly “generous” or effective.
When the government hides evidence, there are serious consequences. First, it puts innocent people behind bars. The National Registry of Exonerations found that government misconduct—most frequently the suppression of exculpatory evidence—was a factor in 70 of the 166 exonerations (42 percent) it tracked in 2016. The practice also gives the government an unfair advantage at trial, hampering the accused’s ability to mount a defense. That is what Justice Elena Kagan believed happened in the Fuller case. In a dissent joined by Justice Ruth Bader Ginsburg, she wrote: “The Government avoided the case it most feared—the one in which the defendants acted jointly to show that a man known to assault women like Fuller committed the murder.”
Withholding evidence also erodes the community’s faith in the justice system. As the Supreme Court has stated, the prosecutors’ “interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” When a prosecutor hides evidence, the public loses faith that he or she is fulfilling that role.
Until judges intervene and start reversing convictions, there is little incentive for prosecutors to change. That was Kozinski’s theory: “When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition.”
But the Fuller case suggests that, as long as prosecutors promise to do better, the Supreme Court is willing to give them a free pass.