SCOTUS to hear arguments on Brady v. Maryland issue

 On March 29, 2017, the Supreme Court will hear oral arguments in the consolidated cases of Turner v. United States and Overton v. United States. The Court does not rule upon questions pertaining to prosecutorial misconduct and the State’s duty to disclose exculpatory evidence very often, wrote Bidish Sarma, an attorney who represents individuals sentenced to death or LWOP, for the American Constitution Society. 
When it does, it tends to rely on decisions handed down decades ago despite evidence that courts struggle to enforce the relevant principles consistently and appropriately. The Turner-Overton matter thus presents both an opportunity and a challenge to the justices. The opportunity? An uncommon occasion upon which it can clarify principles and curtail the confusion that permeates lower courts’ opinions. The challenge? Moving beyond the facts presented and penetrating the deeper questions that reside beneath the surface.   

The question presented by these cases is a relatively narrow one: whether the Petitioners’ convictions must be set aside under Brady v. Maryland. That question is one the Court itself generated; the Petitioners initially asked the Court to resolve thornier questions that sometimes arise when the State fails to turn over all exculpatory evidence before trial. While it appears that SCOTUS will most likely take its well-worn minimalist approach in the Bradydue process context here, several pleadings demonstrate that deeper, systemic concerns warrant attention. 

 To recap the Brady test courts use post-trial: a new trial must be granted where the defendant has proven: (1) suppression—that the State actually failed to turn over the information at issue; (2) favorability—that the information would have helped the defendant; and (3) materiality (also known as prejudice)—that, had it been disclosed before the trial, there was “any reasonable likelihood” it could have “affected the judgment of the jury.” (Wearry v. Cain (2016) 

The Solicitor General argued in Turner and Overton. Although there is no dispute that the prosecution failed to turn over several categories of exculpatory evidence, the Government’s brief on the merits states, “[t]he government complied with is obligations under Brady v. Maryland, 373 U.S. 83 (1963). Nondisclosures violate Brady only when withheld information is both favorable and material.” See how easily the Government eludes that distinction between a Brady obligation and a Brady violation? In the first two sentences in the summary of its argument, the Government exploited a jurisprudential problem that the justices should address.

The Turner-Overton case is likely to be another in the line that reminds lower courts that materiality is not an impossible hurdle for defendants to overcome. Yet, it has the potential to be much more. There should be no doubt that much more is needed. Prosecutorial misconduct pervades the criminal justice system. Despite Brady’s promise, the malleable materiality standard has been bent in the State’s favor. If the Court does not change the standard itself, a finding of materiality in Turner-Overton may provide temporary assistance, but a band-aid will not suffice where an amputation is needed.

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