In the classic case of Brady v. Maryland the Supreme Court found that prosecutors must provide material evidence in their possession or the possession of the law enforcement agency to the defense where that evidence might be helpful. Today we will look at a Seventh Circuit case in which the appellate court refused to order a new trial since the evidence held by the prosecutor and law enforcement agencies was not material.

To establish a Brady violation the defendant must prove:

(1) that the prosecution suppressed evidence; (2) that
the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.

James Daniel started an on-line conversation with Amanda_13 about sex. Eventually they agreed to meet in Will Park in Valparaiso, Indiana. Daniel promised to bring a condom. But Amanda_13 was not named Amanda and “she” was not 13. “She” was Sergeant Richard Howard of the Porter County Sheriff’s Department. Instead of having sex in the park Daniel was arrested there. Daniel’s second mistake was to give consent to search his computer. The government’s expert found two more sets of communications involving daisy13_Indiana and blonddt. Both sets of conversations were introduced at trial. But unbeknownst to the prosecutor at trial both daisy13_Indiana and blondtt were law enforcement officers working the same scam as Sergeant Howard. At some point between the end of trial and sentencing the prosecutor found out that daisy13_Indiana was a law enforcement agent and it wasn’t until oral argument that the prosecutor found out that blonddt was also a government agent.

After the prosecutor informed the defense counsel that daisy13_Indiana was a police officer, counsel did not request a new trial or inform the court. (Habeas on incompetence of counsel coming up next?) Without objection from in defendant in the trial court, at least as far as Daisy13_Indiana the appellate court uses a plain error test judge the Brady error.

Under the plain error standard, the alleged Brady violation must be an obvious error that affected Daniel’s substantial rights and created a substantial risk of convicting an innocent person.

The appellate court found that the evidence was not material. First, impeaching the expert would do no good since he was not involved in the investigation. Second, since the conversations with daisy13_Indiana and blonddt occurred after the conversation with amanda_13 they could not be used to show entrapment and finally the evidence was admitted to show Daniel’s state of mind and whether they were peace offices or not was not relevant as long as Daniel thought that they were young girls.

The Supreme Court ruled last week held that there is no due process right to DNA discovery post conviction.

William G. Osborne was convicted of rape and assault for a 1993 incident in Anchorage, Alaska.At the time of the trial modern DNA tests were not available. The results obtained from the DNA test did not exclude eighteen percent of African American men.

Osborne filed a 1983 civil rights action in Federal Court to get the DNA sample which he plans to have tested at his own expense. The District Court denied his request. The Ninth Circuit Court of Appeals upheld his right to the discovery and the Supreme Court last week reversed the decision of the Ninth Circuit.

While, under Brady, there is a pretrial right to discovery, the Ninth Circuit erred, according to Chief Justice Roberts in his majority opinion, in extending the right to post trial discovery, despite the fact that Osborne has a liberty interest in pursuing post conviction relief.

The Supreme Court held that one can only obtain post trial due process relief if the available process “offends some fundamental principle of justice” or “transgresses any recognized principle of fundamental fairness.” While Alaska does not have a statute specifically granting the right to post trial DNA, a review of the statutes and judicial decisions in Alaska indicates that post trial right to a DNA examination is available under various circumstances and the process by which it can be obtained does not offend the fundamentals of justice or transgress recognized principle of the fundamental fairness.

Furthermore the Court refused to extend the right to substantive due process to the right to post trial discovery of DNA samples. First there is no long standing right to DNA and secondly the court did not want to interupt the legislative and judicial process which is happening in each of the states and Congress. There are 46 states in which legislation has been enacted which in one way or another guarantees the right post trial discovery of DNA samples.

Justice Stevens in dissent, wrote that while Alaskan law permits post trial discovery of DNA samples it is not clear that the discovery is granted in practice, In particular he noted that it was not granted to Osborne even though it appears that it could exonerate him. Second, Stevens states that there is a fundamental right in not being incarcerated if one is innocent and that denial of the DNA discovery violates his due process liberty right.

Attorney General Eric Holder in a brief filed before the Ninth Circuit Court of Appeal admitted that the government failed to provide significant discovery to two Republican members of the Alaska legislature who were convicted on corruption charges . The cases of former Alaska House Speaker Peter Kott, from Eagle River, Alaska, and former state Rep. Victor Kohring, from Waslla, Alaska, are currently on appeal before the Ninth Circuit. Holder asked the court to release the defendants on their own recognizance and to return the cases to the trial court where it is expected that their attorneys will move to have the cases dismissed on Brady grounds. In Brady v. Maryland the Supreme Court ruled that the failure of the government to provide a defendant with discovery favorable to the defendant violates due process. Kott and Kohring were charged with bribery, extortion and conspiracy for allegedly accepting bribes from VECO, an oil services company in exchange for legislative votes which favored the company. After being convicted Kott was sentenced to six years in prison and Kohring was sentenced to 3 1/2 years.

The admission is particularly embarrassing since it has only been two months since the government was forced to ask U.S. District Judge Emmet G. Sullivan to dismiss corruption charges against Alaska Senator Ted Stevens for similar reasons. The documents that the government failed to provide to the attorneys for Kott and Kohring were discovered in the Stevens trial. It was only after Stevens’ attorney sent the documents to Kott’s attorney that Kott was able to move for discovery in the Ninth Circuit. Holder’s request came while Kott’s motion was pending before the Ninth Circuit.

Delray Price was a passenger sitting in the right rear seat of a car driven by Rosie Lewis. A friend of Rosie Lewis sat in the right front seat and another man sat in the right rear seat. Portland police officers saw the car and recognized Price and the other man as being parole violators. They pulled over the car and arrested the two men. Prior to pulling over the vehicle they saw Price bend over. The officers found a gun under the driver’s seat and Price was charged with possession of the weapon.

At trial Antoinette Phillips testified for the prosecution that shortly before the arrest she saw Price with a gun tucked in his waistband.

Despite his attorney’s best efforts to discredit Phillips, Price was convicted and he was sentenced to nearly eight years in prison on the gun charges..

After the trial his attorneys discovered that Phillips had a long criminal history including numerous incidents of moral turpitude, which would have placed doubt on her credibility if the incidents had been put before the jury.

Price’s attorney brought a motion for a new trial.. The district attorney testified at the hearing on the motion that he did not remember whether or not he received Phillips criminal history prior to trial. But the prosecutor has a duty not only to turn over exculpatory and impeaching evidence but to obtain such evidence from the police and any other organization involved in the arrest and conviction. The lead case in this are is Brady v. Maryland and the d=evidence is often call Brady evidence.

In any case the trial court refused to grant a new trial and the case was appealed to the Ninth Circuit Court of appeals.

Unlike most attorneys who have a duty only to their client the prosecutor has a duty not only to his client (the government) but also to do justice. Therefore he/sher has a duty to learn of the existence of favorable evidence to the defense and to disclose such evidence. In United States v. Price The Ninth Circuit Court of Appeals found that the prosecutor failed to live up to his/her duty by not providing the defense with the evidence of Phillips’ record and therefore preventing counsel from adequately cross examining Phillips.

Brady evidence must meet a three prong test. first it must be exculpatory or usable for impeachment. Second it must have been suppressed by the government, either intentionally or accidentally, and finally the failure to provide the evidence must be prejudicial. In this case all three prongs were met. It clearly could have been used to impeach Phillips. It was not provided to counsel and it was available to either the prosecutor or to the law enforcement agencies involved in the investigation. It was prejudicial because counsel would have used the evidence to impeach the leading prosecution witness.

The Supreme Court on a writ of habeas corpus reversed a sentence of death in a Tennessee case based upon the failure of the prosecutor to comply with the requirements of Brady v. Maryland Brady required prosecutors to provide discovery of all ameliorating evidence in their possession or the possession of investigating police departments.

In Cone v. Bell, Warden the question was not whether the prosecutor had complied with Brady. All agreed it had not. But the question was whether the matter had gotten a fair hearing in the state courts and whether the failure to provide Brady discovery affected Cone’s right to a fair trial and sentencing under the Fourteenth Amendment. The Supreme Court found that the Tennessee court had not given Cone a fair hearing on the Brady issue. In fact the Tennessee courts had never considered the issue on its merits. At various times the Tennessee courts had ruled that Cone was not entitled to a hearing on the merits since he had already had a hearing and conversely that he had waived a hearing on the issue.

On August 10, 1980 Cone robbed a jewelry store in Memphis. He then led the police on a high speed chase. Eventually he abandoned the car and shot a police officer. Next he shot a bystander that attempted to aid in his arrest. He then tried to hijack another vehicle but he failed since he was out of ammunition. The next morning he tried to use his gun to get into the house of an elderly woman but she slammed the door and called the police. That afternoon he beat to death an elderly couple and ransacked their house. He was arrested several days later in Pompano Beach, Florida after robbing a drug store.

At trial he did not deny any of the incidents. Instead his counsel argued that he committed the crime while insane as a result of extreme amphetamine use. The state easily refuted the evidence and the jury found him guilty on all counts.

On direct appeal Cone raised a number of issues including the state’s failure to disclose a tape and some police reports. The Tennessee Supreme Court denied each of his claims. He filed a habeas with the primary grounds being incompetence of counsel. Again the court denied it. He filed a second habeas in pro per. While his petition was pending the Tennessee courts ruled that criminal defendants had the right to review their prosecutorial files. The trial court denied his petition but the appellate court appointed counsel and allowed him to file an amended petition. For the first time he was allowed to see his file and discover that their were a number of documents in it that had not been disclosed and that would have helped prove his drug use and his insanity. But the amended second petition was also denied by the Tennessee courts. They found that even if the discovery had been provided it would not have prevented his conviction. But they did not consider the effect that the discovery might have had on the jury’s finding of death.

The Supreme Court agreed that the discovery would not have affected the conviction but it found that if the discovery had been provided it might have affected the finding of death and it sent the case back to the Tennessee courts for a determination of whether the missing discovery would have affected the finding of death.