Constitutional law - Ninth Circuit effectively precludes future findings of Brady violations in the absence of a conviction - Smith v. Almada.

• Author: Burke, Andrew J.

Constitutional Law--Ninth Circuit Effectively Precludes Future Findings of Brady Violations in the Absence of a Conviction--Smith v. Almada, 640 F.3d 931 (9th Cir. 2011)

When analyzing a claim under 42 U.S.C [section] 1983 that the government withheld exculpatory evidence from a criminal defendant, courts typically use the Fifth or Fourteenth Amendment's due process standard as articulated in the iconic 1963 case of Brady v. Maryland. (1) In Smith v. Almada, (2) the Court of Appeals for the Ninth Circuit considered whether a police officer's failure to disclose exculpatory evidence violated the plaintiffs due process right to a fair trial--thereby exposing the officer to civil liability under Brady--where the plaintiff had spent over seventeen months in jail but had never been convicted. (3) The Ninth Circuit initially answered that question very broadly, holding that relief under Brady is unavailable entirely in the absence of a conviction. (4) On plaintiff's motion for rehearing, however, the court superseded its original decision, transcribing the former majority's opinion into a special concurrence, which, because of the court's maneuverings, effectively remains as Smith's de facto holding. (5)

On February 13, 2003, an arsonist set fire to the inside of Simply Sofas, a furniture and consignment shop owned by Marilyn Nelson, destroying the store and much of its inventory to the tune of $2.8 million. (6) Because of his familiarity with four recent arson attacks near Simply Sofas, Sergeant Robert Almada of the Santa Monica Police Department assumed the role of lead investigator and immediately focused his efforts on one of Nelson's former customers, Anthony Smith. (7) After obtaining an arrest warrant, Sergeant Almada took Smith into custody and charged him with arson. (8) The State of California tried Smith twice, with both cases resulting in a mistrial. (9) Despite "strong inferences" of Smith's guilt, the prosecution twice failed to convince the jury of his participation in the arson beyond a reasonable doubt, prompting the trial judge to dismiss the case at the end of the State's second attempt. (10) Having spent over seventeen months in jail from arrest to dismissal, Smith filed a civil lawsuit against Sergeant Almada under 42 U.S.C. [section] 1983 for, among other things, failure to disclose exculpatory evidence in violation of Smith's due process rights under Brady v. Maryland. (11)

Smith's Brady claim hinged on Sergeant Almada's nondisclosure of two key items of evidence: the four previous fires and Marilyn Nelson's demonstrably false testimony that she had witnessed Smith gloating outside the charred remains of her store several months after the fire. (12) In granting Sergeant Almada's motion for summary judgment, the district court found that Almada was not liable under Brady because the evidence that was allegedly withheld "would not have materially affected the outcome of the prosecution." (13) On appeal, the Ninth Circuit expanded significantly the district court's ruling, holding that a Brady-based claim under [section] 1983 could never succeed unless the plaintiff had actually been convicted at his criminal trial. (14) On Smith's motion for rehearing, however, Circuit Judge Ronald Gould reconsidered his support for the court's sweeping prohibition, and the three-judge panel ordered the withdrawal of its original opinion. (15) In its superseding opinion, the Ninth Circuit held that the undisclosed evidence forming the basis of Smith's claim failed to meet Brady's materiality standard, technically removing any precedential weight from its wholesale prohibition of Brady claims absent a conviction. (16) Nevertheless, because both concurring judges wrote unambiguously of their intentions to issue the same holding in future cases, the Ninth Circuit Court of Appeals became, in effect, the fourth federal circuit to prohibit Brady claims under [section] 1983 in the absence of a criminal conviction. (17)

During Reconstruction, the Forty-Second Congress passed the Civil Rights Act of 1871 to provide recently freed slaves with a civil remedy for the systematic, state-sponsored deprivation of their constitutional rights. (18) Now codified at 42 U.S.C [section] 1983, the Act has become the principal statutory basis for relief from the denial of any citizen's constitutional rights by those acting "under color of" law. (19) In the landmark case of Brady v. Maryland, (20) the United States Supreme Court recognized that a criminal defendant's constitutional right to a fair trial is deprived when the government withholds exculpatory evidence, thereafter imposing on the prosecution a duty to disclose such evidence as an inseparable component of that right. (21) Commonly referred to as "Brady material" or "Brady evidence," the doctrine underwent significant expansion and development in the decades following its inception. (22) Nevertheless, the Supreme Court has yet to consider Brady's application to civil claims arising under [section] 1983, thus far declining to articulate any meaningful framework for determining the scope of civil liability for law enforcement agents failing to disclose exculpatory evidence. (23) Numerous lower court decisions on the matter have therefore produced contradictory holdings and widely inconsistent analyses of some of the most critical issues involved. (24)

In its criminal procedure jurisprudence since Brady, however, the Supreme Court has developed a robust body of case law in an effort to broaden both the nature and scope of the government's disclosure obligations under Brady. (25) In the 1976 case of United States v. Agurs, (26) the Court significantly expanded the prosecution's responsibilities under the Brady doctrine by imposing an affirmative duty on the government to disclose material exculpatory evidence, even if the defense had never requested disclosure. (27) Additionally, in Kyles v. Whitley, (28) a 1995 habeas decision, the Court extended Agurs to include the disclosure of all exculpatory evidence known by anyone "acting on the government's behalf" in a criminal investigation, including police officers. (29) Although Kyles seems to suggest that the result of a criminal proceeding determines whether a Brady violation has occurred, the Court's evaluation in Kyles and subsequent cases has conformed largely to a balancing of public and private interests typical of traditional procedural due process analysis. (30) But despite its consistent, albeit implicit, interest-balancing throughout the Brady line of cases, the Court has yet to explicitly characterize Brady violations as violations of a criminal defendant's right to procedural due process, an anomaly that has undoubtedly contributed to the lack of uniformity within Brady's corner of constitutional jurisprudence. (31)

The lower federal courts have generally held police officers liable under [section] 1983 for the deliberate suppression of exculpatory evidence. (32) Nevertheless, the lower courts still struggle to apply consistently Brady's criminal law principles to civil actions in which plaintiffs seek relief for deprivation of their constitutional rights by the police. (33) Although an officer's withholding of Brady evidence has typically been held actionable under [section] 1983 as a denial of due process when nondisclosure contributes to the defendant's conviction, the circuits are split when no conviction results. (34) A minority of courts hold that an acquitted defendant has no constitutional claim, and is therefore due no further process, regardless of the amount of time he has spent in jail before or during trial. (35) Doctrinal disagreement among the circuits exists mainly because the Supreme Court's Brady jurisprudence is unclear both as to the specific nature of the constitutional right violated by the failure to disclose exculpatory evidence, and as to the proper constitutional analysis associated with a deprivation of that right. (36)

In Smith v. Almada, the Ninth Circuit considered whether a police officer's suppression of exculpatory evidence constituted a Brady violation where the plaintiff had been incarcerated for over seventeen months through two mistrials but ultimately escaped conviction. (37) Relying heavily on case law from other circuits and taking a "results-oriented" approach to the Brady analysis, the Ninth Circuit concluded that suppression of exculpatory evidence could never constitute a denial of due process because a trial resulting in an acquittal cannot be considered unfair. (38) Although the court briefly acknowledged that the purpose of Brady was to "ensure a fair trial," the court narrowly interpreted the Brady bloodline by concluding that a "reasonable probability of a different result" referred only to the situation in which the result happened to be a conviction. (39)

Confronted with the choice between creating a bright-line rule through a "cursory analysis" of legal and policy arguments on the propriety of allowing Brady violations without a conviction, or attempting to extrapolate doctrinally correct answers from incongruent precedent, the Ninth Circuit chose incorrectly in manufacturing a de facto bright-line rule. (40) In the constitutional arena, Brady and its progeny symbolize the Supreme Court's ongoing effort to preserve the virtues upon which the criminal justice system is based. (41) But because the Court has never clarified whether the due process standard of Brady is procedural or substantive, the Ninth Circuit wrongly assumed that justice always prevails when a criminal...