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.