A Look At Yolo County’s Brady Policies

Yesterday’s story on Michael Morton and the story that emerged earlier this year. when the US Supreme Court ruled that the prosecutors in the John Thompson case could not be held liable for the destruction of evidence that was used to wrongfully convict Mr. Thompson, lead us once again onto the path of looking into ways to prevent wrongful convictions.

Since then, most states have interpreted the requirement under Brady that the prosecution must disclose material that could be considered exculpatory evidence to the defense.  The standard is if  “there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed.”

Cases like Michael Morton and John Thompson are worst case scenarios, where the prosecution has been found or is alleged to have intentionally hidden evidence that could have exonerated the defendant.

According to the NY Times editorial that we cited yesterday, “There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.”

We have been told that such a system does not exist in Yolo County and, anecdotally, we have observed occasions where the disclosure of evidence is a battle and the DA has attempted to hide the ball.

The county does have a written Brady Policy, which the Vanguard acquired earlier this year in a public records request.

What the Vanguard received was the policy dated July 11, 2011, by which there is an established procedure for disclosure of material from law enforcement personnel records – what the District Attorney’s office calls its “external policy.”

Writes the District Attorney in a twelve-page memo, “The District Attorney and law enforcement (‘Prosecution Team’) have a constitutional obligation under Brady v. Maryland (1963) 373 U.S. 83, to provide criminal defendants with exculpatory evidence, including substantial evidence bearing on the credibility of prosecution witnesses.”

The memo continues: “This duty of disclosure extends to evidence in possession of the ‘prosecution team,’ which includes the investigating law enforcement agency.”  They add, “In addition, there is federal court authority that police have a due process obligation to disclose exculpatory evidence to the prosecution.”

The memo raises the central principle under Brady: “The District Attorney and Yolo County law enforcement agencies are committed to full compliance with the rights of criminal defendants to a fair trial and due process of law.  We recognize that effective enforcement and prosecution of crime are jeopardized by failure to comply with discovery law and that such violations may result in the reversal of convictions, sometimes years after the trial is concluded.  More importantly, we recognize that the honesty of law enforcement employees is a cornerstone of our criminal justice system.”

They add, “On those rare occasions when a law enforcement employee has engaged in conduct that has a negative bearing upon his or her credibility, we are obligated to disclose this information as required by law.”

The district attorney notes that, while the government “has no Brady obligation to communicate preliminary, challenged, or speculative information” at the same time, “the prudent prosecutor will resolve doubtful questions in favor of disclosure.”  Prosecutors are also warned in one court decision against “tacking too close to the wind” in withholding evidence.

Under these guidelines, the district attorney requires that law enforcement agencies have the duty to report “any sustained finding of misconduct that reflects upon the truthfulness or bias of a witness.  This includes evidence of conduct involving dishonesty or improper use of force or tending to show bias, which occurs in the course of exercising peace officer powers… while interacting with the public or when engaging in investigatory functions.”

Also, the district attorney policy puts the onus on the assigned deputy DA to determine “whether witnesses for trial have potential Brady information.”

The Vanguard has not received the internal District Attorney Brady Policies. Those would be the requirements that the District Attorney’s office turn over information that would be exculpatory to the defense.

The other problem is that, aside from the possibility that cases could be overturned years down the line, there is no clear incentive for prosecutors to comply with Brady requirements.  There is limited punishment available, other than Bar Association review, that has proven by studies from the Innocence Project last year to be extremely rare.

In their October 2010 report, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009,” there were over 700 cases in which courts had found prosecutorial misconduct during an 11-year period.  Of all of those cases, only six prosecutors were disciplined.

The most famous case is, of course, that of John Thompson, who was sentenced to death in Louisiana and subsequently exonerated after investigators had discovered the Deputy District Attorney destroyed exculpatory evidence, including jeans with blood stains on them and a report that had concluded Mr. Thompson’s blood was inconsistent with the blood of the likely perpetrator.

In a 5-4 ruling, with the court divided along ideological lines, they ruled that the district attorney could not be held accountable for the actions of one of his employees and only a pattern of misconduct would warrant holding the New Orleans DA Harry Connick accountable for what happened on his watch.

“The role of a prosecutor is to see that justice is done,” Justice Thomas wrote.

“By their own admission the prosecutors who tried Thompson’s armed robbery case failed to carry out this responsibility. But the only issue before us is whether Connick, as the policy maker for the district attorney’s office, was deliberately indifferent to the need to train the attorneys under his authority,” the ruling continued.

With regard to the matter of Michael Morton, the New York Times Editorial Board wrote: “While this process is an urgent matter for Mr. Morton, it is also a test of American justice – whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction.”

They added, “Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.”

Checks on that power, they noted, were further weakened in a decision earlier this year by the Supreme Court which overturned liability for New Orleans prosecutors who had not only withheld evidence, but destroyed it, in gaining the conviction of John Thompson in the 1980s.

The Times argues this ruling protects prosecutors, giving them “nearly absolute immunity over civil suits.”

Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.”

But, noted the Times, “Bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.”

They argued, “This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor ‘to oppose all of Mr. Morton’s post-conviction motions for DNA testing.’ If a court confirms these findings, it must hold Mr. Anderson accountable – or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.”

While the Vanguard applauds the Yolo County District Attorney’s office for taking this issue seriously and having released at least a partial written policy on its external Brady Procedures, the Vanguard believes that the policy does not go nearly far enough and urges Jeff Reisig to explore the possibility of providing open records, allowing defendants access to their entire case file and allowing the courts to audit their compliance with Brady.

With that step, the Yolo County DA’s office should be much closer to being fully transparent.  At the same time, it is clear that the Bar Association and Attorney General’s office need far stronger measures for handling violations of Brady, that will have real teeth and discourage future abuses.

—David M. Greenwald reporting

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