Integrity of Justice

Fighting for Truth, Justice and the American Way

HBO’s “The Night of” and concealing evidence

Most premier criminal defense attorneys has been confronted with cases where the government is concealing evidence. Few states are as fortunate as Missouri with the availability of pre-trial depositions to examine witnesses to protect clients with the ability to pay for investigators and expensive depositions an option. When the client is without means to pay for a deposition or an investigator the government’s investigation becomes the case evidence

The recent HBO series “The Night Of,” a whodunnit about the murder of a young woman and the man who gets accused of her murder provided an all too realistic view into the criminal justice system.

Near the end of the series (and the end of the accused’s trial), the prosecutor learns information that clearly steers the case away from the defendant and toward a different suspect with a much stronger motive to kill the victim.

After this prosecutor was shown the evidence by her lead detective, the prosecutor calmly tells him, “We’ve got more against the kid on trial.” She buries the new info and never lets the defense attorney know it exists.

This hiding-the-ball tactic to improve the prosecutor’s chances of winning is completely unethical. If discovered post-conviction, it would lead to a mistrial. Worse, a potentially innocent man would stay in jail if the evidence is never revealed.

It is the prosecutor’s obligation to let the defense know of all exculpatory evidence uncovered in his investigation. Whether a victim picked a different person from a line-up, said she was unsure who committed the crime, or the prosecutor knows a witness is lying or has a motive to lie – it should be revealed to the defense. (It just recently became law in New York, that criminal defense counsel can cross-examine police, in a limited way, about civil-rights law suits levied against them.)

This black-letter law was decided as long ago as 1963 in Brady v. Maryland. Yet even today, prosecutors shun this obligation using two excuses: we didn’t know, or we didn’t think it was exculpatory.

A lawyer had a robbery case where the perpetrator was specifically described as having dreadlocks. His client was convicted. Months later, a photo was discovered in the prosecutor’s file (by a different prosecutor handling the appeal) that revealed a mug shot of my client taken in another state just two days before the robbery. It clearly showed his client had short hair, no dreadlocks. It was unlikely he could have grown them in the 48 hours between the photo and the crime.

True, as the prosecutor argued when a new trial was requested, that the client could have been wearing a dreadlock wig the day of the crime, but the Brady rule doesn’t require that exculpatory evidence be outright proof of innocence, it merely has to be something that may be favorable and material to the defense. Clearly, a photo of this defendant two days before the crime with a Caesar cut was both material and favorable. Here new trial was ordered.

Recently another Brady violation was revealed in a high-stakes, high-publicity murder trial in upstate New York.

Sixth-grader Garrett Phillips was killed in 2011 and his mother’s ex-boyfriend, Oral Nicholas Hillary, was charged with the crime. Hillary, a soccer coach at a local university, denied the charges and prosecutors found no forensic evidence — fingerprints, admissible DNA, blood — to back up their charge. Race became an issue. (Garrett and his mom are white, while Hillary is a black Jamaican immigrant.) Defense counsel was so concerned that racial bias might influence the jury that after seeing the all-white jury venire, they opted for a bench trial instead.

After the trial started, the prosecutor revealed for the first time that a witness had identified seeing a different man, a sheriff’s deputy who was another former boyfriend of Garrett’s mother, going into Garret’s home just minutes before the murder.

True, that witness was a jail-house informant who might have been trading his information for a break. But whatever argument the prosecution could make to soften the impact of the evidence against their case, it doesn’t mean it shouldn’t be revealed to defense counsel.

The inmate’s attorney told the trial judge, during an inquiry over the botched Brady, that she had revealed the information to the prosecutor early on but was told that the evidence “didn’t go with” their theory of the case.

This is downright unfair and unconstitutional.

It’s hard enough to do a good job defending people when prosecutors in many states don’t even turn over discovery until the day of trial, but when they hide favorable evidence, that’s just plain cheating. Their oath is to do justice, not just to win.

One of the problems relating to Brady violations is that individual prosecutors face no repercussions in hiding the ball. The conviction may be reversed, and yes, a defendant, deprived his due process rights to a fair trial, may get out of jail. But there’s no sanction, fine, or personal review of the prosecutor.

I suppose if a particular prosecutor racks up enough Brady violations and enough mistrials are declared, he might eventually be called to task, or even lose his job, but I’ve never seen it happen.

A useful approach would be to keep a record of which Brady violations can be ascribed to which prosecutors from which districts. Knowing someone is looking over their shoulder might help them comply with the basic rule and encourage a broader reading of what is material and favorable to the defense.

To protect our Constitutional rights to a fair trial Congress needs to impose a federal discovery option to permit accused citizens access to the government’s investigation and the ability to take pre-trial depositions of available witnesses to prepare for trial. Truth is the heart of justice and the truth requires openness and accountability and the right to challenge by depositions the witness’s memories of relevant events to the trial,

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