Are the Courts Encouraging Prosecutors to Hide Evidence?
One cornerstone of the criminal justice process is a defendant’s right to know the specific facts and evidence the government intends to use against them in a trial. This process is called “discovery,” and both federal and New Jersey courts require the prosecutor to turn over any evidence that is “exculpatory,” or favorable to the defense and material to the case. In the recent United States Supreme Court Case of Turner v. United States, the court addressed the consequences of a prosecutor’s failure to make a defendant aware of exculpatory evidence.
Since the 1963 case of Brady v. Maryland, precedent says a defendant’s constitutional due process rights are violated when a prosecutor withholds evidence that is “favorable to the defense and material to the defendant’s guilt or punishment.” Evidence is “material” when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding or trial would have been different.
In Turner v. U.S., approximately 10 defendants were alleged to have brutally raped and murdered a woman shopping in the District of Columbia in 1984. The prosecutor used the testimony of two co-defendants and an eyewitness to paint a picture of a large group attacking the mother of six. Turner, along with several other co-defendants, was convicted.
Roughly 15 years later, in post-conviction relief proceedings, the defendants discovered the prosecutor had evidence that was not disclosed in the discovery process. Namely, that an eyewitness who testified at trial had given a prior statement wherein he observed two different suspects — including convicted felon James McMillan — at the scene of the crime before they ran away. Other withheld evidence includes information that one of the prosecutor’s key witnesses was high on PCP when meeting with investigators.
Before the Supreme Court, the government argued this evidence was not material and thus did not warrant a new trial. The defense disagreed, arguing that, had this information been disclosed, they would have pursued a different theory and argument before the jury at trial.
The Supreme Court sided with the government, holding the withheld evidence “too little, too weak, or too distant from the pain evidentiary points to [warrant a new trial].” In essence, the court held the prosecutor’s case to be too strong, and the suppression of this evidence did not make a difference. Justices Kagan and Ginsburg voiced a strong dissent, noting the entire tenor of the trial would have been different due to a more unified defense from multiple defendants.
While the Supreme Court limited its ruling to the facts of this specific case, and did not announce any radical changes in the ethical obligations of prosecutors, the ruling still imposes no consequences for the government’s inexcusable withholding of evidence that plainly should have been disclosed.
Let me be clear: I do not believe there is an epidemic of misconduct wherein there is systemic or conspiratorial bad faith on the part of prosecutors. The vast majority of prosecutors are ethical to a fault and take their professional responsibilities seriously. However, when the government hides evidence, the consequences for citizens are dramatic. Innocent people are incarcerated. Reputations are ruined. The public’s confidence in the justice system is eroded. Perhaps most importantly, the process is corrupted.
There was no debate that the prosecutor in Turner v. U.S. should have disclosed the exculpatory evidence at issue. After the Supreme Court’s ruling, this prosecutor will face no meaningful consequences for this deliberate “tipping of the scales.” That is unjust.
Moreover, the message sent from the court to prosecutors across the country is frightening: Go ahead and kick up chalk. We’ve got your back. Prosecutors already, and appropriately, enjoy certain immunities given the difficult decisions they are forced to make in even the most routine case. And prosecutors, like the rest of us, will respond to incentives and disincentives. Unfortunately, the court missed an opportunity in Turner v. U.S. to articulate and frame the discussion in a way that would provide appropriate motivation for prosecutors to fairly and openly err on the side of a more honest and transparent system of justice.