There has been considerable discussion in the blogs about Justice Stevens' complaints of the cruelty of delay in the Tennessee capital case of Johnson v. Bredesen. Links to some of the posts are in yesterday's Blog Scan.
One point that needs further exploration is Justice Stevens' claim that "Johnson bears little, if any, responsibility for this delay." The reason he says that is that the prosecution did not disclose certain evidence until a change in state law gave Johnson access to it. Much of the subsequent litigation involved that evidence. But Justice Stevens cites only the Court of Appeals dissent to support his thesis that "if the State had not withheld exculpatory evidence ... Johnson would not have waited for 11 years on death row before the State met its disclosure obligations." (Emphasis added.) Citing only the dissent is a red flag that we need to check the majority opinion. Did the State default on any disclosure it was obligated to make?
First, it is important to note a commonly misunderstood aspect of the disclosure requirement of the Brady v. Maryland line of cases. The Sixth Circuit majority summarizes it well in footnote 3 of its opinion.
So, Justice Stevens' assertion that this case involved "state-caused delay" through supposed violation of the state's "disclosure obligations" rests on a premise that both the state and lower federal courts rejected and the Supreme Court chose not to review. Justice Stevens says, "The merits of Johnson's Brady claim are not before us; we denied certiorari on this issue several months ago." Yet his laying of the blame for the delay assumes the critical issue on the merits of the claim and assumes it in a way that is contrary to the final adjudication of the claim.
If Justices Stevens and Breyer are really this concerned about delay (and I am too, for different reasons), there is a great deal they can do about it. I'll leave that to another day, though.
One point that needs further exploration is Justice Stevens' claim that "Johnson bears little, if any, responsibility for this delay." The reason he says that is that the prosecution did not disclose certain evidence until a change in state law gave Johnson access to it. Much of the subsequent litigation involved that evidence. But Justice Stevens cites only the Court of Appeals dissent to support his thesis that "if the State had not withheld exculpatory evidence ... Johnson would not have waited for 11 years on death row before the State met its disclosure obligations." (Emphasis added.) Citing only the dissent is a red flag that we need to check the majority opinion. Did the State default on any disclosure it was obligated to make?
First, it is important to note a commonly misunderstood aspect of the disclosure requirement of the Brady v. Maryland line of cases. The Sixth Circuit majority summarizes it well in footnote 3 of its opinion.
We note the Kyles Court's iteration of Justice Blackmun's statement in Bagley that "the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. We have never held that the Constitution demands an open file policy . . . and the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate." 514 U.S. at 436-37 (internal citations omitted).Thus, when a court finds that evidence not disclosed was not material, i.e., very unlikely to have made a difference, as every court that reviewed Johnson's claim did, the court is not making a finding of "harmless error." It is finding no error at all. If the evidence was not material, the prosecution had no federal constitutional obligation to turn it over.
So, Justice Stevens' assertion that this case involved "state-caused delay" through supposed violation of the state's "disclosure obligations" rests on a premise that both the state and lower federal courts rejected and the Supreme Court chose not to review. Justice Stevens says, "The merits of Johnson's Brady claim are not before us; we denied certiorari on this issue several months ago." Yet his laying of the blame for the delay assumes the critical issue on the merits of the claim and assumes it in a way that is contrary to the final adjudication of the claim.
If Justices Stevens and Breyer are really this concerned about delay (and I am too, for different reasons), there is a great deal they can do about it. I'll leave that to another day, though.
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