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Apr. 19 2010 - 8:29 am | 253 views | 1 recommendation | 5 comments

Prosecutors must stop withholding evidence pointing toward innocent defendants

When an Ohio jury convicted Kevin Keith of murder, the jurors had no clue that somebody other than Keith might have been the perpetrator–and that the prosecutor failed to disclose the information during the trial. (For an earlier posting on the Keith case, see “In Justice” April 18.)

The law might seem unfair to those with a certain “law-and-order” outlook about criminal suspects, but the law is clear: prosecutors must reveal information pointing toward innocence of women and men charged with crimes. The U.S. Supreme Court said in Brady v. Maryland (1963) that prosecutors must promote justice, rather than giving priority to winning a case.

Many of the 2300-plus locally elected prosecutors across the United States routinely disclose all material to defendants and their lawyers. Why some prosecutors refuse to institute that practice makes no sense to me. When prosecutors (and police investigators collaborating with prosecutors) selectively withhold evidence, trouble sometimes results.

Prosecutors almost never receive punishment for withholding evidence pointing toward innocence, so the “win-at-all-costs” district attorneys apparently feel they can violate the law without worry. If innocent defendants end up in prison while the actual perpetrators remain at liberty to murder or rape or rob again, too bad.

If defense attorneys are unaware of what lawyers call “exculpatory evidence” because a prosecutor intentionally hides that evidence, the plea bargain or the trial verdict is tainted. To fix the potential miscarriage of justice,  all sorts of “luck” must come into play, or the exculpatory evidence will remain hidden forever.

In the Keith case, appellate lawyers have intervened on Keith’s behalf, asking the U.S. Supreme Court to give Keith another chance at fairness, at justice. But the main argument to the Supreme Court does not involve the alleged prosecutorial misconduct directly. Instead, Keith’s lawyers are attacking an Ohio appeals court that ruled against a new trial or other remedial action.

The appeals judges said the evidence allegedly withheld by the prosecutor does not matter in a legal sense.  How come? Because the prosecutor presented plenty of evidence at trial indicating Keith’s guilt. Keith’s lawyers say the Ohio appeals judges lack standing to use a “sufficiency of trial evidence” claim as a reason to reject Keith’s petition.

A lot is riding on what the Supreme Court decides. ”In Justice” will follow the petition to the Supreme Court and the aftermath. The outcome will affect not only Keith, but also an untold number of other defendants who are trying to find post-conviction remedies on the way to justice.


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  1. collapse expand

    Why does it seem that civil attorneys who abuse the discovery process are more likely to face sanctions than prosecutors?

    • collapse expand

      In almost every state, the Supreme Court or other institutions that could discipline prosecutors will not take the initiative. Instead, somebody must file a formal complaint. Who possesses the courage to take that step? Defense lawyers? Not usually, because they worry about prosecutors retaliating against future defense clients. Judges? Not usually. Some of the judges are former prosecutors, and almost all judges–whatever their backgrounds–want to go along to get along. Other prosecutors? Not usually, because of the professional fraternity/sorority aspect.

      Another obstacle: The U.S. Supreme Court and lower courts have held over and over that prosectuors enjoy immunity from civil litigation, which could be interpreted to include immunity from disciplinary proceedings.

      In response to another comment. See in context »
  2. collapse expand

    It is far too much to ask that prosecutors, the linchpin of the criminal justice system, ever be brought up on criminal charges for violating the ethics (and laws) of that same system. And you can’t fire them, because by the time you find out about the misconduct, they have already parlayed their public stint into a high-paying job in the private sector.

    But what should happen is disbarment proceedings, wherever they are. Unfortunately, the Missouri Bar is not interested in policing its own lawyers, except in cases of gross misconduct which might undermine the public’s faith in trial attorneys (not the legal system or the constitution, just attorneys).

    Disbarment for prosecutors is so incredibly rare that you basically have to bend every effort of will to manufacturing a case against upper-middle class white field hockey players in order for that to happen. When we see a black man or America’s poor (often both) prosecuted, we are trained to assume they must be guilty of something.

  3. collapse expand

    Another issue I see is the prosecutor’s misuse of Grand Jury to secure an indictment when their case is weak and without any physical corroborating evidence. The “one-sided” approach to Grand Jury almost always (99.9%) indicts and allows for the prosecution to stack charges that gives them leverage in the plea process. Too many truly innocent persons take pleas because the risk of losing at trial and facing lengthy prison sentences scares them guilty! There is too much collusion between prosecutors, law enforcement and in some cases judges that defense attorneys simply advise the plea as the lesser of the evils to face. This has absolutely nothing to do with justice and they play this hand everyday without fear of being held accountable for their actions.

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    About Me

    Investigative reporter since 1969, starting on daily newspapers, moving to magazines, then to writing books. In 1978, I decided to reject the world of regular paychecks and freelance for newspapers and magazines while continuing to write nonfiction books. Since 1976, I have been active in an international group called Investigative Reporters and Editors (www.ire.org). From 1983-1990, I ran IRE day to day, and still help edit its magazine. Partly from passion and partly for mercenary reasons, I have been teaching students part-time at the University of Missouri Journalism School since 1978. As you would deduce from my trueslant.com blog, my research, writing and teaching have increasingly focused on exposing flaws in the criminal justice system, especially when those flaws lead to the imprisonment of innocent men and women.

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