A recent op-ed writ­ten by retired Louisiana Supreme Court Chief Justice Pascal F. Calogero Jr. high­lights the state’s his­to­ry of vio­lat­ing the U.S. Supreme Court​’s rul­ing in Brady v. Maryland. According to this rul­ing, pros­e­cu­tors are required to dis­close evi­dence favor­able to the defense, and that fail­ure to do so vio­lates the defendant’s right to due process. Calogero cit­ed a report by the Innocence Project New Orleans which found that favor­able evi­dence was with­held in 25% of the cas­es of men sen­tenced to death in the Orleans Parish from 1973 – 2002. Calogero wrote, ​“I still believe the major­i­ty of pros­e­cu­tors are fair-mind­ed, but it is no longer pos­si­ble to call these vio­la­tions rare. The prob­lem is not rogue pros­e­cu­tors; it’s a sys­tem that heav­i­ly incen­tivizes the win­ning of con­vic­tions at any cost and pro­vides no penal­ty for break­ing rules. To ensure that cit­i­zens have access to fair tri­als and accu­rate results, we must work togeth­er to pro­mote account­abil­i­ty and trans­paren­cy.” The op-ed offers two sug­ges­tions for reform in this area: basic reg­u­la­tion of deals giv­en to jail-house infor­mants and a reor­ga­ni­za­tion of the sys­tem so that dis­clo­sure is pre­sumed. Calogero con­cludes, ​“Louisiana has a his­to­ry of Brady vio­la­tions. This is not because Louisiana has more rogue pros­e­cu­tors. Rather, we have failed to pro­vide tools and guid­ance to pre­vent these prob­lems. Enacting reforms will pre­vent wrong­ful con­vic­tions and restore cit­i­zens’ con­fi­dence in our jus­tice sys­tem.” Read full op-ed below.

We need reforms to increase con­fi­dence in the justice system

Our jus­tice sys­tem makes two promis­es to its cit­i­zens: a fun­da­men­tal­ly fair tri­al and an accu­rate result. As Justice Cochran of Texas’ high­est crim­i­nal court observed, ​“If either of those two promis­es are not met, the crim­i­nal jus­tice sys­tem itself falls into dis­re­pute and may even­tu­al­ly be disregarded.”

The Orleans Parish dis­trict attor­ney has rec­og­nized the bur­den of past cas­es — where pros­e­cu­tors have with­held evi­dence — ​“hangs around the neck of our crim­i­nal jus­tice sys­tem like an anchor” and ​“crip­ples the effec­tive­ness of our crim­i­nal jus­tice sys­tem, and, ulti­mate­ly, makes the streets of New Orleans less safe.”

Indeed, an Innocence Project New Orleans report found ​“favor­able evi­dence was with­held from nine of the 36 (25 per­cent) men sen­tenced to death in Orleans Parish from 1973 – 2002. However, this is not just about wrong­ful con­vic­tions under past admin­is­tra­tions: John Thompson, Curtis Kyles, Shareef Cousin, Dan Bright — and as the U.S. Supreme Court recent­ly rec­og­nized — Juan Smith. It involves cas­es pros­e­cut­ed today, with Brady vio­la­tions in the cas­es of Michael Anderson and Jamal Tucker.

The term Brady derives from a Supreme Court case, Brady v Maryland, which held: Hiding favor­able evi­dence vio­lates an indi­vid­u­al’s con­sti­tu­tion­al right to due process. Moreover, pros­e­cu­tors are required to dis­close favor­able evi­dence as part of their eth­i­cal oblig­a­tion. In rep­ri­mand­ing a pros­e­cu­tor for with­hold­ing evi­dence, the Louisiana Supreme Court observed sev­er­al years ago that: ​“We stren­u­ous­ly note … that we do not sug­gest that the with­hold­ing of Brady evi­dence is a preva­lent prac­tice. … Rather, we believe the fail­ure to dis­close evi­dence by a pros­e­cu­tor is a rare occurrence.”

I still believe the major­i­ty of pros­e­cu­tors are fair-mind­ed, but it is no longer pos­si­ble to call these vio­la­tions rare. The prob­lem is not rogue pros­e­cu­tors; it’s a sys­tem that heav­i­ly incen­tivizes the win­ning of con­vic­tions at any cost and pro­vides no penal­ty for break­ing rules. To ensure that cit­i­zens have access to fair tri­als and accu­rate results, we must work togeth­er to pro­mote account­abil­i­ty and transparency.

Public con­fi­dence in the pros­e­cu­tor and police offi­cer are essen­tial to a func­tion­ing crim­i­nal jus­tice sys­tem. Confidence is nec­es­sary to ensure cit­i­zens report crime, coop­er­ate as wit­ness­es and par­tic­i­pate as jurors. The Department of Justice recent­ly found that the New Orleans Police Department ​“employs prac­tices that could facil­i­tate and hide con­sti­tu­tion­al vio­la­tions of crim­i­nal sus­pec­t’s rights.” Prosecutors must lead by exam­ple and work with law enforce­ment to pro­mote respect for the Constitution. Where cor­ners of the Constitution are cut, the cir­cle of trust nec­es­sary to ensure a func­tion­ing jus­tice sys­tem is broken.

The courts and the attor­ney dis­ci­pli­nary sys­tem have an impor­tant role to ensure that pros­e­cu­tors who with­hold favor­able evi­dence face firm dis­ci­pline. However, I also think it is time that the Legislature enact sys­temic dis­cov­ery reform. The extra­or­di­nary chal­lenges pros­e­cu­tors face — large case­loads and pres­sure to win cas­es — cre­ate risks of wrong­ful con­vic­tions. Two basic reforms will increase con­fi­dence in the justice system.

First, basic reg­u­la­tion of deals giv­en to jail-house wit­ness­es would elim­i­nate the prob­lems in Kyles, Anderson and Tucker. Currently, jail-house tes­ti­mo­ny is a com­mod­i­ty on an unreg­u­lat­ed mar­ket, where pros­e­cu­tors are encour­aged to secure the least reli­able evi­dence from indi­vid­u­als with the great­est incen­tive to lie. Consistent with a nation­al bipar­ti­san com­mis­sion on death penal­ty reform, we should insist that where the state seeks the death penal­ty, it relies on objec­tive evi­dence rather than infor­mants or accom­plices. Moreover, in every case, deals should be dis­closed in writ­ing. The Legislature should require pros­e­cu­tors to dis­close promis­es of lenien­cy pri­or to tri­al and pro­hib­it grant­i­ng favors after trial.

Second, open file dis­cov­ery should be the norm, not the excep­tion. A num­ber of dis­trict attor­neys’ offices around the state offer open file. That approach expe­dites res­o­lu­tion of cas­es and pre­vents wrong­ful con­vic­tions. Reorganizing the sys­tem so that dis­clo­sure is pre­sumed (and secre­cy the excep­tion) will enhance trust in our jus­tice sys­tem and reduce the cost of wrongful convictions.

Louisiana has a his­to­ry of Brady vio­la­tions. This is not because Louisiana has more rogue pros­e­cu­tors. Rather, we have failed to pro­vide tools and guid­ance to pre­vent these prob­lems. Enacting reforms will pre­vent wrong­ful con­vic­tions and restore cit­i­zens’ con­fi­dence in our justice system.

Pascal F. Calogero Jr. is a retired Louisiana Supreme Court Chief Justice who is in a pri­vate law prac­tice in New Orleans.

(P. Calogero, ​“We need reforms to increase con­fi­dence in the jus­tice sys­tem,” New Orleans Times-Picayune, February 29, 2012). See New Voices.

Tags
Citation Guide