Withholding Favorable Evidence Violates Due Process

failure to disclose brady

The Supreme Court handed down its decision in Wearry v. Cain yesterday. In doing so, the Court ruled that prosecutors violated Wearry’s due process rights by withholding evidence during the trial.

Michael Wearry was on death row in Louisiana after being convicted of capital murder and being sentenced to death. His conviction was based primarily on the testimony of two jailhouse snitches.

The Undisclosed Evidence

The Court noted that after the trial, and contrary to the prosecution’s assertions at trial, one of the jailhouse snitches had twice sought to reduce his sentence in exchange for testifying against Wearry. In fact the police had told this witness that they would “talk to the D.A. if he told the truth.” The defense was not informed of this implied benefit to the jailhouse snitch for his truthful testimony. Additionally, the State failed to turn over medical records of one of the co-defendants who was recovering from a surgery and whose medicals records would have raised questions his credibility. Finally, the prosecutors failed to disclose police records that cast doubt on one of the jailhouse witnesses, and which contained references to the snitch being overheard saying, “make sure [Wearry] gets the needle cause he jacked me over.”

The Supreme Court’s Reasoning

The Court noted that “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Evidence qualifies as material when there is “ ‘any reasonable likelihood’ ” it could have “affected the judgment of the jury.”

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Failure to Disclose Favorable Evidence in Texas

As an aside, in Texas materiality is irrelevant for prosecutors who want to keep their bar cards, as discussed in recent Board of Disciplinary Appeals opinion which upheld the suspension of the prosecutor’s license to practice law stating, “the materiality standard under Brady does not apply to Rule 3.09(d). We further hold that failure to disclose information otherwise required by law to be disclosed, regardless of intent, constitutes unlawfully obstructing another party’s access to evidence in violation of Rule 3.04(a).”

The Court noted the “newly revealed evidence suffices to undermine the confidence in Wearry’s conviction,” and continued,  “the State’s trial evidence resembles a house of cards.” The Court also discussed the standard to prevail on a Brady claim in these circumstances: the petitioner does not have to show he would be been acquitted had the evidence been admitted, he only needs to show that the new evidence would be sufficient to undermine the confidence in the verdict. Under this standard, the petitioner can prevail even if the undisclosed information may not have affected the jury’s verdict.

Wearry v. Cain: The Opinion


Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese