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www. NYLJ.com
Monday, May 13, 2013
Volume 249—NO. 91
Expert Analysis
Outside Counsel
How a Man Named Brady
Made History 50 Years Ago
T
oday is the 50th anniversary of
Brady v. Maryland.1 In the years
since May 13, 1963, “Brady material” has become a shorthand for
exculpatory evidence in the prosecution’s possession that must be produced
to the defense. What is long forgotten is that
the “holding” in Brady was actually dicta
and that John Brady lost his case in the
Supreme Court.
Brady and His Crime
John Leo Brady was born in Dunkirk,
Md., in 1932. As an infant, he developed a
malady that plagued him for some 20 years:
His ears oozed a thick pus, earning him the
nickname “old stinkears.”2 After dropping
out of high school and serving in the Air
Force, Brady returned to Maryland and fell
in love with Nancy Magowan, who soon
became pregnant. Unemployed but intent
on supporting their child, Brady gave Nancy
a $35,000 check and told her not to cash it
for two weeks. His idea was to rob a bank
in the interim.
In the next few days, Brady and Nancy’s
brother, Donald Boblit, planned the robbery
and looked for a getaway car to steal. Brady
fixated on a new Ford Fairlane owned by William Brooks, whom he had known since boyhood. On the night of June 28, 1958, Brady
and Boblit placed a log across the dirt road
leading up to Brooks’ home and waited for
him to return from work. Boblit was armed
with a shotgun and Brady with a pistol.
Paul Shechtman is a partner at Zuckerman Spaeder LLP
and an adjunct professor at Columbia Law School.
By
Paul
Shechtman
When Brooks stopped to move the log,
Boblit emerged from the dark and cracked
him over the head with the barrel of the
shotgun. Brady and Boblit then lifted Brooks
back into his car; stole his wallet, which
contained $250; and drove him to the edge
of a nearby field. There, Brooks was strangled to death. Who strangled him—Brady
or Boblit—became the central issue in the
Brady case.
The two men never carried out the bank
robbery, leaving Nancy Magowan with a
worthless check.
Confessions and Brady’s Trial
Brady and Boblit were soon identified
as suspects in Brooks’ murder. Both were
arrested and confessed. Brady admitted his
role in the events leading up to the murder
but not in the killing. “The only thing I can
tell you,” he said, “is that Donald [Boblit] put
his shirt around [Brooks’] neck, threw him
to the ground and choked him to death.”
Boblit confessed five times. The first four
times, he claimed that Brady had strangled
Brooks; the fifth time, he told a much different story. In the following exchange, he was
confronted with Brady’s account.
Q. What did occur at the scene of the
strangulation?
A. Well, [Brady] had the gun until then…
no I had the gun. I had the gun and the
shirt. Then he took the gun from me,
that was after I said I would have to
shoot him. Brady said no, let’s strangle
him. That’s when I took and twisted
my shirt sleeve and choked him. Then
we carried him back into the woods….
Q. Why didn’t you tell us these things
before?
A. I don’t know.
Q. Since you struck Mr. Brooks in the
head and also strangled him, could it
be possible that you planned to rob Mr.
Brooks and not Brady?
A. No, sir, I didn’t even know the man. It
was [Brady’s] idea to hold him up and
not mine and it was his idea to strangle
him. I wanted to shoot him.
Boblit, who had an IQ of 78, declined to sign
the confession after making it.3
Brady and Boblit were tried separately,
and Brady went first. (Brady opted for a
jury trial, and Boblit for a bench trial.)
Prior to trial, Brady’s counsel asked the
prosecutor for Boblit’s confessions, and
the prosecutor was four-fifths compliant: he turned over Boblit’s first four
confessions (the ones in which Boblit
said Brady strangled Brooks) but not the
fifth confession (the one in which Boblit
admitted strangling Brooks).
At trial, Brady’s strategy was to admit his
participation in the robbery of Brooks, and
therefore his guilt for felony murder, but
to seek leniency from the jury on punishment. His hope was for a jury verdict of
first-degree murder “without capital punishment.” The strategy was born of neces-
Monday, May 13, 2013
sity. As his trial counsel later put it, “there
was absolutely no justification or reason or
rhythm or rhyme for killing a man and both
of them were engaged in robbery or larceny,
which is a felony.” Brady took the stand and
testified that Boblit had strangled Brooks.
Unimpressed, the jury convicted Brady and
sentenced him to death.
Boblit was also convicted and sentenced
to death. At his trial, the prosecutor offered
Boblit’s fifth confession against him; it was
not admitted, however, because of a Maryland rule that made an unsigned confession
inadmissible.
Both Brady’s and Boblit’s convictions
were affirmed on appeal.4
Post-Conviction Proceedings
While he awaited execution, Brady
was befriended by Father Myer Jobey, a
Jesuit priest who was then the chaplain
in the Maryland Penitentiary.5 Jobey came
to believe that Brady had not strangled
Brooks and set out to find Brady a new
lawyer. He contacted Clinton Bamberger,
a partner in the Piper and Marbury firm in
Baltimore, who had been Jobey’s student
at Loyola College. (Bamberger went on to
be the dean of Catholic University Law
School and executive vice president of the
Legal Services Corporation.) Bamberger
agreed to review the record, but, in his
words, as stated in a 2002 interview, he
“couldn’t find anything.”6 His genius was
to review the transcript of Boblit’s trial,
and it was there that he made his discovery: a reference to the fifth confession.
As Bamberger said in the 2002 interview:
I got ahold of the fifth statement and
in [it] the other man admitted that he
was…the one who actually garroted Mr.
Brooks…. It was shortly after Maryland
enacted the Post-Conviction Procedure
Act and I proceeded under that act and
we got a hearing.
Brady got a hearing and a favorable finding—that the fifth statement had not, in fact,
been disclosed to him—but the hearing court
denied him relief. The jury’s verdict, the court
wrote, was “the only reasonable or responsible [one] under the circumstances.”7
Bamberger then appealed to the Maryland Court of Appeals, which ruled that
the failure to produce the fifth statement
violated due process, even if “the withholding [was] without guile.”8 Finding that
Boblit’s “undisclosed confession might
have been usable at Brady’s trial,” the
court concluded that Brady was entitled
to relief. But what relief? As Bamberger
tells it, at the end of his oral argument,
the chief judge asked him, “if we agree
with you, do we have to reverse the
entire trial or just reverse on punishment
because you don’t dispute your client
was involved in a felony murder, whether
he killed the man or not?” Trained not to
“give up anything,” Bamberger answered
that a new trial was warranted.9
What is long forgotten is that
the “holding” in 'Brady' was
actually dicta and that John
Brady lost his case in the
Supreme Court.
The chief judge’s final question presaged
the Maryland court’s decision. The court
held that Brady’s sole claim of prejudice
went to punishment—that “nothing in [the
withheld confession] could have reduced…
Brady’s offense below murder in the first
degree [and so there was] no occasion to
retry that issue.” On that basis, it remanded
the case “for a trial on the question of punishment only.”
Brady in the Supreme Court
Undeterred, Bamberger sought and
obtained a writ of certiorari from his
partial defeat (and partial victory) in the
Maryland court. The question presented to
the Supreme Court went only to remedy:
“whether the restriction of the petitioner’s
new trial to the question of punishment and
the denial of a retrial of guilt denies the petitioner’s constitutional rights.”10 In his brief
and at oral argument, Bamberger pressed
the theme that a denial of due process “vitiated the entire proceeding” and therefore
required a new trial. “A trial with the suppressed evidence before a jury,” Bamberger
wrote, “is the trial to which due process of
law entitles [Brady], is the trial the Court
of Appeals found he did not have, and is
the trial the Court of Appeals…says he may
not have.”
What we would now call the “Brady issue”
received scant attention at oral argument.
There was only this:
Justice Hugo Black: What do you point
to as a denial of constitutional rights?
Bamberger: The failure of the state to
give to Brady’s counsel the statement
made by his companion prior to the
trial…not giv[ing] him the one that was
important.
Justice Black: Are you relying on any of
our prior cases to say that that’s unconstitutional?
Bamberger: …I can’t point to a decision
of this Court.
Most of the argument went to the niceties of Maryland’s rules of evidence and
procedure.11
The majority opinion in Brady was
authored by Justice William Douglas. Near
the outset of the opinion, the majority set
forth what purported to be its holding:
“[w]e now hold that the 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.” That principle, the majority observed, was but “an extension of
Mooney v. Holohan.” 12 It was quite an
extension: Mooney involved the presentation of testimony known to be perjurious,
and Mooney’s progeny—cases like Pyle
v. Kansas and Alcorta v. Texas—involved
the “deliberate suppression…of evidence
favorable to [the accused.]”13 Brady was a
leap forward for defendants’ rights.
After agreeing with the Maryland court
that Brady was entitled to receive Boblit’s
fifth statement, the majority turned to the
question actually presented: What was the
appropriate remedy? That proved a surprisingly difficult question, largely because in
1963 the court had not yet held that constitutional errors could be harmless. (That ruling
would come four years later in Chapman v.
California.14) Unwilling to decide the case on
harmless error grounds, the court resorted
to a subterfuge. It read the Maryland court
decision as a ruling that the withheld confession was inadmissible under state law on the
Monday, May 13, 2013
issue of guilt or innocence. If that was true,
then there was no purpose in having a new
trial on Brady’s guilt; the jury would hear
nothing new. Only a trial on punishment (at
which the fifth confession would be admissible) was required. And so, the decision of
the Maryland court was affirmed.
The majority, however, almost certainly
misread Maryland law. As Justices John Harlan and Black noted in dissent, “at the oral
argument here [the state acknowledged]
that the withheld Boblit statement would
have been admissible at the trial on the
issue of guilt.” In short, the majority opinion, which proclaimed that “our system of…
justice suffers when any accused is treated
unfairly,” was less than fair to Brady in its
reading of Maryland law.
In 1973, believing that time
had crippled the state’s ability
to represent its case, Brady’s
lawyers moved for a speedy
punishment proceeding. In
response, the governor granted
Brady clemency, and he was
eventually released from prison
after serving 18 years.
Justice Byron White’s separate opinion
raised a different objection. He wrote this:
Before dealing with the due process
issue [the majority] says, “The question presented is whether petitioner was
denied a federal right when the Court
of Appeals restricted the new trial to
the question of punishment.” After…
disposing of the suppression matter in
federal constitutional terms it says the
question still to be decided is the same
as it was before: “The question remains
whether petitioner was denied a constitutional right when the Court of Appeals
restricted his new trial to the question
of punishment.” The result, of course,
is that the due process discussion by
the Court is wholly advisory.
Put differently, the majority could simply
have assumed that the Maryland court got
the “Brady issue” right (the state, after all,
had not cross-appealed). If the majority was
committed to the principle of not deciding
constitutional questions unnecessarily, there
was no need to decide the Brady issue in
Brady’s case.15
In 1963, however, a majority of the justices
were committed to expanding defendants’
rights. And so, dicta became holding, and
Brady’s loss became a landmark due process decision.
Aftermath
After the Supreme Court’s decision, Maryland prosecutors were uncertain as to how
to proceed. There were no established procedures for a punishment-phase-only trial.
(Bifurcated death penalty cases did not
become commonplace in America until after
Furman was decided in 1972.16) For their
part, Brady’s lawyers encouraged him to
stay put. A new trial on punishment could
result in the death penalty, so Brady was
better off not asking for what he had won.
Brady was transferred from death row to
general population, where he remained, an
unsentenced prisoner. In 1973, believing that
time had crippled the state’s ability to represent its case, Brady’s lawyers moved for a
speedy punishment proceeding. In response,
the governor granted Brady clemency, and
he was eventually released from prison after
serving 18 years.17
Brady’s case became the subject of a book
felicitously titled Between Life and Death,
which is where Brady was after the 1963
decision. As told in the book, Brady himself
wrote regularly to an American Civil Liberties Union lawyer whom he hoped could
assist him. Included among his writings is
this letter:
www.zuckerman.com
For [many] years I have watched the
great stars march and wondered if I would
be alive to watch them another day. I
have died a thousand deaths during the
past years. Each day I die a little more.
I am no longer Captain of my Fate. My
fate now rests with lawyers and judges
and…should all else fail, with governors.
And, if I have faith, with God. But it is hard
for me to have faith, as it has no mass….
I need something tangible, something I
can reach out to and feel its solidness.
Continual monotony and regimentation
destroys faith. It will in time destroy the
mind…. I am alone, without love, without
friends, without hope. My only companion is fear, and fear is deaf and dumb. It
walks into the cell, unbidden, and it sits
watching. Sometimes…I hear footsteps
and I wonder if someone is coming with
good news. They have me caged, I wait
their pleasure.18
Following his release from prison, Brady
married and moved south, where he found
steady employment as a truck driver.19
•••••••••••••
••••••••••••••••
1. Brady v. Maryland, 373 U.S. 83 (1963).
2. R. Hammer, Between Life and Death 145-49 (1969).
3. Id. at 115; see also Boblit v. Warden, 350 F.Supp. 768 (D. Md. 1972).
4. Brady v. State, 220 Md. 454 (1959).
5. Lippman, “Father Jobey, Staunch Friend of Prisoners,” Baltimore
Sun, Dec. 26, 1990.
6. Georgetown Law Library, Interview with Clinton Bamberger, June
4, 2002.
7. Appellant’s Appendix in Brady v. Maryland at 14. The prosecutor testified at the post-trial hearing that he had turned over none of
Boblit’s statements; the judge declined to credit that testimony.
8. Brady v. State, 226 Md. 422 (1961). The Maryland court relied principally on two Third Circuit cases: Almeda v. Baldi, 195 F.2d 815 (3d Cir.
1952), and Thompson v. Dye, 221 F.2d 763 (3d Cir. 1955).
9. See n.6 supra.
10. Brief for Petitioner 1962 WL 115267 (1962) at 2.
11. Brady v. Maryland, Oral Argument, March 18-19, 1963.
12. Mooney v. Holohan, 294 U.S. 103 (1935).
13. Pyle v. Kansas, 317 U.S. 213 (1942); Alcorta v. Texas, 355 U.S.
28 (1957).
14. Chapman v. California, 386 U.S. 16 (1967).
15 . C. Sunstein, Judicial Minimalism on the Supreme Court 4 (1999)
(it is a “time-honored idea[] in constitutional law” that a court “should
not decide issues unnecessary to the resolution of a case”).
16. Furman v. Georgia, 408 U.S. 238 (1972) (striking down Georgia’s
death penalty statute as unconstitutional).
17. S. Bibas, Brady v. Maryland, Chapter 4 in Criminal Procedure
Stories (2006) 137.
18. Between Life and Death, 295-96.
19. S. Bibas, Brady v. Maryland, Chapter 4 in Criminal Procedure
Stories (2006) 137.
Reprinted with permission from the May 13, 2013 edition of the NEW YORK LAW
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