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.

Tags: , , ,
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.

Tags: , , , ,
Posted on May 7, 2008 by Walter Reaves

Why not open the files?

it's not too surprising that almost everyone is commenting on the Dallas district attorneys recommendation that prosecutors be held responsible for not disclosing favorable information.  While I certainly agree with Mr. Watkin's idea, I have somewhat different take on the issue.

Those of us who have practiced for a number of years, learned long ago that prosecutors never think anything is exculpatory.  I have even seen prosecutors argue that an identification of someone else is not exculpatory, because the police excluded that person as a suspect.  The obvious problem with putting the burden on the prosecution is that they always believe the defendant is guilty.  If you think someone is guilty, how can you ever believe something is exculpatory?  The standard practice has been to ask the court to review the file, and make an independent determination.  Sometimes that works, but again I have seen information that I believed was exculpatory, but not disclosed.

Civil lawyers are always appalled to learn about the discovery available in a criminal cases.  You can sue someone for a few hundred dollars  and be able to learn everything about them.  However, you can be fighting for your life, and not be told anything about the charges against you.  How can anyone think that is fair?  We can solve a lot of the problems simply by requiring the state to furnish defense lawyers with every thing they have.  There may be privacy issues,  but those can be dealt with.  If you are trying to take away someone's freedom, there is no reason why they should not know everything you know.  Of course, the prosecutors still may not know some things if the investigators don't pass that on.  But it certainly would be better than it is now.

We've been talking about everything else to prevent convicting the innocent.  There is no telling how many convictions could have been avoided, if only the defense had access to everything the prosecution knew.  This is a simple fix, and there is really no good reason why it shouldn't be implemented.  That's probably exactly why we will never see it happen.
Tags: , , , ,