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 Ross, Curtis Kyles, Shareef Cousin, Michael Graham, Albert Burrell, John Thompson, Dan Bright, Ryan Matthews, Damon Thibodeaux, and Glenn Ford.

Citation Guide