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Win at all costs
Written by Bill Moushey Part 3 of 10

Hiding the facts (cont.)

An issue of fairness

The discovery process is central to the American concept of a fair trial.

"Society wins not only when the guilty are convicted but when criminal trials are fair," wrote U.S. Supreme Court Justice William O. Douglas in 1963.

"Our system of the administration of justice suffers when any accused is treated unfairly."

His words were at the core of the Supreme Court’s Brady vs. Maryland opinion, which set the standard for discovery rules in this country.

John L. Brady and an accomplice were convicted of murdering a man during a robbery. Both were sentenced to death.

But during Brady’s trial, prosecutors withheld a police report that had been requested by defense attorneys, in which Brady’s accomplice confessed to pulling the trigger.

The court ruled that by withholding the evidence, the prosecutor violated Brady’s rights under the equal protection clause of the 14th Amendment to the Constitution.

Even if such information is withheld unintentionally, the court said, a defendant might still be entitled to a new trial or a new hearing on his sentence.

Brady’s case was remanded for re-sentencing and he was spared the death penalty and given life in prison.

But as with many Supreme Court rulings, a clear statement of principles can become fuzzy in its application. To rectify discovery violations, the Supreme Court adopted a test that begins and ends with one basic premise: A conviction should be reversed only if the verdict would have been different had the discovery information withheld by prosecutors been known at the trial. Otherwise, the discovery violation is "harmless error" — and the original court verdict should stand.

In its investigation, the Post-Gazette found that the test has evolved into a devious calculation by many federal prosecutors: How much favorable evidence can be withheld without risking a reversal on appeal?

Rather than abide by the Supreme Court’s admonition that their goal should be to ensure a fair trial, many prosecutors try to figure just how much they can cheat. Ignoring discovery rules improves the chances of a prosecutor winning a conviction with little risk of penalty.

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Bennett L. Gershman, a former New York state prosecutor, wrote a legal textbook focusing on the methods and motivations of prosecutorial misconduct. The prime motivator: “Prosecutors want to win.”

"Brady violations account for more miscarriages of justice than any other violation," said Bennett L. Gershman, a former New York state prosecutor and now a Pace University of New York law professor.

Gershman wrote "Prosecutorial Misconduct" in 1997 and has explored discovery violations and the motives behind them.

"Prosecutors want to win," he said. "Some believe the defendant is so guilty that any information that contradicts the guilt can’t be trustworthy, so they believe they don’t have any obligation to turn over untrustworthy material while telling themselves they are being honest."

The double whammy for defendants, of course, is that there’s no guarantee that favorable evidence, once hidden by prosecutors, will ever be revealed.

"People have been sent to prison for many, many years before they find that [prosecutors knew of] exculpatory evidence, but that’s the built-in contradiction," Gershman said.

"If the information is hidden, how do you find it?" Gershman asked. "How do you get it to make a claim? Much of this information will never see the light of day, even if it may be critical in proving the defendant’s innocence."

That hasn’t always been the way federal prosecutors operated.

Gary Richardson was appointed U.S. attorney for the eastern district of Oklahoma by President Reagan, serving until 1984.

During his tenure, Richardson said, his office had an "open file" discovery policy, which meant defense lawyers could come in and look at anything prosecutors had collected on a particular case.

"My attitude was that if you can’t take the truth and win, then you weren’t supposed to win," he said.

Now Richardson is a criminal defense attorney and says he regularly complains about federal prosecutors hiding evidence favorable to his clients.

The open-door policy he advocated is no more.

Indeed, the Post-Gazette interviewed more than 100 defense attorneys for this series and none had been given open access to a prosecutor’s files during discovery.

Ramsey Clark, U.S. attorney general under President Johnson, is now a defense attorney and bemoans the trend — especially because of its impact on defendants who are poor and can’t pay for lawyers who can uncover attempts to withhold evidence.

"It is really tragic," he said, "how we grind up poor people in these situations."

Discovery violations are rampant, in part because the Justice Department has few rules penalizing a prosecutor who violates the discovery process.

When he served as attorney general, Clark would seek to overturn convictions if he discovered misconduct by federal law enforcement officers.

"What we were trying for [was] sort of an open-file type of process," he said, where prosecutors would take defense lawyers into a room and give them the entire file on an individual charged with a crime.

"We used to confess error when we thought we were wrong." He said he rarely sees that happen anymore.

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