Former Louisiana Supreme Court Chief Justice Pascal F. Calogero Jr. writes the OpEd, "We need reforms to increase confidence in the justice system," for the New Orleans Times-Picayune.
Our justice system makes two promises to its citizens: a fundamentally fair trial and an accurate result. As Justice Cochran of Texas' highest criminal court observed, "If either of those two promises are not met, the criminal justice system itself falls into disrepute and may eventually be disregarded."
The Orleans Parish district attorney has recognized the burden of past cases -- where prosecutors have withheld evidence -- "hangs around the neck of our criminal justice system like an anchor" and "cripples the effectiveness of our criminal justice system, and, ultimately, makes the streets of New Orleans less safe."
Indeed, an Innocence Project New Orleans report found "favorable evidence was withheld from nine of the 36 (25 percent) men sentenced to death in Orleans Parish from 1973-2002. However, this is not just about wrongful convictions under past administrations: John Thompson, Curtis Kyles, Shareef Cousin, Dan Bright -- and as the U.S. Supreme Court recently recognized -- Juan Smith. It involves cases prosecuted today, with Brady violations in the cases of Michael Anderson and Jamal Tucker.
The term Brady derives from a Supreme Court case, Brady v Maryland, which held: Hiding favorable evidence violates an individual's constitutional right to due process. Moreover, prosecutors are required to disclose favorable evidence as part of their ethical obligation.
And:
First, basic regulation of deals given to jail-house witnesses would eliminate the problems in Kyles, Anderson and Tucker. Currently, jail-house testimony is a commodity on an unregulated market, where prosecutors are encouraged to secure the least reliable evidence from individuals with the greatest incentive to lie. Consistent with a national bipartisan commission on death penalty reform, we should insist that where the state seeks the death penalty, it relies on objective evidence rather than informants or accomplices. Moreover, in every case, deals should be disclosed in writing. The Legislature should require prosecutors to disclose promises of leniency prior to trial and prohibit granting favors after trial.
Second, open file discovery should be the norm, not the exception. A number of district attorneys' offices around the state offer open file. That approach expedites resolution of cases and prevents wrongful convictions. Reorganizing the system so that disclosure is presumed (and secrecy the exception) will enhance trust in our justice system and reduce the cost of wrongful convictions.
Open file discovery was the topic of a recent New York Times editorial, noted at the link. As Justice Calogero notes in his OpEd, the responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more on that ruling via Oyez. Related posts are in the prosecutorial misconduct index.
Thanks to Tristin Aaron for forwarding.
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