Fourth Circuit Primer on Brady Violations
On August 26, 2020 the Fourth Circuit Court of Appeals issued one of its most significant decisions addressing the Court’s jurisprudence in connection with the Supreme Court’s views on the improper withholding of favorable evidence from a defendant in criminal cases. Since 1963 in Brady v. Maryland, 373 U.S. 83 (1963) the Supreme Court has steadfastly made it clear that the government’s withholding of evidence favorable to a criminal defendant can be a violation of the Due Process clause of the United States Constitution. This is a blackletter legal principle that the Supreme Court has expanded upon over the intervening years in a number of subsequent decisions.
However, as this legal principle has evolved, some courts have varied from this principle depending on the facts of particular cases. In Long v. Hooks, Fourth Circuit Case No. 18-6980 (August 26, 2020), the Fourth Circuit in a nine to six en banc opinion slated for publication reversed and vacated a district court decision out of the Middle District of North Carolina which dismissed Long’s habeas petition filed in that court seeking a determination that his state court conviction was unconstitutional. Long pursued relief in Federal court under 28 U.S.C. §2254 which enables prisoners convicted under state law to challenge their convictions under certain limited circumstances.
The facts giving rise to Long’s conviction are as horrible as anyone can imagine both from the rape victim’s viewpoint and Long’s viewpoint. The Fourth Circuit majority decision made it clear that Long has likely been wrongfully convicted and has spent the last 44 years in a North Carolina state prison serving two life sentences. There are aspects of this decision that bring needed clarity to those within the Fourth Circuit who wish to challenge their state or Federal convictions under Federal habeas corpus remedies.
In 1976 the victim of a horrible rape and burglary which occurred after someone broke into the victim’s home survived the rape and assisted law enforcement in identifying her attacker. The manner in which the police sought to have the perpetrator identified was questioned even considering the identification procedures customarily used in the seventies. The victim identified the rapist as a black man and described several aspects of the perpetrator’s clothing, skin color and voice. Although the victim could not identify the perpetrator from a pictorial lineup, she did identify Long as the perpetrator two weeks after the crime in a courtroom where police had requested the victim to attend and where they were aware that Long would be appearing in a separate misdemeanor proceeding. She positively identified Long at that point.
But the Fourth Circuit’s reversal did not turn on the suggestive identification process used compared to the Brady violations identified in both the state and Federal habeas corpus proceedings although the Court was highly critical of those procedures. Focusing on the Supreme Court’s subsequent decision in its Brady line of cases, Kyles v. Whitley, 514 U.S. 419 (1995), the Fourth Circuit determined that the state courts that had reviewed the impact of the suppression of favorable evidence from Long’s defense applied an incorrect standard to determine if the verdict may have changed if the withheld evidence had been disclosed. The state courts required Long to demonstrate the withheld evidence would have changed the result at trial “by a preponderance of the evidence,” rather than asking him to demonstrate a “reasonable probability of a different result.” (“[The] state court’s conclusion described a preponderance burden, [which] directly contradicts Supreme Court precedent.”); see Kyles, 514 U.S. at 434 (“[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.”)
The Court also clarified and distinguished the difference between “favorable” evidence and “exculpatory” evidence as those terms are used in the Kyles decision. The Court seemed to indicate that these terms are significant in the context of weighing the materiality of all favorable evidence withheld from a defendant. For example, the Court stated:
“It is clear the [state] [c]ourt had an improper view of favorable evidence, conflating favorable evidence with exculpatory evidence. For example, the [state] [c]ourt stated that Petitioner did not show “the claimed evidence was withheld by the State, that it was exculpatory, or that the result likely would have been different with the claimed evidence.” But Kyles expressly rejects the notion that evidence must be “impeachment or exculpatory evidence” in order to be “favorable.” Rather, evidence is favorable under Brady if it would have “some weight” and a “tendency [to be] favorable” to Petitioner.”
The harmful cumulative impact of the suppressed evidence in Long derived from the state’s failure to reveal the following evidence:
- Impeachment evidence revealing that the chief state investigator committed perjury during his trial testimony;
- Impeachment evidence revealing that a second state investigator was less than forth coming on the witness stand;
- Failure to disclose the initial existence of a rape kit that was apparently lost during the investigation;
- Failure to reveal that a number of pieces of physical evidence were submitted to the state crime laboratory for analysis that suggested Long was not the perpetrator due to the absence of any forensic matches to hair, paint, fingerprint and other evidence.
In evaluating all of the suppressed evidence, the Fourth Circuit focused on the principle that “Kyles teaches that, in assessing the significance of withheld evidence, ‘however the evidence would have been used,’ we ask if it “would have had some weight and its tendency would have been favorable” to the defendant.” 514 U.S. at 451. (emphasis added).
The concurring opinion, authored by Judge Thacker, also made significant comments suggesting that petitioners challenging their convictions under the Court’s habeas jurisprudence should not have to satisfy the much higher burden of proof mandated by Congress when it enacted the requirements that must be met by a petitioner seeking to raise Brady claims after filing an unsuccessful initial habeas petition under AEDPA by bringing a second or successive habeas petition in Federal court:
“Before closing, I add my voice and vote in this en banc proceeding to overturn our decision in Evans v. Smith, which held that Brady claims may be subjected to the strictures of “second or successive” petitions. 220 F.3d 306, 309 (4th Cir. 2000). In my view it is an extraordinary fact that Mr. Long is subjected to the § 2244(b)(2) gateway at all. That statute requires a habeas petitioner filing “a second or successive habeas corpus application” to meet the exacting standards of this gateway. 28 U.S.C. § 2244(b)(2). Mr. Long has not squarely challenged the applicability of this rule to his petition in this appeal.” Long at 83-84.
Petitioners proceeding to challenge their convictions by raising subsequently discovered Brady claims should challenge the applicability of requiring this higher burden of proof included in AEDPA.