George Alvarez v. City of Brownsville , 904 F.3d 382 ( 2018 )


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  •      Case: 16-40772       Document: 00514646077         Page: 1     Date Filed: 09/18/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 16-40772
    Fifth Circuit
    FILED
    September 18, 2018
    GEORGE ALVAREZ,                                                      Lyle W. Cayce
    Clerk
    Plaintiff-Appellee,
    v.
    THE CITY OF BROWNSVILLE,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    Before STEWART, Chief Judge, and JOLLY, JONES, SMITH, WIENER,
    DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,
    HIGGINSON, COSTA, WILLETT, and HO, Circuit Judges. *
    CARL E. STEWART, Chief Judge, joined by JOLLY, JONES, SMITH,
    WIENER, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES,
    HIGGINSON, WILLETT, and HO, Circuit Judges: ∗∗
    * Judge Prado was on the court at the time that this en banc case was submitted and
    argued but did not participate in the consideration of the decision. Judge Duncan, Judge
    Engelhardt and Judge Oldham joined the court after this case was submitted and did not
    participate in the decision.
    ∗∗
    Judge Haynes and Judge Willett concur in Sections I, II.A., and III., and they would
    not reach the issue in Section II.B.
    Case: 16-40772     Document: 00514646077      Page: 2   Date Filed: 09/18/2018
    No. 16-40772
    This case was reheard en banc after the Appellee, George Alvarez, had
    his $2.3 million judgment reversed and his claims against the City of
    Brownsville dismissed by a panel of this court. The en banc court has carefully
    considered two important questions as to the merits of this case: (1) whether
    the City of Brownsville should have been subjected to municipal liability for
    Alvarez’s claim under Brady v. Maryland, 
    373 U.S. 83
    (1963); and (2) whether
    Alvarez was precluded from asserting his constitutional Brady claim for his 42
    U.S.C. § 1983 action against the City of Brownsville because he pled guilty.
    For the reasons set forth below, we REVERSE the district court’s judgment,
    and RENDER judgment in favor of the City of Brownsville. Alvarez’s action
    against the City of Brownsville is DISMISSED with prejudice.
    I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY
    A. Factual Background
    1.   The Incident Between Alvarez and Officer Arias at the Jail
    On November 27, 2005, Alvarez, a then-seventeen year old ninth grade
    special education student, was arrested by the Brownsville Police Department
    and taken to a detention center in Brownsville, Texas on suspicion of public
    intoxication and burglary of a motor vehicle. After being placed in one of the
    holding cells, Alvarez attempted to use a telephone located in the cell. Initially,
    Alvarez was able to place a call but the phone eventually stopped working.
    Alvarez then banged the phone’s handset against the phone’s switch hook
    mounted on the wall, and made an obscene gesture towards a camera. Because
    Alvarez became somewhat disruptive, officers removed Alvarez from his cell
    and attempted to transfer him to a padded cell to calm down. To move Alvarez
    to the padded cell, the officers had to walk him across the jail’s central lobby
    booking area.
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    After reaching the booking area, Alvarez engaged in a conversation with
    a group of officers. Alvarez primarily spoke to Officer Jesus Arias who took the
    lead in trying to direct Alvarez to the padded cell. As the conversation
    continued, Alvarez was reluctant to move towards the padded cell and obey
    Officer Arias’s instructions to walk towards the cell. When recalling the
    conversation with Officer Arias, Alvarez indicated, “I understand I wasn’t
    compliant.”
    A scuffle between Alvarez and Officer Arias soon ensued. The altercation
    began when Officer Arias grabbed Alvarez’s left arm and maneuvered Alvarez
    to the ground. Officer Arias then placed Alvarez in a choke hold and eventually
    a head lock. Officers assisting Officer Arias subdued Alvarez by shackling
    Alvarez’s legs and handcuffing him. Throughout the struggle, Alvarez
    squirmed and flailed his arms. Alvarez, handcuffed and legs shackled, was
    then carried and placed in the padded holding cell. All of the events that took
    place at the jail before, during, and after Alvarez’s incident with Officer Arias
    were captured on video.
    2.  Investigations Conducted by the Brownsville Police Department
    The Brownsville Police Department utilizes separate investigative
    tracks for internal disciplinary investigations of its officers and alleged crimes
    committed by detainees at the jail. An internal administrative investigation
    was conducted to determine if Officer Arias violated the Brownsville Police
    Department’s use of force policy during the altercation with Alvarez.
    Additionally, a criminal investigation was conducted by the Brownsville Police
    Department to determine if there was probable cause for recommending that
    the district attorney’s office criminally charge Alvarez for assaulting Officer
    Arias.
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    Generally, the Brownsville Police Department’s internal administrative
    affairs division does not share information with the criminal investigation
    division. If information is to be shared between the internal administrative
    affairs division and the criminal investigation division, Police Chief Carlos
    Garcia is usually the individual who authorizes the exchange. However,
    Sergeant David Infante, the jail supervisor who downloaded the videos of the
    incident for the internal administrative investigation of Officer Arias, stated
    that “if something would have been asked of me by the criminal investigation,
    I would have submitted it.” Police Chief Garcia further added that Sergeant
    Infante should have provided the videos of the incident to the criminal
    investigation division if he knew criminal charges were being brought against
    Alvarez. Commander Roberto Avitia, also a supervisor of Sergeant Infante,
    similarly stated that Sergeant Infante should have disclosed the videos to the
    criminal investigation division.
    For the internal investigation, Sergeant Infante evaluated the videos
    and Officer Arias’s report of the incident. Four different videos were reviewed:
    (1) a video of Alvarez in the initial holding cell that he was placed in; (2) a video
    of the officers at the central command post in the detention center before,
    during, and after the incident; (3) a video of the altercation between Alvarez
    and Officer Arias that occurred in the lobby booking area; and (4) a video of
    Alvarez in the padded cell after he was transported. After conducting the
    investigation, Sergeant Infante came to the conclusion that Officer Arias used
    proper force and that no further action should be taken.
    Two days after the incident between Alvarez and Officer Arias, on
    November 29, 2005, Sergeant Infante sent a memorandum to Police Chief
    Garcia reiterating his recommendation that proper force was used. On
    December 8, 2005, another supervisor of Sergeant Infante, Commander
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    Ramiro Rodriguez, reviewed Sergeant Infante’s report and the video
    recordings, and submitted a report to Police Chief Garcia recommending
    closure of the internal administrative investigation since Officer Arias’s
    actions were in compliance with Brownsville Police Department regulations.
    Even though the reports and recommendations were stamped as
    received on December 8, 2005 by Police Chief Garcia’s office, Police Chief
    Garcia did not review the reports. The materials for the internal investigation,
    including the videos, were never passed on to an internal affairs unit for a
    formal disciplinary investigation of Officer Arias or to the criminal
    investigation division of the Brownsville Police Department.
    The criminal investigation division reviewed the incident after the
    internal administrative review was conducted. The criminal investigation
    began on November 27, 2005, with Sergeant Jim Brown preparing and filing
    an offense report of the incident that occurred between Alvarez and Officer
    Arias. Sergeant Brown was the patrol supervisor responsible for addressing
    issues that arose at the jail when the incident occurred. 1 Sergeant Brown’s
    report stated Alvarez allegedly assaulted Officer Arias but did not mention
    that there were any video recordings of the incident. Criminal investigator
    Officer Rene Carrejo was subsequently assigned to review Officer Arias’s
    complaint that Alvarez assaulted him by grabbing his throat and his right
    inner thigh. Officer Carrejo never requested or inquired about the possible
    existence of a video recording of the incident. Lieutenant Henry Etheridge, the
    head of the internal affairs division of the Brownsville Police Department at
    1  Although Sergeant Infante was officially the jail supervisor, the supervision
    responsibilities of the jail passed to Sergeant Brown as one of the patrol supervisors after
    5:00 p.m. Because the incident between Alvarez and Officer Arias occurred around 9:00 p.m.,
    when Sergeant Infante was off duty, Sergeant Brown was responsible for supervising the jail
    at this time.
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    the time of the administrative review, opined that the criminal investigation
    division did not conduct a proper investigation because it failed to collect all
    evidence. Lieutenant Etheridge further noted that, “[i]f I knew that [the
    criminal investigation division] wasn’t conducting proper investigations in
    regards to collecting that video, by all means, I would have taken corrective
    action to . . . get that video in their hands.”
    3.   Alvarez’s Guilty Plea and Imprisonment
    The criminal investigation division subsequently alerted the district
    attorney’s office of the incident and Alvarez was charged with assault on a
    public servant, a felony offense in Texas. In January 2006, a grand jury
    returned an indictment charging Alvarez with the assault. During discovery,
    Alvarez’s attorney reviewed the prosecution’s case file that did not contain the
    videos of the incident. In March 2006, Alvarez pled guilty to assault on a public
    servant. In May 2006, Alvarez was given a suspended sentence of eight years
    of imprisonment and ten years of community supervision. As a condition of the
    community supervision, the court imposed “a term of confinement and
    treatment in a substance abuse felony punishment facility . . . for not less than
    90 days or more than 12 months as a condition of probation.” In November
    2006, after Alvarez failed to complete the treatment program, the state
    revoked the suspension of Alvarez’s sentence and remanded Alvarez to prison
    for the remainder of his eight-year sentence.
    4.   The Uncovering of the Video Recordings of the Incident
    Approximately four years after Alvarez began to serve his prison
    sentence, the videos of Alvarez’s incident with Officer Arias surfaced during
    discovery for an unrelated § 1983 case. After the discovery of the videos,
    Alvarez filed an application for a writ of habeas corpus in Texas state court,
    claiming that the Brownsville Police Department had withheld the videos in
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    violation of Brady. In October 2010, after the state district court recommended
    that the writ of habeas corpus be granted and that Alvarez be given a new trial,
    the Texas Court of Criminal Appeals concluded that Alvarez was “actually
    innocent” of committing the assault. Alvarez’s assault conviction was then set
    aside and all charges against Alvarez were later dismissed.
    B. Procedural History
    Several months after being declared “actually innocent,” in April 2011,
    Alvarez sued the City of Brownsville, Officer Arias, and other individuals from
    the Brownsville Police Department, asserting various claims under § 1983,
    which included nondisclosure of exculpatory evidence in violation of Brady. In
    August 2012, the City of Brownsville, Officer Arias, and the other defendants
    filed a motion for summary judgment arguing that Alvarez’s claims should be
    dismissed. Adopting the magistrate judge’s report and recommendation, the
    district court denied the defendants’ motion for summary judgment as to: (1)
    the Brady claim against the City of Brownsville for nondisclosure of
    exculpatory evidence; and (2) a fabrication of evidence claim brought against
    Officer Arias in his individual capacity. The district court granted the
    defendants’ motion for summary judgment as to all other claims. The
    fabrication claim against Officer Arias was later dismissed after Alvarez and
    Officer Arias filed a voluntary stipulation of dismissal.
    In January 2014, Alvarez and the City of Brownsville, as the only
    remaining parties, filed cross motions for summary judgment addressing
    whether: (1) a Brownsville Police Department policy of nondisclosure existed;
    (2) the Brownsville Police Department’s failure to disclose the videos
    constituted a Brady violation; and (3) a Brownsville Police Department policy
    caused the Brady violation. The district court subsequently granted Alvarez’s
    motion for summary judgment concluding that there was a Brady violation as
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    a matter of law, and Alvarez established “all substantive elements of a § 1983
    municipal liability claim against the City of Brownsville.”
    The district court held a jury trial to determine whether Alvarez was
    entitled to monetary damages for the Brady violation. Following a two-day jury
    trial, the jury awarded Alvarez $2,000,000 in compensatory damages. The
    parties agreed to attorneys’ fees of $300,000 and the court entered final
    judgment in favor of Alvarez for $2,300,000. The City of Brownsville filed post-
    trial motions, which were denied by the district court. The City of Brownsville
    timely appealed.
    A panel of this court reversed the $2,300,000 judgment awarded to
    Alvarez and dismissed Alvarez’s action against the City of Brownsville. Alvarez
    v. City of Brownsville, 
    860 F.3d 799
    , 803 (5th Cir. 2017), reh’g en banc granted,
    
    874 F.3d 898
    (5th Cir. 2017). The panel opinion held that by entering a guilty
    plea Alvarez waived the right to assert the Brady claim foundational to his §
    1983 action. The panel opinion was withdrawn in light of en banc rehearing of
    this case. After supplemental briefing and oral argument to the en banc court,
    we reverse the district court and render judgment of dismissal in favor of the
    City of Brownsville.
    II.   DISCUSSION
    Alvarez’s Brady claim should have been dismissed as a matter of law on
    summary judgment because the City of Brownsville should not have been
    subjected to municipal liability for Alvarez’s § 1983 claim. This court also
    declines the invitation to disturb its precedent concerning a defendant’s
    constitutional right to Brady material prior to entering a guilty plea.
    A. Municipal Liability
    Alvarez argues that the City of Brownsville, through its police
    department, had an unwritten, customary policy of not disclosing exculpatory
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    evidence obtained in the course of internal administrative investigations—a
    policy that caused Alvarez’s constitutional violation. Alternatively, Alvarez
    asserts that making Police Chief Garcia the sole decision-maker related to the
    sharing of information from internal administrative matters created the high
    possibility of a constitutional violation. Because of Police Chief Garcia’s
    oversight, Alvarez asserts that the City of Brownsville should be held liable as
    a municipality. This court is not persuaded by Alvarez’s arguments.
    Summary judgment rulings are subject to de novo review. Aldous v.
    Darwin Nat’l Assurance Co., 
    851 F.3d 473
    , 477 (5th Cir. 2017), vacated in part
    by 
    889 F.3d 798
    (5th Cir. 2018). Summary judgment is appropriate “if the
    movant shows that there is no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “‘A
    complete failure of proof concerning an essential element of the nonmoving
    party’s case necessarily renders all other facts immaterial’ and ‘mandates the
    entry of summary judgment’ for the moving party.” United States ex rel.
    Farmer v. City of Houston, 
    523 F.3d 333
    , 337 (5th Cir. 2008) (quoting Celotex
    Corp. v. Catrett, 
    477 U.S. 317
    , 322–23 (1986)). “We resolve factual
    controversies in favor of the nonmoving party, but only when there is an actual
    controversy, that is, when both parties have submitted evidence of
    contradictory facts.” State Farm Fire & Casualty Co. v. Flowers, 
    854 F.3d 842
    ,
    844 (5th Cir. 2017) (quoting Little v. Liquid Air Corp., 
    37 F.3d 1068
    , 1075 (5th
    Cir. 1994)).
    Three essential elements must be established for a municipality to face
    § 1983 liability. There must be: (1) a policymaker; (2) an official policy; and (3)
    a violation of a constitutional right whose “moving force” is the policy or
    custom. Piotrowski v. City of Houston, 
    237 F.3d 567
    , 578 (5th Cir. 2001) (citing
    Monell v. Dep’t of Soc. Servs., 
    436 U.S. 658
    , 694 (1978)). An official policy
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    “usually exists in the form of written policy statements, ordinances, or
    regulations, but may also arise in the form of a widespread practice that is so
    common and well-settled as to constitute a custom that fairly represents
    municipal policy.” James v. Harris County, 
    577 F.3d 612
    , 617 (5th Cir. 2009)
    (quoting 
    Piotrowski, 237 F.3d at 579
    ) (quotation marks omitted).
    To establish that the City of Brownsville is liable as a municipality, a
    policy must have been the “moving force” behind Alvarez’s constitutional
    violation. See 
    Piotrowski, 237 F.3d at 580
    (quoting 
    Monell, 436 U.S. at 694
    ).
    Stated differently, Alvarez “must show direct causation, i.e., that there was ‘a
    direct causal link’ between the policy and the violation.” See 
    James, 577 F.3d at 617
    (quoting 
    Piotrowski, 237 F.3d at 580
    ). Additionally, Alvarez must
    demonstrate that the policy was implemented with “deliberate indifference” to
    the “known or obvious consequences” that constitutional violations would
    result. See Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 
    520 U.S. 397
    , 407
    (1997). To base deliberate indifference on a single incident, “it should have
    been apparent to the policymaker that a constitutional violation was the highly
    predictable consequence of a particular policy.” Burge v. St. Tammany Par.,
    
    336 F.3d 363
    , 373 (5th Cir. 2003). The causal link “moving force” requirement
    and the degree of culpability “deliberate indifference” requirement must not be
    diluted, for “where a court fails to adhere to rigorous requirements of
    culpability and causation, municipal liability collapses into respondeat
    superior liability.” Snyder v. Trepagnier, 
    142 F.3d 791
    , 796 (5th Cir. 1998)
    (quoting 
    Brown, 520 U.S. at 415
    ).
    Assuming that Police Chief Garcia is a policymaker and that the practice
    of not freely sharing information from the internal administrative
    investigations with the criminal investigation division constitutes a policy,
    Alvarez’s theory of liability falls short in two respects: (1) there is not a “direct
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    causal link between the policy and the violation,” and (2) there was no
    “deliberate indifference” shown. See Valle v. City of Hous., 
    613 F.3d 536
    , 542
    (5th Cir. 2010); 
    James, 577 F.3d at 617
    (quoting 
    Piotrowski, 237 F.3d at 580
    ).
    First, there is not “a direct causal link between the policy and the
    violation.” See 
    James, 577 F.3d at 617
    (quoting 
    Piotrowski, 237 F.3d at 580
    ).
    When questioned about whether he could turn materials over to the criminal
    investigation division, Sergeant Infante stated that “if something would have
    been asked of me by the criminal investigation, I would have submitted it.”
    Moreover, Police Chief Garcia and Commander Avitia both stated that
    Sergeant Infante should have disclosed the videos of the incident if he was
    aware of the criminal investigation against Alvarez. Commander Avitia
    further stated that “[v]ideos are videos. They should be able to be available to
    either one of the investigations. . . . They’re available for both investigations.”
    The criminal investigator, Officer Carrejo, also neglected to request or inquire
    about any video recordings of the incident despite knowing about the presence
    of cameras in the jail. Lieutenant Etheridge stated that the criminal
    investigation division did not conduct a proper investigation because of its
    failure to collect all of the evidence. Lieutenant Etheridge further noted that,
    “[i]f I knew that [the criminal investigation division] wasn’t conducting proper
    investigations in regards to collecting that video, by all means, I would have
    taken corrective action to . . . get that video in their hands.”
    This series of interconnected errors within the Brownsville Police
    Department that involved individual officers was separate from the general
    policy of non-disclosure of information from the internal administrative
    investigations. The general policy of non-disclosure was not a direct cause of
    Alvarez’s injury. See Fraire v. City of Arlington, 
    957 F.2d 1268
    , 1281 (5th Cir.
    1992) (“To form the basis of liability under § 1983, a municipal policy must be
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    affirmatively linked to the constitutional violation and be the moving force
    behind it.”).
    Second, this general policy of non-disclosure was not implemented with
    “deliberate indifference.” To show deliberate indifference based on a single
    incident, there must be evidence that shows that it should have been apparent
    or obvious to the policymaker that a constitutional violation was the “highly
    predictable consequence” of the particular policy. See 
    Burge, 336 F.3d at 373
    ;
    Brown v. Bryan County, 
    219 F.3d 450
    , 461 (5th Cir. 2000). While it was
    established that information from internal administrative investigations is
    generally not shared, Sergeant Infante, Commander Avitia, Lieutenant
    Etheridge, and Police Chief Garcia still understood that this policy did not
    prohibit them from disclosing video recordings. Moreover, if Officer Carrejo
    requested or inquired about the existence of any videos of the incident, the
    videos would have been turned over. Because of the understanding throughout
    the police department that even with the policy that possibly exculpatory
    evidence such as the videos could be disclosed, it was by no means “apparent”
    that a constitutional violation was a “highly predictable consequence” of the
    general policy of non-disclosure. See 
    Burge, 336 F.3d at 373
    . Put another way,
    it can not be “apparent” that a constitutional violation is a “highly predictable
    consequence” if no impression is created from the policy that the evidence
    central to the alleged violation has to be withheld. Accordingly, there was no
    “deliberate indifference” shown in implementing this policy. See 
    id. (citing Brown,
    219 F.3d at 461).
    Even if this court adopts Alvarez’s alternative theory that the “policy”
    was Police Chief Garcia being vested with the sole authority to review the
    internal administrative investigation reports, there is no showing that this
    policy was adopted or implemented with deliberate indifference. When
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    advancing this theory, Alvarez lodges two different concepts for how deliberate
    indifference was shown. First, Alvarez asserts that the policy of allowing Police
    Chief Garcia to be the sole decision maker relating to the internal
    investigations was deliberately indifferent because there was no safety net to
    catch Police Chief Garcia’s mistakes. Second, Alvarez avers that Police Chief
    Garcia implemented this policy with deliberate indifference because he
    overlooked internal administrative reports, knowing that his error would
    probably result in the violation of an individual’s constitutional rights.
    Both of Alvarez’s arguments are unavailing. Placing the final decision
    making authority in the hands of one individual, even if it makes an error more
    likely, does not by itself establish deliberate indifference. “Deliberate
    indifference is a degree of culpability beyond mere negligence or even gross
    negligence; it must amount to an intentional choice, not merely an
    unintentionally negligent oversight.” 
    James, 577 F.3d at 617
    –18 (quoting
    Rhyne v. Henderson County, 
    973 F.2d 386
    , 392 (5th Cir. 1992) (quotation marks
    omitted). No evidence from the record indicates that Police Chief Garcia’s
    actions should be characterized as anything more than negligent oversight.
    Moreover, Alvarez points to no case from any circuit that premises § 1983
    municipal   liability   on   a   policymaker’s   deliberate    indifference   to   a
    constitutional right that a circuit court has expressly held does not exist—e.g.,
    the defendant’s right to be presented with Brady material before entering a
    guilty plea. No deliberate indifference was shown to establish municipal
    liability under this alternative theory proposed by Alvarez.
    In conclusion, the City of Brownsville should not have been liable as a
    matter of law for Alvarez’s § 1983 action.
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    B. Extension of the Brady right to the Plea Bargaining Process
    Alvarez additionally argued to the en banc court that his guilty plea did
    not preclude him from asserting a viable Brady claim for his § 1983 action.
    Prior to this court granting Alvarez’s petition for rehearing en banc, settled
    precedent in this circuit held that there was no constitutional right to Brady
    material prior to a guilty plea. See United States v. Conroy, 
    567 F.3d 174
    , 178–
    79 (5th Cir. 2009) (citing Matthew v. Johnson, 
    201 F.3d 353
    , 361–62 (5th Cir.
    2000)). Alvarez argues that under Brady the videos of the incident between
    him and Officer Arias constituted exculpatory evidence that he was
    constitutionally entitled to before the entry of his guilty plea. 
    See 373 U.S. at 87
    . This court declines the invitation to uproot its precedent.
    In United States v. Ruiz, the Supreme Court held that “the Constitution
    does not require the Government to disclose material impeachment evidence
    prior to entering a plea agreement with a criminal defendant.” 
    536 U.S. 622
    ,
    633 (2002). The Supreme Court stated that impeachment information was not
    “critical information of which the defendant must always be aware prior to
    pleading guilty.” 
    Id. at 630.
    The Supreme Court, however, did not explicitly
    address whether the withholding of exculpatory evidence during the pretrial
    plea bargaining process would violate a defendant’s constitutional rights. See
    
    id. at 630–33.
          In Conroy, this court addressed the scope of a defendant’s constitutional
    entitlement to Brady material before he enters a guilty 
    plea. 567 F.3d at 179
    .
    Unequivocally, the court rejected the defendant’s argument that Ruiz states
    that impeachment and exculpatory evidence should be treated differently, and
    that exculpatory evidence must be turned over before the entry of a guilty plea.
    
    Id. This court
    stated, “Ruiz never makes such a distinction nor can this
    proposition be implied from its discussion. Accordingly, we conclude that [the
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    defendant’s] guilty plea precludes her from claiming that the government’s
    failure to disclose . . . was a Brady violation.” 
    Id. The First,
    Second, and Fourth Circuits also seem to have doubts about a
    defendant’s constitutional entitlement to exculpatory Brady material before
    entering a guilty plea. In United States v. Mathur, the First Circuit explained
    that, “[t]he animating principle of Brady is the avoidance of an unfair trial. It
    is, therefore, universally acknowledged that the right memorialized in Brady
    is a trial right.” 
    624 F.3d 498
    , 506–07 (1st Cir. 2010) (internal citation omitted).
    Extending Brady to pretrial plea negotiations was characterized as “new
    ground,” a “novel approach,” and an “unprecedented expansion of Brady.” 
    Id. at 507.
    The First Circuit noted that “Ruiz teaches that Brady does not protect
    against the possible prejudice that may ensue from the loss of an opportunity
    to plea-bargain with complete knowledge of all relevant facts.” 
    Id. “[W]hen a
    defendant chooses to admit his guilt, Brady concerns subside.” 
    Id. (“The Brady
    rule’s focus on protecting the integrity of trials suggests that where no trial is
    to occur, there may be no constitutional violation.” (quoting 
    Matthew, 201 F.3d at 361
    )).
    Additionally, the Second Circuit in Friedman v. Rehal stated the
    “Supreme Court has consistently treated exculpatory and impeachment
    evidence in the same way for the purpose of defining the obligation of a
    prosecutor to provide Brady material prior to trial, and the reasoning
    underlying Ruiz could support a similar ruling for a prosecutor’s obligations
    prior to a guilty plea.” 
    618 F.3d 142
    , 154 (2d Cir. 2010) (internal citation
    omitted).
    Likewise, the Fourth Circuit in United States v. Moussaoui emphasized
    that “[t]he Brady right . . . is a trial right” that “exists to preserve the fairness
    of a trial verdict and to minimize the chance that an innocent person would be
    15
    Case: 16-40772     Document: 00514646077      Page: 16   Date Filed: 09/18/2018
    No. 16-40772
    found guilty.” 
    591 F.3d 263
    , 285 (4th Cir. 2010) (emphasis in original). The
    Fourth Circuit went on citing the Fifth Circuit’s Matthew and Orman opinions,
    stating “[w]hen a defendant pleads guilty, those concerns are almost
    completely eliminated because his guilt is admitted.” 
    Id. (citing Orman
    v. Cain,
    
    228 F.3d 616
    , 617 (5th Cir. 2000); 
    Matthew, 201 F.3d at 361
    ). After
    acknowledging the circuit split for whether the Brady right extended to the
    guilty plea context, the Fourth Circuit did not decide the issue. 
    Id. at 286.
          The Seventh, Ninth, and Tenth Circuits, however, recognized the
    possible distinction noted by the Supreme Court in Ruiz between impeachment
    and exculpatory evidence in the guilty plea context. In McCann v.
    Mangialardi, the Seventh Circuit stated that “Ruiz indicates a significant
    distinction between impeachment information and exculpatory evidence of
    actual innocence.” 
    337 F.3d 782
    , 788 (7th Cir. 2003). The Seventh Circuit went
    on to say, “[g]iven this distinction, it is highly likely that the Supreme Court
    would find a violation of the Due Process Clause if prosecutors or other
    relevant government actors have knowledge of a criminal defendant’s factual
    innocence but fail to disclose such information to a defendant before he enters
    into a guilty plea.” 
    Id. In the
    next line, the court explained that “[w]e need not
    resolve this question” because the plaintiff did not present evidence that the
    defendant was aware of the potential exculpatory evidence. 
    Id. In United
    States v. Ohiri, the defendant contended that the government
    committed Brady violations by failing to disclose exculpatory evidence prior to
    his decision to plead guilty. 133 F. App’x 555, 556 (10th Cir. 2005)
    (unpublished). The Tenth Circuit explained that the “government should have
    disclosed all known exculpatory information at least by that point in the
    proceedings” prior to the defendant’s guilty plea entered on the first day of jury
    selection. 
    Id. at 562.
    Notably, “the unusual circumstances presented” by the
    16
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    No. 16-40772
    defendant’s acceptance of an “eleventh-hour plea agreement” on the day the
    defendant was set to go to trial was highlighted in the court’s reasoning. See
    Ohiri, 133 F. App’x at 562. The Tenth Circuit emphasized that, unlike Ruiz,
    the evidence the prosecution withheld from the defendant was alleged to be
    exculpatory and not just impeachment evidence. 
    Id. The court
    concluded by
    stating that “the Supreme Court [in Ruiz] did not imply that the government
    may avoid the consequence of a Brady violation if the defendant accepts an
    eleventh-hour plea agreement while ignorant of withheld exculpatory evidence
    in the government’s possession.” 
    Id. Similarly, the
    Ninth Circuit alluded to possibly allowing a defendant to
    assert a Brady violation after pleading guilty. See Smith v. Baldwin, 
    510 F.3d 1127
    , 1148 (9th Cir. 2007) (en banc). When the Ninth Circuit referred to the
    defendant’s ability to assert a Brady violation after pleading guilty, the court
    cited to a case predating Ruiz for the proposition that the defendant could still
    assert a viable Brady claim even though he pled guilty. See 
    id. (citing Sanchez
    v. United States, 
    50 F.3d 1148
    , 1454 (9th Cir. 1995)).
    In sum, case law from the Supreme Court, this circuit, and other circuits
    does not affirmatively establish that a constitutional violation occurs when
    Brady material is not shared during the plea bargaining process. The en banc
    court will not disturb this circuit’s settled precedent and abstains from
    expanding the Brady right to the pretrial plea bargaining context for Alvarez.
    III. CONCLUSION
    For the foregoing reasons, we REVERSE the district court’s judgment,
    and RENDER judgment in favor of the City of Brownsville. Alvarez’s action
    against the City of Brownsville is DISMISSED with prejudice.
    17
    Case: 16-40772     Document: 00514646077      Page: 18    Date Filed: 09/18/2018
    No. 16-40772
    EDITH H. JONES, Circuit Judge, joined by SMITH and HO, Circuit Judges,
    concurring:
    I am pleased to join Chief Judge Stewart’s opinion for the court, with
    which I fully agree. The genesis of this case is, however, troubling, and worth
    noting. It is an unsavory vehicle in which to be discussing significant theories
    of law.
    How Alvarez 1 obtained his habeas relief in the state appellate court,
    using his then-attorney Lucio, who later became a co-defendant in a federal
    RICO and bribery prosecution against then-Cameron County DA Villalobos, is
    more than suspicious. The state courts were presented a redacted video of the
    encounter between Alvarez and Officer Arias, which omitted a crucial 30+
    seconds leading up to their tussle. In that period of time, it was evident that
    Alvarez was arguing with and resisting the officers’ instructions to move from
    one cell into another. Unredacted, the video portrays a much more complex
    picture of events than the “self defense” theory propounded by attorney Lucio.
    Lucio also offered the supporting testimony of Alvarez’s former attorney, de la
    Fuente, an unindicted co-conspirator in the bribery case. In the state habeas
    court, the DA’s office, oddly, never questioned the video, immediately agreed
    to a new trial, and apparently offered an agreed set of findings and conclusions.
    That court granted only a new trial.          When Lucio appealed to the state
    appellate court on his “actual innocence” theory—which is supportable only if
    one sees no more than the redacted video—the DA filed no response. After the
    appellate court remanded, the DA quickly dismissed charges.               One may
    1  I have no knowledge whether Alvarez had any information about the attorneys’
    deeds in his case.
    18
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    No. 16-40772
    surmise, as Gilbert & Sullivan wrote in Trial by Jury, Alvarez’s release “was
    managed by a job, and a good job too.”
    For present purposes, the point is that without having been “exonerated”
    by the state courts, Alvarez could not pursue his very novel Section 1983 claim
    against the City. See Heck v. Humphrey, 
    512 U.S. 477
    , 486-87, 
    114 S. Ct. 2364
    ,
    2372 (1994). Alvarez’s damage suit proceeded contemporaneously in federal
    court with the RICO/bribery charges against the former DA and his attorney
    cohorts. Indeed, the judge originally assigned to Alvarez’s case had to recuse
    when he became responsible for the criminal case. In the bribery prosecution,
    Alvarez’s habeas case was mentioned indirectly.            The City’s attorneys
    attempted repeatedly to challenge the redacted video in Alvarez’s civil suit, but
    the federal court ignored their efforts. Why? I do not understand the district
    court’s unwillingness to explore whether Alvarez’s case was founded on
    doctored evidence. If doctored evidence tainted Alvarez’s habeas case, the
    federal court would have had to consider ethical action against certain
    attorneys. On the other hand, it would not have had to opine on unusual issues
    concerning municipal liability and the ramifications of the Brady doctrine.
    Allegations of doctored evidence here may have been misplaced, but
    surely they were not frivolous. Because factual integrity is the gateway to
    litigating a claim in court, Fed. R. Civ. P. 11, integrity in the fact-finding
    process must be maintained vigilantly. No defendant, including the City,
    should be persecuted by means of litigation with a false foundation.           It’s
    unfortunate if that is what happened here.
    I urge our colleagues at the district court level to be more attuned to non-
    frivolous complaints of potentially unethical behavior.
    19
    Case: 16-40772       Document: 00514646077          Page: 20     Date Filed: 09/18/2018
    No. 16-40772
    STEPHEN HIGGINSON, Circuit Judge, joined by JOLLY, JONES, WIENER
    and OWEN, Circuit Judges, concurring:
    Criminal discovery rules and practices vary. In federal criminal cases,
    discovery practices are responsive to local court and professionalism
    requirements, notably the United States Attorney’s Manual; 1 the rulemaking
    process—itself dynamic and receptive to change urged by criminal justice
    participants—notably Fed. R. Crim. P. 16 (Discovery and Inspection);
    legislative initiatives, notably the Jencks Act, 18 U.S.C. 3500; and, judicial
    decisions elaborating the due process imperative for fundamental fairness,
    notably Brady v. Maryland, 
    373 U.S. 83
    (1963).
    I write in agreement with the majority that we should not stretch the
    last by constitutionalizing Brady forward in time from a fair trial right
    (“existing Brady”) to a pre-plea right (“new Brady”), as well as to observe that
    the Who, What and When components of any new disclosure obligation be
    described with clarity to prosecutors, defense counsel and trial judges.
    Who owes new Brady disclosure (after what, if any, search)? Existing
    Brady law imposes constructive knowledge on the government, see, e.g., Kyles
    v. Whitley, 
    514 U.S. 419
    , 437 (1995) (“[T]he individual prosecutor has a duty to
    learn of any favorable evidence known to the others acting on the government's
    behalf in the case, including the police.”). If an earlier-in-time, new Brady right
    is recognized, the orbit of government responsibility must be drawn. Guilty
    plea agreements which offer benefits to defendants are vitally important to
    1 See e.g. U.S.A.M. 9-5.001(D) (Timing of disclosure); 
    id. 9-5.001(D)(1) (“Exculpatory
    information must be disclosed reasonably promptly after it is discovered.”); 
    id. 9-11.233 (“It
    is the policy of the Department of Justice, however, that when a prosecutor conducting a
    grand jury inquiry is personally aware of substantial evidence that directly negates the guilt
    of a subject of the investigation, the prosecutor must present or otherwise disclose such
    evidence to the grand jury before seeking an indictment against such a person.”).
    20
    Case: 16-40772    Document: 00514646077      Page: 21   Date Filed: 09/18/2018
    No. 16-40772
    accused persons yet remain a matter of executive discretion.         Those plea
    agreement offers may well be withheld if a Brady imputation rule applies to
    prosecutors when a matter is still being investigated with disparate law
    enforcement involvement, especially when law enforcement is responding to
    reactive crimes and arrests. Or plea agreement offers may come only with a
    waiver of any such new Brady right. Cf. United States v. Sylvester, 
    583 F.3d 285
    , 293-294 (5th Cir. 2009) (allowing case-in-chief plea statement waivers). Or
    they may come slowly, after coordinated due diligence review of investigative
    materials, regardless of whether a defendant seeks to avoid pretrial detention
    and the possibility of superseding charges by accepting responsibility and
    pleading guilty quickly.
    What must be disclosed? The answer seems to be Brady minus Ruiz, yet
    that would revive difficult distinctions between exculpatory and impeachment
    evidence which bedeviled earlier due process caselaw. See United States v.
    Bagley, 
    473 U.S. 667
    , 676 (1985).
    When must disclosure occur? The constitution does not prevent accused
    persons from acknowledging responsibility and guilt, yet any new Brady rule
    likely would require prosecutors to collect and review existing evidence first,
    perhaps, as noted, seeking pretrial detention during that time, as well as,
    thereafter, superseding with additional charges if more, not less, incriminating
    evidence is found. Depending on the timing of any new Brady rule, especially
    one triggered by a defendant’s stated intention to plead guilty, courts may need
    to anticipate pretrial detention requests against defendants who seek to plead
    guilty as well as requests for in camera submissions or protective orders to
    safeguard victims and witnesses.
    Fairness and truth-finding are imperatives. Berger v. United States, 
    295 U.S. 78
    , 88 (1935). For that reason, it is worthwhile to emphasize that the
    21
    Case: 16-40772       Document: 00514646077          Page: 22     Date Filed: 09/18/2018
    No. 16-40772
    constitution already protects against prosecutors who use false evidence to
    obtain a conviction. Napue v. Illinois, 
    360 U.S. 264
    , 269 (1959); Giglio v. United
    States, 
    405 U.S. 150
    (1972); cf. Ferrara v. United States, 
    456 F.3d 278
    , 291-297
    (1st Cir. 2006) (nondisclosure “so outrageous that it constituted impermissible
    prosecutorial misconduct sufficient to ground the petitioner's claim that his
    guilty plea was involuntary”). 2
    And the constitution already protects against ineffective assistance of
    counsel, which occurs regardless of the attractiveness of a plea offer if counsel,
    in the best position to have ascertained innocence, fails to “investigate[] the
    law and circumstances” relating to a defendant’s guilty plea. See United States
    v. Juarez, 
    672 F.3d 381
    , 390 (5th Cir. 2012); Hill v. Lockhart, 
    474 U.S. 52
    , 59
    (1985).
    Finally, the constitution already assures further protection against the
    miscarriage of justice of an innocent pleading guilty by requiring that judges
    engage in extended, direct colloquy with defendants who seek to confirm their
    guilt under oath. Boykin v. Alabama, 
    395 U.S. 238
    (1969); Fed. R. Crim. P.
    11(b)(1). Judges must confirm that a factual basis supports every guilty plea.
    See Fed. R. Crim. P. 11(b)(3); cf. United States v. Gobert, 
    139 F.3d 436
    , 439-441
    2 Furthermore, existing Brady is a continuing duty, United States v. Cessa, 
    861 F.3d 121
    , 134 n.8 (5th Cir. 2017) (“Brady obligations are continuing throughout trial, and are
    neither dependent on a request from the defendant nor the form of the Brady material.”), and
    extends to sentencing, Brady v. Maryland, 
    373 U.S. 83
    , 87-88 (1963), thus may be violated if
    a prosecutor withholds evidence which contradicts a presentence report offense narrative the
    government relies on. As with a proffer of a factual basis at rearraignment, endorsement of
    a presentence report will occur during the period when defendants may seek to withdraw
    their guilty pleas and any existing Brady obligation and disclosure triggered by use of a
    factual basis or presentence report may well qualify as a “fair and just reason for requesting
    withdrawal.” Fed. R. Crim. P. 11(d).
    22
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    No. 16-40772
    (5th Cir. 1998) (finding clear error in acceptance of guilty plea without adequate
    factual basis). 3
    3Indeed, judges frequently ask defendants to confirm their guilt in their own words.
    This may be particularly advisable when defendants and the government submit plea
    agreements with especially favorable terms for court acceptance. Fed. R. Crim. P. 11(c)(2)-
    (5).
    23
    Case: 16-40772    Document: 00514646077      Page: 24    Date Filed: 09/18/2018
    No. 16-40772
    JAMES C. HO, Circuit Judge, joined by E. GRADY JOLLY, EDITH H. JONES,
    JERRY E. SMITH, EDITH BROWN CLEMENT, and PRISCILLA R. OWEN,
    Circuit Judges, concurring:
    A number of circuits are openly flirting with, if not embracing outright,
    a novel alteration of the constitutional doctrine first announced in Brady v.
    Maryland, 
    373 U.S. 83
    (1963). See, e.g., Smith v. Baldwin, 
    510 F.3d 1127
    , 1148
    (9th Cir. 2007) (en banc) (citing Sanchez v. United States, 
    50 F.3d 1448
    , 1454
    (9th Cir. 1995)); United States v. Ohiri, 133 F. App’x 555, 562 (10th Cir. 2005)
    (unpublished); McCann v. Mangialardi, 
    337 F.3d 782
    , 788 (7th Cir. 2003).
    Under Brady, the defendant has the right to review exculpatory material
    from the prosecution team in order to prepare for trial. Under the proposed
    new rule, the prosecution team is now required to disclose such material, even
    if the accused does not want it, and instead seeks to plead guilty—and if the
    accused does not receive the material, he can later nullify the plea agreement.
    The proposed rule is foreclosed by circuit precedent. And Chief Judge
    Stewart’s en banc majority opinion expressly declines any invitation to
    overrule our precedent. I am pleased to join his excellent opinion.
    I write separately to make two points about precedent. First, there was
    no justification for the district court to ignore our circuit precedent. Second,
    our circuit precedent was correctly decided.        Indeed, it is compelled by
    established principles of constitutional law:      Brady announced a right to
    exculpatory evidence as part of the right to a fair trial. Pleading guilty waives
    the right to a trial, and inherent in that waiver is the waiver of subsidiary trial
    rights such as Brady.      The district court contradicted these established
    principles when it extended Brady to the plea bargaining stage and treated it
    not as a right of the accused, but as a requirement defendants cannot waive.
    I concur in the reversal of the district court.
    24
    Case: 16-40772     Document: 00514646077     Page: 25   Date Filed: 09/18/2018
    No. 16-40772
    I.
    If the constitutional theory urged by George Alvarez and his amici had
    been an open question in this circuit, the district court could have attempted
    to justify its judgment on either the text or original understanding of the
    Constitution or on a faithful application of analogous Supreme Court or circuit
    precedent.
    But that is not this case. To the contrary, the district court awarded a
    $2.3 million judgment based on a constitutional theory that our previous
    rulings expressly foreclose. See United States v. Conroy, 
    567 F.3d 174
    , 178–79
    (5th Cir. 2009) (per curiam) (citing Matthew v. Johnson, 
    201 F.3d 353
    , 361–62
    (5th Cir. 2000)). What’s more, the district court did not even cite—let alone
    distinguish—our prior precedents.
    In describing the judicial power established in Article III of the
    Constitution, Federalist 78 observes that, “[t]o avoid an arbitrary discretion in
    the courts, it is indispensable that they should be bound down by strict rules
    and precedents, which serve to define and point out their duty in every
    particular case that comes before them.” THE FEDERALIST NO. 78 (Alexander
    Hamilton).
    Consistent with these foundational constitutional principles, it is long
    established that district courts are bound to follow circuit precedent unless it
    directly conflicts with Supreme Court precedent. See, e.g., Campbell v. Sonat
    Offshore Drilling, Inc., 
    979 F.2d 1115
    , 1121 n.8 (5th Cir. 1992) (“It has been
    long established that a legally indistinguishable decision of this court must be
    followed by other panels of this court and district courts unless overruled en
    banc or by the United States Supreme Court.”).
    25
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    No. 16-40772
    In the event of such a conflict, Supreme Court precedent of course plainly
    controls. But there is no such conflict here: The Supreme Court has never held
    that Brady establishes an unwaivable right at the plea bargaining phase.
    To the contrary, the Supreme Court has held precisely the opposite in
    the context of two different categories of Brady material. See United States v.
    Ruiz, 
    536 U.S. 622
    (2002). First, prosecutors need not disclose exculpatory
    impeachment evidence at the plea bargaining stage, as Chief Judge Stewart
    explains. See Op. at 14–17 (citing 
    Ruiz, 536 U.S. at 630
    –33). Moreover,
    prosecutors need not disclose exculpatory evidence concerning any potential
    affirmative defense at the plea bargaining stage. See 
    Ruiz, 536 U.S. at 633
    (“We do not believe the Constitution here requires provision” of “information
    the Government has regarding any ‘affirmative defense’” “prior to plea
    bargaining”); see also 
    id. (Thomas, J.
    , concurring) (“I agree with the Court that
    the Constitution does not require the Government to disclose either affirmative
    defense information or impeachment information relating to informants or
    other witnesses before entering into a binding plea agreement with a criminal
    defendant.”).
    Neither Alvarez nor his amici have explained why one rule should apply
    to exculpatory evidence concerning the prima facie elements of a criminal case,
    and a different rule should apply to exculpatory evidence concerning
    affirmative defenses. Certainly nothing in the text or original understanding
    of the Constitution supports such a distinction. And most importantly, no
    Supreme Court decision has ever so held (tellingly, the district court does not
    26
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    No. 16-40772
    even cite, let alone rely on, Ruiz). So there was no basis for the district court
    to ignore binding circuit precedent. 1
    II.
    What’s more, our circuit precedent is correct: Brady is a trial right—and
    it is a right that the accused waives if he agrees to a plea bargain.
    For his part, Alvarez argues that we should extend Brady from the trial
    stage to the plea bargaining stage—and that we should treat Brady as a
    requirement that a defendant cannot waive. As his brief contends, courts
    should not only extend Brady to the plea bargaining phase, but also refuse to
    credit any waiver of Brady rights, on the ground that any such “waiver cannot
    be deemed ‘intelligent and voluntary’ [because it was] ‘entered without
    knowledge      of   material      information      withheld     by    the    prosecution.’”
    Supplemental Brief for Appellee at 36 (quoting Sanchez v. United States, 
    50 F.3d 1448
    , 1453 (9th Cir. 1995)).
    He errs on both counts. What’s more, converting Brady from a right to
    a requirement would diminish, rather than enhance, its value to the accused.
    A.
    First, it is well established that Brady is a trial right. It is a right to
    exculpatory evidence that is part and parcel of the constitutional right to a fair
    trial under the Due Process Clause.
    1 Alvarez relies heavily on Supreme Court decisions that extend the requirement of
    effective assistance of counsel to the plea bargaining stage. See, e.g., Lafler v. Cooper, 
    566 U.S. 156
    , 162–63 (2012); Missouri v. Frye, 
    566 U.S. 134
    , 140 (2012); Padilla v. Kentucky, 
    559 U.S. 356
    , 364–66 (2010). But none of those cases purport to question or undermine the
    Court’s earlier decision in Ruiz declining to extend Brady to the plea bargaining phase. If
    there is conceptual tension in extending the effective assistance of counsel requirement to
    the plea bargaining stage, but not Brady, it has not troubled the Supreme Court.
    27
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    The Supreme Court has repeatedly characterized the Brady right as
    necessary to ensure a fair trial—characterizations that contradict the
    suggestion    that   disclosure   is   additionally   required    to   ensure   the
    constitutionality of pre-trial proceedings. In United States v. Agurs, 
    427 U.S. 97
    (1976), for example, the Court observed that “the prosecutor will not have
    violated his constitutional duty of disclosure unless his omission is of sufficient
    significance to result in the denial of the defendant’s right to a fair trial.” 
    Id. at 108.
    See also, e.g., 
    Ruiz, 536 U.S. at 628
    (describing Brady as “a right that
    the Constitution provides as part of its basic ‘fair trial’ guarantee”) (citing U.S.
    CONST. amend. V, VI; 
    Brady, 373 U.S. at 87
    ); United States v. Bagley, 
    473 U.S. 667
    , 675 (1985) (“The Brady rule is based on the requirement of due process.
    . . . [A prosecutor must] disclose evidence favorable to the accused that, if
    suppressed, would deprive the defendant of a fair trial.”); Weatherford v.
    Bursey, 
    429 U.S. 545
    , 559 (1977) (“[U]nder Brady . . . the prosecution has the
    ‘duty under the due process clause to insure that “criminal trials are fair” by
    disclosing evidence favorable to the defendant upon request.’”) (citation
    omitted).
    The entire purpose of plea bargains, of course, is to avoid the need for
    trial altogether.    Extending Brady to the plea bargaining phase thus
    contradicts the established understanding of Brady as a trial right. As Justice
    Thomas observed in Ruiz: “The principle supporting Brady was ‘avoidance of
    an unfair trial to the accused.’ That concern is not implicated at the plea
    stage.” 
    Ruiz, 536 U.S. at 634
    (Thomas, J., concurring) (citation omitted).
    B.
    The proposed new rule also misunderstands the basic nature of plea
    bargains. Plea bargains, by their very definition, involve the waiver of a
    number of fundamental rights.
    28
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    First and foremost, plea bargains waive the right to trial itself. What’s
    more, inherent in the waiver of trial is a waiver of all rights attendant to a fair
    trial—such as the Fifth Amendment right against self-incrimination, the Sixth
    Amendment rights to a trial before a jury, to confront one’s accusers, and to
    obtain compulsory process, and the right to disclosure of exculpatory evidence
    under Brady. See, e.g., Florida v. Nixon, 
    543 U.S. 175
    , 187 (2004) (“By entering
    a guilty plea, a defendant waives constitutional rights that inhere in a criminal
    trial, including the right to trial by jury, the protection against self-
    incrimination, and the right to confront one’s accusers.”) (citing Boykin v.
    Alabama, 
    395 U.S. 238
    , 243 (1969)); Godinez v. Moran, 
    509 U.S. 389
    , 397 n.7
    (1993) (same); Winters v. Cook, 
    489 F.2d 174
    , 179 (5th Cir. 1973) (en banc)
    (“[P]ersonal fundamental rights include the right to plead guilty (which of
    course encompasses the waiver of numerous rights), the right to waive trial by
    jury, the right to waive appellate review and the right to testify personally.”)
    (citing Developments in the Law—Federal Habeas Corpus, 83 HARV. L. REV.
    1038, 1011 n. 102 (1970)).
    The point is simply this: The Constitution enumerates a series of rights
    of the accused—but the defendant may waive those rights, for example, in
    exchange for leniency in a plea agreement. There is no reason to treat Brady
    any differently. To the contrary, to regard Brady, not as a right that the
    accused can waive, but as a requirement that prosecutors must obey, would be
    incongruous with our approach to other similar constitutional doctrines.
    No one would claim, for example, that plea bargaining itself is
    unconstitutional—even though it inherently involves the right to trial under
    the Sixth Amendment. See, e.g., Brady v. United States, 
    397 U.S. 742
    , 748
    (1970) (“[T]he plea is more than an admission of past conduct; it is the
    defendant’s consent that judgment of conviction may be entered without a
    29
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    trial—a waiver of his right to trial before a jury or a judge.”); Adams v. United
    States ex rel. McCann, 
    317 U.S. 269
    , 276 (1942) (“It hardly occurred to the
    framers of the original Constitution and of the Bill of Rights that an accused,
    acting in obedience to the dictates of self-interest or the promptings of
    conscience, should be prevented from surrendering his liberty by admitting his
    guilt.”).
    It is likewise well established that the accused has the right to waive the
    right to jury trial in favor of a bench trial. See, e.g., 
    Adams, 317 U.S. at 278
    (“[S]ince trial by jury confers burdens as well as benefits, an accused should be
    permitted to forego its privileges when his competent judgment counsels him
    that his interests are safer in the keeping of the judge than of the jury.”). See
    also generally Erwin N. Griswold, The Historical Development of Waiver of
    Jury Trial in Criminal Cases, 20 VA. L. REV. 655 (1934) (collecting materials).
    Similarly, no one here argues that the accused has an unwaivable Sixth
    Amendment right to confront one’s accusers or to have compulsory process to
    secure favorable witnesses, prior to agreeing to a plea bargain. Indeed, such
    an argument would effectively invalidate numerous codes of criminal
    procedure that generally do not permit pre-trial depositions absent special
    circumstances. See, e.g., Tex. Code Crim. Proc. § 39.02; La. Code Crim. Proc.
    art. 716; Miss. R. Crim. Proc. 17.5. Otherwise, in every rape or sexual abuse
    case, for example, the victim would be required to endure a deposition by the
    accused, even where the accused is willing to plead guilty and forgo trial.
    Neither Alvarez nor his amici offer any principled distinction as to why—
    among these various trial rights, all waivable upon a plea bargain—Brady
    should be treated any differently.
    30
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    No. 16-40772
    C.
    To convert Brady from a right to a requirement would not only defy
    established principles of constitutional law. It would also diminish the value
    of those fundamental rights to the accused.
    Rights are most valuable when individuals have the choice not to invoke
    them, depending on the circumstances. An old legend tells how the King of
    Siam would bestow sacred white elephants upon his political rivals. As gifts
    from the king, the elephants could not be rejected. Yet the sacred pachyderms,
    which could not be sold or used for work, would inevitably eat their owners out
    of house and home—driving them into bankruptcy, and leaving them far worse
    off than before they received the “gift.”
    Forcing unwaivable “rights” upon the accused can have a similar effect.
    We empower the accused when we allow them to waive their rights. From the
    defendant’s perspective, the way to maximize the value of a right is to give him
    the option to waive it, just in case (as is often the case) he can exchange it for
    something else that is even more valuable to him. As the Supreme Court once
    put it: “When the administration of the criminal law in the federal courts is
    hedged about as it is by the Constitutional safeguards for the protection of an
    accused, to deny him in the exercise of his free choice the right to dispense with
    some of these safeguards . . . is to imprison a man in his privileges and call it
    the Constitution.” 
    Adams, 317 U.S. at 280
    (emphasis added).
    The power to waive trial rights provides the accused with a significant
    bargaining chip in plea negotiations. Prosecutors lack the resources to take
    every case to trial. So prosecutors have a natural incentive to offer plea deals
    with lower penalties than what the accused might receive from a trial. “Plea
    bargaining flows from ‘the mutuality of advantage’ to defendants and
    prosecutors, each with his own reasons for wanting to avoid trial.”
    31
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    No. 16-40772
    Bordenkircher v. Hayes, 
    434 U.S. 357
    , 363 (1978). And the flip side is also true:
    giving prosecutors “a reduced incentive to bargain” will accrue “to the
    detriment of the many defendants for whom plea bargaining offers the only
    hope for ameliorating the consequences to them of a serious criminal charge.”
    Blackledge v. Perry, 
    417 U.S. 21
    , 37 (1974) (Rehnquist, J., dissenting).
    These principles apply to Brady. A defendant who agrees to waive his
    Brady right relieves the prosecution team of the substantial burdens
    associated with identifying, assembling, and disclosing the range of
    exculpatory materials required under Brady—as explained further in Judge
    Higginson’s thoughtful concurrence.         Converting the Brady right into a
    prosecutorial requirement would substantially upset this balance, by giving
    defendants less to offer the prosecution during the negotiations. Prosecutors
    may be less likely to offer deals at all, if they are forced to expend significant
    resources regardless of whether the case is pled or proceeds to trial. Or they
    might offer inferior plea deals, in the form of longer sentences. Either result
    is a materially worse outcome for the accused.
    ***
    There are times when it is necessary to upset circuit precedent—for
    example, in direct response to squarely conflicting Supreme Court precedent,
    or (where the Supreme Court has not yet ruled) to better align our precedents
    with the text and original understanding of the Constitution or the plain
    language of United States statutes. But that is not this case.
    To the contrary, the alteration of our circuit’s Brady precedents urged by
    Alvarez and his amici would violate established legal principles and even
    diminish the value of Brady to the accused. If there is a case to be made for
    such reform, it must be accomplished through one of the mechanisms
    established by our Founders, such as Article V of the Constitution, or through
    32
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    No. 16-40772
    the proper exercise of legislative powers vested in Congress and in the several
    states. Cf. 
    Brady, 373 U.S. at 92
    (separate opinion of White, J.) (“I would leave
    this task, at least for now, to the rulemaking or legislative process after full
    consideration by legislators, bench, and bar.”).
    I concur in the reversal of the district court. 2
    2  I also agree with the majority’s reliance on Monell. And I recognize that Monell
    alone is enough to reverse the judgment of the district court—we did not have to undertake
    the additional effort of addressing Brady in order to decide this appeal. But our Court
    granted rehearing en banc to reach the Brady question—and it is a question our dissenting
    colleagues address as well—so accordingly, I examine the Brady issue presented here.
    33
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    No. 16-40772
    JAMES L. DENNIS, Circuit Judge, dissenting:
    I respectfully dissent from the majority opinion because, in my view, the
    en banc court should have recognized the federal constitutional right of a
    defendant to exculpatory evidence at the plea-bargaining stage, essentially for
    the reasons described in Judge Costa’s dissent. I also join Part 1 of Judge
    Graves’s dissent, in which he explains how the City’s policy of nondisclosure of
    exculpatory evidence caused a violation of Alvarez’s right to the exculpatory
    video that ultimately exonerated him, prior to entering his guilty plea.
    34
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    No. 16-40772
    JAMES E. GRAVES, JR., Circuit Judge, joined by COSTA, Circuit Judge,
    dissenting 1:
    I write separately to: (1) dissent from the majority’s moving force
    analysis; (2) dissent from the majority’s deliberate indifference analysis; and
    (3) address Brownsville’s egregiously inadequate training policies.
    1.       Non-disclosure policy was moving force for non-disclosure.
    The majority states that the Brownsville Police Department’s (“BPD”)
    failure to disclose the video evidence was the result of a “series of
    interconnected errors” by individual officers that was “separate from” official
    BPD policy. I respectfully disagree.
    “[T]here can be no municipal liability unless [an official policy] is the
    moving force behind the constitutional violation.” James v. Harris Cty., 
    577 F.3d 612
    , 617 (5th Cir. 2009). “In other words, a plaintiff must show direct
    causation, i.e., that there was ‘a direct causal link’ between the policy and the
    violation.” 
    Id. (quoting Piotrowski
    v. Hous., 
    237 F.3d 567
    , 578 (5th Cir. 2001)).
    Whether a sufficient causal link exists is a question of fact. See Jett v. Dall.
    Indp. Sch. Dist., 
    491 U.S. 701
    , 737 (1989); Kirkpatrick v. Washoe, 
    843 F.3d 784
    ,
    797 (9th Cir. 2016); 
    James, 577 F.3d at 618
    ; Bielevicz v. Dubinon, 
    915 F.2d 845
    ,
    851 (3d Cir. 1990).
    Here, as part of the internal affairs division (“IAD”) investigation, Officer
    Arias created a use of force report and submitted it up his chain of command
    to Sgt. Infante and Commander Rodriguez. Infante and Rodriguez then
    reviewed the report, and the video evidence, and submitted their own
    individual reports to Chief Garcia. Garcia never reviewed the file, and none of
    the officers disclosed the videos outside of the IAD.
    1   Judge Dennis joins part 1.
    35
    Case: 16-40772     Document: 00514646077       Page: 36   Date Filed: 09/18/2018
    No. 16-40772
    Meanwhile, Officer Carrejo, the criminal investigations division (“CID”)
    officer assigned to submit the case file to the District Attorney, obtained the
    IAD incident reports from the jail. Carrejo then submitted those reports to the
    District Attorney without conducting additional evidentiary investigation
    because there was no “evidence form” in the records alerting him that relevant
    evidence existed.
    According to the majority, these actions were a “series of interconnected”
    errors by the officers involved. With respect, record evidence shows that the
    officers committed no errors at all under BPD policies.
    CID investigators are responsible for providing criminal case files to the
    District Attorney’s office. To start that process, they collect documents, such as
    incident reports, from a “cubbyhole” at the jail designated for the CID case prep
    team. They then conduct evidentiary follow-up as needed, based largely on
    “evidence forms” that fellow officers attach to the files provided to CID.
    Without an evidence form in the file, CID investigators would be unaware that
    follow-up is necessary.
    BPD has a policy, however, that IAD officers do not proactively disclose
    evidence, including Brady evidence, to CID investigators. Instead, IAD officers
    pass all Brady evidence up their chain of command to Chief Garcia, who has
    sole responsibility to ensure that any Brady evidence is properly disclosed.
    Because these officers do not disclose evidence, there is no “evidence form”
    generated for the CID case file.
    Thus, contrary to the majority’s view, the officers committed no
    “interconnected errors” in conducting their investigation. The IAD officers
    faithfully passed the evidence up the chain of command to Chief Garcia
    without disclosing the evidence to CID. In turn, the CID officer, unaware that
    relevant evidence existed, conducted no evidentiary follow-up and simply
    36
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    No. 16-40772
    passed the file to the District Attorney’s office. This was not error, it was how
    the system was designed to work.
    Moreover, while the majority characterizes Garcia’s failure to review the
    file as nothing “more than negligent oversight,” the record paints a different
    picture. Indeed, Garcia did not review nine out of thirteen known use of force
    cases. Even when Garcia did review such files, it may be “several weeks, even
    up to a month or more . . . after the criminal case had been submitted to the
    [D]istrict [A]ttorney’s office.” Garcia’s failure to review the instant case was
    entirely in line with BPD practice.
    I therefore respectfully dissent from the majority’s conclusion that
    Alvarez has not established that the non-disclosure policy was the moving force
    behind the alleged violation. BPD’s policy of not disclosing exculpatory
    evidence to CID investigators was the direct cause of BPD’s failure to disclose
    the video evidence to the District Attorney and the defense.
    2.    Non-disclosure      policy      implemented     with     deliberate
    indifference.
    The majority next concludes that BPD could not have implemented the
    non-disclosure policy with deliberate indifference because there was an
    “understanding throughout the police department” that IAD officers could
    disclose exculpatory evidence. With respect, that conclusion is not supported
    by the record evidence.
    Though BPD officers did claim that they “should,” “could,” and “would”
    have disclosed the video evidence to the CID if asked to do so, the
    overwhelming weight of the evidence is that officers understood that IAD
    evidence was simply not shared with CID as a matter of policy.
    For instance, officers were trained to consider IAD and CID as separate
    investigative tracts that operate independently. As a result, there was a
    37
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    No. 16-40772
    widespread belief among IAD officers that they had no duty to confirm that
    CID had exculpatory evidence. Instead, IAD officers simply passed evidence up
    their chain of command without disclosure to, or even consideration of, any
    parallel CID investigation. That understanding was based on “in-service
    training.”
    In contrast, there is no evidence to support the officers’ claims that IAD
    officers would, could, or should freely disclose evidence to the CID. Quite the
    opposite is true, as no BPD policy, commanding officer, or training, informed
    IAD officers that they could, or even should, do so.
    Compounding this problem, BPD provided CID investigators with no
    training on how to conduct their investigations. Instead, CID officers act purely
    pursuant to on-the-job experience. For Carrejo, that “mostly consists of getting
    ahold of victims or witnesses and get[ting] whatever information is needed for
    the file.” Carrejo expects fellow officers to “book” relevant evidence in order to
    generate an “evidence report,” 2 so that Carrejo can then “follow up with that
    evidence.” There is no indication in the record that Carrejo received any
    training, or even instruction, to pursue the robust evidentiary investigation
    that Brownsville, and the majority, claims he should have done. There is
    likewise no evidence at all that CID investigators ever asked IAD for evidence.
    I respectfully dissent from the majority’s conclusion that there was an
    “understanding throughout the police department” that IAD officers could
    disclose exculpatory evidence. The weight of the evidence states otherwise.
    I also disagree with the majority opinion’s conclusion that a deliberate
    indifference theory of municipal liability was not viable because at the time we
    2 These evidence reports were among the many topics on which BPD failed to train its
    CID officers.
    38
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    No. 16-40772
    had not recognized a pre-plea right to Brady material. The City never made
    this “clearly established” argument in the district court or in our court. By
    adopting it sua sponte, the court repeats the mistake we recently made in
    Hernandez v. Mesa, 
    785 F.3d 117
    (5th Cir. 2015) (en banc). We held that a
    border patrol agent was entitled to qualified immunity for shooting a Mexican
    national because the law was not clearly established that the Fifth
    Amendment applied to a foreign citizen injured outside the United States. 
    Id. at 121.
    The Supreme Court reversed, explaining that the agent did not know
    at the time of the shooting whether the victim was a U.S. citizen. 
    137 S. Ct. 2003
    , 2007 (2017). The same is true for the similar deliberate indifference
    inquiry here. When he failed to disclose the exculpatory video, Police Chief
    Garcia did not know that Alvarez was pleading guilty. Even more than in
    Mesa, he could not have known as that fact did not yet exist (that is, the plea
    decision had not yet been made). But Garcia knew that the way to comply with
    the Brady obligation that has long existed for cases that go to trial is to notify
    the criminal investigations division of exculpatory material in the IA file so it
    becomes part of the prosecutor’s file later disclosed to the defense. There was
    not one procedure for transferring exculpatory evidence from the IAD side to
    the investigations side for “trial” cases and a separate procedure for “plea”
    cases. Because that transfer of the video to the investigations division did not
    happen, Garcia was deliberately indifferent to the long recognized Brady right
    for cases that get tried.
    It is true that some caselaw suggests that deliberate indifference liability
    applies only when the indifference is to a clearly established right. The idea,
    the same rationale for qualified immunity, is that liability should attach based
    on an individual’s conduct only if there is a knowing violation of constitutional
    law. That culpability exists here because Garcia was deliberately indifferent
    39
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    No. 16-40772
    to his constitutional obligation to turn over exculpatory evidence for a case
    that, like any other, could have resulted in a trial with the long recognized
    Brady right. Once that deliberate indifference to a clear constitutional right is
    established, it is just a matter of causation to show that the deliberate
    indifference to ensuring the criminal file contained exculpatory material led to
    Alvarez’s constitutional injury that Judge Costa’s opinion recognizes.
    The defect in the majority opinion on this point can be seen by imagining
    this same case but with Alvarez having gone to trial on the criminal charge.
    Under the majority opinion’s analysis, Garcia could avoid liability by saying
    “well, when I failed to give the video to the criminal investigators, I thought he
    was probably going to plead. And it is not clearly established that I have to
    turn over exculpatory evidence when defendants plead.” That defense should
    not immunize the City from liability because Garcia did not know how the
    criminal case would be resolved when he failed to disclose the video to the
    investigative side. Thus, (1) Garcia was deliberately indifferent to the clear-
    as-can-be Brady rights that defendants going to trial have, and (2) Garcia’s
    deliberate indifference caused the violation of Alvarez’s right to pre-plea Brady
    materials.
    3.     BPD training policy was constitutionally deficient.
    Though the majority does not address Alvarez’s claim that Brownsville
    failed to adequately train its officers on Brady rights, I do so because BPD’s
    training policy, or rather complete lack thereof, is so deficient that it clearly
    exhibits deliberate indifference to the constitutional rights of those that come
    into contact with BPD officers.
    “[T]he inadequacy of police training may serve as the basis for § 1983
    liability only where the failure to train amounts to deliberate indifference to
    the rights of persons with whom the police come into contact.” Canton v.
    40
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    No. 16-40772
    Harris, 
    489 U.S. 378
    , 388 (1989). “[I]t may happen that in light of the duties
    assigned to specific officers or employees the need for more or different training
    is so obvious, and the inadequacy so likely to result in the violation of
    constitutional rights, that the policymakers of the city can reasonably be said
    to have been deliberately indifferent to the need.” 
    Id. at 390.
          As Chief Garcia acknowledged, it is foreseeable that BPD officers will
    encounter use of force incidents and, as a result, have to decide what evidence
    to disclose in their reports. Garcia further acknowledged that officers will
    choose what evidence to disclose “based on the type of training they receive.”
    Despite this foreseeability, BPD had “no policy” of providing training on Brady.
    Indeed, Chief Garcia could not even state whether any of his officers had ever
    touched on Brady at any time. At best, Garcia claimed only that BPD officers
    had “[m]aybe” covered Brady in non-BPD trainings - in some cases up to 30
    years in the past.
    Unsurprisingly, BPD officers suffer from widespread ignorance on Brady
    rights. Chief Garcia candidly admitted that “it would not surprise” him to learn
    that his officers did not know what Brady obligations are. Nor should it. Officer
    Arias did not know what “exculpatory” meant, and Officer Carrejo, the CID
    officer assigned to provide evidence to the District Attorney, was likewise “not
    familiar.”
    That such a complete failure to train on Brady rights is “likely to result
    in the violation of constitutional rights” is “obvious,” see 
    Canton, 489 U.S. at 390
    , because “in the absence of training, there is no way for novice officers to
    obtain the legal knowledge they require.” Connick v. Thompson, 
    563 U.S. 51
    ,
    64 (2011). Naturally, the resulting “[w]idespread officer ignorance on the
    proper handling of exculpatory materials would have the ‘highly predictable
    41
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    No. 16-40772
    consequence’ of due process violations.” See Gregory v. Louisville, 
    444 F.3d 725
    ,
    753 (6th Cir. 2006).
    Brownsville’s complete lack of training on Brady rights evidences
    “deliberate indifference to the [constitutional] rights of persons with whom the
    police come into contact.” See 
    Canton, 489 U.S. at 388
    ; see also 
    Gregory, 444 F.3d at 753-54
    .
    CONCLUSION
    The district court thought the evidence showing municipal liability was
    so strong that it granted summary judgment on that issue in favor of the
    plaintiff. The majority opinion does a 180-degree turn and holds there is no
    municipal liability as a matter of law. For the reasons I have discussed, at a
    minimum, there are factual disputes that a jury should resolve on municipal
    liability. I respectfully dissent.
    42
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    No. 16-40772
    GREGG COSTA, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting:
    Let this sink in: If George Alvarez had been convicted of a federal crime
    in this circuit, he would have served his full 10-year sentence despite
    eventually discovering that the government failed to disclose an exculpatory
    video. That is because we are the only federal court of appeals that has held
    that a defendant who pleads guilty is not entitled to evidence that might
    exonerate him. Fortunately for Alvarez, and for those who believe that “justice
    suffers when any accused is treated unfairly,” Brady v. Maryland, 
    373 U.S. 83
    ,
    87 (1963), he was convicted of a state offense. 1 For almost forty years, Texas
    has interpreted the federal Brady right to require the government to provide
    exculpatory information “to defendants who plead guilty as well as to those
    who plead not guilty.” Ex parte Lewis, 
    587 S.W.2d 697
    , 701 (Tex. Crim. App.
    1979); see also Ex parte Johnson, 
    2009 WL 1396807
    , at *1 (Tex. Crim. App.
    May 20, 2009) (vacating a guilty plea because of a Brady violation). Texas is
    not alone. The highest courts of other states that have considered this question
    agree that defendants have a federal due process right to exculpatory evidence
    before they plead guilty. See Buffey v. Ballard, 
    782 S.E.2d 204
    , 218 (W. Va.
    2015); State v. Huebler, 
    275 P.3d 91
    , 96–97 (Nev. 2012); Hyman v. State, 
    723 S.E.2d 375
    , 380 (S.C. 2012); Medel v. State, 
    184 P.3d 1226
    , 1235 (Utah 2008).
    Because we now have “for the most part a system of pleas, not a system of
    trials,” Lafler v. Cooper, 
    566 U.S. 156
    , 170 (2012), today’s opinion reaffirming
    our outlier position means that the vast majority of defendants in this circuit
    1 In its amicus brief, the Department of Justice points to the grant of habeas relief in
    Alvarez’s case as an example of the “existing remedies . . . typically available to defendants
    who admit their guilt but later claim actual innocence” that makes a Brady right unnecessary
    for such defendants. U.S. Br. 13. This ignores that federal habeas law, whether reviewing
    state or federal convictions, would not provide that relief because it does not recognize a
    freestanding innocence claim. Herrera v. Collins, 
    506 U.S. 390
    , 400 (199).
    43
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    No. 16-40772
    will not have a right to relief if it comes to light after their conviction that the
    government suppressed exculpatory evidence.
    The origins of the Brady right support Texas courts’ longstanding view
    that it requires pre-plea disclosure of exculpatory evidence.         The seminal
    Supreme Court case describes the right as a due process requirement for a
    prosecutor, upon request, to disclose information favorable to the accused that
    “is material either to guilt or to punishment.” 
    Brady, 373 U.S. at 87
    . Although
    the more common framing of the right is the first characterization that relates
    to “innocence or guilt,” Brady itself was a case about punishment as the
    suppressed confession only resulted in a new sentencing trial. 
    Id. at 90–91.
    It
    is notable that the right has from its inception applied to the sentencing phase
    of a proceeding that is vitally important but “does not concern the defendant’s
    guilt or innocence.” 
    Lafler, 566 U.S. at 165
    . Because a plea hearing is all about
    a defendant’s guilt or innocence, it more strongly implicates Brady’s
    “overriding concern with the justice of the finding of guilt.” United States v.
    Bagley, 
    473 U.S. 667
    , 678 (1985) (quoting United States v. Agurs, 
    427 U.S. 97
    ,
    112 (1976). It certainly does so more directly than does a suppression hearing
    where the focus is on whether the government unlawfully obtained evidence,
    see United States v. Bowie, 
    198 F.3d 905
    , 912 (D.C. Cir. 1999), yet we have
    recognized the Brady right extends to suppression motions. Smith v. Black,
    
    904 F.2d 950
    , 965–66 (1990), vacated on other grounds, 
    503 U.S. 930
    (1992).
    And the Brady rule seeks “to ensure that a miscarriage of justice does not
    occur,” 
    Bagley, 473 U.S. at 675
    , a risk that we know exists not just for trial
    convictions but also for guilty pleas, see Brady v. United States, 
    397 U.S. 742
    ,
    758 (1970) (recognizing that plea agreements are “no more foolproof than full
    trials”); Stephanos Bibas, Plea Bargaining’s Role in Wrongful Convictions, in
    EXAMINING WRONGFUL CONVICTIONS 157–62 (2014) (discussing the incentives,
    44
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    No. 16-40772
    structural constraints, and psychological influences that can lead to innocent
    defendants pleading guilty); infra p. 16.
    Digging deeper into the roots of Brady further supports its application to
    requests for exculpatory evidence before pleading. The 1963 decision relied on
    earlier Supreme Court cases recognizing a due process violation when the
    government knowingly used false testimony to secure a conviction. 
    See 373 U.S. at 86
    –87 (citing Mooney v. Holohan, 
    294 U.S. 103
    , 112 (1935) (per curiam);
    Napue v. Illinois, 
    360 U.S. 264
    , 269 (1959)). At a plea hearing, the government
    must provide a factual basis for the defendant’s guilt to support the conviction.
    See FED. R. CRIM. P. 11(b)(3); cf. Brady v. United 
    States, 397 U.S. at 758
    (explaining that a court’s ability to determine “that there is nothing to question
    the accuracy and reliability of the defendants’ admissions” provides an
    important safeguard against problems with plea agreements). Just as failure
    to provide exculpatory information at a trial subverts the jury’s ability to
    determine guilt, so too does failure to provide that information in connection
    with a plea prevent the judge from properly assessing whether there is a
    factual basis to support a conviction. Failing to disclose exculpatory evidence
    in reciting the essential facts of the case thus is at odds with the government’s
    constitutional duty to tell the truth in court.
    Indeed, as a general matter due process rights are usually not limited to
    trials, but may apply in various types of proceedings at which the government
    seeks to deprive someone of life, liberty, or property. Other due process rights
    apply at plea hearings, most fundamentally the requirement that a plea be
    knowing and voluntary. 2 McCarthy v. United States, 
    394 U.S. 459
    , 466 (1969).
    2  Some courts have taken the view that a failure to disclose exculpatory evidence
    renders the plea unknowing and involuntary. Sanchez v. United States, 
    50 F.3d 1448
    , 1453
    (9th Cir. 1995); cf. United States v. Fisher, 
    711 F.3d 460
    (4th Cir. 2013).
    45
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    No. 16-40772
    But also others like the government’s obligation to fulfill its promises in a plea
    agreement. Santobello v. New York, 
    404 U.S. 257
    , 262 (1971). Looking even
    more broadly to the Fifth Amendment as a whole, none of its rights apply solely
    in trials. Protections against self-incrimination, takings, double jeopardy, and
    being charged without a grand jury indictment guard against arbitrary
    government action that can occur in a variety of contexts outside of trial.
    Although Fifth Amendment rights may appear to lack the unifying theme that
    is evident for the conscience and expression-protecting First Amendment, the
    trial-focused Sixth and Seventh Amendments (first criminal then civil); or the
    punishment-focused Eighth, one scholar has noted that most rights in the Fifth
    Amendment cover the period between the investigative phase addressed in the
    Fourth Amendment and the trial phase addressed in the Sixth.                       BURT
    NEUBORNE, MADISON’S MUSIC: ON READING THE FIRST AMENDMENT 26–27
    (2015). The Amendment’s focus on pretrial criminal proceedings rather than
    trials thus further supports requiring the disclosure of exculpatory evidence in
    the plea hearing.
    So what is the basis for limiting a due process right like Brady to the
    context of a full-blown trial even though a plea hearing involves its core
    concern about whether the courts are fulfilling their truth-finding function?
    The most basic argument against applying Brady to pleas is that by pleading
    guilty the defendant implicitly waives a right to obtain evidence that might
    undermine his admission of guilt. 3 Put more bluntly, if a defendant is saying
    he is guilty, isn’t that the end of the issue? But the same argument could be
    3  This is different than the question whether a defendant could affirmatively waive
    his Brady rights in pleading guilty. This case does not present that question as Alvarez
    requested full discovery from the defendant and never waived the Brady right that Texas
    courts afford all defendants.
    46
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    made and was for ineffective assistance of counsel claims asserted by those
    who pleaded guilty. If a defendant admitted guilt, how could he later complain
    that with better lawyering he might have been acquitted? Indeed, the right to
    effective assistance of counsel was sometimes framed, as Brady has sometimes
    been, only as a fair trial right. Strickland v. Washington, 
    466 U.S. 668
    , 686
    (1984) (explaining that “in giving meaning to the requirement” of effective
    assistance, “we must take its purpose—to ensure a fair trial—as the guide”);
    see also United States v. Cronic, 
    466 U.S. 648
    , 658 (1984) (“[T]he right to the
    effective assistance of counsel is recognized not for its own sake, but because
    of the effect it has on the ability of the accused to receive a fair trial.”); see also
    Michael Nasser Petegorsky, Plea Bargaining in the Dark, 81 FORDHAM L. REV.
    3599, 3631 (2013) (“[L]ike Brady, the right to effective assistance was
    traditionally considered purely a trial right.”). Yet the Supreme Court has long
    recognized that a defendant can undo a guilty plea by showing that ineffective
    assistance caused him to make that decision rather than proceed to trial. Hill
    v. Lockhart, 
    474 U.S. 52
    , 56–57 (1985). The Court’s rejection of the view “that
    a knowing and voluntary plea supersedes error by defense counsel,” Missouri
    v. Frye, 
    566 U.S. 134
    , 141 (2012), reflects a realistic view of modern plea
    bargaining, which is influenced by a variety of structural and psychological
    forces in addition to traditional notions of risk assessment. See Stephanos
    Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463,
    2507–10 (2004). A defendant may even plead guilty while maintaining his
    innocence. North Carolina v. Alford, 
    400 U.S. 25
    (1970). As the Supreme Court
    has rejected the plea=waiver argument in the context of ineffective assistance
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    claims, it is hard to see how it has much force in the Brady context. 4 
    Lafler, 566 U.S. at 164
    .
    Another argument against applying Brady to pleas is that its materiality
    inquiry is often framed in terms of the impact the exculpatory information
    would have had on the trial. See Matthew v. Johnson, 
    201 F.3d 353
    , 361–62
    (5th Cir. 2000). 5 But the materiality standard sometimes refers more broadly
    to the effect on a “proceeding.” 
    Bagley, 473 U.S. at 682
    (“[E]vidence is material
    only if there is a reasonable probability that, had the evidence been disclosed
    to the defense, the result of the proceeding would have been different.”). That
    makes sense as Brady itself was a case about undisclosed evidence that
    required a new sentencing hearing but not a new 
    trial. 373 U.S. at 90
    –91. And
    looking to ineffective assistance case law is again instructive. Strickland’s
    prejudice requirement developed in tandem with the Brady materiality
    standard. In Bagley, the Court recognized it had “relied on and reformulated”
    the test for materiality from Brady cases (the Augers test) in 
    Strickland. 473 U.S. at 681
    –82. It then decided the same refined standard should apply in
    Brady cases, concluding “the Strickland formulation” was “sufficiently flexible
    to cover [all] cases of prosecutorial failure to disclose evidence favorable to the
    accused: [t]he evidence is material only if there is a reasonable probability that,
    had the evidence been disclosed to the defense, the result of the proceeding
    would have been different.” 
    Id. at 682.
    And as I have already noted, the
    Supreme Court recently rejected the argument that attorney errors “before
    4  Indeed, United States v. Ruiz, 
    536 U.S. 622
    (2002), which will be discussed in more
    depth later, did not use a waiver rationale in rejecting a right to impeachment evidence before
    a plea.
    5 It is worth noting that Matthew did not review de novo the question of Brady’s
    application to pleas. It was a habeas case so the holding was only that Teague v. Lane, 
    489 U.S. 288
    (1989), barred recognizing the right on collateral 
    review. 201 F.3d at 369-70
    .
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    trial . . . are not cognizable under the Sixth Amendment unless they affect the
    fairness of the trial itself.” 
    Lafler, 566 U.S. at 164
    –65. It concluded “the right
    to adequate assistance of counsel cannot be defined or enforced without taking
    account of the central role plea bargaining plays in securing convictions.” 
    Id. at 170.
    The materiality standard thus does not pose a problem because it is
    already applied in ineffective assistance cases to assess whether the absence
    of attorney error would have changed the plea decision. Armstrong v. Scott, 
    37 F.3d 202
    , 206 (5th Cir. 1994); see also 
    Huebler, 275 P.3d at 203
    (applying to a
    defendant who pleaded a Brady materiality standard asking “whether there is
    a reasonable probability that but for the failure to disclose the Brady material,
    the defendant would have refused to plead and would have gone to trial”). It
    would be anomalous if the Strickland right that is found in the trial-focused
    Sixth Amendment applied to pleas but the due process Brady right did not.
    The Department of Justice opposes a pre-plea Brady right in part
    because of its belief that such a rule “would impose serious costs on the
    criminal justice system” by making pleas less efficient. DOJ Amicus Brief 15.
    That concern is puzzling because, as it acknowledges, its own policy requires
    federal prosecutors to turn over exculpatory evidence “reasonably promptly
    after it is discovered.” UNITED STATES ATTORNEY’S MANUAL (USAM) § 9-
    5.001(D)(1). 6    Court rules in 20 federal judicial districts, including Local
    6  The U.S. Attorneys’ Manual distinguishes between exculpatory and impeachment
    evidence. As mentioned above, the former must be disclosed “promptly after it is discovered.”
    USAM § 9-5.001(D)(1). The latter must be disclosed “at a reasonable time before trial to
    allow the trial to proceed efficiently.” 
    Id. § 9-5.001(D)(2).
    That later in time disclosure of
    impeachment evidence may be further delayed if the benefits of pretrial disclosure are
    outweighed by “other significant interests—such as witness security or national security.”
    
    Id. The exception
    for early disclosure of exculpatory information is narrower, limited to
    “classified or otherwise sensitive national security material.” 
    Id. § 9-5.001(D)(1).
    This
    confirms that the costs of disclosing impeachment evidence pre-plea are greater than the
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    Criminal Rule 16 in the Western District of Texas which usually vies with the
    Southern District of Texas for the largest number of federal prosecutions each
    year, impose a more definite early disclosure requirement: Brady material
    must be disclosed within two weeks of arraignment, which in almost every case
    will be before a plea is entered.            FEDERAL JUDICIAL CENTER, BRADY V.
    MARYLAND IN THE UNITED STATES DISTRICT COURTS: RULES, ORDERS, AND
    POLICIES 16 (2007) (table listing 20 districts that require Brady disclosures
    within two weeks of arraignment or when the defendant enters a “not guilty
    plea”). And ethical rules in a number of states, including all three that make
    up this circuit, require the same of prosecutors. TEX. DISCIPLINARY R. PROF’L
    CONDUCT § 3.09(d) (1989); LA. R. PROF’L CONDUCT § 3.08(d) (2004); MISS. R.
    PROF’L CONDUCT § 3.08(d) (all based on Rule 3.8 of the American Bar
    Association’s Rules of Professional Conduct). 7 Indeed, DOJ cites its policy and
    the ethical rules as reasons why applying Brady to pleas is unnecessary. But
    if these policies and rules of professional responsibility are resulting in early
    disclosure of exculpatory evidence, wouldn’t that impose the same costs that a
    corresponding Brady right would? The source of the disclosure obligation
    shouldn’t change the cost of compliance.                What is different is that a
    constitutional obligation provides the defendant with a remedy when a
    prosecutor fails to comply due to either negligence or malice. A violation of
    DOJ, court, or ethical rules would not have helped Alvarez when he learned
    costs of disclosing exculpatory information, a factor that distinguishes the Supreme Court’s
    Ruiz decision from the question we confront. See infra p. 10–11.
    7 MODEL RULES OF PROF’L CONDUCT R. 3.8(D) (2012) (requiring prosecutors to “make
    timely disclosure to the defense of all evidence or information known to the prosecutor that
    tends to negate the guilt of the accused or mitigates the offense”); ABA COMM. ON ETHICS
    AND PROF’L RESPONSIBILITY, Formal Op. 09-454 (2009) (clarifying that disclosure must be
    made pre-plea to satisfy “significant purpose” of assisting defendants in making intelligent
    plea-bargaining decisions).
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    about the undisclosed video. See USAM § 1-1.100 (explaining that the U.S.
    Attorney’s Manual does not create any rights enforceable in court).
    But we do not have to guess whether requiring pre-plea disclosure of
    exculpatory evidence as a constitutional matter would inhibit plea bargaining.
    We can look to experience, as a number of jurisdictions have such a rule. See
    
    Lafler, 566 U.S. at 164
    , 172 (discounting administrability and “floodgate”
    concerns about applying ineffective-assistance-of-counsel claims to the
    rejection of plea agreements because a number of circuits had already done so
    “without demonstrated difficulties or systemic disruptions”); cf. Jeffrey S.
    Sutton, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN
    CONSTITUTIONAL LAW 2 (observing that when state courts have recognized a
    right under state constitutions, their experience can influence administrability
    concerns with recognizing a corresponding right under federal law). Since
    1979, Texas state courts have read the Due Process Clause to require
    disclosure of exculpatory evidence to defendants who plead guilty. A number
    of other states read Brady the same way. See Buffey v. Ballard, 
    782 S.E.2d 204
    , 216 (W. Va. 2015); State v. Huebler, 
    275 P.3d 91
    , 96–97 (Nev. 2012);
    Hyman v. State, 
    723 S.E.2d 375
    , 380 (S.C. 2012); Medel v. State, 
    184 P.3d 1226
    ,
    1235 (Utah 2008); State v. Gardner, 
    885 P.2d 1144
    , 1149 (Idaho Ct. App. 1994).
    Some federal circuits have also applied Brady to plea cases either before or
    after the Supreme Court’s decision in Ruiz. See Campbell v. Marshall, 
    769 F.2d 314
    , 324 (6th Cir. 1985); White v. United States, 
    858 F.2d 416
    , 422 (8th
    Cir. 1988); Sanchez v. United States, 
    50 F.3d 1448
    , 1453 (9th Cir. 1995); United
    States v. Avellino, 
    136 F.3d 249
    , 255 (2d Cir. 1998); United States v. Ohiri, 133
    F. App’x 555, 560–61 (10th Cir. 2005). Yet these decisions have not impeded
    ever-rising rates of pleas. In recent years, roughly 97% of federal convictions
    were the result of a plea. 
    Lafler, 566 U.S. at 170
    . 94.6% of Texas cases were
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    resolved via plea in 2016. OFFICE OF COURT ADMIN., ANNUAL STATISTICAL
    REPORT OF THE TEXAS JUDICIARY: FY 2016 at Detail-10 (2016); available at
    http://bit.ly/2mcF9vp. In terms of the trend, recent decades have seen a 10-
    25% increase in the percentage of convictions obtained through pleas.
    Compare 
    Lafler, 566 U.S. at 170
    (reporting that “ninety-four percent of state
    convictions are the result of guilty pleas”), with Brady v. United States, 
    397 U.S. 742
    , 752 n.10 (1970) (estimating that between 75 and 85% of all felony
    convictions were pleas). The rise of the plea is seemingly inexorable and there
    is no reason to believe that a pre-plea Brady rise gets in its way.
    There is one other problem with DOJ’s concerns about the workability of
    a pre-plea Brady requirement.      From the beginning, the Brady right has
    covered information that might be favorable to a defendant at sentencing. So
    as the government conceded at oral argument, a plea does not excuse its
    obligation to disclose any evidence in the prosecution’s file that might mitigate
    the defendant’s sentence. This means it is not a matter of whether exculpatory
    information is produced but when—either before the plea or after the plea but
    before sentencing. See USAM § 9-5.001(D)(3) (requiring the production of
    “[e]xculpatory and impeachment information that casts doubt upon proof of an
    aggravating factor at sentencing” when the presentence investigation begins).
    Because at some point in a federal prosecution “the government would have to
    search the files of all members of the prosecution team for potentially
    exculpatory material,” DOJ Br. 16, there is little added burden of requiring
    that production at an earlier point in the case.
    For all these reasons, there is little evidence suggesting that our court’s
    following the Brady rule that many other jurisdictions already apply would
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    create any meaningful obstacle to plea bargaining. 8 But even if it did, query
    whether a system in which 97% of defendants plead guilty is already placing
    to great a premium on the need for speedy pleas at the expense of the truth-
    finding function of the courts. See BIBAS, Plea Bargaining’s Role in Wrongful
    Convictions, at 157 (critiquing modern plea bargaining because it “put[s]
    efficiency ahead of accuracy”).
    That leaves United States v. Ruiz, 
    536 U.S. 622
    (2002). It held the
    government is not required to disclose “impeachment information relating to
    any informants or other witnesses” prior to entering a plea agreement. 
    Id. at 625.
    Ruiz did not present the question of exculpatory evidence because the
    government agreed in the plea agreement to turn over “any [known]
    information establishing the factual innocence of the defendant.” 9 
    Id. at 625;
    see also 
    id. at 629
    (“We must decide whether the Constitution requires that
    preguilty plea disclosure of impeachment information.”). Indeed, in conducting
    a due process balancing test to determine whether there was a right to pre-
    plea impeachment evidence, the Court explained that the agreement to give
    Ruiz exculpatory evidence “diminish[ed]” the risk that “in the absence of
    impeachment information, innocent individuals, accused of crimes, w[ould]
    plead guilty.” 
    Id. at 631.
    If Brady does not apply as a categorical matter to
    defendants who plead guilty, saying just that in Ruiz would have resulted in a
    much simpler and shorter opinion. That was the approach of Justice Thomas’s
    8 A pre-plea Brady right might also apply on when the defendant requests discovery,
    which would further mitigate any costs on the system. Alvarez made that request.
    9 Notably, the federal government asked the Court to decide the broader question of
    whether defendants who plead have a right to exculpatory information. Brief for the United
    States, United State v. Ruiz, at I (“Questions Presented: 1. Whether before pleading guilty, a
    criminal defendant has a constitutional right to obtain material exculpatory information,
    including impeachment information, from the prosecution.”). But the Court did not accept
    that invitation.
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    one-paragraph concurring opinion that no other justice joined. See 
    id. at 633–
    34 (Thomas, J., concurring).
    Instead the Court applied the balancing test. On the benefit side of that
    equation, it explained that impeachment evidence has value in terms of the
    “fairness of a trial” but not to whether a plea was knowing and intelligent. 
    Id. at 629.
       Impeachment evidence is not “critical information,” it further
    explained, as its relevance may become clear only in the context of a trial. 
    Id. at 630.
    Until trial, for example, a defendant may not know if the government
    will call the witness who has the credibility problems.          The less direct
    connection of impeachment evidence to the ultimate “guilt or innocence”
    question is reflected in the fact that it took nearly a decade for the Supreme
    Court to confirm that Brady included an obligation to disclose even at trial
    “evidence affecting [witness] credibility.” Giglio v. United States, 
    405 U.S. 150
    ,
    154 (1972). Exculpatory evidence—that which goes directly to the “factual
    innocence of the defendant,” 
    Ruiz, 536 U.S. at 631
    , and is valuable on its face
    without requiring independent knowledge of the prosecutor’s trial strategy—
    has much greater value as Ruiz recognizes when it observes that its disclosure
    meant there was not much additional benefit to be gained from also disclosing
    impeachment evidence before a plea. 
    Id. at 631.
    Production of exculpatory
    evidence provides a greater safeguard against innocent defendants pleading
    guilty, both because it informs innocent defendants they have a substantial
    chance of showing their innocence at trial as opposed to just casting doubt on
    government witnesses and because prosecutors required to provide such
    evidence lose the incentive to push for guilty pleas to obscure weak cases. See
    
    Huebler, 275 P.3d at 97
    –98 (“While the value of impeachment information may
    depend on innumerable variables that primarily come into play at trial and
    therefore arguably make it less than critical information in entering a guilty
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    plea, the same cannot be said of exculpatory information, which is special not
    just in relation to the fairness of a trial but also in relation to whether a guilty
    plea is valid and accurate.”).
    That latter point recognizes a serious risk of requiring Brady disclosures
    only when a case is tried: it incentivizes prosecutors to offer favorable pleas in
    cases with exculpatory evidence. That is already the type of case in which a
    prosecutor’s desire for a plea agreement is strongest. Bibas, Plea Bargaining
    in the Shadow of 
    Trial, supra, at 2473
    (explaining that self-interest leads
    prosecutors to “make irresistible offers in weak cases”). Without a Brady
    requirement, there is an additional benefit from pleading out a weak case: the
    plea prevents the defendant from being able to undo the conviction if he later
    discovers that the government possessed exculpatory evidence. 
    Sanchez, 50 F.3d at 1435
    (“[I]f a defendant may not raise a Brady claim after a guilty plea,
    prosecutors may be tempted to deliberately withhold exculpatory information
    as part of an attempt to elicit guilty pleas.”); see also United States v. Fisher,
    
    711 F.3d 460
    , 469 (4th Cir. 2013); United States v. Nelson, 
    979 F. Supp. 2d 123
    ,
    130 (D.D.C. 2013). This is on top of the interest prosecutors already have to
    resolve their weakest cases with a plea agreement.
    The cost side of the Ruiz balancing inquiry is also less favorable to the
    government when it comes to exculpatory evidence. The primary problem the
    Court saw with pre-plea disclosure of Giglio evidence was requiring the
    government to identify the witnesses it would call at a trial that would never
    happen because of the plea. This interfered with the rules governing disclosure
    of witnesses, posed risks of revealing the identities of informants and
    undercover agents, and eliminated some of the time savings that pleas
    typically bring by avoiding trial prep.        Ruiz, 536 at 631–32.        Indeed,
    prosecutors often do not even learn about credibility problems with
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    witnesses—by running criminal background checks for example—until they
    have come up with their witness list. In contrast, prosecutors generally are
    aware of any evidence they possess that suggests a defendant’s innocence by
    the time they enter into plea negotiations if not earlier when they bring
    charges.
    The final proof that Ruiz did not decide the question of pre-plea
    disclosure of exculpatory evidence—and that the result might be different for
    this category—are the cases that have come after it. Soon after Ruiz, the
    Seventh Circuit predicted that “it is highly likely that the Supreme Court
    would find a violation of the Due Process Clause if prosecutors or other
    relevant government actors have knowledge of a criminal defendant’s factual
    innocence but fail to disclose such information to a defendant before he enters
    into a guilty plea.” McCann v. Mangialardi, 
    337 F.3d 782
    , 788 (7th Cir. 2003).
    It recognized that “Ruiz indicates a significant distinction between
    impeachment information and exculpatory evidence of actual innocence,”
    though the Seventh Circuit did not ultimately decide the question because
    there was insufficient evidence that the government suppressed the evidence
    in that case. 
    Id. at 787.
    The Tenth Circuit, again noting a critical distinction
    between exculpatory evidence and the impeachment evidence in Ruiz, did
    decide the question in favor of a right of pleading defendants to exculpatory
    evidence. See United States v. Ohiri, 133 F. App’x 555, 562 (10th Cir. 2005).
    So have a number of federal district courts. 
    Nelson, 979 F. Supp. 2d at 130
    (“[I]n light of the balance of circuit court precedent and the purpose of Brady,
    Nelson can assert his Brady claim to argue that his guilty plea was not
    knowing and voluntary”); United States v. Danzi, 
    726 F. Supp. 2d 120
    , 128 (D.
    Conn. 2010) (declining “the Government’s invitation to hold that Ruiz applies
    to exculpatory as well as impeachment material”); Ollins v. O’Brien, 
    2005 WL 56
        Case: 16-40772       Document: 00514646077          Page: 57     Date Filed: 09/18/2018
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    730987, *11 (N.D. Ill. 2005) (“[T]he Court finds the Ruiz distinction . . .
    persuasive and holds that due process requires the disclosure of information of
    factual innocence during the plea bargaining process.”). To be sure, other
    courts of appeals, while recognizing that Ruiz did not decide the question, have
    read it as casting doubt on the existence of a pre-plea right even to exculpatory
    evidence though none has done as we have and actually rejected that right.
    Friedman v. Rehal, 
    618 F.3d 142
    , 154 (2d Cir. 2010) (explaining that “Ruiz did
    not expressly abrogate [its prior caselaw] as applied to all Brady material” but
    noting it creates uncertainty about whether exculpatory material needed to be
    produced pre-plea); United States v. Moussaoui, 
    591 F.3d 263
    , 285 (4th Cir.
    2010), as amended (Feb. 9, 2010) 10; cf. United States v. Mathur, 
    624 F.3d 498
    ,
    507 (1st Cir. 2010) (emphasizing Brady is a trial right and observing “[t]he
    Ruiz Court evinced a reluctance to extend a Brady-like right to the realm of
    pretrial plea negotiations” in a case when a defendant went to trial but argued
    that if he had been provided exculpatory material before trial he would have
    pleaded guilty).
    And we should not make the common mistake of treating federal
    decisions as the universe of caselaw on this issue. Our state court peers also
    interpret the federal Constitution. Four state supreme courts have held since
    Ruiz that the federal Brady right applies to exculpatory evidence at the plea
    phase, and the Texas Court of Criminal Appeals has reaffirmed its long ago
    adoption of that view.        
    Buffey, 782 S.E.2d at 216
    (“[T]he better-reasoned
    authority supports the conclusion that a defendant is constitutionally entitled
    10 In a more recent decision the Fourth Circuit allowed a defendant to vacate a guilty
    plea when he later learned that law enforcement had lied in applying for a search warrant
    that led to evidence of guilt. 
    Fisher, 711 F.3d at 460
    . It did so not on Brady grounds, but on
    the ground that the suppression of that information made the plea unknowing. 
    Id. at 471.
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    to exculpatory evidence during the plea negotiation stage.”); 
    Hyman, 723 S.E.2d at 380
    (noting that an applicant can challenge the “voluntary nature of
    a guilty plea” by asserting a Brady violation); 
    Huebler, 275 P.3d at 96
    –97
    (concluding that “the due-process calculus also weighs in favor of the added
    safeguard of requiring the State to disclose material exculpatory information
    before the defendant enters a guilty plea”); 
    Medel, 184 P.3d at 1235
    (providing
    the requirements for a guilty plea to be rendered involuntary based on a Brady
    violation); Johnson, 
    2009 WL 1396807
    , at *1; (vacating a guilty plea because
    of a Brady violation); 
    id. at *1–*2
    (Cochran, J. concurring) (explaining that
    “Ruiz, by its terms, applies only to material impeachment evidence”); see also
    State v. Kenner, 
    900 So. 2d 948
    , 952–53 (La. App. 4 Cir. 2005), reversed on other
    grounds, 
    917 So. 2d 1081
    (La. 2005). No state high court has ruled the other
    way. See WAYNE LAFAVE, ET AL. 5 CRIM. PROC. § 21.3(c) (4th ed. 2015) (noting
    that “certainly the better view” is of those courts that require Brady disclosure
    of exculpatory evidence to defendants who plead).
    The facts from one of those state court cases highlights the stakes of
    this issue and the dynamics that can lead an innocent person to plead guilty.
    Joseph Buffey was 19 when he was arrested for three breaking-and-entering
    offenses of businesses. 
    Buffey, 782 S.E.2d at 207
    . The week before his arrest,
    an intruder had robbed and brutally raped an 83-year-old woman in the same
    town. 
    Id. at 206.
    During an interrogation that lasted nine hours, Buffey at
    first repeatedly denied that he committed the robbery and sexual assault. 
    Id. at 207.
    Hours into the questioning, and past 3:00 in the morning, he told the
    officers he had broken into “[t]his old lady’s house” but said he could not recall
    any assault. 
    Id. When the
    officers later told him he should be able to recall
    more details, Buffey recanted saying “You really want to know the truth? . . . I
    didn’t do it.” 
    Id. He explained
    that he had only confessed to breaking into the
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    house because an officer was “breathing down my neck” and “I couldn’t tell you
    what went on in there.” 
    Id. After Buffey
    was charged with the rape, the state forensic lab tested
    DNA from the victim’s rape kit. 
    Id. at 208.
    It issued a report stating that
    “assuming there are only two contributors (including [Mrs. L]), Joseph Buffey
    is excluded as the donor of the seminal fluid identified [from the rape kit]
    cuttings.” 
    Id. (brackets in
    original). Although Buffey’s counsel had filed a
    motion for production of all materials related to the assault, the prosecutor
    never disclosed the forensic report. 
    Id. Having made
    at least a partial confession to the crimes, Buffey accepted
    a time-limited offer to plea to the robbery and sexual assault counts in
    exchange for the state dropping the three charges for burglary of a business.
    
    Id. at 209.
    The court accepted Buffey’s plea six weeks after the lab determined
    that the DNA was not his. 
    Id. at 208–09.
          The court sentenced Buffey to a
    total term of 70-100 years in prison. 
    Id. at 209.
          After Buffey had spent eight years in prison, a court granted his request
    for DNA testing in a habeas motion. 
    Id. at 210.
    The results exonerated Buffey,
    and he also learned that the government knew of similar results in 2002 before
    the court accepted his plea. 
    Id. Because the
    state supreme court acknowledged
    a right to exculpatory evidence even for defendants who pleaded guilty, Buffey
    did not have to spend the rest of his life in prison. 
    Id. at 221.
    And a DNA
    match was finally made to the person who had committed the rape, someone
    with a history of sexual violence living a few blocks from the victim who was
    not arrested in 2002 because Buffey had been wrongfully convicted. 
    Id. at 210.
          This “double injustice”—because it resulted in “convicting the innocent
    and freeing the guilty,” Amicus Br. for National Association of Criminal
    Defense Lawyers 13—is not an isolated event. An amicus brief from a group
    59
    Case: 16-40772    Document: 00514646077     Page: 60   Date Filed: 09/18/2018
    No. 16-40772
    of former federal and state prosecutors notes that the National Registry of
    Exonerations has identified 73 Americans who pleaded guilty to murder or
    manslaughter but were later exonerated.         See NATIONAL REGISTRY OF
    EXONERATIONS, available at www.law.umich.edu/special/exoneration/Pages/
    detaillist.aspx (searching for “P,” pleas, and those offenses lists 54
    exonerations for defendants who pleaded guilty to murder and 19 for
    manslaughter). And more than 10% of the 353 Americans whom the Innocence
    Project has helped exonerate through DNA evidence pleaded guilty.          THE
    INNOCENCE PROJECT, DNA Exonerations in the United States, available at
    www.innocenceproject.org/dna-exonerations-in-the-united-states (noting that
    40 of 358 exonerees pled guilty). Scholars believe false guilty pleas are even
    more common for less serious offenses when the cost-benefit analysis makes a
    plea that results in a minor sentence enticing. John H. Blume & Rebecca K.
    Helm, The Unexonerated: Factually Innocent Defendants Who Plead Guilty,
    100 CORNELL L. REV. 157, 173 (2014); see also Bibas, Plea Bargaining Outside
    the Shadow of 
    Trial, supra, at 2495
    (explaining that “[p]rosecutorial bluffing
    is likely to work particularly well against innocent defendants, who are on
    average more risk averse than guilty defendants”); Samuel R. Gross & Barbara
    O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little
    and New Data on Capital Cases, 5 J. EMPIRICAL LEGAL STUD. 927, 930 (2008)
    (“[I]t is entirely possible that most wrongful convictions . . . are based on
    negotiated guilty pleas to comparatively light charges.”).      Alvarez is an
    example. He elected to plead guilty and accept a suspended sentence of eight
    years with ten years probation rather than risk a trial where he faced
    mandatory prison time if convicted. Of course, because he violated the terms
    of probation he ended up going to prison, only to be saved from serving a full
    sentence when the video was discovered.
    60
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    No. 16-40772
    Judicial opinions often extol liberty. As well they should when applying
    a Constitution that begins with a promise to “secure the Blessings of Liberty
    to ourselves and our Posterity” and prohibits both federal and state
    governments from depriving a person of that liberty without due process of
    law. U.S. CONST. Preamble, amends. V, XIV. 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.
    That tragic situation offends the “twofold aim” of our justice system, “which is
    that guilt shall not escape or innocence suffer.” Berger v. United States, 
    295 U.S. 78
    , 88 (1935). Due process requires more than we afford the accused
    today.
    61
    

Document Info

Docket Number: 16-40772

Citation Numbers: 904 F.3d 382

Filed Date: 9/18/2018

Precedential Status: Precedential

Modified Date: 1/12/2023

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