Thursday, November 8, 2018
The Case of the 9th Grade, Special Education Student and the Right to Evidence of Innocence Before Pleading Guilty
On November 27, 2005, George Alvarez, a ninth grade, special education student, was arrested by the Brownsville Police Department and taken to a detention center on suspicion of public intoxication and burglary of a motor vehicle. Alvarez tried to use the telephone located in his holding cell to call his family; when the phone didn't work, "Alvarez banged the headset against the phone and yelled for the jailers to fix the phone." Because Alvarez was being somewhat disruptive, officers removed Alvarez from his cell to the center's booking area, whereupon Alvarez engaged in a conversation with Officers Jesus Martin Arias, Guadalupe Rios Salinas, and Nelson W. Mendoza. According to all three officers, Alvarez then attacked Officer Arias.
Alvarez was thereafter charged with assaulting a public servant, a third degree felony in Texas with a sentencing range between 2-10 years. "Despite believing that he did not assault Arias, Alvarez also believed 'I had no [way to win the case]. It's my word against their word, and they're always going to believe them because they're like the law.'" Alvarez thus pleaded guilty to to the assault. Four years into Alvarez's eight year sentence,*
video footage came to light that prosecutors had never gathered from police officers, and thus never shown to the grand jury. The footage showed no such attack. Instead, the guard could be seen placing Alvarez in a choke hold and eventually a head lock while the young man flailed beneath him. His hands and arms were pinned down, nowhere near the guard’s throat. The Texas Court of Criminal Appeals found Alvarez to be “actually innocent” of the charges.
Specifically, here's the video:
Alvarez, who could not read or write well prior to his incarceration, "couldn't even read his own innocence ruling when he received it in prison."
Alvarez later brought a civil action against the City of Brownsville, claiming a violation of his due process rights under Brady v. Maryland, which held that the State has an affirmative obligation to disclose material exculpatory evidence to defendants.
On September 18th, the United States Court of Appeals for the Fifth Circuit issued an en banc (the entire bench) opinion denying Alvarez relief. Why? According to the Fifth Circuit, "case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process."
The Fifth Circuit isn't alone in reaching this conclusion. For example, in Robertson v. Lucas, several Ohio defendants pleaded guilty to drug crimes in connection with Operation Turnaround, “a highly corrupt government investigation in which an informant, inter alia, maliciously falsely identified innocent people as participants in drug sales and stole controlled ‘buy money’ from DEA agents." After the corrupt nature of Operation Turnaround was revealed, the prosecutor successfully moved for the dismissal of the defendants’ convictions. The defendants then brought Section 1983 actions, claiming that the failure of various state officials to disclose material exculpatory evidence connected to Operation Turnaround before they pleaded guilty violated the Brady doctrine. The Sixth Circuit, however, found that these officials had qualified immunity because they “were under no clearly established obligation to disclose exculpatory Brady material to the prosecutors in time to be put to effective use in plea bargaining.”
After reading these opinions, I was skeptical of the claim that the State has no clearly established obligation to disclose evidence of innocence before a defendant pleads guilty. And so, I went back to the Brady opinion itself. And that look back has led to two things: First, my new article, "The Right to Evidence of Innocence Before Pleading Guilty" (feedback appreciated); and (2) an amici curiae brief that I will be submitting the the Supreme Court in support of Alvarez's cert petition.
So, what did I find? The Brady opinion notes that it is an extension of six cases dealing with the Due Process Clause: (1) Mooney v. Holohan; (2) Pyle v. Kansas; (3) Durley v. Mayo (dissent); (4) Alcorta v. Texas; (5) Napue v. Illinois; and (6) Wilde v. Wyoming.
What's immediately striking is that four of these cases -- Mooney, Durley, Alcorta, and Napue -- had nothing to do with the suppression of exculpatory evidence and dealt solely with the alleged subornation of perjury.
That leaves Pyle and Wilde. In Pyle, Harry Pyle and his son "Babe" allegedly killed August Reiter while attempting to steal $24,000 in government bonds buried near his home outside Hudson, Kansas. After he was convicted of murder, Harry Pyle claimed that the State suborned perjury and suppressed exculpatory evidence before his trial. The United States Supreme Court found these claims potentially viable and remanded to Kansas, where the Supreme Court of Kansas subsequently found that Harry Pyle had failed to prove that the State either knowingly suborned perjury or suppressed exculpatory evidence.** Nonetheless, courts continue to cite Pyle for the proposition that suppression of exculpatory evidence before trial is a due process violation. As the Fifth Circuit noted in United States v. DaVoe, "Pyle has been construed to mean that the ‘suppression of evidence favorable’ to the accused is in itself sufficient to constitute denial of due process."
Wilde, meanwhile is a short per curiam opinion. Very short. Here is the entirety of the Court's opinion:
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. In petitions for writ of habeas corpus, filed with the Second Judicial District Court of the State of Wyoming and with the Wyoming Supreme Court, the petitioner alleged, among other grounds for relief, that his plea of guilty to second degree murder in December, 1945, upon which he received a life sentence, was induced when he "had no counsel present" and that the prosecutor wilfully suppressed the testimony of two eyewitnesses to the alleged crime which would have exonerated the petitioner. It does not appear from the record that an adequate hearing on these allegations was held in the District Court, or any hearing of any nature in, or by direction of, the Supreme Court. We find nothing in our examination of the record to justify the denial of hearing on these allegations. The judgment is therefore vacated, and the case is remanded for a hearing thereon. Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116; Sublett v. Adams, 362 U. S. 143.
Given the brevity of the Court's opinion, it's perhaps understandable that Wilde has been lost to time. There simply aren't enough facts in the court's opinion to analogize it to other cases involving similar factual circumstances. But this wasn't always the case. In the 14 years after Wilde was decided, courts cited it 12 times. For example, in 1964, the Second Circuit relied upon Wilde to reverse a robbery conviction based upon the State’s suppression of two exculpatory statements by eyewitnesses. In granting the defendant relief, the court noted the similarity between the case at hand and Wilde, where an evidentiary hearing was granted based on the petitioner’s allegation “‘that the prosecutor wilfully suppressed the testimony of two eyewitnesses to the alleged crime which would have exonerated the petitioner.’” And courts would often cite Wilde and Pyle in conjunction as the pre-Brady cases standing for the proposition that the suppression of favorable evidence can violate due process. See, e.g., United States v. Mayersohn, 452 F.2d 521 (2nd Cir. 1971) (citing Pyle and Wilde for the proposition “that the suppression of evidence is a violation of due process”).
This appears important because, as noted, Wilde seemingly involved the suppression of a exculpatory evidence before a guilty plea. Therefore, it would seem to establish the suppression of exculpatory evidence before a guilty plea can violate the Due Process Clause. Put another way, Wilde seems to establish a right to evidence of innocence before pleading guilty. Now, it's true that the Court merely remanded and did not give Wilde relief, but the Court did the same thing in Pyle, and that case is still reliably cited as establishing a right to evidence of innocence before trial.
But was Wilde really a case about the pre-plea suppression of evidence of actual innocence? I decided to do some digging because the only available information about Wilde's case are the Supreme Court's one paragraph opinion and some old newspaper articles. Those articles revealed that Wilde escaped from prison...
twice. Once, he claimed that he "'walked away from the Wyoming State Prison at Rawlins after he went out to 'get a girl' for a guard (Download Wilde Escape 1). The second time, Wilde and some other inmates were digging a tunnel out of the prison and were 4-5 hours from a Shawshank-esque escape before Wilde lit a cigarette that ignited a leaking gas main:
This second escape attempt occurred in 1959, the same year that Wilde filed a petition for writ of habeas corpus. I now know this because my research led me to the Wyoming State Archives, where a helpful worker dug up 22 pages of documents from the Wilde case that were gathering dust. (Download Wilde).
What these files reveal is that Wilde did bring a pretty crazy claim that the State induced his guilty plea by suppressing exculpatory evidence before his guilty plea. Specifically, in his pro se petition for writ of habeas corpus, Victor Donald Wilde alleged the following:
A stranger named Henry Wallace approached him at a bus station in Madison, Nebraska. Wallace was driving to California and looking for paying passengers. Wilde, who was seeking to visit his mother in California, agreed to accompany Wallace, pay half the expenses, and share the driving load. Upon starting their trip, the two men picked up two young hitchhikers in their late teens. Around midnight, the four men checked into a motel room in eastern Wyoming with two beds. Wilde shared a bed with Wallace, who made “indecent advances in a homosexual manner” that Wilde rebuffed, prompting some words between the two men.
The next day, Wallace bought and drank nearly three pints of whiskey; “as Wallace progressed in his drinking, his temper and disposition became meaner.” Wallace kept harping on the incident from the prior night, prompting Wilde to become disgusted and ask to be let out of the car; however, Wallace continued driving for another 15-20 minutes while muttering under his breath before jamming on the brakes and pulling over to the side of the road.
Wallace then exited the car and opened the passenger door, leading to Wilde falling out of the car. Before Wilde could “right himself,” Wallace began attacking him. Wilde, however, got the better of Wallace, knocking him down 4-5 times. Wilde saw Wallace stumbling to the front seat of the car and thought that he had given up. Upon turning around to look for a resting spot, Wilde “heard a warning shot from the car.” The shot was the hitchhikers warning Wilde that Wallace had a gun. When Wilde turned around, he “was facing a wildly infuriated Wallace who definitely had the look of murder about him.” Wilde, who carried a gun on him, “instinctively drew and fired without thinking,” killing Wallace.
The hitchhikers and Wilde then got Wallace’s body into the car and drove to a gas station because the gas tank was close to empty. While Wilde was filling up the car, the hitchhikers ran away. Wilde then drove the car toward a sheriff’s station, but the car went off an icy highway, which is where a sheriff’s posse arrested him.
Wilde was later charged with first-degree murder and appointed two attorneys, one of whom might have been named Ivan Jones. After Wilde told his story to his attorneys, they responded that it was a clear case of self-defense. Thereafter, however, Wilde was left alone in county jail for 20 days. Eventually, the sheriff came and asked if he would plead guilty to second-degree murder because otherwise he would be convicted of first-degree murder and be given the death penalty.
Wilde asked to see his attorneys and was told he couldn’t see them unless he went to court. Wilde agreed and saw one of his attorneys, who told him he would not represent him unless Wilde paid him $15,000, which would lead to Wilde not serving a day in prison. When Wilde refused, his attorney told him to plead guilty to second-degree murder. Without his attorney present, Wilde entered the judge’s chamber on December 13, 1945 and pleaded guilty to second-degree murder, resulting in him being given a life sentence.
In his habeas petition, Wilde alleged several errors. First and foremost, Wilde claimed that the State (1) suppressed exculpatory statements by the hitchhikers that would have proven his claim of self-defense and (2) intimidated them into making false statements against him at the coroner’s jury. Second, while Wilde admitted that he met with attorneys twice, he alleged that he was deprived of his right to counsel by not having an attorney present when he pleaded guilty. Third, Wilde made various other claims such as the denial of his right to a grand jury and being given an illegal sentence of “natural life” when the statute authorized a sentence of twenty years to life.
In its answer, the State curtly responded that Wilde “was properly represented by counsel, that in all instances he had the benefit of due process of law, and none of his constitutional rights were invaded or denied.” The court’s order denying Wilde’s petition and a hearing on his petition was equally short, with the court quickly responding that “Victor Donald Wilde is legally detained in custody.”
Therefore, the Wilde case was indeed primarily a case about suppressing exculpatory evidence before a defendant pleads guilty. And the Supreme Court's remand of Wilde's case should be taken as proof that the pre-plea suppression of exculpatory evidence can violate the Due Process Clause, just as the remand of Pyle's case has been cited as proof that the pre-trial suppression of exculpatory evidence can violate the Due Process Clause. In other words, it should be taken as proof that there is a right to evidence of innocence before pleading guilty.
So, was Wilde given relief on remand? I haven't been able to find a clear answer, but Pyle should render that question irrelevant given that it has become a reliable precedent despite the defendant being denied relief on remand.
What is clear is that Wilde eventually did leave prison in Wyoming and ended up in Idaho in 1981. We know this because Wilde later fatally shot a female acquaintance twice after she threatened to claim that he raped her. Wilde again pleaded guilty to murder and again was given a life sentence, which this time was upheld on appeal. That opinion merely obliquely mentions the fact that Wilde "had previously served a prison sentence in Wyoming for another homicide."
I contacted Wilde's appellate counsel in the Idaho case, and he was uncertain about what happened after Wilde's Wyoming case after remand. But he was able to send me this courtroom illustration from Wilde's sentencing hearing on November 11, 1981:
Donald Wilde does not appear to have been a very good man, and, in fact he seems to have been a very bad man. But, like John Brady, he may be an important man because he might help establish a right to evidence of innocence before pleading guilty.
*Alvarez was given en eight year suspended sentence that was triggered when he failed to complete a treatment program in connection with the alleged assault.
**Harry's son Babe was eventually pardoned.