CRIMINAL JURISDICTION

ABA Files Amicus Demanding Disclosure of Exculpatory Evidence Regardless of Materiality, Broader than Brady

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Orleans Parish and Williamson County district attorney offices have something in common: both have a disturbing history of withholding exculpatory information that resulted in innocent men being sent to prison (or death row) for long periods of time (here, here and here). The U.S. Supreme Court, in the case of Smith v. Cain, is being asked by Juan Smith’s attorneys and the American Bar Association (“ABA”) to address a prosecutor’s pretrial ethical obligations to disclose exculpatory evidence. A “summary” of the ABA’s argument is outlined in its amicus curiae brief:

“The [Smith v. Cain] case involves numerous serious allegations of non-disclosure that, post-trial, a court must evaluate under this Court’s Brady jurisprudence. However, a prosecutor’s pre-trial ethical disclosure obligations, as governed by the attorney disciplinary rules of the state or jurisdiction in which the prosecutor practices, are separate from and broader than the constitutional standards. Specifically, the ABA Model Rule 3.8(d) [Model Rules of Professional Conduct] mandates disclosure of exculpatory and mitigating evidence without regard to materiality. This Rule’s widespread acceptance is reflected in the fact that 49 states, including Louisiana, as well as the District of Columbia, United States Virgin Islands, and Guam have adopted ethics rules that include a provision identical or substantially similar to it. Similarly, various provisions of the ABA Criminal Justice Standards promote broad disclosure of all exculpatory evidence, without regard to the materiality standard that is required for post-trial analysis under Brady. Accordingly, this Court should again recognize that a prosecutor’s pre-trial ethical disclosure obligations are distinct from the constitutional standards that control a court’s post-trial determination.”

In 1963, the Supreme Court, in Brady v. Maryland, held that a prosecutor under the Fifth and Fourteenth Amendments has a duty to disclose favorable evidence to defendants upon request, if the evidence is material to guilt or punishment. Two decades later, in United States v. Bagley, the Supreme Court redefined Brady by holding that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request. The Bagley court defined “material favorable evidence” as any evidence that probably would have changed the outcome of the trial. In 1999, the Court, in Strickler v. Greene, held that a Brady violation occurs: (1) evidence is favorable when it is exculpatory or impeaching; (2) the evidence was either willfully or inadvertently withheld by the prosecution; and (3) the withholding of the evidence was prejudicial to the defendant.

Juan Smith was convicted of five counts of first degree murder and sentenced to life without parole in the Louisiana prison system. The convictions stem from a home invasion by a group of men in New Orleans in 1995 that left five people dead. Smith was the only person arrested and convicted for the crimes. The only evidence against him was an identification made by one of the surviving victims. His conviction and sentence were upheld on appeal by the Louisiana Supreme Court. Following the denial of direct appeal, Smith’s Supreme Court brief explains what happened next:

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