Tuesday, October 24, 2006

Exculpatory Evidence? What Exculpatory Evidence?

Update: So, Tom responded to this post thusly:

I imagine most courts would take a dim view of it, and as I've often said, what does it matter to win one case if costs you your credibility with the court? (or your law license).

I would have to think no court that she practices in will ever find her a trustworthy advocate.

As a general rule, I think he is right. Any prosecutor thinking about the consequences to her career if she were to be found out violating Brady would not risk those consequences just to win one case. But in this particular example, I have no such consolation or hope. First, she was found out, and the judge presiding over the trial not only did nothing to sanction her for her misconduct, but she let the evidence be admitted, and denied the defense a continuance to deal with the unfair surprise. Second, she still maintains that she did absolutely nothing wrong. She doesn't see this information as Brady material because the new alleged witness still implicated the defendant. And not only does she maintain that she did nothing wrong, so does her supervisor! How can the ADAs in this jurisdiction be properly worried about the consequences of violating Brady if neither they nor their supervisors appear to understand what Brady material is?

Here is an example of what I'm talking about. I once had an argument with another ADA who, like Hallman, was a chief prosecutor in a felony court. He told me that if he were to submit certain evidence related to a crime to an expert for evaluation, and if that expert were to conclude that nothing related to the evidence inculpated the defendant, he did not believe that was Brady material that he was required to turn over. I was dumbfounded. I asked him what basis he had for that belief, and he had nothing other than his own common sense. I threw caselaw back in his face that deals with this particular issue--when an expert hired by the state makes conclusions that fail to inculpate the defendant--and he still said that he didn't believe it was Brady. He said that an expert just has an opinion, and just because one particular expert he asks to evaluate the evidence has the opinion that it doesn't inculpate the defendant, that doesn't make it a fact that he must turn over to the defense. We argued about this for a while, and the sad part for me was that, at the end of the argument, I hadn't changed his mind at all. He still believed that he was right.

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Original post:

Here's a story from my old stomping grounds. This case is from the court I used to be assigned to and involves one of the prosecutors I worked with regularly. I always got along with her, and never knew her to do anything dirty or underhanded. But, in this case, I am just stunned by her crossing the line. The gist of the case is as follows. A guy is on trial for murder. An eyewitness has told the police and prosecutors repeatedly that she saw the shooting and the defendant was the shooter. Two weeks before the trial, the witness now claims that she didn't really see the shooting, but that some friend of hers who she knows only by the name Miguel, who she can't really describe, and who she thinks has moved out of state was the one who saw it, and told her who the shooter was. The prosecutor sends her investigator out to try to find this mysterious eyewitness, but never tells the defense. At least not until the morning of the trial when they have a hearing on introducing this mysterious witness's hearsay statements. Not only did the judge allow the testimony, but she denied the defense's request for a continuance so they could investigate who this new, mysterious person was and what he did or did not see. The scariest part for me was this quote from the article:

Both [the prosecutor] and her supervisor maintain that Brewer's story about Miguel was not exculpatory. After all, the witness doesn't change her story to say that Freeman was innocent.

I remember attending a CLE once where someone from the prosecutor's office gave a presentation on Brady material. One of the defense attorneys asked if the DA's office had a written policy on the handling of exculpatory evidence, and the ADA said that they didn't. I have had so many arguments with prosecutors in this DA's office about what is exculpatory material that must be handed over and what isn't. Most of them have a completely distorted view of what it is. This case is a classic example. Your only eyewitness suddenly changes her story two weeks before the trial and that's not exculpatory? That doesn't cast doubt on her credibility? Give me a break!

Heads should roll here. And I'm guessing that they would at a lot of other DA's offices. But as long as this particular prosecutor's husband gets elected DA in November (he's the Republican candidate), I'm guessing that won't happen.

8 Comments:

Anonymous Gideon said...

Haha. I love it. I wonder if they have their own version of reality. I bet they do.

10/24/2006 4:53 AM  
Blogger Poverty Lawyer 1 said...

You bet they do. The sad thing is, if he gets elected in November, not only will nothing change, but I think this type of ideology will become even more entrenched.

10/24/2006 7:03 AM  
Blogger Tom McKenna said...

I don't know about heads rolling, but clearly they're practicing some serious CYA. I imagine most courts would take a dim view of it, and as I've often said, what does it matter to win one case if costs you your credibility with the court? (or your law license).

I would have to think no court that she practices in will ever find her a trustworthy advocate.

10/24/2006 7:39 AM  
Anonymous Anonymous said...

State v. Garcia, 45 Wn.App. 132 (1986)
Eyewitness to homicide tells prosecutor that her original statement identifying defendant was false, prosecutor fails to disclose this to defense; witness later recants her recantation, trial court holds prosecutor's notes of this interview was work product and not exculpatory as it was a lie; held: prosecutor must, at the moment of discovery or confirmation, State v. Oughton, 26 Wn.App. 74, 79 (1980), disclose substance of oral statements to defense, CrR 4.7(a)(1)(i), State v. Martinez, 121 Wn.App. 21 (2004), irrespective of state's belief as to the veracity of the statement; work product only consists of opinions, theories or conclusions of investigating or prosecuting agencies, CrR 4.7(f)(1); a lawyer's notes are not per se work product, State v. DeWilde, 12 Wn.App. 255, 257 (1974); harmless here; I.

10/24/2006 10:25 AM  
Anonymous Anonymous said...

A prosecutor who knows of a reliable witness giving the accused a bulletproof alibi is unlikely to reveal this to the opposition. If the DA gets caught, there won't be any severe punishment, even though there is guilt for conspiracy to obstruct justice, and in a capital case, conspiracy to commit murder.

10/30/2006 9:01 AM  
Anonymous Anonymous said...

What when the police deliberatly do not obtain evidence, such as photos, because they know it will be exculpatory and later shape their report with only inculpatiry evidence? In my opinion this would surely be even worse, but I have seen it happen time and time again.

4/30/2008 9:25 AM  
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