A sharply divided Second Circuit Court of Appeals (9-6) issued a decision in Poventud v. City of New York, et al that 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 video games 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 prototypical Brady violation.
When this 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 ends 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 Heck:
1) Mr. Poventud's Brady claim must be specific to the conviction that was invalidated. 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 habeas relief.
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 defeats his 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 defendant.