In re JASMINE JENKINS on Habeas Corpus.
S267391
IN THE SUPREME COURT OF CALIFORNIA
March 27, 2023
Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Evans concurred.
Opinion of the Court by Guerrero, C. J.
After a jury found her guilty of voluntary manslaughter, Jasmine Jenkins appealed and filed a petition for writ of habeas corpus in the Court of Appeal. In the writ petition, she claimed the prosecution had suppressed evidence at trial in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Specifically, Jenkins alleged the People had suppressed evidence that the victim and a key witness had previously been prosecuted for aggravated assault arising from an incident that occurred 12 years earlier, which Jenkins asserted would have supported her claim of self-defense. To support her allegations, Jenkins attached as an exhibit an appellate court opinion downloaded from LexisNexis that apparently referred to the prior prosecution.
The Attorney General filed an informal response and, after the Court of Appeal issued an order to show cause, submitted a brief in support of his return, arguing Jenkins had failed to present sufficient evidence of the prior case forming the basis of her Brady claim. In particular, the Attorney General argued that the appellate opinion was “nothing but an apparent printout of an unspecified and unverified Internet source.”
The Court of Appeal assumed the opinion from the prior case referred to the victim and the witness, but it concluded the evidence of prior prosecution was not material under Brady and denied Jenkins‘s petition for writ of habeas corpus.
We conclude that the Attorney General has both a constitutional and an ethical duty to disclose evidence in response to a petition for writ of habeas corpus alleging a Brady violation under certain specified circumstances. In addition, we conclude that the respondent to such a petition has a duty to disclose evidence forming the basis of the Brady claim under circumstances that we describe. We explain how these duties may be performed when, as in this case, the evidence forming the basis of the Brady claim in a petition for writ of habeas corpus is subject to statutory disclosure restrictions. Finally, we apply these conclusions in Jenkins‘s case and reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with this opinion.
I.
A.
At the time of the incident giving rise to her manslaughter conviction, Jenkins was dating Kayuan Mitchell.1 Victim Brittneeh Williams (Brittneeh)2 and Mitchell had a daughter together.
One evening in January 2018, Mitchell and Brittneeh got into a fight during which Mitchell assaulted Brittneeh. Jenkins arrived at the scene of the fight and taunted Brittneeh. Mitchell got into Jenkins‘s car and Jenkins started to drive away. After phoning her sister, Sade Williams (Sade), Brittneeh drove after Jenkins and Mitchell.
During the car chase, Jenkins complied with Mitchell‘s direction to pull into a gas station. Brittneeh also pulled into the gas station. Brittneeh came
As Mitchell and Brittneeh continued to fight, Jenkins exited her car with a large kitchen knife and became involved in the fight. Jenkins stabbed Brittneeh three times with the knife, killing her, just as Sade arrived at the scene. Sade testified that Jenkins stabbed Brittneeh while Mitchell held Brittneeh in a bear hug.
A jury acquitted Jenkins of murder but convicted her of voluntary manslaughter. The trial court sentenced her to 11 years in prison.
B.
Jenkins appealed. While her appeal was pending, Jenkins filed a petition for writ of habeas corpus in the Court of Appeal.
As relevant here, in her petition for writ of habeas corpus, Jenkins claimed that the trial prosecutor suppressed material exculpatory evidence in violation of her right to due process. Specifically, Jenkins alleged the prosecutor failed to disclose that the prosecutor‘s office had, in 2006, successfully prosecuted Brittneeh and Sade for aggravated assault with hate crime and infliction of great bodily injury enhancements.3 As to Brittneeh, Jenkins maintained that evidence of Brittneeh‘s prior commission of violence would have been admissible to demonstrate her character for violence and support Jenkins‘s claim of self-defense. As to Sade, Jenkins contended that the suppressed evidence would have been admissible for impeachment purposes, both as evidence of prior acts of moral turpitude and as evidence that Sade had lied to the jury when she had testified at Jenkins‘s trial that Brittneeh had never previously acted like a “bully.”
Along with her petition, among other exhibits, Jenkins filed a declaration from her trial counsel supporting her contention that the prosecutor suppressed the evidence. In his declaration, trial counsel stated that Jenkins‘s postconviction counsel had recently provided him with a Court of Appeal opinion that “describes how the Williams sisters, both Sade and Brittneeh, brutally attacked three people without provocation, leaving them injured and concussed.” Trial counsel stated, “I did not know anything about that case.”
Attached to trial counsel‘s declaration was the Court of Appeal opinion (People v. Emerald R. (Mar. 4, 2010, B196643) [nonpub. opn.] (Emerald R.)),
The Court of Appeal ordered Jenkins‘s petition for writ of habeas corpus to be considered with her appeal, solicited an informal response to the petition, and permitted Jenkins to file a reply to the informal response.
The Attorney General filed an informal response arguing that Jenkins had not stated a prima facie case for relief because she “offered no competent evidence that either [Brittneeh] or [Sade] suffered the adjudications [Jenkins] cite[d], . . . offer[ed] no evidence that the prosecutor failed to disclose them, and . . . ha[d] not demonstrated how these prior adjudications were material or favorable to her.”
In support of the first argument, the Attorney General, citing People v. Duvall (1995) 9 Cal.4th 464, 474-475 (Duvall), stated in part: “Exhibit B, Attachment B[, the Emerald R. opinion,] is nothing but an apparent printout of an unspecified and unverified Internet source suggesting a direct appeal opinion in which minors ‘Brit. W.’ and ‘Sade W.’ are listed as defendants, among others. Because [Jenkins] has not provided sufficient evidence to show Brittneeh or Sade were the minors named, she has already failed to show a prima facie case for relief.”
In her reply to the informal response, Jenkins objected to the Attorney General‘s refusal to acknowledge whether Brittneeh and Sade were among the wards in Emerald R., stating in part: “[The Attorney General‘s4] approach in this case is deeply concerning — perhaps even more concerning than the prosecutor‘s failure to disclose this past case, which very well may have been inadvertent. Here, [Jenkins] alleged that the state suppressed
“However, as the chief law enforcement officer of the state, [the Attorney General] has access to Brittneeh‘s criminal history. (See
“If anyone knows whether this case involves Brittneeh Williams — or someone else the same age, from the same county, who is named Brit. W., with a sister named Sade W., who faced the same charges around the same time — it is [the Attorney General]. He should say so.”
Jenkins added that any factual dispute as to whether Brittneeh and Sade were, in fact, two of the wards in Emerald R. was not a reason to deny the petition for writ of habeas corpus prior to the issuance of an order to show cause. She argued that the Court of Appeal instead “should issue an Order to Show Cause, obtain formal pleadings — where the state can admit or deny in a verified answer whether Brittneeh was or was not the defendant in the prior assault case that [the Attorney General‘s] own office handled — and order an evidentiary hearing in the unlikely event that a factual dispute remains after respondent answers this allegation under penalty of perjury.”
The Court of Appeal issued an order to show cause. The Attorney General filed a two-paragraph return on behalf of respondent that provided in relevant part: “Respondent alleges that [Jenkins] is not entitled to relief because the prosecutor did not violate Brady . . . by failing to disclose [Brittneeh‘s] and [Sade‘s] purported prior juvenile adjudications for an incident that occurred in 2006 because [the prosecutor] did not suppress such evidence and such evidence was not material . . . .”
In a brief in support of the return, the Attorney General reiterated Jenkins had not demonstrated that either Brittneeh or Sade “were the minors in [Emerald R.],” repeating the argument first provided in the informal response that “Exhibit B, Attachment B is nothing but an apparent printout of an unspecified and unverified Internet source suggesting a direct appeal opinion in which minors ‘Brit. W.’ and ‘Sade W.’ are listed as defendants, among others.” The Attorney General also argued that, even assuming Brittneeh and Sade were among the wards in Emerald R., Jenkins had not “shown that the prosecutor suppressed these prior adjudications.” Finally, the Attorney General argued, also in the alternative, that Jenkins had failed to show any of the allegedly suppressed evidence was material.
Along with her traverse, Jenkins filed a brief that argued, “[L]est there be any real question as to whether this case involved someone other than the Williams sisters, petitioner is attaching to this Memorandum . . . a 2007 news article from the Long Beach Press Telegram . . . describing how teenaged ‘sisters Brittneeh and Sade Williams . . .’ and others were ‘convicted of assault’ for ‘beating three . . . women . . .’ on ‘Halloween night.‘” Jenkins filed the quoted article as well as the Emerald R. opinion, this time downloaded from Westlaw. The newspaper article states that Brittneeh and Sade Williams were among the minors involved in an incident that appears to form the basis of the offenses described in the Emerald R. opinion.
The Court of Appeal affirmed Jenkins‘s manslaughter conviction and denied her petition for writ of habeas corpus. Regarding the petition for writ of habeas corpus, the Court of Appeal began its analysis by stating, “In 2006, the Williams sisters, both juveniles, were declared wards of the court due to their having committed three hate-crime assaults with force likely to produce great bodily injury. [Emerald R., supra, B196643.]” Following this statement, the Court of Appeal included a footnote that provides: “The juveniles in [Emerald R.], are referred to as ‘Brit. W.’ and ‘Sade W.‘, which [r]espondent contends fails to establish they were the Williams sisters here. That is a fair point, but for present purposes we will assume Brit. W. and Sade W. were Brittneeh and Sade Williams.”
The Court of Appeal explained that Jenkins contended the prosecutor violated her constitutional right to due process pursuant to Brady and its progeny by failing to disclose the adjudications before trial. According to the
After assuming that the prosecutor should have disclosed the adjudications and that they would have been admissible at trial, the Court of Appeal concluded that Jenkins‘s Brady claim failed because “there is no reasonable probability that disclosure of the 2006 adjudication[s] would have altered the outcome of trial.”
C.
Jenkins filed a petition for review of the Court of Appeal‘s denial of the writ petition. The Attorney General filed an answer stating he had no “obligation to provide additional evidence confirming that Brittneeh and Sade had, in fact, suffered the prior juvenile adjudications.”
We granted Jenkins‘s petition for review and limited the issue to be briefed and argued to the following: “Where a habeas petitioner claims not to have received a fair trial because the District Attorney failed to disclose material evidence in violation of Brady . . . — and where the Attorney General has knowledge of, or is in actual or constructive possession of, such evidence — what duty, if any, does the Attorney General have to acknowledge or disclose that evidence to the petitioner? Would any such duty be triggered only upon issuance of an order to show cause?”
II.
Jenkins claims the Attorney General cannot constitutionally or ethically suppress exculpatory evidence relevant to a habeas corpus petitioner‘s Brady claim that the Attorney General knows, or reasonably should know, he possesses. She argues further that the Attorney General must disclose such evidence in his possession upon the filing of a habeas corpus petitioner‘s verified allegations alleging its existence.
We consider the Attorney General‘s constitutional duty to disclose alleged Brady evidence in habeas corpus proceedings in part II.A., post, and his ethical duty to disclose such evidence in part II.B., post. In part II.C., post, we consider the duties of the respondent to a petition for writ of habeas corpus alleging a Brady claim that arise from the procedural law governing such petitions. In part II.D., post, we consider how the Attorney General and the respondent may carry out these duties in a case, such as this, in which the alleged Brady evidence consists of juvenile records subject to statutory
A.
Jenkins contends the due process clause of the Fourteenth Amendment to the federal Constitution prohibits the Attorney General from defending a Brady claim by “[s]uppressing the [s]ame [e]vidence the [trial] [p]rosecutor [s]uppressed.”5
“The Fourteenth Amendment to the federal Constitution prohibits states from denying any person due process of law. This guarantee of due process affords criminal defendants the right to a fair trial, ‘impos[ing] on States certain duties consistent with their sovereign obligation to ensure “that justice shall be done.“‘” (Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 39 (Deputy Sheriffs), quoting Cone v. Bell (2009) 556 U.S. 449, 451 (Cone).)
“Prosecutors, as agents of the sovereign, must honor these obligations.” (Deputy Sheriffs, supra, 8 Cal.5th at p. 39.) “‘A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.‘” (People v. Hill (1998) 17 Cal.4th 800, 820; accord, Banks v. Dretke (2004) 540 U.S. 668, 696 (Banks) [“We have several times underscored the ‘special role played by the American prosecutor in the search for truth in criminal trials‘“].)
One special obligation that a prosecutor bears under our system pertains to the disclosure of evidence favorable to a defendant. That duty “trace[s] its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with [the United States Supreme] Court‘s decision in Brady . . . .” (Kyles v. Whitley (1995) 514 U.S. 419, 432 (Kyles).) “Under Brady, supra, 373 U.S. 83, and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence.” (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709 (Johnson).) “‘The obligation is not
We have not previously had occasion to consider the Attorney General‘s duty, if any, under Brady and its progeny to disclose evidence forming the basis of a habeas corpus petitioner‘s Brady claim. However, numerous courts in other jurisdictions “have held that when state investigators or prosecuting officers know of favorable evidence before or during a defendant‘s trial, the State‘s duty to disclose the evidence continues to posttrial proceedings that are determinative of guilt or innocence.” (State v. Harris (Neb. 2017) 893 N.W.2d 440, 454 (Harris); see, e.g., Whitlock v. Brueggemann (7th Cir. 2012) 682 F.3d 567, 588 (Whitlock) [“As we explained at length before, Brady and its progeny impose an obligation on state actors to disclose exculpatory evidence that is discovered before or during trial. See [Steidl v. Fermon (7th Cir. 2007)] 494 F.3d [623,] 627-630. This obligation does not cease to exist at the moment of conviction“]; High v. Head (11th Cir. 2000) 209 F.3d 1257, 1264, fn. 8 [“The fact that the State had not provided High‘s trial counsel with the audiotape does not dictate that the State would not have given the audiotape to his first habeas counsel if he had made a specific request for that item. The State‘s duty to disclose exculpatory material is ongoing“]; Thomas v. Goldsmith (9th Cir. 1992) 979 F.2d 746, 749-750 [“We do not refer to the state‘s past duty to turn over exculpatory evidence at trial, but to its present duty to turn over exculpatory evidence relevant to the instant habeas corpus proceeding“]; Blumberg v. Garcia (C.D.Cal. 2009) 687 F.Supp.2d 1074, 1135 [“The prosecution‘s duty under Brady is a continuing one that extends through habeas proceedings“]; Canion v. Cole (Ariz. 2005) 115 P.3d 1261, 1262 [the state has a continuing Brady duty to disclose evidence that “comes to its attention” after sentencing]; see also Runningeagle v. Ryan (9th Cir. 2012) 686 F.3d 758, 772, fn. 6 [citing Canion].)
The Seventh Circuit‘s decision in Steidl v. Fermon, supra, 494 F.3d 623 (Steidl) is particularly instructive. In Steidl, a former prisoner brought a suit under
deprived him of a fair trial and led to his wrongful conviction. (Ibid.)
After the district court denied the defendants’ motion to dismiss based on qualified immunity, they filed an interlocutory appeal. (Steidl, supra, 494 F.3d at p. 625.) On appeal, the Steidl court “agree[d] with the district court that the Brady line of cases has clearly established a defendant‘s right to be informed about exculpatory evidence throughout the proceedings, including appeals and authorized post-conviction procedures, when that exculpatory evidence was known to the state at the time of the original trial.” (Ibid.) The Steidl court reasoned in part: “In our view, Brady, Ritchie,7 and the other cases in this line impose on the state an ongoing duty to disclose exculpatory information if, as Brady put it, that evidence is material either to guilt or to punishment and available for the trial. . . . For evidence known to the state at the time of the trial, the duty to disclose extends throughout the legal proceedings that may affect either guilt or punishment, including post-conviction proceedings. Put differently, the taint on the trial that took place continues throughout the proceedings, and thus the duty to disclose and allow correction of that taint continues. We cannot accept the implicit premise of the state‘s position here, which is that Brady leaves state officials free to conceal evidence from reviewing courts or post-conviction courts with impunity, even if that concealment results in the wrongful conviction of an
innocent person. It is worth recalling, in this connection, that the Brady rule was derived from the Due Process Clause of the Fourteenth Amendment. ‘Society wins,’ the Court wrote, ‘not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.’ [Brady, supra,] 373 U.S. at 87.” (Steidl, at p. 630.)
We find the Steidl court‘s reasoning persuasive and consistent with the principles underlying Brady and its progeny that we outlined ante, as well as case law referring to the government‘s obligations under Brady in the postconviction context.
Further, we note that Steidl may not be distinguished on the ground that it involved a police officer‘s duty under Brady, while, in this case, we
The Attorney General offers several arguments to support the contention that he does not have a duty to disclose evidence under Brady in the postconviction context. We consider each in turn. First, the Attorney General argues that “[t]here is no due process requirement that compels the Attorney General to disclose alleged Brady evidence at the outset of habeas litigation merely because a habeas petition raises a Brady claim.” We agree with the Attorney General insofar as he argues that a petitioner‘s allegations of a Brady violation do not determine the existence of the Attorney General‘s Brady duties.8 Where the evidence underlying a Brady habeas corpus claim would not have been subject to disclosure by the government prior to conviction — because, for example, such evidence was not favorable to the defendant and material — then the Attorney General has no Brady duty to disclose the evidence in postconviction proceedings.
However, just like a prosecutor at trial, it is also true that the Attorney General‘s determination as to whether the evidence is subject to disclosure under Brady also is not dispositive as to the existence of a constitutional duty. Therefore, it may be the case that the Attorney General “disclose[s] a favorable piece of evidence” in a case in which it is unclear whether Brady mandates disclosure. (Kyles, supra, 514 U.S. at p. 439; see Deputy Sheriffs, supra, 8 Cal.5th at p. 40.) “This is as it should be.” (Kyles, at p. 439.) Further, determining whether Brady applies to a piece of evidence may be easier in the postconviction context given that its materiality, or lack thereof, may be more apparent than it is before judgment. (Cf. Kyles, at pp. 438-439
The Attorney General also broadly suggests he has no duty under Brady in the postconviction context, even if the evidence at issue was favorable to the defendant and material, was available at trial, and was suppressed. He argues that the purpose of Brady is to “safeguard . . . the right to a fair trial,” and that “[w]hen a trial is over, Brady‘s disclosure command lacks purpose and dissipates.”
We generally agree with the Attorney General‘s assessment of Brady‘s purpose. But we disagree that relieving him of the disclosure requirements of Brady — in the context of a habeas corpus proceeding — serves that purpose. To understand why, we review the purpose of our state‘s habeas corpus proceedings: “The California Constitution has protected the right to seek relief by habeas corpus since our state‘s founding. [Citations.] Habeas corpus, we have explained, often represents a prisoner‘s ‘last chance to obtain judicial review’ of a criminal conviction. [Citation.] The law preserves this avenue to relief in service of principles of substantial justice: ’ “Despite the substantive and procedural protections afforded those accused of committing crimes, the basic charters governing our society wisely hold open a final possibility for prisoners to prove their convictions were obtained unjustly.” ’ ” (In re Friend (2021) 11 Cal.5th 720, 736 (Friend).)
The postconviction Brady obligation that we outline today supports the right to a fair trial and is fully compatible with the purpose of habeas corpus proceedings. Under Brady and its progeny, securing a conviction by failing to disclose material exculpatory evidence violates due process. (Brady, supra, 373 U.S. at p. 86; Johnson, supra, 61 Cal.4th at pp. 709-710.) Imposing a continuing duty of disclosure on the government in this context is consistent with both the due process right on which Brady is based, and the “principles of substantial justice” on which our state‘s long-standing habeas corpus tradition is founded. (Friend, supra, 11 Cal.5th at p. 736.)
The Attorney General also contends that, “It would be incongruous to graft Brady, a trial principle of constitutional criminal procedure, onto a postconviction civil proceeding with its own comprehensive procedural structure.” While it is true that “[a] habeas corpus proceeding is not a criminal action” (Maas v. Superior Court (2016) 1 Cal.5th 962, 975), and may be characterized as “‘civil in nature’ ” for some purposes (Briggs v. Brown (2017) 3 Cal.5th 808, 838), we have generally refrained from deciding “‘whether a habeas
Nor does the Attorney General cite any case from this court, or any other, holding that the government, in postconviction proceedings, lacks a duty to disclose Brady material that was available to the government at the time of trial. The primary authority the Attorney General relies on, District Attorney‘s Office for Third Judicial Dist. v. Osborne (2009) 557 U.S. 52 (Osborne), does not support the Attorney General‘s position. The defendant in Osborne sued Alaska officials in federal court alleging a violation of
The Osborne court acknowledged that the defendant had “a liberty interest in demonstrating his innocence with new evidence under state law.” (Osborne, supra, 557 U.S. at p. 68.) After discussing that state law, the Osborne court observed that a ” ‘state-created right can, in some circumstances, beget yetother rights to procedures essential to the realization of the parent right.’ ” (Ibid.) However, the Osborne court concluded that the Ninth Circuit “went too far . . . in concluding that the Due Process Clause requires that certain familiar preconviction trial rights be extended to protect Osborne‘s postconviction liberty interest.” (Ibid.) The Supreme Court explained that, unlike before trial when a defendant is entitled to the presumption of innocence, “[t]he State . . . has more flexibility in deciding what procedures are needed in the context of postconviction relief. ‘[W]hen a State chooses to offer help
While Osborne certainly “distinguish[es] between the pretrial and the posttrial obligation to provide exculpatory evidence” (Barnett v. Superior Court (2010) 50 Cal.4th 890, 906 (Barnett)), we do not understand Osborne as holding that the government lacks a duty to disclose, in the postconviction context, Brady evidence that was available prior to conviction. It is notable that Osborne repeatedly stated the evidence at issue in that case was unavailable at trial (see Osborne, supra, 557 U.S. at pp. 61, 62), unlike the present case. And the Osborne court‘s reason for declining to extend Brady to evidence discovered in the postconviction context — namely, that the defendant received “a fair trial” (id. at pp. 68, 69), also does not apply where the prosecution violates Brady at trial. (See, e.g., Cone, supra, 556 U.S. at pp. 459, 472 [determining that evidencethat had been “withheld from [the defendant] at trial” “deprived [him] of his right to a fair trial“].)
Other courts have similarly understood Osborne. In Whitlock, supra, 682 F.3d 567, the Seventh Circuit found no inconsistency between Osborne and its earlier conclusion in Steidl that a defendant has a ” ‘right to be informed about exculpatory evidence throughout the proceedings, including appeals and authorized post-conviction procedures, when that exculpatory evidence was known to the state at the time of the original trial.’ ” (Id. at p. 587, quoting Steidl, supra, 494 F.3d at p. 625.) The Whitlock court explained that the defendant police officials “read Osborne too broadly. Osborne rejected a claim that Alaska‘s procedures governing the access of defendants to post-conviction DNA testing violated due process. Critically, the evidence that Osborne sought was not exculpatory evidence that had been in existence at the time of his original trial. Instead, he was seeking the opportunity to collect and submit entirely new, and he hoped exculpatory, evidence. The Court rejected the argument that Brady required the state to allow the defendant access to these new tests because the defendant had already been ‘proved guilty after a fair trial.’ [Citation.] But Brady continues to apply to an assertion that one did not receive a fair trial because of the concealment of exculpatory evidence known and in existence at the time of that trial.” (Whitlock, at pp. 587-588.)
The Whitlock court noted further that the Steidl court decided only whether the government‘s Brady duty applied to evidence “known and in existence at
Nor are we persuaded by the Attorney General‘s argument that “regardless of the applicability of Brady postconviction, . . . logic and practicality” dictate that there can be no ongoing Brady violation once a petitioner files a petition for writ of habeas corpus claiming a Brady violation. As for logic, the Attorney General reasons, “The very allegation that given information was suppressed means that the petitioner is now aware of the evidence, which is no longer suppressed.” This contention is unpersuasive because the mere assertion of a Brady claim does not always demonstrate the petitioner hassufficient direct or concrete evidence to support the allegations. Often it is through habeas corpus proceedings, that such evidence is revealed. (See, e.g., Banks, supra, 540 U.S. at pp. 682, 685 [noting that the petitioner alleged in a habeas corpus proceeding “upon information and belief” that prosecution failed to disclose witness‘s identity as an informant, and that, several years later, in a habeas corpus evidentiary hearing, a deputy sheriff “acknowledged, for the first time, that [the witness] was an informant“]; In re Bacigalupo (2012) 55 Cal.4th 312, 316 [describing reference proceeding that spanned “several hearings over a three-year period,” and during which “17 witnesses were called” to determine whether prosecution failed to disclose information it obtained from a confidential informant].) In addition, the mere assertion of a Brady claim in a habeas corpus proceeding does not necessarily provide a sufficient evidentiary record for a court to resolve such claim. (See, e.g., Pham v. Terhune (9th Cir. 2005) 400 F.3d 740, 743 [ordering discovery of laboratory notes forming the basis
The Attorney General‘s “practicality” argument is similarly unpersuasive. The fact that, as the Attorney General argues, the petitioner “knows enough to seek [the evidence]” does not provide any assurance that the evidence will be revealed given that, as the Attorney General acknowledges, “aconvicted person enjoys few opportunities to seek postconviction discovery by court order.”10
In sum, we conclude that where a habeas corpus petitioner claims not to have received a fair trial because a trial prosecutor failed to disclose material evidence in violation of Brady — and where the Attorney General has knowledge of, or is in actual or constructive possession of, evidence that the trial prosecutor suppressed in violation of Brady11 — the Attorney General has a constitutional duty under Brady to disclose the evidence.12
We also express no opinion regarding the Attorney General‘s duty in a hypothetical situation described in his brief, “in which no petition for a writ of habeas corpus has been filed alleging a Brady violation but the Attorney General becomes aware of evidence that should have been disclosed at trial pursuant to Brady.”
B.
Jenkins claims the “[e]thics [r]ules [a]lso [p]rohibit the Attorney General from [s]uppressing [e]vidence.”
Rule 3.8 of the Rules of Professional Conduct (Rule 3.8) provides in relevant part: “The prosecutor in a criminal case shall:[¶] . . . [¶] (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the
We have not previously had occasion to consider the Attorney General‘s ethical duty, if any, pursuant to Rule 3.8(d) in postconviction proceedings generally and thus have not considered his duty as it pertains to a habeas corpus proceeding alleging a Brady violation.13 The Attorney General argues both that the rule has no application “in any postconviction scenario,” and that Rule 3.8(d) should not “be viewed as imposing a duty of disclosure independent of settled habeas procedures . . . .” We disagree with both contentions.
As to whether Rule 3.8(d) applies in postconviction settings, case law describing a prosecutor‘s ethical duties in the postconviction context decided before Rule 3.8(d) was adopted supports such application. Specifically, this court has repeatedly recognized that prosecutors have a continuing duty in postconviction proceedings to disclose exculpatory evidencethat should have been disclosed at trial. In People v. Gonzalez (1990) 51 Cal.3d 1179 (Gonzalez), after concluding that a trial court had erred in ordering the Attorney General, among others, to provide certain discovery to a defendant in the postconviction setting (see id. at pp. 1256-1257), we stated: “Of course, the prosecution has a well-established duty to disclose information materially favorable to the defense, even absent a request therefor. [Citations.] ‘. . . At trial this duty is enforced by the requirements of due process, but [even] after a conviction the prosecutor . . . is bound by the ethics of his office to inform the appropriate authority of . . .
In In re Steele (2004) 32 Cal.4th 682, we noted the Attorney General argued that the fact that prosecutors have a continuing ethical duty to disclose exculpatory evidence obviated the need to interpret
Finally, in In re Lawley (2008) 42 Cal.4th 1231 (In re Lawley), we repeated our admonition from Gonzalez concerning the continuing ethical duties of a prosecutor — in the postconviction setting — to disclose evidence that should have been disclosed at trial, this time specifically quoting American Bar Association Model Rules of Professional Conduct, rule 3.8(d) (ABA Model Rule 3.8(d)) as providing, ” ‘The prosecutor in a criminal case shall: [¶] . . . [¶] (d) 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.’ ” (In re Lawley, at p. 1246; see ibid. [“Before and during trial, due process requires the prosecution to disclose to the defense evidence that is material and exculpatory. [Citations.] This obligation continues after trial.” (Citing, inter alia, ABA Model Rule 3.8(d))].)
Gonzalez, In re Steele, and In re Lawley all were decided during a period when California did not have a specific rule of professional conduct mandating that a prosecutor disclose exculpatory evidence. Even without a specific rule, this court repeatedly stated that a prosecutor had an ethical duty to disclose exculpatory evidence in the postconviction setting. Indeed, in both Gonzalez, supra, 51 Cal.3d at pages 1260-1261 and In re Lawley, supra, 42 Cal.4th at page 1246, we relied on ABA Model Rule 3.8(d) in noting the existence of such a duty.
With the adoption of Rule 3.8(d), California now has a specific rule of professional conduct mandating the disclosure of exculpatory evidence by prosecutors. The adoption of a rule of professional conduct that is based in part on ABA Model Rule 3.8(d) — which this court has repeatedly relied on in concluding that prosecutors have a disclosure obligation in the postconviction context — supports our conclusion that Rule 3.8(d) similarly applies in postconviction settings.
The Attorney General argues that the “language [of Rule 3.8(d)] suggests exclusively pretrial application.” We are not persuaded. The text of Rule 3.8(d) contains no language expressly limiting its application to proceedings prior to conviction. Nor do we infer any limitation based on the language cited by the Attorney General. The Attorney General notes that Rule 3.8(d) refers to “the accused” (Rule 3.8(d)), a description the Attorney General contends is inapt when referring to a convicted defendant. Similarly, the Attorney General notes that Rule 3.8(d) refers to the “defense,” a description that technically does not apply to a petitioner in a habeas corpus proceeding. The Attorney General‘s textual arguments ascribe too much significance to terms we take to be shorthand references to a person who is, or who has been, the subject of criminalproceedings and to that person‘s lawyer(s).15 (Cf. People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 573 [rejecting district attorney‘s argument that “the Legislature‘s use of the word ‘defendant’ rather than ‘petitioner’ in
We also reject the Attorney General‘s contention that Rule 3.8(d) should not be interpreted to apply in postconviction proceedings because ” ‘timely’ ” disclosure “is no longer possible” in habeas corpus proceedings where guilt has been adjudicated. Timeliness must be measured in relation to the proceeding in which the disclosure is at issue. (See Rule 3.8, com. [3] [“A disclosure‘s timeliness will vary with the circumstances“].) When applied to postconviction proceedings, Rule 3.8(d)‘s requirement that the prosecutor “make timely disclosure” is reasonably interpreted as mandating timeliness in those proceedings.
Nor are we persuaded by the Attorney General‘s argument that “the inclusion of rules that expressly do apply postconviction” demonstrates that Rule 3.8(d) does not apply in this postconviction setting. (Italics added, citing Rule 3.8(f) & (g).)16 The fact that Rule 3.8(f) and (g) refer to a “convicted” defendant, while Rule 3.8(d) does not use that term, can be explained by the fact that Rule 3.8(f) and (g) apply exclusively to convicted defendants, while Rule 3.8(d) also applies prior to conviction.17
Having determined that the Attorney General has an ethical duty pursuant to Rule 3.8(d) in postconviction settings, we consider the Attorney General‘s argument that Rule 3.8(d) does not establish any additional “duty of disclosure” beyond that provided for by the law governing habeas corpus procedures. The Attorney General‘s argument is based on comment [3] to Rule 3.8, which provides in part that Rule 3.8(d) should not be “applied in a manner
In fact, we note that the ethical duty in Rule 3.8(d) appears to be similar to the prosecutor‘s statutory duty at trial to provide discovery of ” ‘[a]ny exculpatory evidence.’ ” (People v. Cordova (2015) 62 Cal.4th 104, 124, quoting
The Attorney General also appears to argue that the applicability of Rule 3.8(d) in habeas corpus proceedings raising a Brady claim turns on the Attorney General‘s assessment of whether the evidence at issue is material to
Accordingly, we conclude that, pursuant to Rule 3.8(d), in responding to a petition for writ of habeas corpus alleging a Brady violation, the Attorney General has an ethical duty to make timely disclosure to the petitioner of all evidence or information known to the Attorney General that was available but not disclosed at trial21 that the Attorney General knows or reasonably should know tends to negate the guilt of the petitioner, mitigate the offense, or mitigate the sentence, except when the Attorney General is relieved of this responsibility by a protective order of the tribunal.22
C.
In addition to the Attorney General‘s constitutional and ethical duties described in parts II.A. and II.B., ante, a respondent to a petition for writ of habeas corpus alleging a Brady claim also has duties that arise from procedural law governing such petitions.
We begin by summarizing well established law governing petitions for writ of habeas corpus. (In re Duvall (1995) 9 Cal.4th 464, 474-475 (Duvall).) In Duvall, we outlined a habeas corpus petitioner‘s initial pleading burden: “To satisfy the initial burden of pleading adequate grounds for relief, an application for habeas corpus must be made by petition, and ‘[i]f the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists.’ [Citation.] The petition should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim,
“An appellate court receiving such a petition evaluates it by asking whether, assuming the petition‘s factual allegations are true, the petitioner would be entitled to relief.” (Duvall, supra, 9 Cal.4th at pp. 474-475.) The court may request that the respondent provide an “informal written response.” (Cal. Rules of Court, rule 8.385(b)(1); see also id., rules 4.551(b) [“informal response” in noncapital habeas corpus proceedings in superior court], 4.573(a) [“informal written response” in capital habeas corpus proceedings in superior court].)
In People v. Romero (1994) 8 Cal.4th 728 (Romero) we described the “screening function” that an informal response serves in resolving petitions for writ of habeas corpus: “Through the informal response, the custodian or real party in interest may demonstrate, by citation of legal authority and by submission of factual materials, that the claims asserted in the habeas corpus petition lack merit and that the court therefore may reject them summarily, without requiring formal pleadings (the return and traverse) or conducting an evidentiary hearing. If the petitioner successfully controverts the factual materials submitted with the informal response,23 or if for any other reason the informal response does not persuade the court that the petition‘s claims are lacking in merit, then the court must proceed to the next stage by issuing an order to show cause or the now rarely used writ of habeas corpus. Deficiencies in the informal response do not provide a justification for shortcutting this procedural step.” (Id. at p. 742, fn. omitted.)
Upon the issuance of the order to show cause, the respondent files a return. (Duvall, supra, 9 Cal.4th at p. 475.) In the return, the respondent is required to ” ‘allege facts tending to establish the legality of petitioner‘s detention.’ ” (Id. at p. 476.) “Those facts are not simply the existence of a judgment of conviction and sentence when the petitioner challenges his restraint in prison. The factual allegations of a return must also respond to the allegations of the petition that form the basis of the petitioner‘s claim that the confinement is unlawful. [Citations.] In addition to stating facts, the return should also, ‘where appropriate, . . . provide such documentary evidence, affidavits, or
In Duvall, we emphasized that the “requirement that the return allege facts responsive to the petition is critical, for the factual allegations in the return are either admitted or disputed in the traverse and this interplay frames the factual issues that the court must decide.” (Duvall, supra, 9 Cal.4th at p. 477.) Further, we specifically “reiterate[d] our disapproval of the practice of filing returns that merely contain a general denial of a habeas corpus petitioner‘s factual allegations.” (Id. at pp. 480-481.) However, the Duvall court outlined the procedures to follow when a respondent does not have access to information needed to either admit or deny a factual allegation of the petition. In such circumstances, the “return should set forth with specificity: (i) why information is not readily available; (ii) the steps that were taken to try to obtain it; and (iii) why [respondent] believes in good faith that certain alleged facts are untrue.” (Id. at p. 485.)
With these procedures in mind, we consider a respondent‘s duty in responding to a habeas corpus petitioner‘s Brady claim in a case in which the respondent has knowledge of, or is in actual or constructive possession of, the evidence forming the basis of the claim. As alluded to above, we reiterate that upon the filing of a petition alleging a Brady violation, if the allegedly suppressed evidence is material and exculpatory, the Attorney General has an independent constitutional duty to disclose the evidence (see pt. II.A., ante), and to the extent the evidence is subject to Rule 3.8(d), the Attorney General has an independent ethical duty to disclose the evidence (see pt. II.B., ante).24 In this part we consider additional duties arising from habeas corpus procedural law that apply upon the mere allegation of a Brady violation. Specifically, we consider respondent‘s duty in filing an informal response prior to the issuance of an order to show cause, and respondent‘s duty in filing a return should a court issue an order to show cause.
Jenkins contends the “Attorney General25 should not be permitted to sit on exculpatory evidence undermining a criminal defendant‘s conviction and
We reject this argument. To begin with, a petitioner‘s filing of a petition for writ of habeas corpus alleging a Brady claim, does not establish the existence of any exculpatory evidence. Thus, the analysis depends on whether the mere allegation of a Brady violation in a petition for writ of habeas corpus triggers a respondent‘s duty under our habeas corpus case law to disclose the existence of known evidence underlying such claim.26
The informal response is a judicially created procedure. (See Romero, supra, 8 Cal.4th at pp. 741-742 [outlining history of the development of the use of informal responses in habeas corpus proceedings].) We are not aware of any case law, and Jenkins cites none, holding that a respondent must come forward with affirmative evidence of any kind in an informal response. (See In re Robbins (1998) 18 Cal.4th 770, 798, fn. 20 [“Nothing in . . . Duvall, supra, 9 Cal.4th 464, [476], suggests, much less holds, that respondent is obligated to provide . . . documentary evidence in an informal response,” that will ” ‘enable the court to determine which issues are truly disputed’ “].) Nor do the relevant rules of court that now govern informal responses in habeas corpus proceedings specify any such duty. (See
Therefore, we agree with the Attorney General that, prior to the issuance of an order to show cause, in an informal response, respondent may choose to neither “confirm nor dispute” the existence of the alleged Brady evidence and may argue instead that, assuming the existence of the evidence,
However, given that a court is empowered, after allowing a petitioner to file a reply to the informal response (see Romero, supra, 8 Cal.4th at p. 741) to summarily reject a petition for habeas corpus on the basis of ”factual materials” submitted in an informal response (id. at p. 742, italics added), we do impose one restriction on a respondent‘s informal response. Specifically, we conclude that, if the Attorney General has knowledge of, or is in actual or constructive possession of, evidence underlying a habeas corpus petitioner‘s Brady claim, he shall not file an informal response on behalf of respondent that argues the petitioner has failed to present “documentary evidence supporting the claim” (Duvall, supra, 9 Cal.4th at p. 474), unless the Attorney General explains the basis for such an argument (e.g., by explaining that confidentiality provisions prohibit the Attorney General from confirming the existence of the evidence and the petitioner has failed to utilize available procedures to seek access to the evidence).28 This limited restriction is sufficient to guard against the possibility that a court would summarily reject a petition on the erroneous premise that the evidence does not exist, when in fact the Attorney General has knowledge of the existence of the evidence.
In addition, if the evidence does not in fact exist, contrary to our hypothetical positing that the Attorney General has knowledge of its existence, respondent may argue that the evidence does not exist.
However, after the issuance of an order to show cause, different rules apply. As we outlined ante, Duvall requires a respondent to plead facts responsive to the petitioner‘s allegations, including ” ‘where appropriate, . . . provid[ing] such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.’ ” (Duvall, supra, 9 Cal.4th at p. 476.) Thus, as the Attorney General acknowledges,
Thus, for example, if a habeas corpus petitioner alleged that a prosecution witness had a prior conviction that was suppressed at trial under Brady, after the issuance of an order to show cause, the Attorney General, on behalf of respondent, would normally be required to file a return that either admitted or denied the existence of the prior conviction.29 By either admitting or denying the factual basis of the habeas corpus petitioner‘s Brady claim, respondent would thereby “sharpen[] the issues” that remain to be decided in any evidentiary hearing.30 (Duvall, supra, 9 Cal.4th at p. 480.)
Accordingly, we conclude that prior to the issuance of an order to show cause on a petition for writ of habeas corpus raising a Brady claim, the Attorney General generally may file an informal response on behalf of a respondent that neither confirms nor disputes the existence of the alleged Brady evidence. However, the Attorney General shall not file an informal response contending that the petitioner has failed to demonstrate the existence of the evidence where the Attorney General has knowledge of, or is in actual or constructive possession of, the evidence, without providing a reasoned explanation rooted in the Attorney General‘s inability to confirm the existence of the evidence and petitioner‘s failure to utilize procedures for obtaining the evidence. Further, at the return stage, the Attorney General, on behalf of the respondent, shall not persist in raising any argument put forth in an informal response that the petitioner failed to carry his or her burden of showing the evidence exists without providing a reason for why respondent is unable to confirm or deny the existence of the evidence (e.g., because the alleged evidence is subject to disclosure prohibitions).31
D.
In his answering brief in this court, the Attorney General points out that the evidence underlying Jenkins‘s Brady claim, namely the juvenile adjudications
The J.E. court also summarized the in camera review procedures specified by
The J.E. court explained that
Finally, in People v. Stewart (2020) 55 Cal.App.5th 755 (Stewart), the Court of Appeal concluded that the People had violated their duty under Brady and its progeny in connection with a police report that was protected from disclosure by
This case law informs our assessment of the Attorney General‘s duty in responding to a petition for writ of habeas corpus alleging a Brady violation from the failure to disclose evidence in a case in which the Attorney General is himself prohibited from disclosing the evidence pursuant to
Similarly, with respect to his ethical duty under
Finally, with respect to a respondent‘s duty in filing a return under these circumstances, we conclude that a respondent may plead an inability to plead facts about the alleged Brady evidence due to the
In sum, in responding to a petition for writ of habeas corpus alleging a Brady violation based on a failure to disclose evidence when the Attorney General is himself prohibited from disclosing that evidence pursuant to
E.
To recap, where allegedly suppressed evidence forming the basis of a Brady claim in a petition for writ of habeas corpus is in fact subject to Brady, the Attorney General has a constitutional duty of disclosure that exists as of the time of the filing of the petition as outlined in part II.A., ante.34 Where such evidence is not subject to Brady, but is subject to
We emphasize that where the evidence at issue is actually Brady material and/or subject to
In light of the Attorney General‘s admittedly deficient litigation practices in the Court of Appeal,35 as well as our clarification of the Attorney General‘s disclosure duties, it is appropriate to remand the matter to the Court of Appeal for further proceedings so as to permit that court to consider Jenkins‘s petition upon a fulsome record prepared in accordance with the principles that we have outlined in this opinion. In remanding, we express no opinion on the merits of Jenkins‘s petition for writ of habeas corpus.
Finally, we urge the prosecutors in this case, and in every other, to carefully consider the constitutional, ethical, and habeas corpus procedural duties that we have outlined herein to ensure that they faithfully bear the special responsibilities ascribed to the prosecution in our system of justice. We remind the prosecutors of today of what we said in In re Ferguson (1971) 5 Cal.3d 525: “The search for truth is not served but hindered by the concealment of relevant and material evidence. Although our system of administering criminal justice is adversary in nature, a trial is not a game. Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal. Implementation of this policy requires recognition of a duty on the part of the prosecution to disclose evidence to the defense in appropriate cases.” (Id. at pp. 531-532.)
The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further proceedings consistent with this opinion.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
Notes
Rule 3.8(f) provides: “When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
“(1) promptly disclose that evidence to an appropriate court or authority, and
“(2) if the conviction was obtained in the prosecutor‘s jurisdiction,
“(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
“(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.”
Rule 3.8(g) provides: “When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor‘s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.”