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.

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.

This blog post  from the website prosecutorialaccountabilityt.com looks at two pending petitions in the Supreme Court that look at issues around prosecutorial accountability, Woods v. Smith and Stein v. United States.

Woods is an innocence case. After his first trial ended in a mistrial because the jury could not reach a verdict, Mr. Woods was convicted at the second trial for the 2003 murder of Eric Harris. His petition presents two questions. The first involves an evidentiary question and the Confrontation Clause. The second question, the one of particular interest here, is:

In Banks v. Dretke, 540 U.S. 668 (2004), this Court repudiated a requirement that defendants must show prior diligence when asserting a claim under Brady v. Maryland, 373 U.S. 83 (1963): “A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.” Banks, 540 U.S. at 696. But the circuits are divided on whether this principle applies in habeas cases, with some courts—including the Sixth Circuit below—upholding state court rulings imposing so-called “due diligence” requirements. The second question presented is: Whether the Sixth Circuit erroneously upheld the state court’s unreasonable application of this Court’s Brady jurisprudence and, in doing so, exacerbated a circuit split over whether there is a defendant due diligence requirement for Brady claims on habeas review.

The Brady analysis traditionally asks three (somewhat) straightforward questions. They are: (1) Is the evidence favorable to the defendant either because it is exculpatory or impeachment material?; (2) Did the State suppress the evidence?; and (3) Would disclosure of the evidence have created a reasonable probability of a different verdict? If the answer to all of these questions is ‘yes,’ then the defendant is entitled to a new trial. If the answer to any one of them is ‘no,’ then the court will affirm the conviction and sentence. Yet, the federal Sixth Circuit layered on an additional inquiry. It asked whether the defendant’s trial team could have discovered the suppressed evidence through the exercise of due diligence. That question fundamentally changes the Brady analysis, and Mr. Woods’s petition asks whether a due diligence requirement is appropriate in the habeas context.

The Brady information at issue in Woods relates to the death of a key witness. At trial, as the Sixth Circuit acknowledged, “the prosecutor strongly, and inaccurately, implied” that the defendant was involved in the killing of Chavez Johnson, the key eyewitness to Harris murder. In post-conviction proceedings, Mr. Woods’s team discovered “the results of a police investigation indicating that Woods was not responsible for the death of a key witness—contrary to the strong implications of the prosecution at trial.” This evidence is at the heart of the petition. (It’s worth noting that this is another case in which a great deal of exculpatory evidence was suppressed. Footnote 2 of the petition highlights four categories of evidence the State failed to disclose, including open warrants against a key witness and evidence that someone else had stabbed the victim just days before the murder.)

According to the Sixth Circuit, which invoked the state court’s decision, the prosecution’s failure to disclose that law enforcement had effectively determined Mr. Woods was not responsible for killing a key State witness was not sufficient to establish suppression because the defense could have called the detective to the stand and cross-examined him about Johnson’s unrelated murder. Thus, the court found that the defense’s opportunity to learn this information through “reasonable diligence” alleviated the State of its duty to disclose what was undoubtedly evidence favorable to the defendant. This bizarre “due diligence” rule—made up by the courts and utilized in some other circuits—ignores what Brady requires. As the petition points out, “[i]n essence, the Sixth Circuit’s rule would reward the prosecutor who is especially good at hiding evidence, and manages to hide it beyond the direct appeal.”

The second case, Stein v. United States, is a white-collar criminal case involving perjured testimony “known to be such by the prosecuting attorney.” From the petition:

“This Court has repeatedly reaffirmed ‘that a conviction secured by the use of perjured testimony known to be such by the prosecuting attorney, is a denial of due process.’ White v. Rogen, 324 U.S. 760, 764 (1945). ‘The same result obtains when the State although not soliciting false evidence, allows it to go uncorrected when it appears.’ Napue v. Illinois, 360 U.S. 264, 269 (1959). When the prosecutor fails to fulfill his ‘duty to correct what he knows to be false and elicit the trust,’ he  ‘prevent[s] . . . a trial that could in any real sense be termed fair.’ Id. at 270. The Eleventh Circuit here accepted that the government knowingly used false, material testimony to convict Mitchell Stein. The court nevertheless held that Stein received all the process he was due because the government did not suppress the evidence that proved its witnesses were, in fact, lying under oath. The question presented is: Whether the Due Process Clause excuses the government’s knowing use of false testimony where the government does not also suppress evidence indicating that the testimony was false.”

If the Eleventh Circuit’s opinion seems unfounded, you are reading the question above correctly. Nevertheless, like the contrived “due diligence” requirement several courts have embraced in the Brady context, it appears that a number of courts have also decided that the knowing presentation of perjury is not enough to require a new trial under Napue and Giglio. As the Eleventh Circuit put it below, “because Giglio error is a type of Brady violation, the defendant generally must identify evidence the government withheld that would have revealed the falsity of the testimony.” Even experienced defense attorneys who have seen a lot of judicial jujitsu may find this holding to be a head-scratcher. But, there it is. The petition characterizes its logic, or lack thereof, well:

“Although the Eleventh Circuit accepted that the government knowingly used false testimony to convict Mitchell Stein and send him to prison for 17 years, the court nonetheless held that there was no due process violation because the government did not also commit an independent constitutional violation by suppressing evidence proving that its witnesses were lying. While two wrongs do not make a right, in the Eleventh Circuit, in the absence of two wrongs (i.e., a Brady violation and a Giglio violation), there is no wrong at all.”

In a recent law review article, Why Prosecutors Rule the Criminal Justice System—And What Can Be Done About It, 111 Nw. U. L. Rev. 1429 (2017), Judge Rakoff discusses the history of prosecutorial power, plea-bargaining, and mass incarceration, and reviews some of the possible solutions. The short version:

• Repeal mandatory minimum and career offender laws (something the federal judiciary has requested for several decades) and a reduction in the sentences “recommended” by sentencing guidelines.
• Do away with plea bargaining altogether? This, in fact, is the status quo in many European countries. In Germany, for example, where plea bargains are officially not recognized, roughly 50% of all criminal cases go to trial, and most of the remaining cases are resolved through de facto pleas to the initial charges.
• Promulgate binding regulations, similar to those enacted by administrative agencies, that would govern plea bargaining
• A voluntary version of the same basic proposal, that prosecutorial agencies, state and federal, each adopt some internal guidelines that, while not enforceable by outside parties, would nevertheless bring some order to prosecutors’ exercise of discretion in the plea bargaining process.
• A variation on what is sometimes referred to as a “preliminary hearing.” where the prosecutor and defense counsel would be required to appear shortly after indictment before a judicial officer, who would separately question them, in camera and under seal, as to what their evidence was, what discovery they would likely have, and what disposition they were seeking. The judicial officer, without revealing any of this information to the other side or to the judge who would be assigned to the case for all other purposes, would then recommend to the parties what leads still needed to be explored, what disclosures needed to be made, and, where appropriate, what the judicial officer thought would be a fair disposition of the case. In other words, the judicial officer would, in effect, oversee the plea bargaining process and, while not having the power to force either side to his view, could use her persuasive powers to assure a fairer, more neutral process. (This is Rakoff’s own proposal – a variation is currently in practice in the Connecticut).
• Have prosecutors occasionally serve as defense counsel