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Hidden exculpatory evidence does not automatically reverse a conviction

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Prosecutors risk dangerous territory not to overdisclose evidence to criminal defense lawyers. Otherwise, the prosecution must spend more energy and time — both of which they have in short supply — to avoid violating the Fifth Amendment’s Due Process Clause  “if it withholds evidence that is favorable to the defense [exculpatory evidence] and material to the defendant’s guilt or punishment.” Smith v. Cain, 565 U. S. 73, 75 (2012) (summarizing Brady v. Maryland, 373 U. S. 83 (1963)).

Incredibly, the prosecutor’s non-disclosure of several important pieces of potentially exculpatory evidence in a 1980’s homicide case — which evidence in my view was exculpatory — led to a sixteen-day post conviction hearing decades later over that non-disclosure in the District of Columbia Superior Court. The D.C. Superior Court and D.C. Court of Appeals denied the multiple co-defendants relief, finding that the non-disclosed evidence was not material to the defendants’ guilt or punishment. Turner v. United States, ___ U.S. ___ (June 22, 2107).

The Supreme Court, 6-2, last week affirmed the denial of relief to the defendants, despite their arguments about exculpatory evidence. Id. I attended the oral argument in this case three months ago.

Without the benefit of the non-disclosed discovery, all co-defendants proceeded on a theory that a group of people robbed the victim who was subsequently killed, but each asserted that he was not in that group.

The non-disclosed evidence from the prosecutor included witness observation of non-defendants having been in the area of the crime before the police arrived, which information, if timely provided, would have enabled the defendants instead to argue an alternative theory that a single or two perpetrators committed the crime. Dissenting Justice Kagan, joined by Justice Ginsburg, recognizes this discovery non-disclosure as exculpatory and material to depriving the defendants of pursuing that alternative theory of defense.

Felonies in the District of Columbia are prosecuted by the United States Attorney’s Office, because the District of Columbia sadly remains a colony of sorts whose citizens do not have full Congressional voting representation, whose laws ordinarily do not go into effect without Congressional review, and whose judges are nominated by the president rather than by the District of Columbia’s mayor. Lawyers with the United States Attorney’s Office typically are selected among candidates with high achievement in terms of where they attended law school, their grades, and/or their participation in academic journals, and their post-law school work, if any, as judicial law clerks and practicing lawyers. This goes to show that merely getting a plum appointment as an assistant United States attorney does not assure that a federal prosecutor will fulfill his or her obligations to disclose Brady material.

At first blush, Turner might be seen as a travesty of justice. On the other hand, prosecutors should not want to be on pins and needles for not simply over-disclosing discovery and evidence. Here, the federal government spent substantial human hours preparing for and handling the sixteen-day post-conviction hearing in this matter, prepared and argued the appeal in the D.C. Court of Appeals and U.S. Supreme Court, and awaited the outcome. Did the prosecutor(s) who originally withheld the discovery in Turner suffer any reputational or job security fallout from this non-disclosure?

With discovery, prosecutors are best advised to disclose, disclose and disclose.