EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, July 8, 2016

Was Judge Welch Correct That the Brady Right is Not a Fundamental Right?

In Judge's Welch's opinion granting Adnan a new trial, he noted the dichotomy between fundamental and non-fundamental rights:

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Because Maryland has found that the right to the effective assistance of counsel is "fundamental," Judge Welch was able to find that Adnan's prior failure to raise the AT&T disclaimer issue was not waived because Adnan did not "intelligently and knowingly" fail to raise the issue in his first PCR petition. Conversely, because Judge Welch concluded that an alleged Brady violation does not relate to a fundamental right, he also concluded that Adnan had waived his Brady claim because he had the opportunity to raise the claim in his first PCR petition; under this analysis, it was irrelevant that Adnan didn't "intelligently and knowingly" fail to raise the Brady claim. But is this conclusion correct? 

In his opinion, Judge Welch acknowledged that "Maryland appellate courts have not explicitly identified the underlying basis of a Brady claim as a fundamental right." As such, he cited to the one Maryland appellate court opinion that discussed the issue in dicta.

In Conyers v. State, 790 A.2d 15 (Md. 2002), Clarence Conyers filed a PCR petition challenging his capital murder conviction; the petition did not contain a Brady claimAt trial, Conyers had been convicted largely based on the testimony of Charles Johnson a jailhouse snitch. At the PCR hearing, Detective Phillip Marr testified

about his 23 November 1994 meeting with Johnson. On this occasion,...Detective Marll indicated that...Johnson had queried the detectives about a possible deal. When Detective Marll informed Johnson that the police did not have the authority to commit to a deal, but would refer his inquiry to the State's Attorney's office, Johnson declined to sign his written statement, electing instead merely to initial the pages. Detective Marll also revealed, for the first time, that several statements Johnson provided the police during the 1994 meeting either were disproved subsequently by the police or were found by them to be unverifiable.

Thereafter, Conyers moved to supplement his PCR petition to include a Brady claim. The State countered that Conyers had waived this Brady claim by not including it in his first PCR petition. The Court of Appeals of Maryland disagreed, finding that Conyers's "Brady claims relating to the testimony and examination of Charles Johnson did not arise until the post conviction evidentiary hearing, at which point Petitioner properly raised these issues." In doing so, the court cited to several Maryland waiver cases that dealt with non-fundamental rights.

The question, of course, is whether the court was (1) implying that an alleged Brady violation does not relate to a fundamental right; or (2) saying that, even under the more difficult waiver test, Conyers still didn't waive his Brady claim, thus leaving for another day the question of whether a Brady violation relates to a fundamental right.

Judge Welch obviously went with option 1, despite noting that

Brady violation relates to the right to a fair trial. The right to a fair trial is rooted in the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution, both of which form the foundation of our criminal justice system.

Immediately after this language, however, Judge Welch cited the authority that allowed him to conclude that an alleged Brady violation does not relate to a fundamental right:

The application of the "intelligent and knowing" standard, however, does not necessarily apply to an asserted right originating from a Constitutional guarantee. See Wyche, 53 Md.App. at 406.

Here is page 406 of the opinion in Wyche:

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I don't read this language the same way as Judge Welch. It seems to me that the Wyche court said that fundamental rights are, "almost without exception, basic rights of a constitutional origin" and then gave a non-exhaustive list of examples. I don't read the Wyche opinion as saying that there are any "basic rights of a constitutional origin" that are non-fundamental. 

Moreover, I don't see how the Brady right could be seen as anything other than a right guaranteed "to preserve a fair trial and the reliability of the truth-determining process." Brady violations consist of the State failed to turn over material exculpatory evidence like an alternate suspect confessing of someone else's DNA being found on the victim's body. Isn't the right to a new trial based on such non-disclosure guaranteed to preserve a fair trial and the reliability of the truth-determining process? This is a question that the Court of Special Appeal might soon have to answer.



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I would HOPE that a Brady violation is a fundamental right. Soemetimes courts come up with things that are just so terrifying. And I hate to say it, but if this case hadn't been famous, adnan would likely be up a creek without a paddle, and that's wrong. He deserves a new trial (or really, just to get out, considering the time that has passed). There are just too many cases where the person deserves a new hearing or trial and it's denied on really stupid grounds.

In fact, I firmly believe that DNA testing is a right that should never be denied, even 40 years later (when it gets even to that extreme). We know DNA can exonerate. If there's ANY chance of that, however small, the person deserves that chance. I am horrified at the lack of care courts show prisoners who appeal.

The Brady finding is typical of how a court would rule. He got some of it right and for that, I am grateful; but he got a lot wrong, too.

Posted by: ShannonDEsq | Jul 8, 2016 8:05:44 AM

It's dumbfounding that a concept such as "waiving Brady right" even exists in the courts' lexicon. And why is it that judges often use pretzel logic to come to conclusions that often defy logic and basic common sense? Is purpose of the justice system to find the truth and punish the guilty? If so, shouldn't any and all efforts be made to get to the bottom of the truth and avoid wrongful convictions at all costs? For court to argue that one has waived his/her Brady claim is essentially justice system standing by and watching a potentially innocent person rot in prison (while the actual perpetrator roams free). How is it convincible, let alone acceptable, that one be barred from proving innocence?!

Judge Welch made the ultimate right decision, but I would hope that, if need be, parts of his opinion are vigorously challenged on cross-appeal.

Posted by: Nick | Jul 8, 2016 10:33:19 AM

I am having trouble discerning the difference between a “fundamental right" and an “asserted right originating from a Constitutional guarantee. Where these term chosen because they have previously clearly defined legal meaning? To me these terms appear to be analogous to potential and kinetic energy. A fundamental right is of no value until it has been asserted. In my mind an “asserted right originating from a Constitutional guarantee” is nothing more than a fundamental right in action. If you can help me see this question from Judge Welch’s possible perspective, where the difference is so well defined that his opinion appears more logical, I would appreciate hearing from you. Do you agree that the judges argument hinges on the definition of these two term?

Posted by: Beau | Jul 8, 2016 10:51:26 AM


If the state appeals, and there's a cross-appeal, can COSA deny leave to appeal to the state and grant it to the defense?

Posted by: pluscachange | Jul 8, 2016 12:12:02 PM

Nick: Agreed. I don’t see how a defendant’s failure to raise a Brady violation can lead to waiver if the failure wasn’t knowingly and intelligently done.

beau: I’m not sure there is a meaningful difference. According to Judge Welch, the Wyche case says there is a difference, but I don’t see how the Wyche opinion stands for that proposition.

pluscachange: If COSA denies the State leave to appeal, Judge Welch’s order granting a new trial becomes final, so there would be no need to grant Adnan leave to appeal.

Posted by: Colin Miller | Jul 8, 2016 12:22:53 PM


Thanks for the considerate and courteous response.

Posted by: pluscachange | Jul 8, 2016 12:58:36 PM

Here's a question, based on several of your recent posts. If the State files a Motion to Alter or Amend Judgement, is the Court bound to address only the issue(s) raised or can it also revisit its findings with regard to IAC and prejudice regarding an alibi witness and waiver concerning a Brady violation?

Posted by: streetwriter | Jul 8, 2016 2:03:51 PM

Is the converse of pluscachange's question true... i.e. can COSA deny Adnan's appeal put allow the state's? Or can Adnan automatically cross-appeal if the state's motion is granted?

Posted by: Cupcake | Jul 9, 2016 3:17:56 AM

Also... does the plea deal IAC appeal automatically get reconsidered alongside any new appeals? Or can there be a request to hear each element separately?

Posted by: Cupcake | Jul 9, 2016 3:19:59 AM

Pretzel logic, great analogy. Splitting hairs is what I say. Of course the fundamental right to fair trial includes brady violation. Have Supreme said anything?

Posted by: Linnette | Jul 9, 2016 6:51:53 AM

This is regarding the Alford Plea option. If Adnan were to take an Alford Plea, could he not pursue an actual innocence hearing afterwards--as did Kerry Cook in Texas? Could he still depend on the Innocence Project and their DNA testing and things? Thank-you.

Posted by: cmclain | Jul 9, 2016 12:01:13 PM

pluscachange: No problem.

streetwriter: The court could potentially address anything.

Cupcake: The converse is true.

Linnette: The Supreme Court has not spoken on the issue.

Cmclain: Adnan could not take an Alford Plea and subsequently seek an actual innocence hearing under Maryland law.

Posted by: Colin Miller | Jul 10, 2016 4:06:39 AM

Colin: can I ask why you sometimes say "cite to" and sometimes "cite"? Do the terms have separate legal meanings? I just ask because I'd never heard "cite to" before...

Posted by: Tom | Jul 10, 2016 10:21:08 AM

So if Adnan takes an Alford Plea, it's game over for proving innocence? Even if it can be proven someone else did it/someone else confesses?

Posted by: Cupcake | Jul 10, 2016 11:13:19 AM

Tom: They’re interchangeable. It just means that the court is referencing another case.

Cupcake: It’s never game over, completely. Under extraordinary circumstances, an Alford Plea could be thrown out.

Posted by: Colin Miller | Jul 10, 2016 6:46:27 PM

Tom- the two don't have different legal meanings, but when used in typical parlance, "cite/citing to" is often used I think when the act of citing is somehow a response to or justification of something, with some added emphasis on it.

For example if asked "what will counsel do if the judge brings up issue X?" could be "Counsel will easily cite to Precedent Y if that happens"

Could just be me though, that's my 2 cents. Interchangeable for all intents+purposes otherwise though.

Posted by: Paul | Jul 11, 2016 12:15:52 AM

Paul: Good explanation.

Posted by: Colin Miller | Jul 11, 2016 3:01:47 AM

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