Brady Creep: WV Supreme Court Extends Rule To Plea Bargaining
Feb. 4, 2015 (Mimesis Law) — The West Virginia Supreme Court recently passed down a landmark decision in Buffey v. Ballard, finding that prosecutors violate the due process rights (under Brady v. Maryland) of a defendant when they do not disclose exculpatory evidence in their possession during plea negotiations.
By way of background, the defendant (Buffey) pled guilty in 2002 to allegations that he robbed and raped an elderly woman. At the time they were negotiating the plea agreement and, unbeknownst the the defendant, prosecutors had already processed the evidence from the rape kit six weeks prior. The forensic lab’s report had concluded that Buffey was not the source of the DNA specimen.
In November, 2002, Buffey filed a habeas petition from prison, claiming ineffective assistance of counsel and prosecutorial misconduct. He also requested the DNA results, arguing that he was forced to issue a false confession. He eventually received the report from the state forensics lab that found that his DNA did not match the seminal fluid tested from the rape kit. The Court denied the petition after hearing from the prosecution’s expert witness, who testified that he could not conclude with “one hundred percent” certainty that the Buffey could be absolutely excluded based on the DNA test.
In 2010, Buffey filed a motion for Post-Conviction DNA Testing under West Virginia Code § 15-2B-14(2014). The motion was granted, and the new test confirmed with even more scientific certainty that Buffey’s DNA was not a match. Moreover, a subsequent search of the FBI DNA database found the culprit, the victim’s former paperboy, who was serving time in a West Virginia state prison for unrelated crime.
Despite these findings, the court denied Buffey’s second habeas petition, reasoning that the DNA exclusions did “not…unequivocally determine whether or not the petitioner was actually present [at the crime scene] and a participant in the various activities giving rise to the… criminal charges.”
In November, 2015, the West Virginia Supreme Court finally found in Buffey’s favor, stating that the “State’s failure to disclose favorable DNA test results obtained six weeks prior to the Petitioner’s plea hearing violated the Petitioner’s due process rights, to his prejudice.”
None of this would have been up for debate if it had happened during trial. Under the Brady Rule, it has long been established that prosecutors have to turn over potentially exculpatory evidence in their possession to the defendant at trial. However, The Supreme Court has never definitively settled on whether prosecutors are required to hand over exculpatory evidence that could establish a defendant’s innocence before he or she accepts a plea offer.
As stated in Buffey, in order to establish a Brady violation, a defendant must demonstrate that
(1) The evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence;
(2) the evidence must have been suppressed by the State, either willfully or inadvertently; and
(3) the evidence must have been material, i.e. it must have prejudiced the defense at trial.
The Court found that the first prong of a Brady violation was met because the DNA evidence was favorable to the defendant, and therefore could have been “used to support a theory of innocence.” With respect to the second prong, the Court reasoned that:
[A]ny knowledge of associated agencies, such as the police laboratory, is imputed to the state. The State’s obligation to produce the DNA results was not extinguished by its assertion that it was unaware of the status of testing.
Finally, the court found that the suppressed evidence was material and that Buffey suffered prejudice as a consequence, noting that “[I]f this case had proceeded to trial, the DNA evidence could have been used by the Petitioner to cast a reasonable doubt upon his guilt on the sexual assault charges.”
The details of Buffey’s case can hardly be referred to as unusual- upwards of 90 percent of cases in state court result in guilty pleas, and in federal court, 96 percent of cases end in guilty pleas rather than go to trial. A number of state and federal circuit courts of appeal have ruled that prosecutors must disclose exculpatory evidence in their possession in the course of negotiating a plea.
Moreover, defendants plead guilty for a host of reasons—many of which have nothing to do with whether they are guilty of the crime they are accused of committing. The defendant may be convinced that the evidence against them is too strong, they might not trust their legal counsel to do a good job, they might be trying to protect someone, or (most likely) they are trying to avoid harsh and lengthy mandatory sentences or the death penalty.
Given this, the notion that a defendant should be constrained to make a decision that would fundamentally alter his life without benefit of critical information, particularly when the prosecution possesses the information but has made the choice to withhold it from the defense during negotiations, is inexplicable. Except for the fact that a defendant who knows that Brady information, such as the failure to get a DNA match, exists would never plead guilty to a crime he didn’t commit for the wrong reasons.
Easy case? Obvious? How could any court not mandate the disclosure of exculpatory evidence like this before expecting the defendant to make a decision as life-changing as a plea of guilty? Apparently so, unless you happen to be on the Supreme Court of the United States and have the opportunity to make crystal clear that concealing Brady at this critical juncture violates due process. On January 19, 2016, The Supreme Court passed on the opportunity to weigh in on this issue on the case of Charles Ray Hooper v. United States, No. 15-6081, which involved the exact issue decided by the West Virginia Supreme Court in Buffy, non-disclosure of exculpatory sentencing evidence at the plea phase.
So for those who were hoping for closure in this matter, we will just have to wait and see. That some will be waiting out the definitive answer in a prison cell because they were denied Brady material is just the way the law rolls. Eventually, a case will come before the Supremes that will provide an opportunity to finally make an obvious ruling that should have happened decades ago. And if you haven’t completed your sentence by then, it may even inure to your benefit. Maybe.