Edward Lee Elmore was convicted of raping and murdering an elderly woman in 1982 in Greenwood, South Carolina. The only physical evidence supporting the conviction was “Negroid” public hair found on her abdomen. The hairs were found by the doctor performing the autopsy. He gave them to Earl Wells, an agent for the South Carolina Law Enforcement Division (SLED) who looked at them through a microscope and placed them in an envelope marked “Item T.” “Item T” was never given to the defense and when appellate counsel requested it they were told it was lost. In 1998, “Item T” was found in Earl Wells’ filing cabinet. It had been there the entire time. Wells said he found it when he was changing offices.

A retired FBI agent examined the hair and said it was not “Negroid.” It was Caucasian. Elmore’s attorney had the hair DNA tested. It did not belong to the victim, but apparently belonged to a White male who raped and killed the victim. Elmore, of course, is African American. In 2000 the matter went back before the trial court. But the court ruled that there was insufficient evidence to order a new trial. The appellate court and the South Carolina Supreme Court upheld the decision. Finally, last year the Fourth Circuit Court of Appeals ordered a new trial.

Instead of going to trial the prosecution agreed to release Elmore after he spent 11,000 days in prison, most of the time on death row. In order to get out he had to plead guilty while denying that he committed the murder. On Friday he walked out the front door of the courthouse in Greenwood, a free man.

Was justice done–No. An innocent man spent thirty years in prison for a murder he did not commit. Twelve of those years were spent after there was no reasonable claim left that he was guilty. The original conviction was obtained in violation of Brady when the prosecutor did not turn over “Item T” to the defense. The fact that it was found in the investigator’s file box certainly indicates that the failure to turn over the evidence was intentional. ¹ The racial undertones of convicting an African American man for the rape and murder of a White woman cannot be overlooked. Particularly the truth of the matter is that a White man raped and killed the woman. Furthermore, even though there is no doubt about his innocence the prosecutor forced Elmore to plead guilty to a crime he did not commit to get out of prison. It is a disgusting example of American justice, or shall we say injustice.

In a highly unusual move the Supreme Court issued a per curium decision and a three justice dissent by Justice Breyer ¹ on a Petition for Writ of Certiorari. ²

The appeal in question is from a Third Circuit Court of Appeal grant of habeas corpus ordering a new trial for a 1984 murder conviction and a sentence of death. The allegation is that the District Attorney withheld Brady discovery. The main witness at the trial was a co-participant in the murder named Bernard Jackson. The defense found a police activity sheet with the case number, Jackson’s name and a claim by Jackson that one Lawrence Woodlock was a co-participant. The defense claimed that this form is exonerating evidence and the failure to turn it over vacates the conviction. The prosecution claims that the evidence is ambiguous and that Jackson was thoroughly cross examined. The additional cross examination with the activity sheet will not have a material effect upon a jury.

The divided court granted certiorari and sent the case back to the third Circuit to determine whether the activity sheet is so vague that there was no reason to turn it over to the defense. Justice Breyer argued that it was not vague, that it clearly applied to the case and that since there was no question of law certiorari should be denied and the third Circuit decision allowed to stand.

The Supreme Court, yesterday, reversed the murder conviction of Juan Smith for the failure of the government to comply with Brady v. Maryland. In Brady the Supreme Court held that prosecutors have a duty to provide the defense with all evidence that is both exculpatory and material.

Several men broke into the New Orleans residence of Rebe Espadron in a home invasion robbery and killed five people. Smith was convicted on the basis of only one witness. Larry Boatner, one of the survivors, identified him from a picture spread and was the sole witness against Smith at trial. But prior to trial the prosecution failed to provide the defense with a number of Boatner’s statements, in some of which he said that he could not identify the killers. Since the statements could have been used at trial to impeach Boatner there iss no question that the statements are exculpatory. The Court also found the statements material since “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” When there is only one witness, his credibility is crucial to the prosecution and the failure to provide Brady evidence for impeachment can make a major difference.

The sad part is that New Orleans prosecutors have a long history of violating Brady. They have been called on this before but they continue to violate the law. They don’t seem to learn

One issue not raised in the Supreme Court decision is the unreliability of eyewitness testimony. Here you have only one eyewitness who’s statements are all over the book. At one point he says he did not see the faces of the murderer. At another point he says he could not recognize the murderers. And at a third point, while he is on the witness stand he states he is absolutely positive that the defendant is the murderer. As we have pointed out in the past eyewitness testimony is the number one cause of DNA post conviction exonorations. Over 75 per cent of those exonorated by the Innocence Project have been convicted on the basis of eyewitness testimony.

George Bush’s Justice Department indicted former Alaska Senator Ted Stevens. He was tried and convicted on charges of failure to report financial contributions to the Senate. After the trial it was accidentally disclosed that government attorneys failed to turn over important Brady discovery. ¹

The government then moved to void the conviction with prejudice. The presiding judge, Emmet G. Sullivan ordered an independent investigation and appointed Washington attorneys Henry F. Schuelke, III and William B. Shields to perform the investigation. Schuelke and Shields have completed the investigation and they turned over the 500 page report to the judge, who is at least temporarily is keeping the report under seal. But he released an order allowing the Justice Department, the attorneys involved and Steven’s attorneys to object to the unsealing of the report. The order indicated that the scope of the government’s failure to provide Brady discovery is greater than previously reported. Schuelke and Shields found that the government attorneys intentionally withheld Brady evidence that would have supported Steven’s defense and which would have questioned the credibility of the government’s major witness.

But at the same time the report recommended that the government attorneys not be criminally charged since there was no violation of a direct order from the court. Without such an order it would be difficult to find the attorneys in contempt of court. Sullivan’s order does not indicate whether Schuelke and Shields recommended that the attorneys be reported to the Bar for possible disciplinary action or whether they should be banned from further appearances before the District Court for the District of Columbia where the trial was held. It is expected that Sullivan will decide whether to make the report public by January and then we may know more.

As part of the Alaskan corruption investigation involving former Senator Ted Stevens, the government prosecuted State Representative Victor Kohring. He was convicted of attempted extortion and bribery.

The Ninth Circuit reversed Kohring’s conviction on Brady grounds, Friday, similar to those used to dismiss the charges against Stevens.

After Steven’s conviction and while Kohring’s case was on appeal the government disclosed significant documents that should have been disclosed prior to Stevens’ trial. At that point Kohring made a Brady motion and received thousands of pages of material most of which should have been disclosed prior to trial.

The documents included “FBI 302 reports,” undated and dated handwritten notes from interviews with Allen and Smith, e-mails, various memoranda, and police reports. They involved evidence that that Bill Allen who’s oil field services company, VECO, was attempting to get legislation through the legislature, was being investigated for having sex with minors. While this might not in and of itself been particularly relevant he attempted to suborn perjury and he attempted to hide a witness in the investigation. This affects his credibility and opens him up to significant cross examination. Other documents show that Allen and his colleague, Rick Smith, gave significantly different numbers as to the amount of money given to Kohring. The difference in the amounts would have given additional credibility to Kohring’s testimony and the jury may have found that the money was given for legitimate reasons if it believed the lower figures given to agents during the investigation.

In Brady v. Maryland the Supreme Court held that the government had to provide favorable, material evidence to the defense. To show a violation of Brady one must show “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.” In reversing the conviction the Ninth Circuit found that a Brady violation occurred. There is no question that the government suppressed evidence and that a significant amount of the evidence was favorable to Kohring. Furthermore he was prejudiced in that the jury could have found him not guilty if it had seen some of the suppressed evidence.

The First Circuit Court of Appeals reversed two District Court decisions excluding cooperating witnesses from testifying based on the alleged failure of the government to provide Brady discovery. The Supreme Court held in Brady v. Maryland that the government had a duty to provide the defense with all exonerating evidence. By exonerating evidence the Supreme Court meant evidence that is “favorable to the accused and material to guilt or punishment.” Specifically it requires the provision of evidence that is either exculpatory or impeaching in nature.

Joseph Prochilo is charged with possession of a firearm by a convicted felon and Elvis Guerrero is charged with attempting to buy cocaine for purpose of sale in separate cases. The cases against both men rely primarily upon cooperating witnesses. In each case the government provided initial Brady discovery relating to the cooperating witnesses. Defense counsel in both cases moved for further discovery.

Prochilo requested:

(1) details regarding the witness’s work with the United States Secret Service, the Essex County Sheriff’s Department, the DEA, and the FBI; (2) information regarding the other ATF cases on which the cooperator worked; (3) the witness’s cooperation agreements with government agencies other than the ATF; (4) a description of other firearms seized by the government as a result of the witness’s cooperation; (5) information about the cooperator’s contacts with other government agencies as they related to other matters or other investigations; and (6) a list of all benefits the witness received as a result of these contacts.

Guerrero requested:

to produce all information in its possession, custody, or control, regarding the witness, and identifying several categories of information.

Prochilo said that the requested information might reveal that the cooperating witness is “flawed”, that the discovery could help substantiate an entrapment defense, that many of the cases that the cooperating witness handled were thrown out requiring an explanation, and because only his counsel, not the government or the district court, will be able to judge what evidence is both favorable to him and material.

Guerrero claims that the discovery is needed for impeachment purposes.

The First Circuit reversed the District Court decisions in both cases. It held that for the defendants to obtain a court order for Brady material beyond what the government provides the defense must make specific requests for specific items and give specific reasons why the discovery is necessary. “[T]he defendant should be able to articulate with some specificity what evidence he hopes to find in the requested materials, why he thinks the materials contain this evidence, and finally, why this evidence would be both favorable to him and material.”

The problem with this is that you are asking defense counsel to request specific items from the prosecution’s file. If the defense knew what was in the file the defense would not need to ask for discovery. It is the basic requirement of due process and fairness that originally led the Supreme Court to require discovery of exculpatory evidence that is violated when you require the defendant to list specific items out of the government’s file so that he/she can use the items to impeach the cooperating witness.

In a multi-defendant prosecution for bank fraud the government informed the defendants that it planned to use statements made by co-conspirators, but not to call them as witnesses. The statements would come into evidence under an exception to the hearsay rule which allows the admission of statements made during the pendency and in furtherance of a conspiracy.

The defendants requested the complete notes taken during the proffers of those co-conspirators who’s statements the prosecution planned to use during trial. The trial court refused their request.

The Second Circuit upheld the ruling in United States v. Shyne et al. Under the Jencks Act which governs discovery of statements made by witnesses in a Federal criminal trial the government is required to provide statements made by a witness after the witness testifies but before cross examination. The Second Circuit held that since the Jencks Act does not mention non-testifying witnesses the proffers of the non-testifying co-conspirators is not discoverable.

But the Jencks Act is not the end of the question. Constitutional mandates trump the Jencks Act. The appellants raised Fifth and Sixth Amendment objections and of course the biggest exception to the Jencks Act is the Supreme Court Decision in Brady v. Maryland. In Brady the court ruled that due process requires the prosecution to provide the defense with mitigating evidence in the possession of the prosecution. The prosecution provided the defense with a letter listing the various mitigating factors for each of the co-conspirators. Assuming that the letter provides all the needed information, it does not help the defendants get the information into evidence.

The court did not discuss Rule 106 of the Rules of Evidence which states:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

How can a defendant move to admit the entire statement or know whether or not an entire statement has been entered if he/she is not given discovery of the entire proffer which is in the possession of the prosecutor?

Is the Sixth Amendment requirement of a fair trial met if the prosecutor has the entire proffer while the defense only has a summary of those parts the prosecutor wants to give him/her?

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.