Under the U.S. Supreme Court: Just how fair does justice have to be?


WASHINGTON, Aug. 28 (UPI) -- The U.S. Supreme Court is getting ready to hear argument in the upcoming term on a core issue of the nation's legal system, one that goes to the heart of fairness in criminal cases -- under what circumstances do prosecutors have to reveal evidence that might help defendants show innocence?

First, a disclaimer: You're about to read material on issues that should be of concern to every American who cares about the quality of U.S. society but usually dismissed by the average person. It largely concerns the rights of people who may be guilty of horrendous crimes. Technically, it comes under the heading of "legal stuff."


A major purveyor of "legal stuff," the American Bar Association, says it's time to broaden the obligations of prosecutors who would just as soon "Brady material" -- evidence held by the prosecution that might help a defendant -- never see the light of day.

Over the years, the courts have recognized that some prosecutors and police are so convinced of the guilt of some defendants, they are unwilling to introduce evidence that might needlessly confuse the issue in the minds of jurors.


The Supreme Court's opinion in Brady vs. Maryland has been settled law for nearly five decades. In the case, a prosecutor had withheld from the defense evidence that might have helped John Brady, the defendant convicted in a murder trial, avoid the death penalty.

The high court ruled 7-2 that suppression by the prosecution of evidence favorable to an accused who has requested it violates constitutional due process -- where the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution.

But the court majority also said when the Maryland Court of Appeals restricted the defendant's new trial to the question of punishment -- the guilty verdict would stand -- it did not deny him due process or equal protection of the laws under the 14th Amendment, "since the suppressed evidence was admissible only on the issue of punishment."

Justice William O. Douglas wrote the majority opinion, but Justice William Brennan announced it.

"Petitioner and a companion ... were found guilty of murder in the first degree and were sentenced to death, their convictions being affirmed by the Court of Appeals of Maryland," Douglas wrote, adding, "Their trials were separate, petitioner being tried first. At his trial Brady took the stand and admitted his participation in the crime, but he claimed that (Donald) Boblit (the companion) did the actual killing. And, in his summation to the jury, Brady's counsel conceded that Brady was guilty of murder in the first degree, asking only that the jury return that verdict "without capital punishment.'"


Before trial, "petitioner's counsel had requested the prosecution to allow him to examine Boblit's extrajudicial statements" -- those statements not admitted as evidence. "Several of those statements were shown to him; but one dated July 9, 1958, in which Boblit admitted the actual homicide, was withheld by the prosecution and did not come to petitioner's notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed."

A constitutional violation, but the parameters of that violation weren't infinite.

Douglas concluded: "A sporting theory of justice might assume that if the suppressed confession had been used at the first trial, the judge's ruling that it was not admissible on the issue of innocence or guilt might have been flouted by the jury just as might have been done if the court had first admitted a confession and then stricken it from the record. But we cannot raise that trial strategy to the dignity of a constitutional right and say that the deprival of this defendant of that sporting chance through the use of a ... bifurcated trial ... denies him due process or violates the equal protection clause of the 14th Amendment."

Forty-eight years after Brady, the Supreme Court is scheduled to hear argument in November in a Louisiana case that revisits the Brady issue. The ABA says it may be time to recognize obligations beyond the constitutional level.


In that Louisiana case, Smith vs. Warden Cain, Juan Smith was convicted of five counts of murder in the "Morrison Road" case and sentenced to life in prison without parole. The state trial court, the state 4th Circuit Court of Appeal and the state Supreme Court all denied Smith's petition for review. Smith contends that the Louisiana courts disregarded established precedents on "Brady material."

There was plenty of murder to go around in the case.

On the evening of Feb. 4, 1995, Tangie Thompson, her boyfriend, Andre White and her 3-year-old child were killed in their New Orleans residence on Roman Street.

Juan Smith was convicted in the "Roman Street" case and sentenced to death for the three murders.

On the evening of March 1, 1995, three armed men entered another home in New Orleans on Morrison Road and ordered six people to lie down on the floor. Five were shot multiple times and died. One of the victims, Shelita Russell, was severely injured but conscious after the attack and interviewed by police.

Smith's lawyers say this interview was never turned over to the defense. Russell died several days later.

The lawyers also contend the prosecution withheld a jailhouse confession that involved another suspect in both murders, and made a very favorable deal with the jailhouse suspect in exchange for testimony against Juan Smith in the Morrison Road trial.


Witnesses also were forced to identify Smith in a photo lineup under highly suspect circumstances, the lawyers contend.

The trial judge and appeals courts refused to suppress this evidence, and the U.S. Supreme Court initially refused to review in 2003. But the justices agreed to hear the case on "Brady material" grounds in November during the upcoming 2011 Term.

While Smith awaits his day before the Supreme Court, the ABA has singled out the case as the chance to give the Brady precedent a broader, more concrete effect.

"The present case involves numerous serious allegations of non-disclosure that, post-trial, a court must evaluate under this (Supreme) Court's Brady jurisprudence," the ABA says in a friend-of-the-court brief. "However, a prosecutor's pretrial ethical disclosure obligations, as governed by the attorney disciplinary rules of the state or jurisdiction in which the prosecutor practices, are separate from and broader than the constitutional standards."

The brief says an ABA Model Rule, specifically 3.8(d), "mandates disclosure of exculpatory and mitigating evidence without regard to materiality. This rule's widespread acceptance is reflected in the fact that 49 states, including Louisiana, as well as the District of Columbia, the United States Virgin Islands and Guam have adopted ethics rules that include a provision identical or substantially similar to it.


"Similarly, various provisions of the ABA Criminal Justice Standards promote broad disclosure of all exculpatory evidence, without regard to the materiality standard that is required for post-trial analysis under Brady," the brief adds. "Accordingly, this (Supreme) Court should again recognize that a prosecutor's pretrial ethical disclosure obligations are distinct from the constitutional standards that control a court's post-trial determination of Brady claims."

The ABA contends those ethical considerations are as potent as the constitutional obligations.

"While the post-trial constitutional determination of Brady claims must consider the materiality of a non-disclosure" -- how germane it is to guilt or innocence -- "this (Supreme) Court has noted on several occasions that the prosecutor's ethical obligations are broader than those set out in Brady and that the 'prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure'" -- citing 2009's Cone vs. Bell.

The brief also cites the 1908 ABA Canons. "The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done."

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