Former Louisiana Chief Justice Asks Supreme Court to Review Case Presenting "Endemic" Prosecutorial Misconduct

Pascal Calogero (pictured), former associate and chief justice of the Louisiana Supreme Court, has called upon the U.S. Supreme Court to review the case of David Brown, a Louisiana death row prisoner who is challenging his sentence on the grounds that prosecutors withheld exculpatory evidence. Brown says prosecutors violated the Supreme Court's ruling in Brady v. Maryland, which requires disclosure of evidence that would be favorable to a defendant, whether relating to his guilt or in reaching a sentencing decision. In Brown's case, prosecutors had known for months that one of his co-defendants had confessed to having committed the killing with the help of a third co-defendant. They nonetheless withheld the confession from the defense, undermining Brown's claim that he was not the killer and that the victim was still alive the last time Brown had seen him. The evidence withheld in Brown's case is strikingly similar to the evidence presented to the Supreme Court in Brady itself—a co-defendant's admission that he, and not the defendant, was the actual killer. Nevertheless, the Louisiana Supreme Court said the withheld evidence would not have been favorable to Brown and ruled that no constitutional violation had occurred. "Brady issues are and have been, for decades, an endemic and persistent problem in Louisiana courts in both capital and noncapital cases," Calogero wrote in an op-ed in The National Law Journal. "The Louisiana Supreme Court had a chance to address this in Brown, but instead, once again, neglected to do so." The Open File, a website devoted to prosecutorial accountability, said that "Louisiana has a uniquely sordid history when it comes to prosecutorial misconduct." The Supreme Court has overturned three Louisiana death penalty cases for withholding exculpatory evidence, including the case of Michael Wearry earlier this year, and police or prosecutorial misconduct has been a factor in all ten Louisiana death-row exonerations to date. In addition, The Open File reported that the state court's rejection of Brown's Brady claim has "perversely ... undercut" the state's process for attorney discipline. Although it is undisputed that the prosecutors knew about and withheld evidence of the co-defendant's confession, the Louisiana Office of Disciplinary Counsel was unable to disclipline the prosecutors involved because the state court had ruled that the confession was not "favorable" evidence and the so the failure to disclose it could not be considered a violation of state ethical rules. The Court is scheduled to conference on June 16 on whether to accept Brown's case for review.

(P. Calogero, "U.S. Supreme Court Should Undo Death-Row Injustice in Louisiana," The National Law Journal, May 30, 2016; Bert, "LA: A Brady SOS from Louisiana to the U.S. Supreme Court," The Open File, June 1, 2016.) Read David Brown's Petition for Writ of Certiori here. See U.S. Supreme Court and Prosecutorial Misconduct. The ten Louisiana death row exonerees whose trials were tainted by misconduct are: Johnny RossCurtis KylesShareef CousinMichael GrahamAlbert BurrellJohn ThompsonDan BrightRyan MatthewsDamon Thibodeaux, and Glenn Ford.