Split Over Pre-Plea Evidence May Earn High Court Review

By Jimmy Hoover | May 19, 2019, 8:02 PM EDT

The U.S. Supreme Court is being asked to clear up confusion over whether defendants have the right to see the prosecution's exculpatory evidence before entering a guilty plea. (Jimmy Hoover | Law360)

The case of a Texas man who spent four years in prison before video evidence cleared him of assault allegations could give the U.S. Supreme Court a vehicle to decide when prosecutors can withhold evidence of innocence from someone about to plead guilty to a crime.

At an upcoming conference, the justices will vote whether to review a Fifth Circuit ruling that the Supreme Court's landmark Brady v. Maryland decision does not give defendants the right to see the prosecution’s exculpatory evidence before entering a guilty plea.

The appeals court had used that holding as a basis to dismiss George Alvarez's civil rights lawsuit against the city of Brownsville, Texas, for allegedly withholding video evidence showing he did not assault a city jailer, despite serving four years in prison for it.

But the lower courts are still split on whether Brady entitles them to evidence of their own innocence as they weigh a plea, and the possibility of a lighter sentence. The confusion in the judiciary could increase the chances that four justices, the minimum required, vote to grant certiorari in the case.

"When I read about this and learned about this, I thought, 'This is just an incredible split that exists on something so important,'" said Mike Petegorsky, an Akin Gump Strauss Hauer & Feld LLP associate who wrote an article in the Fordham Law Review about the unsettled law surrounding Brady rights during plea bargaining. "As far as circuit splits go, this is as clear and well-delineated a split as you're going to get."

An 'Incredible Split'

Plea negotiations play an enormous role in the modern critical justice system, where guilty pleas now account for nearly 90% of all federal criminal convictions, according to the Bureau of Justice Statistics' most recent data.

The Supreme Court has even acknowledged that plea bargaining is "so central" to the system that the Sixth Amendment protects defendants from ineffective legal representation at this stage.

Sitting en banc, the Fifth Circuit said below that a constitutional right to evidence of innocence before a guilty plea "does not exist" under its precedent. But it acknowledged possible conflicts with that of the Seventh, Ninth and Tenth circuits. Meanwhile, state high courts in Nevada, Utah, West Virginia, South Carolina have expressly embraced such a constitutional right.

The disagreement between courts is largely the result of the Supreme Court's 2002 decision in U.S. v. Ruiz , holding that prosecutors don't have to hand over evidence that would "impeach" or cast doubt on their witnesses before entering into a plea agreement. Where some courts have distinguished impeachment evidence from exculpatory evidence, others like the Fifth Circuit say there is no reason to treat the two differently.

"This case provides the court an ideal vehicle to resolve a question that bears on the pretrial rights of almost every person charged with a crime — one with particularly high stakes for defendants like Mr. Alvarez, who pleaded guilty in the dark because exonerating evidence remained concealed," Alvarez's lawyer wrote in a December petition.

According to Petegorsky, the division means that "the information available to you, to a criminal defendant, before entering a guilty plea can vary substantially based on where you are charged."

The city of Brownsville had hoped the Supreme Court would ignore his petition by declining to file a response, but the court requested one anyway after it was considered at a conference in February.

Perhaps contributing to their interest was an amicus brief filed the day before on behalf of 44 law professors around the country asking the court to take up the case and rule in favor of Alvarez. Still, the court grants only a fraction of the roughly 10,000 petitions it receives each year, and generally does so only after a few conferences.

Alvarez is hoping his case will make the cut, and cast the legal issues surrounding his appeal as one of national importance given the increased role that plea bargaining has in today's criminal justice system.

"Rising plea rates stem from structural changes in the criminal justice system that have magnified the power differential between prosecutors and defendants," his attorney, Eddie Lucio, wrote in his petition. "Absent disclosure requirements, plea negotiations occur under significant informational asymmetry."

Freed by Surveillance Video

The present case stems from Alvarez's arrest in 2005 for public intoxication and suspicion of vehicle burglary.

Then 17 years old, Alvarez was awaiting arraignment in a Brownsville jail when there was an altercation between him and three jailers. The police department's internal affairs division reviewed video of the incident and found the use of force justified. Separately, one of the three jailers, Jesus Arias, pressed charges, saying that the teenager assaulted him.

Facing up to 10 years in prison for assault on a public servant, Alvarez pled guilty on advice of his lawyer without ever learning that the police had footage of the incident. His deal with prosecutors included a suspended eight-year prison sentence in exchange for completion of a substance abuse program and 10 years of community supervision, according to the petition. But Alvarez failed to complete the program, so he was sent to prison in November 2006.

Three years into his eight-year sentence, video of the altercation with the jailers surfaced through another lawsuit against the city, and he sought a writ of habeas corpus based on the new evidence, according to the petition. The video showed that the scuffle began when one of the jailers grabbed Alvarez by the arm and put him in a chokehold after Alvarez wasn't responding to their commands, according to the petition.

He succeeded and secured his release from prison after four years, with the Texas Court of Criminal Appeal declaring him "actually innocent" based upon their review of the video. Months later, in April 2011, he filed a federal civil rights lawsuit against the police under Section 1983 of Title 42 of the U.S. Code, saying their nondisclosure of exculpatory evidence ran afoul of the Supreme Court's Brady decision, among other claims that would later be trimmed from the suit.

A Texas federal judge ruled in favor of Alvarez's Brady claim, and a jury returned a verdict against the city for $2.3 million in compensatory damages and fees.

But the Fifth Circuit reversed, holding that under its own precedents, Brady is a trial right that does not protect defendants at the plea bargaining stage.

The decision drew a lengthy dissent from U.S. Circuit Judge Gregg Costa all but urging the Supreme Court to take the case.

"It is difficult to think of greater deprivations of that liberty than the government's allowing someone to be held in prison without telling him that there is evidence that might exonerate him," Judge Costa wrote. "Due process requires more than we afford the accused today."

An 'Unsavory Vehicle'

It often takes more than a circuit split to convince the Supreme Court to take up a case. It needs to be the right case as well. And there, Alvarez could run into problems.

In a concurrence, Fifth Circuit Judge Edith Jones said his was an "unsavory vehicle in which to be discussing significant theories of law" and referenced a federal bribery case that ensnared Alvarez's attorney and then-Cameron County District Attorney Armando Villalobos.

Lucio and Villalobos, former law partners, were among those indicted on federal RICO charges in a corruption scandal in 2012. Prosecutors accused Lucio of paying bribes and kickbacks to Villalobos and a state judge in exchange for favors in criminal cases. Lucio was acquitted of the charges in 2013, while Villalobos was sentenced to 13 years in prison.

Judge Jones said it was "more than suspicious" how Lucio obtained habeas relief in Alvarez's case. Villalobos' office seemed to roll over and refuse to defend against his appeal despite possible issues with the supposedly exonerating video evidence, Judge Jones said. Then after the appeals court remanded, the prosecution dismissed the charges.

"One may surmise, as Gilbert and Sullivan wrote in 'Trial by Jury,' Alvarez's release 'was managed by a job, and a good job too,'" she said.

In an interview with Law360, Lucio said that Villalobos had "nothing to do with" the Alvarez case and took umbrage at Judge Jones' implication of foul play.

"He didn't participate in the case in any way whatsoever," he said. "That upsets me a lot because that, to me, is personal. I had to fight that federal indictment and I won, not guilty across the board on all counts."

But that isn't the only thing that could hamstring his Supreme Court appeal.

The Fifth Circuit also went out of its way to say that, even if its precedent did recognize a constitutional right to exculpatory evidence at the pleading stage, Alvarez's lawsuit fails to show why the city should be held liable under the civil rights statute. So the high court would have to reverse the Fifth Circuit on more than just the Brady issue in order to revive Alvarez's case.

Lucio suspects that's why his Supreme Court petition hasn't attracted quite as much attention as his Fifth Circuit appeal, where groups like the National Association of Criminal Defense Lawyers, Fair Trials International and the Innocence Project filed briefs supporting Alvarez.

"I just think that what happened at the Fifth Circuit just made it a lot harder to get the Supreme Court to hear it," Lucio said. “And that's where I think everybody has lost interest in it."

If the justices turn down the case, however, the circuit split will still stand, and Petegorsky predicts it won't be long before the issue returns to the Supreme Court.

"I think it’s something that will be taken up by the Supreme Court sooner rather than later," he said. "Whether this is the right case, I'm not sure."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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