Monthly Archives: November 2017

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.