Prosecutors Fail to Disclose Favorable Evidence that Contradicted Expert’s Testimony
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
We have repeatedly made clear our disdain for prosecutorial misconduct (here). And here we go again. More dirty, underhanded prosecutorial tactics. Just two days after our July 16 post concerning the Casey Anthony “not guilty” verdict, The New York Times carried a report about these tactics being employed by Orlando prosecutors bent on convicting Anthony for capital murder of her two-year old daughter. In our July 16 post we made the following observation about manner of how little Caylee was murdered that prosecutors presented to the jury:
“The problem is that theories are nothing more than opinions until they are supported by facts. The Casey Anthony jurors had the remarkable courage to face an inevitable hostile public reaction by refusing to accept the prosecutors’ theory [of how Caylee was killed] without a single piece of direct factual evidence to back it up. For example, prosecutors wanted the jurors to accept that because they offered evidence that Anthony had conducted Internet searches for chloroform, she must have used it in the commission of the murder. Yet prosecutors did not produce any chloroform, any evidence that Anthony purchased chloroform and, worse yet, that Caylee was even killed with chloroform.”
The Times report, titled “Software Designer Reports Error in Anthony Trial” and written by Lizette Alvarez, now informs us that the prosecutors’ claim that Anthony conducted 84 Internet searches for information about chloroform was false, or misleading at best. A software designer named John Bradley told the Times the prosecution’s case about the chloroform was based on “inaccurate data.” The Times described the “error” this way:
“According to Mr. Bradley, chief software developer of CacheBack, used by the police to verify the computer searches, the term ‘chloroform’ was searched once through Google. The Google search then led to a Web site, sci-spot.com that was visited only one time. Mr. Bradley added. The web site offered information on the use of chloroform in the 1880s.
“The Orange County Sheriff’s office had used the software to validate its finding that Ms. Anthony had searched for information about chloroform 84 times, a conclusion that Mr. Bradley says turned out to be wrong. Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings. Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.”
Bradley, who is chief of Siquest, a Canadian company, told the Times that he volunteered to “fly to Orlando at his own expense to show them the [new] findings.”
“I gave the police everything they needed to present a new report,” Bradley informed the newspaper. “I did the work myself and copied out the entire database in a spreadsheet to make sure there was no issue of credibility.”
And what did Orange County prosecutors do with this extremely significant evidence? Absolutely nothing! Worse yet, they concealed it from Anthony’s defense team. This was evidenced by one of Anthony’s attorneys, Cheney Mason, who told the Times that the failure of prosecutors to disclose this information was “outrageous.” He added that “the prosecution is absolutely obligated to bring forth to the court any and all evidence that could be exculpatory. If in fact this is true, and the prosecution concealed this new information, it is more than shame on them. It is outrageous.”
We agree. Following Anthony’s acquittal, prosecutors informed the public that they had presented every piece of evidence they had “against” the accused child killer. What they did not tell the public is that they did not reveal all the evidence that would have helped Anthony’s defense, as is universally known to be required by fundamental constitutional law. We are not surprised. In virtually every high publicized and politically motivated prosecutions, as exampled by the recent mistrial declared in the Roger Clemens case, prosecutors instinctively suppress favorable evidence or engage in other forms of misconduct in order to fulfill the public demand to “convict at all costs.”
The Bradley data was critical to Anthony’s defense because the prosecution had virtually wrapped its entire case around those infamous “84 Internet” searches Anthony supposedly conducted for chloroform information. “This was a major part of their case,” Mason explained to the Times.
Bradley was called by prosecutors to testify at the Anthony trial to discuss the CacheBack software, but was only asked repeatedly about those 84 searches on chloroform the Sheriff’s Office said Anthony conducted. “I translated the data into something meaningful for the police,” the former Canadian police sergeant who specializes in computer forensic training told the Times. “I did the work myself and copied out the entire database in a spreadsheet to make sure there was no issue of credibility to the data.”
Bradley became concerned about the prosecution’s tactics when he learned during the presentation of Anthony’s defense that the Sheriff’s office had written a report in August 2008 based on NetAnalysis, a different software than CacheBack, to verify Anthony’s Internet searches. Bradley said he was never informed about the NetAnalysis report either by the prosecution or the police. This prompted Bradley to re-assess the software data relied upon by the prosecution to support its claim of 84 Internet searches. He discovered that NetAnalysis data showed there had been only one hit on the sci-spot.com site while the CacheBack data disclosed 84 hits. At this point, concerned that the Anthony jury was being given misleading Internet search data, he contacted the prosecution and police on June 25 about his new findings.
Prosecutors told Bradley they could correct the record, but they didn’t. “They needed to get that right,” he told the Times.
The prosecution did not disclose the information because it would have destroyed the entire theory of their case; namely, that Casey Anthony conducted those 84 Internet searches in order to carry out a premeditated murder of her daughter. Those Internet searches were critical to the capital murder charge they had brought against Anthony.
And what is the attitude of prosecution/law enforcement officials now about this new information? It was expressed by Capt. Angelo Nieves, the media relations spokesman for the Sheriff’s office, who told the Times: “We not going to relive the trial again. We are not prepared to do that nor are we going to participate in that.”
Of course not! Prosecutors and law enforcement officials are not about to discuss their unscrupulous actions to hide exculpatory evidence. They will simply say that are not going to “participate” in any post-conviction review of the Anthony trial.
And you will not see Nancy Grace decrying “foul” about the prosecution’s misconduct in the Anthony case, just as you will not hear any professional apologies from those so-called “expert” criminal defense attorneys who proclaimed Anthony’s guilt before a single juror was ever selected. And it is these same attorneys who would be the first to scream “foul” if the prosecution engaged in such underhanded tactics in a case they were defending.
The prosecutorial/law enforcement misconduct, the “media assassination” of Casey Anthony inspired and led by Nancy Grace, and the pretrial pronouncements of guilt by those “expert” attorneys are shameful. They illustrate the worst in our criminal justice system. We would hope that the Florida Bar Association would investigate the prosecution’s handling of the Internet evidence; that the nation’s prominent and respected journalists would take Nancy Grace to the proverbial woodshed for her horrible reporting in this case; and that the American Bar Association would establish standards about what “expert” attorneys can say about a charged defendant before trial.
Unfortunately, the nation will continue to see prosecutorial misconduct like that seen in both the Roger Clemens and Casey Anthony cases, and public respect for our adversarial trial system will continue to diminish. We applaud John Bradley for his courage to come forward to reveal the misconduct in the Anthony case, but we fear his efforts will be for naught. There will be no professional review of the prosecutors’ conduct in the Anthony case, especially not in Florida. And that’s just another sordid, tragic fact about the Anthony case in which there was a “rush to judgment” by everyone involved in it.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization