Ketanji Brown Jackson’s Dissent Highlights An Important Gap In Brady Jurisprudence

Senate Holds Supreme Court Confirmation Hearings For Ketanji Brown Jackson

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For those of you who nodded off during Criminal Law, the Brady rule requires prosecutors to disclose material exculpatory evidence in the government’s possession to the defense. It is a nice rule — it is hard enough for defending counsel to go up against the vast resources of the state. Brady prevents prosecutors from weighing their thumbs on the scale and hiding the ball to put innocent people behind bars.

In theory.

The application gets a little more blurry. Davel v. Chinn could’ve offered some clarification but SCOTUS denied cert.

Justice Ketanji Brown Jackson dissented from the Supreme Court’s denial of certiorari in the case of a man convicted in a 1989 robbery-murder and sentenced to death, expressing concern about the prosecution’s “key witness.”

[Jackson] would have granted the case because the state “suppressed exculpatory evidence” about Marvin Washington. Washington, the “main” witness against Chinn, had an “intellectual disability that may have affected Washington’s ability to remember, perceive fact from fiction, and testify accurately,” the justice wrote.

You would think the Brady rule would require the prosecution to be upfront about their star witness potentially confusing fact and fiction. And not in some “brain in a vat” way philosophy nerds like to throw at you after a few beers. Knowing that the person you put on the stand may not grasp the difference between reality and the Truman Show is nasty work. Justice Jackson argued that the case at hand could have resolved the distinction between the “reasonable probability” and “more-probable-than-not” standards:

“The Sixth Circuit did not appropriately apply the materiality standard. Although the Sixth Circuit purported to recognize that the two standards were different, it simultaneously claimed that “reasonable probability’ for Brady’s purposes is effectively the same as a more-probable-than-not standard,’” the justice wrote. “It further said that ‘[t]he Brady question now’ before the court was ‘whether it is more probable than not that the withheld evidence would have created a different result.’”

“That reasoning violated the spirit, if not the letter, of our many cases holding that the two standards are not the same and that ‘reasonable probability’ is a lower standard,” Jackson continued.

I hope the next time an opportunity presents itself for the Supreme Court to clear up a vital ambiguity in our criminal procedure, Justices Jackson and Sotomayor aren’t the only ones that answer the call. Lives are on the line.

“Justices Jackson and Sotomayor recognized the injustice in upholding Davel Chinn’s conviction and death sentence when the State suppressed exculpatory evidence that, based on the Ohio Courts’ own representations, was likely to result in an acquittal,” Rachel Troutman, Chinn’s attorney with the Ohio Public Defender’s Office, said in an email to Law&Crime. “Ohio must not exacerbate the mistakes of the past by pursuing Mr. Chinn’s execution.”

SCOTUS Refused to Take Up Case on ‘Suppressed Exculpatory Evidence’ About ‘Key Witness’ in Capital Case, and Justice Jackson Had Some Thoughts [Law and Crime]


Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.


https://abovethelaw.com/2022/11/ketanji-brown-jacksons-dissent-highlights-an-important-gap-in-brady-jurisprudence/