Brady, Child Pornography Enhancement, the Second Amendment, and the Right to Counsel of Choice

The U.S. Supreme Court last month decided four relatively little-noticed cases involving Brady, sentencing enhancement under the federal child pornography statute, the right to possess stun guns, and the ability of prosecutors to freeze assets needed to hire counsel.

Brady lives!

In perhaps the most important case for public defenders, the Court affirmed that Brady is alive and well. 

In Wearry v. Cain, issued March 7, the Court held that prosecutors violated Brady by failing to disclose numerous evidence and misleading the jury. 

Prosecutors failed to disclose police records containing statements from fellow inmates of a jail-house snitch witness, which would have shown that the snitch had a vendetta against the defendant and had asked other inmates to lie.  Prosecutors failed to disclose that another witness had asked for a deal in exchange for his testimony, and affirmatively misled jurors by telling them the witness had not asked for anything.  Finally, prosecutors failed to disclose medical records that would have shown that an alleged participant in the crime could not have run at the scene because of recent knee surgery.

The defendant had a substantial alibi defense. 

The Louisiana courts denied relief on grounds that the defendant had not shown prejudice. 

But the Supreme Court, in a per curiam opinion issued without oral argument, chastised Louisiana for misapplying well-settled law.  A defendant asserting a Brady claim need not show that he “more likely than not” would have been acquitted if the undisclosed evidence had been admitted.  Rather, “[h]e must show only that the new evidence is sufficient to ‘undermine confidence’ in the verdict.”

The Court further found that the Louisiana courts had “improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively.”
“Even if the jury – armed with all of this new evidence – could have voted to convict Wearry, we have ‘no confidence that it would have done so,’” the Court concluded.

Child pornography enhancement

 In a loss for the defense, the Supreme Court held that the child pornography sentencing enhancement contained in 18 U.S.C. Sec. 2252(b)(2) for defendants with a prior state conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” is not limited to prior offenses involving children.
The defendant had a prior conviction for sexual abuse of an adult girlfriend.  He contended that the sentencing enhancement did not apply to him because the sexual abuse had to involve “a minor or ward.” 

But the Court disagreed. 

In Lockhart v. United States, decided March 1, the Court held that the “minor or ward” language applies only to the last clause in the statute.  Prior convictions for “aggravated sexual abuse” or “sexual abuse” need not involve a child.

Stun guns protected by Second Amendment

In a defense win, the Supreme Court in Caetano v. Massachusetts, decided March 21, held that the Second Amendment protects the right to possess a “stun gun.”

Massachusetts courts had upheld the defendant’s conviction for possession of a stun gun on grounds that such guns were not available when the Second Amendment was adopted, and were not generally used for military purposes.

But the Supreme Court, in a brief per curiam opinion, held that the Massachusetts courts’ reasoning ran afoul of the high Court’s decision in Heller. 

The Second Amendment extends to arms “that were not in existence at the time of the founding,” the Court said.  Further, “Heller rejected the proposition ‘that only those weapons useful in warfare are protected.’”

Counsel of choice

The Supreme Court in Luis v. United States, decided March 30, held that Sixth Amendment prohibits the government from freezing a defendant’s legitimate, untainted assets before trial when this prevents the defendant from being able to hire counsel of their choice.

In a health-care fraud case, prosecutors sought before trial to freeze the defendant’s assets under 18 U.S.C. Sec. 1345, which allows freezing assets “obtained as a result of” or “traceable” to the crime, or other “property of equivalent value.”  The case involved the “property of equivalent value” section of the statute. 

The parties agreed that the assets sought to be frozen were not the result of the crime, and were “untainted.”  Prosecutors claimed the assets could be frozen to ensure that money would be available for restitution in the event the defendant was convicted.  The defendant, however, claimed she needed the assets to hire counsel.

In a four-justice plurality opinion, the result of which Justice Thomas endorsed in a separate concurrence, the Supreme Court held that the Sixth Amendment guarantees a defendant the right to hire an attorney of their choice, and that the government cannot seize legitimate, untainted assets when this prevents the defendant from doing so. 

“[T]he property here is untainted; i.e., it belongs to the defendant, pure and simple,” the Court said.  This “differs from a robber’s loot, a drug seller’s cocaine, a burglar’s tools, or other property associated with the planning, implementation, or concealing of a crime.”

“How are defendants whose innocent assets are frozen in cases like these supposed to pay for a lawyer – particularly if they lack ‘tainted assets’ because they are innocent, a class of defendants whom the right to counsel certainly seeks to protect?” the Court said, in rejecting the government’s arguments.

The Court also noted that if it allowed freezing untainted assets, more defendants would have to rely on “publicly paid counsel, including overworked and underpaid public defenders.”