by Mark Wilson

The United States Court of Appeals for the Ninth Circuit held that the law was clearly established before 1984 that police officers have a duty to disclose material, exculpatory evidence.

In 1963, the United States Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963) that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” One year later, the Fourth Circuit held in Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964) that Brady’s requirements extend to police agents of the prosecution.

Adopting Barbee’s reasoning in 1978, the Ninth Circuit rejected the government’s argument that no Brady violation occurred because investigative agents, rather than the prosecutor, were responsible for failing to disclose material, exculpatory evidence. See: United States v. Butler, 567 F.2d 885, 891 (9th Cir. 1978). The court “made unmistakably clear” in Butler that police officers and prosecutors share the obligation to disclose “pertinent material evidence favorable to the defense.”

In January 1984, Frank O’Connell was charged with murdering Jay French in Los Angeles. He was ultimately convicted after a bench trial, on the testimony of four witnesses. Twenty years after his 1984 conviction, O’Connell filed a state habeas corpus petition, alleging that investigating officers failed to disclose material, exculpatory evidence that would have undermined the witnesses’ trial testimony, “significantly undercut” their identification of O’Connell, and cast suspicion on an alternative suspect. A California superior court found that the prosecution violated the Brady rule and vacated O’Connell’s conviction. The prosecution declined to retry O’Connell and the charges against him were dismissed in June 2012.

O’Connell brought federal suit, alleging that police deprived him of due process by withholding material, exculpatory evidence. The officers moved for judgment on the pleadings, arguing that they were entitled to qualified immunity because it was not clearly established in 1984 that they were bound by Brady’s disclosure requirements. The district court denied the motion and defendants filed an interlocutory appeal.

In 1991, Francisco Carrillo was convicted of killing Donald Sarpy in Lynnwood, California. Nearly 20 years later, Carrillo filed a state habeas corpus action, alleging that eyewitness testimony implicating him was false. During the habeas hearing, five of six eyewitnesses recanted their original trial testimony. The superior court vacated Carrillo’s conviction, concluding that he had “established that the eyewitness evidence against him was either false, tainted, or both.” The prosecution did not appeal or retry the case.

Carrillo then brought federal suit, alleging that Los Angeles County Sheriff’s Department (LASD) deputy Craig Ditsch failed to disclose his “role in providing information to” witnesses that led them to identify Carrillo. Ditsch moved for summary judgment, arguing that he was entitled to qualified immunity because it was not clearly established in 1991 that Brady applied to police officers. The district court denied the motion and Ditsch filed an interlocutory appeal.

The Ninth Circuit consolidated the O’Connell and Carrillo cases and affirmed the denial of qualified immunity in both cases. “Because Butler unambiguously held due process is violated where a police officer fails to disclose material, exculpatory evidence, our inquiry is over,” the Court concluded. “At the time of the relevant events in these cases, circuit precedent clearly established that police officers were bound by Brady’s disclosure requirements.”

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