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

One legacy of the “tough on crime” era is the aging prison population. From 2009 to 2013, the number of federal prisoners over the age of 50 increased by 25 percent even as the figure for the incarcerated under age 50 dropped. More than 10,000 federal prisoners are in their 60s, 70s or 80s. Older inmates have significantly higher medical costs than younger inmates, and often need special accommodations (such as lower bunks or wheelchair-accessible areas) that prisons are ill-equipped to provide. In an effort to address these issues, AG Holder announced an expanded compassionate release program for inmates who were elderly, seriously ill or both. But the Washington Post reports that only 2 of the 296 release requests made by elderly inmates were granted during the first 13 months Holder’s expanded guidelines were in place.

What is the problem? In part its that the “default” for decision-making about compassionate release is that elderly and infirm prisoners do not receive compassionate release unless significant time and effort is expended by the inmate and multiple levels of the federal bureaucracy. If anyone at any level disapproves or indeed just doesn’t put in any effort one way or the other, the compassionate release isn’t granted. Likewise, if the bureaucracy is simply slow at reviewing even the most meritorious cases, the release isn’t granted, which is why a significant proportion of applicants die waiting for their case to wind its way through the system.

Changing defaults changes decisions, the most famous example being that employees save much more for retirement if they have to fill out a form to opt out of their company’s 401(k) plan rather than fill out a form to opt in. If Congress wants compassionate release more broadly employed, legislators could pass a law that shifts the default to granting compassionate release for elderly inmates instead of denying it.

A lengthy article by Emily Bazelon in the NY Times Magazine examines in detail the case of Noura Jackson, a Tennessee woman convicted of murder after prosecutors withheld exculpatory evidence. Bazelon uses the case to illustrate a larger policy discussion of the dangers of a “win at all costs” culture in DA offices, the ways in which withholding evidence may become ingrained in the training oil new DA’s, the lack of meaningful consequences for prosecutorial misconduct such as withholding evidence. The article concludes with a review of the movement towards “open file” laws and policies, including the Michael Morton case that resulted in the prosecution of a former DA and sitting judge, and the implementation of an open file policy in the DA’s office n Tennessee   where Noura Jackson was prosecuted.

That is the tag line on the Christian Science Monitor’s article  describing a “new breed” of prosecutor in the United States: “From Texas to Florida to Illinois, many of these young prosecutors are eschewing the death penalty, talking rehabilitation as much as punishment, and often refusing to charge people for minor offenses. While their numbers are small, they are taking over DA offices at a crucial moment… “It does seem to be a new and significant phenomenon,” says David Alan Sklansky, a professor at Stanford Law School, of the new prosecutors. “It’s rare to see so many races where the district attorney is challenged, where they lose, and where they lost to candidates calling not for harsher approaches, but for more balanced and thoughtful, more restrained, more progressive approaches to punishment.”

At this point only a few dozen DA’s out of  2,500 nationwide fit the Monitor’s description, but the paper suggests that those numbers could grow, as activists increasingly target DA elections, and a generational divide becomes apparent between younger prosecutors who came of age in an era of low crime, and older DAs shaped by the war on drugs.

One marker of the change is capital punishment. Aramis Ayala, the new district attorney in Florida’s Orange County, has received the most national attention for her refusal to seek the death penalty in any case, but she is not the only one. Beth McCann, the district attorney in Denver, is doing the same thing, and Larry Krasner, who is poised to become the next DA in Philadelphia, is an opponent of capital punishment as well.

There are other indicators in multiple jurisdictions: James Stewart, the district attorney in Caddo Parish, in Louisiana, took control of an office with a record of aggressive capital convictions and has quietly not gone to trial on a death penalty case since being elected in 2015; Kim Foxx, the new state’s attorney in Cook County, in Illinois, announced in March that her lawyers will not oppose the release of detainees from jails who can’t afford cash bonds of as much as $1,000; Kim Ogg in Texas, who took over an office plagued by a recent history of unethical prosecutions, dismissed three dozen prosecutors in leadership positions and has hired a former judge to lead a newly formed ethics office.