The Order List doesn't come out every day. It's usually Mondays, and then only the Mondays following the Court's Friday conferences (when it has conferences on a Friday). There was an order list yesterday. Fairly typical.
- Four summary dispositions granting writs of certiorari, vacating the judgments of the circuit courts, and remanding the cases "for further consideration in light of"this or that.
- A bunch of orders on motions - mostly denying leave to file late or to file as indigent, but granting a couple of motions, too.
- A long list of cases the Court is unwilling to hear, some accompanied by rulings of motions.
- Bunches of denials of writs of various sorts and of motions for reconsideration.
- A few orders to lawyers to explain why they shouldn't be disbarred.
- Even a unanimous, unsigned opinion reversing the decision of the Alabama Court of Criminal Appeals that had affirmed Anthony Ray Hinton's death sentence despite finding that his lawyer's representation was grossly incompetent. (He knew Hinton needed a ballistics expert. He hired one he thought was ineffective because he believed he could not get the money he needed to hire someone he thought was competent. In fact, not only could he have gotten the necessary funds, but he should have known that he could have. The Alabama court said it didn't matter, but the Supremes sent the case back for the Alabama courts actually to look again at that question of prejudice.
Like I say, fairly routine, although the Hinton case is seriously surprising and might prove important. But that's not what caught my eye. What caught my eye was this line amid the long list of cases the Court was refusing to hear.
13-555 WOLFE, JUSTIN M. V. CLARKE, DIR., VA DOC
That's it, dull font and all. Nothing much there. Unless you know the backstory.
Start with this. It's settled law that the duty of a prosecutor is not to obtain convictions. The prosecutor's duty is to seek justice. (Insert giggle here.) You can remind me that I don't know what justice is. Doesn't matter. Whatever that noble ideal is, it's what the prosecutor is, theoretically, after.
Then try this. The obligation to seek justice includes with it obligations to obey the Constitution. One obligation of the prosecutor, a constitutional duty recognized for more than 50 years, since the Supreme Court decided Brady v. Maryland in 1963, is the duty to turn over to the defense any information that is exculpatory or that can be useful in order to impeach a witness for the prosecution. Nobody disputes the fact of that obligation, though the reality --
Consider US v. Olsen. The prosecutor in that case misrepresented to the court and the defense, concealed evidence that would have undermined the government's case. A panel of the 9th Circuit, reviewing the case, said, well, yeah. But you know, the guy might have been guilty. Olsen asked the 9th Circuit to review it en banc. The court declined. Judge Kozinski dissented (lengthy excerpts ahead).
There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.. . . The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it'spossible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.
A robust and rigorously enforced Brady rule is imperative because all the incentives prosecutors confront encourage them not to discover or disclose exculpatory evidence. Due to the nature of a Brady violation, it's highly unlikely wrongdoing will ever come to light in the first place. This creates a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice. In the rare event that the suppressed evidence does surface, the consequences usually leave the prosecution no worse than had it complied with Brady from the outset. Professional discipline is rare, and violations seldom give rise to liability for money damages.
. . .
I wish I could say that the prosecutor's unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors' offices across the country. But it wouldn't be true. Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend.
. . .
When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public's trust in our justice system, and chips away at the foundational premises of the rule of law. When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition.
OK, back to Wolfe v. Clarke, the case the Supremes declined to hear.
Justin Wolfe is on death row in Virginia, convicted of hiring his friend, Owen Barber, to kill Danny Petrole. Barber did, indeed, shoot and kill Petrole. He told the jury that. He also told the jury that Wolfe hired him to do it. That was a lie. The prosecutors told him to say it. They told him that he'd get the death penalty if he didn't say it. They coached him in how to say it. They kept all that a secret.
Over the years, it turns out that Barber told a lot of people how the prosecutors had coerced him into lying to implicate Wolfe. Then he formally recanted. There was a hearing. Barber explained how the government told him that he should blame Wolfe, that he'd face death if he didn't. He said Wolfe had nothing to do with the killing.
Paul Ebert, who led the prosecution team, also testified. He said that he routinely and purposely withheld exculpatory evidence if he believed defendant's guilty so that they could not "fabricate" a defense. And he admitted that the prosecutors in Wolfe's case had “choreographed and coordinated witness testimony through a series of joint meetings” with Barber and other witnesses to ensure that their stories would be consistent. These violations of Brady were not chance. They were, the court concluded, "entirely intentional."
A judge reviewed the evidence, heard Barber's testimony (and Ebert's), declared Wolfe actually innocent. He ordered the state of Virginia to retry Wolfe within 120 days or let him go.
Virginia did neither. Instead, it doubled down.
Prosecutor's went back to Barber, told him that if he told the truth at a retrial they'd bring back the original capital charges and add perjury charges. 120 days passed. Nothing. No retrial, no release. Virginia again indicted Wolfe for killing Petrole. And with Barber now taking the 5th, they'd be able to read his testimony from the first trial, testimony that was recognized as a lie, to the jury. And Barber wouldn't be there to recant it or tell how he was coerced and coached.
The judge cried foul. You're doing it again. He ordered the State to dismiss the charges and free Wolfe. The State refused. The 4th Circuit said the judge went too far. A retrial would be fair since Barber wouldn't be on the witness stand to lie and now the defense knew that he did. That his testimony would be repeated and couldn't be challenged? That a court's order was simply ignored? Who cares?
Not, as it turns out, the Supreme Court. Which we learned in that terse line from yesterday's Order List.
13-555 WOLFE, JUSTIN M. V. CLARKE, DIR., VA DOC
And now, as Paul Harvey used to say, you know the rest of the story.
Law of Rule.