Death or declaration?

• Author: Howton, Ty
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Kyles v. Whitley, (1) the Supreme Court granted certiorari to determine whether police misconduct resulted in an innocent man's conviction and death sentence. Kyles claimed that, contrary to the findings of lower courts, the prosecution withheld evidence "material" to his defense in contradiction to United States v. Brady(2) and United States v. Bagley.(3) The Supreme Court found that the Fifth Circuit mistakenly applied the Brady "materiality" standard and that there was a "reasonable probability" that the evidence withheld from Kyles would have undermined the jury's verdict.(4) Thus, the Court granted a new trial to reconsider the defendant's conviction and death sentence.(5)

   This Note argues that the Supreme Court did not grant certiorari to review the Fifth Circuit's application of the "materiality" standard as it claimed, but to consider whether the lower court had sentenced an innocent man to death. By using an illusory "legal error" to justify certiorari rather than the Court's true concerns over imposition of the death penalty, the Court has confused the "materiality" standard for future courts.

   This Note further argues that Justice Scalia and the dissent incorrectly asserted that the Court was barred from granting certiorari by the "two court rule" and 28 U.S.C. [sections] 2254. Moreover, by arguing the "two court rule" and 28 U.S.C. [sections] 2254 apply to "materiality" determinations, the dissent exacerbated a circuit court split over the proper standard of review.

2. BACKGROUND

   1. THE COURT'S INSTITUTIONAL ROLE IN GRANTING CERTIORARI

      The Supreme Court obtains its power to decide cases from Article III of the United States Constitution.(6) Article III of the Constitution grants the Court authority to decide all cases or controversies within its jurisdiction.(7) However, the Court's most important role in the American judiciary is to consider cases whose resolution can be expected to provide useful guidance to lower courts confronted with similar legal issues.8 Under this institutional role, the Court generally does not grant certiorari to review a case if it would have no legal significance apart from the settlement of the case or controversy.(9) Furthermore, the Court must, to stay within this institutional role, grant certiorari to decide only one or two narrow issues presented by the parties in dispute.(10)

      A departure from this institutional role is normally considered inappropriate for the Supreme Court because it requires the Court to function as a court of errors and appeals.(11) A court of errors and appeals searches the record of every case that comes before it for legal or factual errors.(12) Its primary goal in searching each case for errors is to do justice in that particular case.(13) Generally, the errors and appeals model is thought to be inappropriate for the Supreme Court because it runs counter to traditional conceptions of the Supreme Court's role, it is a practical impossibility, and it does not efficiently or effectively prevent unjust executions.(14)

      Statutes and case law ensure that the Supreme Court comports with its customary institutional role. Two examples of such law are 28 U.S.C. [sections] 2254(d) and the "two court rule."(15) Section 2254(d) requires reviewing courts to defer to lower court findings of fact in habeas corpus(16) proceedings.(17) Under the statute, reviewing courts can only grant certiorari if one of eight statutory exceptions is established by the courts(18) or if the review is not of a finding of fact, but a mixed issue of law and fact or an issue simply of law.(19) Similarly, the "two court rule" prevents the court from reviewing factual findings by lower courts(20) when two lower courts come to the same conclusion upon making a finding of fact.(21) However, the purpose is again the same-- to keep the Supreme Court involved in resolving confusing legal issues rather than individual claims of injustice.(22)

   2. THE BRADY RULE

      In the United States, the Constitution ensures a criminal defendant's right to a fair trial.(23) The Due Process Clauses of the Fifth and Fourteenth Amendments "require ... that [government] action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as 'law of the land."(24) A prosecutor can violate the Due Process Clause by suppressing exculpatory or impeaching evidence that is material to his guilt or punishment.(25) When a prosecutor fails to disclose evidence, the United States Supreme Court relies on Brady v. Maryland(26) and its progeny to determine whether a defendant's due process rights are compromised.

      1. Historical Predecessors to the Brady Rule

         As the Court noted in Kyles v. Whitley, "[t]he prosecution's affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation ...."(27) In 1935, the Supreme Court began addressing misconduct in cases where prosecutors knowingly used perjured testimony to convict criminal defendants.(28) In Mooney v. Holohan,(29) a labor leader was convicted of first degree murder and sentenced to life imprisonment.(30) The defendant applied for a writ of habeas corpus, claiming that the prosecutor obtained the conviction by using false testimony.(31) After being denied a writ of habeas corpus by the District Court of California and the Ninth Circuit, the defendant appealed to the Supreme Court.(32) The defendant's request was denied because he had not exhausted his remedies in state court;(33) however, in dicta the Court found the knowing use of false testimony by the prosecutor amounted to a violation of due process.(34)

         In 1942, the Supreme Court, in Pyle v. Kansas,(35) reaffirmed the principle set forth in Mooney. In Pyle, the defendant was convicted of murder and robbery.(36) Subsequently, he was sentenced to a life term for the murder and ten to twenty years for the robbery conviction.(37) After his application for a writ of habeas corpus was denied by the Supreme Court of Kansas, Pyle sought review by the United States Supreme Court.(38) The defendant alleged that he was convicted because the prosecution knowingly used perjured testimony and deliberately did not disclose favorable evidence.(39) The defendant argued that the nondisclosure of evidence violated his constitutional right to a fair trial.(40) The Supreme Court found that "[t]hese allegations [of using false testimony and suppressing favorable evidence] sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to be released from his present custody."(41) As a result, the United States Supreme Court reversed the state court's denial of the writ of habeas corpus and affirmed Mooney's prohibition against a prosecutor's knowing use of false testimony and suppression of evidence favorable to the accused.(42)

         Thus, Mooney and Pyle established a constitutional rule barring the prosecution from using perjured testimony. More importantly, Mooney and Pyle laid the foundation that would eventually become the principle espoused in Brady v. Ma1yland: a prosecutor's suppression of favorable evidence violates due process where the evidence is material to guilt or innocence.(43)

      2. The Creation of the Brady Rule

         The United States Supreme Court decided Brady v. Maryland in 1963.(44) Brady was convicted of first degree murder and sentenced to death.(45) Although Brady admitted at trial to having a role in the crime, he claimed that a companion committed the actual murder.(46) Upon a request to examine the extrajudicial statements of Brady's companion, the prosecution released several of the companion's statements.(47) However, the prosecution withheld the companion's statement in which he admitted that he had killed the murder victim.(48) This admission was disclosed only after Brady had been tried, convicted, and sentenced.(49) Brady's request for post-conviction relief was denied by the trial court; however, the Maryland Court of Appeals remanded the case for retrial on the issue of punishment, but not guilt.(50) The United States Supreme Court affirmed the lower court's holding that the newly discovered evidence was only "material" to punishment and that retrial on this issue alone did not violate the accused's right to due process.(51)

         Brady v. Maryland was a landmark decision because, for the first time, the United States Supreme Court announced that a prosecutor had an affirmative constitutional duty to disclose exculpatory evidence upon request of the defense.(52) The Brady rule dictates "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution."(53)

         While Brady demanded prosecutors to disclose evidence when "material," the Court never defined "materiality."(54) The subsequent Brady cases heard by the Supreme Court developed a definition of materiality "by which a prosecutor could gauge his disclosure responsibilities."(55)

      3. Brady Today--The Development of Materiality

         1. United States v. Agurs

            In United States v. Agurs,(56) the issue before the Supreme Court was whether the Brady rule should be expanded to include cases in which the defense did not make a specific request for evidence and to cases in which the prosecution did not use perjured evidence.(57) In Agurs, the defendant was convicted of second degree murder.(58) After trial the defendant claimed that the prosecutor did not disclose information regarding the victim's background that would have bolstered the defendant's self-defense argument.(59) According to the defendant, the prosecution's suppression of the evidence resulted in an unfair trial.(60) The Supreme Court...