Brady Violations, Explained

A recent decision in the 4th Circuit, Juniper v. Zooksheds some light on how Brady violations can occur. In that case, a capital murder prosecution, prosecutors failed to disclose to the defense evidence from an eyewitness that potentially identified another suspect other than the defendant. The reason?

“Deputy Commonwealth’s Attorney Evans’s affidavit also described the prosecution’s rationale for not disclosing the Roberts materials to Petitioner’s trial counsel before trial. According to Deputy Commonwealth’s Attorney Evans, a 911 chronology— which, according to Petitioner, the prosecution also did not disclose to Petitioner’s trial counsel—coupled with Mings’s trial testimony that Petitioner committed the murders before Mings first called 911, “clearly proved that the murders of the four victims occurred prior to the first Norfolk Police Department response initiated at 12:44 p.m. on January 16, 2004.” Id. at 1156. Deputy Commonwealth’s Attorney Evans’s affidavit further maintained that the Roberts materials were not “material[ly]” exculpatory—and thus not subject to disclosure under Brady—because (1) “Wendy Roberts’ statements on January 16, 2004 were factually inconsistent with the documented event chronology of the Norfolk Police Department response and activities in and around [Keshia’s apartment] on January 16, 2004…..” (emphasis added).

Tha’s right, per the prosecution, evidence that contradicts their theory of the case they consider not material.

As the Court of Appeal rather dryly observes in granting the defendant’s habeas corpus request, “But the “factual inconsisten[cy]” between the Roberts materials and the statements of the first 911 caller and Mings is precisely what renders the Roberts materials exculpatory and impeaching for purposes of Brady.”



“Order of Actual Innocence” + 5 years….

ProPublica reports that the Nevada Board of Pardons Commissioners has pardoned Fred Steese, 26 years (21 in prison) after his conviction on a murder charge in which the prosecutors had proof of his alibi hidden in their files, five years after an Order of Actual Innocence from a district court, and five years after the same Clark County prosecutor’s office required an Alford plea from Steese as a prerequisite for release after the order.

Steese was convicted in 1995 and sentenced to two life sentences for the murder of Gerard Soules, a Las Vegas performer with a costumed poodle act at the Circus Circus casino. At the time of Soules’ death, Steese was several states away. But prosecutors didn’t reveal that they had evidence that Steese was telling the truth, instead telling jurors that Steese had fabricated his alibi with the help of his look-alike brother. During the trial, the prosecutors also concealed the nature of several photo lineups pointing to Steese’s innocence and accused the defense of manufacturing evidence.

The men who prosecuted him, Bill Kephart and Doug Herndon, are now district court judges in Las Vegas.

Read the whole sordid story here.

And, 46 Years….

From the Baton Rouge Advocate:  A state district court judge has overturned Wilbert Jones’ 1974 conviction in the abduction and rape of a Baton Rouge nurse, saying “highly favorable” evidence was withheld from the defense.

Jones, now 64, was found guilty in the Oct. 2, 1971, rape of a young Baton Rouge General Medical Center nurse who was abducted from the hospital parking lot. As the appellate judge noted, the case against Jones was “weak, at best.” The state’s entire case rested entirely on the nurse’s testimony, and questionable identification of Jones that came more than three months after her rape. The victim “admittedly was not certain about her identification of Jones, and she even expressed doubts to officers regarding the identification,” Anderson said.

At the same time, in 1971, police and prosecutors were aware of another young woman kidnapped a few days later, Oct. 29, 1971, from the parking lot of another nearby medical facility, Our Lady of the Lake Regional Medical, and also raped. The court said that the “strong similarities” between the two rapes are “almost too numerous to list.” He also stated that the nurse’s physical description of her attacker is “an almost identical match” to Arnold Ray O’Conner, who was convicted of armed robbery in a September 1973 home-invasion rape near Baton Rouge General. O’Conner’s fingerprints were found on the car of the woman kidnapped from the Our Lady of the Lake parking lot and raped, but Anderson said he was arrested but never charged in that incident. The prosecution was clearly obligated to turn over information about the second rape to Jones’ trial attorneys but failed to do so, and the court found that “there is a reasonable probability that, had the information been disclosed to competent counsel, the result of the proceeding would have been different.”


Is 46 years in prison on this record enough for the prosecution? Apparently not. The East Baton Rouge Parish District Attorney’s Office said they will ask the Louisiana Supreme Court to review the ruling in Jones’ case.

25 Years in Prison….

From the Washington Post:

“Three U.S. servicemen who have been in prison for 25 years for a racially-motivated murder are entitled to a new trial because prosecutors improperly withheld evidence that would have helped the men’s defense, Georgia’s highest court ruled Thursday.

Stanley Jackson, a black man, was fatally shot around 10 p.m. on Jan. 31, 1992, while standing on a corner in a high-crime part of Savannah. Three white servicemen stationed at nearby Fort Stewart — Mark Jason Jones, Kenneth Eric Gardiner and Dominic Brian Lucci — were arrested less than an hour later and charged with murder.

State prosecutors failed to disclose a police report that described a similar racially-motivated incident later that night after they were in custody, Georgia Supreme Court Chief Justice P. Harris Hines wrote in a unanimous opinion…

After police records were released in response to a 2010 open records request, the three men challenged their conviction on constitutional grounds. The records showed that prosecutors had failed to give the defense a police report describing an incident about three hours after the men were arrested in which a witness said white men with military style haircuts and semi-automatic weapons drove through a public housing project threatening “to shoot blacks who hung out on street corners.”

In addition to the undisclosed similar incident, the police records also revealed that an eyewitness who had identified two of the three men at trial had told officers before trial that he could not identify the shooters, and that he had been pressured into testifying at trial that he could identify them.

State attorney general’s office spokeswoman Katelyn McCreary said in an email that the office is reviewing the opinion and had no further comment.

Criminal Justice Reform Passes Massachusetts Senate

The Massachusetts Senate Friday passed an historic set of criminal justice reforms, including repeal of mandatory-minimum sentences for several drug crimes, legalization of sex between young teens close in age, and raising the age of criminal responsibility to 19, the highest in the nation.  Reforms still require approval by the House of Representatives, and there is still a great deal of opposition – primarily from law enforcement officials – who hope the House of Representatives proposes a more prosecutor-friendly bill.

Massachusetts has already been a leader in combating over-criminalization and mass incarceration. In 2015, Massachusetts had the second-lowest imprisonment rate, with 179 sentenced prisoners for every 100,000 people, according to the federal Bureau of Justice Statistics. Nationally, 458 prisoners were sentenced to more than one year in state or federal prison per 100,000 US residents.

With the opioid crisis as a back-drop, the legislation also included a few tougher provisions, including heavier penalties for crimes such as trafficking fentanyl.

Restoration of Rights: Virginia and NJ

Restoration of voting rights has been an issue in the governor’s race in Virginia,  one of four states where a person loses the franchise entirely after they are convicted of a felony-level offense. Current governor Terry McAuliffe tried to use his pardon power to restore the rights of 200,000 Virginians in one blow. Republican lawmakers successfully challenged the en masse order in court, so the governor began signing the orders individually, totaling more than 168,000 to date. Republican candidate Ed Gillespie has started running TV ads challenging this policy. Of note is that while Gillespie challenges the “automatic” restoration of rights, he appears to endorse at least a process for restoration:

“Virginians who have paid their debt to society and are living an honest life should have their rights restored. But Ralph Northam’s policy of automatic restoration of rights for unrepentant, unreformed, violent criminals is wrong.”

Meanwhile, in New Jersey, the issue of voting rights restoration is also in the public eye, witness this recent editorial in the New Jersey Star-Ledger: “Why N.J. must restore voting rights to those in prison, parole, probation”

Collateral Consequences, cont.

The Collateral Consequences Resource Center has published two new guides to collateral consequence issues in criminal justice: a 50-state overview of the subject, “Forgiving and Forgetting in American Justice – A 50 State Guide To Expungement and Restoration of Rights”; and a California specific guide, “California Compilation of Collateral Consequences”. The California guide is a useful tool for anyone involved in the criminal justice system, a searchable online database of the restrictions and disqualifications imposed by California statutes and regulations because of an individual’s criminal record.

CCRC has previously published similar guides on federal laws and rules, and of two other state systems (Wisconsin and Vermont), all built on the National Inventory of the Collateral Consequences of Conviction (NICCC), originally compiled by the ABA and now maintained by the Council of State Governments. The CCRC databases are streamlined and reorganized to allow more precise searches of the specific activities and rights affected by various consequences and make it possible to explore the relationship between consequences and their implementing regulations. They also add a set of searchable “Keywords” that allow users to accurately zero in on areas of interest with much more precision than previous versions.