Alvarez v. City of Brownsville, 860 F.3d 799 (5th Cir. 2017)
In many jurisdictions across the nation, prosecutors are taking a more aggressive stance on Brady/Giglio lists. These lists include the names of officers who are deemed tainted in the prosecutors’ opinion. In many cases, prosecutors may refuse to file charges where the listed officers are witnesses. Being placed on a Brady/Giglio list is certainly damaging to an officer’s reputation and may even be a death knell to a career, or at the very least, to promotion.
Brady/Giglio lists take their name from two United States Supreme Court decisions addressing allegations of withholding exculpatory evidence, Brady v. Maryland (373 U.S. 83 (1963)) and Giglio v. United States (405 U.S. 150 (1972)). The Brady rule requires prosecutors to turn over any material exculpatory evidence to the defense. The rule encompasses evidence that could tend to show the defendant isn’t guilty or should receive a lesser sentence, or evidence that impacts the credibility of a witness. The sanction for failure to turn over Brady material is suppression of evidence, even if it was inadvertently withheld. Evidence may be suppressed even if the police don’t tell the prosecution about the evidence.
The Supreme Court reinforced the vitality of the Brady rule in the recent decision of Turner v. United States (137 S.Ct. 1885 (2017)), although the Court held that the burden rests on the defendant to show that the undisclosed evidence prejudiced the trial to the degree that it undermined confidence in the verdict.
In Giglio v. United States, the Supreme Court held that a prosecutor must disclose a deal for favorable treatment in exchange for a witness’s testimony. The Giglio decision and its progeny (United States v. Agurs, 427 U.S. 97 (1976) and Kyles v. Whitley, 514 U.S. 419 (1995)) mean that the prosecution must tell the defense about potential blemishes on the credibility of witnesses, including and especially, police officers. In Kyles, the Court imposed the duty on prosecutors to seek out such information and disclose it to the defense.
A new case signals the liability risks in failing to scrupulously follow the rules of Brady v. Maryland and Giglio v. United States. Alvarez was arrested for burglary and public intoxication. After an altercation in a holding cell, Alvarez was charged with assault on a public servant, a third-degree felony. He pleaded guilty and was ultimately ordered to serve eight years in prison.
Approximately five years into his prison term, a video came to light showing that Alvarez was innocent of the assault. Alvarez filed a writ of habeas corpus alleging his innocence. After reviewing the video, the court agreed that the writ should be granted and Alvarez should be released.
Alvarez filed suit against the city and several officers. A jury awarded Alvarez $2 million in damages and the parties stipulated to attorneys’ fees of $300,000. On appeal, the city argued that the defendants were entitled to qualified immunity. Even if the prosecution withheld the obviously exculpatory video recording, Alvarez pleaded guilty without a trial.
It may well be that Alvarez pleaded guilty as part of plea bargain. Notwithstanding, the court cited precedent establishing that a person who pleads guilty is not constitutionally entitled to be provided with impeachment evidence. The court extended this reasoning to exculpatory evidence, holding that the prosecution wasn’t constitutionally required to show Alvarez the exculpatory video recording. Thus, even though Alvarez may not have committed a crime, the fact that he entered a guilty plea entitled the defendants to win on the civil rights lawsuit.
One might argue that the officers and the city narrowly avoided a $2.3 million payout due to a technicality. But the technicality was Alvarez’s choice to plead guilty. The clear lesson of this case is to remember that failure to disclose exculpatory evidence can lead to liability for civil rights violations—and the damages can be significant.