Even casual criminal justice observers know that Louisiana has a uniquely sordid history when it comes to prosecutorial misconduct. On multiple occasions—as recently as March of this year, in fact—the U.S. Supreme Court has reversed Louisiana convictions while reaffirming its long-standing position that the Constitution’s due process clause requires prosecutors to turn over exculpatory evidence to criminal defendants. In other words: Brady v. Maryland (1963) is binding precedent, not some faded text in a dusty casebook on the shelf or an aspirational statement of best practices. Despite the Court’s repeated pronouncements, it sometimes seems the message hasn’t reached its intended recipients. Like mail sent to New Orleans around the time of Mardi Gras, the duty to disclose exculpatory evidence has been lost in the Pelican State.
In June the U.S. Supreme Court is scheduled to conference yet another case from Louisiana, one which includes a misapprehension of Brady so bold it demands correction. The case, Brown v. Louisiana, offers a much-needed opportunity for federal guidance and enforcement for the Louisiana courts. Its background offers a fascinating look at some of the challenges of using professional responsibility standards to hold prosecutors accountable.
The intended recipients of Kyles v. Whitley, Smith v. Cain, and Wearry v. Cain—Louisiana’s prosecutors and state court judges—have again teed up a critical Brady issue for the nation’s high court. But, this time the central dispute is not the same one that has so often stumped state actors in the past: whether the exculpatory evidence prosecutors withheld was “material” to the outcome of the case. Instead it involves a doctrinally prior question: whether evidence prosecutors withheld was “favorable” to the defendant. If it sounds like this question should be much easier to answer than the materiality question, your instincts are correct. However, the Louisiana Supreme Court’s recent decision in State v. Brown falters on the favorability question, showing that the Court is not simply failing to progress in its view of Brady, but is backsliding.
What evidence did the State suppress? Brown was one of five men capitally charged for the murder of a prison guard named David Knapps that took place during an attempted escape. Each member of the “Angola Five” was separately tried. After his trial resulted in a death sentence, Mr. Brown discovered that the lead prosecutors had taken a statement from an inmate who informed them that another defendant had confessed that he and one of the other Five—not Brown—were responsible for deciding to kill and actually killing Captain Knapps. The post-trial discovery of this statement prompted Brown to request a new trial. The trial court agreed that the evidence was exculpatory and material to the jury’s death-sentencing decision, and overturned the death sentence, granting Mr. Brown a new sentencing phase. But, a court of appeal reversed that decision on materiality grounds. The Louisiana Supreme Court affirmed and expanded that ruling, holding that Mr. Brown was not entitled to a new sentencing phase, writing, “the statement simply does not exculpate Brown.”
The Supreme Court will soon consider whether to grant Mr. Brown’s petition for certiorari, which essentially asks whether the Louisiana Supreme Court’s opinion fundamentally contradicts Brady and its progeny. The answer to that question appears to be a definitive yes (a former Louisiana Supreme Court justice agrees). The co-defendant’s confession would have strongly supported Brown’s defense that he did not participate in the killing itself and would have demonstrated to jurors that Brown was far less culpable and therefore far less deserving of a death sentence. As the petition points out, “[t]his evidence was nearly identical to the evidence that was suppressed in Brady [v. Maryland].”
Beyond revealing that the Louisiana judiciary remains unable to comprehend (let alone enforce) Brady, Brown v. Louisiana presents a fascinating look at the relationship between decisions made by courts and by attorney disciplinary bodies. Attorneys who represented one of Mr. Brown’s other co-defendants filed a bar complaint against prosecutors Thomas Block and Hugo Holland. This defendant had been sentenced to life in prison in a trial and sentencing without the statement. Regular Open File readers may be familiar with Holland: he withheld multiple exculpatory witness statements in the murder trial of defendant with intellectual disability who was 16 years old at the time of the crime (and very well may be innocent), and he was fired from the Caddo Parish District Attorney’s Office for submitting false information to procure eight M-16 rifles for the prosecutor’s office. Moreover, the Louisiana Supreme Court in the capital case of State v. Hampton expressly ruled that Holland withheld “clearly exculpatory” evidence—the grand jury testimony of an eyewitness who identified Mr. Hampton’s co-defendant as the shooter in a botched robbery—but Holland continues to be a leader in the state District Attorneys Association. While the Louisiana Office of Disciplinary Counsel has done very little to punish unethical prosecutors over the years, it provided an intriguing response to the Angola Five complaint.
The ODC letter responding to the bar complaint first acknowledges the “sharp debate across the country” about whether Rule 3.8(d) of the Professional Rules of Conduct, which specifically governs prosecutors’ disclosure obligations, requires the disciplinary body to conduct an assessment of the materiality of the suppressed evidence. Charles Plattsmier, Chief Disciplinary Counsel for the ODC, wrote that he does not believe that “materiality should be or is a factor for analyzing prosecutor conduct under 3.8(d).” In other words, a prosecutor’s mere failure to turn over exculpatory evidence—no matter whether that evidence would have a material effect on a trial’s outcome—constitutes a professional ethical violation in Louisiana. Even if a court denies a defendant’s request for a new trial because it finds that the exculpatory evidence was not material, the ODC could still recommend professional discipline for a violation of Rule 3.8(d).
Despite this important stance, the ODC nevertheless determined it could not discipline Block and Holland at this time. ODC found its hands were tied both because of the finding that the evidence was not favorable and also because the same jurists who dismissed the statement’s favorability would be assessing the ethics complaint. The letter states: “Because the Louisiana Supreme Court has found, specifically, that the recorded statement at issue was not ‘favorable’ in the Brown matter, that legal determination pretermits the issue . . . . If the determination is that it is not ‘favorable’ . . . the failure of the prosecutor to disclose is not a violation of Rule 3.8(d) . . . .” And, “[b]ecause the same Court that would consider the potential ethics violation has already determined that the statement was not ‘favorable’, the filing of a disciplinary charge in this matter cannot be sustained at this time.”
As an amicus brief filed in support of Mr. Brown’s position by the Fair Punishment Project and several academic legal ethics experts explains, “[i]t turns out, perversely, that the Louisiana judiciary’s Brady rulings undercut the disciplinary process.” This is a crucial observation because the Supreme Court has claimed (in another case dealing with Louisiana Brady issues) that prosecutors will fulfill their ethical duties because “an attorney who violates his or her ethical obligations is subject to professional discipline . . . .” It turns out that claim is not supported, particularly where a judicial finding undermines the disciplinary board’s ability to even recommend professional sanctions. The amicus makes the point that Brown places the issue squarely on the Supreme Court’s shoulders: “minimizing the role of criminal courts in ensuring prosecutorial accountability has created a vacuum in which external oversight ceases to exist.”
Bottom line: in Louisiana, as elsewhere, judicial enforcement of Brady is the only way to truly ensure that prosecutors play by the rules.
The ODC letter provides some hope that, if faced with a different ruling, the board may actually hold Block and Holland accountable for their misdeeds. Indeed, it seems to acknowledge (if not invite) the possibility that the Supreme Court will intervene: “I recognize that the defendant may challenge this ruling [by the Louisiana Supreme Court] and that there exists the potential for a different outcome on this threshold issue [of favorability]. For that reason, I . . . reserv[e] the right for this office to reopen the matter should a different ruling relevant to the analysis be handed down.”
Perhaps ODC is pointing the finger because that’s the easy way out. After all, Louisiana’s ODC has done little to garner trust that it takes prosecutorial accountability seriously. The amicus brief notes that only one Louisiana prosecutor has ever faced professional discipline for violating Brady, and highlights the ODC’s failure to make any recommendations on a number of bar complaints filed almost five years ago. But, it deserves credit for taking a clear position in the Angola Five case. Now, its commitment to enforcing the ethical rules deserves to be properly tested. And, the only way that will happen is if we see some corrective action from the U.S. Supreme Court. Not only does Mr. Brown deserve a new and fair determination of his punishment, but Louisiana also deserves a system of accountability that does more than hide bar complaints in desk drawers and lets prosecutors hide exculpatory evidence without repercussion.