The Supreme Court’s denial of certiorari in a death penalty case, Brown v. Louisiana, that turned on what exculpatory evidence government prosecutors are required to make available, brings into focus the Constitution’s demands in the crucible of the state’s ultimate punishment, and in the face of the January 6 riot. 

The justices’ decision to pass on the case — four must express interest for it to be taken up — also served as an opportunity for the court’s liberal wing to pen a dissent. Authored by Justice Ketanji Brown Jackson and joined by Justices Sonia Sotomayor and Elena Kagan, it spotlights a left flank wandering in the wilderness. 

David Brown and four co-conspirators — they became known as the  “Angola 5,” after the prison they sought to escape, the largest maximum-security facility in America — were found guilty of first-degree murder after a prison guard was bludgeoned to death with a hammer during the failed breakout.

Brown was convicted, despite maintaining that he had nothing to do with the death except being part of the camarillo that attempted the jail break. Months after the verdict, the prosecution allowed that it had failed to turn over the confession of another member of the Angola 5, who in a parley with a fellow inmate copped to the killing and did not implicate Brown. 

The presiding state court judge, Jerome Winsberg, ruled that the government violated Brady v. Maryland, the Supreme Court case that holds that the prosecution must turn over all evidence that might exonerate a defendant. In a subsequent case, Justice Harry Blackmun explained that disclosure is necessary “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”

Brady’s holding is rooted in the 14th Amendment. The opinion by Justice William Douglas ordains 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.” 

Judge Wiseberg ordered a new sentencing hearing, but was overruled by the Louisiana supreme court, which held that the confession would not have made a difference in the determination of Brown’s guilt because it was “actually silent as to which individuals participated in the physical attack.” Brown then turned to the Supreme Court. 

His appeal persuaded Justices Jackson, Sotomayor, and Kagan, who argued  that the “central question before this Court is whether the prosecution violated Brown’s due process rights by failing to disclose this confession.” Justice Jackson wrote that not only would she have granted cert; she would have “summarily reversed.”

The justice swats back at the Pelican State jurists, who held that because the second confession did not explicitly exonerate Brown, it does not come under Brady’s purview. She notes that the “requirement that the withheld evidence must speak to or rule out the defendant’s participation in order for it to be favorable is wholly foreign to our case law.”  

Justice Jackson shows off her acumen at interpretation, noting that by omitting Brown’s name, the “confession supports an inference that Brown was not one of the individuals who killed or decided to kill the victim.” This inference by omission, she postulates, goes to both Brown’s guilt and the nature of his sentence.  

Looking beyond Brown’s fate, Justice Jackson suggests that in the lower courts Brady is more honored in the breach than in the observance. She notes that “we have repeatedly reversed lower courts — and Louisiana courts, in particular — for similar refusals to enforce the Fourteenth Amendment’s mandate that favorable and material evidence in the government’s possession be disclosed to the defense before trial.”

In a strange twist, Brady’s mantle is being taken up by not only a liberal lion like Justice Jackson, but also by those arguing for defendants of markedly different political orientations. The release of previously unseen January 6 footage to the television host Tucker Carlson by Speaker McCarthy has prompted claims that the government defaulted on its Brady duties in prosecuting defendants from that day.   

Jacob Chansley, the so-called QAnon Shaman, is one such defendant. He was released from prison 14 months early after footage emerged that appeared to show him cooperating with police. The Department of Justice has not admitted that Brady violations played a role. The Bureau of Prisons is mum on the reason for his curtailed confinement. 

One of Chansley’s attorneys, Albert Watkins, opined in a statement that the “government failed to discharge” its Brady obligations — he called those an “absolute duty” — and insisted that “significant sanctions are appropriate and necessary to send a strong message that courts have zero tolerance for this egregious injustice.”