Tag Archives: reasonable probability

7th Circuit Reverses Drug Convictions for Brady Violations – Update for August 31, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


hide170831There is perhaps no more pernicious problem in federal criminal justice today (if not criminal justice in general) than the ubiquity of Brady violations.

“Brady,” of course, is derived from Brady v. Maryland, and is the rule that the government has the duty to turn over to the defendant all evidence known to it that may be exculpatory, including not just substantive evidence (like an interview with a busload of nuns who saw the defendant in church 20 miles from the scene of the crime at the time the offense was being committed) but also impeachment evidence (like a secret agreement with a government witness that he’ll be let out of jail if he testifies against the defendant). The nature of the Brady right may have never been explained better than by 7th Circuit Court of Appeals Judge Diane P. Wood, who opened today’s decision with this:

The Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), might seem a bit strange to someone who thought that the adversary system in criminal cases allows each side to adopt a “no holds barred” litigation stance. But that is not the way the Constitution structures criminal procedure. From the Fifth Amendment’s privilege against compulsory self-incrimination, to its double-jeopardy clause, to the rights conferred by the Sixth Amendment both to be informed of the nature and cause of the accusation and to be confronted with witnesses, to the due process right to be convicted only upon proof beyond a reasonable doubt, the system is replete with safeguards for an accused.

The obligation of the prosecution to turn over any favorable evidence to the defendant, first announced in Brady, is one aspect of the due process right.

Criticism of prosecutorial mischief when it comes to revealing exculpatory evidence has grown dramatically in the last few years. From the 3rd Circuit’s tome of Brady violations in Dennis v. Sec’y, DOC, to the 2nd Circuit upholding an $18 million award to a man convicted because of a Brady violation, to the Supreme Court’s wrestling with Brady in last June’s Turner v. United States decision, Brady violations have been hot.

In fact, a Brady issue from the State of Washington led to an unusual judicial squabble in the 9th Circuit when Judge Alex Kozinski blasted state officials for not disciplining errant prosecutors for what he saw as an egregious Brady violation, an aside that drew spirited disagreement from fellow jurists (and was later withdrawn by the Court).

The litany of Brady “hide and seek” abuses – where the government hides evidence and implicitly challenges the defense to find it – has been well chronicled elsewhere in popular media, professional publications and scholarly journals. The costs exacted by Brady violations on the integrity of the process, lives of wrongly-convicted defendants, and on wasted trials and retrials – all because of prosecutorial boneheads – are high. The latest judicial expense laid low by Brady is a long, expensive trial of two drug defendants in Chicago.

Antonio Walter and Kenneth Bell were tried for being heroin supplier kingpins managing an open-air drug mart at various street corners on Chicago’s west side. The case was far from airtight: It rested on evidence that Bell was inexplicably wealthy, on physical samples of heroin seized from organization members, and expert testimony by law enforcement about drug trafficking.

As described by Judge Wood, “conspicuously absent was any direct evidence tying either Walter or Bell to the alleged conspiracy. Because there were no controlled buys or recorded incriminating statements, the government’s case hinged on witness testimony. Seven witnesses identified Walter as a participant in the drug organization; five of them fingered Bell as the drug supplier. The problem was that these witnesses, unsurprisingly for this type of case, were hardly model citizens. Their knowledge of the defendants’ involvement in the organization stemmed from their own participation. All seven had been charged with or convicted of drug crimes, and six of them were testifying pursuant to agreements that held out the possibility of reduced sentences. As the defense was at pains to point out, personal involvement, lengthy criminal histories, and a desire to secure lenient treatment all raised major credibility concerns.”

snitch161004One of the witnesses, a guy named Forrest, testified pursuant to a deal that cut his 30-year sentence by two thirds. He initially offered only lukewarm support for the government’s case. He said that he had seen Walter in the room while heroin was being prepared for sale, but he did not remember Walter’s actively participating. Bell, he said, was rarely present, and he did not recall how often Bell supplied heroin. Unsurprisingly, Forrest’s memory improved markedly after he spoke with the prosecution during a lunch break. After a sandwich and a briefing, Forrest suddenly recalled that Bell dropped off heroin to Walter around three times a month, and that cash from the day’s sales was usually handed over to Walter.

Another witness, Nesbitt, came near the end of the case. He was reticent on the stand, but in the hallway, he told an FBI agent that Forrest was still packaging and selling heroin on the same street corner, this time for a new supplier named “K-Mart.” This directly contradicted Forrest’s testimony that he had given up drug sales while on bond. The agent told the prosecutor what Nesbitt had said, but the prosecutor said nothing to the defense about Nesbitt’s revelations until months after the trial.

Pat Brady - Roy Rogers' comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.
Pat Brady – Roy Rogers’ comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.

To succeed on a Brady claim, a defendant has to show that some evidence was suppressed, that it was favorable to the defendant, and it was material to the defense. As is usually the case, everyone agreed the evidence was suppressed and it was favorable. The battle was over whether it was material.

Brady evidence is material if there is a reasonable probability that, had it been disclosed to the defense, the result of the proceeding would have been different. The government argued the evidence was not material because Forrest had already been pretty shown to be a scumbag, and anyway, the rest of its case was so strong that the new evidence would not have mattered.

The Circuit said that “the fact that Forrest is an admitted lifelong drug dealer with at least two controlled-substance convictions (to say nothing of his firearm convictions) does not undermine the incremental value of this impeachment evidence.” The evidence went to whether he was lying on the stand. The Court pointed out that Forrest’s claim that he had given up his drug-dealing ways “would enhance the witness’s credibility with the jury, if one thinks that jurors are more likely to trust a reformed criminal than an active one. Yet the implication is flipped if the redemption story turns out to be a lie.”

nonewfile170831What’s more, the evidence cut to the heart of the case. Nesbitt’s comment revealed that Forrest was selling on behalf of a new supplier named “KMart.” If the jury thought that KMart had taken over this area, and if it further believed that there was room for only one supplier, it might have found that Bell could not have been that person. Nesbitt and Forrest had been selling on those corners before Bell’s arrival, and they continued to sell after Bell’s arrest. While the Court admitted “that is far from conclusive evidence pointing to Bell’s non-involvement… it could have been one piece of a puzzle.

The Circuit warned against employing a “but for” analysis. “We do not need to find, however, that “but for” the failure to disclose Nesbitt’s impeachment evidence, the defendants would not have been convicted. The standard is only whether there is a reasonable probability of a different outcome. We conclude that the evidence meets this standard.”

prosmisconduct170831The Court observed that if the jury had learned of Forrest’s ongoing criminal conduct, “it might have doubted his testimony that he had ‘seen the light.’ Knowing that he was lying under oath about his using and dealing in drugs, the jury might reasonably have supposed that he was lying about the criminal activities of the defendants as well.” While the court conceded that the government still could have the defendants if the defense had been told of Nesbitt’s statement, it said “but the standard, once again, is only a ‘reasonable probability’ that disclosure would have changed the result of the proceeding.”

United States v. Walter, Case No. 16-1325 (7th Cir., Aug. 29, 2017)

– Thomas L. Root

Defendant Who Could Not Win at Trial Can Still Argue Bad Plea Advice – Second Update for June 23, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


If a post-conviction petitioner argues in a 28 USC 2255 motion that he or she would never have taken a plea deal if defense counsel had done a competent job of explaining it, the courts have held that the prisoner must show (1) the advice was deficient (either bad or missing altogether); and (2) but for the bad representation, he or she would have rejected the plea and gone to trial. This is the Hill v. Lockhart test, from a 1985 Supreme Court decision.

pleading170502A prisoner might have a lot of reasons for going to trial that have nothing to do with whether he or she can win. But over the years, the government has convinced courts that if the petitioner had no reasonable chance of winning at trial, he or she cannot prove that but for the lousy advice, he or she would have rolled the dice with a jury.

Korean-American restaurant owner Jae Lee was in that boat. Jae had moved to the United States from South Korea with his parents when he was 13. In the 35 years he spent in this country, Jae has never returned to South Korea, but neither had he become a U. S. citizen, living instead as a lawful permanent resident.

In 2008, federal law enforcement found drugs, cash, and a loaded rifle in Jae Lee’s house. Jae admitted that the drugs were his, and a grand jury indicted him. His attorney talked pleas with the Government. During the plea process, Jae repeatedly asked his attorney whether he would face deportation; his attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison.

plea161116The attorney was dead wrong. Jae was subject to mandatory deportation as a result of the plea. When Jae learned of this consequence, he filed a 2255 motion, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing, both Jae and his lawyer testified that “deportation was the determinative issue” to Jae in deciding whether to accept a plea. The attorney acknowledged that although Jae’s defense to the drug charge was really weak, if he had known Jae would be deported upon pleading guilty, he would have advised him to go to trial anyway.

The district court denied the 2255, holding that while Jae Lee’s counsel had performed deficiently, Jae could not show that he was prejudiced by his attorney’s erroneous advice. The 6th Circuit agreed.

Today, the Supreme Court reversed, 6-2, in a substantial victory for Jae. The Supremes noted that the basic rule since Hill v. Lockhart has been that when a defendant claims his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

The problem with Government’s per se rule that a defendant without a viable defense cannot show prejudice from the denial of his right to trial, Chief Justice Roberts wrote, is that “categorical rules are ill suited to an inquiry that demands a case-by-case examination of the totality of the evidence.” What’s more, the Government overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.

hailmary170613The Court said the decision whether to plead guilty involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Jae, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial.

The Government argued that “a defendant has no entitlement to the luck of a lawless decisionmaker,” quoting Strickland v. Washington. The Court said that the “lawless” quote was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent.

The Supreme Court said that district courts should not upset a plea solely because of after-the-fact assertions by a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. Here, Jae has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.

The Government argued that Lee cannot “convince the court that a decision to reject the plea bargain would have been rational under the circumstances, since deportation would almost certainly result from a trial. But the Chief Justice was not willing to let courts decide that “that it would be irrational for some-one in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation.”

We think this decision will have a significant effect on 2255 petitioners seeking to set aside an incompetently-advised plea.

Lee v. United States, Case No. 16-327

– Thomas L. Root