Forensic Ethics Prosecutors’ Obligations

1. Forensic EthicsProsecutors’ Obligations Michael E. Keasler Judge, Texas Court of Criminal Appeals

2. Before Brady Mooney v. Holohan, 294 U.S. 103 (1935). “It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as the obtaining of a like result by intimidation.”

3. Before Brady (cont’d.) Pyle v. Kansas, 317 U.S. 213 (1942) “Petitioner’s papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. They are supported by the exhibits referred to above, and nowhere are they refuted or denied.”

4. Pyle v. Kansas (cont’d.) “The record of petitioner’s conviction, while regular on its face, manifestly does not controvert the charges that perjured testimony was used, and that favorable evidence was suppressed with the knowledge of the Kansas authorities. No determination of the verity of these allegations appears to have been made. The case is therefore remanded for further proceedings.”

6. Before Brady (cont’d.) Napue v. Illinois,360 U.S. 264 (1959). • Principal states witness testified in response to prosecutor’s question that he had not received any promise of consideration in return for his testimony. • Prosecutor knew that this statement was false but did nothing to correct it.

7. Napue v. Illinois (cont’d.) “It is of no consequence that the falsehood bore upon the witness’s credibility rather than directly upon the defendant’s guilt. A lie is a lie, no matter what its subject, and if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.” (unanimous opinion)

8. Brady v. Maryland, 373 U.S. 83 (1963) “In Napue v. Illinois, we extended the test formulated in Mooney v. Holohan when we said, ‘The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. We now hold that the suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution.”

9. U.S. v. Agurs, 417 U.S. 97 (1976) (7-2 decision) • Defendant claimed self-defense in murder trial • Murder victim had a record for assault and carrying a deadly weapon. • Prosecutor did not disclose this fact to defense. • But defense didn’t ask for any evidence of victim’s prior convictions.

10. U.S. v. Agurs (cont’d.) Brady rule applies in three quite different situations: • Prosecutor’s case includes perjured testimony and prosecution knew, or should have known, of the perjury. In these cases, the Court applies a strict standard of materiality, not just because of prosecutorial misconduct, but because they corrupt the truth-seeking function of trial process.

11. U.S. v. Agurs (cont’d.) (2) Cases characterized by a pretrial request for specific evidence (as in Brady). In Brady, the Court held that the suppression of one of the co-defendant’s statements (all of which were requested by Brady’s counsel) deprived him of due process, noting specifically that the statement was material. Implicit in the requirement of materiality is the concern that the suppressed evidence might have affected the trial’s outcome.

12. Note: • Supreme Court granted cert in Brady to decide whether constitutional violation vitiated the entire trial. • Held that he should only receive a new trial on punishment but since the evidence was not material on guilt (according to the Maryland Court of Appeals), the entire trial was not lacking in due process.

13. U.S. v. Agurs (cont’d.) “In Brady, the request was specific. It gave the prosecutor notice of exactly what the defense desired. Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known to the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by producing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever excusable.

14. U.S. v. Agurs (cont’d.) (3) “In many cases, however, exculpatory information in the possession of the prosecutor may be unknown to defense counsel. In such a situation, he may make no request at all, or possibly ask for “all Brady material” of for “anything exculpatory.” Such a request really gives the prosecutor no better notice than if no request is made…. [W]e conclude that there is no significant difference between [these two situations].”

15. U.S. v. Agurs (cont’d.) “We now consider whether the prosecutor has any constitutional duty to volunteer exculpatory matter to the defense, and , if so, what standard of materiality gives rise to that duty.”

16. U.S. v. Agurs (cont’d.) “Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure. But to reiterate a critical point, the prosecutor will not have violate his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”

17. U.S. v. Agurs (cont’d.) As to the argument that the prosecutor should turn over anything that “might affect the jury’s verdict: “[A] jury’s appraisal of a case “might” be affected by an improper or trivial consideration as well as by evidence giving rise to a legitimate doubt on the issue of guilt. If everything that might influence a jury must be disclosed, the only way a prosecutor could discharge his duty would be top allow complete discovery of his files a matter of routine practice….. [T]he constitution surely does not demand that much…. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.”

18. U.S. v. Agurs (cont’d.) “Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Conversely, if evidence actually has no probative significance at all, no purpose would be served by requiring a new trial because an inept prosecutor incorrectly believed he was suppressing a fact that would be vital to the defense. If the suppression results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.”

19. U.S. v. Agurs (cont’d.) “The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is only permissible if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context on the entire record. If there is no reasonable doubt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

20. U.S. v. Agurs (cont’d.) “Since the arrest record was not requested and did not even arguably give rise to any inference of perjury, since after considering it in the context of the entire record, the trial judge remained convinced of respondent’s guilt beyond a reasonable doubt, and since we are satisfied that his firsthand appraisal of the record was thorough and entirely reasonable, we hold that the prosecutor’s failure to tender [the] record to the defense did not deprive respondent of a fair trial as guaranteed by the Due Process Clause of the Fifth Amendment.

21. U.S. v. Bagley, 473 U.S. 667 (1985) • 9th Circuit case • Bagley indicted for federal narcotics and firearms violations • Lawyers filed discovery motion asking for info about any “deals, promises or inducements made to witnesses in exchange for testimony • Bagley waived jury, tried before judge in 1977 • Found guilty on narcotics; not guilty on firearms

22. U.S. v. Bagley (cont’d.) • 1980 --- Bagley discovered that ATF had made a deal and signed a contract with 2 govt. witnesses to pay them in exchange for working undercover and providing info about crimes committed by Bagley. • Prosecutor testified that he didn’t know about the deals and would have disclosed them if he had known about them.

23. U.S. v. Bagley (cont’d.) Trial judge found beyond a reasonable doubt: • If info had been disclosed before trial, it would not have changed his verdict; • Almost all these witnesses’ testimony dealt with firearms charge wherein Bagley was acquitted; • As to narcotics issues, these witnesses’ testimony tended to be favorable to Bagley; • Therefore, the impeachment evidence would not have been helpful to Bagley and would not have affected the trial’s outcome. • Therefore, all relief denied.

24. U.S. v. Bagley (cont’d.) • 9th Circuit reversed; Supreme Court granted cert. • Holding: • Prosecutor’s failure to assist defendants by disclosing evidence that might be helpful on cross examination is a constitutional error only if the evidence is material under the Brady rule; and • Undisclosed evidence is material for purposes of that rule only if it is reasonably probable that the outcome of the trial would have been different if the evidence had been disclosed. • Therefore, the 9th Circuit is reversed. (surprise, surprise!)

25. Arizona v. Youngblood, 488 U.S. 109 (1988) • In sexual assault case, police did not properly refrigerate underwear and t-shirt that had DNA evidence on them. • Expert testimony at trial revealed that timely performance of tests on properly preserved evidence could have produced results that might have exonerated defendant who claimed mistaken identity. • No bad faith on the part of the state. • Jury found him guilty anyway.

26. Arizona v. Youngblood (cont’d.) Supreme Court held: • Unless defendant can show bad faith on the part of the police, the state’s failure to preserve potentially useful evidence --- of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant --- does not constitute a constitutional violation; • Accordingly, no due process violation occurred here since • the failure to refrigerate could at worst be described as negligent; • none of this information was concealed at trial; and • the evidence --- such as it was --- was made available to the defendant’s expert, who declined to perform any tests on the samples.

27. Kyles v. Whitley, 514 U.S. 419 (1995) • Capital case --- “Death is different.” • 5-4 decision • Majority: Souter, joined by Stevens, O’Connor, Ginsburg, and Breyer • Dissent: Scalia, joined by Rehnquist, Kennedy, and Thomas * now retired

28. Kyles v. Whitley (cont’d.) Majority: Accused was entitled to a new trial because the prosecutor didn’t disclose favorable information to the accused concerning his possible innocence; The net effect of the withheld evidence raised a reasonable probability that the evidence’s disclosure to competent counsel would have produced a different result; The state’s disclosure obligation turns on the cumulative effect of all such suppressed evidence; The prosecutor remains responsible for gauging that effect regardless of any failure of the police to bring favorable evidence to the prosecutor’s attention. Good faith-bad faith irrelevant.

29. Kyles v. Whitley (cont’d.) Under this case, a “reasonable probability” means that the likelihood of a different result is “great enough to undermine confidence in the outcome of the trial.”

30. Note • Retreat from Bagley • Very complex, involved facts. • Capital case • Sharply divided court • Four of the nine now gone • Kennedy voted with dissent

31. Connick v. Thompson, 131 S. Ct. 1350 (2011) • Prosecutor suppressed exculpatory evidence, and defendant was convicted. After this was discovered years later, defendant was granted new trials and acquitted. • Defendant then filed a federal 1983 suit against New Orleans District Attorney Harry Connick, Sr. for failure to provide Brady training for prosecutors and was awarded a $14 million verdict.

32. Connick v. Thompson (cont’d.) U.S. Supreme Court reversed. 5-4 Decision Prosecutorial immunity Withering questioning of Connick’s appellate counsel Wake-up call

33. Smith v. Cain, 132 S. Ct. 181 (2012) 8-1 decision (Thomas dissenting) Another case out of New Orleans Evidence impeaching an eyewitness’s testimony may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. Here, however, the eyewitness testimony was the only evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testimony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violated Brady.

34. Recent Texas Cases Ex Parte Miles, 359 S.W.3d 647 (Tex.Crim.App. 2012) • Exculpatory evidence held by police, but unknown to prosecutor (two undisclosed police reports) • Evidence found to be material under Kyles v. Whitley • Lack of prosecutorial bad faith is not controlling. • Evidence was definitely admissible for impeachment. • 8-0 decision

35. Pena v. State 353 S.W.3d 797 (Tex.Crim.App. 2011) • The audio portion of a videotape of the defendant’s traffic stop was withheld from the defendant and his attorney. • It contained statements that were clearly exculpatory • The defense did not and could not have known of its existence; the prosecutor affirmatively represented that it did not exist. • The prosecutor either knew or clearly should have known of its existence.

36. Pena v. State (cont’d.) Brady violation; new trial ordered. Unanimous decision

37. The Good Prosecutor "Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done…”

38. The Good Prosecutor (cont’d.) “The qualities of a good prosecutor are as elusive and impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.” ---Robert H. Jackson, U.S. Attorney General, 1940