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Capital Punishment in the United States Explained

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To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

Correcting Prosecutorial Misconduct and Judicial Error in Louisiana

Louisiana's death row
Louisiana's death row
It seems incontestable that Louisiana's criminal justice system is in a state of collapse. The state judiciary appears to be oblivious to violations of the constitutional rights of criminal defendants; prosecutors continue to violate the rights of accused with impunity, especially by suppressing exculpatory evidence; public defenders are so overwhelmed by huge caseloads they have refused to take new cases; and the state prisons have the highest incarceration rate in the nation. Although the Supreme Court and lower federal courts have intervened in numerous cases to correct abuses, they can do so only piecemeal, and only when the abuse is so flagrant that deference typically given to the conduct of state officials is inappropriate. For example, the Supreme Court and lower federal courts have vacated numerous Louisiana convictions - many in death penalty cases - because of serious prosecutorial misconduct, and often after the Louisiana courts found no wrongdoing. Moreover, in several of these cases the defendant was innocent and ultimately exonerated after spending many years in prison.

The Supreme Court is poised to take up yet another misconduct case from Louisiana involving prosecutors who suppressed evidence favorable to the defendant that likely would have changed the jury's decision to execute him. David Brown, one of the Angola 5 defendants convicted of murdering a prison guard during an escape attempt and sentenced to death, is asking the Supreme Court to review his case. Brown claims, and it is not disputed, that prosecutors obtained a confession from 1 of Brown's co-defendants who admitted to being the actual killer and who intimated that Brown was not involved in the killing. The prosecutors never disclosed this confession to Brown's lawyers, who obviously would have used it to persuade the jury to spare Brown's life. Despite clear constitutional authority establishing that prosecutors violated Brown's due process rights, the Louisiana courts found no misconduct, and also held that the prosecutor's failure to disclose the statement would not have changed the result.

There is abundant evidence that prosecutors in Louisiana have for years consistently violated the rights of defendants by failing to disclose to defendants favorable evidence that could alter the verdict, and that Louisiana courts in reviewing criminal convictions, especially capital murder conviction, consistently failed to correct these prosecutorial violations, and in fact concluded that no violations occurred. Thus, for example, in a Louisiana capital murder case decided by the Supreme Court in March, Wearry v. Cain, the prosecution hid critical evidence from the defense that almost certainly would have altered the verdict. The Louisiana courts agreed that the prosecutor should have disclosed the evidence but nevertheless affirmed the conviction, concluding that the withheld evidence would have made no difference to the result. The Supreme Court overturned this ruling, finding "beyond doubt" that the undisclosed evidence destroyed confidence in the jury's verdict.

In another Louisiana capital murder case decided by the Supreme Court three years ago, Smith v. Cain, critical evidence that would have discredited the prosecution's only witness was hidden from the defense. Every Louisiana judge who reviewed the conviction found no violation; all state judges believed it was a slam dunk conviction. The Supreme Court felt otherwise. At oral argument and in its 8-1 ruling overturning the conviction, the Court was incredulous that the state prosecutor arguing the case was so oblivious to such clear misconduct.

The current capital murder case of David Brown is a mirror image of the landmark ruling of the Supreme Court in Brady v. Maryland, decided 53 years ago. In that case, as in Brown, there was no doubt that Brady participated with an accomplice in a murder. But the prosecutor failed to disclose to Brady's lawyer a statement made by the accomplice in which he identified himself as the actual killer. Clearly, if the jury knew about the statement, it might have persuaded them to spare Brady's life. The Supreme Court found that by not revealing the statement to Brady the prosecutor violated Brady's due process right to a fair determination of his punishment.

Brown makes the same argument. He claims, and the trial judge agreed, that the prosecutor deliberately withheld from the defense the co-defendant's inculpatory statement identifying himself the actual killer and suggesting that Brown was not involved in the killing. As in Brady, although the statement would not have absolved Brown of complicity in the killing under the theory of accomplice liability - Brown did participate in the escape during which the guard was killed - the trial judge found that the suppressed statement would have lessened Brown's overall culpability, and might very well have persuaded the jury not to sentence him to death. At the very least, the prosecutor by suppressing the statement denied Brown's lawyer the opportunity to make that argument to the jury. The trial judge vacated the death sentence.

The Louisiana appellate courts once again sided with the prosecutor. They found that even if the prosecutor suppressed the statement, it would not have changed the result. The statement, the reviewing courts concluded, was not favorable to Brown, and certainly not material to his punishment. In making this determination, the appellate judges viewed the co-defendant's statement as not exculpatory to Brown, but simply as proof of the guilt of the confessing co-defendant. As shown in many earlier cases that were overturned by federal courts, the Louisiana judges were confused about how to analyze exculpatory evidence under the Brady rule; they appeared to consider such evidence in a light most favorable to the prosecution rather than to examine how a jury might use it, and how the failure to give the jury the proof erodes confidence in the jury verdict. Moreover, and of critical significance, the consistent failure of these courts to understand and apply correct legal rules sends a terrible message to prosecutors to follow the erroneous rulings of the state courts and be indifferent to the result.

As with the many other instances of misconduct by prosecutors and errors by the Louisiana judiciary, the Supreme Court again is being asked to step in to correct a clear constitutional violation. It seems like such a disproportionate investment of Supreme Court resources to have to continue to monitor one state's dysfunctional criminal justice system. But if Louisiana continues to be indifferent to and flaunt constitutional norms, Supreme Court intervention again is mandated.

Source: Huffington Post, Bennett L. Gershman, Professor of Law, Pace, May 20, 2016.

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