Civil Rights — prosecutorial immunity

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Rights — prosecutorial immunity

A prosecutor’s Brady and Giglio duties persist until a defendant’s conviction becomes final.

“A prosecutor’s Brady and Giglio duties may survive the conclusion of a trial. See Imbler, 424 U.S. at 427 n.25 (‘[A]fter a conviction, the prosecutor is also bound by the ethics of his office to inform the appropriate authority of after-acquired or other [material] information that casts doubt upon the correctness of the conviction.’). When a State grants a criminal defendant a right to direct appeal, ‘the proceedings in the appellate tribunal are . . . part of the process of law under which he is held in custody by the State, and to be considered in determining any question of alleged deprivation of his life or liberty contrary to the Fourteenth Amendment.’ Frank v. Magnum, 237 U.S. 309, 327 (1915) (internal citations omitted); see also Evitts v. Lucey, 469 U.S. 387, 393 (1985) (‘[I]f a State has created appellate courts as an integral part of the system for finally adjudicating the guilt or innocence of a defendant, the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution.’) (internal citations omitted). Therefore, a defendant’s conviction is not final as a matter of law until he exhausts the direct appeals afforded to him, and, until that exhaustion, he is entitled to the full breadth of due process available. See Gonzalez v. Thaler, No. 10-895, 2012 WL 43513, at *3, 9 (S. Ct. Jan. 10, 2012) (holding that ‘[f]or petitioners who pursue direct review all the way to [the Supreme Court], the judgment becomes final at the conclusion of direct review—when this Court affirms a conviction on the merits or denies a petition for certiorari [and that] [f]or all other petitioners, the judgment becomes final at the expiration of the time for seeking such review—when the time for pursuing direct review in this Court, or in state court, expires’); Skinner v. Switzer, 131 S. Ct. 1289, 1303 (2011) (Thomas, J., dissenting) (explaining that ‘[t]rial procedures are used to initially convict a prisoner; appellate procedures review the validity of that conviction before it becomes final; and collateral review procedures permit challenge to the conviction after it is final’) (emphasis added). Accordingly, a prosecutor’s Brady and Giglio obligations remain in full effect on direct appeal and in the event of retrial because the defendant’s conviction has not yet become final, and his right to due process continues to demand judicial fairness. See Monroe v. Blackburn, 476 U.S. 1145, 1148-49 (1986) (Marshall, J., dissenting from denial of certiorari) (‘When the sovereign has decided that justice will be best served by qualifying the finality of a conviction so that a convicted defendant may yet prove his innocence, its attorney is not free to choose otherwise. And until factfinding proceedings, or the possibility of them, is [sic] terminated, the State remains bound by the rules of simple fairness that Brady held to be of constitutional dimension.’). His disclosure responsibilities do not end until the defendant either has been acquitted or has availed himself of all the direct process to which he is entitled. See Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2320 (2009) (distinguishing a defendant’s due process interest in his postconviction relief after he has received a fair trial from his interest before his conviction becomes final and rejecting Brady and Giglio as continuing obligations on collateral challenge).”

2-28-12 Reversed and Remanded.

11-2035 Fields v. Wharrie

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Flaum, J.