SCOTUS Takes Up Cases Alleging Prosecutors Withheld Evidence

Bloomberg Law’s® extensive network of reporters and editors helps subscribers to stay ahead of legal

By Jessica DaSilva

The U.S. Supreme Court’s decision to review two cases involving violations under Brady v. Maryland Dec. 14 might be laying the groundwork for a future ruling to decide how appellate courts should treat evidence discovered after a verdict is issued, according to a criminal law and procedure professor ( Turner v. United States, U.S., No. 15-1503, review granted 12/14/16 and Overton v. United States, U.S., No. 15-1504, review granted 12/14/16 ).

Both cases involve allegedly undisclosed evidence from prosecutors and later-discovered evidence that prosecutors did not know about—all stemming from a high profile 1984 murder case in Washington, D.C., in which both petitioners were found guilty.

Witness testimony stated that one other individual—who had not been charged among the eight who were originally indicted—perpetrated the murder of Catherine Fuller, who was beaten, robbed, and sodomized with a pole.

Under Brady, prosecutors must disclose exculpatory evidence pertaining to defendants. If undisclosed evidence is found material under Brady, meaning it could have influenced the outcome of a trial, their convictions will be set aside.

Normally, evidence of another perpetrator is automatically treated as material evidence that must be disclosed, said Bennett Gershman, a professor who studies prosecutorial misconduct at the Elisabeth Haub School of Law at Pace University.

However, the nature of a gang murder means that the identification of additional perpetrators does not undermine the state’s case, as it might merely indicate that the one other person might have been part of the gang that committed the crime, Gershman said.

Weighing Materiality

Yet determining whether that identification is material evidence becomes more nuanced in a case such as this where petitioners revealed that after their verdicts, the identified person was charged in a murder almost identical to Fuller’s, Gershman said.

Because that information wasn’t available to the prosecutor, the question becomes whether the court should even consider that information in weighing whether the failure to disclose the identification of a third party was material.

That issue is making its way through the circuits, but Gershman said he doesn’t believe the court will decide it just yet.

“Obviously the prosecutor didn’t suppress this post-crime evidence because it came to light later on,” he said. “It’s an interesting new wave for analyzing materiality under Brady, but I don’t know if the court will go that far in this case.”

Although the questions presented requested the court to determine the role of post-verdict information in determining materiality of undisclosed evidence, the court limited review to an as-applied challenge not stated in either petition: whether their convictions should be set aside under Brady.

To contact the reporter on this story: Jessica DaSilva in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request White Collar & Criminal Law News