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The late disclosure of favorable evidence by prosecutors has been the theme in a number of recent cases out of Hawaii, Indiana and Washington D.C. In some of these cases, exculpatory evidence was withheld until the eve of trial; in another, impeaching evidence wasn’t disclosed until the middle of trial. While the practice of withholding favorable evidence until the last minute is less likely to be addressed by appellate courts or through disciplinary proceedings, it nonetheless threatens a defendant’s right to a fair trial with the same ferocity as the failure to disclose evidence altogether.  Late disclosures mean defense counsel do not have time to adequately digest and prepare a response to the new materials when they are on the verge of trial.

Two recent instances that demonstrated the failure of prosecutors to timely disclose favorable evidence were:

1. A federal case in Hawaii where a judge found that prosecutors had committed misconduct by withholding information about deals the government had made with numerous witnesses in the case. In some instances, evidence of those deals was not turned over until after the witnesses had testified (and had been subject to cross-examination by the defense). The story is here.

2. Warrick County, Indiana, where defense attorneys allege that under County Prosecutor JoAnne Krantz, the local prosecutor’s office withholds favorable evidence as a matter of practice, citing a number of recent cases. The story is here.

A third such instance recently came to light in a Washington D.C. court when Judge Anita Josey-Herring found that prosecutors waited until the day before trial to disclose key exculpatory information in an assault case. The Washington Post writes:

On Wednesday night, just before Dorsey’s retrial was set to begin in D.C. Superior Court, the new prosecutors on the case informed the defense about two people who came forward at the time of the assault with information about the attacker’s identity. The two said the attacker resembled a homeless man they knew, prosecutors said.

Judge Anita Josey-Herring ruled that the information should have been given to the defense before Dorsey’s initial trial. She ordered prosecutors to give her weekly reports on their status in locating and interviewing the witnesses. And she scheduled a follow-up hearing for Wednesday to investigate details of how and when the information was released.

“This information should have been turned over. The question is whether this was intentional or unintentional,” she said.

The Post notes that the judge praised the new prosecutors on the case for finally turning over the information about the witness statements, but noted their predecessors’ failure to turn over that information before the defendant’s initial trial – let alone so close to his retrial – was a “not insignificant” concern of the court. The retrial has been put on hold pending further investigation of the matter by Judge Josey-Herring.

We will continue to look out for other cases involving late disclosures. Please send tips to openfilewebsite@gmail.com.



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