Law School 101: When the prosecution withholds evidence

By Bill Rankin

Before John L. Brady went to trial for robbery and murder, his defense attorney asked the prosecutor to turn over statements that Brady’s co-defendant had given to authorities.

The prosecutors turned over some, but not all, of co-defendant Charles Boblit’s statements.

The later discovery that one of Boblit’s statements had been withheld would eventually change the course of criminal jurisprudence. It would lead to Brady v. Maryland, the 1963 U.S. Supreme Court’s ruling that requires prosecutors to turn over evidence favorable to the defense.

What statement had been intentionally withheld from Brady’s lawyer? It was an admission Boblit made to police on July 9, 1958, when he said he was the one who actually strangled the victim, William Brooks.

When Brady went to trial, his lawyer told jurors that Brady did not deserve a death sentence because he was not the person who actually killed Brooks. But it didn’t work. Brady was convicted of murder and sentenced to death. (Boblit was too, in a separate trial.)

Brady’s lawyer discovered that Boblit’s statement had been withheld by the prosecution – but only after Brady had been convicted and lost his appeal.

Brady’s motion for a new trial was appealed all the way up to the U.S. Supreme Court.

‘Society wins when criminal trials are fair’

The 7-2 ruling, handed down May 13, 1963, said a prosecution team’s failure to turn over information violates due process when the evidence that’s withheld is material either to a defendant’s guilt or punishment. The court said this holds true irrespective of the good faith or bad faith of the prosecution – meaning it doesn’t matter whether the information is withheld intentionally or not.

“Society wins not only when the guilty are convicted, but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly,” Justice William O. Douglas wrote for the court’s majority.

Atlanta criminal defense attorney Don Samuel said he has long found it hard to believe it wasn’t until 1963 when the Brady precedent became a bedrock principle of law.

“It is the one rule of discovery that assures a lack of surprise at trial,” Samuel said. “More important, its purpose is to assure that innocent people are not prosecuted and convicted.”

Alex Kozinski

Judge Alex Kozinski, of the 9th U.S. Circuit Court of Appeals, seen here in 2003, believes that courts fail to hold prosecutors accountable for withholding evidence. “There is an epidemic of Brady violations abroad in the land,” Kozinski wrote. “Only judges can put a stop to it.” (AP Photo/Paul Sakuma)

One of the most notable Brady violations in recent years involved the federal prosecution of Sen. Ted Stevens of Alaska. In 2008, Stevens lost his long-held seat after being convicted of seven counts of ethics violations.

But before Stevens was sentenced to prison, then-U.S. Attorney General Eric Holder dropped all charges against him. Holder said Justice Department prosecutors had withheld information from Stevens’ attorneys that could have helped the defense.

At trial, prosecutors accused Stevens of concealing on Senate disclosure forms that he received hundreds of thousands of dollars worth of renovations for his chalet. Most of these services came from oil executive Bill Allen, the prosecution’s chief witness.

But prosecutors withheld notes from an interview with Allen that strongly cast doubt on the prosecution’s theory of the case, Justice Department attorneys said when dismissing their case against Stevens.


‘An epidemic of Brady violations’

Legal experts across the country have said Brady violations happen far too frequently. Often, the defense never knows about them because most cases are resolved with plea bargains. And these convictions are rarely challenged.

Even when some Brady violations are discovered, they are of little consequence. For example, courts will order a new trial based on the disclosure of a Brady violation only when it can be shown that the newly discovered evidence, if it had been introduced at trial, would have likely resulted in a different verdict.

But if it can’t be shown that the Brady violation, if disclosed on time, would have resulted in an acquittal, the conviction still stands.

A 2003 report by the Center for Public Integrity analyzed 11,451 convictions that appellate courts reviewed for prosecutorial misconduct. The courts reversed convictions in 2,012 of those cases, the majority of them for Brady violations, the center found.

Two years ago, Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals in San Francisco, decried the failure of courts to hold prosecutors accountable for not disclosing evidence that is favorable to defendants.

“There is an epidemic of Brady violations abroad in the land,” Kozinski wrote. “Only judges can put a stop to it.”


The ‘Mike Nifong exception’   

His proclamation was issued in the case involving Kenneth Olsen, who had been convicted of developing a biological agent containing ricin for use as a weapon. The 9th Circuit upheld Olsen’s conviction, finding immaterial the disclosure of a police report that criticized the lab analyst who assisted the prosecution but was later fired for alleged incompetence.

Writing in dissent, Kozinski called the prosecution’s failure to disclose the report a “grave transgression.” By upholding the conviction, the 9th Circuit “shirked its own duty and compounded the violence done to the Constitution by the Assistant U.S. Attorney.”

A robust and rigorously enforced Brady rule is imperative, because it’s highly unlikely Brady violations come to light in the first place, Kozinski added. “This creates a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice.”

The Duke University lacrosse team rape case produced what’s now referred to in legal circles as the “Mike Nifong exception” – so-called because Nifong, the prosecutor, actually was punished for a Brady violation.

Nifong served a one-day jail sentence for his disastrous handling of the rape case against three Duke lacrosse players. This included lying about withholding exculpatory DNA evidence.

Nifong was also disbarred for fraudulent and deceitful conduct.


Mike Nifong

Former Durham County (N.C.) District Attorney Mike Nifong, seen here in 2006, was punished for a Brady violation involving his prosecution of three Duke lacrosse players who were accused of rape. Nifong served a day in jail and was disbarred when it was found that he lied about withholding exculpatory DNA evidence. (AP Photo/Jeffrey A. Camarati)


Lawyer gets sick, admits Brady violation

It looked as if former District Attorney Harry Connick of New Orleans would pay for his office’s failure to turn over exculpatory evidence in the death-penalty case against John Thompson.

Thompson spent 14 years on death row until, one month before his scheduled execution, a defense investigator found a report that showed blood found at a crime scene was not his.

It was also disclosed that a former prosecutor, Gerry Deegan, confessed to another lawyer in Connick’s office that he had intentionally withheld the evidence. Deegan made the admission after learning he had cancer. He died in 1994.

Thompson’s convictions were thrown out. In 2003, he was retried for murder and found not guilty.

After his release, Thompson sued the DA, alleging that Connick had failed to train his prosecutors adequately about their duty to produce exculpatory evidence. A jury later awarded Thompson $14 million.

In 2011, however, the Supreme Court threw out the jury verdict. The 5-4 ruling, written by Justice Clarence Thomas, said Thompson’s lawyers failed to show a pattern of misconduct in Connick’s office – not just a violation in this case.

Justice Antonin Scalia agreed. In a concurring opinion, Scalia wrote, “The withholding of evidence in (Thompson’s) case was almost certainly caused not by a failure to give prosecutors specific training, but by miscreant prosecutor Gerry Deegan’s willful suppression of evidence he believed to be exculpatory, in an effort to railroad Thompson.”



Over the years, numerous convictions obtained in Georgia courtrooms have been thrown out because the prosecution team failed to turn over evidence that would have helped the defense.

Atlanta criminal defense attorney Don Samuel, the author of “Georgia Criminal Law Case Finder,” tracks appellate court decisions. He provided these summaries of rulings in Georgia that led to convictions being overturned because of Brady violations:

Jackson v. State (2011) – The defendant was the getaway driver in a robbery scheme. The victim gave at least two statements to the police, one that did not mention a third participant (that is, the defendant) and the other, which simply stated that there was a third participant (but did not identify the defendant). Before trial, the state failed to turn over the statement that did not mention that a third perpetrator was involved.

Walker v. Johnson (2007) – The defendant was convicted of armed robbery and related offenses. There were two victims. One provided a detailed recorded statement to police explaining why she thought the other victim had actually staged the robbery. The defendant also made a recorded statement to police during which he identified specific alibi witnesses. Neither of these statements was turned over to the defense.

Schofield v. Palmer (2005) – In this death-penalty case, a confidential file maintained by the GBI was never turned over to the defense despite repeated demands. The GBI contended there was no Brady information in that file. It would later be discovered, however, that the file contained information that the state had paid a key prosecution witness.

Brownlow v. Schofield (2003) – The defendant was convicted of aggravated child molestation and similar offenses. At trial, the child victim testified the defendant molested him. But 10 days before trial, the prosecutor questioned the child and the child shook his head negatively when asked if one specific act of alleged molestation occurred. The prosecutor never disclosed this to the defense.

Byrd v. Owen (2000) – The defendant, after being convicted of murder, contended that prosecutors failed to reveal immunity agreements given two of its witnesses. Although this turned out to be true, the Georgia Supreme Court ruled that while this should have been disclosed, the error was harmless and would not have changed the verdict. Later, it was revealed that a third witness – the state’s key witness – had also been immunized by the district attorney’s office. At trial, this witness not only denied there was any deal, the prosecutor made no effort to correct this erroneous testimony.

Harridge v. State (2000) – The defendant was convicted of vehicular homicide after denying he was the cause of the fatal crash. His conviction was thrown out after it was disclosed the state failed to reveal to the defense before trial that the victim – the driver of the other car – had cocaine and alcohol in his blood.