Taking a page from the U.S. Supreme Court’s heinous playbook, a panel of the Fifth Circuit in June of 2017 reversed a $2 million judgment a jury awarded George Alvarez. In 2006, Mr. Alvarez pled guilty to assaulting a public servant—a charge levied against him by a detention officer at the Brownsville Police Department (BPD) who claimed that Alvarez attacked him in the jail. Years into his prison sentence, Mr. Alvarez learned of a BPD videotape which proved that the officer lied when he claimed Alvarez assaulted him. After getting a court to declare him actually innocent, Mr. Alvarez filed a civil suit, arguing, among other things, that the city violated his rights under Brady because it suppressed evidence of his innocence during the plea-bargaining process. Although he prevailed at trial, the appellate panel reversed, holding that the prevailing case law in the Fifth Circuit does not recognize a due process right to disclosure of exculpatory information in the pre-trial plea process. In November, the court granted rehearing en banc, meaning that the entire court will soon reconsider the three-judge panel’s initial ruling.

The question the Fifth Circuit must grapple with is not small potatoes. Whether prosecutors need to disclose exculpatory evidence before accepting a defendant’s guilty plea is fundamental. Well over 90% of criminal cases in most jurisdictions result in a plea. As the Supreme Court famously wrote only a few years ago (quoting a renowned law review article): plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” If prosecutors have no constitutional disclosure obligations in these cases, it would be difficult to say they have any meaningful obligations at all.

The en banc proceedings have raised the profile of Alvarez v. City of Brownsville, and several organizations have filed amicus briefs to share their views with the court. Four briefs have been filed in support of Mr. Alvarez’s position; one has been filed on behalf of the city. More than the number, the substance of these briefs establishes that Mr. Alvarez has the superior claim.

The amicus briefs filed on Mr. Alvarez’s side all emphasize the reality that our criminal justice system is one that depends almost entirely on plea-bargaining. According to Fair Trials International, an international human rights non-profit organization, the United States has “no peer” in its reliance on pleas. And, of course, our system of pleas does not reflect an idealized market in which contracts are formed with free will as a prerequisite. Indeed, it is just the opposite. Individuals locked up but not convicted have to make rational calculations about whether to accept a plea—regardless of whether they are innocent—because insisting on a time-consuming, costly, and risky trial has substantial downsides even for those who have done nothing wrong. After all, everything is at stake – time with family and kids who need you, work, housing, even freedom if she declines the State’s offer. With this brutal reality as the backdrop, the briefs outline the stakes, principles, and values implicated here. A few prominent themes emerge.

The State Should Not Be Allowed to Knowingly Convict Innocent People

A massive problem with the criminal justice system is that innocent people like Mr. Alvarez take guilty pleas all the time, so, it is no surprise that several of the amicus briefs underscore this fact. As the National Association of Criminal Defense Lawyers (NACDL) explains in its brief, “an innocent defendant can have even greater incentive than a guilty one to accept a plea rather than risk higher punishment at trial.” Because prosecutors recognize they will have a more difficult time convicting innocent defendants (or defendants against whom they have the least compelling evidence), they often offer these individuals the best ‘deals.’ As a brief filed on behalf of several former state and federal prosecutors concludes, “[t]he obvious result is that, in many cases, the most attractive deals are offered to the very people whom society has the least interest in convicting.”

Most prosecutors insist that innocent individuals only plead guilty in unusual and rare circumstances. Not only does this claim disregard completely the logic and power dynamics in our plea-bargaining system’s design, but it also ignores the empirical reality. The brief filed on behalf of the Innocence Projects of New York, Texas, and Louisiana as well as the Innocence Clinic at the University of Mississippi School of Law presents a sampling of cases that prove the prosecutors’ assertions wrong. Page after page contains stories of cases like Mr. Alvarez’s—in which defendants pled guilty while the prosecution possessed evidence of innocence but suppressed it.

The NACDL’s brief summarizes the state of affairs succinctly: under the Fifth Circuit’s current precedent, “the Constitution allows a prosecutor to induce a defendant to plead guilty while withholding information that confirms the defendant is innocent.”

Exempting the Plea-Bargaining Process from Due Process is Unfair

The amicus briefs make clear that the criminal justice system is rendered unfair when the State is empowered to suppress exculpatory information and extract guilty pleas. The fairness problem has a few different dimensions.

For one, poor people are particularly vulnerable. As the Innocence brief eloquently explains,

Indigent defendants, in particular, feel the pressure acutely: Lacking the resources to make bail for even minor charges, and facing the potential loss of their homes, their employment, or even their children, indigent defendants might feel compelled to accept whatever deal a prosecutor offers, even if they are innocent, just to get out of jail.

The innocent people who can push back against the weight of the system are the well-resourced ones; higher socio-economic status criminal defendants with private lawyers can mount the kind of fight that the poorest defendants who have under-resourced public defenders will never be able to make.

A second dimension of the fairness issue is the pre-existing balance of power in the criminal justice system’s adversarial setup. At The Open File, we emphasize regularly that prosecutors have expansive powers. Even if some DA offices—like nearly all public defender office counterparts—face meaningful resource constraints, what they do have is the full panoply of strategic weapons bestowed by their unfettered prosecutorial discretion. The brief filed on behalf of former prosecutors astutely explains that exempting pleas from Brady “would tip the scales against already-overmatched criminal defendants . . . and render the right articulated in Brady a dead letter.” The State already possesses structural investigative and informational advantages; permitting prosecutors to capitalize on these advantages for the end of maximal plea-bargaining leverage is unseemly, unnecessary and creates unjust outcomes.

Finally, a system that is patently unfair will (someday, hopefully) lose legitimacy. The Innocence brief explains that the DOJ’s position in the case is a dangerous one:

The United States [through an amicus brief filed by the Department of Justice] urges this Court to adopt a rule that would validate the government’s decision to deliberately withhold exculpatory evidence from a defendant as soon as he or she indicates a willingness to accept a plea offer. That rule would, with good reason, undermine public confidence in the criminal justice system.

While people arguably have little reason to believe in our current system as it is, green-lighting the very worst prosecutorial behavior—holding that it is beyond the Constitution’s reach—would further erode the already-fragile public trust.

The Role of the Prosecutor is Supposed to be to Seek Justice, Not Convictions

Call them old-fashioned, but the amici on Mr. Alvarez’s side have reminded the Fifth Circuit that, according to the Supreme Court, our Constitution calls on prosecutors to serve as ministers of justice. Their role is to see that justice is done, not to seek convictions. The former prosecutors embrace this role in their amicus brief, explaining, “[w]e submit this brief because the question this case presents—whether the state must share material evidence of a defendant’s innocence before extracting a guilty plea—strikes at the heart of the prosecutor’s role.”

Again providing the court with views grounded in an understanding of that pesky little thing called reality, the briefs point out that the Supreme Court’s explanation of prosecutorial duties was not descriptive, it was prescriptive. Prosecutors are not mystical beings imbued with special powers of judgment and wisdom that warrant bottomless deference; they are humans with powers that must be checked and they need to be held to account when they fail to meet their obligations. While the Government calls on the Fifth Circuit to entrust to prosecutors the propriety of the plea-bargaining system—after all, they have internal guidelines, wow(!)—the amici supporting Mr. Alvarez acknowledge that prosecutors respond to incentives to win and should not be gifted the self-policing model the Government advocates.

The NACDL brief points out that part of the prosecutors’ duty is to search for the truth; they shirk that duty when they conceal evidence that may have informed a defendant’s decision about whether to plead guilty. The Innocence brief sensibly points out that “refusing to apply Brady in guilty plea cases will have the perverse consequence of disincentivizing the disclosure of evidence of innocence.” And, in the frank language of the former prosecutors’ brief, failing to apply Brady will “encourage unscrupulous prosecutorial conduct.” If this all seems obvious, the amicus brief filed on behalf of the United States will make you wonder whether the DOJ lawyers put on their pants one leg at a time. In the prosecutors’ willfully-blind world, guilty pleas by innocent defendants are unicorns, not donkeys. And unscrupulous prosecutors are woolly mammoths; maybe they once existed, but they are long gone.


While the four amicus briefs filed in support of Mr. Alvarez make persuasive points, the Fifth Circuit specifically requested the DOJ to file its own amicus (which can be accessed by those with Westlaw subscriptions). Unsurprisingly, the Department took the City’s side, arguing that Brady does not extend to plea bargaining. The DOJ argues that Brady is merely a “trial right,” meaning defendants who plead before trial do not enjoy its protection. Its brief makes a number of practical arguments, arguing that burdening prosecutors with Brady in the plea process will slow things down, increase costs, and generally “hamper” efficiency. (For what it’s worth, the other amici point out that jurisdictions both in the U.S. and other nations that provide pre-plea disclosure requirements have not experienced a resulting efficiency or cost crisis.) But, whatever one makes of those arguments, the DOJ brief falls flat at the outset because it refuses to acknowledge reality. In its words, “[t]he exceptional cases, such as this one, cannot justify the creation of a new constitutional rule that would require the prosecution to disclose to every criminal defendant contemplating a plea of guilty all material exculpatory information in the prosecution’s possession.”

That the Government characterizes Mr. Alvarez’s case as “exceptional” says it all.

Moreover, the DOJ talks out of two sides of its mouth. At one point, the brief argues that the Brady rule is not truly even necessary because the Department has existing internal guidelines that “encourage” reasonably prompt disclosure of exculpatory evidence. Yet, after praising the efficacy of existing regulations, the brief goes on to urge the Court to reject the constitutional rule, painting a picture of a system broken by onerous requirements. Obviously, as it so often is with prosecutors, it’s all about power. Unwilling to give it up, they insist the judiciary should not take it from them. One look back at the Constitution, however, should move the Fifth Circuit to protect individual rights, not augment prosecutorial power and force more unreliable guilty pleas in a system that is already sending innocent people like Mr. Alvarez to prisons and jails.

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