A Washington Post editorial of July 28, 2011, on the Justin Wolfe case:

A deserved rebuke in Prince William murder case

By Editorial, Published: July 28

PAUL B. EBERT has earned a reputation as a tough but fair prosecutor over his four- decade career as Prince William County commonwealth’s attorney. But something apparently went terribly wrong with Mr. Ebert’s handling of the case of Justin Michael Wolfe.
Mr. Wolfe is an admitted marijuana dealer in Northern Virginia who was sentenced to death in 2002 for ordering the murder of a drug associate. In a detailed, 57-page opinion handed down on July 12, Judge Raymond A. Jackson of the U.S. District Court for the Eastern District of Virginia excoriated Mr. Ebert and his office for multiple infractions that he says prevented Mr. Wolfe from refuting the murder charges.
Judge Jackson noted that Mr. Ebert and his office withheld from the defense information about others who may have had motive to target the victim. Mr. Ebert and his colleagues also brought together prosecution witnesses and allowed them to smooth over inconsistencies in their testimony. The prosecutors failed on multiple occasions to live up to their obligations to disclose to the defense that government witnesses had contradicted each other or had changed their stories.
These failures were discovered only after Mr. Wolfe’s lawyers from King & Spalding, the University of Virginia’s Innocence Project Clinic and the Virginia Capital Representation Resources Center persuaded a court to force Mr. Ebert and his office to turn over all of their files.
The actions by Mr. Ebert and his office were so egregious that Judge Jackson threw out the murder conviction and death sentence against Mr. Wolfe. And he concluded that Mr. Ebert and a top deputy, Richard A. Conway, violated Virginia legal ethics rules that require prosecutors to “make timely disclosure” of evidence “that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”
During a hearing before Judge Jackson, Mr. Ebert was asked why his office did not have open-file discovery, which requires prosecutors to turn over to the defense all of the evidence gathered during an investigation. “I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided,” Mr. Ebert responded.
Fabricate? The judge in this instance rightly took Mr. Ebert to task. “Essentially, in an effort to ensure that no defense would be ‘fabricated,’ [Mr. Ebert and Mr. Conway’s] actions served to deprive [Mr. Wolfe] of any substantive defense in a case where his life would rest on the jury’s verdict,” Judge Jackson wrote. “The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process.” The Virginia State Bar, which polices lawyers in the state, should determine whether Mr. Ebert and Mr. Conway committed violations that require disciplinary action.
Virginia plans to appeal Judge Jackson’s ruling. But rather than merely fight an adverse decision, Attorney General Ken Cuccinelli II should assess whether there is a problem with how Mr. Ebert and his office apply the legally mandated requirement to turn over exculpatory material.

Suppressed evidence (cont.)

Again on the Casey Anthony trial: I find this amazing and shocking, and I believe that it should be shocking, whatever one thinks of the outcome of the trial. Innocent or guilty, Anthony was entitled to a fair trial. She was entitled to have the prosecution follow the rules that are necessary for a fair trial.

Yet according to a software engineer who worked with the prosecution, it did not. Prosecutors tried to convince the jury that Anthony murdered her child with chloroform and in support of this theory presented evidence that she visited a website about chloroform 84 times. Yet the software engineer who so testified now says that he learned during the trial that his earlier conclusion was in error and that Anthony had visited that site only once (and also that it was an innocent-seeming site with historical information regarding chloroform in the 1800s). He says that he promptly notified the prosecutors and Florida law enforcement agents. Yet the jury was never informed of this potentially important information.

UPDATE: It's getting more confusing. That software engineer, John Bradley, now asserts that he never accused Florida authorities of any impropriety.   Yet he seems not to be retracting his factual assertion, which he had made on his own website, that he notified those authorities that Casey searched for "chloroform" just once, not 84 times as the jury was told. He has, however, taken the assertions off the website.

Suppressed evidence

You know a man can't help but feel bad
When he's doing time for someone else...

-- Lightnin' Hopkins, "Penitentiary Blues"

It has been the law of the land since the 1963 Supreme Court case of Brady v. Maryland that the prosecution in a criminal case must turn over to the defense evidence in the government's possession that is favorable to the defendant. (A 2004 report of the Federal Judicial Center provides an overview of the meaning of Brady as it has been interpreted over time as well as a survey of rules in federal and state courts across the U.S. regarding prosecutors' duties under Brady.)

Yet now, nearly half a century later, favorable evidence still is sometimes suppressed, even in the most serious cases when the defendant may be sentenced to death if he/she is convicted. It still happens, even years after a defendant's conviction at trial, that powerfully exculpatory evidence turns up -- which the government knew about all the time but never disclosed. Some of these discoveries occur by accident, by blind luck. Sometimes they happen only if determined lawyers and investigators can overcome stubborn, unyielding resistance by the prosecution. I think that you have to wonder:  How many defendants have been convicted despite powerfully exculpatory evidence that was never disclosed to them and that never sees the light of day?

No one who has looked seriously and honestly at the issue can doubt the fact that innocent people have been found guilty -- and some of them have been sentenced to die -- because of the government's suppression of evidence that could have shown that they were innocent.

I want to consider in a series of blog posts two recent, important cases regarding different aspects of Brady.  One is a case that the Supreme Court decided in its most recent term, in March 2011, Connick v. Thompson. John Thompson was convicted of murder and sentenced to die for a killing in New Orleans. He spent 18 years in prison, over a decade of that time in solitary conditions on death row, and came very close to execution. Then, by what seems like a fortuity -- an accident -- a piece of good luck -- an investigator working for Thompson and the lawyers then representing him discovered what had been hiding in the prosecutors' files for all those years, a mass of evidence, including blood evidence, that Thompson was innocent and that the principal witness that the prosecution had used to convict him was himself the murderer. Even after the uncovering of this evidence, New Orleans prosecutors brought him to trial again, but this time it took the jury little more than a half an hour to find Thompson not guilty.

Thompson then sued under federal civil rights law for damages for what amounted to the destruction of his life because of the violation of his constitutional rights. The case from the beginning to its end at the Supreme Court shows the tricky and complex ways that our civil rights laws work and, sometimes, fail to work.

The second case, Wolfe v. Clarke, involves Justin M. Wolfe, who like Thompson was convicted of murder and sentenced to die, in Virginia.  On July 12, 2011, a U.S. District Judge in Norfolk granted Wolfe's petition for a writ of habeas corpus.  The judge ruled that Wolfe's conviction and sentence were unconstitutional because the prosecutor had withheld favorable evidence, in violation of Brady, and also because the prosecution had knowingly presented false testimony against him in violation of the closely related doctrine that the Supreme Court established in a 1972 case, Giglio v. United States.

As in Thompson's first trial, when he was convicted of murder, the principal witness against Wolfe was himself the actual killer. The witness, Owen Barber, admitted this fact, but he then went on to testify that he committed the murder on Wolfe's instructions.

It turned out that there was substantial evidence, never revealed to the defense, that Barber was lying; that the police planted the suggestion to Barber that he had been working for Wolfe; that they threatened Barber with a death sentence unless he blamed Wolfe; that the prosecution had gone to great lengths to coordinate and shape the testimony of its witnesses in order to convict Wolfe; and that Barber in fact had admitted to killing the victim alone.

The case is noteworthy, as recounted in the judge's opinion, for the lengths to which the prosecution seems to have gone to sell a false story to the jury about the murder. It is also noteworthy for how the facts eventually got out.  Wolfe was fortunate in receiving very effective and determined lawyering from a team of attorneys from the firm of King & Spalding and the Virginia Capital Representation Resource Center. They obtained for Wolfe what is a rarity these days in federal habeas corpus cases challenging convictions in state court:  a fresh evidentiary hearing in federal court. At that hearing, Wolfe's attorneys were able to call and question witnesses in order to show how Wolfe's conviction had been obtained. It was that evidence that persuaded the federal judge that Wolfe had received a fundamentally unfair trial in state court.

Wolfe's case is not yet over. The prosecutors can and likely will appeal to the U.S. Court of Appeals for the Fourth Circuit.

Incidentally, for reasons that I do not know, the District Court's opinion was not available when I last checked on the court's website, as it should have been.  Wolfe's attorneys very kindly provided it to me.

The Casey Anthony case and forensic evidence problems

    I’m not going to write any analysis of my own of the Casey Anthony case or its controversial outcome. Plenty has been written already.

    But perhaps good can come of it if it brings attention to the issue of forensic evidence used in criminal prosecutions in sad and terrible cases involving the death of a child or infant.  Forensic evidence, and sometimes just medical evidence, frequently has been the only evidence the prosecution has had to convict someone of homicide in such a case.  Medical evidence frequently has been all there was to show whether a child’s death was caused by accident or disease, or by someone’s criminal conduct.

    The investigative journalism website ProPublica recently worked on a joint project with PBS “Frontline” and National Public Radio to investigate the quality and validity of medical evidence in cases like that to produce The Child Cases, their joint report.  ProPublica said that “[o]ur reporting showed that these cases have been repeatedly mishandled by medical examiners and coroners, sometimes resulting in innocent people being wrongly accused. In the Anthony case, it's unknown if flawed forensic evidence led to a false accusation or made it impossible to convict a guilty person of a horrible crime.” http://www.propublica.org/article/casey-anthony-trial-shows-the-limits-of-forensic-science-in-proving-how-a-c

    The Child Cases report “identified nearly two dozen cases in the U.S. and Canada in which people have been accused of killing children based on flawed or biased work by forensic pathologists and then later cleared.”  http://www.propublica.org/special/the-child-cases  They are summarized on that web page.

    Some recurring problems were doctors who performed autopsies and testified in court but lacked specialized training in determining the cause of a child’s death or who failed to keep current on the relevant medical research; biased doctors who saw themselves as part of the prosecution team and looked just for evidence of guilt rather than for the truth; doctors who simply ignored evidence that contradicted their conclusions; and medical theories that were subsequently shown to be false or unscientific.  An example: “Shaken baby syndrome,” brain damage that potentially leads to death caused by violent shaking.  There may be no external signs of trauma.  There are cases where doctors have diagnosed the syndrome by finding just three symptoms:  subdural hemorrhaging (or bleeding under a layer of tissue surrounding the brain); retinal hemorrhaging (visible bleeding in the retinas of the eyes); and swelling around the brain.  And on this evidence alone, people have been convicted of homicide including murder in the death of a child.  Yet it is increasingly clear that other causes – including blood disorders and vitamin deficiencies – can mimic or duplicate exactly these symptoms.

    The PBS “Frontline” web page, with videos of the broadcast, is here: http://www.pbs.org/wgbh/pages/frontline/the-child-cases/ National Public Radio’s reports can be heard here - http://www.npr.org/2011/06/28/137454415/the-child-cases-guilty-until-proven-innocent - here - http://www.npr.org/2011/06/29/137471992/rethinking-shaken-baby-syndrome - and here -  http://www.npr.org/2011/06/30/137507575/the-child-cases-lessons-from-canada

    People have been freed after being convicted on faulty medical evidence.  But, without doubt, there are more people still who have been unjustly convicted.  With aggressive and effective legal representation and fresh evidence from qualified experts, those unjust convictions may be challenged.