Justice Stevens’ Commitment to Prosecutorial Ethics
The following essay on John Paul Stevens is by Rory Little, a professor of law at U.C. Hastings College of the Law in San Francisco. Little also serves as Reporter to the ABA Task Force to Revise the Criminal Justice Standards for the Prosecution and Defense Functions. Little worked with Justice Stevens in the 1984 Supreme Court Term.
"After a brief interlude in an inexpensive motel room . . . ." This elegant description of a not-so-elegant stabbing by a prostitute has always been my personal favorite for the best opening line in a U.S. Supreme Court opinion. New to the Court only five months earlier (nominated on November 28, 1975, confirmed nineteen days later), the junior Justice Stevens received the majority assignment in United States v. Agurs (1976). Issued in June 1976, it was only his fifth full opinion for the Court. The issue was the legal significance of a prosecutor's failure to turn over evidence that tended to support a self-defense claim. The Court had begun to answer this question in the seminal decision of Brady v. Maryland (1963), but certiorari was granted in Agurs to further explicate the constitutional due process standards in light of diverse lower court interpretations.
Justice Stevens' opinion for the Court in Agurs marked the beginning of his four-decade doctrinal effort at the Court to police prosecutorial misconduct, most recently expressed in his 2009 opinion for the Court in Cone v. Bell. Over thirty-four Terms, Justice Stevens cited Brady in seventeen opinions (so far; nine were dissents). He mentioned prosecutorial misconduct in another seven opinions. (In his five-year tenure on the Seventh Circuit, Judge Stevens also wrote one Brady decision "“ Christman v. Hanrahan (1974) "“ finding "serious" and "inexcusable" law enforcement misconduct.) As he wrote in dissent in United States v. Williams (1992), again with a nice flourish, "Like the Hydra slain by Hercules, prosecutorial misconduct has many heads." Justice Stevens was consistently on alert for all of them.
Justice Stevens' strong and consistent enforcement of fair prosecutorial conduct is a neglected portion of his jurisprudence. But this important criminal procedure/legal ethics aspect of Justice Stevens' remarkable career reveals his consistent commitment to integrity, fundamental fairness, and (as Professors Schauer and Thai have noted here and here in this series)) thorough fact-intensive analysis. While much of this ground is familiar to criminal procedure scholars, it is worth re-examining in light of Justice Stevens' imminent departure from the Court. Future nominees should be examined for their own commitment to the Justice's balanced ideals regarding prosecutorial ethics.
Looking back, the Justice's Agurs opinion was a remarkable intellectual achievement. It examined prosecutorial decisions to not disclose evidence with a realistic and piercingly dispassionate eye. Today, scholars routinely point to this 1976 opinion as the best in the Brady bunch. The analytical approach employed in Agurs has been adopted by a number of States, even as a changing majority of the Court has weakened the Brady standard.
In Agurs, it appeared that a prostitute had stabbed a customer, but as the defendant in a murder trial, Ms. Agurs claimed self-defense against the john's knife attack. Although the deceased was found in possession of two knives and was on top of the defendant when motel employees intervened, the jury convicted Agurs of second-degree murder. However, undisclosed to the defense was the fact that the dead man had two prior convictions for carrying a deadly weapon (knives), arguably demonstrating his predisposition to violence. But the defense had never requested discovery of prior convictions. What to do, when potentially exculpatory evidence was in the prosecution's files, never disclosed, but also never specifically requested?
Agurs announced a vital constitutional rule: prosecutors have an unqualified due process duty to disclose exculpatory evidence to the defense; "elementary fairness requires it to be disclosed even without a specific request." Agurs also recited an analytical standard of "might have affected the outcome of the trial" for cases in which a specific request is made but not accurately answered by the government. And Agurs opined that "when the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable."
Justice Stevens' Agurs opinion quoted the now-famous passage from Berger v. United States, 295 U.S. 78, 88 (1935), regarding the federal prosecutor's duty to see "that justice shall be done" ("may strike hard blows" but "not foul ones"). Also likely influential, for Justice Stevens at least, were widely publicized remarks made a few years prior to Stevens' Supreme Court clerkship by Justice Jackson (when he was U.S. Attorney General) regarding federal prosecutorial ethics. Jackson told a group of U.S. Attorneys that "while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just"; "the citizen's safety," he continued, "lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, and who approaches his task with humility."
Professor Diane Amann's extensive biographical research reveals other events that likely predisposed John Stevens to enforce high standards of prosecutorial fairness once he became a Justice: the later-vacated criminal conviction of Justice Stevens' father in the 1930s; an important concurrence Stevens helped draft for Justice Rutledge regarding the "procedural morass" that impeded post-conviction relief in Illinois at the time (Marino v. Ragen (1947)); and a pro bono murder appeal involving police misconduct that Stevens successfully handled in the 1950s (People v. La Frana (Ill. 1954)). While never a practicing criminal lawyer, Justice Stevens did not come to the table empty-handed or naÃ¯ve about flaws in the criminal justice system. Neither did the moderate Republican politics of the time force him into a black-or-white defensive posture: fair criminal convictions should be upheld and even praised, but convictions should also be thoroughly examined and even reversed where fundamental fairness is violated.
Armchair psychoanalysis of the man, however, can distract from the doctrinal authority of Justice Stevens' contributions in this area. Nine years after Agurs, in United States v. Bagley, (1985), a majority of the Court refused to overturn a conviction, notwithstanding that the government's two witnesses had sworn they had been promised no rewards — but in fact the government had written agreements to pay them for their information which it failed to disclose to the defense. This amounted to not only a Brady violation, but indeed government-sponsored perjury. Yet the majority declined to reverse, finding the information not "material" because there was no "reasonable probability" that the outcome would have been different. As the author of Agurs, Justice Stevens vigorously dissented in Bagley. He noted that the defense had specifically requested discovery of any rewards or promises, and that any claim that the undisclosed reward agreements were not "material" was "egregiously erroneous" under any standard.
As others have noted, Bagley was an unfortunate cutback on Agurs in at least three ways. First it implicitly, but plainly, rejected the Agurs Court's statement that nondisclosure in the face of a specific request is "seldom, if ever, excusable." Second, Bagley rejected Agurs' forward-looking enquiry of whether the undisclosed evidence "might have affected' the outcome of the trial, in favor of a hindsight "reasonable probability' standard far more forgiving of prosecutorial misconduct. Third, Bagley rejected the idea, fundamental to Agurs, that there is a constitutionally significant difference between a prosecutor's failure to disclose exculpatory evidence that has been specifically requested, as opposed to a prosecutor who has no specific notice to be on the lookout for such evidence.
The restrictive nature of the "reasonable probability" standard was later showcased in Strickler v. Greene (1999), in which undisclosed police interview notes cast serious doubt on the eyewitness' testimony. The Court found that this serious non-disclosure created a reasonable "possibility," but not "probability," of a different outcome. Sadly, while noting "the special role played by the the American prosecutor in this search for truth in criminal trials," Justice Stevens writing for the Court found himself constrained to deny relief under the Bagley standard (as applied in the habeas context). Unlike some of his brethren, Justice Stevens has generally accepted precedents of the Court, once settled, and applied them faithfully even when he has initially disagreed with their establishment. This valuation of Court precedent and stability is a mark of Justice Stevens' rigorous judicial integrity.
Meanwhile, a number of State jurisdictions have rejected the Bagley standard, in favor of Justice Stevens' Agurs analysis. In People v. Vilardi (1990), for example, New York's highest court noted that the Agurs standard is a "clear rule that properly encourages compliance" with the prosecution’s constitutional obligations.
Moreover, in his sixteen years as the Senior Associate Justice (since Justice Blackmun's retirement in 1994), Justice Stevens has demonstrated the persuasive force of his analysis even under the Bagley standard he disputes. Thus just last year, coming full circle in the thirty-three years since Agurs, Justice Stevens again began an opinion for the Court citing the government's special obligation "to assure that justice shall be done" in criminal prosecutions, citing Agurs and Berger. (The five-four decision was too close, perhaps, to allow an elegant opening flourish like Agurs' first line.) In Cone v. Bell, Justice Stevens once again took the prosecution to task for actively suppressing evidence that might well have led to a different outcome for Cone's death penalty. Even Chief Justice Roberts said in concurrence that he had "no reason to quarrel" with Justice Stevens' typically thorough analysis of the record.
Thus it can fairly be said that Justice Stevens both began and ended his career on the Court as a strong enforcer of prosecutorial ethics. What are we to make of Justice Stevens' consistent attention to constitutional fairness standards for prosecutors in this vitally important area of constitutional criminal procedure? First, appointing a Justice with little significant lawyerly experience in criminal law did not deter the development of remarkably perceptive doctrine by that Justice. It seems plain that personal integrity, rather than any particular legal experience, is a vital characteristic for any Justice. I do not know how Justice Stevens came by the assignment (one of his first for the Court) in Agurs, but it augured well (smile) for constitutional criminal procedure.
Second, we can thank Justice Stevens for a consistent commitment over four decades to prosecutorial integrity — not just his own commitment, but the Court's. Justice Stevens not only vigorously applied the doctrine in cases like Cone v. Bell, but he made the assignments to newer Justices that committed them to the doctrine (for example, to Justice Souter in Kyles v. Whitley (1995)). Thanks to Justice Stevens and his leadership with younger Justices, the law in this area remains stronger than it might otherwise have been.
Finally, we can hope that this aspect of judicial character will not be ignored in future nominations and hearings. A commitment to "the justice of the finding of guilt" (Agurs), but tempered always by a commitment to prosecutorial fairness and a willingness to enforce it, seems to this writer to be an essential requirement for future appointments. It is an essential component of "awareness of the impact of Court decisions on average citizens" that the current Administration is stressing for nominees. The Court needs Justices like John Paul Stevens, with a commitment to the ideals of Berger and prosecutorial integrity.