New York Times

Justices to Hear Case on Withheld Evidence

December 15, 2016

by Adam Liptak

WASHINGTON — The Supreme Court on Wednesday agreed to decide whether the convictions of seven defendants in a notorious 1984 murder must be set aside because prosecutors withheld evidence about another suspect. The court also said it would hear a case on the consequences of bad legal advice about whether a criminal conviction would lead to deportation.

The defendants in the murder case, almost all teenagers at the time, were prosecuted for sexually assaulting and killing Catherine Fuller, 48. Prosecutors presented no physical evidence, relying on eyewitness testimony.

Twenty-five years after the trial, in 2010, lawyers for the defendants sought to reopen the case, saying their convictions had been tainted by violations of Brady v. Maryland, a 1963 Supreme Court decision that required prosecutors to turn over favorable evidence to the defense. They said prosecutors had withheld several kinds of evidence, most notably about another suspect, James McMillan.

After Ms. Fuller’s murder but before the trial, Mr. McMillan was arrested and later convicted on charges of robbing and assaulting two other middle-aged women in the neighborhood. Several years later, Mr. McMillan was convicted of sexually assaulting and murdering a woman in 1992, a few blocks from the alley where Ms. Fuller was killed.

Last year, the District of Columbia Court of Appeals declined to reopen the 1984 case, reasoning that Mr. McMillan’s later, similar crimes were irrelevant to what prosecutors should have disclosed before the defendants’ trial. The 1992 murder, the court said, had “no bearing on the question of the materiality of any evidence that the government actually did withhold from the defense.” The courts are divided over whether such after-the-fact evidence can shed light on the importance of information withheld by prosecutors.

In urging the Supreme Court not to grant review in the cases, Turner v. United States, No. 15-1503, and Overton v. United States, No. 15-1504, prosecutors said they could not have predicted the 1992 murder at the time of the 1985 trial. “A Brady violation cannot be predicated on the government’s failure to do the impossible and disclose evidence that does not yet exist,” the wrote, quoting from the appeals court decision.

The case concerning legal advice involves Jae Lee, who moved to the United States from South Korea with his family in 1982, when he was 13. After graduating from high school in New York, he moved to Memphis, where he became a restaurateur and a small-time drug dealer. He was a lawful resident but not a citizen.

Mr. Lee was prosecuted for possessing the drug ecstasy with the intent to distribute it, and his lawyer urged him to plead guilty in exchange for a lighter sentence. The lawyer falsely told Mr. Lee that he would not be subject to deportation after he served his sentence, which turned out to be a year and a day.

On learning the truth, Mr. Lee filed a motion to vacate his conviction, arguing that he had received ineffective assistance of counsel.

In 2010, the Supreme Court ruled that lawyers for people thinking of pleading guilty to a crime must advise their clients who are not citizens about the possibility that they will be deported.

In Mr. Lee’s case, the United States Court of Appeals for the Sixth Circuit said he had suffered no prejudice, as the correct legal advice would not have helped him. Had he gone to trial, the court said, he would have lost and still have been deported.

“It is unclear to us why it is in our national interests — much less the interests of justice — to exile a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small-time drug offense,” Judge Alice M. Batchelder wrote for the court. “But our duty is neither to prosecute nor to pardon; it is simply to say ‘what the law is,’ ” she added, quoting Marbury v. Madison.