As part of our daily fight to seek a just and fair outcome for our clients, we constantly struggle to discover evidence that the government possesses and intentionally hides.  Unfortunately, since we do not have all the resources of Big Brother and Uncle Sam, we are often unsuccessful in discovering the secret deals and potentially favorable evidence that could have made a difference in a trial. It is frustrating to know that some prosecutors hide evidence.  It is even more so when the courts give it a nod of approval.


The U.S. Supreme Court in a 1963 landmark decision, Brady v. Maryland, held that, as a matter of due process, prosecutors in criminal cases have a duty to disclose evidence favorable to a defendant upon request provided the evidence is material to either guilt or punishment.


What constitutes “material” evidence has long been a source of legal confusion and disharmony within the justice system, notwithstanding the Supreme Court’s attempt in United States v. Bagley in 1985 to define materiality; specifically, favorable evidence is material if there is a “reasonable probability” that its disclosure prior to trial would have changed the outcome of the proceedings.


Thus, the question of “materiality” became the subject of post-conviction inquiry. It gives prosecutors the license to withhold or conceal favorable evidence before trial knowing they will have the opportunity in post-conviction proceedings to show that disclosure of the evidence would not have changed the outcome of either the verdict or punishment. They can argue the prosecution presented sufficient evidence independent of the suppressed evidence to sustain both conviction and sentence, rendering the Brady duty to disclose virtually meaningless.


In the wake of Brady and its progeny, the American Bar Association, and the bar associations in 49 states, have adopted Rule 3.8(d) of the Model Rules of Professional Conduct that mandates disclosure of either exculpatory or mitigating evidence prior to trial without regard to materiality.


The problem with Rule 3.8(d) is that it does not have the force of law. It is an ethical rule subject only to the jurisdiction and supervision of state bar associations—groups that typically do not have either the professional inclination or courage to discipline prosecutors who withhold or conceal favorable evidence, regardless of any post-conviction determination of its materiality.


In 2011, we posted a piece about the Supreme Court’s decision to hear a Louisiana murder case (Smith v. Cain) involving egregious suppression of favorable evidence. The American Bar Association filed an amicus curiae brief in the Smith case urging the Supreme Court to adopt Rule 3.8(d)’s broader duty to disclose than the “materiality” assessment required by Bagley. In effect, they argued Rule 3.8(d) should require prosecutors, as a matter of legal duty, to disclose all favorable evidence regardless of its materiality.


In 2012, we posted a follow up piece about the Smith case in which the court reversed Smith’s conviction but failed to even mention Rule 3.8(d), much less address its legal merits as suggested by the ABA.


Several months later, we posted yet another article about how Smith and other Supreme Court decisions have the effect of encouraging prosecutorial misconduct.


A March decision by the Third Court of Appeals, Grant v. Lockett, illustrates perfectly the harm caused by the Supreme Court’s refusal to adopt Rule 3.8(d).


In post-conviction applications presented to both the state and federal courts, Taibu Grant claimed the prosecution engaged in misconduct in his case because: (1) it did not disclose the criminal history and parole status of a chief prosecution witness prior to trial and (2) it agreed to help the witness with his parole violation in exchange for the witness’s testimony against Grant.


In the alternative, Grant claimed he received ineffective assistance of counsel because defense counsel did not exercise due diligence in discovering the witness’s criminal and parole history—all of which were in the records of the Clerk of Court’s office.


The state courts denied Grant’s post-conviction applications under two theories: First, the courts denied the Brady/prosecutorial misconduct claim, pointing (1) to defense counsel’s lack of due diligence in discovering the Brady evidence; and (2) the state was not required to disclose Brady evidence in a defendant’s possession or which could have been obtained with the exercise of due diligence.


Second, the court denied the ineffective assistance claim, pointing to (1) Grant’s failure to offer any evidence that the witness was on parole either at the time of the crime or when he testified against Grant; and (2) Grant’s failure to offer evidence that the witness had actually received favorable treatment in exchange for his testimony against Grant.

The U.S. District Court adopted the state courts’ factual findings and legal conclusions concerning both the Brady-related and ineffective assistance claims.


The Third Circuit disagreed, reversing Grant’s conviction because defense counsel failed to discover the witness’s criminal history/parole status. Thus, the issue of whether the prosecution deliberately withheld material Brady evidence about witness’s criminal history/parole status or made a deal with the parolee to help him with his parole status in exchange for his testimony was not addressed. The appeals court, as has become the trend, decided to lay all the blame on defense counsel, rather than at feet of the prosecutors who actually knew the witnesses criminal history and the benefit he would receive for testifying favorably for the government.


The appeals court also expressed “doubt” that an experienced prosecutor would engage in such conduct, again a strange but recurring refrain in appellate decisions. That observation is disingenuous. Such conduct is a significant, if not integral, component in the “plea bargaining” process. We know, and understand, career criminals like the one who testified against Grant: they do not testify for the prosecution because they are law-abiding citizens willing to perform a civic responsibility to prevent crime. They testify for personal gain, usually years off their potential sentences.


We do not know if Taibu Grant is guilty or not. The only eyewitness against him was an unreliable drug user/parole violator. What we do know is that no criminal conviction should stand based on testimony from such a career criminal snitch.

The tragedy in a case like Grant’s is this: had the Supreme Court in Smith v. Cain gave Rule 3.8(d) legal force, a defense counsel’s performance would not be impugned; and a defendant’s guilt or innocence would be more clearly established because the jury would know about a witness’s criminal history/parole status and/or any “deal” he made with the prosecution.


Under Rule 3.8(d) the prosecution in the Grant case would have had a binding ethical duty to disclose the information without regard to its materiality. In other words, the issue of materiality would have been decided by the jury, not the prosecution. And any failure to disclose the information would not be subject to forgiveness under a Bagley post-conviction analysis that the evidence did not have a probable impact on the jury’s verdict. Reversal of conviction would be appropriate under Rule 3.8(d).


The withholding of evidence in criminal cases is becoming a greater and greater stigma on law enforcement officers and prosecutors.  It has most likely gone on as long as there have been criminal trials, however, given all the tools becoming available through modern technology, hiding this dirty secret is becoming more and more difficult.


Honest prosecutors understand the only way to secure a just and rock solid conviction is to disclose everything to the defense.  Why hide anything if you are interested in justice?