The Duty to Respond – Or Not

How one man lost his freedom and the right to stay in the United States.

One of the great things about a lawsuit is that the other side has to answer. Consider how the debate about same-sex marriage changed radically once the opponents had to defend their position with live witnesses instead of slogans. Even if there is no trial, the defendant still has to respond to the legal arguments the plaintiff advances. However, recent events in a pro bono criminal case I am handling has caused me to add a caveat: there is a duty to reply except in circumstances in which the government has no ready answer, and the rules allow it to “waive” its right to respond. In this case, the result is a potentially gross miscarriage of justice: The refusal of anyone to tell my client why his claims are not valid means that not only will his conviction stand, but he will almost certainly be deported.

My client, Wilfredo Gonzalez Lora, was convicted in federal court in Alexandria, Virginia, in January 1999 of being the lynchpin of a 12-year-long drug operation in the District of Columbia. The witnesses were eleven convicted drug dealers, all but one of whom were still in prison. They all swore that the operation was centered in my client’s Northwest DC body shop. The government introduced no actual drugs as evidence, and there was no law enforcement surveillance. The trial lasted only two days from jury selection to verdict. My client maintained his innocence from the start, but on advice (probably unwise) of his trial lawyer, he did not testify. Aside from denying that he knew most of the witnesses, he had government records (also not offered at trial) which showed that he had owned his shop for only two and a half years, well after the conspiracy was alleged to have started. While in federal prison, he became a prolific writ writer, filing numerous motions and appeals in an effort to overturn his conviction – none successful.

Some months after I began working with him, he provided me copies of vital documents that should have been given to his lawyer at trial but never were; years after the trial, he had obtained them through backdoor means. The two most important ones are the presentence reports for the two key witnesses against him. One witness testified that he ran drugs from New York to the District starting in 1986 and continuing to 1990, when he moved to this area. The witness’s presentence report, compiled by federal probation officers with the witness’s help, revealed that he lived in Puerto Rico until 1988; then he moved to Washington, where he worked for several years. There was no mention of ever having lived in New York.

The second witness testified that he worked for my client in his auto shop from March 1988 to May 1990, where he saw massive drug deals go down. His presentence report gave his employment record during that same period as two Virginia body shops – again with no mention of working in the District, let alone for my client. Not only would those pre-sentence reports have been dynamite for cross-examination, but under a 1963 decision of the Supreme Court, Brady v. Maryland, the government was required to produce these exculpatory documents, even if they were not specifically requested.

Over the last twenty years, Congress has placed major roadblocks in the way of those convicted of crimes who wish to attack their convictions after their initial appeals. Each prisoner is allowed one habeas corpus petition, but after that the defendant must obtain permission from an appeals court before being allowed even to file a new challenge in the district court. Because my client had filed several prior challenges, I needed to seek permission from the Fourth Circuit before I could even file my Brady claim. Under the applicable statute, the Fourth Circuit had only 30 days to act on my motion, which meant that the government would not have to state its position unless the court asked for it. It made no such request, but issued an order which stated only “The court denies the motion.”

I then sought review in the Supreme Court. Because of some potential jurisdictional hurdles, I filed both a certiorari petition and an original habeas petition. They both set forth the relevant facts and legal claims and noted that neither the government nor the Court of Appeals had offered any factual or legal basis to deny the motion. This time, I thought, the Justice Department would have to respond and offer some basis for rejecting the petitions. But I was wrong. Instead of filing a brief in opposition, the Solicitor General simply filed a “waiver” -a pleading which tells the Court, in effect, “there is nothing here and so we will not spend our time and money replying.” I do not doubt that there are many criminal cases in which a waiver is a proper response, but in those, the Government has fully explained its position in the lower courts, generally supplemented by one or more judicial opinions. A defendant may not agree with the reasons for rejecting those claims, but, unlike my client, he or she at least has had some explanation.

Frustrated, I wrote Attorney General Loretta Lynch and asked her to look into the case. I pointed her to a recent essay by Ninth Circuit Judge Alex Kozinski, in which, among other criticisms of our justice system, he concluded that there is “an epidemic of Brady violations.” I reminded her that two high-ranking lawyers at the Department of Justice had responded to that letter, challenging that assertion. The response claimed that the Department took charges of Brady violations seriously, would investigate them, and would correct mistakes that were found. My letter to the Attorney General pointed out that no Department official had responded to the merits of my petitions, and it challenged her to do an investigation in my case.

To date, I have not even received an acknowledgment from her office, let alone a substantive response. And in the meantime, the Court denied both my petitions, without seeking a response and with not a word explaining why they were rejected. To some, this may sound like the gripe of a lawyer who lost his case, but there is much more at stake than that. When a man is convicted of a serious crime and discovers that his constitutional rights were violated because the federal prosecutor did not turn over clearly exculpatory evidence at his trial, he should at least be entitled to some explanation from the Department of Justice or some court as to why his conviction should not be overturned.

My client was released early from prison on November 10, 2015. Even though he was lawfully in the United States when he was arrested, he now has a felony drug conviction, which means that he is scheduled to be deported almost any day. There are very few options remaining, none very promising. If they fail, what do I tell him about our justice system? How do I explain that he was convicted based on the testimony of at least two witnesses who lied, and whose lies went undetected at trial because the government hid key documents that would have revealed the truth? How do I explain to him that not only did he lose even after he revealed the government’s wrongful conduct, but that no one in the government ever had to explain to a single judge why his claim was invalid? When he asks me why he spent more than 17 years behind bars for a crime he did not commit, what should I tell him then?

I suppose I can tell him that many motions to overturn convictions are plainly without merit, that the courts and prosecutors are very busy and should not have to respond to frivolous motions, and that our courts have a strong interest in finality. But if I did, he would say, what about justice and what about my legitimate claim?

I will have nothing to say in reply.

Alan Morrison

Alan Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington University Law School.