Futility of Exhaustion: Why Brady Claims Should Trump Federal Exhaustion Requirements

A defendant’s Fourteenth Amendment due process rights are violated when a state agency fails to disclose crucial exculpatory or impeachment evidence — so-called Brady violations. When this happens, the defendant should be provided the means not only to locate this evidence, but also to fully develop it in state post-conviction processes. When the state system prohibits both the means and legal mechanism to develop Brady claims, the defendant should be immune to any procedural penalties in either state or federal court. In other words, the defendant should not be required to return to state court to exhaust such a claim. Instead, once the federal court finds a viable claim, the court should be allowed to review the claim on the merits and grant relief. Because these claims arise from the failure of state actors to perform their duties properly, the federal courts should forfeit their right to demand adherence to the federal exhaustion requirement. Requiring a defendant to return to state court for exhaustion penalizes the defendant unjustly for a constitutional violation created solely by the state.