Case: Strickler v. Green
Issue: Whether defense counsel's reliance on the State's "open file" policy was sufficient cause for a habeas petitioner's failure to raise a Brady claim at trial, on appeal and on state habeas review and whether the admittedly damaging impeachment evidence suppressed by the State was sufficient to establish a Brady violation or to establish prejudice under habeas "cause and prejudice" analysis.
Facts: The Commonwealth of Virginia charged petitioner Tommy Strickler with capital murder, kidnapping, and robbery. The prosecution represented to Strickler's trial counsel that it observed an "open file" policy, by which it gave Strickler access to all evidence in its files. Despite this representation, the prosecution (apparently unknowingly) failed to disclose exculpatory materials in police files, consisting of notes taken by an investigating officer regarding an eyewitness to the abduction and letters written by the eyewitness, all of which impeached her trial testimony regarding the vividness of her memory. Because of the "open file" policy, Strickler's counsel failed to seek discovery regarding exculpatory material. A jury convicted Strickler of capital murder, kidnapping, and robbery and sentenced him to death. The conviction was affirmed on appeal. Petitioner's state habeas claim, based on trial counsel's ineffectiveness in failing to file a Brady motion, was rejected after the Commonwealth asserted that such a motion had been unnecessary due to its "open file" policy. Having unsuccessfully sought post-conviction relief in state court, Strickler filed a federal habeas corpus petition in the Eastern District of Virginia. That court "entered a sealed ex parte order granting petitioner's counsel the right to examine and to copy all of the police and prosecution files in the case." After examining the files and discovering the subpoenaed evidence, petitioner for the first time raised a direct claim that his conviction was invalid under Brady. The district court concluded that the failure to turn over the impeaching material undermined confidence in the jury's verdict, and thereupon granted summary judgment for petitioner and granted the writ. According to Strickler, the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose material exculpatory evidence. The Fourth Circuit reversed, holding that Strickler procedurally defaulted on his Brady claim by failing to raise it at trial or in state post-conviction relief proceedings, and that Strickler had not shown prejudice because, even absent the withheld material, the remaining evidence was sufficient to establish both his guilt and the aggravating factors which warranted imposition of the death penalty.
Holding: Strickler demonstrated cause for his procedural default because the prosecution withheld exculpatory evidence, petitioner reasonably relied on the "open file" policy as fulfilling the prosecution's duty to disclose said evidence and the Commonwealth confirmed petitioner's reliance on the "open file" policy by representations during state habeas review that petitioner was already aware of "everything known to the government." Petitioner did not establish prejudice, however, or even that Brady was violated, because he did not show "that there is a reasonable probability that the jury would have returned a different verdict had the materials been disclosed."
Reasoning: The Court noted initially that Strickler procedurally defaulted on his Brady claim by failing to raise it at trial or in state post-conviction proceedings. To obtain review, Strickler had to prove cause and prejudice for this failure. Respecting cause, the Court observed that Brady and its progeny compel the prosecution to disclose material exculpatory evidence, even if the defense has not requested it. Indeed, under Brady, the prosecution has a duty to apprise itself of any exculpatory evidence known to any entities acting on the prosecution's behalf. Here, Strickler established cause because the prosecution advised him of its "open file" policy and represented that Strickler had access to all of the material in its file, even though the Commonwealth actually suppressed exculpatory evidence. Given the "open file" policy and the prosecution's representations, Strickler reasonably concluded that no exculpatory evidence remained undisclosed.
While Strickler established cause, he could not establish either prejudice or that the withheld evidence was material under Brady, because he could not prove there was a reasonable probability that the result of his trial would have been different had the suppressed material been disclosed to him. The Court explicitly rejected the Fourth Circuit's prejudice analysis. The "materiality inquiry is not just a matter of determining whether, after discounting the exculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. Rather, the question is whether 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Recognizing that the exculpatory material could have seriously impeached the witness, the Court nevertheless concluded that the outcome of Strickler's trial would not have differed because there was overwhelming evidence of guilt. Succinctly put, even had the exculpatory material been introduced and vigorously used to impeach a witness for the prosecution, Strickler would still have been convicted of the crimes for which he was charged given the other evidence of guilt.
Other Opinions: Justice Souter, joined in part by Justice Kennedy, concurred in part and dissented in part. Justice Souter agreed that Strickler proved cause, but also maintained that he proved prejudice. Justice Souter also advocated verbally reformulating the Brady standard by stating that Brady is violated if there is a "significant possibility" that the excluded evidence would have produced a different result at a defendant's trial. Justice Souter believed that suppression of the exculpatory evidence undermined confidence in both the guilty verdict and the sentence of death.
Comment: The opinions in this case are a valuable primer on the history of Brady v. Maryland and its progeny. Justice Stevens noted that "strictly speaking, there is never a real 'Brady violation'" unless the materiality factor is established. Moreover, that materiality test - "a reasonable probability that the verdict would have been different" - is identical to the test for establishing prejudice under the federal habeas "cause and prejudice" standard.