In 1963, the U.S. Supreme Court in Brady v. Maryland held that criminal prosecutors must disclose evidence favorable to a defendant, upon his or her request, that is material to either guilt or punishment.


In 1985, the Supreme Court in United States v. Bagley held that “’overriding concern [is] with the justice of the finding of guilt.’”


Put another way, a guilty verdict must be constitutionally just.


Ensure Justice be Done


Ten years later the Court in Kyles v. Whitley said a prosecutor’s interest in the prosecution of a criminal case is not to “win a case, but [to ensure] that justice shall be done.”


These clear-headed principles are critical to maintaining a fair and just adversarial criminal trial process. There is no corner for cheating by manufacturing evidence indicating guilt or suppressing evidence that is exculpatory of guilt or withholding evidence that would impeach evidence seemingly supporting guilt.


The issue presented in every Brady case is, as the Court said in Cone v. Bell, whether the suppressed or withheld evidence is “material,” meaning that “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”


So, what exactly is a “reasonable probability?”


Undermines Confidence of Trial


The Court in Bagley and Kyles defined reasonable probability as one in which the suppressed or withheld evidence “undermines confidence of the trial.”




In 1999, the Court in Strickland v. Greene made it abundantly clear that a Brady violation demands a new trial only when a defendant can establish “the prejudice necessary to satisfy the ‘materiality’ inquiry.


U.S. v Turner


In a June 22, 2017 decision, United States v. Turner, the Supreme Court brought all these cases to the judicial mountain top to state exactly how and when the Brady rule applies.


Christopher Turner, and at least eight other defendants, was convicted in 1985 for the brutal physical and sexual assault that left Catherine Fuller dead in a Washington, D.C. alley on October 1, 1984.


The Government’s theory in the case was that Turner, and possibly twelve others, dragged Fuller off the street into an alley where the group beat, robbed, and sodomized her with a pole. The Government presented at least a half-dozen witnesses to the assault as well as incriminating statements by one or more of the participants in the attack.


Neither Turner nor any of the other defendants testified at trial. Each presented a “not me, maybe them” defense. This defense was advanced by defense attorneys attempting to impeach the witnesses who placed a particular defendant at the scene.


Government Withheld Favorable Evidence


Beginning in 2010, Turner and the other defendants began to challenge their convictions based on newly discovered evidence; namely, that the Government had either suppressed or withheld Brady evidence. The Government opened its files and turned all the Brady material over to the defendants. A federal district court conducted a 16-day evidentiary hearing.


During this evidentiary hearing, the Government did not contest that the withheld evidence was “favorable to the accused, either because it was exculpatory or because it is impeaching.” Nor did the Government contest that federal prosecutors had “suppressed” the evidence “either willfully or inadvertently.”


Materiality Issue Goes to SCOTUS


The Government, however, diverged paths with Turner and the other defendants by arguing they had failed to satisfy the materiality inquiry. In effect, the Government argued that even had the withheld been disclosed to the defense, there is no “reasonable probability” that any other verdict would have been returned at their 1985 trials.


The district court and the D.C. Court of Appeals agreed with the Government’s position that the Bagley materiality test had not been met.


The issue before the Supreme Court was whether these two courts have reached both a reasonably factual and constitutional conclusion on the materiality issue.


Too Little, Too Weak, Too Distant


The Court concluded the correct procedure was to “examine the trial record, ‘evaluat[e]’ the withheld evidence ‘in the context of the entire record,’ …and determine in light of that examination whether ‘there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”


After reviewing the entire record, the Court found that the withheld evidence was “too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards.”


The real significance of Turner is this: favorable evidence, either deliberately or inadvertently, withheld by the prosecution a decade (or two or three) ago is “too distant” from the original trial to warrant a new trial absent a clear and convincing showing that the defendant was wrongly convicted.


In a nutshell, and for all practical purposes, only an innocent defendant wrongfully convicted because the prosecution withheld Brady material can satisfy the Bagley materiality test in old cases, while favorable evidence in old cases in which there is significant evidence of guilt is “too little, too weak, or two distant” in the past to be prejudicial in the present.


The Court essentially gave a constitutional blessing to prosecutors who betrayed the Brady rule with a win-at-all costs mentality years, or, as in this case, decades ago because guilty defendants are not entitled to have the rule of law applied to them.