A sharply divided Second Circuit Court of Appeals (9-6) issued a decision in
Poventud v. City of New York
et althat clarified the Circuits understanding and application of
Heck v. Humphrey, 512 U.S. 477 (1994)
. The fundamental issue the Court considered was whether or not a §
1983 plaintiff, who had plead guilty to a lesser charge arising out of
the same facts of his originally indicted conduct, would have his claim
precluded for failing to meet the requirements laid out by the Supreme Court in
Heck. In a very narrow ruling, the Second Circuit's answer was in certain
specific cases, such as Marcos Poventud's, a guilty plea does not
bar a civil rights claim.
Mr. Poventud was convicted in 1998 of attempted murder of a livery cab
driver. At his trial, Mr. Poventud's defense had been that he had
not been present in the cab that night, but had been playing videogames
at a neighbor's apartment. The only witness who placed Mr. Poventud
at the scene was the cab driver. It was brought out on cross-examination
that the first three times police showed the cab driver Mr. Poventud's
photograph he failed to identify him as one of the robbers. It was only
on a fourth viewing that he finally identified Mr. Poventud. Based on
their notes to the court during deliberations, this somewhat uncertain
identification was an important issue for the jury.
What was not brought out at trial, because it had not been disclosed by
the prosecution, was the fact that initially the cab driver had "unequivocally"
identified someone else as the shooter-Mr. Poventud's brother, who
had been incarcerated at the time of the robbery. Police had intentionally
withheld this information from the District Attorney's Office, and
by extension to Mr. Poventud, during the initial trial. This withholding
of evidence that would have supported Mr. Poventud alibi defense was a
Brady violation came to light, the State of New York vacated Mr. Poventud's
conviction. However, rather than dismissing the charges against him, the
District Attorney's Office opposed Mr. Poventud's release on bail
and indicated that it might appeal the decision to vacate the conviction
and/or retry him on the original attempted murder charge. Unable to make
bail, having already spent nine years in prison and facing an indeterminate
amount of more time in prison during any appeal or retrial, Mr. Poventud
entered into a plea agreement with the prosecution in which he would plead
guilty to attempted robbery in the third degree, an E felony and be sentenced
to one year incarceration. As he had already served nine years, upon the
plea, he was immediately released.
Following his release, he instituted a civil rights claim against the City
and relevant individuals under § 1983. The defendants moved for summary
judgment claiming that
Heck decision barred his claim. The district court agreed.
Heck very clearly laid out the precedent conditions for a plaintiff to be allowed
to bring a § 1983 claim. The Court stated
We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question
by a federal court's issuance of a writ of habeas corpus.
Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372 (1994).
In the majority opinion in this case, the Second Circuit highlights the
fact that Mr. Poventud did not bring a § 1983 cause of action for
malicious prosecution but for a
Brady violation. In a malicious prosecution claim, a required element is that
the criminal proceeding end in favor of the accused.
Heck would indeed bar any malicious prosecution claim in Mr. Poventud's
case as his guilty plea could not be construed as a favorable termination.
The majority holds that
Heck does not bar any § 1983 claim when the outcome of the criminal trial
does not end up in the plaintiff's favor indicating that both false
arrest and excessive force claims are not predicated on a favorable outcome
at trial. The majority indicates that a
Brady violation, by definition, does require innocence, just that the evidence
withheld was favorable to the defendant and that the defendant was prejudiced
by the withholding.
The majority, in crafting its narrow ruling makes three important points
in reconciling its decision with
1) Mr. Poventud's
Brady claim must be specific to the conviction that was invalidate. In this
case, his 1998 conviction was vacated and his
Brady claim is related only to that conviction, not the 2006 plea conviction.
2) If his claim had been one for malicious prosecution it would have indeed
been barred based on his 2006 guilty plea.
3) The damages he can seek to recover for the time he spent in prison cannot
include any time assignable to his 2006 conviction.
Thus, despite the broad headlines declaring that the Second Circuit has
allowed civil rights claims to move forward despite guilty pleas, the
reality is much less expansive. Defendants seeking redress to civil right
violations based on a conviction must still show that "the conviction
or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court's issuance of a writ of
habeas corpus." Mr. Poventud met this requirement when the state
court vacated his conviction. Defendants who are incarcerated must exhaust
all possible state remedies and failing success in that regard, seek federal
A claimant who is seeking to litigate a claim for malicious prosecution
must have a favorable termination. Practically, this means accepting a
plea bargain, no matter how favorable the terms, is fatal to that claim.
Further, a claimant, such as Mr. Poventud, who is seeking to prosecute
another § 1983 claim must be aware that the terms of the plea are
particularly important. Any plea which is predicated on "time served"
will remove the entire period of incarceration out of allowable damages.
As a result defendants hoping to prevail on such claims must be extremely
cautious in accepting any plea deal.
The dissenting opinions strongly argue that Poventud's guilty plea
Brady claim. First, because in the dissents' estimation, his
Brady claim is actually, or substantially the same as, a malicious prosecution
claim. Second, by "rendering implausible any contention that the
undisclosed impeachment evidence is material." (Livington, J dissenting).
In support for these contentions, the dissents place great emphasis on
the fact that Mr. Poventud's alibi defense is diametrically opposed
to his later guilty plea, which places him at the scene of the robbery.
In biting tones, Judge Livingston writes "
Brady now includes, with our imprimatur, the right to recompense for a denial
of the opportunity to commit perjury more successfully."
There are responses to these assertions, many of which are contained in
the majority decisions. First, Judge Lynch writes in plain yet impassioned
language about the plea process and the sometimes unforgiving choices
facing defendants in Mr. Poventud's circumstances. He writes
The choice of freedom in exchange for an admission would be easy for a
guilty man, but even an innocent one would be hard pressed to decline
the prosecution's offer. A hero might resist the bargain and insist
that he would not accept the ignominy of falsely admitting guilt. . .
It is difficult to expect such heroism of mere mortals . . . Poventud
did what I suspect most ordinary human beings would do in his situation,
even if they were innocent. (Lynch J. concurring)
Further, something the dissent seems to imply is that
Brady protections are to be invoked for defendants who are provably innocent.
By focusing on Mr. Poventud's original alibi testimony and contrasting
it with his plea allocution the dissents choose to find his first testimony
perjury and his plea allocution a "solemn admission," and thus
the withheld misidentification immaterial. Laying aside Judge Lynch's
analysis that it may well be that his plea was perjurous, had the prosecution
disclosed the misidentification it may very well have completely changed
the trial strategy that led Mr. Poventud to testify at all. If the jury
had been given the evidence that the sole identification was suspect it
may have determined that the prosecution had not met its burden and that
Mr. Poventud was not guilty without his testifying at all. The dissent,
by its logic, would have required my Poventud to remain incarcerated for
an indeterminate number of years waiting for the appeal on the vacatur
and/or a retrial, during which he would have been free to remain silent,
introduce the withheld misidentification evidence and allow the jury to
find him not guilty. Only then could he proceed with his § 1983 claims
with the blessing of dissent.
Apart from the dissents' desire to compel those in Mr. Poventud position
to choose between freedom and potential success in a § 1983 claim for a
Brady violation, buried in a footnote in Judge Jacobs' dissent is citation
that should give defense attorneys a sense of profound unease. He writes,
However, Brady is a trial right, formulated to safeguard the fairness of
trial outcomes; it does not require disclosure of impeachment evidence
during pretrial events, however critical. See
United States v. Ruiz, 536 U.S. 622, 633 (2002) (holding that the failure to disclose impeachment
evidence prior to a guilty plea does not amount to a Brady violation
Friedman v. Rehal, 618 F.3d 142, 154 (2d Cir. 2010) (
considering that Ruiz's reasoning likely also extends to exculpatory evidence). (emphasis added).
Judge Jacobs by citing
Rehal in this context seems to be indicating his support with the panel's
dicta statement that perhaps exculpatory
Brady material does not need to be disclosed during plea negotiations. The implications
of such an assertion are staggering. At present, Second Circuit precedent
requires all exculpatory evidence be turned over to a defendant prior
to pleading guilty. If the Court would sanction the willful withholding
of exculpatory evidence material to the innocence of a defendant during
plea negotiations and through a guilty plea, essentially allowing the
prosecution to misrepresent the strength of its case, it would be a serious
blow to the fairness underpinning of
Brady. Further, it would hinder effective plea bargaining in that defense counsel
would be unable to effectively advise their clients whether or not accepting
an offer would be in his best interests. The possibility that the Second
Circuit would allow the prosecution the discretion to determine, strategically,
when to disclose exculpatory
Brady material would further stack the deck against an already beleaguered criminal