The playing field is uneven

As written before, one of the greatest lies sold to the American public was Brady v. Maryland: that the prosecution has an affirmative burden to turn over exculpatory material. The problem, of course, is that they are also the ones who get to decide what is “exculpatory”, which has routinely been defined as evidence that would tend to negate the guilt of the defendant or undermine the credibility and believability of the government’s witnesses.

But just as easily as overzealous prosecutors take this exculpatory information, put it in a folder marked “work product” and pretend it doesn’t exist, do they hide witness statements that point to someone completely different and let an innocent man get convicted of murder and end up on death row.

Meet James Dennis, in whose case a federal judge begins a lengthy opinion [PDF] thusly:

James Dennis, the petitioner, was wrongly convicted of murder and sentenced to die for a crime in all probability he did not commit. I will grant Dennis’ habeas petition, vacate his conviction and death sentence, and require the Commonwealth to retry Dennis within 180 days or let him free.

Damning stuff and not for those who wish to maintain equanimity. The gravamen of Dennis’ habeas petition was that the Commonwealth failed to turn over documents that were in its possession that tended to show that Dennis was not or could not have been the murderer.

The judge, Anita Brody, wastes no time in her opinion laying out the confirmation bias the police had when they developed blinders for Dennis as the only possible perpetrator for a crime committed by two people:

In short, Dennis’ prosecution was based on scant evidence at best. In the process, the Commonwealth covered up evidence that pointed away from Dennis. It ignored Dennis’ own explanation for where he was at the time of the murder: taking a bus from his father’s home to the Abbotsford Homes project. It allowed a witness who saw Dennis on that bus to give incorrect testimony about what time that interaction occurred.

The police focus on Dennis stemmed from neighborhood rumors that he had been involved. This focus appears to have led police to overlook disparities between the eyewitness descriptions of the shooter and Dennis, most importantly their descriptions of the shooter’s size.

Further, the police arguably conducted misleading line-ups and identifications. After his arrest, Dennis volunteered to participate in a line-up. Although the defense requested that all   eyewitnesses be present, the Commonwealth provided only four of the nine who gave statements   immediately after the murder. Incidentally, the four were the only witnesses who had already   initially identified Dennis from a photo array.

The police and prosecution also failed to turn over a series of documents relating to the statement of William Frazier with detailed, credible information about the murder—even though police turned over numerous other tips and statements relaying neighborhood rumors. Frazier, an inmate in the Montgomery County Jail, gave a statement first to the Montgomery Police and then to the Philadelphia police relaying a phone call he had had with two friends who told him that they and a third friend had committed the Williams murder.

I’d go on but that’s a massive wall of text already. Go read the entire opinion when you’ve got a minute; she does a masterful job of laying out all the problems with the Commonwealth’s case.

It’s not simply that the prosecution bungled this case and forgot to turn over a few documents. They actively lied to courts about these exculpatory documents. So when I tell you that the following sentence is rarely found in judicial opinions, believe me:

This argument borders on bad faith: The Commonwealth admits that the entire homicide file—where one may expect a document recovered by the police to exist—went missing in March 1997, before the Commonwealth had submitted its direct appeal briefing.

The context for that is that the Commonwealth argued that a receipt which would line up an independent, unbiased and disinterested witnesses testimony with the alibi of Dennis was “not suppressed”, because “it could not find a copy of that receipt in its file”.

Just so you understand, the prosecution lost their file, then argued that “hey, look, we have nothing in our file right now, so we don’t have that receipt, so we didn’t have to turn it over”.

As the judge says, “In its most brazen argument, the Commonwealth told the state court that there was insufficient evidence it had suppressed the receipt because ‘the Commonwealth’s file does not contain a copy of that document.'”

Cases like these are why those among us who oppose the death penalty do so in all cases, even the “worst of the worst“, because we have seen firsthand – and do so repeatedly secondhand – that the Government cannot be trusted to get it right. Putting aside the inherent margin of error in an enterprise that is entirely reliant on the judgment of human beings, the risk exists that there are people out there like the prosecutors of Dennis who willfully hide exculpatory information because the desire to win is greater than the desire to do justice.

What sort of place do you have to be in, to argue disingenuously just to preserve a sentence of death, when you know that your dishonesty will lead the machinery of the Government to take the life of another human being.

Think about what sort of ambiguous moral code it takes to intentionally hide information that might lead to the exoneration and freedom of an innocent man, where the alternative is death for that person.

Think about the power that is given that person. Then ask yourself if you trust such a person to make any decisions and if you want to give them any more power.

Our system of justice is a game that is being played on an uneven battlefield. Every day, people like James Dennis pay the price for our willful ignorance.

9 thoughts on “The playing field is uneven

  1. nidefatt

    Brady. Pfft. Where I work, the prosecutor just never bothers to learn anything about their case. I had a judge scold one, saying they couldn’t just take the ostrich approach. Frankly, I think they can do that. The only thing that comes close to making them know what they’re doing is the rules of ethics. Love to see a prosecutor get spanked by the higher courts for being willfully blind, but that’ll never happen.
    I don’t know about your state, but in mine, much of our “discovery” is “come and inspect it.” Including documents. You know how you know, this day in age, that your prosecutor is not taking a look at her evidence? You’re told to subpoena it from the sheriff.

  2. Pete Conley

    “This argument borders on bad faith”

    If this simply borders it, I’d hate to see the state looks like when it is acting with bad faith.

        1. Wade

          At least where I practice, it’s because most Judges have followed the career path that goes “prosecutor, white-shoe lawfirm, (large political contributions), Judge”.

  3. Justin McAleer

    Thanks for this post… now whenever a death penalty discussion comes up I can just send a link to this and save myself a whole lot of typing.

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