West Virginia Supreme Court Rules that Brady Requirement Applies to Plea Negotiations

From the West Virginia Supreme Court’s ruling released Tuesday, November 10, 2015:

“This Court is presented with a situation in which a defendant repeatedly requested the results of DNA testing; was incorrectly informed that such testing was not yet complete; and was presented with a time-limited plea offer that he accepted upon advice of counsel. We find that the DNA results were favorable, suppressed, and material to the defense. Thus, the Petitioner’s due process rights, as enunciated in Brady, were violated by the State’s suppression of that exculpatory evidence.”

Further, “…This Court…remands this matter for an order granting habeas relief and permitting the Petitioner to withdraw his guilty plea.”

The West Virginia Supreme Court’s unanimous ruling in Buffey v. Ballard, reversing the June 3, 2014, order of the Circuit Court of Harrison County, enables Joseph A. Buffey to withdraw his 2002 guilty plea in the case of the rape of an 83-year-old woman and requires the prosecutor to either retry the case or drop the charges against Buffey. Moreover, the decision establishes the precedent in West Virginia that prosecutors must provide to the defense exculpatory evidence, not only at trial, but also during the plea-bargaining process.

In 2002, after a nine-hour interrogation and upon advice of his lawyer, Joseph Buffey, then 19, pleaded guilty to the sexual assault and robbery of an elderly woman in her home. Shortly thereafter, he recanted his plea and repeatedly requested the results of DNA testing of crime scene biological evidence.

The victim, who survived the heinous attack, described a single assailant. The testing, which was completed before Buffey’s plea was finalized, excluded Buffey as the perpetrator, however these results were not shared with him or his attorney.

In 2010, with the assistance of the Innocence Project, more sophisticated DNA testing implicated another man as the sexual assailant. He was convicted this year, but Buffey remained in prison.

Jed S. Rakoff, United States District Judge for the Southern District of New York, has noted the trend of fewer criminal cases going to trial. Of all federal criminal charges that were not dismissed, “more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial,” Judge Rakoff wrote in a November 2014 article in The New York Review of Books.

He added, “While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed…”

The trend of increasingly resolving criminal cases and sentencing by plea negotiation rather than jury or bench trial has begged the question of whether protections and requirements guaranteeing a defendant’s constitutional due process rights at trial apply to today’s dominant form of case resolution.

The West Virginia Supreme Court has now answered that question for its jurisdiction.

Allan N. Karlin represented Joseph Buffey with assistance from Nina Morrison and Barry Scheck of the innocence Project. Assistant Prosecuting Attorneys David Romano and James F. Armstrong represented the State.

Supporting the Court’s decision was an amicus brief from thirty state and federal current or former prosecutors. As a point of disclosure, my husband Jim Petro, former Ohio Attorney General, was among them. In support of dispelling the State of West Virginia’s contention that Brady applies only to cases that go to trial, the counsel for Amici Curiae wrote:

“As this Court knows, nationwide, almost all criminal cases are resolved by guilty pleas. Plea bargaining is ‘not some adjunct of the criminal justice system;’ it is the criminal justice system. If Brady is just a trial right, it has become a hollow reed.”

In concurring with the Court’s decision, Justice Allen Loughry commented particularly on the overarching obligation of the prosecutor, “I write separately to emphasize the role of the prosecutor and the potentially devastating effects when the prosecutor fails to act in the interests of justice. As the United States Supreme Court eloquently explained long ago, a prosecutor is

the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

– Berger v. United States, 295 U.S. 78, 88 (1935).

Justice Allen concluded, “When the State fails in this obligation, it is not only the rights of the individual defendant that are compromised, but the public’s confidence in our system of justice as well. This is not merely a high-minded academic proposition. The public’s ever-eroding confidence in our system of justice is well-documented as the images of the good, honest, hard-working police officers, prosecutors, and judges are often tarnished as a result of the improper actions of a few unscrupulous public servants.”

Indeed, one wonders what possible argument could be persuasive in advocating a policy that would enable prosecutors to withhold exculpatory evidence from a defendant in a plea negotiation…assuming that seeking justice is the objective.

Read the Supreme Court’s decision (here).

Read Justice Loughry’s concurring opinion (here).

Read the amicus brief (here).

See more (here).