Supreme Court Watch ABA: broaden duty to disclose exculpatory evidence Court to consider if state courts ignored fundamental principals of due process

By Kimberly Atkins The Daily Record Newswire BOSTON -- The U.S. Supreme Court is once again poised to consider when post-conviction relief is available for an alleged failure by prosecutors to disclose exculpatory evidence under Brady v. Maryland. But the American Bar Association is asking the Court to take a step farther and declare that the duty to disclose goes beyond Brady. An amicus brief filed in Smith v. Cain asks the Court to clarify that, while Brady covers post-conviction review of claims of withheld evidence where the disclosure would have affected the outcome of the trial, existing rules require prosecutors to disclose evidence beneficial to the defense whether it could affect the verdict or not. "The duty to disclose evidence favorable to the defense may arise more broadly under existing ethical and statutory obligations, which are separate from the constitutional Brady issues," said Richard J. Gray, a partner in the Chicago office of Jenner & Block who chairs the ABA's Standing Committee on Amicus Curiae Briefs. "All we really want the Court to do here is to distinguish the post-trial constitutional standard from the ethical and statutory obligation." And while the ABA is not asking the Court to hold that the ethical and statutory obligations play a part in post-trial Brady analyses, the issues are interrelated enough for such a holding to be appropriate if the justice decide to go that route, Gray said. "These things are so closely related that [the ethical standards] may inform a Brady analysis," Gray said. The case before the Court concerns Juan Smith, who was convicted of shooting and killing five people and sentenced to death in Louisiana. Smith claimed that prosecutors from Orleans Parish District Attorney's office, which has a history of not turning over exculpatory evidence to defense attorneys in capital cases, withheld information during the trial. For example, Smith claimed that prosecutors never told his defense lawyer that a prisoner confessed to his cellmate that he had committed the murders; that the eyewitness in the case made prior inconsistent statements and had psychiatric problems; and that a surviving victim of the shootings told police that Smith didn't shoot him. The trial judge denied Smith's Brady-based post-conviction plea for relief in an oral opinion, saying: "I am ready to rule in this case. I don't have to take any time for this. I have been listening to this for quite a bit. I am denying post-conviction relief." After the state's appellate courts declined to review Smith's case he petitioned the U.S. Supreme Court for certiorari. The justices agreed to consider whether the state courts ignored fundamental principles of due process in rejecting his Brady claims. But the ABA wants to the Court to consider more than the constitutional claim. In its amicus brief, the ABA asks the Court to recognize that Brady does not set a ceiling on prosecutors' duty to disclose. "The ABA respectfully requests that the Court continue to recognize that a prosecutor's pre-trial obligations to disclose exculpatory and mitigating evidence 'may arise more broadly under a prosecutor's ethical or statutory obligations' [t]han is required under the post-trial constitutional standard set out in Brady," the brief states. Specifically, the brief notes that ABA Model Rule 3.8(d) mandates disclosure of exculpatory and mitigating evidence without regard to materiality, and that 49 states, including Louisiana, have adopted ethics rules with similar or identical provisions. In addition, the brief states that ABA Criminal Justice Standards promote broad disclosure of all exculpatory evidence without regard to materiality. According to Gray, it is important that the Court clearly distinguish the Brady analysis from other rules that impose broader disclosure obligations on prosecutors, lest lower courts begin to treat the Brady standard as the only rule prosecutors must abide by. "What we are saying is: 'Please don't trespass over these other obligations,'" Gray said. Other groups have also called for broadening prosecutors' duty to disclose in criminal cases. In July, the National Association for of Criminal Defense Lawyers' Board of Directors endorsed model legislation that would require federal prosecutors to disclose any favorable information to the accused in relation to any issue in a criminal case. The legislation would empower courts to implement a number of remedies should prosecutors fail to disclose information, including postponement of a proceeding or limiting or excluding testimony. In extreme cases, the court could dismiss the case or order a new trial. Such a law is necessary at a time of increasing reports of information that would be beneficial to defendants being withheld by the government, said Jim E. Lavine, a partner in the Houston office of Zimmermann, Lavine, Zimmermann & Sampson and the president of NACDL. Lavine pointed to the widely-reported failure by federal officials to disclose exculpatory evidence in the federal corruption trial of the late Sen. Ted Stevens and said the legislation was endorsed by the NACDL "when it became apparent that the Justice Department was determined to fight any effort to require its prosecutors to turn over all information favorable to the defense." "The time to put teeth into Brady obligations is long overdue," he said. Gray said the ABA's amicus brief is limited in scope, simply asking the Court to affirm the importance of existing rules. The ABA has taken no position on whether ethical standards have a role in a Brady analysis. But Gray said that the Court could decide to link the standards. "That is for the Court to decide," he said. "[But] we are not asking for something new. We are advocating for the continuous recognition that ethical and statutory rules [extend] more broadly than Brady." Published: Thu, Sep 29, 2011