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.

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.

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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.

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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.

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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?

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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.

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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.

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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.

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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.

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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.

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