Keeping Prosecutors Honest


Michael Morton was convicted in 1987 of murdering his wife and sentenced to life in prison. In 2011, he was released after 25 years behind bars, exonerated by DNA evidence.

According to the Innocence Project, on Jan. 8, 2010, Morton's successful appeal resulted in the testing of a bandana with hair on it, found at a construction site 100 yards from where his wife Christine was found bludgeoned to death in their bed.

The tests revealed the DNA of a convicted felon who, like the Mortons, lived in Texas at the time of the murder. The defense investigation linked the felon to a similar murder that occurred while Morton was in prison. The prosecutor in the case was found to have withheld other exonerating information.

Today, when somebody is accused of a crime in Texas, the Michael Morton Act requires that prosecutors turn over reports, witness and defendant statements, and that they keep turning over favorable evidence even after the trial.

Access is no longer doled out on the basis of “good cause.”

Throughout the nation, DNA exonerations like Morton's have helped highlight criminal discovery's role in wrongful convictions and, in some places, has led to reform.

But the nation's laws on an issue so crucial to the right to a defense remain a tangled mess. For every successful reform, there are states where reform laws die in committee.

While Texas has enacted reform, in New York State, witness information doesn't have to be turned over to the defense until right before the person in question testifies; prosecutors decide what information the defense needs to make its case.

Legislation has repeatedly passed the state Assembly but not in the Senate, where four related discovery bills currently await votes.

'Blooming, Buzzing Confusion'

Janet Moore, assistant professor at the University of Cincinnati College of Law, borrows the words of William James to describe the discovery landscape: A “blooming, buzzing confusion.”

That, she told The Crime Report, means a “wild diversity of rights under the law.”

The Brady Rule, from the 1963 Supreme Court decision in Brady v. Maryland, and subsequent interpretations, require that prosecutors disclose materially exculpatory evidence to the defense, including anything favorable and anything that could result in negating a defendant’s guilt, reducing a sentence, or questioning the credibility of a witness.

But Brady leaves lots of room for interpretation.

Moore points to two much more recent Supreme Court decisions: Connick v. Thompson in 2011 and Garcetti v. Ceballos in 2006, which she writes about in the Brooklyn Law Review, as evidence of problems with Brady.

Harry Connick, the Orleans Parish District Attorney, was found to have been deliberately indifferent in his obligation to train prosecutors on their Brady discovery duties.

John Thompson spent 18 years in prison, 14 of them in solitary confinement on death row at Angola prison. A few weeks before his execution, evidence that would come to exonerate him was discovered after being intentionally hidden by the prosecution, a court later found.

Thompson was awarded $14 million by a federal jury.

But the Supreme Court overturned the decision in a 5-4 ruling. Moore says the ruling makes it virtually impossible for municipalities to be held liable for Brady violations.

Prosecutors were already exempt from personal liability.

Retaliation Against Prosecutor

In Garcetti v. Ceballos, Richard Ceballos, who had served as a calendar deputy in the Pamonda Branch of the Los Angeles District Attorney's office, claimed he was subjected to multiple retaliatory employment actions. That included unfavorable reassignment, transfer to another court and being denied a promotion for insisting that misrepresentations were used to unlawfully obtain a search warrant during a case in 2000.

But the majority ruled that the First Amendment did not protect him.

Brady is “very weakly enforceable at best,” Moore says.

Defense attorneys have long pushed for broader discovery, and prosecutors have traditionally been among those who resisted change. But as exonerations mount, so does wider support for reform.

Although it may be easier to explain false witness identification to the public, figures like the one provided in a 2010 Innocence Project report — that a quarter, or 65 out of 255 DNA exoneration cases, involved documented appeals and/or civil suits alleging prosecutorial misconduct — are becoming harder to ignore.

“In Michael Morton's case, clearly exculpatory evidence was in the possession of the state, but it was never revealed for 25 years,” Texas State Senator Rodney Ellis wrote in an email.

“The system needed serious reform to ensure that tragedies like Michael's never happen again.”

He noted that the bill's bipartisan sponsorship and the real-life example of the pitfalls of weak discovery enforcement — Michael Morton himself — helped pave the way for change in a state which, as Gov. Rick Perry noted in an announcement of the bill's signage, prides itself on law-and-order values.

North Carolina Leads

While Texas illustrates what can happen when a human story draws public support, the state with the most expansive discovery law in the country is North Carolina.

In 2004, Gov. Mike Easley signed a law that requires prosecutors to share files in all felony cases with defense lawyers who request them prior to trial. Investigator notes, defendant and witness statements, test results and a list of probable witnesses for the trial must be included.

The defense also must turn over witness lists and details about the grounds on which it plans to make its case.

Oddly enough, it was actually the “tough on crime” mindset of the 1990s, Moore points out, that led to reform in that state in 1996. It began as a political compromise to speed capital and post-conviction litigation, as well as executions.

The law was expanded again through amendments that addressed both defense and prosecution's concerns.

Ohio has enacted some reforms, though not nearly as broad as North Carolina's, which is being used to as the basis for model legislation.

Robust discovery laws can also be found in Florida, Arizona and Massachusetts, according to Ellen C. Yaroshefsky, clinical professor of law and director of the Jacob Burns Center for Ethics in the Practice of Law at Cardozo Law School.

Yaroshefsky said certain municipalities operate under discovery rules broader than those enacted in other boroughs.

But legislative change can be hard-won, even in more liberal states like New York, where the powerful District Attorneys' Association of the State of New York cautions that forcing prosecutors to share files will result in witness intimidation.

John Byrne, assistant district attorney and spokesman for District Attorney's Association President Kathleen Rice, the Nassau County District Attorney, summarized the organization's position in emailed statement.

He called it a “complex issue” that “necessitates the delicate balancing of a defendant's right to informed representation and a fair trial with critical public safety and witness protection considerations.”

“Members of the District Attorney's Association are committed to justice and fairness, and the Association is actively participating in Judge Lippman's Justice Task Force to review New York's criminal discovery laws.” he wrote.

“That review is ongoing and the Association has taken no position on specific proposals.”

In June 2012, Manhattan District Attorney Cy Vance Jr. wrote an Op-Ed in the New York Law Journal, in which he points to the case of Daniel Everret, who was recorded on the phone instructing fellow gang members how to intimidate a witness while awaiting trial in jail for the 2008 murder of a 13-year-old from Harlem.

Proponents of more open file discovery say it does not preclude a judge from giving a protective order for an endangered witness, and note that there has been no spike in witness intimidation where reform has taken hold.

But Yaroshefsky says that some prosecutors associations still “go behind the scenes to quash” discovery reform even as stakeholders like the Justice Task Force convened by New York Chief Judge Jonathan Lippman, seek to address the issue.

Judge Lippman, in his 2014 State of the Judiciary address, called for certain reforms as a matter of policy, not statute. The Task Force is hoping to complete voting on its recommendations by May 16.

And even the best laws, Yaroshefsky argues, do little to curb cultural problems that lead prosecutors to withhold information.

Although Louisiana recently changed its statute with a discovery law that went into effect in January, Yaroshefsky writes in the Georgetown Journal of Legal Ethics, the district attorney who came into office in 2008, vowing to address issues of prosecutorial conduct, faced major challenges.

Culture of 'Non-Disclosure'

Through interviews with unidentified current and former attorneys, judges, as well as policy experts, she concluded that factors including a lack of discipline for those who engage in prosecutorial conduct led to what she calls a “culture of non-disclosure” in the Orleans Parish District Attorney's Office.

She noted that not a single prosecutor had ever been sanctioned for misconduct in New Orleans. The District Attorney's Office declined to comment for this story.

Likewise, a recent case in which Judge John Wilson barred a Bronx prosecutor from his courtroom for what he called the most “egregious” Brady violation he had ever seen, did not result in any discipline from the Bronx District Attorney's Office, according to spokesman Steven Reed.

“What kind of message does that send?” Yaroshefsky asked in the article.

Such cultures of non-disclosure, and perhaps the most restrictive reading of the law, come from a federal level, which Janet Moore describes as “very much an inertial force” for discovery reform.

She notes that a lot of states use the “very limited” federal statute as a model.

The messy state of affairs on a state level requires much more research, Moore says.

She is overseeing a project with the University of Cincinnati College of Law that consists of compiling a list of discovery standards from all jurisdictions in the nation for examination. North Carolina is also developing a Discovery Automated System for use by all relevant officers of the court in a criminal trial to store and exchange information.

Training, enforcement and oversight are all necessary ingredients for a functional open discovery system, Yaroshefsky said; but getting there requires cooperation.

In the jurisdictions that have pushed through legislative reform, she said, “Prosecutors tend to be on board as well.”

Kate Pastor is a Bronx-based freelance journalist. She welcomes comments from readers.

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