Thomas L. Dybdahl | Longreads | June 2018 | 18 minutes (4,642 words)
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In early June 1958, 25-year-old John Leo Brady was in love. He was also in some trouble. His sweetheart, Nancy Boblit McGowan, had just told him she was pregnant, and he was the father. But she was only 19, married to another man. And Brady was broke.
He’d never had an easy life. He grew up poor in southern Maryland. His young parents, scraping their living from a small tobacco farm, couldn’t cope with a fussy baby. They gave him to his paternal grandparents and his Aunt Celeste, who raised him. From infancy through his late teens he suffered from serious otitis media, and his ears regularly oozed a thick, vile-smelling pus. At school, his classmates called him “stinkears.”
Brady gladly dropped out during the eighth grade to work full-time on his uncle’s farm. At 19, in 1951, he enlisted in the Air Force and served as a military policeman at bases in Washington state and Greenland. Then, over the space of four years, his otitis stopped, he got married, left the service, earned his high school equivalency, got divorced and returned home to Maryland.
In March of 1958, Brady met Nancy and her brother, Donald Boblit, because their parents were good friends with his aunt. Donald was 25, gawky, lonely and barely literate. Nancy was “just a dumb, good-looking blonde,” according to a friend, in the pre-feminist jargon of the ‘50s. Although both she and her husband, Slim, were living with her parents, they hardly spoke, and she let everyone know she intended to do whatever she wanted. Brady and the two siblings soon became close, and he and Nancy fell in love. Then Nancy got pregnant.
Brady didn’t know what to do. He was working at a local tobacco packing company for $1.50 an hour. He had recently bought a maroon 1947 Ford and was behind on his bills. But he wanted Nancy to know how much he was committed to her. She had planned a trip to New York to visit family for a week, leaving on Monday, June 23. That Sunday, when they were together, on an impulse he wrote her a check for $35,000, post-dated to July 6.
It was a dream sum—a huge number just pulled out of the air that he guessed could solve all their troubles, if he could only make it real. Nancy asked no questions; she put the check in her purse. Brady reminded her to wait. “Somehow,” he said, “in two weeks it’ll be in the bank.”
* * *
No matter how much he thought, Brady could see only one way to get that kind of money. He decided to stick up a bank, with Donald Boblit’s help. Over the next few days, they hashed out a sort of plan. Nearby big cities like Baltimore and Washington, D.C., had too many cops and guards. So they settled on the one bank in tiny Stevensville, Maryland, some 30 miles away just over the Chesapeake Bay Bridge. They’d do it on Saturday morning, because folks would have deposited their weekly pay on Friday afternoon.
Unfortunately, Brady’s old Ford wasn’t reliable, especially if they got in a chase. For a successful getaway, they needed a dependable car. William Brooks had one.
Brooks, 53, had known Brady for most of his life. He had been a hired hand on Brady’s grandfather’s farm and had recently stayed with Brady and his aunt while he recovered from surgery. Now Brooks had a good job working late shift at a small plastics factory in Odenton, about 20 miles southwest of Baltimore. He was living in a shack in some woods, not far from the plant. Less than two weeks earlier, Brooks had gotten his first new car: a blue, two-tone Ford Fairlane. Brady had seen it—and coveted it—when he dropped by to visit.
He and Boblit decided to waylay Brooks as he came home from work after midnight. Boblit would blindfold Brooks, since he would recognize Brady. Then they would tie him up and stow him in a vacant house Boblit claimed to know about. When the robbery was done, they’d let him go and give him his car back. Brady was adamant that Brooks not be harmed. “I don’t want him hurt, Donald, not at all,” he said repeatedly. “He was good to me when I was a kid.”
Late that Friday night, June 27, the two men put a log across the narrow dirt road that led from the highway to Brooks’ home. He would have to move it to get by. Then they waited in the dark.
* * *
Things went awry from the start. When Brooks stopped for the log, Boblit stepped out of the shadows with a double-barrel shotgun. He ordered Brooks to get in the back seat of the car. But Brooks seemed confused and started to get into the front seat. He kept pleading: “Please don’t kill me. Please.” He wouldn’t shut up. So Boblit hit him in the back of the head with the shotgun, knocking him woozy.
The men laid Brooks on the back seat of the Fairlane and drove away. Brady, improvising on the fly, wanted to find some dense woods where they might leave Brooks unnoticed. Boblit had a different thought. “We got to kill him,” he said. “He seen me.”
“Put that god damn gun away,” Brady replied. “Someone might hear a shot.”
Brooks had started to rouse when they parked near a stand of trees. They got him out of the car. He was wobbly, so together they walked him into the small forest. He was holding his lunch pail from work. They stopped in a clearing. Brady walked off a little, trying to think. Boblit didn’t hesitate. He took his own red plaid shirt, twisted the sleeves until they were tight and used it to strangle Brooks, who was too frail to resist. When Brady turned and saw what was happening, he ran back and pushed Boblit away. But it was too late.
“He’s dead,” Brady said, staring at Boblit.
“Let’s get out of here, John.”
The men carried Brooks’ body a little deeper into the woods. Brady put a few branches over his face and head before they left. On the way back to the car, he picked up Brooks’ lunch box and threw it as far as he could.
* * *
Their escape plan was no better than their robbery plot. The two drove to Chestertown, but when dawn came they decided not to hit the bank. “I just can’t do it,” Brady said. “Done enough.” They had gotten $255.30 from Brooks’ wallet. Brady figured they should head for Washington state, the only other place in the U.S. where he’d lived.
They made it to Lynchburg, Virginia, about 200 miles west. By then Boblit was asking to go home, and Brady didn’t want to fight. They left the Fairlane on a downtown street, walked to the bus station and caught a Trailways. They were in D.C. by late Saturday afternoon. From there they took a cab up to Glen Burnie, where Brady had parked his car.
Both men thought nobody would miss Brooks for a few days, at least. But his landlady, who worked at the same plastics plant, reported him missing when he didn’t show up for work at 4 p.m. on Saturday. She also told police she’d seen him with Brady, and they might be together.
Meantime, Brady, dreamer of crazy dreams, had been toying with the idea of going to Cuba and joining Fidel Castro’s rebels in the mountains. He had met some Cubans during his time in the Air Force, and they had talked up their revolution. He had even helped them move some small shipments of guns intended for Castro. So on Sunday morning, he drove down to D.C. and stopped by an aunt’s place just after noon. When she told him two policemen had been there a little while earlier, looking for him, his heart nearly stopped. After a short pause he handed her his keys and pointed to his car. “I’m going out of the country,” he said.
With his share of the money taken from Brooks, Brady bought a ticket to Cuba on a flight leaving early Monday. He was in Havana before noon. After a good sleep, he walked around the old city, wondering how to contact someone connected to Castro. About that same time, Nancy went to the bank in Maryland to cash his check. She hadn’t waited for two weeks, but it wouldn’t have mattered. There was no money at all in Brady’s account. She felt humiliated when the teller laughed at her.
But Brady was thinking about Nancy and her brother. Somehow, he convinced himself that he was personally guilty of only a minor crime: stealing Brooks’ car. He loved Nancy, and their child was on the way. If he turned himself in, he could say they just hit Brooks and left him by the road and didn’t know where he was now. That might get Boblit off the hook. Maybe he could still work things out with Nancy. So that Tuesday afternoon, rather than heading off into the Sierra Madre, he walked into the American Embassy.
A few hours later he was in a Miami jail cell, talking to two FBI agents. Brady said he had knocked Brooks out, then he and Boblit had stolen Brooks’ car. He told them where the car was. Sure enough, an agent in Virginia found the Fairlane. He said nothing about any killing.
On Wednesday afternoon Brady was formally charged with transporting a stolen car in interstate commerce. Bail was set at $25,000. The next morning, he told the agents he was ready to plead guilty. As a first-time offender, he was hoping for a short sentence, maybe even parole.
But two hours later the FBI men returned. “Your friend Boblit’s been picked up,” one of them said shortly. “He took us to where the body was.”
Brady thought Boblit had been in jail since Sunday, when the police had come to DC looking for him. And that Boblit had kept his mouth shut. In fact, Boblit had not been arrested until Wednesday, after Brady said his name to the legal counsellor in Havana. Three officers had come to Boblit’s house in the late afternoon.
At the station, they started asking Boblit about Brady and the stolen car. They had hardly begun when he looked at the floor and blurted out: “Well, I might as well tell you. You’re going to find out anyway … [T]he man’s dead.” He didn’t even know Brooks’ name.
Then he said: “Brady did it. It wasn’t me. I didn’t do nothing … It was all his idea and he done it all.”
The next day, down in Florida, the FBI agents told Brady what his friend had said. At first he wouldn’t believe Boblit had put it all on him. The agents insisted he had, and pointed out that what Boblit said fit with what Brady himself had told them earlier. So he gave his own statement, saying Boblit had hit Brooks and then strangled him. When he said before that he was the one who struck Brooks, he was just trying to protect Boblit.
That night, the front-page, banner headline in the Annapolis Evening Capital was “Police Charge Two With Slaying of Severn Man.” The story reported that “an odd, almost senseless series of events” had led to the murder charge. It said that “astute police work was not needed” to solve the case, because the two men “seemed pathetically anxious to be caught.”
After the arrests, Nancy and her family blamed Brady for what had happened. She wanted nothing more to do with him. He talked to her just once, when she came to visit her brother at the Annapolis jail. She stopped by his cell and asked: “Did you kill that man?” “No,” Brady replied. Then she turned and left forever. He never spoke to their son.
* * *
During his first week in custody, Boblit gave the police five statements. In the first four, he put everything on Brady. But after Brady returned to Maryland and said Boblit was the real killer, officers confronted him once again. This time Boblit admitted he was the one who hit Brooks with a shotgun and strangled him with his shirt.
The two men were charged with first-degree felony murder, for a killing during the course of a robbery. Because each was blaming the other, the government wanted to try them separately. Brady opted for a jury trial. The state decided to ask for the gas chamber.
Since he had confessed to the crime, Brady’s defense would be an extended plea for mercy: He should be spared a death sentence because he had not actually killed Brooks. Prior to the trial, his lawyer asked for any statements Boblit had made about the robbery. The prosecutor disclosed the first four confessions, but not the fifth. He didn’t want to hurt his own case.
That failure would be the biggest piece of luck Brady ever caught.
* * *
The entire trial took just two days, Dec. 8–9, 1958. The jury deliberated for less than three hours. There was only one real question: whether or not to recommend mercy, whether Brady would get life in prison or death. The foreman read the verdict—guilty of first degree murder. Period. Three days later, the judge sentenced him to die. Boblit chose a bench trial, but the result was the same.
On death row at the state penitentiary in Baltimore, a Catholic chaplain helped Brady get a new lawyer, E. Clinton Bamberger. He was a partner in a large local firm and would later become dean of the Columbus School of Law at Catholic University in Washington, D.C. When he reviewed the transcript of Boblit’s trial, he saw where Boblit had claimed his final statement about the crime was “not true.” From the context, Bamberger divined that in the statement Boblit must have admitted to the killing. He realized that could be the basis of a successful appeal.
Bamberger was partly right, but it took years. Several execution dates came and went. Brady lost his first appeals in the lower courts. Then in October 1961, the Maryland Court of Appeals held unanimously that “there was a duty on the State to produce the confession of Boblit that he did the actual strangling.” The failure to do so was a violation of Brady’s constitutional right to due process of law.
The relief granted, however, was limited. Brady was guilty of felony murder for taking part in the robbery, so nothing in Boblit’s fifth confession could have reduced Brady’s offense below first-degree murder. But the court said Boblit’s admission might have changed the jury’s mind about Brady’s sentence; they might have added “without capital punishment” to his verdict. He was entitled to a new trial on the issue of punishment alone.
Brady and Bamberger were both disappointed and feared a new sentencing trial might end like the first. They decided to appeal, hoping for a reversal of the conviction as well as the sentence. In October 1962, the Supreme Court agreed to hear the case.
* * *
At that time the Court was led by Chief Justice Earl Warren, who had served two and a half terms as governor of California before his appointment by President Dwight D. Eisenhower. On the bench, he used his political skills to full effect, always looking for ways to cobble together majorities in support of key decisions.
Warren had a pragmatic view of the law, and believed it should help promote fairness and justice. During his tenure, 1953–1969, the Court expanded a range of civil and criminal rights, and decided a number of historic cases. These included Brown v. Board of Education (1954), ending segregation in public schools, Loving v. Virginia (1967), holding that anti-miscegenation laws were unconstitutional, and Miranda v. Arizona (1966), requiring that suspects in police custody be expressly advised of their right to keep silent under questioning.
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Arguments in Brady’s case were held on the afternoon of March 18 and the morning of March 19, 1963. The 18th was an auspicious day: The justices spent the morning announcing their ruling in Gideon v. Wainwright, which held—for the first time—that indigent criminal defendants have a Sixth Amendment right to free legal representation in serious cases. Brady’s attorney and the state of Maryland presented their claims in the afternoon, with questions coming the next morning.
Bamberger was generally pleased with how things went on the 19th. He was sorry that Justice William O. Douglas, a strong supporter of individual rights and liberties, was the only justice who did not ask any questions and was instead writing letters and ostentatiously sealing them as the argument proceeded. Still, when he was finished, Bamberger expected to win.
The justices had other ideas. Less than two months later, on May 13, 1963, they affirmed the lower court ruling in a 7-2 vote. The opinion, written by Justice Douglas, said Brady was not entitled to a new trial on his guilt because under Maryland law Boblit’s last statement would not be admissible at such a proceeding. The majority’s reasoning on that issue was rather convoluted and in the words of one commentator, “almost certainly” a misreading of state law. But the conviction stood; only the sentence remained vacated.
There was no legal need to say more. But Douglas was just warming up.
* * *
Despite his apparent indifference at the oral argument, Douglas had decided to use Brady’s case to advance his own agenda. After a few paragraphs in support of the lower court ruling, he turned to what was really on his mind. “We now hold,” he wrote, in words dear to every defense attorney, “that the suppression by the prosecution of evidence favorable to an accused on request violates due process where the evidence is material either to guilt or to punishment.”
The point of this new rule, Douglas said, was not to punish erring prosecutors, but to protect defendants’ rights. “Society wins not only when the guilty are convicted but when criminal trials are fair; our system … suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly … ‘The United States wins its point whenever justice is done its citizens in the courts.’”
No one had seen this momentous decision coming, particularly in a case where the majority merely upheld the decision by the Maryland Court of Appeals. For one thing, the issue itself—suppression of favorable evidence by the prosecution—had not been briefed or argued by either side during the proceedings. For another, although Douglas had begun his money sentence with the phrase “we now hold,” this rule was not, in strict legal terms, a “holding,” since it was unnecessary to the actual decision in the case.
Douglas was probably the only man on the Court who would have tried something like this. He was an F.D.R. appointee and had always been a maverick. He would end up being the longest-serving justice in Court history, sitting from 1939 to 1975, writing hundreds of opinions and setting records for the most wives (four) and the most divorces (three) while on the bench. By the end of his tenure he had dissented in almost 40 percent of the court’s cases, and he wrote only for himself in more than half of those dissents.
To Douglas, the Constitution was not a neutral document, but one “designed to take the government off the backs of the people.” Broadly speaking, he believed “[t]he aim of law in its civilized sense is justice.” With the Brady rule, he was not merely announcing a new disclosure requirement. He was proposing no less than a “revolutionary shift” in criminal procedure, in the words of Judge Stephanos Bibas, a former law professor recently appointed to the Third Circuit Court of Appeals. And he had gotten a majority of his colleagues to support him.
* * *
What made this rule so radical, at least in its potential?
The U.S. justice system, imported from England, had always been fundamentally adversarial. Prosecutors and defense lawyers were intended to be vigorous partisans. The theory was that if each side argued its point of view and forcefully pushed its case a jury could discern where the truth lay. Neither party had a duty to find or share evidence favorable to the opponent.
In this system, pretrial discovery—the legal term for disclosing information—was minimal. A common belief, even among judges, was that letting a defendant know the case against him, prior to a trial, could subvert justice by allowing the accused to manipulate facts, or create evidence, or harm or intimidate witnesses against him. Only toward the mid-20th century did that view begin to shift, with courts sometimes noting that a prosecutor’s job should be to seek justice, not just win convictions.
With the Brady rule, Douglas embraced this principle, seeing it as a way to move the criminal process from one of adversarial combat to an inquisitorial, innocence-focused system. He imagined a mutual search for facts, where the prosecutor shared relevant information with the defense, and the two sides determined the truth together. This joint effort would both protect the rights of an accused and also ensure that justice was done.
It was a lofty aim.
Brady did not lead to a transformation of the justice system into a joint search for truth. The biggest reason was that in the trenches there was little support—from either side—for such a seismic shift. But it did impose a significant burden on the government that defense lawyers welcomed: prosecutors now had both a constitutional and an ethical duty to disclose favorable information.
Not surprisingly, there have always been conflicting views about compliance. Some defense lawyers term the rule a failed promise, not unlike the $35,000 check Brady had written to Nancy back in 1958. Steven D. Benjamin, a Richmond, Virginia, attorney and recent past president of the National Association of Criminal Defense Lawyers, says it “simply hasn’t worked.” Law professor Bennett L. Gershman called it “a monument to judicial and ethical impotence.”
But the facts are much more nuanced. While the Brady rule is sometimes disregarded, even deliberately so, it has had a significant impact on criminal trials. Every day, conscientious prosecutors honor their duty to hand over exculpatory evidence, even when it makes their jobs more difficult. Judges regularly admonish the government to follow the rule. And over the years, federal and state courts have reversed hundreds of convictions for Brady violations.
The real debate today is about enforcement. The complex jurisprudence that has grown up around the Brady decision—particularly that a constitutional error occurs only when the withheld evidence is “material,” meaning that it would likely result in a different verdict—has led to inconsistent results. Critics, mostly defense lawyers, argue that the courts have been too reluctant to overturn convictions for alleged Brady violations. Supporters say judges have struck a reasonable balance.
In the end, the maxim underlying the rule—that the government wins “whenever justice is done”—remains more aspirational than actual. Until that changes, the reach of Brady will be limited.
As for Brady himself, the Supreme Court’s ruling left him in limbo: guilty of murder but not sentenced. Neither his lawyers nor the prosecutor knew what to do next. The state of Maryland had never before had a punishment-only trial and wasn’t sure how to conduct one. Brady’s lawyers knew that a new trial might end once again with a death sentence and negate his partial victory. So both sides simply waited. And then waited some more.
Finally, 10 years on, in 1973, his attorneys decided that the passage of time had significantly weakened the state’s ability to make its case. They asked for a speedy punishment hearing. After some legal maneuvering on both sides, the governor granted Brady clemency, and he was paroled in 1974.
If the prosecutor had not kept Boblit’s last confession from the defense, if the jurors had known that Boblit admitted killing Brooks, Brady would likely have received a life sentence at his trial. Had that happened, once his appeals were denied he might have spent the rest of his days behind bars. Instead, thanks to the error, after 16 years inside he walked free.
The time on death row had been especially difficult for him. In a letter to one of his lawyers, written in 1965, Brady had described some of his feelings:
For six long, lonely years I have watched the great stars march and wondered if I would be alive to watch them another day. I have died a thousand deaths during the past years. Each day I die a little more … I look out upon the world and see only darkness. I am alone, without love, without friends, without hope. My only companion is fear.
* * *
Despite his eloquent expression of anguish, Brady was not without hope. He married a Baltimore nurse he met while on work furlough from prison. After his release he started taking college classes, majoring in criminal justice. He figured it was the one field where his real world experience might be helpful. He and his wife had a son and a daughter together.
His ex-friend Boblit did not fare so well. His life was spared in 1972 when the Supreme Court ruled that the death penalty, as imposed at that time, was unconstitutional. But in 1992, a few years after being paroled, Boblit was charged and convicted for rape and sent back to prison for life.
When Brady’s son was a teenager, he told him his life story. Later the boy found a phone number for his dad’s old lawyer, and called Bamberger. “I’m John Brady’s son,” he said. “I just wanted to thank you for saving my father’s life.”
After 12 years of marriage, Brady and his wife divorced. He moved to Florida, where he worked as a truck driver, married again and became a serious fisherman. By all accounts, Brady was never in trouble again. He lived to be 76 and died of natural causes in 2009. He always said he was sorry for his part in the crime. William Brooks had been his friend.
* * *
Thomas L. Dybdahl, who has degrees in theology, journalism and law, retired in 2013 after 13 years as a staff attorney at the Public Defender Service for the District of Columbia, where he worked in both the trial and appellate divisions, and tried 25 homicide cases.
Published in partnership with The Marshall Project.