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An Appellate Court Just Said It’s Okay for Cops to Hide Video Evidence That Would Show Defendants’ Innocence


The Fifth Circuit just handed down a ruling under which “Texas Justice” will now be served with a side of withholding exculpatory evidence. The case is Alvarez v. City of Brownsville, and the underlying facts are sure to make you squirm a little. In 2005, George Alvarez was a seventeen year-old special-education high-school freshman. He was arrested on suspicion of public intoxication and burglary of a motor vehicle; when Alvarez tried to use the broken phone in the holding cell, he became frustrated and banged the handset against the wall. The Brownsville cops nearby respond by moving the teenager to a padded cell. Unsurprisingly, Alvarez resisted, and for his trouble, was put in a head-lock, a choke hold, handcuffs, and leg shackles. The whole incident, which resulted in new charges against Alvarez for felony assault on a public servant, was captured on video; the Brownsville Police Department, though, didn’t turn over any tapes, because doing so was “against policy.”

Obviously, a video-tape of an altercation between a defendant and the cops is about as important as evidence could get if that fight led to the criminal charges; however, no one told Alvarez or his attorneys about the existence of the tape until 2010. By that time, Alvarez had pleaded guilty to the felony assault charges, and had served four years in prison. When the Texas Court of Criminal Appeals caught wind of what had happened, it pronounced Alvarez “actually innocent” of the the assault, and dismissed all charges against him. So justice in Texas was moving along nicely at the state court level until the Fifth Circuit got involved.

After Alvarez filed a federal civil lawsuit against the Brownsville Police Department seeking compensation for having had the important evidence withheld, the federal circuit court weighed in on the issue of the exculpatory video-tape. That’s where things have now taken an insane turn. The en banc court decided that while the well-settled law of Brady v. Maryland requires that the prosecution turn over all exculpatory material before a trial, it’s perfectly fine if the same prosecutors withhold that same evidence prior to a plea agreement.

It’s the utter obtuseness of the Alvarez opinion that’s most infuriating. The justices discuss a criminal defendant’s choice to plead guilty as if it were a fantasy football pick. Nowhere in the decision does anyone in any concurrence acknowledge the obvious reality—that criminal defendants plead guilty only when they fear they will fare worse at trial. No criminal defendant chooses a plea deal out of some kind of independent longing. Rather, the relationship between discovery, negotiation, pleas, and trials is an intricate dance between prosecutors and defense counsel, carried on over time, and always with the implicit risk of the uncertainty of a jury’s reaction. What is never part of the calculus, however, is a gamble that at some unknown point in the proceedings, the prosecution will whip out a hidden video that will suddenly prove the defendant’s innocence. This isn’t a poker game. This is the criminal justice system, and when the prosecution has evidence that exonerates the defendant, it has to turn it over.

Apparently, as far as judges James Ho, E. Grady Jolly, Edith Jones, Jerry Smith, Edith Brown Clement, and Priscilla Owen are concerned, a defendant’s plea not only pronounces the defendant’s guilt, but it simultaneously exonerates the prosecution for any sneakiness it may have been perpetrating. When this court decided that Alvarez hadn’t been entitled to see the tape that would have exonerated him, it handed every police department in its jurisdiction a get-out-of-civil-rights-lawsuits-free card at the expense of basic tenets of good faith and fair dealing.

To make matters appallingly worse, the Fifth Circuit’s decision flat out ignores the finding of the District Court— this “180-degree turn” cited by Judge James Graves as an important ground for his dissent.

This is probably a good time to point out that the Fifth Circuit is an appellate court; its sole job is to rule on issues of law – but never to second-guess the factual findings of a trial court. In the Alvarez case, the trial court granted summary judgment in favor of Alvarez’ civil case against the city. That means, as far as the district court was concerned, it had been so obvious that Alvarez should win, that a trial hadn’t even been necessary.

Judge Jones’ take on the District Court’s rulings was merely: “I urge our colleagues at the district court level to be more attuned to non- frivolous complaints of potentially unethical behavior.” I see, so in her view, prosecutors who ignore due process rights may be breaking some rules, but no worries, because those rules are NBD. How enlightend.

The other dissenting judge, Judge Gregg Costa, offered the following take, deliciously correct in its simplicity:

“It is difficult to think of greater deprivations of that liberty than the government’s allowing someone to be held in prison without telling him that there is evidence that might exonerate him.”

Seemingly, the Fifth Circuit has drastically different views on due process rights depending on whose rights are at stake. When it ruled on the issue of fetal-tissue burial a few months ago, that court would not be deterred in its mission to uphold the, “original understanding of the Constitution.” But when the person being disadvantaged is nothing more than a criminal defendant, longstanding principles of fairness are easily dismissed as “frivolous.”



This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos