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:
“Petitioner then applied for state post-conviction relief, contending … that the Orleans Parish district attorney’s office withheld material evidence in violation of his right to due process under Brady … and related cases. In connection with that application, the petitioner obtained materials revealing that the key witness had made numerous conflicting statements to the police concerning his ability to identify any of the perpetrators. Other newly disclosed materials included statements by other witnesses casting doubt on the key witness’s testimony; a statement by an apparent perpetrator seemingly denying petitioner’s involvement; a statement by a firearms examiner that contradicted his trial testimony implying that petitioner was one of the shooters; and a confession from another individual.”
Clearly all this withheld evidence was either exculpatory or impeaching, and the Orleans Parish district attorney’s office had a duty to disclose it prior to Smith’s trial.
You would think that district attorney offices like Williamson County and Orleans Parish would get the Brady message from the Supreme Court that the duty to disclose is non-negotiable. Not so. Some prosecutors in these offices, just as they were under former Harris County district attorney Johnnie Holmes and Charles Rosenthal, are arrogant, unscrupulous, and consumed not only with a desire but a misperceived belief that they have a right to convict criminal defendants at any costs.
That’s why the ABA created the Model Rules of Professional Conduct, and in particular, Rule 3.8(d) which imposes a strict ethical obligation on prosecutors to disclose material favorable evidence to criminal defendants. Texas and Louisiana have adopted ethical rules patterned after Model Rule 3.8(d). In fact, Louisiana amended its 3.8 rule in 2006 to include not only evidence the prosecutor knows about but evidence he should know about. The ABA is essentially requesting in the Smith case that the Supreme Court “continue to recognize that a prosecutor’s pre-trial obligations to disclose exculpatory and mitigating evidence ‘may arise more broadly under a prosecutor’s ethical or statutory obligations,’ … than it required under the post-trial constitutional standard set out in Brady,” as the court discussed in 2009 in Cone v. Bell.
The Cone court distinguished the post-conviction setting where the reviewing court must make a constitutional determination of whether the withheld evidence was material whereas a prosecutor’s pre-trial ethical obligations to disclose are broader, and requires a “prudent prosecutor [to] err on the side of transparency, resolving doubtful questions in favor of disclosure.” The ABA pointed out in its brief that these pre-trial ethical obligations date as far back as 1908 when the association adopted its Canons of Professional Ethics which held that it would be “highly reprehensible” if a prosecutor failed to disclose evidence that might establish a defendant’s innocence.
The ABA instructed the Court that a prosecutor’s pre-trial ethical duty to disclose evidence like that withheld in the Smith case “does not depend upon their materiality” because Rule 3.8(d) is more demanding than the constitutional case law used to determined Brady violations following conviction. The ABA pointed out that even the National District Attorneys Association’s “prosecution standards” require that “the prosecutor should disclose to the defense any material or information within his actual knowledge and within his possession which tends to negate or reduce the guilt of the defendant pertaining to the offense charged.”
It has become abundantly clear that the mandate of the constitutional case law governing Brady violations is not sufficient to curtail some prosecutors, like those in the district attorney offices like Orleans Parish and Williamson County, from withholding material favorable evidence. And since the Supreme Court has made it virtually impossible for wrongfully convicted defendants to sue and recover damages from prosecutors who knowingly send them to prison when there was is evidence of their actual innocence, prosecutors have no incentive to honor their pre-trial ethical obligations to disclose. They feel they can operate with impunity, facing no accountability except perhaps to suffer a reversal of conviction on appeal.
“By requiring prosecutors to disclose more than material exculpatory evidence,” the ABA wrote in its brief, “the ABA Model Rules seek to avoid pitfalls that might arise if a prosecutor attempts to determine materiality before making a disclosure. As commentators have highlighted, assessing materiality pre-trial requires prosecutors to ‘anticipate what the other evidence against the defendant will be by the end of trial, and then speculate in hypothetical hindsight whether the evidence at issue would place the whole case in a different light’ … In addition, ‘compared to a neutral decision maker, the prosecutor will overestimate the strength of the government’s case against the defendant and underestimate the potential exculpatory value of the evidence whose disclosure is at issue. As a consequence, the prosecutor will fail to see materiality where in fact it might exist ‘ … ‘Tunnel vision has had an obvious impact in the pretrial stage: having formed an initial judgment that a particular defendant is guilty of a crime, prosecutors and police will tend to discredit or discount the significance of new exculpatory evidence or fit it into their preexisting theory.’”
The Supreme Court in 1976, in United States v. Agurs, said a prosecutor is a “minister of justice” and not just an “advocate,” and “this responsibility carries with it specific obligations to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence, including consideration of exculpatory evidence known to the prosecutor.” That places the prosecutor on the highest rung of the judicial ladder—a model perch of example, and when rogue prosecutors withhold evidence that will establish a defendant’s innocence, they transform this honored perch into a more advantageous position to knock off innocent people. How many inmates have grown old and died in prison—worse yet, how many have been executed—because rogue prosecutors withheld evidence that would have established their innocence? Some prosecutors in the Orleans Parish and Williamson County district attorney offices personify this kind of misconduct. These rogue prosecutors are “ministers of conviction,” regardless of the costs.
Permitting a prosecutor at the pre-trial stage to make ad hoc determinations of what evidence might be material—in other words, evidence that could potentially exculpate the defendant or impeach a government witness—and later having those materiality determinations judged solely by Brady post-conviction constitutional standards would seriously undermine the ABA’s Model Rules of Professional Conduct adopted by 49 of the nation’s fifty states. All a prosecutor would have to worry about is a reversal of defendant’s conviction in the post-conviction process. By keeping Rule 3.8(d) standards in place as a “broader” duty in the pre-trial setting, rogue prosecutors will at least know they could face harsh disciplinary sanctions from the state bar if they withhold any potentially favorable evidence. Remove the cover of materiality. All evidence a prosecutor plans to use at trial should be subject to disclosure. Materiality decisions in the post-conviction process are nothing more than judicial second-guessing; whether the withheld evidence would have resulted in a different outcome. Reinforcing Rule 3.8(b) standards provides a defendant and his lawyer, before conviction, with an opportunity let the jury determine whether a given piece of evidence is material to either guilt or punishment.
The importance of the 3.8(d) standards can be seen from the prosecutorial misconduct in the Orleans Parish district attorney’s office: Brady violations and overturned convictions occurred in six death penalty cases and seven in non-death penalty cases between 1976 and 2011. Years after one of those death penalty reversals, Kyles v. Whitley, former district attorney Harry Connick said he “saw no need, occasioned by Kyles, to make any changes” in his policy of keeping away as much information as possible from defendants. A similar attitude has existed in the Williamson County district attorney’s office for the past three decades. Perhaps Smith v. Cain will present yet another opportunity for the nation’s highest court to rein in rogue prosecutors. We can only hope it will.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
See: Texas Legal Ethics, Prepared by Vinson & Elkins, Houston, Texas, 1998, http://www.law.cornell.edu/ethics/tx/narr/TX_NARR_3.HTM#3.8
Texas Disciplinary Rules of Professional Conduct: 3.09
Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;
(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.
American Bar Association:
Model Rules of Professional Conduct: Rule 3.8
Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.