     Case: 16-40772       Document: 00514646077         Page: 1     Date Filed: 09/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                       No. 16-40772
                                                                            Fifth Circuit

                                                                          FILED
                                                                  September 18, 2018

GEORGE ALVAREZ,                                                      Lyle W. Cayce
                                                                          Clerk
              Plaintiff-Appellee,
v.

THE CITY OF BROWNSVILLE,

              Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before STEWART, Chief Judge, and JOLLY, JONES, SMITH, WIENER,
DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,
HIGGINSON, COSTA, WILLETT, and HO, Circuit Judges. *

CARL E. STEWART, Chief Judge, joined by JOLLY, JONES, SMITH,
WIENER, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES,
HIGGINSON, WILLETT, and HO, Circuit Judges: ∗∗




       * Judge Prado was on the court at the time that this en banc case was submitted and
argued but did not participate in the consideration of the decision. Judge Duncan, Judge
Engelhardt and Judge Oldham joined the court after this case was submitted and did not
participate in the decision.
       ∗∗
          Judge Haynes and Judge Willett concur in Sections I, II.A., and III., and they would
not reach the issue in Section II.B.
    Case: 16-40772     Document: 00514646077      Page: 2   Date Filed: 09/18/2018



                                  No. 16-40772
      This case was reheard en banc after the Appellee, George Alvarez, had
his $2.3 million judgment reversed and his claims against the City of
Brownsville dismissed by a panel of this court. The en banc court has carefully
considered two important questions as to the merits of this case: (1) whether
the City of Brownsville should have been subjected to municipal liability for
Alvarez’s claim under Brady v. Maryland, 373 U.S. 83 (1963); and (2) whether
Alvarez was precluded from asserting his constitutional Brady claim for his 42
U.S.C. § 1983 action against the City of Brownsville because he pled guilty.
For the reasons set forth below, we REVERSE the district court’s judgment,
and RENDER judgment in favor of the City of Brownsville. Alvarez’s action
against the City of Brownsville is DISMISSED with prejudice.
      I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY
   A. Factual Background
      1.   The Incident Between Alvarez and Officer Arias at the Jail
      On November 27, 2005, Alvarez, a then-seventeen year old ninth grade
special education student, was arrested by the Brownsville Police Department
and taken to a detention center in Brownsville, Texas on suspicion of public
intoxication and burglary of a motor vehicle. After being placed in one of the
holding cells, Alvarez attempted to use a telephone located in the cell. Initially,
Alvarez was able to place a call but the phone eventually stopped working.
Alvarez then banged the phone’s handset against the phone’s switch hook
mounted on the wall, and made an obscene gesture towards a camera. Because
Alvarez became somewhat disruptive, officers removed Alvarez from his cell
and attempted to transfer him to a padded cell to calm down. To move Alvarez
to the padded cell, the officers had to walk him across the jail’s central lobby
booking area.


                                        2
    Case: 16-40772      Document: 00514646077     Page: 3   Date Filed: 09/18/2018



                                   No. 16-40772
         After reaching the booking area, Alvarez engaged in a conversation with
a group of officers. Alvarez primarily spoke to Officer Jesus Arias who took the
lead in trying to direct Alvarez to the padded cell. As the conversation
continued, Alvarez was reluctant to move towards the padded cell and obey
Officer Arias’s instructions to walk towards the cell. When recalling the
conversation with Officer Arias, Alvarez indicated, “I understand I wasn’t
compliant.”
         A scuffle between Alvarez and Officer Arias soon ensued. The altercation
began when Officer Arias grabbed Alvarez’s left arm and maneuvered Alvarez
to the ground. Officer Arias then placed Alvarez in a choke hold and eventually
a head lock. Officers assisting Officer Arias subdued Alvarez by shackling
Alvarez’s legs and handcuffing him. Throughout the struggle, Alvarez
squirmed and flailed his arms. Alvarez, handcuffed and legs shackled, was
then carried and placed in the padded holding cell. All of the events that took
place at the jail before, during, and after Alvarez’s incident with Officer Arias
were captured on video.
         2.  Investigations Conducted by the Brownsville Police Department
         The Brownsville Police Department utilizes separate investigative
tracks for internal disciplinary investigations of its officers and alleged crimes
committed by detainees at the jail. An internal administrative investigation
was conducted to determine if Officer Arias violated the Brownsville Police
Department’s use of force policy during the altercation with Alvarez.
Additionally, a criminal investigation was conducted by the Brownsville Police
Department to determine if there was probable cause for recommending that
the district attorney’s office criminally charge Alvarez for assaulting Officer
Arias.


                                         3
    Case: 16-40772     Document: 00514646077       Page: 4   Date Filed: 09/18/2018



                                   No. 16-40772
      Generally, the Brownsville Police Department’s internal administrative
affairs division does not share information with the criminal investigation
division. If information is to be shared between the internal administrative
affairs division and the criminal investigation division, Police Chief Carlos
Garcia is usually the individual who authorizes the exchange. However,
Sergeant David Infante, the jail supervisor who downloaded the videos of the
incident for the internal administrative investigation of Officer Arias, stated
that “if something would have been asked of me by the criminal investigation,
I would have submitted it.” Police Chief Garcia further added that Sergeant
Infante should have provided the videos of the incident to the criminal
investigation division if he knew criminal charges were being brought against
Alvarez. Commander Roberto Avitia, also a supervisor of Sergeant Infante,
similarly stated that Sergeant Infante should have disclosed the videos to the
criminal investigation division.
      For the internal investigation, Sergeant Infante evaluated the videos
and Officer Arias’s report of the incident. Four different videos were reviewed:
(1) a video of Alvarez in the initial holding cell that he was placed in; (2) a video
of the officers at the central command post in the detention center before,
during, and after the incident; (3) a video of the altercation between Alvarez
and Officer Arias that occurred in the lobby booking area; and (4) a video of
Alvarez in the padded cell after he was transported. After conducting the
investigation, Sergeant Infante came to the conclusion that Officer Arias used
proper force and that no further action should be taken.
      Two days after the incident between Alvarez and Officer Arias, on
November 29, 2005, Sergeant Infante sent a memorandum to Police Chief
Garcia reiterating his recommendation that proper force was used. On
December 8, 2005, another supervisor of Sergeant Infante, Commander
                                         4
     Case: 16-40772      Document: 00514646077         Page: 5    Date Filed: 09/18/2018



                                      No. 16-40772
Ramiro Rodriguez, reviewed Sergeant Infante’s report and the video
recordings, and submitted a report to Police Chief Garcia recommending
closure of the internal administrative investigation since Officer Arias’s
actions were in compliance with Brownsville Police Department regulations.
       Even though the reports and recommendations were stamped as
received on December 8, 2005 by Police Chief Garcia’s office, Police Chief
Garcia did not review the reports. The materials for the internal investigation,
including the videos, were never passed on to an internal affairs unit for a
formal disciplinary investigation of Officer Arias or to the criminal
investigation division of the Brownsville Police Department.
       The criminal investigation division reviewed the incident after the
internal administrative review was conducted. The criminal investigation
began on November 27, 2005, with Sergeant Jim Brown preparing and filing
an offense report of the incident that occurred between Alvarez and Officer
Arias. Sergeant Brown was the patrol supervisor responsible for addressing
issues that arose at the jail when the incident occurred. 1 Sergeant Brown’s
report stated Alvarez allegedly assaulted Officer Arias but did not mention
that there were any video recordings of the incident. Criminal investigator
Officer Rene Carrejo was subsequently assigned to review Officer Arias’s
complaint that Alvarez assaulted him by grabbing his throat and his right
inner thigh. Officer Carrejo never requested or inquired about the possible
existence of a video recording of the incident. Lieutenant Henry Etheridge, the
head of the internal affairs division of the Brownsville Police Department at


       1  Although Sergeant Infante was officially the jail supervisor, the supervision
responsibilities of the jail passed to Sergeant Brown as one of the patrol supervisors after
5:00 p.m. Because the incident between Alvarez and Officer Arias occurred around 9:00 p.m.,
when Sergeant Infante was off duty, Sergeant Brown was responsible for supervising the jail
at this time.
                                             5
    Case: 16-40772      Document: 00514646077     Page: 6   Date Filed: 09/18/2018



                                   No. 16-40772
the time of the administrative review, opined that the criminal investigation
division did not conduct a proper investigation because it failed to collect all
evidence. Lieutenant Etheridge further noted that, “[i]f I knew that [the
criminal investigation division] wasn’t conducting proper investigations in
regards to collecting that video, by all means, I would have taken corrective
action to . . . get that video in their hands.”
      3.   Alvarez’s Guilty Plea and Imprisonment
      The criminal investigation division subsequently alerted the district
attorney’s office of the incident and Alvarez was charged with assault on a
public servant, a felony offense in Texas. In January 2006, a grand jury
returned an indictment charging Alvarez with the assault. During discovery,
Alvarez’s attorney reviewed the prosecution’s case file that did not contain the
videos of the incident. In March 2006, Alvarez pled guilty to assault on a public
servant. In May 2006, Alvarez was given a suspended sentence of eight years
of imprisonment and ten years of community supervision. As a condition of the
community supervision, the court imposed “a term of confinement and
treatment in a substance abuse felony punishment facility . . . for not less than
90 days or more than 12 months as a condition of probation.” In November
2006, after Alvarez failed to complete the treatment program, the state
revoked the suspension of Alvarez’s sentence and remanded Alvarez to prison
for the remainder of his eight-year sentence.
      4.   The Uncovering of the Video Recordings of the Incident
      Approximately four years after Alvarez began to serve his prison
sentence, the videos of Alvarez’s incident with Officer Arias surfaced during
discovery for an unrelated § 1983 case. After the discovery of the videos,
Alvarez filed an application for a writ of habeas corpus in Texas state court,
claiming that the Brownsville Police Department had withheld the videos in

                                          6
    Case: 16-40772    Document: 00514646077      Page: 7    Date Filed: 09/18/2018



                                 No. 16-40772
violation of Brady. In October 2010, after the state district court recommended
that the writ of habeas corpus be granted and that Alvarez be given a new trial,
the Texas Court of Criminal Appeals concluded that Alvarez was “actually
innocent” of committing the assault. Alvarez’s assault conviction was then set
aside and all charges against Alvarez were later dismissed.
   B. Procedural History
      Several months after being declared “actually innocent,” in April 2011,
Alvarez sued the City of Brownsville, Officer Arias, and other individuals from
the Brownsville Police Department, asserting various claims under § 1983,
which included nondisclosure of exculpatory evidence in violation of Brady. In
August 2012, the City of Brownsville, Officer Arias, and the other defendants
filed a motion for summary judgment arguing that Alvarez’s claims should be
dismissed. Adopting the magistrate judge’s report and recommendation, the
district court denied the defendants’ motion for summary judgment as to: (1)
the Brady claim against the City of Brownsville for nondisclosure of
exculpatory evidence; and (2) a fabrication of evidence claim brought against
Officer Arias in his individual capacity. The district court granted the
defendants’ motion for summary judgment as to all other claims. The
fabrication claim against Officer Arias was later dismissed after Alvarez and
Officer Arias filed a voluntary stipulation of dismissal.
      In January 2014, Alvarez and the City of Brownsville, as the only
remaining parties, filed cross motions for summary judgment addressing
whether: (1) a Brownsville Police Department policy of nondisclosure existed;
(2) the Brownsville Police Department’s failure to disclose the videos
constituted a Brady violation; and (3) a Brownsville Police Department policy
caused the Brady violation. The district court subsequently granted Alvarez’s
motion for summary judgment concluding that there was a Brady violation as
                                        7
    Case: 16-40772     Document: 00514646077    Page: 8   Date Filed: 09/18/2018



                                 No. 16-40772
a matter of law, and Alvarez established “all substantive elements of a § 1983
municipal liability claim against the City of Brownsville.”
      The district court held a jury trial to determine whether Alvarez was
entitled to monetary damages for the Brady violation. Following a two-day jury
trial, the jury awarded Alvarez $2,000,000 in compensatory damages. The
parties agreed to attorneys’ fees of $300,000 and the court entered final
judgment in favor of Alvarez for $2,300,000. The City of Brownsville filed post-
trial motions, which were denied by the district court. The City of Brownsville
timely appealed.
      A panel of this court reversed the $2,300,000 judgment awarded to
Alvarez and dismissed Alvarez’s action against the City of Brownsville. Alvarez
v. City of Brownsville, 860 F.3d 799, 803 (5th Cir. 2017), reh’g en banc granted,
874 F.3d 898 (5th Cir. 2017). The panel opinion held that by entering a guilty
plea Alvarez waived the right to assert the Brady claim foundational to his §
1983 action. The panel opinion was withdrawn in light of en banc rehearing of
this case. After supplemental briefing and oral argument to the en banc court,
we reverse the district court and render judgment of dismissal in favor of the
City of Brownsville.
                                II.   DISCUSSION
      Alvarez’s Brady claim should have been dismissed as a matter of law on
summary judgment because the City of Brownsville should not have been
subjected to municipal liability for Alvarez’s § 1983 claim. This court also
declines the invitation to disturb its precedent concerning a defendant’s
constitutional right to Brady material prior to entering a guilty plea.
   A. Municipal Liability
      Alvarez argues that the City of Brownsville, through its police
department, had an unwritten, customary policy of not disclosing exculpatory
                                       8
    Case: 16-40772     Document: 00514646077      Page: 9   Date Filed: 09/18/2018



                                  No. 16-40772
evidence obtained in the course of internal administrative investigations—a
policy that caused Alvarez’s constitutional violation. Alternatively, Alvarez
asserts that making Police Chief Garcia the sole decision-maker related to the
sharing of information from internal administrative matters created the high
possibility of a constitutional violation. Because of Police Chief Garcia’s
oversight, Alvarez asserts that the City of Brownsville should be held liable as
a municipality. This court is not persuaded by Alvarez’s arguments.
      Summary judgment rulings are subject to de novo review. Aldous v.
Darwin Nat’l Assurance Co., 851 F.3d 473, 477 (5th Cir. 2017), vacated in part
by 889 F.3d 798 (5th Cir. 2018). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “‘A
complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial’ and ‘mandates the
entry of summary judgment’ for the moving party.” United States ex rel.
Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). “We resolve factual
controversies in favor of the nonmoving party, but only when there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.” State Farm Fire & Casualty Co. v. Flowers, 854 F.3d 842,
844 (5th Cir. 2017) (quoting Little v. Liquid Air Corp., 37 F.3d 1068, 1075 (5th
Cir. 1994)).
      Three essential elements must be established for a municipality to face
§ 1983 liability. There must be: (1) a policymaker; (2) an official policy; and (3)
a violation of a constitutional right whose “moving force” is the policy or
custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). An official policy
                                        9
    Case: 16-40772     Document: 00514646077      Page: 10    Date Filed: 09/18/2018



                                   No. 16-40772
“usually exists in the form of written policy statements, ordinances, or
regulations, but may also arise in the form of a widespread practice that is so
common and well-settled as to constitute a custom that fairly represents
municipal policy.” James v. Harris County, 577 F.3d 612, 617 (5th Cir. 2009)
(quoting Piotrowski, 237 F.3d at 579) (quotation marks omitted).
      To establish that the City of Brownsville is liable as a municipality, a
policy must have been the “moving force” behind Alvarez’s constitutional
violation. See Piotrowski, 237 F.3d at 580 (quoting Monell, 436 U.S. at 694).
Stated differently, Alvarez “must show direct causation, i.e., that there was ‘a
direct causal link’ between the policy and the violation.” See James, 577 F.3d
at 617 (quoting Piotrowski, 237 F.3d at 580). Additionally, Alvarez must
demonstrate that the policy was implemented with “deliberate indifference” to
the “known or obvious consequences” that constitutional violations would
result. See Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 407
(1997). To base deliberate indifference on a single incident, “it should have
been apparent to the policymaker that a constitutional violation was the highly
predictable consequence of a particular policy.” Burge v. St. Tammany Par.,
336 F.3d 363, 373 (5th Cir. 2003). The causal link “moving force” requirement
and the degree of culpability “deliberate indifference” requirement must not be
diluted, for “where a court fails to adhere to rigorous requirements of
culpability and causation, municipal liability collapses into respondeat
superior liability.” Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998)
(quoting Brown, 520 U.S. at 415).
      Assuming that Police Chief Garcia is a policymaker and that the practice
of not freely sharing information from the internal administrative
investigations with the criminal investigation division constitutes a policy,
Alvarez’s theory of liability falls short in two respects: (1) there is not a “direct
                                         10
    Case: 16-40772    Document: 00514646077       Page: 11   Date Filed: 09/18/2018



                                  No. 16-40772
causal link between the policy and the violation,” and (2) there was no
“deliberate indifference” shown. See Valle v. City of Hous., 613 F.3d 536, 542
(5th Cir. 2010); James, 577 F.3d at 617 (quoting Piotrowski, 237 F.3d at 580).
      First, there is not “a direct causal link between the policy and the
violation.” See James, 577 F.3d at 617 (quoting Piotrowski, 237 F.3d at 580).
When questioned about whether he could turn materials over to the criminal
investigation division, Sergeant Infante stated that “if something would have
been asked of me by the criminal investigation, I would have submitted it.”
Moreover, Police Chief Garcia and Commander Avitia both stated that
Sergeant Infante should have disclosed the videos of the incident if he was
aware of the criminal investigation against Alvarez. Commander Avitia
further stated that “[v]ideos are videos. They should be able to be available to
either one of the investigations. . . . They’re available for both investigations.”
The criminal investigator, Officer Carrejo, also neglected to request or inquire
about any video recordings of the incident despite knowing about the presence
of cameras in the jail. Lieutenant Etheridge stated that the criminal
investigation division did not conduct a proper investigation because of its
failure to collect all of the evidence. Lieutenant Etheridge further noted that,
“[i]f I knew that [the criminal investigation division] wasn’t conducting proper
investigations in regards to collecting that video, by all means, I would have
taken corrective action to . . . get that video in their hands.”
      This series of interconnected errors within the Brownsville Police
Department that involved individual officers was separate from the general
policy of non-disclosure of information from the internal administrative
investigations. The general policy of non-disclosure was not a direct cause of
Alvarez’s injury. See Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir.
1992) (“To form the basis of liability under § 1983, a municipal policy must be
                                        11
    Case: 16-40772    Document: 00514646077     Page: 12   Date Filed: 09/18/2018



                                 No. 16-40772
affirmatively linked to the constitutional violation and be the moving force
behind it.”).
      Second, this general policy of non-disclosure was not implemented with
“deliberate indifference.” To show deliberate indifference based on a single
incident, there must be evidence that shows that it should have been apparent
or obvious to the policymaker that a constitutional violation was the “highly
predictable consequence” of the particular policy. See Burge, 336 F.3d at 373;
Brown v. Bryan County, 219 F.3d 450, 461 (5th Cir. 2000). While it was
established that information from internal administrative investigations is
generally not shared, Sergeant Infante, Commander Avitia, Lieutenant
Etheridge, and Police Chief Garcia still understood that this policy did not
prohibit them from disclosing video recordings. Moreover, if Officer Carrejo
requested or inquired about the existence of any videos of the incident, the
videos would have been turned over. Because of the understanding throughout
the police department that even with the policy that possibly exculpatory
evidence such as the videos could be disclosed, it was by no means “apparent”
that a constitutional violation was a “highly predictable consequence” of the
general policy of non-disclosure. See Burge, 336 F.3d at 373. Put another way,
it can not be “apparent” that a constitutional violation is a “highly predictable
consequence” if no impression is created from the policy that the evidence
central to the alleged violation has to be withheld. Accordingly, there was no
“deliberate indifference” shown in implementing this policy. See id. (citing
Brown, 219 F.3d at 461).
      Even if this court adopts Alvarez’s alternative theory that the “policy”
was Police Chief Garcia being vested with the sole authority to review the
internal administrative investigation reports, there is no showing that this
policy was adopted or implemented with deliberate indifference. When
                                       12
   Case: 16-40772       Document: 00514646077    Page: 13     Date Filed: 09/18/2018



                                  No. 16-40772
advancing this theory, Alvarez lodges two different concepts for how deliberate
indifference was shown. First, Alvarez asserts that the policy of allowing Police
Chief Garcia to be the sole decision maker relating to the internal
investigations was deliberately indifferent because there was no safety net to
catch Police Chief Garcia’s mistakes. Second, Alvarez avers that Police Chief
Garcia implemented this policy with deliberate indifference because he
overlooked internal administrative reports, knowing that his error would
probably result in the violation of an individual’s constitutional rights.
      Both of Alvarez’s arguments are unavailing. Placing the final decision
making authority in the hands of one individual, even if it makes an error more
likely, does not by itself establish deliberate indifference. “Deliberate
indifference is a degree of culpability beyond mere negligence or even gross
negligence; it must amount to an intentional choice, not merely an
unintentionally negligent oversight.” James, 577 F.3d at 617–18 (quoting
Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992) (quotation marks
omitted). No evidence from the record indicates that Police Chief Garcia’s
actions should be characterized as anything more than negligent oversight.
Moreover, Alvarez points to no case from any circuit that premises § 1983
municipal   liability   on   a   policymaker’s   deliberate    indifference   to   a
constitutional right that a circuit court has expressly held does not exist—e.g.,
the defendant’s right to be presented with Brady material before entering a
guilty plea. No deliberate indifference was shown to establish municipal
liability under this alternative theory proposed by Alvarez.
      In conclusion, the City of Brownsville should not have been liable as a
matter of law for Alvarez’s § 1983 action.




                                        13
   Case: 16-40772     Document: 00514646077     Page: 14   Date Filed: 09/18/2018



                                 No. 16-40772
   B. Extension of the Brady right to the Plea Bargaining Process
      Alvarez additionally argued to the en banc court that his guilty plea did
not preclude him from asserting a viable Brady claim for his § 1983 action.
Prior to this court granting Alvarez’s petition for rehearing en banc, settled
precedent in this circuit held that there was no constitutional right to Brady
material prior to a guilty plea. See United States v. Conroy, 567 F.3d 174, 178–
79 (5th Cir. 2009) (citing Matthew v. Johnson, 201 F.3d 353, 361–62 (5th Cir.
2000)). Alvarez argues that under Brady the videos of the incident between
him and Officer Arias constituted exculpatory evidence that he was
constitutionally entitled to before the entry of his guilty plea. See 373 U.S. at
87. This court declines the invitation to uproot its precedent.
      In United States v. Ruiz, the Supreme Court held that “the Constitution
does not require the Government to disclose material impeachment evidence
prior to entering a plea agreement with a criminal defendant.” 536 U.S. 622,
633 (2002). The Supreme Court stated that impeachment information was not
“critical information of which the defendant must always be aware prior to
pleading guilty.” Id. at 630. The Supreme Court, however, did not explicitly
address whether the withholding of exculpatory evidence during the pretrial
plea bargaining process would violate a defendant’s constitutional rights. See
id. at 630–33.
      In Conroy, this court addressed the scope of a defendant’s constitutional
entitlement to Brady material before he enters a guilty plea. 567 F.3d at 179.
Unequivocally, the court rejected the defendant’s argument that Ruiz states
that impeachment and exculpatory evidence should be treated differently, and
that exculpatory evidence must be turned over before the entry of a guilty plea.
Id. This court stated, “Ruiz never makes such a distinction nor can this
proposition be implied from its discussion. Accordingly, we conclude that [the
                                       14
    Case: 16-40772     Document: 00514646077      Page: 15    Date Filed: 09/18/2018



                                   No. 16-40772
defendant’s] guilty plea precludes her from claiming that the government’s
failure to disclose . . . was a Brady violation.” Id.
      The First, Second, and Fourth Circuits also seem to have doubts about a
defendant’s constitutional entitlement to exculpatory Brady material before
entering a guilty plea. In United States v. Mathur, the First Circuit explained
that, “[t]he animating principle of Brady is the avoidance of an unfair trial. It
is, therefore, universally acknowledged that the right memorialized in Brady
is a trial right.” 624 F.3d 498, 506–07 (1st Cir. 2010) (internal citation omitted).
Extending Brady to pretrial plea negotiations was characterized as “new
ground,” a “novel approach,” and an “unprecedented expansion of Brady.” Id.
at 507. The First Circuit noted that “Ruiz teaches that Brady does not protect
against the possible prejudice that may ensue from the loss of an opportunity
to plea-bargain with complete knowledge of all relevant facts.” Id. “[W]hen a
defendant chooses to admit his guilt, Brady concerns subside.” Id. (“The Brady
rule’s focus on protecting the integrity of trials suggests that where no trial is
to occur, there may be no constitutional violation.” (quoting Matthew, 201 F.3d
at 361)).
      Additionally, the Second Circuit in Friedman v. Rehal stated the
“Supreme Court has consistently treated exculpatory and impeachment
evidence in the same way for the purpose of defining the obligation of a
prosecutor to provide Brady material prior to trial, and the reasoning
underlying Ruiz could support a similar ruling for a prosecutor’s obligations
prior to a guilty plea.” 618 F.3d 142, 154 (2d Cir. 2010) (internal citation
omitted).
      Likewise, the Fourth Circuit in United States v. Moussaoui emphasized
that “[t]he Brady right . . . is a trial right” that “exists to preserve the fairness
of a trial verdict and to minimize the chance that an innocent person would be
                                         15
   Case: 16-40772     Document: 00514646077      Page: 16   Date Filed: 09/18/2018



                                  No. 16-40772
found guilty.” 591 F.3d 263, 285 (4th Cir. 2010) (emphasis in original). The
Fourth Circuit went on citing the Fifth Circuit’s Matthew and Orman opinions,
stating “[w]hen a defendant pleads guilty, those concerns are almost
completely eliminated because his guilt is admitted.” Id. (citing Orman v. Cain,
228 F.3d 616, 617 (5th Cir. 2000); Matthew, 201 F.3d at 361). After
acknowledging the circuit split for whether the Brady right extended to the
guilty plea context, the Fourth Circuit did not decide the issue. Id. at 286.
      The Seventh, Ninth, and Tenth Circuits, however, recognized the
possible distinction noted by the Supreme Court in Ruiz between impeachment
and exculpatory evidence in the guilty plea context. In McCann v.
Mangialardi, the Seventh Circuit stated that “Ruiz indicates a significant
distinction between impeachment information and exculpatory evidence of
actual innocence.” 337 F.3d 782, 788 (7th Cir. 2003). The Seventh Circuit went
on to say, “[g]iven this distinction, it is highly likely that the Supreme Court
would find a violation of the Due Process Clause if prosecutors or other
relevant government actors have knowledge of a criminal defendant’s factual
innocence but fail to disclose such information to a defendant before he enters
into a guilty plea.” Id. In the next line, the court explained that “[w]e need not
resolve this question” because the plaintiff did not present evidence that the
defendant was aware of the potential exculpatory evidence. Id.
      In United States v. Ohiri, the defendant contended that the government
committed Brady violations by failing to disclose exculpatory evidence prior to
his decision to plead guilty. 133 F. App’x 555, 556 (10th Cir. 2005)
(unpublished). The Tenth Circuit explained that the “government should have
disclosed all known exculpatory information at least by that point in the
proceedings” prior to the defendant’s guilty plea entered on the first day of jury
selection. Id. at 562. Notably, “the unusual circumstances presented” by the
                                       16
   Case: 16-40772     Document: 00514646077     Page: 17   Date Filed: 09/18/2018



                                 No. 16-40772
defendant’s acceptance of an “eleventh-hour plea agreement” on the day the
defendant was set to go to trial was highlighted in the court’s reasoning. See
Ohiri, 133 F. App’x at 562. The Tenth Circuit emphasized that, unlike Ruiz,
the evidence the prosecution withheld from the defendant was alleged to be
exculpatory and not just impeachment evidence. Id. The court concluded by
stating that “the Supreme Court [in Ruiz] did not imply that the government
may avoid the consequence of a Brady violation if the defendant accepts an
eleventh-hour plea agreement while ignorant of withheld exculpatory evidence
in the government’s possession.” Id.
      Similarly, the Ninth Circuit alluded to possibly allowing a defendant to
assert a Brady violation after pleading guilty. See Smith v. Baldwin, 510 F.3d
1127, 1148 (9th Cir. 2007) (en banc). When the Ninth Circuit referred to the
defendant’s ability to assert a Brady violation after pleading guilty, the court
cited to a case predating Ruiz for the proposition that the defendant could still
assert a viable Brady claim even though he pled guilty. See id. (citing Sanchez
v. United States, 50 F.3d 1148, 1454 (9th Cir. 1995)).
      In sum, case law from the Supreme Court, this circuit, and other circuits
does not affirmatively establish that a constitutional violation occurs when
Brady material is not shared during the plea bargaining process. The en banc
court will not disturb this circuit’s settled precedent and abstains from
expanding the Brady right to the pretrial plea bargaining context for Alvarez.


                             III. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s judgment,
and RENDER judgment in favor of the City of Brownsville. Alvarez’s action
against the City of Brownsville is DISMISSED with prejudice.


                                       17
    Case: 16-40772     Document: 00514646077      Page: 18    Date Filed: 09/18/2018



                                   No. 16-40772
EDITH H. JONES, Circuit Judge, joined by SMITH and HO, Circuit Judges,
concurring:

      I am pleased to join Chief Judge Stewart’s opinion for the court, with
which I fully agree. The genesis of this case is, however, troubling, and worth
noting. It is an unsavory vehicle in which to be discussing significant theories
of law.
      How Alvarez 1 obtained his habeas relief in the state appellate court,
using his then-attorney Lucio, who later became a co-defendant in a federal
RICO and bribery prosecution against then-Cameron County DA Villalobos, is
more than suspicious. The state courts were presented a redacted video of the
encounter between Alvarez and Officer Arias, which omitted a crucial 30+
seconds leading up to their tussle. In that period of time, it was evident that
Alvarez was arguing with and resisting the officers’ instructions to move from
one cell into another. Unredacted, the video portrays a much more complex
picture of events than the “self defense” theory propounded by attorney Lucio.
Lucio also offered the supporting testimony of Alvarez’s former attorney, de la
Fuente, an unindicted co-conspirator in the bribery case. In the state habeas
court, the DA’s office, oddly, never questioned the video, immediately agreed
to a new trial, and apparently offered an agreed set of findings and conclusions.
That court granted only a new trial.          When Lucio appealed to the state
appellate court on his “actual innocence” theory—which is supportable only if
one sees no more than the redacted video—the DA filed no response. After the
appellate court remanded, the DA quickly dismissed charges.               One may




      1  I have no knowledge whether Alvarez had any information about the attorneys’
deeds in his case.
                                         18
   Case: 16-40772     Document: 00514646077     Page: 19    Date Filed: 09/18/2018



                                 No. 16-40772
surmise, as Gilbert & Sullivan wrote in Trial by Jury, Alvarez’s release “was
managed by a job, and a good job too.”
      For present purposes, the point is that without having been “exonerated”
by the state courts, Alvarez could not pursue his very novel Section 1983 claim
against the City. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364,
2372 (1994). Alvarez’s damage suit proceeded contemporaneously in federal
court with the RICO/bribery charges against the former DA and his attorney
cohorts. Indeed, the judge originally assigned to Alvarez’s case had to recuse
when he became responsible for the criminal case. In the bribery prosecution,
Alvarez’s habeas case was mentioned indirectly.            The City’s attorneys
attempted repeatedly to challenge the redacted video in Alvarez’s civil suit, but
the federal court ignored their efforts. Why? I do not understand the district
court’s unwillingness to explore whether Alvarez’s case was founded on
doctored evidence. If doctored evidence tainted Alvarez’s habeas case, the
federal court would have had to consider ethical action against certain
attorneys. On the other hand, it would not have had to opine on unusual issues
concerning municipal liability and the ramifications of the Brady doctrine.
      Allegations of doctored evidence here may have been misplaced, but
surely they were not frivolous. Because factual integrity is the gateway to
litigating a claim in court, Fed. R. Civ. P. 11, integrity in the fact-finding
process must be maintained vigilantly. No defendant, including the City,
should be persecuted by means of litigation with a false foundation.           It’s
unfortunate if that is what happened here.
      I urge our colleagues at the district court level to be more attuned to non-
frivolous complaints of potentially unethical behavior.




                                       19
    Case: 16-40772       Document: 00514646077          Page: 20     Date Filed: 09/18/2018



                                       No. 16-40772
STEPHEN HIGGINSON, Circuit Judge, joined by JOLLY, JONES, WIENER
and OWEN, Circuit Judges, concurring:

       Criminal discovery rules and practices vary. In federal criminal cases,
discovery practices are responsive to local court and professionalism
requirements, notably the United States Attorney’s Manual; 1 the rulemaking
process—itself dynamic and receptive to change urged by criminal justice
participants—notably Fed. R. Crim. P. 16 (Discovery and Inspection);
legislative initiatives, notably the Jencks Act, 18 U.S.C. 3500; and, judicial
decisions elaborating the due process imperative for fundamental fairness,
notably Brady v. Maryland, 373 U.S. 83 (1963).
       I write in agreement with the majority that we should not stretch the
last by constitutionalizing Brady forward in time from a fair trial right
(“existing Brady”) to a pre-plea right (“new Brady”), as well as to observe that
the Who, What and When components of any new disclosure obligation be
described with clarity to prosecutors, defense counsel and trial judges.
       Who owes new Brady disclosure (after what, if any, search)? Existing
Brady law imposes constructive knowledge on the government, see, e.g., Kyles
v. Whitley, 514 U.S. 419, 437 (1995) (“[T]he individual prosecutor has a duty to
learn of any favorable evidence known to the others acting on the government's
behalf in the case, including the police.”). If an earlier-in-time, new Brady right
is recognized, the orbit of government responsibility must be drawn. Guilty
plea agreements which offer benefits to defendants are vitally important to



       1 See e.g. U.S.A.M. 9-5.001(D) (Timing of disclosure); id. 9-5.001(D)(1) (“Exculpatory
information must be disclosed reasonably promptly after it is discovered.”); id. 9-11.233 (“It
is the policy of the Department of Justice, however, that when a prosecutor conducting a
grand jury inquiry is personally aware of substantial evidence that directly negates the guilt
of a subject of the investigation, the prosecutor must present or otherwise disclose such
evidence to the grand jury before seeking an indictment against such a person.”).
                                             20
   Case: 16-40772    Document: 00514646077      Page: 21   Date Filed: 09/18/2018



                                 No. 16-40772
accused persons yet remain a matter of executive discretion.         Those plea
agreement offers may well be withheld if a Brady imputation rule applies to
prosecutors when a matter is still being investigated with disparate law
enforcement involvement, especially when law enforcement is responding to
reactive crimes and arrests. Or plea agreement offers may come only with a
waiver of any such new Brady right. Cf. United States v. Sylvester, 583 F.3d
285, 293-294 (5th Cir. 2009) (allowing case-in-chief plea statement waivers). Or
they may come slowly, after coordinated due diligence review of investigative
materials, regardless of whether a defendant seeks to avoid pretrial detention
and the possibility of superseding charges by accepting responsibility and
pleading guilty quickly.
      What must be disclosed? The answer seems to be Brady minus Ruiz, yet
that would revive difficult distinctions between exculpatory and impeachment
evidence which bedeviled earlier due process caselaw. See United States v.
Bagley, 473 U.S. 667, 676 (1985).
      When must disclosure occur? The constitution does not prevent accused
persons from acknowledging responsibility and guilt, yet any new Brady rule
likely would require prosecutors to collect and review existing evidence first,
perhaps, as noted, seeking pretrial detention during that time, as well as,
thereafter, superseding with additional charges if more, not less, incriminating
evidence is found. Depending on the timing of any new Brady rule, especially
one triggered by a defendant’s stated intention to plead guilty, courts may need
to anticipate pretrial detention requests against defendants who seek to plead
guilty as well as requests for in camera submissions or protective orders to
safeguard victims and witnesses.
      Fairness and truth-finding are imperatives. Berger v. United States, 295
U.S. 78, 88 (1935). For that reason, it is worthwhile to emphasize that the
                                      21
    Case: 16-40772       Document: 00514646077          Page: 22     Date Filed: 09/18/2018



                                       No. 16-40772
constitution already protects against prosecutors who use false evidence to
obtain a conviction. Napue v. Illinois, 360 U.S. 264, 269 (1959); Giglio v. United
States, 405 U.S. 150 (1972); cf. Ferrara v. United States, 456 F.3d 278, 291-297
(1st Cir. 2006) (nondisclosure “so outrageous that it constituted impermissible
prosecutorial misconduct sufficient to ground the petitioner's claim that his
guilty plea was involuntary”). 2
       And the constitution already protects against ineffective assistance of
counsel, which occurs regardless of the attractiveness of a plea offer if counsel,
in the best position to have ascertained innocence, fails to “investigate[] the
law and circumstances” relating to a defendant’s guilty plea. See United States
v. Juarez, 672 F.3d 381, 390 (5th Cir. 2012); Hill v. Lockhart, 474 U.S. 52, 59
(1985).
       Finally, the constitution already assures further protection against the
miscarriage of justice of an innocent pleading guilty by requiring that judges
engage in extended, direct colloquy with defendants who seek to confirm their
guilt under oath. Boykin v. Alabama, 395 U.S. 238 (1969); Fed. R. Crim. P.
11(b)(1). Judges must confirm that a factual basis supports every guilty plea.
See Fed. R. Crim. P. 11(b)(3); cf. United States v. Gobert, 139 F.3d 436, 439-441




       2 Furthermore, existing Brady is a continuing duty, United States v. Cessa, 861 F.3d
121, 134 n.8 (5th Cir. 2017) (“Brady obligations are continuing throughout trial, and are
neither dependent on a request from the defendant nor the form of the Brady material.”), and
extends to sentencing, Brady v. Maryland, 373 U.S. 83, 87-88 (1963), thus may be violated if
a prosecutor withholds evidence which contradicts a presentence report offense narrative the
government relies on. As with a proffer of a factual basis at rearraignment, endorsement of
a presentence report will occur during the period when defendants may seek to withdraw
their guilty pleas and any existing Brady obligation and disclosure triggered by use of a
factual basis or presentence report may well qualify as a “fair and just reason for requesting
withdrawal.” Fed. R. Crim. P. 11(d).
                                             22
    Case: 16-40772      Document: 00514646077         Page: 23    Date Filed: 09/18/2018



                                     No. 16-40772
(5th Cir. 1998) (finding clear error in acceptance of guilty plea without adequate
factual basis). 3




      3Indeed, judges frequently ask defendants to confirm their guilt in their own words.
This may be particularly advisable when defendants and the government submit plea
agreements with especially favorable terms for court acceptance. Fed. R. Crim. P. 11(c)(2)-
(5).
                                            23
    Case: 16-40772    Document: 00514646077      Page: 24    Date Filed: 09/18/2018



                                  No. 16-40772
JAMES C. HO, Circuit Judge, joined by E. GRADY JOLLY, EDITH H. JONES,
JERRY E. SMITH, EDITH BROWN CLEMENT, and PRISCILLA R. OWEN,
Circuit Judges, concurring:

      A number of circuits are openly flirting with, if not embracing outright,
a novel alteration of the constitutional doctrine first announced in Brady v.
Maryland, 373 U.S. 83 (1963). See, e.g., Smith v. Baldwin, 510 F.3d 1127, 1148
(9th Cir. 2007) (en banc) (citing Sanchez v. United States, 50 F.3d 1448, 1454
(9th Cir. 1995)); United States v. Ohiri, 133 F. App’x 555, 562 (10th Cir. 2005)
(unpublished); McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003).
      Under Brady, the defendant has the right to review exculpatory material
from the prosecution team in order to prepare for trial. Under the proposed
new rule, the prosecution team is now required to disclose such material, even
if the accused does not want it, and instead seeks to plead guilty—and if the
accused does not receive the material, he can later nullify the plea agreement.
      The proposed rule is foreclosed by circuit precedent. And Chief Judge
Stewart’s en banc majority opinion expressly declines any invitation to
overrule our precedent. I am pleased to join his excellent opinion.
      I write separately to make two points about precedent. First, there was
no justification for the district court to ignore our circuit precedent. Second,
our circuit precedent was correctly decided.        Indeed, it is compelled by
established principles of constitutional law:      Brady announced a right to
exculpatory evidence as part of the right to a fair trial. Pleading guilty waives
the right to a trial, and inherent in that waiver is the waiver of subsidiary trial
rights such as Brady.      The district court contradicted these established
principles when it extended Brady to the plea bargaining stage and treated it
not as a right of the accused, but as a requirement defendants cannot waive.
      I concur in the reversal of the district court.

                                        24
   Case: 16-40772     Document: 00514646077     Page: 25   Date Filed: 09/18/2018



                                 No. 16-40772
                                       I.
      If the constitutional theory urged by George Alvarez and his amici had
been an open question in this circuit, the district court could have attempted
to justify its judgment on either the text or original understanding of the
Constitution or on a faithful application of analogous Supreme Court or circuit
precedent.
      But that is not this case. To the contrary, the district court awarded a
$2.3 million judgment based on a constitutional theory that our previous
rulings expressly foreclose. See United States v. Conroy, 567 F.3d 174, 178–79
(5th Cir. 2009) (per curiam) (citing Matthew v. Johnson, 201 F.3d 353, 361–62
(5th Cir. 2000)). What’s more, the district court did not even cite—let alone
distinguish—our prior precedents.
      In describing the judicial power established in Article III of the
Constitution, Federalist 78 observes that, “[t]o avoid an arbitrary discretion in
the courts, it is indispensable that they should be bound down by strict rules
and precedents, which serve to define and point out their duty in every
particular case that comes before them.” THE FEDERALIST NO. 78 (Alexander
Hamilton).
      Consistent with these foundational constitutional principles, it is long
established that district courts are bound to follow circuit precedent unless it
directly conflicts with Supreme Court precedent. See, e.g., Campbell v. Sonat
Offshore Drilling, Inc., 979 F.2d 1115, 1121 n.8 (5th Cir. 1992) (“It has been
long established that a legally indistinguishable decision of this court must be
followed by other panels of this court and district courts unless overruled en
banc or by the United States Supreme Court.”).




                                       25
   Case: 16-40772     Document: 00514646077     Page: 26   Date Filed: 09/18/2018



                                 No. 16-40772
      In the event of such a conflict, Supreme Court precedent of course plainly
controls. But there is no such conflict here: The Supreme Court has never held
that Brady establishes an unwaivable right at the plea bargaining phase.
      To the contrary, the Supreme Court has held precisely the opposite in
the context of two different categories of Brady material. See United States v.
Ruiz, 536 U.S. 622 (2002). First, prosecutors need not disclose exculpatory
impeachment evidence at the plea bargaining stage, as Chief Judge Stewart
explains. See Op. at 14–17 (citing Ruiz, 536 U.S. at 630–33). Moreover,
prosecutors need not disclose exculpatory evidence concerning any potential
affirmative defense at the plea bargaining stage. See Ruiz, 536 U.S. at 633
(“We do not believe the Constitution here requires provision” of “information
the Government has regarding any ‘affirmative defense’” “prior to plea
bargaining”); see also id. (Thomas, J., concurring) (“I agree with the Court that
the Constitution does not require the Government to disclose either affirmative
defense information or impeachment information relating to informants or
other witnesses before entering into a binding plea agreement with a criminal
defendant.”).
      Neither Alvarez nor his amici have explained why one rule should apply
to exculpatory evidence concerning the prima facie elements of a criminal case,
and a different rule should apply to exculpatory evidence concerning
affirmative defenses. Certainly nothing in the text or original understanding
of the Constitution supports such a distinction. And most importantly, no
Supreme Court decision has ever so held (tellingly, the district court does not




                                       26
    Case: 16-40772       Document: 00514646077          Page: 27     Date Filed: 09/18/2018



                                      No. 16-40772
even cite, let alone rely on, Ruiz). So there was no basis for the district court
to ignore binding circuit precedent. 1
                                             II.
       What’s more, our circuit precedent is correct: Brady is a trial right—and
it is a right that the accused waives if he agrees to a plea bargain.
       For his part, Alvarez argues that we should extend Brady from the trial
stage to the plea bargaining stage—and that we should treat Brady as a
requirement that a defendant cannot waive. As his brief contends, courts
should not only extend Brady to the plea bargaining phase, but also refuse to
credit any waiver of Brady rights, on the ground that any such “waiver cannot
be deemed ‘intelligent and voluntary’ [because it was] ‘entered without
knowledge      of   material      information      withheld     by    the    prosecution.’”
Supplemental Brief for Appellee at 36 (quoting Sanchez v. United States, 50
F.3d 1448, 1453 (9th Cir. 1995)).
       He errs on both counts. What’s more, converting Brady from a right to
a requirement would diminish, rather than enhance, its value to the accused.
                                             A.
       First, it is well established that Brady is a trial right. It is a right to
exculpatory evidence that is part and parcel of the constitutional right to a fair
trial under the Due Process Clause.




       1 Alvarez relies heavily on Supreme Court decisions that extend the requirement of
effective assistance of counsel to the plea bargaining stage. See, e.g., Lafler v. Cooper, 566
U.S. 156, 162–63 (2012); Missouri v. Frye, 566 U.S. 134, 140 (2012); Padilla v. Kentucky, 559
U.S. 356, 364–66 (2010). But none of those cases purport to question or undermine the
Court’s earlier decision in Ruiz declining to extend Brady to the plea bargaining phase. If
there is conceptual tension in extending the effective assistance of counsel requirement to
the plea bargaining stage, but not Brady, it has not troubled the Supreme Court.
                                             27
    Case: 16-40772    Document: 00514646077       Page: 28   Date Filed: 09/18/2018



                                  No. 16-40772
      The Supreme Court has repeatedly characterized the Brady right as
necessary to ensure a fair trial—characterizations that contradict the
suggestion    that   disclosure   is   additionally   required    to   ensure   the
constitutionality of pre-trial proceedings. In United States v. Agurs, 427 U.S.
97 (1976), for example, the Court observed that “the prosecutor will not have
violated his constitutional duty of disclosure unless his omission is of sufficient
significance to result in the denial of the defendant’s right to a fair trial.” Id.
at 108. See also, e.g., Ruiz, 536 U.S. at 628 (describing Brady as “a right that
the Constitution provides as part of its basic ‘fair trial’ guarantee”) (citing U.S.
CONST. amend. V, VI; Brady, 373 U.S. at 87); United States v. Bagley, 473 U.S.
667, 675 (1985) (“The Brady rule is based on the requirement of due process.
. . . [A prosecutor must] disclose evidence favorable to the accused that, if
suppressed, would deprive the defendant of a fair trial.”); Weatherford v.
Bursey, 429 U.S. 545, 559 (1977) (“[U]nder Brady . . . the prosecution has the
‘duty under the due process clause to insure that “criminal trials are fair” by
disclosing evidence favorable to the defendant upon request.’”) (citation
omitted).
      The entire purpose of plea bargains, of course, is to avoid the need for
trial altogether.    Extending Brady to the plea bargaining phase thus
contradicts the established understanding of Brady as a trial right. As Justice
Thomas observed in Ruiz: “The principle supporting Brady was ‘avoidance of
an unfair trial to the accused.’ That concern is not implicated at the plea
stage.” Ruiz, 536 U.S. at 634 (Thomas, J., concurring) (citation omitted).
                                        B.
      The proposed new rule also misunderstands the basic nature of plea
bargains. Plea bargains, by their very definition, involve the waiver of a
number of fundamental rights.
                                        28
    Case: 16-40772    Document: 00514646077      Page: 29    Date Filed: 09/18/2018



                                  No. 16-40772
      First and foremost, plea bargains waive the right to trial itself. What’s
more, inherent in the waiver of trial is a waiver of all rights attendant to a fair
trial—such as the Fifth Amendment right against self-incrimination, the Sixth
Amendment rights to a trial before a jury, to confront one’s accusers, and to
obtain compulsory process, and the right to disclosure of exculpatory evidence
under Brady. See, e.g., Florida v. Nixon, 543 U.S. 175, 187 (2004) (“By entering
a guilty plea, a defendant waives constitutional rights that inhere in a criminal
trial, including the right to trial by jury, the protection against self-
incrimination, and the right to confront one’s accusers.”) (citing Boykin v.
Alabama, 395 U.S. 238, 243 (1969)); Godinez v. Moran, 509 U.S. 389, 397 n.7
(1993) (same); Winters v. Cook, 489 F.2d 174, 179 (5th Cir. 1973) (en banc)
(“[P]ersonal fundamental rights include the right to plead guilty (which of
course encompasses the waiver of numerous rights), the right to waive trial by
jury, the right to waive appellate review and the right to testify personally.”)
(citing Developments in the Law—Federal Habeas Corpus, 83 HARV. L. REV.
1038, 1011 n. 102 (1970)).
      The point is simply this: The Constitution enumerates a series of rights
of the accused—but the defendant may waive those rights, for example, in
exchange for leniency in a plea agreement. There is no reason to treat Brady
any differently. To the contrary, to regard Brady, not as a right that the
accused can waive, but as a requirement that prosecutors must obey, would be
incongruous with our approach to other similar constitutional doctrines.
      No one would claim, for example, that plea bargaining itself is
unconstitutional—even though it inherently involves the right to trial under
the Sixth Amendment. See, e.g., Brady v. United States, 397 U.S. 742, 748
(1970) (“[T]he plea is more than an admission of past conduct; it is the
defendant’s consent that judgment of conviction may be entered without a
                                        29
    Case: 16-40772    Document: 00514646077      Page: 30   Date Filed: 09/18/2018



                                  No. 16-40772
trial—a waiver of his right to trial before a jury or a judge.”); Adams v. United
States ex rel. McCann, 317 U.S. 269, 276 (1942) (“It hardly occurred to the
framers of the original Constitution and of the Bill of Rights that an accused,
acting in obedience to the dictates of self-interest or the promptings of
conscience, should be prevented from surrendering his liberty by admitting his
guilt.”).
       It is likewise well established that the accused has the right to waive the
right to jury trial in favor of a bench trial. See, e.g., Adams, 317 U.S. at 278
(“[S]ince trial by jury confers burdens as well as benefits, an accused should be
permitted to forego its privileges when his competent judgment counsels him
that his interests are safer in the keeping of the judge than of the jury.”). See
also generally Erwin N. Griswold, The Historical Development of Waiver of
Jury Trial in Criminal Cases, 20 VA. L. REV. 655 (1934) (collecting materials).
       Similarly, no one here argues that the accused has an unwaivable Sixth
Amendment right to confront one’s accusers or to have compulsory process to
secure favorable witnesses, prior to agreeing to a plea bargain. Indeed, such
an argument would effectively invalidate numerous codes of criminal
procedure that generally do not permit pre-trial depositions absent special
circumstances. See, e.g., Tex. Code Crim. Proc. § 39.02; La. Code Crim. Proc.
art. 716; Miss. R. Crim. Proc. 17.5. Otherwise, in every rape or sexual abuse
case, for example, the victim would be required to endure a deposition by the
accused, even where the accused is willing to plead guilty and forgo trial.
       Neither Alvarez nor his amici offer any principled distinction as to why—
among these various trial rights, all waivable upon a plea bargain—Brady
should be treated any differently.




                                        30
    Case: 16-40772    Document: 00514646077      Page: 31   Date Filed: 09/18/2018



                                  No. 16-40772
                                        C.
      To convert Brady from a right to a requirement would not only defy
established principles of constitutional law. It would also diminish the value
of those fundamental rights to the accused.
      Rights are most valuable when individuals have the choice not to invoke
them, depending on the circumstances. An old legend tells how the King of
Siam would bestow sacred white elephants upon his political rivals. As gifts
from the king, the elephants could not be rejected. Yet the sacred pachyderms,
which could not be sold or used for work, would inevitably eat their owners out
of house and home—driving them into bankruptcy, and leaving them far worse
off than before they received the “gift.”
      Forcing unwaivable “rights” upon the accused can have a similar effect.
We empower the accused when we allow them to waive their rights. From the
defendant’s perspective, the way to maximize the value of a right is to give him
the option to waive it, just in case (as is often the case) he can exchange it for
something else that is even more valuable to him. As the Supreme Court once
put it: “When the administration of the criminal law in the federal courts is
hedged about as it is by the Constitutional safeguards for the protection of an
accused, to deny him in the exercise of his free choice the right to dispense with
some of these safeguards . . . is to imprison a man in his privileges and call it
the Constitution.” Adams, 317 U.S. at 280 (emphasis added).
      The power to waive trial rights provides the accused with a significant
bargaining chip in plea negotiations. Prosecutors lack the resources to take
every case to trial. So prosecutors have a natural incentive to offer plea deals
with lower penalties than what the accused might receive from a trial. “Plea
bargaining flows from ‘the mutuality of advantage’ to defendants and
prosecutors, each with his own reasons for wanting to avoid trial.”
                                        31
   Case: 16-40772     Document: 00514646077      Page: 32   Date Filed: 09/18/2018



                                  No. 16-40772
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). And the flip side is also true:
giving prosecutors “a reduced incentive to bargain” will accrue “to the
detriment of the many defendants for whom plea bargaining offers the only
hope for ameliorating the consequences to them of a serious criminal charge.”
Blackledge v. Perry, 417 U.S. 21, 37 (1974) (Rehnquist, J., dissenting).
      These principles apply to Brady. A defendant who agrees to waive his
Brady right relieves the prosecution team of the substantial burdens
associated with identifying, assembling, and disclosing the range of
exculpatory materials required under Brady—as explained further in Judge
Higginson’s thoughtful concurrence.         Converting the Brady right into a
prosecutorial requirement would substantially upset this balance, by giving
defendants less to offer the prosecution during the negotiations. Prosecutors
may be less likely to offer deals at all, if they are forced to expend significant
resources regardless of whether the case is pled or proceeds to trial. Or they
might offer inferior plea deals, in the form of longer sentences. Either result
is a materially worse outcome for the accused.
                                         ***
      There are times when it is necessary to upset circuit precedent—for
example, in direct response to squarely conflicting Supreme Court precedent,
or (where the Supreme Court has not yet ruled) to better align our precedents
with the text and original understanding of the Constitution or the plain
language of United States statutes. But that is not this case.
      To the contrary, the alteration of our circuit’s Brady precedents urged by
Alvarez and his amici would violate established legal principles and even
diminish the value of Brady to the accused. If there is a case to be made for
such reform, it must be accomplished through one of the mechanisms
established by our Founders, such as Article V of the Constitution, or through
                                       32
    Case: 16-40772      Document: 00514646077        Page: 33     Date Filed: 09/18/2018



                                     No. 16-40772
the proper exercise of legislative powers vested in Congress and in the several
states. Cf. Brady, 373 U.S. at 92 (separate opinion of White, J.) (“I would leave
this task, at least for now, to the rulemaking or legislative process after full
consideration by legislators, bench, and bar.”).
      I concur in the reversal of the district court. 2




      2  I also agree with the majority’s reliance on Monell. And I recognize that Monell
alone is enough to reverse the judgment of the district court—we did not have to undertake
the additional effort of addressing Brady in order to decide this appeal. But our Court
granted rehearing en banc to reach the Brady question—and it is a question our dissenting
colleagues address as well—so accordingly, I examine the Brady issue presented here.
                                           33
   Case: 16-40772    Document: 00514646077      Page: 34   Date Filed: 09/18/2018



                                 No. 16-40772
JAMES L. DENNIS, Circuit Judge, dissenting:
      I respectfully dissent from the majority opinion because, in my view, the
en banc court should have recognized the federal constitutional right of a
defendant to exculpatory evidence at the plea-bargaining stage, essentially for
the reasons described in Judge Costa’s dissent. I also join Part 1 of Judge
Graves’s dissent, in which he explains how the City’s policy of nondisclosure of
exculpatory evidence caused a violation of Alvarez’s right to the exculpatory
video that ultimately exonerated him, prior to entering his guilty plea.




                                      34
   Case: 16-40772         Document: 00514646077       Page: 35   Date Filed: 09/18/2018



                                       No. 16-40772
JAMES E. GRAVES, JR., Circuit Judge, joined by COSTA, Circuit Judge,
dissenting 1:

      I write separately to: (1) dissent from the majority’s moving force
analysis; (2) dissent from the majority’s deliberate indifference analysis; and
(3) address Brownsville’s egregiously inadequate training policies.
      1.       Non-disclosure policy was moving force for non-disclosure.
      The majority states that the Brownsville Police Department’s (“BPD”)
failure to disclose the video evidence was the result of a “series of
interconnected errors” by individual officers that was “separate from” official
BPD policy. I respectfully disagree.
      “[T]here can be no municipal liability unless [an official policy] is the
moving force behind the constitutional violation.” James v. Harris Cty., 577
F.3d 612, 617 (5th Cir. 2009). “In other words, a plaintiff must show direct
causation, i.e., that there was ‘a direct causal link’ between the policy and the
violation.” Id. (quoting Piotrowski v. Hous., 237 F.3d 567, 578 (5th Cir. 2001)).
Whether a sufficient causal link exists is a question of fact. See Jett v. Dall.
Indp. Sch. Dist., 491 U.S. 701, 737 (1989); Kirkpatrick v. Washoe, 843 F.3d 784,
797 (9th Cir. 2016); James, 577 F.3d at 618; Bielevicz v. Dubinon, 915 F.2d 845,
851 (3d Cir. 1990).
      Here, as part of the internal affairs division (“IAD”) investigation, Officer
Arias created a use of force report and submitted it up his chain of command
to Sgt. Infante and Commander Rodriguez. Infante and Rodriguez then
reviewed the report, and the video evidence, and submitted their own
individual reports to Chief Garcia. Garcia never reviewed the file, and none of
the officers disclosed the videos outside of the IAD.


      1   Judge Dennis joins part 1.
                                           35
   Case: 16-40772     Document: 00514646077       Page: 36   Date Filed: 09/18/2018



                                   No. 16-40772
      Meanwhile, Officer Carrejo, the criminal investigations division (“CID”)
officer assigned to submit the case file to the District Attorney, obtained the
IAD incident reports from the jail. Carrejo then submitted those reports to the
District Attorney without conducting additional evidentiary investigation
because there was no “evidence form” in the records alerting him that relevant
evidence existed.
      According to the majority, these actions were a “series of interconnected”
errors by the officers involved. With respect, record evidence shows that the
officers committed no errors at all under BPD policies.
      CID investigators are responsible for providing criminal case files to the
District Attorney’s office. To start that process, they collect documents, such as
incident reports, from a “cubbyhole” at the jail designated for the CID case prep
team. They then conduct evidentiary follow-up as needed, based largely on
“evidence forms” that fellow officers attach to the files provided to CID.
Without an evidence form in the file, CID investigators would be unaware that
follow-up is necessary.
      BPD has a policy, however, that IAD officers do not proactively disclose
evidence, including Brady evidence, to CID investigators. Instead, IAD officers
pass all Brady evidence up their chain of command to Chief Garcia, who has
sole responsibility to ensure that any Brady evidence is properly disclosed.
Because these officers do not disclose evidence, there is no “evidence form”
generated for the CID case file.
      Thus, contrary to the majority’s view, the officers committed no
“interconnected errors” in conducting their investigation. The IAD officers
faithfully passed the evidence up the chain of command to Chief Garcia
without disclosing the evidence to CID. In turn, the CID officer, unaware that
relevant evidence existed, conducted no evidentiary follow-up and simply
                                       36
   Case: 16-40772     Document: 00514646077     Page: 37   Date Filed: 09/18/2018



                                 No. 16-40772
passed the file to the District Attorney’s office. This was not error, it was how
the system was designed to work.
      Moreover, while the majority characterizes Garcia’s failure to review the
file as nothing “more than negligent oversight,” the record paints a different
picture. Indeed, Garcia did not review nine out of thirteen known use of force
cases. Even when Garcia did review such files, it may be “several weeks, even
up to a month or more . . . after the criminal case had been submitted to the
[D]istrict [A]ttorney’s office.” Garcia’s failure to review the instant case was
entirely in line with BPD practice.
      I therefore respectfully dissent from the majority’s conclusion that
Alvarez has not established that the non-disclosure policy was the moving force
behind the alleged violation. BPD’s policy of not disclosing exculpatory
evidence to CID investigators was the direct cause of BPD’s failure to disclose
the video evidence to the District Attorney and the defense.
      2.    Non-disclosure      policy      implemented     with     deliberate
      indifference.
      The majority next concludes that BPD could not have implemented the
non-disclosure policy with deliberate indifference because there was an
“understanding throughout the police department” that IAD officers could
disclose exculpatory evidence. With respect, that conclusion is not supported
by the record evidence.
      Though BPD officers did claim that they “should,” “could,” and “would”
have disclosed the video evidence to the CID if asked to do so, the
overwhelming weight of the evidence is that officers understood that IAD
evidence was simply not shared with CID as a matter of policy.
      For instance, officers were trained to consider IAD and CID as separate
investigative tracts that operate independently. As a result, there was a
                                       37
    Case: 16-40772      Document: 00514646077        Page: 38     Date Filed: 09/18/2018



                                     No. 16-40772
widespread belief among IAD officers that they had no duty to confirm that
CID had exculpatory evidence. Instead, IAD officers simply passed evidence up
their chain of command without disclosure to, or even consideration of, any
parallel CID investigation. That understanding was based on “in-service
training.”
      In contrast, there is no evidence to support the officers’ claims that IAD
officers would, could, or should freely disclose evidence to the CID. Quite the
opposite is true, as no BPD policy, commanding officer, or training, informed
IAD officers that they could, or even should, do so.
      Compounding this problem, BPD provided CID investigators with no
training on how to conduct their investigations. Instead, CID officers act purely
pursuant to on-the-job experience. For Carrejo, that “mostly consists of getting
ahold of victims or witnesses and get[ting] whatever information is needed for
the file.” Carrejo expects fellow officers to “book” relevant evidence in order to
generate an “evidence report,” 2 so that Carrejo can then “follow up with that
evidence.” There is no indication in the record that Carrejo received any
training, or even instruction, to pursue the robust evidentiary investigation
that Brownsville, and the majority, claims he should have done. There is
likewise no evidence at all that CID investigators ever asked IAD for evidence.
      I respectfully dissent from the majority’s conclusion that there was an
“understanding throughout the police department” that IAD officers could
disclose exculpatory evidence. The weight of the evidence states otherwise.
      I also disagree with the majority opinion’s conclusion that a deliberate
indifference theory of municipal liability was not viable because at the time we



      2 These evidence reports were among the many topics on which BPD failed to train its
CID officers.
                                           38
    Case: 16-40772     Document: 00514646077     Page: 39   Date Filed: 09/18/2018



                                  No. 16-40772
had not recognized a pre-plea right to Brady material. The City never made
this “clearly established” argument in the district court or in our court. By
adopting it sua sponte, the court repeats the mistake we recently made in
Hernandez v. Mesa, 785 F.3d 117 (5th Cir. 2015) (en banc). We held that a
border patrol agent was entitled to qualified immunity for shooting a Mexican
national because the law was not clearly established that the Fifth
Amendment applied to a foreign citizen injured outside the United States. Id.
at 121. The Supreme Court reversed, explaining that the agent did not know
at the time of the shooting whether the victim was a U.S. citizen. 137 S. Ct.
2003, 2007 (2017). The same is true for the similar deliberate indifference
inquiry here. When he failed to disclose the exculpatory video, Police Chief
Garcia did not know that Alvarez was pleading guilty. Even more than in
Mesa, he could not have known as that fact did not yet exist (that is, the plea
decision had not yet been made). But Garcia knew that the way to comply with
the Brady obligation that has long existed for cases that go to trial is to notify
the criminal investigations division of exculpatory material in the IA file so it
becomes part of the prosecutor’s file later disclosed to the defense. There was
not one procedure for transferring exculpatory evidence from the IAD side to
the investigations side for “trial” cases and a separate procedure for “plea”
cases. Because that transfer of the video to the investigations division did not
happen, Garcia was deliberately indifferent to the long recognized Brady right
for cases that get tried.
      It is true that some caselaw suggests that deliberate indifference liability
applies only when the indifference is to a clearly established right. The idea,
the same rationale for qualified immunity, is that liability should attach based
on an individual’s conduct only if there is a knowing violation of constitutional
law. That culpability exists here because Garcia was deliberately indifferent
                                       39
   Case: 16-40772     Document: 00514646077      Page: 40   Date Filed: 09/18/2018



                                  No. 16-40772
to his constitutional obligation to turn over exculpatory evidence for a case
that, like any other, could have resulted in a trial with the long recognized
Brady right. Once that deliberate indifference to a clear constitutional right is
established, it is just a matter of causation to show that the deliberate
indifference to ensuring the criminal file contained exculpatory material led to
Alvarez’s constitutional injury that Judge Costa’s opinion recognizes.
      The defect in the majority opinion on this point can be seen by imagining
this same case but with Alvarez having gone to trial on the criminal charge.
Under the majority opinion’s analysis, Garcia could avoid liability by saying
“well, when I failed to give the video to the criminal investigators, I thought he
was probably going to plead. And it is not clearly established that I have to
turn over exculpatory evidence when defendants plead.” That defense should
not immunize the City from liability because Garcia did not know how the
criminal case would be resolved when he failed to disclose the video to the
investigative side. Thus, (1) Garcia was deliberately indifferent to the clear-
as-can-be Brady rights that defendants going to trial have, and (2) Garcia’s
deliberate indifference caused the violation of Alvarez’s right to pre-plea Brady
materials.
      3.     BPD training policy was constitutionally deficient.
      Though the majority does not address Alvarez’s claim that Brownsville
failed to adequately train its officers on Brady rights, I do so because BPD’s
training policy, or rather complete lack thereof, is so deficient that it clearly
exhibits deliberate indifference to the constitutional rights of those that come
into contact with BPD officers.
      “[T]he inadequacy of police training may serve as the basis for § 1983
liability only where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police come into contact.” Canton v.
                                       40
   Case: 16-40772     Document: 00514646077      Page: 41   Date Filed: 09/18/2018



                                  No. 16-40772
Harris, 489 U.S. 378, 388 (1989). “[I]t may happen that in light of the duties
assigned to specific officers or employees the need for more or different training
is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said
to have been deliberately indifferent to the need.” Id. at 390.
      As Chief Garcia acknowledged, it is foreseeable that BPD officers will
encounter use of force incidents and, as a result, have to decide what evidence
to disclose in their reports. Garcia further acknowledged that officers will
choose what evidence to disclose “based on the type of training they receive.”
Despite this foreseeability, BPD had “no policy” of providing training on Brady.
Indeed, Chief Garcia could not even state whether any of his officers had ever
touched on Brady at any time. At best, Garcia claimed only that BPD officers
had “[m]aybe” covered Brady in non-BPD trainings - in some cases up to 30
years in the past.
      Unsurprisingly, BPD officers suffer from widespread ignorance on Brady
rights. Chief Garcia candidly admitted that “it would not surprise” him to learn
that his officers did not know what Brady obligations are. Nor should it. Officer
Arias did not know what “exculpatory” meant, and Officer Carrejo, the CID
officer assigned to provide evidence to the District Attorney, was likewise “not
familiar.”
      That such a complete failure to train on Brady rights is “likely to result
in the violation of constitutional rights” is “obvious,” see Canton, 489 U.S. at
390, because “in the absence of training, there is no way for novice officers to
obtain the legal knowledge they require.” Connick v. Thompson, 563 U.S. 51,
64 (2011). Naturally, the resulting “[w]idespread officer ignorance on the
proper handling of exculpatory materials would have the ‘highly predictable


                                       41
    Case: 16-40772     Document: 00514646077        Page: 42   Date Filed: 09/18/2018



                                     No. 16-40772
consequence’ of due process violations.” See Gregory v. Louisville, 444 F.3d 725,
753 (6th Cir. 2006).
      Brownsville’s complete lack of training on Brady rights evidences
“deliberate indifference to the [constitutional] rights of persons with whom the
police come into contact.” See Canton, 489 U.S. at 388; see also Gregory, 444
F.3d at 753-54.
                                 CONCLUSION
      The district court thought the evidence showing municipal liability was
so strong that it granted summary judgment on that issue in favor of the
plaintiff. The majority opinion does a 180-degree turn and holds there is no
municipal liability as a matter of law. For the reasons I have discussed, at a
minimum, there are factual disputes that a jury should resolve on municipal
liability. I respectfully dissent.




                                         42
    Case: 16-40772       Document: 00514646077          Page: 43     Date Filed: 09/18/2018



                                       No. 16-40772
GREGG COSTA, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting:
       Let this sink in: If George Alvarez had been convicted of a federal crime
in this circuit, he would have served his full 10-year sentence despite
eventually discovering that the government failed to disclose an exculpatory
video. That is because we are the only federal court of appeals that has held
that a defendant who pleads guilty is not entitled to evidence that might
exonerate him. Fortunately for Alvarez, and for those who believe that “justice
suffers when any accused is treated unfairly,” Brady v. Maryland, 373 U.S. 83,
87 (1963), he was convicted of a state offense. 1 For almost forty years, Texas
has interpreted the federal Brady right to require the government to provide
exculpatory information “to defendants who plead guilty as well as to those
who plead not guilty.” Ex parte Lewis, 587 S.W. 2d 697, 701 (Tex. Crim. App.
1979); see also Ex parte Johnson, 2009 WL 1396807, at *1 (Tex. Crim. App.
May 20, 2009) (vacating a guilty plea because of a Brady violation). Texas is
not alone. The highest courts of other states that have considered this question
agree that defendants have a federal due process right to exculpatory evidence
before they plead guilty. See Buffey v. Ballard, 782 S.E.2d 204, 218 (W. Va.
2015); State v. Huebler, 275 P.3d 91, 96–97 (Nev. 2012); Hyman v. State, 723
S.E.2d 375, 380 (S.C. 2012); Medel v. State, 184 P.3d 1226, 1235 (Utah 2008).
Because we now have “for the most part a system of pleas, not a system of
trials,” Lafler v. Cooper, 566 U.S. 156, 170 (2012), today’s opinion reaffirming
our outlier position means that the vast majority of defendants in this circuit



       1 In its amicus brief, the Department of Justice points to the grant of habeas relief in
Alvarez’s case as an example of the “existing remedies . . . typically available to defendants
who admit their guilt but later claim actual innocence” that makes a Brady right unnecessary
for such defendants. U.S. Br. 13. This ignores that federal habeas law, whether reviewing
state or federal convictions, would not provide that relief because it does not recognize a
freestanding innocence claim. Herrera v. Collins, 506 U.S. 390, 400 (199).
                                             43
    Case: 16-40772    Document: 00514646077       Page: 44   Date Filed: 09/18/2018



                                  No. 16-40772
will not have a right to relief if it comes to light after their conviction that the
government suppressed exculpatory evidence.
      The origins of the Brady right support Texas courts’ longstanding view
that it requires pre-plea disclosure of exculpatory evidence.         The seminal
Supreme Court case describes the right as a due process requirement for a
prosecutor, upon request, to disclose information favorable to the accused that
“is material either to guilt or to punishment.” Brady, 373 U.S. at 87. Although
the more common framing of the right is the first characterization that relates
to “innocence or guilt,” Brady itself was a case about punishment as the
suppressed confession only resulted in a new sentencing trial. Id. at 90–91. It
is notable that the right has from its inception applied to the sentencing phase
of a proceeding that is vitally important but “does not concern the defendant’s
guilt or innocence.” Lafler, 566 U.S. at 165. Because a plea hearing is all about
a defendant’s guilt or innocence, it more strongly implicates Brady’s
“overriding concern with the justice of the finding of guilt.” United States v.
Bagley, 473 U.S. 667, 678 (1985) (quoting United States v. Agurs, 427 U.S. 97,
112 (1976). It certainly does so more directly than does a suppression hearing
where the focus is on whether the government unlawfully obtained evidence,
see United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999), yet we have
recognized the Brady right extends to suppression motions. Smith v. Black,
904 F.2d 950, 965–66 (1990), vacated on other grounds, 503 U.S. 930 (1992).
And the Brady rule seeks “to ensure that a miscarriage of justice does not
occur,” Bagley, 473 U.S. at 675, a risk that we know exists not just for trial
convictions but also for guilty pleas, see Brady v. United States, 397 U.S. 742,
758 (1970) (recognizing that plea agreements are “no more foolproof than full
trials”); Stephanos Bibas, Plea Bargaining’s Role in Wrongful Convictions, in
EXAMINING WRONGFUL CONVICTIONS 157–62 (2014) (discussing the incentives,
                                        44
    Case: 16-40772      Document: 00514646077       Page: 45    Date Filed: 09/18/2018



                                    No. 16-40772
structural constraints, and psychological influences that can lead to innocent
defendants pleading guilty); infra p. 16.
      Digging deeper into the roots of Brady further supports its application to
requests for exculpatory evidence before pleading. The 1963 decision relied on
earlier Supreme Court cases recognizing a due process violation when the
government knowingly used false testimony to secure a conviction. See 373
U.S. at 86–87 (citing Mooney v. Holohan, 294 U.S. 103, 112 (1935) (per curiam);
Napue v. Illinois, 360 U.S. 264, 269 (1959)). At a plea hearing, the government
must provide a factual basis for the defendant’s guilt to support the conviction.
See FED. R. CRIM. P. 11(b)(3); cf. Brady v. United States, 397 U.S. at 758
(explaining that a court’s ability to determine “that there is nothing to question
the accuracy and reliability of the defendants’ admissions” provides an
important safeguard against problems with plea agreements). Just as failure
to provide exculpatory information at a trial subverts the jury’s ability to
determine guilt, so too does failure to provide that information in connection
with a plea prevent the judge from properly assessing whether there is a
factual basis to support a conviction. Failing to disclose exculpatory evidence
in reciting the essential facts of the case thus is at odds with the government’s
constitutional duty to tell the truth in court.
      Indeed, as a general matter due process rights are usually not limited to
trials, but may apply in various types of proceedings at which the government
seeks to deprive someone of life, liberty, or property. Other due process rights
apply at plea hearings, most fundamentally the requirement that a plea be
knowing and voluntary. 2 McCarthy v. United States, 394 U.S. 459, 466 (1969).


      2  Some courts have taken the view that a failure to disclose exculpatory evidence
renders the plea unknowing and involuntary. Sanchez v. United States, 50 F.3d 1448, 1453
(9th Cir. 1995); cf. United States v. Fisher, 711 F.3d 460 (4th Cir. 2013).
                                          45
    Case: 16-40772      Document: 00514646077        Page: 46     Date Filed: 09/18/2018



                                     No. 16-40772
But also others like the government’s obligation to fulfill its promises in a plea
agreement. Santobello v. New York, 404 U.S. 257, 262 (1971). Looking even
more broadly to the Fifth Amendment as a whole, none of its rights apply solely
in trials. Protections against self-incrimination, takings, double jeopardy, and
being charged without a grand jury indictment guard against arbitrary
government action that can occur in a variety of contexts outside of trial.
Although Fifth Amendment rights may appear to lack the unifying theme that
is evident for the conscience and expression-protecting First Amendment, the
trial-focused Sixth and Seventh Amendments (first criminal then civil); or the
punishment-focused Eighth, one scholar has noted that most rights in the Fifth
Amendment cover the period between the investigative phase addressed in the
Fourth Amendment and the trial phase addressed in the Sixth.                       BURT
NEUBORNE, MADISON’S MUSIC: ON READING THE FIRST AMENDMENT 26–27
(2015). The Amendment’s focus on pretrial criminal proceedings rather than
trials thus further supports requiring the disclosure of exculpatory evidence in
the plea hearing.
      So what is the basis for limiting a due process right like Brady to the
context of a full-blown trial even though a plea hearing involves its core
concern about whether the courts are fulfilling their truth-finding function?
The most basic argument against applying Brady to pleas is that by pleading
guilty the defendant implicitly waives a right to obtain evidence that might
undermine his admission of guilt. 3 Put more bluntly, if a defendant is saying
he is guilty, isn’t that the end of the issue? But the same argument could be



      3  This is different than the question whether a defendant could affirmatively waive
his Brady rights in pleading guilty. This case does not present that question as Alvarez
requested full discovery from the defendant and never waived the Brady right that Texas
courts afford all defendants.
                                           46
    Case: 16-40772     Document: 00514646077       Page: 47    Date Filed: 09/18/2018



                                    No. 16-40772
made and was for ineffective assistance of counsel claims asserted by those
who pleaded guilty. If a defendant admitted guilt, how could he later complain
that with better lawyering he might have been acquitted? Indeed, the right to
effective assistance of counsel was sometimes framed, as Brady has sometimes
been, only as a fair trial right. Strickland v. Washington, 466 U.S. 668, 686
(1984) (explaining that “in giving meaning to the requirement” of effective
assistance, “we must take its purpose—to ensure a fair trial—as the guide”);
see also United States v. Cronic, 466 U.S. 648, 658 (1984) (“[T]he right to the
effective assistance of counsel is recognized not for its own sake, but because
of the effect it has on the ability of the accused to receive a fair trial.”); see also
Michael Nasser Petegorsky, Plea Bargaining in the Dark, 81 FORDHAM L. REV.
3599, 3631 (2013) (“[L]ike Brady, the right to effective assistance was
traditionally considered purely a trial right.”). Yet the Supreme Court has long
recognized that a defendant can undo a guilty plea by showing that ineffective
assistance caused him to make that decision rather than proceed to trial. Hill
v. Lockhart, 474 U.S. 52, 56–57 (1985). The Court’s rejection of the view “that
a knowing and voluntary plea supersedes error by defense counsel,” Missouri
v. Frye, 566 U.S. 134, 141 (2012), reflects a realistic view of modern plea
bargaining, which is influenced by a variety of structural and psychological
forces in addition to traditional notions of risk assessment. See Stephanos
Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463,
2507–10 (2004). A defendant may even plead guilty while maintaining his
innocence. North Carolina v. Alford, 400 U.S. 25 (1970). As the Supreme Court
has rejected the plea=waiver argument in the context of ineffective assistance




                                          47
    Case: 16-40772       Document: 00514646077          Page: 48     Date Filed: 09/18/2018



                                       No. 16-40772
claims, it is hard to see how it has much force in the Brady context. 4 Lafler,
566 U.S. at 164.
       Another argument against applying Brady to pleas is that its materiality
inquiry is often framed in terms of the impact the exculpatory information
would have had on the trial. See Matthew v. Johnson, 201 F.3d 353, 361–62
(5th Cir. 2000). 5 But the materiality standard sometimes refers more broadly
to the effect on a “proceeding.” Bagley, 473 U.S. at 682 (“[E]vidence is material
only if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.”). That
makes sense as Brady itself was a case about undisclosed evidence that
required a new sentencing hearing but not a new trial. 373 U.S. at 90–91. And
looking to ineffective assistance case law is again instructive. Strickland’s
prejudice requirement developed in tandem with the Brady materiality
standard. In Bagley, the Court recognized it had “relied on and reformulated”
the test for materiality from Brady cases (the Augers test) in Strickland. 473
U.S. at 681–82. It then decided the same refined standard should apply in
Brady cases, concluding “the Strickland formulation” was “sufficiently flexible
to cover [all] cases of prosecutorial failure to disclose evidence favorable to the
accused: [t]he evidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Id. at 682. And as I have already noted, the
Supreme Court recently rejected the argument that attorney errors “before



       4  Indeed, United States v. Ruiz, 536 U.S. 622 (2002), which will be discussed in more
depth later, did not use a waiver rationale in rejecting a right to impeachment evidence before
a plea.
        5 It is worth noting that Matthew did not review de novo the question of Brady’s

application to pleas. It was a habeas case so the holding was only that Teague v. Lane, 489
U.S. 288 (1989), barred recognizing the right on collateral review. 201 F.3d at 369-70.
                                              48
    Case: 16-40772       Document: 00514646077          Page: 49     Date Filed: 09/18/2018



                                       No. 16-40772
trial . . . are not cognizable under the Sixth Amendment unless they affect the
fairness of the trial itself.” Lafler, 566 U.S. at 164–65. It concluded “the right
to adequate assistance of counsel cannot be defined or enforced without taking
account of the central role plea bargaining plays in securing convictions.” Id.
at 170. The materiality standard thus does not pose a problem because it is
already applied in ineffective assistance cases to assess whether the absence
of attorney error would have changed the plea decision. Armstrong v. Scott, 37
F.3d 202, 206 (5th Cir. 1994); see also Huebler, 275 P.3d at 203 (applying to a
defendant who pleaded a Brady materiality standard asking “whether there is
a reasonable probability that but for the failure to disclose the Brady material,
the defendant would have refused to plead and would have gone to trial”). It
would be anomalous if the Strickland right that is found in the trial-focused
Sixth Amendment applied to pleas but the due process Brady right did not.
       The Department of Justice opposes a pre-plea Brady right in part
because of its belief that such a rule “would impose serious costs on the
criminal justice system” by making pleas less efficient. DOJ Amicus Brief 15.
That concern is puzzling because, as it acknowledges, its own policy requires
federal prosecutors to turn over exculpatory evidence “reasonably promptly
after it is discovered.” UNITED STATES ATTORNEY’S MANUAL (USAM) § 9-
5.001(D)(1). 6    Court rules in 20 federal judicial districts, including Local



       6  The U.S. Attorneys’ Manual distinguishes between exculpatory and impeachment
evidence. As mentioned above, the former must be disclosed “promptly after it is discovered.”
USAM § 9-5.001(D)(1). The latter must be disclosed “at a reasonable time before trial to
allow the trial to proceed efficiently.” Id. § 9-5.001(D)(2). That later in time disclosure of
impeachment evidence may be further delayed if the benefits of pretrial disclosure are
outweighed by “other significant interests—such as witness security or national security.”
Id. The exception for early disclosure of exculpatory information is narrower, limited to
“classified or otherwise sensitive national security material.” Id. § 9-5.001(D)(1). This
confirms that the costs of disclosing impeachment evidence pre-plea are greater than the
                                             49
    Case: 16-40772       Document: 00514646077        Page: 50     Date Filed: 09/18/2018



                                      No. 16-40772
Criminal Rule 16 in the Western District of Texas which usually vies with the
Southern District of Texas for the largest number of federal prosecutions each
year, impose a more definite early disclosure requirement: Brady material
must be disclosed within two weeks of arraignment, which in almost every case
will be before a plea is entered.            FEDERAL JUDICIAL CENTER, BRADY V.
MARYLAND IN THE UNITED STATES DISTRICT COURTS: RULES, ORDERS, AND
POLICIES 16 (2007) (table listing 20 districts that require Brady disclosures
within two weeks of arraignment or when the defendant enters a “not guilty
plea”). And ethical rules in a number of states, including all three that make
up this circuit, require the same of prosecutors. TEX. DISCIPLINARY R. PROF’L
CONDUCT § 3.09(d) (1989); LA. R. PROF’L CONDUCT § 3.08(d) (2004); MISS. R.
PROF’L CONDUCT § 3.08(d) (all based on Rule 3.8 of the American Bar
Association’s Rules of Professional Conduct). 7 Indeed, DOJ cites its policy and
the ethical rules as reasons why applying Brady to pleas is unnecessary. But
if these policies and rules of professional responsibility are resulting in early
disclosure of exculpatory evidence, wouldn’t that impose the same costs that a
corresponding Brady right would? The source of the disclosure obligation
shouldn’t change the cost of compliance.                What is different is that a
constitutional obligation provides the defendant with a remedy when a
prosecutor fails to comply due to either negligence or malice. A violation of
DOJ, court, or ethical rules would not have helped Alvarez when he learned



costs of disclosing exculpatory information, a factor that distinguishes the Supreme Court’s
Ruiz decision from the question we confront. See infra p. 10–11.
        7 MODEL RULES OF PROF’L CONDUCT R. 3.8(D) (2012) (requiring prosecutors to “make
timely disclosure to the defense of all evidence or information known to the prosecutor that
tends to negate the guilt of the accused or mitigates the offense”); ABA COMM. ON ETHICS
AND PROF’L RESPONSIBILITY, Formal Op. 09-454 (2009) (clarifying that disclosure must be
made pre-plea to satisfy “significant purpose” of assisting defendants in making intelligent
plea-bargaining decisions).
                                            50
   Case: 16-40772     Document: 00514646077     Page: 51   Date Filed: 09/18/2018



                                 No. 16-40772
about the undisclosed video. See USAM § 1-1.100 (explaining that the U.S.
Attorney’s Manual does not create any rights enforceable in court).
      But we do not have to guess whether requiring pre-plea disclosure of
exculpatory evidence as a constitutional matter would inhibit plea bargaining.
We can look to experience, as a number of jurisdictions have such a rule. See
Lafler, 566 U.S. at 164, 172 (discounting administrability and “floodgate”
concerns about applying ineffective-assistance-of-counsel claims to the
rejection of plea agreements because a number of circuits had already done so
“without demonstrated difficulties or systemic disruptions”); cf. Jeffrey S.
Sutton, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN
CONSTITUTIONAL LAW 2 (observing that when state courts have recognized a
right under state constitutions, their experience can influence administrability
concerns with recognizing a corresponding right under federal law). Since
1979, Texas state courts have read the Due Process Clause to require
disclosure of exculpatory evidence to defendants who plead guilty. A number
of other states read Brady the same way. See Buffey v. Ballard, 782 S.E.2d
204, 216 (W. Va. 2015); State v. Huebler, 275 P.3d 91, 96–97 (Nev. 2012);
Hyman v. State, 723 S.E.2d 375, 380 (S.C. 2012); Medel v. State, 184 P.3d 1226,
1235 (Utah 2008); State v. Gardner, 885 P.2d 1144, 1149 (Idaho Ct. App. 1994).
Some federal circuits have also applied Brady to plea cases either before or
after the Supreme Court’s decision in Ruiz. See Campbell v. Marshall, 769
F.2d 314, 324 (6th Cir. 1985); White v. United States, 858 F.2d 416, 422 (8th
Cir. 1988); Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995); United
States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998); United States v. Ohiri, 133
F. App’x 555, 560–61 (10th Cir. 2005). Yet these decisions have not impeded
ever-rising rates of pleas. In recent years, roughly 97% of federal convictions
were the result of a plea. Lafler, 566 U.S. at 170. 94.6% of Texas cases were
                                       51
   Case: 16-40772     Document: 00514646077        Page: 52   Date Filed: 09/18/2018



                                 No. 16-40772
resolved via plea in 2016. OFFICE OF COURT ADMIN., ANNUAL STATISTICAL
REPORT OF THE TEXAS JUDICIARY: FY 2016 at Detail-10 (2016); available at
http://bit.ly/2mcF9vp. In terms of the trend, recent decades have seen a 10-
25% increase in the percentage of convictions obtained through pleas.
Compare Lafler, 566 U.S. at 170 (reporting that “ninety-four percent of state
convictions are the result of guilty pleas”), with Brady v. United States, 397
U.S. 742, 752 n.10 (1970) (estimating that between 75 and 85% of all felony
convictions were pleas). The rise of the plea is seemingly inexorable and there
is no reason to believe that a pre-plea Brady rise gets in its way.
      There is one other problem with DOJ’s concerns about the workability of
a pre-plea Brady requirement.      From the beginning, the Brady right has
covered information that might be favorable to a defendant at sentencing. So
as the government conceded at oral argument, a plea does not excuse its
obligation to disclose any evidence in the prosecution’s file that might mitigate
the defendant’s sentence. This means it is not a matter of whether exculpatory
information is produced but when—either before the plea or after the plea but
before sentencing. See USAM § 9-5.001(D)(3) (requiring the production of
“[e]xculpatory and impeachment information that casts doubt upon proof of an
aggravating factor at sentencing” when the presentence investigation begins).
Because at some point in a federal prosecution “the government would have to
search the files of all members of the prosecution team for potentially
exculpatory material,” DOJ Br. 16, there is little added burden of requiring
that production at an earlier point in the case.
      For all these reasons, there is little evidence suggesting that our court’s
following the Brady rule that many other jurisdictions already apply would




                                       52
    Case: 16-40772       Document: 00514646077          Page: 53     Date Filed: 09/18/2018



                                       No. 16-40772
create any meaningful obstacle to plea bargaining. 8 But even if it did, query
whether a system in which 97% of defendants plead guilty is already placing
to great a premium on the need for speedy pleas at the expense of the truth-
finding function of the courts. See BIBAS, Plea Bargaining’s Role in Wrongful
Convictions, at 157 (critiquing modern plea bargaining because it “put[s]
efficiency ahead of accuracy”).
       That leaves United States v. Ruiz, 536 U.S. 622 (2002). It held the
government is not required to disclose “impeachment information relating to
any informants or other witnesses” prior to entering a plea agreement. Id. at
625. Ruiz did not present the question of exculpatory evidence because the
government agreed in the plea agreement to turn over “any [known]
information establishing the factual innocence of the defendant.” 9 Id. at 625;
see also id. at 629 (“We must decide whether the Constitution requires that
preguilty plea disclosure of impeachment information.”). Indeed, in conducting
a due process balancing test to determine whether there was a right to pre-
plea impeachment evidence, the Court explained that the agreement to give
Ruiz exculpatory evidence “diminish[ed]” the risk that “in the absence of
impeachment information, innocent individuals, accused of crimes, w[ould]
plead guilty.” Id. at 631. If Brady does not apply as a categorical matter to
defendants who plead guilty, saying just that in Ruiz would have resulted in a
much simpler and shorter opinion. That was the approach of Justice Thomas’s



       8 A pre-plea Brady right might also apply on when the defendant requests discovery,
which would further mitigate any costs on the system. Alvarez made that request.
       9 Notably, the federal government asked the Court to decide the broader question of

whether defendants who plead have a right to exculpatory information. Brief for the United
States, United State v. Ruiz, at I (“Questions Presented: 1. Whether before pleading guilty, a
criminal defendant has a constitutional right to obtain material exculpatory information,
including impeachment information, from the prosecution.”). But the Court did not accept
that invitation.
                                             53
   Case: 16-40772     Document: 00514646077      Page: 54   Date Filed: 09/18/2018



                                  No. 16-40772
one-paragraph concurring opinion that no other justice joined. See id. at 633–
34 (Thomas, J., concurring).
      Instead the Court applied the balancing test. On the benefit side of that
equation, it explained that impeachment evidence has value in terms of the
“fairness of a trial” but not to whether a plea was knowing and intelligent. Id.
at 629.    Impeachment evidence is not “critical information,” it further
explained, as its relevance may become clear only in the context of a trial. Id.
at 630. Until trial, for example, a defendant may not know if the government
will call the witness who has the credibility problems.          The less direct
connection of impeachment evidence to the ultimate “guilt or innocence”
question is reflected in the fact that it took nearly a decade for the Supreme
Court to confirm that Brady included an obligation to disclose even at trial
“evidence affecting [witness] credibility.” Giglio v. United States, 405 U.S. 150,
154 (1972). Exculpatory evidence—that which goes directly to the “factual
innocence of the defendant,” Ruiz, 536 U.S. at 631, and is valuable on its face
without requiring independent knowledge of the prosecutor’s trial strategy—
has much greater value as Ruiz recognizes when it observes that its disclosure
meant there was not much additional benefit to be gained from also disclosing
impeachment evidence before a plea. Id. at 631. Production of exculpatory
evidence provides a greater safeguard against innocent defendants pleading
guilty, both because it informs innocent defendants they have a substantial
chance of showing their innocence at trial as opposed to just casting doubt on
government witnesses and because prosecutors required to provide such
evidence lose the incentive to push for guilty pleas to obscure weak cases. See
Huebler, 275 P.3d at 97–98 (“While the value of impeachment information may
depend on innumerable variables that primarily come into play at trial and
therefore arguably make it less than critical information in entering a guilty
                                       54
    Case: 16-40772    Document: 00514646077       Page: 55   Date Filed: 09/18/2018



                                  No. 16-40772
plea, the same cannot be said of exculpatory information, which is special not
just in relation to the fairness of a trial but also in relation to whether a guilty
plea is valid and accurate.”).
      That latter point recognizes a serious risk of requiring Brady disclosures
only when a case is tried: it incentivizes prosecutors to offer favorable pleas in
cases with exculpatory evidence. That is already the type of case in which a
prosecutor’s desire for a plea agreement is strongest. Bibas, Plea Bargaining
in the Shadow of Trial, supra, at 2473 (explaining that self-interest leads
prosecutors to “make irresistible offers in weak cases”). Without a Brady
requirement, there is an additional benefit from pleading out a weak case: the
plea prevents the defendant from being able to undo the conviction if he later
discovers that the government possessed exculpatory evidence. Sanchez, 50
F.3d at 1435 (“[I]f a defendant may not raise a Brady claim after a guilty plea,
prosecutors may be tempted to deliberately withhold exculpatory information
as part of an attempt to elicit guilty pleas.”); see also United States v. Fisher,
711 F.3d 460, 469 (4th Cir. 2013); United States v. Nelson, 979 F. Supp. 2d 123,
130 (D.D.C. 2013). This is on top of the interest prosecutors already have to
resolve their weakest cases with a plea agreement.
      The cost side of the Ruiz balancing inquiry is also less favorable to the
government when it comes to exculpatory evidence. The primary problem the
Court saw with pre-plea disclosure of Giglio evidence was requiring the
government to identify the witnesses it would call at a trial that would never
happen because of the plea. This interfered with the rules governing disclosure
of witnesses, posed risks of revealing the identities of informants and
undercover agents, and eliminated some of the time savings that pleas
typically bring by avoiding trial prep.        Ruiz, 536 at 631–32.        Indeed,
prosecutors often do not even learn about credibility problems with
                                        55
   Case: 16-40772    Document: 00514646077      Page: 56   Date Filed: 09/18/2018



                                 No. 16-40772
witnesses—by running criminal background checks for example—until they
have come up with their witness list. In contrast, prosecutors generally are
aware of any evidence they possess that suggests a defendant’s innocence by
the time they enter into plea negotiations if not earlier when they bring
charges.
      The final proof that Ruiz did not decide the question of pre-plea
disclosure of exculpatory evidence—and that the result might be different for
this category—are the cases that have come after it. Soon after Ruiz, the
Seventh Circuit predicted that “it is highly likely that the Supreme Court
would find a violation of the Due Process Clause if prosecutors or other
relevant government actors have knowledge of a criminal defendant’s factual
innocence but fail to disclose such information to a defendant before he enters
into a guilty plea.” McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003).
It recognized that “Ruiz indicates a significant distinction between
impeachment information and exculpatory evidence of actual innocence,”
though the Seventh Circuit did not ultimately decide the question because
there was insufficient evidence that the government suppressed the evidence
in that case. Id. at 787. The Tenth Circuit, again noting a critical distinction
between exculpatory evidence and the impeachment evidence in Ruiz, did
decide the question in favor of a right of pleading defendants to exculpatory
evidence. See United States v. Ohiri, 133 F. App’x 555, 562 (10th Cir. 2005).
So have a number of federal district courts. Nelson, 979 F. Supp. 2d at 130
(“[I]n light of the balance of circuit court precedent and the purpose of Brady,
Nelson can assert his Brady claim to argue that his guilty plea was not
knowing and voluntary”); United States v. Danzi, 726 F. Supp. 2d 120, 128 (D.
Conn. 2010) (declining “the Government’s invitation to hold that Ruiz applies
to exculpatory as well as impeachment material”); Ollins v. O’Brien, 2005 WL
                                      56
    Case: 16-40772       Document: 00514646077          Page: 57     Date Filed: 09/18/2018



                                       No. 16-40772
730987, *11 (N.D. Ill. 2005) (“[T]he Court finds the Ruiz distinction . . .
persuasive and holds that due process requires the disclosure of information of
factual innocence during the plea bargaining process.”). To be sure, other
courts of appeals, while recognizing that Ruiz did not decide the question, have
read it as casting doubt on the existence of a pre-plea right even to exculpatory
evidence though none has done as we have and actually rejected that right.
Friedman v. Rehal, 618 F.3d 142, 154 (2d Cir. 2010) (explaining that “Ruiz did
not expressly abrogate [its prior caselaw] as applied to all Brady material” but
noting it creates uncertainty about whether exculpatory material needed to be
produced pre-plea); United States v. Moussaoui, 591 F.3d 263, 285 (4th Cir.
2010), as amended (Feb. 9, 2010) 10; cf. United States v. Mathur, 624 F.3d 498,
507 (1st Cir. 2010) (emphasizing Brady is a trial right and observing “[t]he
Ruiz Court evinced a reluctance to extend a Brady-like right to the realm of
pretrial plea negotiations” in a case when a defendant went to trial but argued
that if he had been provided exculpatory material before trial he would have
pleaded guilty).
       And we should not make the common mistake of treating federal
decisions as the universe of caselaw on this issue. Our state court peers also
interpret the federal Constitution. Four state supreme courts have held since
Ruiz that the federal Brady right applies to exculpatory evidence at the plea
phase, and the Texas Court of Criminal Appeals has reaffirmed its long ago
adoption of that view.        Buffey, 782 S.E.2d at 216 (“[T]he better-reasoned
authority supports the conclusion that a defendant is constitutionally entitled



       10 In a more recent decision the Fourth Circuit allowed a defendant to vacate a guilty
plea when he later learned that law enforcement had lied in applying for a search warrant
that led to evidence of guilt. Fisher, 711 F.3d at 460. It did so not on Brady grounds, but on
the ground that the suppression of that information made the plea unknowing. Id. at 471.
                                             57
   Case: 16-40772     Document: 00514646077      Page: 58   Date Filed: 09/18/2018



                                  No. 16-40772
to exculpatory evidence during the plea negotiation stage.”); Hyman, 723
S.E.2d at 380 (noting that an applicant can challenge the “voluntary nature of
a guilty plea” by asserting a Brady violation); Huebler, 275 P.3d at 96–97
(concluding that “the due-process calculus also weighs in favor of the added
safeguard of requiring the State to disclose material exculpatory information
before the defendant enters a guilty plea”); Medel, 184 P.3d at 1235 (providing
the requirements for a guilty plea to be rendered involuntary based on a Brady
violation); Johnson, 2009 WL 1396807, at *1; (vacating a guilty plea because
of a Brady violation); id. at *1–*2 (Cochran, J. concurring) (explaining that
“Ruiz, by its terms, applies only to material impeachment evidence”); see also
State v. Kenner, 900 So. 2d 948, 952–53 (La. App. 4 Cir. 2005), reversed on other
grounds, 917 So. 2d 1081 (La. 2005). No state high court has ruled the other
way. See WAYNE LAFAVE, ET AL. 5 CRIM. PROC. § 21.3(c) (4th ed. 2015) (noting
that “certainly the better view” is of those courts that require Brady disclosure
of exculpatory evidence to defendants who plead).
        The facts from one of those state court cases highlights the stakes of
this issue and the dynamics that can lead an innocent person to plead guilty.
Joseph Buffey was 19 when he was arrested for three breaking-and-entering
offenses of businesses. Buffey, 782 S.E.2d at 207. The week before his arrest,
an intruder had robbed and brutally raped an 83-year-old woman in the same
town. Id. at 206. During an interrogation that lasted nine hours, Buffey at
first repeatedly denied that he committed the robbery and sexual assault. Id.
at 207. Hours into the questioning, and past 3:00 in the morning, he told the
officers he had broken into “[t]his old lady’s house” but said he could not recall
any assault. Id. When the officers later told him he should be able to recall
more details, Buffey recanted saying “You really want to know the truth? . . . I
didn’t do it.” Id. He explained that he had only confessed to breaking into the
                                       58
   Case: 16-40772     Document: 00514646077     Page: 59   Date Filed: 09/18/2018



                                 No. 16-40772
house because an officer was “breathing down my neck” and “I couldn’t tell you
what went on in there.” Id.
      After Buffey was charged with the rape, the state forensic lab tested
DNA from the victim’s rape kit. Id. at 208. It issued a report stating that
“assuming there are only two contributors (including [Mrs. L]), Joseph Buffey
is excluded as the donor of the seminal fluid identified [from the rape kit]
cuttings.” Id. (brackets in original). Although Buffey’s counsel had filed a
motion for production of all materials related to the assault, the prosecutor
never disclosed the forensic report. Id.
      Having made at least a partial confession to the crimes, Buffey accepted
a time-limited offer to plea to the robbery and sexual assault counts in
exchange for the state dropping the three charges for burglary of a business.
Id. at 209. The court accepted Buffey’s plea six weeks after the lab determined
that the DNA was not his. Id. at 208–09.       The court sentenced Buffey to a
total term of 70-100 years in prison. Id. at 209.
      After Buffey had spent eight years in prison, a court granted his request
for DNA testing in a habeas motion. Id. at 210. The results exonerated Buffey,
and he also learned that the government knew of similar results in 2002 before
the court accepted his plea. Id. Because the state supreme court acknowledged
a right to exculpatory evidence even for defendants who pleaded guilty, Buffey
did not have to spend the rest of his life in prison. Id. at 221. And a DNA
match was finally made to the person who had committed the rape, someone
with a history of sexual violence living a few blocks from the victim who was
not arrested in 2002 because Buffey had been wrongfully convicted. Id. at 210.
      This “double injustice”—because it resulted in “convicting the innocent
and freeing the guilty,” Amicus Br. for National Association of Criminal
Defense Lawyers 13—is not an isolated event. An amicus brief from a group
                                       59
   Case: 16-40772    Document: 00514646077     Page: 60   Date Filed: 09/18/2018



                                No. 16-40772
of former federal and state prosecutors notes that the National Registry of
Exonerations has identified 73 Americans who pleaded guilty to murder or
manslaughter but were later exonerated.         See NATIONAL REGISTRY OF
EXONERATIONS, available at www.law.umich.edu/special/exoneration/Pages/
detaillist.aspx (searching for “P,” pleas, and those offenses lists 54
exonerations for defendants who pleaded guilty to murder and 19 for
manslaughter). And more than 10% of the 353 Americans whom the Innocence
Project has helped exonerate through DNA evidence pleaded guilty.          THE
INNOCENCE PROJECT, DNA Exonerations in the United States, available at
www.innocenceproject.org/dna-exonerations-in-the-united-states (noting that
40 of 358 exonerees pled guilty). Scholars believe false guilty pleas are even
more common for less serious offenses when the cost-benefit analysis makes a
plea that results in a minor sentence enticing. John H. Blume & Rebecca K.
Helm, The Unexonerated: Factually Innocent Defendants Who Plead Guilty,
100 CORNELL L. REV. 157, 173 (2014); see also Bibas, Plea Bargaining Outside
the Shadow of Trial, supra, at 2495 (explaining that “[p]rosecutorial bluffing
is likely to work particularly well against innocent defendants, who are on
average more risk averse than guilty defendants”); Samuel R. Gross & Barbara
O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little
and New Data on Capital Cases, 5 J. EMPIRICAL LEGAL STUD. 927, 930 (2008)
(“[I]t is entirely possible that most wrongful convictions . . . are based on
negotiated guilty pleas to comparatively light charges.”).      Alvarez is an
example. He elected to plead guilty and accept a suspended sentence of eight
years with ten years probation rather than risk a trial where he faced
mandatory prison time if convicted. Of course, because he violated the terms
of probation he ended up going to prison, only to be saved from serving a full
sentence when the video was discovered.
                                     60
   Case: 16-40772    Document: 00514646077      Page: 61   Date Filed: 09/18/2018



                                 No. 16-40772
      Judicial opinions often extol liberty. As well they should when applying
a Constitution that begins with a promise to “secure the Blessings of Liberty
to ourselves and our Posterity” and prohibits both federal and state
governments from depriving a person of that liberty without due process of
law. U.S. CONST. Preamble, amends. V, XIV. 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.
That tragic situation offends the “twofold aim” of our justice system, “which is
that guilt shall not escape or innocence suffer.” Berger v. United States, 295
U.S. 78, 88 (1935). Due process requires more than we afford the accused
today.




                                      61
