Trump's judges double down, making it easier for prosecutors to convict innocent people

Sen. Ted Cruz (R-TX) and Sen. Mike Lee (R-UT) talk with each other as Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on the third day of his confirmation hearing on Capitol Hill, September 6, 2018.

Donald J. Trump’s put five judges on the Fifth Circuit; George W. Bush placed four there. Two Reagan appointees are still active. Just three Obama and two Clinton judges sit on that court, which hears appeals from Texas, Louisiana, and Mississippi. The latest reminder of what that means for our rights is a chilling one.

For the past 55 years, prosecutors have been required to share exculpatory evidence—that is, evidence they have that a defendant may be innocent—with the defendant. That requirement, called the Brady Rule or Brady Doctrine, does little to alleviate the radical disparity between prosecutorial and defense resources when defendants depend on public funding, but it’s a bulwark against the worst of abuses. The rule came out of a 1963 Supreme Court case, Brady v. Maryland, in which prosecutors prosecuted one man, John Leo Brady, for murder—he was sentenced to death—despite having a confession from another man, Donald Boblit, admitting he’d been the one to kill the victim. 

Seems like a fundamentally sound concept, no?

The Fifth Circuit doesn’t think so, at least not as it is today—an outpost of the GOP. In 2009, it decided prosecutors didn’t have to turn over exculpatory evidence during the plea-bargaining process. Given a chance to reconsider this deviant, destructive precedent, they’ve instead produced an en banc ruling—that is, a ruling from a hearing in which all judges participated—that reaffirms it.

Brad Heath✔@bradheath

 · Sep 19, 2018

En banc 5th Cir. rules that prosecutors are not required to reveal exculpatory evidence to defendants before they plead guilty. pic.twitter.com/auMEGxhV8e

Brad Heath✔@bradheath

The case involved an altercation between a jail guard and a 17-year-old who was charged with assault. Four years after he started serving his sentence, a video of the fight “surfaced.” A state court declared him actually innocent and freed him. Prosecutors didn’t object. pic.twitter.com/D5wYfKQ2Kf

11:59 AM – Sep 19, 2018

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This was, of course, the outcome hoped for by the Trump administration.

Brad Heath✔@bradheath

 · Sep 19, 2018

Replying to @bradheath

The en banc majority notes that #SCOTUS hasn’t directly addressed this issue, and that the circuits are divided. pic.twitter.com/oHPiI4akQb

Brad Heath✔@bradheath

DOJ opposed finding that due process requires the disclosure of exculpatory information before a plea because: 1) it would “impose serious costs on the criminal justice system: and 2 it’s already doing it. pic.twitter.com/N4yxXQtSSR

12:25 PM – Sep 19, 2018

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The dissent is, well, sane.

Brad Heath✔@bradheath

 · Sep 19, 2018

Replying to @bradheath

Here’s the link: http://www.ca5.uscourts.gov/opinions/pub/16/16-40772-CR2.pdf …

Brad Heath✔@bradheath

Judge Costa dissents: “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.” pic.twitter.com/9QqycMXOtr

12:13 PM – Sep 19, 2018

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The three dissenting judges tear the majority apart; the majority, of course, which includes just two Democratic appointees, must just not care, à la Melania. 

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.

Even Texas state law is more progressive than Trumpified Fifth Circuit law—and has been for four decades.

Fortunately for Alvarez, and for those who believe that “justice suffers when any accused is treated unfairly,” he was convicted of a state offense. 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.”

In fact, the Fifth Circuit’s call flies in the face of how every other appellate court and state supreme court to have considered this question came out.

The repercussions are enormous: 97 percent of federal criminal convictions and 94 percent of state felony convictions are the result of plea bargains.

Back to the dissent.

Because we now have “for the most part a system of pleas, not a system of trials,” today’s opinion reaffirming our outlier position means that the vast majority of defendants in this circuit will not have a right to relief if it comes to light after their conviction that the government suppressed exculpatory evidence.

Here’s what we have to look forward to with Trump’s growing hold over the federal judiciary: courts that cling to bad law, no matter the jurisprudential and common sense cues that dictate otherwise. Because they can.

This is also a perfect illustration of the numbers problem: Three judges dissented; in a panel decision left undisturbed, two of those could have carried the ruling. In an en banc proceeding, they’re easily outvoted.

Although in this case there’s a veneer of justification, in that the decision addresses circuit precedent—changing precedent is a valid reason to hear a case en banc—Republican-appointed judges can do this for any panel decision.

It’s not just the Fifth Circuit that Trump’s coopted.

Consider the Seventh Circuit—that’s Illinois, Indiana, and Wisconsin—and the Eighth—Iowa, Arkansas, Minnesota, and Missouri. Just two of the Seventh Circuit’s 11 judges were appointed by Democrats; on the Eighth, it’s just one. Trump’s seated four judges on the Seventh already; he’s gotten three on the Eighth and nominated a fourth.