California Supreme Court Announces Government’s Continuing Brady Obligations and Ethical Duty of Disclosure During Habeas Proceedings Regarding Alleged Exculpatory Evidence Available at Time of Trial but Suppressed
by Richard Resch
In a case of first impression, the Supreme Court of California announced the constitutional, ethical, and habeas procedural principles that govern postconviction proceedings in which a habeas petitioner claims that exculpatory evidence was available at the time of trial but suppressed by the government with the suppression continuing postconviction.
In January 2018, Jasmine Jenkins and Kayuan Mitchell were dating, but Mitchell had a daughter with Brittneeh Williams. One evening, Mitchell and Brittneeh got into a physical altercation. Jenkins arrived on scene, Mitchell got into her car, and the pair drove away. Brittneeh called her sister Sade Williams and gave chase in her own vehicle; the car chase ended when Mitchell told Jenkins to pull into a gas station. Brittneeh approached Jenkins and possibly punched her through the driver’s side window. As Mitchell restrained Brittneeh, Jenkins exited the car armed with a large kitchen knife and fatally stabbed Brittneeh while she was being restrained by Mitchell. Sade arrived on scene as Jenkins was stabbing Brittneeh.
Jenkins was acquitted of murder but convicted of voluntary manslaughter. She was sentenced to 11 years in prison. She appealed, and while it was pending, she also filed a habeas petition in the Court of Appeal, claiming that the prosecutor failed to disclose that the prosecutor’s office successfully prosecuted Brittneeh and Sade in 2006 for aggravated assault with hate crime and infliction of great bodily injury enhancements. With respect to Brittneeh, Jenkins argued that the evidence of her prior conviction would have been admissible to establish Brittneeh’s propensity for violence and thus support Jenkins’ self-defense argument. With respect to Sade, Jenkins contended that the suppressed evidence would have been admissible for impeachment purposes as evidence of moral turpitude and to refute Sade’s trial testimony that Brittneeh had never acted like a “bully.”
Along with her habeas petition, Jenkins filed a declaration from her trial counsel in support of her claim that the prosecutor suppressed evidence. In the declaration, trial counsel stated that Jenkins’ postconviction counsel recently provided him with an unpublished Court of Appeal opinion that describes the brutal assaults perpetrated by Brittneeh and Sade; trial counsel added, “I did not know anything about that case.” A copy of the unpublished opinion was attached to the declaration.
The Court of Appeal ordered Jenkins’ petition to be considered with her appeal. The Attorney General (“AG”) filed an informal response in which he argued that Jenkins failed to state a prima facie case for relief because she provided “no competent evidence” that either Brittneeh or Sade were ever convicted of the crimes alleged nor did she provide any “evidence that the prosecutor failed to disclose” any such convictions. The AG dismissed the opinion attached to her trial counsel’s declaration as “nothing but an apparent printout of an unspecified and unverified Internet source suggesting a direct appeal opinion in which minors ‘Brit W.’ and ‘Sade W.’ are listed as defendants, among others.” The AG argued that Jenkins failed to provide sufficient evidence to establish that Brittneeh and Sade are the minors in the unpublished decision, and thus, she failed to establish a prima facie case for relief.
Jenkins objected to the AG’s refusal to acknowledge whether Brittneeh and Sade were the minors at issue in the unpublished opinion, noting that the AG has access to Brittneeh’s criminal history and that the AG’s “own office handled the appeal in that case [the unpublished opinion].” Jenkins stated that the AG knows full well whether the minors in the unpublished opinion are Brittneeh and Sade.
The Court of Appeal issued an order to show cause. In response, the AG repeated its argument that Jenkins failed to establish that Brittneeh and Sade were the minors in the unpublished opinion. The AG also argued that even assuming they were the subject of the unpublished opinion, Jenkins failed to demonstrate that the prosecutor suppressed those prior convictions. Finally, the AG argued, again in the alternative, that Jenkins failed to establish the evidence that was allegedly suppressed was “material.”
The Court of Appeal affirmed Jenkins’ conviction and denied her habeas petition. In denying her petition, the court (after assuming for the sake of argument the prosecutor should have disclosed the prior convictions and they would have been admissible) rejected her Brady claim because “there is no reasonable probability that [their disclosure] would have altered the outcome of the trial.”
Jenkins filed a petition for review of the denial of her writ petition. The AG filed an answer declaring that he had no “obligation to provide additional evidence confirming that Brittneeh and Sade had, in fact, suffered the prior juvenile adjudications.”
The California Supreme Court granted review, limiting the issue to: “Where a habeas petition claims not to have received a fair trial because the District Attorney failed to disclose material evidence in violation of Brady – and where the Attorney General has knowledge of, or is in actual or constructive possession of, such evidence – what duty, if any, does the Attorney General have to acknowledge or disclose that evidence to the petitioner? Would any such duty be triggered only upon issuance of an order to show cause?”
Constitutional Duty to Disclose Brady Material in Habeas Proceedings
The Court began by summarizing Jenkins’ argument, i.e., the Due Process Clause of the Fourteenth Amendment prohibits the AG from defending against her Brady claim by suppressing the very same evidence she alleges the prosecutor suppressed at trial – the alleged convictions of Brittneeh and Sade.
The Court observed that the Fourteenth Amendment’s Due Process Clause grants criminal defendants the right to a fair trial, which imposes certain duties on states “consistent with their sovereign obligation to ensure that ‘justice shall be done.’” Association for Los Angeles Deputy Sheriffs v. Superior Court, 447 P.3d 234 (Cal. 2019) (quoting Cone v. Bell, 556 U.S. 449 (2009)). As agents of the state, prosecutors are required to honor these obligations. Id. In fact, prosecutors are held to a higher standard than other attorneys “because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.” People v. Hill, 952 P.2d 673 (Cal. 1998).
The disclosure of favorable evidence to the defendant is one such special obligation of prosecutors. See Brady v. Maryland, 373 U.S. 83 (1963) (prosecution has constitutional duty to provide material exculpatory evidence to the defense); Kyles v. Whitley, 514 U.S. 419 (1995). [Writer’s note: see also Giglio v. United States, 405 U.S. 150 (1972) (holding Brady material includes material that might be used to impeach key prosecution witnesses)] The prosecution’s Brady obligation covers evidence that it possesses and actually knows about as well as “evidence known to the others acting on the government’s behalf in the case, including the police.” People v. Cordova, 358 P.3d 518 (Cal. 2015).
After reviewing the governing legal principles, the Court advised that the California Supreme Court has never addressed the issue of what duty, if any, the AG has “under Brady and its progeny to disclose evidence forming the basis of a habeas corpus petitioner’s Brady claim.” It noted, however, that courts in other jurisdictions have addressed the issue and discussed several such cases.
The Court found the Seventh Circuit’s opinion in Steidl v. Fermon, 494 F.3d 623 (7th Cir. 2007), “particularly instructive.” In Steidl, officials with the Illinois state police learned, during postconviction proceedings, of the existence of exculpatory evidence that was in the government’s possession prior to Steidl’s trial. Despite this knowledge, the officials never disclosed the evidence or its existence to Steidl. After his release from prison, he filed a 42 U.S.C. § 1983 claim against the officials, arguing that their concealment of “exculpatory evidence from the courts during his post-conviction proceedings” rendered his trial unfair and resulted in his wrongful conviction.
The District Court denied the officials’ claim of qualified immunity; they appealed. On appeal, the Seventh Circuit sided with the lower court, reasoning that “the Brady line of cases has clearly established a defendant’s right to be informed about exculpatory evidence throughout the proceedings, including appeals and authorized post-conviction procedures, when that exculpatory evidence was known to the state at the time of the original trial.” Steidl.
Turning to the present case, the Court stated that the AG failed to cite a single case from California or any other jurisdiction “holding that the government, in postconviction proceedings, lacks a duty to disclose Brady material that was available to the government at the time of trial.” It then discussed in detail and rejected the AG’s various arguments as to why he is under no duty to disclose Brady material in postconviction proceedings. In particular, the Court devoted a significant amount of energy distinguishing District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009), from the present case, because the AG relied heavily upon the case.
In Osborne, the defendant brought suit under § 1983 against Alaska officials, claiming the Due Process Clause of the Fourteenth Amendment grants him the right to access DNA evidence that “had been unavailable at trial.” Osborne (emphasis supplied). That is, the defendant argued that he was entitled to postconviction access to DNA evidence used against him at trial in order to subject the DNA evidence to new testing methods that were unavailable at the time of his trial. Essentially, the defendant invited the U.S. Supreme Court to recognize a freestanding (not connected to an alleged Brady violation at trial, for example), substantive due process right to access DNA evidence postconviction, but it declined the invitation, holding that there is no constitutional right to obtain postconviction access to the prosecution’s evidence for new DNA testing. Osborne. In reaching its decision, the Osborne Court explained that, in contrast to pretrial when there is a presumption of innocence, the government’s Brady obligations do not extend to postconviction proceedings with respect to evidence that was unavailable at trial because states have more flexibility in deciding what procedures are necessary to safeguard a defendant’s limited liberty interest postconviction. Thus, the defendant was not entitled to access the DNA evidence used against him at trial.
The Court acknowledged that Osborne treats pretrial and postconviction Brady obligations differently, but the Court distinguished the current case from Osborne based on the availability of the alleged Brady material at trial. In Osborne, the evidence that the prisoner claimed was being suppressed postconviction was unavailable at trial – that is, there was no Brady violation that tainted the fairness of the trial and conviction. In contrast, the evidence Jenkins claims the AG is suppressing postconviction was available at trial, and thus, her trial and conviction were tainted by the Brady violation, which continues to taint the postconviction proceedings because of the AG’s continued suppression of that same evidence. See Cone v. Bell, 556 U.S. 449 (2009) (concluding that evidence withheld from defendant at trial deprived him of his right to a fair trial).
In support of its position, the Court explained that Osborne itself repeatedly points out that the evidence at issue was unavailable at trial, and that is a material distinction from the present case. In addition, the Court noted that other courts interpret Osborne similarly. For example, the Seventh Circuit in Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), interpreted Osborne to mean that defendants do not have a due process right to access potentially exculpatory evidence that was not in existence at the time of trial (that is, no freestanding constitutional right to access evidence used at trial and subject it to testing techniques that were not in existence at the time of trial). See Whitlock.
However, Osborne does not address, much less reject, the rule set forth in Steidl that the government continues to be bound by its Brady obligations during postconviction proceedings where the evidence at issue was available pretrial but suppressed, according to the Whitlock Court. It explained that Steidl and Osborne addressed two separate and distinct issues during postconviction proceedings and are thus compatible with one another, viz., whether the government’s Brady obligations continue to exist postconviction with respect to evidence that was available but suppressed pretrial (Steidl) and evidence that was unavailable pretrial (Osborne). Thus, the Court concluded that Osborne provides no support for the AG’s position and that the facts of this case are analogous to Steidl and materially distinguishable from Osborne.
The Court ruled “that where a habeas corpus petitioner claims not to have received a fair trial because a trial prosecutor failed to disclose material evidence in violation of Brady— and where the Attorney General has knowledge of, or is in actual or constructive possession of, evidence that the trial prosecutor suppressed in violation of Brady — the Attorney General has a constitutional duty under Brady to disclose the evidence.”
Ethical Duty to Disclose Exculpatory Evidence in Habeas Proceedings
The Court next addressed Jenkins’ contention that the AG has an ethical duty – independent of its constitutional duty – under Rule 3.8(d) of the Rules of Professional Conduct to disclose exculpatory evidence in postconviction proceedings. It noted that the California Supreme Court has never addressed the issue prior to this case.
Rule 3.8(d) provides in relevant part: “The prosecutor in a criminal case shall: … make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”
The AG argued that Rule 3.8(d) does not apply to postconviction proceedings and that Rule 3.8 does not impose a duty to disclose “independent of settled habeas procedures.” The Court rejected both arguments, citing and discussing case law prior to the adoption of Rule 3.8(d) that support both the application of Rule 3.8(d) to postconviction proceedings and prosecutors’ “continuing [ethical] duty in postconviction proceedings to disclose exculpatory evidence that should have been disclosed at trial.” See In re Lawley, 179 P.3d 891 (Cal. 2008); In re Steele, 85 P.3d 444 (Cal. 2004); People v. Gonzalez, 800 P.2d 1159 (Cal. 1990). The Court explained that the three foregoing cases were decided before California adopted a specific rule of professional conduct requiring the disclosure of exculpatory evidence, yet the California Supreme Court repeatedly instructed that prosecutors have an ethical duty to disclose exculpatory evidence in postconviction proceedings.
Thus, the Court ruled that when responding to a habeas petition alleging a Brady violation, the AG “has an ethical duty to make timely disclosure to the petitioner of all evidence or information known to the Attorney General that was available but not disclosed at trial that the Attorney General knows or reasonably should know tends to negate the guilt of the petitioner, mitigate the offense, or mitigate the sentence, except when the Attorney General is relieved of this responsibility by a protective order of the tribunal.”
Duties Based on Habeas Procedural Law
The Court began this portion of its opinion by summarizing the procedures governing habeas petitions. It then turned to the issue of whether the government has duties in addition to the constitutional and ethical ones based on “habeas corpus procedural law that apply upon the mere allegation of a Brady violation.” A constitutional duty to disclose arises if the evidence that is allegedly suppressed is material and exculpatory, and an ethical duty to disclose arises if the evidence is subject to Rule 3.8(d), the Court reiterated. In contrast, Jenkins argued that the duties based on habeas procedural law are triggered by the mere allegation of a Brady violation in a habeas petition.
Jenkins argued that the AG should not be allowed to suppress exculpatory evidence that would undermine a defendant’s conviction, hoping that the case does not survive the informal briefing stage. She reasoned that there are a “vast number of unrepresented habeas petitioners,” who are relatively uneducated and unskilled in the law, so a contrary rule would “incentivize continued suppression.” Consequently, merely filing a habeas petition claiming a Brady violation should trigger “a respondent’s duty under our habeas corpus case law to disclose the existence of known evidence underlying such claim,” Jenkins further argued.
The Court rejected her argument and instructed that “prior to the issuance of an order to show cause, in an informal response, respondent may choose to neither ‘confirm nor dispute’ the existence of the alleged Brady violation and may argue instead that, assuming the existence of the evidence, the evidence is not subject to Brady.”
However, the Court imposed one restriction on a respondent’s informal response: “if the Attorney General has knowledge of, or is in actual or constructive possession of, evidence underlying a habeas corpus petitioner’s Brady claim, he shall not file an informal response on behalf of respondent that argues the petitioner has failed to present ‘documentary evidence supporting the claim,’ unless the Attorney General explains the basis for such an argument….” See People v. Duvall, 886 P.2d 1252 (Cal. 1995) (explaining petitioner’s initial pleading burden and summarizing procedural steps of habeas petition). The Court explained that this limited restriction is sufficient to prevent a court from summarily rejecting a petition on the mistaken belief that the evidence at issue does not exist, when the AG has actual knowledge of its existence.
It is a different situation following the issuance of an order to show cause, the Court stated. At that point, a respondent must plead facts that are responsive to the petitioner’s claims, including the submission of documentary evidence and other materials that will enable the court to decide which issues are genuinely in dispute. Duvall. The respondent’s obligation includes “acknowledging the existence of alleged Brady evidence known to or possessed by the Attorney General,” the Court instructed.
Alleged Brady Violation When Respondent Prohibited From Disclosure by Law
The Court observed that the evidence underlying Jenkins’ Brady violation claim – juvenile adjudications of Brittneeh and Sade – is protected by disclosure restrictions contained in Welfare and Institutions Code § 827. The Court then discussed at length the interplay between the government’s Brady obligations and ethical duty of disclosure vis-à-vis the confidentiality of records under § 827.
Following its examination of the governing legal principles, the Court concluded as follows: “In sum, in responding to a petition for writ of habeas corpus alleging a Brady violation based on a failure to disclose evidence when the Attorney General is himself prohibited from disclosing that evidence pursuant to Welfare and Institutions Code section 827, the Attorney General need not, and should not, himself disclose the evidence in contravention of statutory confidentiality procedures. However, the existence of such confidentiality provisions does not relieve the Attorney General of the various disclosure duties outlined in this opinion. Instead, when faced with such a petition, the Attorney General should proceed as outlined in this part [II.D.] and, in so doing, will comply with the duties we have described in this opinion without contravening the disclosure restrictions contained in Welfare and Institutions Code section 827.”
The Court concluded its opinion with the following helpful recap: “where allegedly suppressed evidence forming the basis of a Brady claim in a petition for writ of habeas corpus is in fact subject to Brady, the Attorney General has a constitutional duty of disclosure that exists as of the time of the filing of the petition…. Where such evidence is not subject to Brady, but is subject to Rule 3.8(d), the Attorney General has an ethical duty of disclosure that exists as of the time of the filing of the petition…. Where such evidence is neither subject to Brady nor subject to disclosure under Rule 3.8(d), respondent has a duty to disclose the existence of the evidence under Duvall that arises after the issuance of an order to show cause…. Finally, where such evidence is subject to disclosure restrictions contained in Welfare and Institutions Code section 827, the Attorney General and the respondent may fulfill their duties by proceeding as outlined in part II.D.”
Finally, the Court took the unusual step of issuing a plea and reminder (the fact the Court felt compelled to do speaks volumes about its dim view of prosecutors’ fidelity to their disclosure obligations): “we urge the prosecutors in this case, and in every other, to carefully consider the constitutional, ethical, and habeas corpus procedural duties that we have outlined herein to ensure that they faithfully bear the special responsibilities ascribed to the prosecution in our system of justice.”
Accordingly, the Court reversed the judgment of the Court of Appeal and remanded to that court for further proceedings consistent with its opinion. See: In re Jenkins, 2023 Cal. LEXIS 1585 (2023).
Writer’s note: Anyone with an interest in the government’s duty to disclose Brady material during postconviction proceedings that was allegedly suppressed pretrial is strongly encouraged to read the Court’s full 54-page opinion. Although it is lengthy and dense, it is also informative and serves as an excellent starting point for further research on the topic. It discusses at considerable length several cases from other jurisdictions on the topic as well as thoroughly refutes each argument advanced by the AG in his attempt to deny any Brady obligations or ethical duty of disclosure during postconviction proceedings.
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