Due Process

Partially Informed Juries Convict the Innocent

A Supreme Court case shows how prosecutors get away with hiding evidence that could help defendants.


Early in the evening on October 1, 1984, Catherine Fuller, a 48-year-old mother of six, was robbed, sodomized with a foreign object, and beaten to death in a garage off an alley in Washington, D.C. After police concluded that Fuller had been attacked by a group of young men, prosecutors obtained two guilty pleas and eight convictions.

Today the Supreme Court will hear an appeal by seven of those men, who argue that prosecutors violated their right to due process by withholding evidence that would have cast doubt on the government's allegations. The case shows why, more than half a century after the Court told prosecutors they have a constitutional duty to share evidence that might help defendants, prosecutors have little incentive to take that duty seriously.

In the 1963 case Brady v. Maryland, the Court held that "suppression by the prosecution of evidence favorable to an accused…violates due process where the evidence is material either to guilt or to punishment." The Court later explained that evidence is "material" when there is "any reasonable likelihood that it could have affected the judgment of the jury."

It seems clear that the evidence withheld from the men accused of attacking Catherine Fuller meets that standard. The suppressed evidence included, for example, information that would have further undermined the credibility of purported eyewitnesses who implicated the defendants.

The jury, which deliberated for a week and acquitted two of the 10 defendants, evidently had trouble believing the government's witnesses, who contradicted themselves, each other, and the physical evidence. It is hardly a stretch for the defendants' lawyers to suggest that the jurors would have been even more skeptical if they had known one of the witnesses "was high on PCP while she met with investigators and identified photographs and suspects," that the same witness had asked a friend to lie about hearing a defendant's confession, or that the aunt of another witness contradicted his claim that he had told her about seeing the crime.

Prosecutors also kept jurors from hearing the accounts of witnesses who were in the alley at the time of the attack but did not see a group of men. Even more egregiously, the government suppressed information about two plausible alternative suspects, including one who was convicted of robbing and assaulting two other middle-aged women in the same neighborhood within weeks of Fuller's murder. In 1992 that man "forcibly sodomized and beat to death a woman in an alley three blocks from where Mrs. Fuller had been found."

By 2010 all but one of the surviving prosecution witnesses had recanted, saying they had been pressured into falsely implicating the defendants. A District of Columbia Superior Court judge nevertheless rejected the defendants' motion to vacate their convictions, a decision the District of Columbia Court of Appeals upheld in 2015.

Amazingly, both courts concluded that the suppressed evidence, although favorable, was not material, which suggests how permissive that standard can be in practice. In a brief supporting the defendants' appeal, the Texas Public Policy Foundation argues that the "materiality" standard should be replaced with a presumption that withholding favorable evidence violates due process unless the government can show beyond a reasonable doubt that the omission did not affect the outcome.

"For an unethical or indifferent prosecutor," the brief says, "a pretrial materiality requirement is an invitation to withhold favorable evidence." Even assuming the suppressed evidence later comes to light, the government in all likelihood will prevail on appeal: A 2014 study of "145 decisions in which prosecutors were found to have withheld favorable information" found that 86 percent deemed the evidence not material.

"There is an epidemic of Brady violations abroad in the land," Alex Kozinski, then chief judge of the U.S. Court of Appeals for the 9th Circuit, observed in 2013. "Only judges can put a stop to it." The Supreme Court can help them by reminding prosecutors that they have a duty to seek not merely victory but justice.

© Copyright 2017 by Creators Syndicate Inc.

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  1. An order with no punishment for failure to obey is merely a suggestion.

    1. What we really need are criminal penalties for prosecutors deliberately withholding evidence.

      1. And an order for them to prosecute themselves for failure to comply!

        1. That’s a possible problem, but I think you could design incentives to get prosecutors to be more aggressive in prosecuting fellow prosecutors.

          1. Come now, this is all quite silly. Any prosecutor will tell you that sometimes we need to hold back a little here and a little there so we can secure a conviction that everyone knows needs to be secured. There is nothing wrong with this at all, and it is tolerated, even encouraged by nearly every criminal court in this country. Once in a while we have nice little philosophical debates about such matters, but it is hardly a serious issue.

            Take, for example, the excellent strategy developed by New York prosecutors in our nation’s leading criminal “satire” case, now documented in a special “reply” filed by certain indiscreet individuals who have taken up the defense of the perpetrator in that affair. Surely no one here would dare to criticize such a strategy? See:


      2. They should be jailed for the exact number of days their victims were falsly imprisoned. Preferably in the same cells. Amd if they get shanked, good riddence.

        1. I prefer the 2x method….

  2. The Supreme Court can help them by reminding prosecutors that they have a duty to seek not merely victory but justice.

    Which would be nice, I guess.

    But first and foremost, prosecutors are going to listen to the people who sign their checks. And to the people who are most likely to sign their checks at their next job. As long as voters and politicians support “tough” prosecutors and excuse excesses, this is going to stay the same.

    1. The adversarial process is supposed to lead to a just outcome, everybody involved is an officer of the court whose primary focus is supposed to be on seeing to it that justice is done. The “win at any cost” attitude leads to gaming the system so that you “win” regardless of whether or not justice is done. It’s a matter of losing sight of the forest for the trees. Anybody who would cheat to win and then take pride in the fact that he won and feel no shame at the cheating is a truly horrible human being. Or a fan of the New England Patriots.

      1. I don’t like evidence being withheld by either side. Seems law has long since ceased being a way for people to sort things out, & turned into a high-stakes game.

        1. Oh, please. The Law has ALWAYS been a high stakes game to certain kinds of people. Which doesn’t justify giving up on the ideal.

          1. But who would ever have dispute resolution methods in their family or organiz’n that was anything like law? & isn’t that what it’s supposed to be for?

        2. In a criminal trial, the defense need not produce ANY evidence, nor share any with the prosecution. It is up to the state alone to prove guilt.

      2. The adversarial process is supposed to lead to a just outcome, everybody involved is an officer of the court whose primary focus is supposed to be on seeing to it that justice is done.

        Which is nice and all. But the incentives to the individual matter. There are lots of people who are scrupulous to a fault and who could not be corrupted. They would follow the ideals and make sure that justice is done.

        But there are also lots and lots of people who want to get ahead in life. And maybe they would never knowingly send an innocent man away. But incentives matter. And if my career depends on winning jail time, maybe I’m going to have a bias that makes me see more people as obviously guilty. And maybe if my boss sees the world in terms of conviction rates, just maybe I will see the world that way too.

        So who do we think is going to get elected as the County DA. The guy who lost a couple of high profile cases because he scrupulously complied with discovery rules, but he has the endorsement of the Innocence Project? Or the guy with the perfect conviction record who had some “activist” harping that he didn’t do enough to ensure defendants got a fair trial?

        And who gets appointed as a Federal Prosecutor? The guy with all the convictions? Or the guy who is scrupulous about discovery?

        And who gets hired at the big law firm?

  3. Partially Informed is what it said on my college diploma.

  4. Clerk: “Do you swear (or affirm) to tell the truth, the whole truth, and nothing but the truth?”
    Prosecutor: “Hell no”
    Judge: Proceed with the prosecution.

  5. ANY prosecutor who has to stoop to withholding or falsifying evidence is not a prosecutor but a persecutor, and should be disbarred. Then made to pay restitution…… for the harm done his victims.

    Put the evidence out in front of the jury and let THEM decide its value, validity, significance. These government dirtbags need to be put down from their high perches of immunity. Hold them personally responsible for the harm they do.

  6. This is impossible. The TV has assured me that prosecutors are always the good guys, and it’s the defense attorneys that are invariably sleazy, no good, degenerate Jews.

  7. “the suppressed evidence, although favorable, was not material,”

    I’m having a real hard time getting my mind around that one. It’s like saying “This evidence, while not material, is favorable.”


    As well, while not directly pertaining to this particular case, NULLIFICATION must be shoved into our system. Somehow, it must be established that juries are boss: They do not kowtow to any judge, and do not have to answer to anyone for their decisions.

  8. The article could be rewritten with the title “Juries convict the innocent.” It’s absurd to think that the same populace that overwhelmingly supports the mass incarceration of people out of fear can be impartial when being handed the power to cage people. You can’t “fix” it, even if prosecutors started acting like choir boys.

  9. Its been 33 years old, since her family is waiting for justice, and justice delayed is no justice,


  10. just as Gerald implied I am in shock that a person able to earn $7711 in 1 month on the computer . go now>>>>>>>>>>> https://qr.net/eyGRuC

  11. how is it not required to turn over all and any evidence. Why do they not need to turn over evidence they deem is not important? Let the defendant decide if he wants it….wtf!

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