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Posts Tagged ‘Brady v. Maryland’

What all my criminal defense attorney pals long believed to be true got some supportive press this week along with some empirical backing. Defense lawyers know the criminal system is broken largely because of prosecutorial misconduct and the failure of some courts to act as “the guardian of our constitutional rights.”

https://upload.wikimedia.org/wikipedia/commons/thumb/4/4f/M2500_washed_sand_on_conveyor_%286238147930%29.jpg/320px-M2500_washed_sand_on_conveyor_%286238147930%29.jpgIndeed, as one of those defense lawyer friends who’s also a scholar writes, “Prosecutorial misconduct has infected every stage of the criminal process ranging from the initial charging decision through post-conviction proceedings.”

Moreover, in the words of a dissenting jurist, criminal defendants, especially the indigent, are treated like just another fungible item to be shuffled along on a criminal-justice conveyor belt.”

Several days ago, Nina Morrison, a senior staff attorney at the Innocence Project in New York, wrote a scathing op-ed in The New York Times, What Happens When Prosecutors Break the Law?”

https://cdn.morguefile.com/imageData/public/files/c/click/preview/fldr_2008_11_08/file000521358819.jpg“All too often,” she wrote, the justice system“falls silent when the culprit is a prosecutor, and the victim is an ordinary citizen accused of a crime.”

Relying on a recent case to make the point that misconduct by prosecutors too often goes unpunished, she discusses what happened when Suffolk County, NY homicide prosecutor Glenn Kurtzrock was caught violating Brady v. Maryland, 373 U.S. 83 (1963). This is the U.S. Supreme Court decision that requires prosecutors to turn over any materially exculpatory evidence in the government’s possession to defendants. Well, Kurtzrock was caught withholding exculpatory evidence in violation of Brady in multiple cases.

“So what happened to Mr. Kurtzrock?” Morrison asked.

Nothing.

Thirteen months after his public firing, and five murder cases overturned because of his illegal actions, Mr. Kurtzrock hasn’t been charged with a single crime. Not fraud, not tampering with government records, not contempt of court.

And he hasn’t even been suspended from practicing law, much less disbarred. He’s now working as a defense lawyer in private practice. That’s right: he’s making a living representing people accused of crimes, in the same courthouse from which he was (supposedly) banished a year ago. His law firm website even touts his experience as a “former homicide prosecutor.”

The law also makes it virtually impossible for Mr. Kurtzrock’s victims to sue him, with the Supreme Court having declared that individual prosecutors and their offices are “immune” from civil rights lawsuits in all but the rarest of cases.

Nina Morrison’s commentary should be widely read.

Verifiable support.

Empirically speaking, the current Houston Law Review as usefully summarized by the website, The Open File, at TX: In Harris County Capital Cases, Prosecutors Get to Be the Judges,” discusses what they call a “thorough and definitive” essay, “The Problem of ‘Rubber-Stamping’ in State Capital Habeas Proceedings: A Harris County Case Study,” by Jordan Steiker, James Marcus, and Thea Posel.

It’s about “how Harris County criminal court judges act as little more than feckless vessels, used by prosecutors to sign off on whatever version of events the local prosecutors believe will be most helpful to their litigation interests.”

The researchers examined 199 Harris County capital post-conviction cases since 1995 to find that

Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95%. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96%. In the vast majority (167) of those cases, the judges simply signed the state’s proposed document without changing the heading.

[The lawyers, policy advocates, law professors and students at The Open File were galvanized to write about prosecutorial misconduct and system failure by the 2011 U.S. Supreme Court case, Connick v. Thompson, a decision that also raised my hackles here.]

But what’s most concerning about the Harris County case study is what The Open File author opined, “More studies like this one ought to be undertaken to uncover these practices in other parts of the nation. It would not surprise us if the percentages of rubber-stamped recommendations in many death penalty jurisdictions rival the Harris County findings.”

And summing up, he declared, “Prosecutors do not need any more power than they already possess. Letting them act simultaneously as judge and prosecutor makes a mockery of due process and our criminal courts.”

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Credits: “washed sand on conveyor,” by Peter Cravens, Wikimedia Commons, creative commons attribution generic license; “justice,” morguefile.com.

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I had bats on my mind yesterday. First there was the report Thursday about bats causing pandemonium sending people screaming from an Arkansas courtroom. I’ve been in really old courthouses and know that rodents live there but this was a first concerning bats. Bats in the belfry Then also last night, I read not about bats but brickbats thrown by the Ninth Circuit over another case of prosecutorial malfeasance. Railing as I have over time, about the persistence of prosecutorial misconduct, for instance, here, here, here, here, here and here, all those posts have started to seem “like the [impotent] vaporings of the fellow with a large flock of bats in his belfry.”

 

Prosecutor punishment rare.

So here I am back in the same belfry. The problem is that state judges rarely punish the misconduct by at the very least, referring the wrongdoing prosecutors to state disciplinary authorities or at best, by sanctioning the transgressors by reversing the convictions. Furthermore, state bars hardly ever bring disciplinary complaints on their own against prosecutors. Consequently, state supreme courts almost never disbar prosecutors for dereliction, lying, or for failing to disclose evidence to the defense that deprives defendants of a fair trial. Baca v Adams. Courtroom 93The Los Angeles Times’ always insightful Legal Affairs Reporter reported last night about a January 8, 2015 Ninth Circuit hearing and the stern admonishment from the 3-judge panel about prosecutorial lying and the heedlessness of watchdogs in bringing misconduct to heel. See “U.S. Judges see ‘epidemic’ of prosecutorial misconduct in state.” Citing Napue v. Illinois, 360 US 264 (1959), which held that “the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment, the three judges were not amused in the unheralded case of Johnny Baca v Derral Adams, which was the subject of the hearing. Per Napue, prosecutors cannot suborn perjury — or lie as happened in the Baca case. 1152762_left_hand_silhouette-_womanAnd questioning why bad things don’t happen to people doing bad Judge Alex Kozinski declared, “You know it’s a little disconcerting when the state puts on evidence, the evidence turns out to be fabricated and nothing happens to the lawyer and nothing happens to the witness. So I have to doubt the sincerity of the State when it says it was a big mistake.” It was hardly a surprise, then, that given the findings of the state appeals court that the prosecutor lied and their own readings of the Baca file, that the judges wanted the State to back off. Judge Kozinski additionally noted that though the state appellate court found the prosecutor lied — since no discipline had been meted, then he opined that prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way.” Watch the videotaped hearing below at about the 28:30 minute mark for equally biting criticisms, including Judge Kozinski questioning the absence of any inquiry or discipline by the state attorney general into the misconduct.

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/3/36/Kamala_Harris_Official_Attorney_General_Photo.jpg/160px-Kamala_Harris_Official_Attorney_General_Photo.jpg

Calif Attorney General Kamala Harris

However, given the keen political shrewdness of California State Attorney General Kamala Harris who now aspires to succeed Barbara Boxer in the US Senate, she spared her office further embarrassment by timely accommodating the strong judicial intimations to stand down. Last Thursday when the bats were flying in De Queen, Arkansas, she and the new Riverside County D.A. filed the following motion: As for myself, unlike one optimistic commentator, who opined after the hearing, “Prosecutors who suborn perjury may finally have to pay the piper,” here in my belfry, I’m still skeptical.

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Photo Credits: New Bat, by Windell Oskay at Flickr Creative Commons Attribution License; Bat in Belfry at The Phrase Finder http://www.phrases.org.uk/meanings/bats-in-the-belfry.html; Round Rock, TX: Mexican Free-Tailed Bats by Roy Niswanger at Flickr Creative Commons Attribution License; Kamala Harris, by http://oag.ca.gov/about, official photo, California State Attorney General, Wikipedia Commons, public domain; kdjfdkjdkl.jpg by greyerbaby at morguefile.com license .

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https://cdn.morguefile.com/imageData/public/files/r/ronnieb/preview/fldr_2005_11_15/file0002052206114.jpgIn blogging a few days ago about prosecutors and “Brick-throwing from glass houses,” I’d mentioned that the decision in Thompson v Connick was still pending. I should have said imminent, as it was announced the next day. And the prosecutorial bacon’s been saved again.

The case involved a deputy district attorney’s failure to disclose an exculpatory lab report that would have exonerated John Thompson of a robbery, an outcome that would have been crucial in his subsequent trial for murder. An excellent background recap can be found at Connick v. Thompson | The Harlan Institute.

Last December 9, 2010, I blogged at “Colorado’s DisciplineGurufinds Andrew Thomas disciplineworthy but prosecutorial ethics penalties are uncommon” about how “For public policy reasons, courts have long tended toward the view that prosecutors are virtually untouchable. As USA Today reported in its story last October, Americans can sue almost anyone for almost anything. But they can’t sue prosecutors.” See “Prosecuting offices’ immunity tested.

Poster2In another one of those all too common 5-4 decisions, the U.S. Supreme Court concluded “that Thompson failed to prove deliberate indifference” and so there wasn’t a need to deal with causation, i.e., whether the alleged training deficiency asserted by Thompson was the “ ‘moving force.’

Well, that continues the juridical prosecutorial preference pattern, notwithstanding the decision in Brady v. Maryland, discussed below. See “Supreme Court rejects damages for innocent man who spent 14 years on death row.”

Saving bacon but not necessarily Brady.

In Brady v. Maryland 373 U. S. 83, the high court said prosecutors have a sworn duty to turn over exculpatory evidence to the defense. However, the U.S. Supremes later said that individual prosecutors could not be sued for any constitutional violations in the courtroom.

John Thompson, however, had been wrongfully kept on death row for 14 years and had successfully won $14 million in a suit against the Orleans Parish District Attorney’s Office, District Attorney Harry Connick, and several assistant district attorneys in their official capacities under 42 U.S.C § 1983.

But Thompson’s win has been overturned, thanks to an opinion written by Clarence Thomas. Justice Thomas was joined by Justices Alioto, Kennedy, Roberts, and Scalia. The Court held thatA district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation.”

The key part of the Opinion states, “A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference for purposes of failure to train. Bryan Cty., 520 U. S., at 409. Policymakers’ “continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the ‘deliberate indifference’—necessary to trigger municipal liability.” Id., at 407. Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.

“Although Thompson does not contend that he proved a pattern of similar Brady violations, 553 F. 3d, at 851, vacated, 578 F. 3d 293 (en banc), he points out that, during the ten years preceding his armed robbery trial, Louisiana courts had overturned four convictions because of Brady violations by prosecutors in Connick’s office. Those four reversals could not have put Connick on notice that the office’s Brady training was inadequate with respect to the sort of Brady violation at issue here. None of those cases involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind. Because those incidents are not similar to the violation at issue here, they could not have put Connick on notice that specific training was necessary to avoid this constitutional violation.”

Ginsburg’s Dissent: “Inattention to Brady was standard operating procedure.”

Showing her disapproval of the decision, Justice Ruth Bader Ginsburg read aloud her Dissent from the bench.

In part, she said, “From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.

“What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under §1983.”

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