Sauce for the Goose

The Los Angeles Times gets it.  Maybe it's gotten it for years.  (I don't live anywhere near the Golden State and don't look at the LA Times editorial pages more than once a year or so when someone draws my attention to them.)  But long ago or just this week, the Times understands.

Prosecutors cheat.

I know.  I know.  It's something, isn't it.  Dog bites man.

The editorial is called "Defending the Brady rule," and here's how it begins.

The Supreme Court recently heard a case in which prosecutors withheld from the defense information that might have acquitted a murder defendant. The court can rectify this one injustice by ruling for the defendant, but broader reforms are necessary to prevent prosecutors nationwide from concealing evidence.

The case before SCOTUS is Smith v. Cain and it's yet another case where the prosecutors in New Orleans decided that the best way to ensure a conviction was to hide the evidence that it's case sucked.  Specifically, the only evidence that Juan Smith had anything to do with shooting up a birthday party and killing five people was his identification by an eyewitness who survived, Larry Boatner.  Boatner testified to his certainty.

I'll never forget him.

Which is interesting, since he repeatedly told the cops that he couldn't identify anyone and had no idea what the guy looked like.  It has been clear since at least 1963 when the Court decided Brady v. Maryland that prosecutors have a constitutional obligation to turn over to the defense any information which is favorable to the defense on either guilt or punishment.  Prosecutors (not every one of them, but far too many) ignore that obligation.  Some ignore it routinely.  Some ignore it only on special occasions.  But ignore they do.

It's a particular problem in the Big Easy, though a majority of the Court ruled last year (Connick v. Thompson) that it was only a one-time thing there before agreeing to hear Smith and giving the lie to their prior decision.  So they argued Smith on November 8 (transcript here) and it was kind of a disaster for the assistant prosecutor who was sent to Washington to be sacrificed on the altar of Brady.

Anyhow, the LA Times figured out not just that prosecutors violate Brady but that the occasional slapping around (it actually has happened a few times, and it's likely to happen again in Smith, though you never know) by SCOTUS doesn't really accomplish anything.

When you pit the constitutional rights of the accused against the desire to convict the winner is pretty regularly going to be the desire to convict.  Which is why Brady violations (and other forms of prosecutorial misconduct) are so damn ordinary.

Oh, there's lovely language in court decisions.  See, especially, Justice Sutherland in Berger v. U.S.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Sure. But the good Justice wouldn't have had to write it if prosecutors actually obeyed.

What they know is that it doesn't much matter.  They'll get their convictions. Should they get caught, it probably won't get the convicted guy released. (Factual innocence? it is to laugh; mere legal innocence? it is to guffaw.) And it sure as hell won't get the prosecutor punished - unless becoming a judge is punishment.  Besides, the putatively bad guy will still have done whole bunches of time, and isn't that the point?

Constitutional rights?  Sure.  In some other universe.

So what to do?

Cathy Cook, as I've noted here several times, told the Ohio Supreme Court during oral argument,

You've got to make them lose to make them learn.

But the court wouldn't.  And doesn't.  And neither, with anything like the requisite regularity, does any other court.  Nor do the prosecutors suffer any sanction - either in-house or to their license.

What to do?

Back to the LA Times.

A victory for Smith would remedy this particular injustice, but violation of the Brady rule is widespread in the criminal justice system. The National Assn. of Criminal Defense Lawyers has proposed model legislation that would ensure that the Brady rule would be faithfully followed. For example, it would require prosecutors to disclose information that is "favorable" to the defendant even if it's not considered admissible. Prosecutors also would have to disclose material sought by the defense "without delay."

The proposed legislation would apply to federal prosecutions, but it could serve as a model for the states as well. Both state and federal prosecutors are bound by Brady, and both have been guilty of undermining it. Congress must act because the Supreme Court alone can't deal with all the abuses. 

Well, uh, yeah. Sure. That'll fix it.

I'm a member of NACDL. It's a terrific organization. It does important work. It provides a variety of resources and support for criminal defense lawyers.  It helps to educate the public about what we do and how and why.  It advocates in court.  And it lobbies Congress on criminal justice and constitutional issues of importance to all of us (even those who don't realize that they matter).

All of that is important.  And I hope NACDL's proposed statute (you can find the text and related documents here) becomes law.

And then?  Why prosecutors who don't give a shit about the constitutional rights of the accused will wake up to a new dawn.  They'll run to the office, and announce to their staff

Folks, we have a new policy starting today.  We have wisely ignored our Brady obligations for 48 years now, but Brady is just a requirement of the Constitution.  There's now a statute that says Brady counts.  And we know that statutes are far more important than the Constitution.  Since Congress wants us to obey Brady we must do so.  Fully.  Thoroughly. Beginning today. No excuses.

Sure.

As I said, I really do hope it becomes law (though I'm not holding my breath).  But the LA Times editors really do live in a fantasy world if they believe that a statute will

ensure that the Brady rule would be faithfully followed 

when its violations are now "widespread."

You have to change the culture, not the law.  Strong words from SCOTUS are nice.  So would be a statute.  And the occasional win is lovely.  But none of that changes the mindset.

So here's the trick.

• Vote the liars and the cheats out of office.
• Yank their licenses.
• Abolish prosecutorial immunity.  (Hell, abolish all government immunity which is bullshit anyway in a supposedly free society.)
• And make the money come out of their pockets.

Think about it this way: Prosecutors believe that the only way to change behavior is to make the miscreant suffer.

Do unto them.

The Courts Giveth and the Courts Taketh Away

This week in Ohio death penalty news.

Monday, the 6th Circuit, sitting en banc and by a 9-5 vote, reversed the decision of a three-judge panel and decided that William Montgomery shouldn't get a new trial after all.  That messy part about the exculpatory evidence the state concealed?  Pshaw.  Probably wasn't true. 

Today, a panel of the 6th Circuit, granted habeas corpus relief to Kelly Foust, ordering a new sentencing hearing. 

Petitioner Kelly Foust, a death-row prisoner in Ohio, was convicted of murdering Jose Coreano, raping Damaris Coreano, setting the Coreanos’ house on fire, and related offenses. At the mitigation hearing, Foust’s mother, Foust’s father, and defense psychologist Dr. James Karpawich testified on Foust’s behalf. Although their testimony depicted an unpleasant childhood with an emotionally distant and abusive father, their testimony pales in comparison to the horrific accounts detailed in records from Children’s Services and in affidavits from Foust’s siblings. The records and affidavits reveal the squalor of Foust’s childhood home: feces on the walls; vomit on the floor; infestations of lice, cockroaches, flies, and mice; piles of filled garbage bags, filthy clothes, and dirty dishes; little food and frequent utility outages; children who had not bathed for a month; and conditions so vile that a cleaning crew called the residence an “uninhabitable” “pig sty” and refused to return. The new evidence explains how Foust’s mother, not just his father, physically and emotionally abused Foust by, for example, calling Foust a “worthless piece of shit” when he tried to impress his mother with good grades and a new job. The records and affidavits document rape, incest, and sexual abuse among several of Foust’s siblings. The new evidence also reveals Foust’s attempt to help his younger sister reshape the family’s trajectory.
The three-judge panel that sentenced Foust to death never heard these vivid facts because Foust’s counsel provided ineffective assistance. In preparation for the mitigation hearing, Foust’s attorneys did not interview any potential witnesses. The attorneys did not gather any records from Children’s Services, despite Karpawich’s repeated reminders. The attorneys did not prepare Foust’s parents or Karpawich in advance of their testimony at the mitigation hearing. The attorneys hired Karpawich in lieu of a trained mitigation specialist, even though Karpawich informed the attorneys that he was not a trained mitigation specialist.

Oh.  It's the 6th Circuit, so of course there was a dissent.

And also today the Ohio Supreme Court set two new execution dates.

• Fred Treesh - March 6, 2013
• Steven Smith - May 1, 2013.

Of course, we're still waiting to find out whether the state will actually be allowed to kill Billy Slagle in three weeks or Joey Murphy a month later or . . . .  But the folks in Columbus, they just keep adding to the list which at my quick count now has 12 serious execution dates on it and which is geared up for 21 months of killing.

Talk about planning for the future.

Albert Camus wrote of the horror in knowing and waiting.

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

Everyone on the row knows that sometime.  But 21 months with a specific date at the end? 

The word that comes to mind is torture.

Encouraging Developments

It is absolutely clear (widely ignored, but absolutely clear) that the Due Process Clauses of the Constitution ( Fifth and Fourteenth Amendments) require the prosecution to turn over any evidence in the possession of the government that is favorable to the defense. We call it "Brady material" after the Supreme Court's 1963 decision in Brady v. Maryland. (The Court extended the rule in 1995 in Kyles v. Whitley, a case out of Louisiana.)

The evidence doesn't need to be exculpatory, just favorable - either to determinations of guilt or punishment. It doesn't even need to be in the possession of the prosecutor. The obligation is ultimately the government's with the prosecution acting as the agent (and potential fall guy) for the rest of the gov. So the prosecutor has a duty to gather the evidence that the rest of the government has, scour it for what might be favorable, and turn it over.

There's a second set of discovery obligations in criminal cases that are set forth in court rules. The federal version is in Federal Rule of Criminal Procedure 16. The states each have their own. Ohio's is Ohio Rule of Criminal Procedure 16. The federal and Ohio rules are similar but not identical. Those rules overlap Brady obligations, but require release of non-Brady material, too.

It won't shock regular readers of this blog (are you out there?) to suggest that these obligations are too often honored only in the breach. And when prosecutors do get caught violating Brady or local criminal rules, alas, the sanction is too often nothing, at most a slap on the wrist.

Anyway, that's all preliminary to a couple of developments.

DEVELOPMENT 1

The American Bar Association, which has a lot of members, a big budget, significant prestige among big firm lawyers and law professors and people who know absolutely nothing about the day to day practice of law, and no actual power whatsoever, released an ethics opinion in July that might just make a difference. It's "Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense," and as Scott Greenfield notes, we haven't been giving it the publicity and attention it deserves.

Here's the ABA's summary (all in italics in the original which makes it hard to read, so I've removed them).

Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “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, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further obligated to conduct searches or investigations for favorable evidence and information of which they are unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all lawyers in the office comply with their disclosure obligation.

There are three key things here.

First, the disclosure obligation extends not just to evidence but to "evidence or information." Prosecutors have too often hidden Brady material by claiming that it's not really "evidence."

Second, the disclosure must occur

as soon as reasonably practicable so that the defense can make meaningful use of it.

That might seem self-evident, but try putting it to the prosecutor who "satisfies" his obligation by turning over material during the trial.

Third, it's an ethics opinion. I know, I know. But really, there are ethical rules for lawyers. And we're supposed to obey them. When we don't, we can be sanctioned, even disbarred. (Of course, the reality is that comparatively trivial transgressions tend to result in severe sanctions against criminal defense lawyers while major violations get prosecutor's wrist's slapped just before they get elevated to the bench, but that's just how it looks to an objective observer.) State ethics rules are the ones we're obliged to follow, and they are mostly modeled on the ABA's rules and interpreted in accord with the ABA interpretations. So this opinion has, at least potentially, some actual clout. At least, it does if we push it hard.

Development 2

Here in Ohio know we've been working for years to amend our Criminal Rule 16 to provide for greater discovery, ideally open file discovery. If the state is confident enough to charge my client, it should be confident enough to let me see what it's got. The fight has been going on for years, but the rule hasn't changed significantly. Now, however, it looks like there's actually going to be a real change.

It's not pure open file discovery and it's not the rule I'd have liked, but the Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorneys Association have agreed on a draft rule (see story here). With both those organizations in line, there's every reason to believe the rule will be enacted and effective in 2010. This is big stuff.

Development 3

I've talked here and here about the discovery efforts in the Rommell Broom case. The Cuyahoga County Prosecutor hid evidence at his capital trial. Shortly after the defense got it, and before the defense could use it, the Ohio Supreme Court seemed to say, in another case, that the defense can neither get nor use such evidence. So, since 1994, Broom has sat on death row in Ohio with this evidence he couldn't use. Then, in July, the Cuyahoga County Court of Appeals said that Broom could use the evidence.

But can he? The state is planning to kill him in less than two weeks, on September 15. And the prosecutor has appealed the order allowing use of the information. Yesterday, the Ohio Supreme Court almost stepped in. In a three paragraph unsigned order yesterday, the court agreed to hear the appeal and ordered expedited briefing to be completed by September 9. One hopes that if it agrees the evidence can be used, it will also grant a stay of the execution so that it can be used.

For reasons they don't explain, Justices O'Connell and Pfeifer would not have expedited the briefing.

So, what does all this mean? Is honesty to rear its ugly head in the criminal justice system? Is someone actually going to force the government to play by the rules? Integrity? Fairness? Dare I say "Justice"?

No, I won't say any of that. But it's a glimmer, a start, a basis for some hope. That'll matter to Broom, of course. And it should matter to the rest of us.

Another Month, Another Killing

They're gathering up the needles and tubes again down in Lucasville. This time it's Rommell Broom.

Broom is on death row for the 1984 kidnap, rape, and killing of Tryna Middleton in Cleveland. At his trial in 1985, the prosecutors violated their constitutional obligation to turn over all evidence favorable to the defense. In 1994, Broom finally got that information, but before he could use it to petition for a new trial, the Ohio Supreme Court said, in the context of another case, that Broom had no legal right to use that information. (It really does make as little sense as it sounds like. I discussed the situation, and its current status in Broom's case, here.)

As these cases do, Broom's moved through the courts and then the political system. In 2007, the Parole Board voted to deny him clemency (report here). Strickland didn't have to decide, then, what to do because his execution was stayed while lethal injection litigation made its way through the courts. Now, although lethal injection litigation continues in Ohio, and although a court just decided at the end of July that Broom can finally use the information he got in 1994 (opinion here), the state is gearing up to murder him on September 15.

Last week, the Parole Board issued a supplemental clemency report. They Board didn't change its mind. The fact that he can now use the evidence the state hid to try and show that he should never have been convicted - and certainly should never have been sentenced to die - they decided unanimously, is no reason not to kill him before he gets a chance to do that.

Last month, Strickland defied the Parole Board's recommendation of clemency and ordered the murder of Jason Getsy to go forward. It's about impossible to imagine that he'll ignore the Parole Board's recommendation of murder and grant Broom clemency, or even a reprieve. So it's up to the courts. I'm not holding my breath, though I'm wishing hard.

Mark it on you calendar. September 15. We Don't Give a Damn Day.

ODDS & ENDS

Time for another miscellany.

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Crime is down, and nobody seems to know why. At least, that's the thesis of an article in last Sunday's New York Times.

Of course, everyone takes credit. So Jon Corzine, Governor of New Jersey and well behind in the polls in his bid to win another term this November, is touting the wonders of his crime fighting efforts as the key to a dramatic decrease in violent crime - especially homicides - in the state since 2007. Maybe he's right and entitled to take credit. But if crime is down across the nation, maybe it's just coincidence? Or maybe . . . .

Ah, the hell with it.

One note though about New Jersey. Since it legislatively abolished the death penalty at the end of 2007, homicides are down. I'm not suggesting a causal relationship, but I am suggesting (nay, I'm insisting), that the Garden State's becoming the first state to legislatively abolish the death penalty in half a century certainly didn't lead to an increase in homicides.

OK, one more thought on New Jersey. Violent crime may be down, but corruption, it seems, at least if that massive federal bust reflects reality, is rampant. Here's exhaustive coverage from the Newark Star-Ledger. And here, courtesy of the Times, are the criminal complaints against three of the principles.

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As reported in this story in the Winston-Salem Journal, North Carolina is on the verge of enacting a Racial Justice Act. A spokesman for the Governor indicates that she is likely to sign the bill which has passed both houses of the legislature. If she does sign it, North Carolina will join Kentucky as the only states pemitting challenges to the death penalty based on statistical evidence of racial bias.

The Journal reports that opponents claim the bill would

set up an enormous roadblock for capital punishment and reopen old wounds for the families of murder victims.

Let's think about that for a minute. Here's the claim: If we look at general trends rather than particular cases, we'll discover that the system is so heavily racially biased that nobody will believe we're innocent of bias in any particular case. We can't have that.

Actually, that's roughly what the U.S. Supreme Court said in McCleskey v. Kemp: We accept that statistical data demonstrates that the death penalty is applied in a racist way, but if we decided it mattered, then we'd have to call the whole criminal justice system into question, and we just aren't willing to do that.

But, it seems, North Carolina is likely to do the first step. Here's hoping the Governor Perdue signs the bill and that the courts then have the guts to actually apply it fairly.

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Sharon Keller, "Killer Keller" as she's known around Texas, is Chief Judge of the Texas Court of Criminal Appeals. She goes on trial/media circus August 17 in San Antonio for a variety of forms of judicial misconduct arising from her refusal to keep the courthouse open to permit a last minute filing by Michael Wayne Richard which, it's pretty much clear, would have prevented his execution.

You can get all the background you might want through the links at this Grits for Breakfast post.

Thanks to Mark Bennett, We've seen Keller's written response to the charges against her. As Bennett points out, she complains that she's being forced to hire her own lawyer for her defense. She believes she's entitled to have the state pay for the lawyer of her choice at the fee of his choice. As Bennett also notes, in the same post, Keller claims that applying the Texas Constitution to her would violate the Texas Constitution.

That might lead to a "Huh?" were Keller not so consistently willing to put reason aside in order to favor her own goals. She is, after all, the one who explained, in the context of Roy Criner's case where the DNA exonerated him, that finality trumps innocence. She told Frontline, "At best, he established that he might be innocent. We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important. "

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We're still waiting for Strickland to decide whether to commute Jason Getsy's death sentence. As I wrote a couple of weeks ago, the parole board said he should. But the Trumbull C0unty Prosecutor is mounting a vigorous effort to convince Strickland to let the aggravated murder of Getsy go forward. (Story here.)

In the meantime, Rommell Broom, who's scheduled to be killed in September, got a big win in the 8th District Court of Appeals. The court said that he can use the public records that he received back in 1994, when it was lawful for him to get that information, to try to prove that if he'd been able to get that information before trial, he'd likely not have been sentenced to die.

What took him so long? you might well ask. The answer is that for years the courts have been telling him that he can't use evidence that the police basically hid from him to prove he shouldn't have been sentenced to die because, well, he just shouldn't.

After all, if people on death row could use the information police had to prove they shouldn't be there, we might have to reopen all these old cases. There'd just be no end to the confusion and uncertainty. Once you're convicted, that should be it. Oh, and you shouldn't be able to get to that stuff before you're convicted, either. Roughly speaking, that's what the Ohio Supreme Court said in 1994 in State ex rel. Steckman v. Jackson, overruling it's 1990 decision, State ex rel. Clark v. Toledo (Sorry, can't find a free copy of either on line, though Steckman should be out there.)

It's good news for Broom, and it's an important decision. Naturally, the state intends to appeal.

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I noted the other day that Kenya has just commuted the sentences of the 400 or so people on death row there. An AP report says that China is to begin using the death penalty "less often and for only the most serious criminal cases." On the other hand, Iran just had a mass execution of 24 bringing to at least 219 the number that nation has executed so far this year.

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And the beat goes on.

How hard is this?

You don't just naturally think that the Texas Court of Criminal Appeals is the place to go for common sense rulings and for instruction to prosecutors about how to do their jobs. But once in a while they get it right.

Consider, if you will, Ex parte Johnson, an unpublished, per curiam opinion from May 20. In two pages, the court explains that Johnson entered a guilty plea to aggravated sexual assault of a child and was doing life. He complained that Brady material was withheld and that he should get a new adjudication. The trial court agreed and the Court of Criminal Appeals granted relief. You can see why they didn't publish it: It says nothing.

Judge Cochran's concurrence, on the other hand, tells a story. Seems that five days before the trial, an investigator for the prosecutor went to the child's school and was told by school officials that the child was "a great liar" but always seemed believable. The day before trial, the child recanted. Nobody told defense counsel these things. The day of trial, Johnson entered a plea. Counsel said that, had he known, they'd have gone to trial because the case would have been a winner.

You think?

But why bother with the concurrence? Certainly not just for the sake of the story. In fact, Judge Cochran explains his motivation:

I join the Court’s opinion. I write separately because many prosecutors, acting in all good faith, may not realize that, under Brady, a prosecutor must always disclose information that the complaining witness has recanted her allegations of sexual molestation (or any criminal act) even when the defendant pleads guilty or has already agreed to plead guilty.

In "all good faith"? He's gotta be kidding. Or delusional.

Still, you've heard it from Texas. When the complaining witness recants, the prosecutor has to tell the defense.

Always.