How Concealing Key Evidence Convicts the Innocent

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Photo by Karen Neoh via Flickr

On June 22, in Turner vs. United States, the Supreme Court, by a 6 to 2 vote, affirmed the murder convictions of seven men. Unlike most Supreme Court decisions, Turner went largely unnoticed.

It deserves more attention, but not because it announced a new legal rule. Instead, Turner reaffirmed a terrible old rule that has done great harm to the accuracy of criminal trials, and will continue to do so.

The crime in the Turner case was horrific: in 1984, a middle-aged woman was grabbed off the street in Washington D.C., beaten, sexually assaulted and killed in an alley. The defendants were convicted on the theory that they were part of a group of a dozen or more who committed this atrocity. No DNA, fingerprints or physical evidence of any other kind connected any of the defendants to the crime.

Twenty-six years later, the defendants’ attorneys learned that prosecutors had concealed a laundry list of evidence that would have helped their defense at trial.

In particular, one witness identified a man at the scene of the crime as James McMillian, a local resident who was arrested several weeks later for beating and robbing two other neighborhood women, and was later convicted for robbing, sodomizing, and murdering a third young woman in an alley. And another witness testified that he heard moans—apparently from the victim—coming from inside a garage that was too small for a crime with 12 or even six perpetrators.

The Justice Department agreed that this evidence should have been disclosed at trial. The only issue was whether concealing that evidence made the trial fundamentally unfair, and requires a new trial.

In Brady v. Maryland, in 1964, the Supreme Court ruled that the government is constitutionally obligated to disclose evidence that is favorable to the defense in a criminal trial if that evidence is “material” to the case.

Later cases held that evidence is only “material” under Brady if there is a “reasonable probability” that the outcome of the trial would have been more favorable to the defendant if the evidence had been disclosed. Otherwise, under Brady, the prosecution may conceal favorable evidence from the defense and the trial court.

This standard is impossible to apply.

A prosecutor has to decide whether to disclose favorable evidence before the trial begins. At that point, she does not know what her own witnesses will say under oath (there are many surprises) let alone what the defense might put on. How can she possibly know before trial whether undisclosed evidence might tip the jury’s decision at the end of that trial? And who would trust a lawyer to make that decision about a case she herself is litigating?

Trial lawyers often believe, unrealistically, that their cases are airtight. In this setting, self-confidence is self-serving: it can lead prosecutors to decide that it’s OK to hide troubling evidence, which makes their job a bunch easier.

When a prosecutor does hide evidence, chances are nobody will ever know. If somehow it does come out, a court reviewing the case faces the same impossible question—what might have happened at trial if these facts had been known to the defense?—with an added twist: Judges are extremely reluctant to reverse jury verdicts and order new trials.

Not surprisingly, they usually conclude that concealed evidence was “immaterial” and therefore never had to be disclosed in the first place.

That’s just what the Supreme Court did in Turner. The majority points out that the hidden evidence is only exculpatory if McMillian committed the crime alone and not as another member of a large group. But none of the defendants disputed the prosecution’s claim that the victim was attacked by a group. Instead, each said that he was not involved, but his co-defendants might have been—and two additional defendants pled guilty and testified for the government in return for reduced sentences.

In that context, the majority concludes that disclosing the hidden evidence would have made no difference; presumably because there was little or no doubt that the defendants were in fact guilty.

However, as Justice Kagan points out in her dissent, no defendant argued that the murder was the work of a single person because they had no idea that there was evidence to support that claim. If they had known what we now know, the trial might have been totally different, including what was disputed and who testified. The two defendants who pled guilty might not have done so, and all of the defendants might have been acquitted—perhaps because they are innocent.

Is that a pipe dream?

Consider two disturbingly similar cases:

  • In 1989, five teenagers in New York confessed to being part of a gang that attacked and raped the victim in the Central Park Jogger case, but each denied actually raping her. They were all convicted in 1990—but exonerated 12 years later when DNA confirmed the confession by an older serial rapist and murderer that he committed the crime alone.
  • Also in 1989, six defendants were convicted of jointly assaulting, raping and murdering an elderly woman in Beatrice, Nebraska. Four of them had confessed, and five pled guilty in return for reduced sentences. In 2009, all six were exonerated when DNA evidence proved the crime was committed by a lone man from Oklahoma whom none of the innocent defendants knew.

Nobody doubted the guilt of these eleven defendants when they were convicted—even through, as in Turner, no physical evidence connected them to the crime. All but two had confessed; several pled guilty; none argued that the crime in their case was the work of a single person. All that would have changed if the defense had any information identifying the real criminals.

Concealing exculpatory evidence is not a rare problem. In 2013, then-Chief Judge Alex Kozinski of the Ninth Circuit Federal Court of Appeals wrote that “There is an epidemic of Brady violations abroad in the land,” because courts have defined “materiality” so narrowly that prosecutors rarely if ever have to face consequences if they hide evidence that favors defendants.

The National Registry of Exonerations (which I founded) lists 2,061 innocent defendants who were convicted of crimes in the United States and later exonerated, from 1989 on, including 802 who were convicted of murder. In half of the murder exonerations (398/802) the prosecution concealed exculpatory evidence at trial, including 17 cases with innocent murder defendants who pled guilty, 57 with defendants who falsely confessed, and 91 with supposed accomplices who confessed and falsely implicated the defendants.

And of course, as Judge Kozinski has noted, the great majority of similar cases are never detected, and the defendants, if they are innocent, are never exonerated.

I don’t know whether the defendants in the Turner case are innocent or guilty, or how their trial would have turned out if all the evidence had been fairly presented. Unlike the Supreme Court, I don’t believe we can tell by looking back and guessing 25 years after the fact.

Our best hope for avoiding tragic mistakes is to present all the evidence that matters the first time around.

Why not eliminate the “materiality” requirement entirely and treat access to exculpatory evidence like other aspects of a criminal defendant’s constitutional right to a fair trial? If exculpatory evidence is concealed, it’s a violation of the Constitution, period.

This would not mean that every violation requires a new trial. Courts often uphold convictions despite constitutional violations, because they are convinced beyond a reasonable doubt that the violation had no impact on the outcome. But that’s a tougher exception to meet, and it includes a critical message: Hiding exculpatory evidence is always a violation of the constitution.

Samuel Gross

Justice Kagan concedes in her dissent that the majority’s conclusion in Turner “is not indefensible.”

That’s right, unfortunately, given the rule the Supreme Court applied. But that rule itself is indefensible, and should be changed.

Samuel Gross is professor of Law at the University of Michigan, and the founder and Senior Editor of the National Registry of Exonerations. He welcomes readers’ comments.

13 thoughts on “How Concealing Key Evidence Convicts the Innocent

  1. If the prosecutor believes the withheld information will not effect the outcome of the trial then WHY HIDE IT?

  2. In 1980 I was taken to trial and convicted of rape and robbery, offenses another man in the next cell had confessed to. (Proof of Innocence-Discovery Times Documentary). This man’s brother-n-law knew me and agreed to provide an affidavit to the fact that he was dropping this man off in a park where these offenses occurred and knew for a fact he committed the crimes I was wrongfully charged and convicted for committing. The public defender at trial refused to admit the affidavit into evidence and the trial judge rejected it being submitted pro se. This evidence deprived me a fair and impartial trial and exculpatory evidence. I was sentenced to 119 years. 22 and a half years later I was exonerated by DNA evidence that proved the other man did in fact commit the crimes I had been wrongfully convicted and imprisoned for all those years. Could this have been avoided? Clark McMillan 901-264-4566.

    • This is infuriating I can’t believe this was done to you and that creepy public defender and judge need to be in jail right now. I now many abused people find it necessary to say the anger was beat out of them. Duck that any normal citizen should be outraged and the judicial cei.inals need to be jail immediately

  3. Excellent article that points out the conflict of interest inherent in the present system. Open discovery was critical to the defense in finding the exculpatory DNA evidence for the Duke lacrosse three. Brad Bannon was able to show that there were DNA profiles present that had not been disclosed to the defense.

  4. Thank you for excellent article.
    It seems clear that the cards are stacked heavily in favour of the prosecution in some cases.
    As an observer of the Steven Avery case I am certainly not a fan of Ken Kratz.
    Kathleen Zellner has listed 4 Brady violations and 8 instances of unethical behaviour.
    Once Steven and Brendan are exonerated, will the publicity of this case, and further episodes of Making a Murderer help to highlight the problem of withholding evidence, and even help force a change ?

  5. Wonderful read. Thank you for all that you are doing!! Checking out your personal website now, you have done incredible work!! Fighting for all of us.
    ” Hiding exculpatory evidence is always a violation of the constitution.” This really summed it up!! Thank you.

  6. And now we have Chief United States District Judge of the United States District Court for the District of Nevada, Gloria Navarro, in an effort to guarantee the convictions of the defendants in the United States v. Bundy, et al, telling the defense and prosecution which evidence can and can not be used before the trials has even begun. And in the re-trials of four defendants starting today, allowing previously not allowed evidence and evidence that has nothing to do with this trial, to be used.

  7. Part of my Son’s Evidentiary Hearing, on Appeal, was challenging the Prosecutor and Investigators as to why they withheld a fingerprint challenge from another suspect (we never knew existed til after the fact) they lied and said they had no idea of “this other man” , that the fingerprint card must have “stuck” to my son’s card when sent to the FDLE lab, the first submission, BUT, the FDLE sent a letter of request back to them, asking for “re-do’s” of this “other” person as it was “inconclusive”, asked for more of my Son’s as well as other suspects. They claim they never saw that nor did they know at the time of this other guy because they just stuck the “file in the drawer”, later sent it to the Prosecutor(he claimed he never saw it either) without reading it. BUT, they had to have known because they did re-do my son’s prints per that request (three more times). They admitted to the Brady Violation but with the above excuse…….mishandling, not looking and noticing the “extra” name…..lie after lie….how could they miss that if they submitted more based on that request? And yes it could’ve had a different outcome because it would’ve placed alot of doubt in the juror’s mind about my son because ALL his fingerprints came out negative on all the suspected items that were tested on and that there WAS another suspect to consider, along with his “inconclusive” prints, my sons were negative, but this guys were inconclusive!!! The one criminal that got the only plea deal, testified against my son, but lied because when asked what were they all wearing during the robbery (home invasion), and if they’re faces/heads were covered (the victims testified the three guys had black masks covering their heads/faces, couldn’t see anything nor identify them), the guy said they didn’t wear anything covering their heads or faces (he didn’t know the victims had stated the real explanation), said only baseball cap on one, other had bandanna scarf on forehead, and he only wore sunglasses, and they all wore nice clothes…hmmmm….but no one challenged all that lie, weirdness. One more thing, the Ineffective Counselor at this Evidentrary Hearing, challenging him, became a Judge, (so at this point he’s no longer the Attorney title, he has a Judge title) so as he is being questioned, he lies. Then the Judge that’s on the bench hearing all this announces its time for lunch break, then announces he will be taking some time to talk to this man (Ineffective Counselor/now Judge) during lunch, BUT, not about the case, its a personal matter and did anyone mind? IS THAT CORRUPTION or WHAT? IS THAT ILLEGAL or WHAT? IS THAT OBSTRUCTION or WHAT? How terrible and disgusting is that???? My son is innocent, had Alibis, all kinds of proof it wasn’t him, but 13 Grounds, Constitutional Violations galore, we have fought it all for 9 yrs, now sits at the Supreme Court level. My son got life……..He’s Innocent 100 times over, but because of ALL the wrong doer’s of Investigator’s, Prosecutor’s, Judges, we can’t win, no one care’s about the real truth of this trial, Evidentrary Hearing, nor all this Corruption, Obstruction, misconduct, unethical behavour/conduct. I write to many places/people in hopes of someone will care to take notice and help……please guide me in this, its so horrific!!!!
    Thank you for reading this,
    Donna English

  8. The main problem is that Prosecutors are not help accountable when they commit misconduct. See our efforts in New York to pass legislation creating a commission to oversee Prosecutor Conduct and hold them accountable when they intentionally violate citizens rights. First New York then we plan to take our campaign to all the State in the Union. We need to hold Prosecutors accountable!!!!
    see for info.

  9. Pingback: Concealing Key Evidence Convicts the Innocent – Bob Mueller

  10. My son Jeremiah Dewey was falsely charged with five counts of Criminal Sexual Conduct in the first degree. The girl who charged him hated him because she felt that he had taken her place in her mothers life. This is in her testimony in the Police report. She had taken naked photo’s of her self and put them on the internet. The kids at her High School found out about it and they were teasing and harassing her about them. She decided that she was moving away. She posted this in her face book page I have a copy of it. She then posted she had all ready purchased the tickets. Jeremiah and her mother told her no she could not move. The Prosecuting Attorney addicted to prescription Narcotic pain killers decided to maliciously convict Jeremiah. He then added four additional charges against Jeremiah from an investigation from 2005 that was investigated and closed. He added two more additional charges using Jeremiah’s own daughter claiming that when Jeremiah put medication on his daughter he was really sexually molesting her. These two charges were actually used to add credibility to the other charges and to infuriate the Jury against Jeremiah. This Prosecutor used Brady Violations by with holding exculpatory evidence that proved Jeremiah innocent. See Jeremiah Dewey is Innocent on face book for more details. I would like to see some Law Professor look into this case and tell us what they see.

  11. Who decides what “material difference” would be to the outcome of a trial anyway? And for whose convenience would this be crafted and defined? Any prosecutor who hides exculpatory evidence is not only harming a possibly innocent defendant, but may also helping to aid and abet a possible thug who may be framing the possibly innocent person. If definitely innocent and definitely a thug involved who is being coddled and protected under the “law”, does this keep the streets safe? Should we trust the prosecution in so saying? Can we trust the process of law itself? I believe our founding fathers would be very concerned about this. They penned “fair and impartial” into law for very important reason.

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