July 16, 2017
Turner v. United States: Exculpatory Evidence Problems Continue
In Turner v. United States,1 decided June 22, 2017, the Supreme Court revisited the due process requirement that prosecutors provide defendants with exculpatory evidence first established in Brady v. Maryland.2
Seven defendants convicted of murder brought their case to the Supreme Court and argued that they were denied due process as a result of the prosecution’s failure to disclose exculpatory evidence in violation of Brady. The government had charged the seven, as well as others, with the kidnaping, robbery, and murder of Catherine Fuller in the District of Columbia in 1984. The government presented an array of evidence at trial, including testimony by admitted participants in the attack on Fuller and testimony by independent witnesses.
Two government witnesses, Calvin Alston and Harry Bennett, confessed to participating in a group attack and agreed to testify for the government in exchange for leniency. Other witnesses corroborated their testimony and identified particular defendants. For example, Melvin Montgomery testified that he was in a park among a group of people when he heard someone say they were “going to get that one,” and saw one defendant pointing to Fuller and other defendants go across the street towards her.3 And Maurice Thomas, 14 years-old at the time of the attack and familiar with many of the defendants, testified that he saw the attack, identified some of the defendants as attackers, and testified that he overheard another defendant say that they “had to kill her.”4 The prosecution also relied upon one defendant’s videotaped statement explaining his participation among a larger group of attackers. None of the defendants testified, and the defense did not attempt to counter the government’s claim that Fuller was killed in a group attack. The jury apparently believed the government witnesses at it convicted the defendants. The D.C. Court of Appeals affirmed the convictions in 1988.
Not until 2010 did the defendants pursue post-conviction relief after they learned that some evidence in the prosecution’s possession had not been shared with them before or during trial. During the post-conviction proceedings, the prosecution shared its complete file with the defendants and they learned of the evidence that was not provided to them. The defendants learned of the following facts:
- The witness who discovered Fuller’s body in an alley garage had testified at trial that while he was waiting for the police to come to the garage he saw two men, including one who had a bulge under his coat, run into the alley and stop near the garage before running away when the officers approached. One defense counsel had requested the identities of the two men at trial, but the government declined to reveal them. The prosecution’s file revealed that one of the men, James McMillan, lived in house which opened in the back to a connecting alley, and was arrested for beating and robbing two women in the neighborhood in the weeks following Fuller’s murder but before the defendants’ trial. In addition, the defendants learned that seven years after their trial that McMillan had robbed, sodomized, and murdered a young woman in an alley.
- Another witness testified that he and three others were walking through the alley when they heard several groans coming from the garage. Another member of the group heard moans, while the other two heard nothing.
- Ammie Davis, who was arrested for disorderly conduct after the murder, told police that she had seen James Blue beat Fuller to death in the alley. Shortly thereafter she said that she had only actually seen Blue grab Fuller and push her into the alley. Shortly before defendants’ trial, Blue murdered Davis in a drug dispute unrelated to Fuller.
- Several arguable pieces of impeachment evidence were also found. One witness who said she had heard a defendant admit his involvement in robbing Fuller later told police that she actually had not heard the statement and just went along with another witness. The other witness agreed that the first witness was not present when the defendant made his admission and told a prosecutor she had been high on PCP during a previous interview. Yet another witness said that a detective had questioned her “hard” and that he vacillated about what she saw. Finally, Maurice Thomas’ aunt told authorities she did not recall Maurice telling her about what he testified to.
Based on this evidence, the defendants contended that had it been disclosed they could have argued at trial that Fuller was not killed in a group attack but was killed by one or two non-defendants.
Justice Breyer wrote for the majority and began his analysis of the Brady line of cases by noting that the government agreed that the government had withheld evidence and that the evidence was favorable to the defendants. But, the reason that the government did not actually violate Brady was anticipated in the very first sentence of the majority opinion:
In Brady v. Maryland, 373 U. S. 83 (1963), this Court held that the government violates the Constitution’s Due Process Clause “if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.”5
The key word is material, which proves to be the key to virtually all Brady cases.
The majority emphasized that disclosure of exculpatory evidence is important to guarantee a fair trial and that disclosure is required even if it reduces the government’s chances of winning. They further noted that the government conceded “as it must” that Brady is concerned with the justice of a finding of guilt and that the government’s interest in a criminal prosecution is to see that justice is done not to win at all costs, and seemed gratified that “the Government assured the Court at oral argument that subsequent to petitioners’ trial, it has adopted a ‘generous policy of discovery’ in criminal cases under which it discloses any ‘information that a defendant might wish to use.’”6
But the government’s assurance going forward did not help the Turner defendants because the majority held that the undisclosed evidence was not material. In prior cases, the Court had said that evidence is material “when there is a reasonable probability,” and that “‘a reasonable probability of a differ[ed] result’ is one in which the suppressed evidence ‘undermines confidence in the outcome of the trial.’”7
The majority reasoned that “the issue before us here is legally simple but factually complex” because it is not difficult to state the materiality test but it is difficult to apply it to the entire factual trial record.8 It concluded that the undisclosed evidence “is too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards.”9 It explained as follows:
McMillan’s guilt (or that of any other single, or near single, perpetrator) is inconsistent with petitioners’ guilt only if there was no group attack. But a group attack was the very cornerstone of the Government’s case. The witnesses may have differed on minor details, but virtually every witness to the crime itself agreed as to a main theme: that Fuller was killed by a large group of perpetrators.10
Justice Kagan, joined by Justice Ginsburg, dissented. She hypothesized that the trial strategy for each defendant might have been to “accept that the attack occurred almost exactly as the government describes—contending only that he wasn’t part of the rampaging group,” and that had the defense been provided the undisclosed evidence “all of the accused [might] adopt a common defense, built around an alternative account of the crime . . . that someone else perpetrated the murder,” and might have disputed the government’s gang attack theory and challenged the credibility of its investigation.11 Accordingly, while she conceded that the majority’s conclusion about materiality is not “indefensible,” Justice Kagan argued that it was wrong because “[w]ith the undisclosed evidence, the whole tenor of the trial would have changed.”12
The reality of Turner is that it adds nothing new of substance to the Brady line of cases. It illustrates, much as prior cases did, the difficulty of assessing the importance of evidence when it is disclosed after a trial has concluded. A reviewing court must attempt to understand the strategy employed at trial by defense counsel, to predict whether and how that strategy might have changed if the defense had received the undisclosed evidence, and how a jury might have reacted to the defense presentation. The reviewing court must also consider whether the government’s evidence, which appeared so strong at trial, would have appeared nearly as strong if the defense had the benefit of the undisclosed evidence.
Many prosecutors who believe in the concept of fair trials have leaned toward open file discovery where they share the evidence they have with the defense prior to trial. Open file discovery can greatly reduce the likelihood that a Brady claim will be made and that a reviewing court will be called upon to make the difficult decision as to whether undisclosed evidence was material.
Stephen A. Saltzburg is the Wallace and Beverley Woodbury University Professor of Law and Co-Director of the Litigation and Dispute Resolution Program at The George Washington University Law School. Professor Saltzburg was appointed by The Chief Justice of the United States as a member of both the Advisory Committee on the Federal Rules of Criminal Procedure and the Advisory Committee on the Federal Rules of Evidence.
- Turner v. United States, No. 15–1503, slip op. (U.S. June 22, 2017).
- 373 U. S. 83 (1963).
- Turner, slip op. at 5.
- Id. at 1 (quoting Smith v. Cain, 565 U.S. 73, 75 (2012) (emphasis added) (summarizing Brady holding)).
- Id. at 10.
- Id. at 11.
- Id. at 12.
- Id. at 1 (Kagan, J., dissenting).
- Id. at 2.
Recommended Citation Stephen A. Saltzburg, Response, Turner v. United States: Exculpatory Evidence Problems Continue, Geo. Wash. L. Rev. On the Docket (July 16, 2017), http://www.gwlr.org/turner-v-united-states/.