Forensic Ethics Prosecutors

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Forensic EthicsProsecutors Obligations

• Michael E. Keasler
• Judge, Texas Court of Criminal Appeals

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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.

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Before Brady (contd.)

• Pyle v. Kansas, 317 U.S. 213 (1942)
• Petitioners 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.

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Pyle v. Kansas (contd.)

• The record of petitioners 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.

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Before Brady (contd.)

• Napue v. Illinois, 360 U.S. 264 (1959).
• Principal states witness testified in response
  to prosecutors 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.

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Napue v. Illinois (contd.)

• It is of no consequence that the falsehood
  bore upon the witnesss credibility rather than
  directly upon the defendants 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)

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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.

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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 didnt ask for any evidence of
  victims prior convictions.

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U.S. v. Agurs (contd.)

• Brady rule applies in three quite different
  situations
• Prosecutors 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.

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U.S. v. Agurs (contd.)

• (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-defendants statements (all of which were
  requested by Bradys 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 trials 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.
  

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U.S. v. Agurs (contd.)

• 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.

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U.S. v. Agurs (contd.)

• (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. We conclude that there is no
  significant difference between these two
  situations.

15
U.S. v. Agurs (contd.)

• 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.

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U.S. v. Agurs (contd.)

• 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
  defendants right to a fair trial.

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U.S. v. Agurs (contd.)

• As to the argument that the prosecutor should
  turn over anything that might affect the jurys
  verdict
• A jurys 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.. The 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.

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U.S. v. Agurs (contd.)

• 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.

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U.S. v. Agurs (contd.)

• 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 (contd.)

• 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 respondents 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 prosecutors 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.

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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

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U.S. v. Bagley (contd.)

• 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 didnt know about
  the deals and would have disclosed them if he had
  known about them.

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U.S. v. Bagley (contd.)

• 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 trials outcome.
• Therefore, all relief denied.

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U.S. v. Bagley (contd.)

• 9th Circuit reversed Supreme Court granted
  cert.
• Holding
• Prosecutors 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!)

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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.

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Arizona v. Youngblood (contd.)

• Supreme Court held
• Unless defendant can show bad faith on the part
  of the police, the states 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 defendants expert, who declined
  to perform any tests on the samples.

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Kyles v. Whitley, 514 U.S. 419 (1995)

• Capital case --- Death is different.
• 5-4 decision
• Majority Souter, joined by Stevens, OConnor,
  Ginsburg, and Breyer
• Dissent Scalia, joined by Rehnquist, Kennedy,
  and Thomas
• now retired

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Kyles v. Whitley (contd.)

• Majority
• Accused was entitled to a new trial because the
  prosecutor didnt disclose favorable information
  to the accused concerning his possible innocence
• The net effect of the withheld evidence raised
  a reasonable probability that the evidences
  disclosure to competent counsel would have
  produced a different result
• The states 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
  prosecutors attention.
• Good faith-bad faith irrelevant.

29
Kyles v. Whitley (contd.)

• 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 (contd.)

• U.S. Supreme Court reversed.
• 5-4 Decision
• Prosecutorial immunity
• Withering questioning of Connicks 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 eyewitnesss testimony
  may not be material if the States 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 eyewitnesss undisclosed statements
  contradicted his testimony. The eyewitnesss
  statements were plainly material, and the States
  failure to disclose those statements to the
  defense thus violated Brady.

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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

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Pena v. State 353 S.W.3d 797 (Tex.Crim.App. 2011)

• The audio portion of a videotape of the
  defendants 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.

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Pena v. State (contd.)

• Brady violation new trial ordered.
• Unanimous decision

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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

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The Good Prosecutor (contd.)

• 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 citizens 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

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