Posted on January 12, 2012 by Walter Reaves

Is Supreme Court sending signal on Brady violations?

The Supreme Court reversed a conviction this week on a Brady violation. The case Smith v. Cain is another one of Louisiana - and presents a claim that probably would have been dismissed a few years ago.

Smith was convicted of killing five people during an armed robbery. There was only witness who was able to identify Smith, who he said was the first person through the door. After he was convicted and his appeal was denied Smith filed a writ of habeas corpus in State court, which was also denied. The writ was based in part of the failure to disclose notes from the investigating officer; those notes indicated that he talked with the witness on the night of the offense and he could not provide a description of the assailants, and also talked with him several days later and was told he could not identify anyone. The Supreme Court found those notes were material, and were significant enough to reverse the conviction.

The decision was 8-1, with Judge Thomas dissenting. In his dissent he set out the other evidence, which he claimed would have negated the impact of the investigator's notes. The other evidence is not that different from other cases where the court has denied relief. There was another investigator who testified that the witness gave a description although he could not remember exactly what it was. The investigator who made the notes also testified that the witness gave a description, which was brown skin person with short haircut, who had lots of gold of teeth. The witness had been shown several line-ups and did not identify anyone. When he was finally shown one with Smith he identified him immediately, stating he would never forget that face. At trial he also identified him, saying it was the same mouth and the same teeth.

The inquiry in any Brady case is whether the evidence was material - which requires the defendant to show a "reasonable probability" the result would have been different. In this case, the issue is whether the notes would be enough to discredit the identification. There's no doubt its a subjective decision, and I think this case shows the courts may be looking at such claims differently.

It wouldn't take long to find a number of cases with similar - if not more compelling facts - where relief has been denied.  So what's the difference? I would like to think that it is the result of a shift in attitude and perception. Several years ago courts refused to believe prosecutors withheld evidence. Now they have no problem accepting that it happens. - the question is how often. Perhaps it's also a recognition that the State shouldn't be rewarded for breaking the rules.

Whatever the reason, it's a welcome change. More still needs to be done - especially in the area of holding prosecutors accountable. But you have to start somewhere, and granting relief on Brady claims is a great place to start at.

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Posted on October 17, 2010 by Walter Reaves

How accurate (subjective) are fingerprints?

Thanks to Scott Benson at Grits for Breakfast for pointing out a story that provides more ammunition for attacking fingerprints. At a forensic conference sponsored by the Texas Court of Criminal Appeals Texas DPS fingerprint examiner Bryan Strong described how they resolve disputes among examiners. Here's the story related by Grits:

Mr. Strong described what happens when the first examiner finds a match but the verifying analyst doesn't agree. In such instances, he said, they notified their supervisor and all of them conferred to make a decision. A defense attorney in the crowd asked what seemed to me an obvious question: When two examiners originally disagreed but a supervisor resolved the issue in favor of a match, was that disagreement recorded in the final report? No, replied Strong, only the conclusion. At this, the audience began to murmur and fidget. Somebody from the back cried out, "Have you ever heard of Brady v. Maryland?," which is the US Supreme Court case requiring the state to turn over all exculpatory evidence to the defense  before trial. No he had not, replied a credulous Strong, a statement which elicited an audible gasp from the crowd.

The Brady problems are obvious, and create a whole of host of potential issues. What struck me about the story however is that provides more evidence of just how unreliable - and unscientific - fingerprint examinations are. Despite what they want you believe, fingerprint examinations are nothing more than a subjective opinion. The fact that two examiners disagree shows that.

I've said it before, and I'll continue to say it: we need to challenge fingerprints more often. There is no science involved, and we need to keep pointing that out. While comparing inked prints to inked prints may be reliable and accurate, there is a big difference between an inked print and a partial print that you have only limited information on. This story gives us one more weapon in the arsenal.

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Posted on April 29, 2009 by Walter Reaves

How much should you disclose?

I am still trying to figure out the impact of yesterday's decision in Cone v. Bell. The case has an unusual fact pattern - due in large part to the State's inconsistent arguments - which may limit its application to other cases. One thing I did take out of the case was the desire to make sure we understand how limited the constitutional obligation to disclose favorable evidence really is (in legal terms - Brady material)

The majority opinion noted in a footnote that a prosecutor's ethical obligations are broader than the requirements of Brady. The ABA standards require prosecutors to disclose any evidence that is "favorable" to a defendant. In contrast, Brady only requires the disclosure of "material" evidence. That is is signficant distinction, because what is material depends on who you ask. Prosecutors seldom think anything is material because the evidence is overwhelming. Most of the time the Courts agree, since you have to prove the evidence would probably alter the outcome.

It was not only interesting that the Court pointed out this distinction, it was also interesting that Justice Roberts addressed the distinction in his short concurring opinion. He wanted to make sure the Courts knew they should use the constitutional test, and not some other standards.

The judge who presided over the Sen. Stevens trial knows too well the distinction. He has written a letter suggesting the federal rules be changed to require disclosure of favorable evidence. Obviously,  he's had the opportunity to witness first hand the problems with leaving too much discretion in the hands of prosecutors.

Whatever else Court held, they pointed out again that a prosecutor can comply with the constution without complying with the rules of ethics. I'm sure that's a great comfort to defendants.

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