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In a classic example of the abuse of jailhouse informant testimony, the Atlanta Journal Constitution reports that the Georgia Supreme Court has overturned the 2007 arson and felony-murder convictions of a Haralson County man.

Justin Chapman was charged with setting a fire at his duplex in Bremen, a fire in which an elderly neighbor died, supposedly in retaliation for his landlady telling him he had to move.  The main witness against Chapman was Joseph White, who shared a jail cell with Chapman in the days immediately following his arrest.

At trial, White testified that Chapman had confessed to him about setting the fire.  He also testified that he had neither sought nor received any deal for leniency from the prosecutor on the charges he himself was facing.

But as the court’s decision makes abundantly clear, this was a lie.  “It is uncontroverted that at the time White testified, several items of favorable evidence in the State’s possession had not been disclosed to the defense.”  The first item was a “a video recording of an interview…between White and the district attorney who prosecuted the case” in which they discussed White’s “seeking assistance” with his case.

Such a clear Brady/Giglio violation is depressingly familiar enough, but the prosecutor went still further.  White had told him that another man, William Liner, had also been in the jail cell and could corroborate that Chapman had confessed to the arson.

A few days before Chapman’s trial was set to commence, the prosecutor went to interview Liner…Liner told the prosecutor he never heard Chapman confess.  In addition, Liner had knowledge that White was actively seeking help with his then-pending charges.  In response to these revelations, the prosecutor cancelled the order requiring Liner’s production at trial and Liner never testified.  The prosecutor never disclosed Liner’s statements to the defense.  Because Liner’s statement’s would have contradicted White’s testimony that Chapman confessed and that other people heard Chapman confess, and would have contradicted White’s testimony that he was not seeking help with his charges, the defense was denied the opportunity to impeach White.

And yet still, this was not enough.  Completing a small trifecta of suppression, the prosecutor (unnamed in the opinion), engaged in another sleight-of-hand with important documentary evidence.

White had written a letter to his pastor describing Chapman’s confession, a letter the pastor was to give to the prosecutor.  It was accompanied by a cover letter.  On the second page of the cover letter, White advised his pastor to “hold off on giving my statement to police.  I want to see what’s going on for a few days.”  The prosecutor did in fact disclose the letter and the cover letter to the defense during discovery.  But he removed the second page.

This evidence [the comment on the second page] contradicted White’s trial testimony that he went to police immediately with details about the arson, as well as undermined his testimony that he was not seeking help from authorities with his own charges.

Trying to cover his tracks, once at trial, the prosecutor “admitted the original document, containing both pages of the cover letter; but he proffered it through the testimony of an investigative officer after White’s trial testimony and after White had been released from his trial subpoena.  Defense counsel assumed the document admitted at trial was the same document that had been produced to her via fax and did not closely examine the trial exhibit.”

In sum, then, the state in this case solicited the lies of a jailhouse informant on the stand; suppressed a witness who would have contradicted that informant; and hid documentary evidence that the informant was lying about the sequence of events leading to his testimony.

The court’s decision in this case is a mere seven pages.  It contains no broad statements of principal, no high rhetorical condemnation of the prosecutor or the corrupt system of jailhouse informants.  In fact, it contains no condemnation at all.  Not even a chastisement.  It recites the facts, states the Brady standard, and applies it in a more or less mechanical fashion.

The fact that the state of Georgia violated a citizen’s constitutional rights and held him in prison for eight years as a result of a prosecutor’s apparently deliberate effort to cheat him of a fair trial through a broken means of trying suspects is treated as an essentially ministerial matter.

The court here is not unusual in this reticence.  When the tiny number of Brady violations that are actually litigated, much less held to be material, are recorded in written decisions, this is most often how they are treated–as part of the system, regrettable perhaps, but ordinary.  This is evidenced as much by what courts don’t say as what they do.

In trying to increase accountability for prosecutors, we often highlight the decisions that do contain those broad statements and condemnations because they help sound the alarm about the prosecutorial misconduct that 9th Circuit Judge Kozinski has now famously described as an “epidemic.”

But it is worth remembering just how routine what we discuss here is.  The violations are utterly commonplace.  The judicial review of them is rare.  Decisions in favor of the defendant are rarer still.  And even when these come, they are most often couched in language as bland as that used in a case of statutory interpretation.  It is but one instance of the larger tyranny of abstraction that runs through the criminal law.

It is the normalcy of all this that must end.

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