On June 22, in Turner vs.
United States, the Supreme Court, by a 6 to 2 vote, affirmed the murder convictions of seven men. Unlike most Supreme Court decisions, Turner went
largely unnoticed.
It deserves more attention, but not because it
announced a new legal rule, wrote Professor Samuel Gross, of the University of Michigan on The Crime Report . Instead, Turner reaffirmed a terrible old
rule that has done great harm to the accuracy of criminal trials, and will
continue to do so.
The crime in the Turner case was horrific:
in 1984, a middle-aged woman was grabbed off the street in Washington D.C., beaten,
sexually assaulted and killed in an alley. The defendants were convicted on the
theory that they were part of a group of a dozen or more who committed this
atrocity. No DNA, fingerprints or physical evidence of any other kind connected
any of the defendants to the crime.
Twenty-six years later, the defendants’ attorneys
learned that prosecutors had concealed a laundry list of evidence that would
have helped their defense at trial.
In particular, one witness identified a man at the
scene of the crime as James McMillian, a local resident who was arrested
several weeks later for beating and robbing two other neighborhood women, and
was later convicted for robbing, sodomizing, and murdering a third young woman
in an alley. And another witness testified that he heard moans—apparently from
the victim—coming from inside a garage that was too small for a crime with 12
or even six perpetrators.
The Justice Department agreed that this evidence
should have been disclosed at trial. The only issue was whether concealing that
evidence made the trial fundamentally unfair, and requires a new trial.
In Brady v.
Maryland, in 1964, the Supreme Court ruled that the government is
constitutionally obligated to disclose evidence that is favorable to the
defense in a criminal trial if that evidence is “material” to the case.
Later
cases held that evidence is only “material” under Brady if
there is a “reasonable probability” that the outcome of the trial would have
been more favorable to the defendant if the evidence had been disclosed.
Otherwise, under Brady, the prosecution may conceal favorable
evidence from the defense and the trial court.
This standard is impossible to apply.
A prosecutor has to decide whether to disclose
favorable evidence before the trial begins. At that point, she does not know
what her own witnesses will say under oath (there are many surprises) let alone
what the defense might put on. How can she possibly know before trial whether
undisclosed evidence might tip the jury’s decision at the end of that trial?
And who would trust a lawyer to make that decision about a case she herself is
litigating?
Trial lawyers often believe, unrealistically, that
their cases are airtight. In this setting, self-confidence is self-serving: it
can lead prosecutors to decide that it’s OK to hide troubling evidence, which
makes their job a bunch easier.
When a prosecutor does hide evidence, chances are
nobody will ever know. If somehow it does come out, a court reviewing the
case faces the same impossible question—what might have happened at trial if
these facts had been known to the defense?—with an added twist: Judges are
extremely reluctant to reverse jury verdicts and order new trials.
Not surprisingly, they usually conclude that
concealed evidence was “immaterial” and therefore never had to be disclosed in
the first place.
That’s just what the Supreme Court did in Turner.
The majority points out that the hidden evidence is only exculpatory if
McMillian committed the crime alone and not as another member of a large group.
But none of the defendants disputed the prosecution’s claim that the victim was
attacked by a group. Instead, each said that he was not involved, but his
co-defendants might have been—and two additional defendants pled guilty and
testified for the government in return for reduced sentences.
In that context, the majority concludes that
disclosing the hidden evidence would have made no difference; presumably
because there was little or no doubt that the defendants were in fact guilty.
However, as Justice Kagan points out in her dissent,
no defendant argued that the murder was the work of a single person because
they had no idea that there was evidence to support that claim. If they had
known what we now know, the trial might have been totally different, including
what was disputed and who testified. The two defendants who pled guilty might
not have done so, and all of the defendants might have been acquitted—perhaps
because they are innocent.I
Our best hope for avoiding tragic mistakes is to
present all the evidence that matters the first time around.
Why not eliminate the “materiality” requirement
entirely and treat access to exculpatory evidence like other aspects of a
criminal defendant’s constitutional right to a fair trial? If exculpatory
evidence is concealed, it’s a violation of the Constitution, period.
This would not mean that every violation requires a
new trial. Courts often uphold convictions despite constitutional violations,
because they are convinced beyond a reasonable doubt that the violation had no
impact on the outcome. But that’s a tougher exception to meet, and it includes
a critical message: Hiding exculpatory evidence is always a violation of the
constitution.
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