Louisiana is often featured on the Open File. The jurisdiction is a hotbed of prosecutorial misconduct, and compelling stories emerge from it with regularity. In 2016, we wrote:
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.
The core recurring issue is that Louisiana’s courts fail to meaningfully enforce Brady and its progeny. Despite multiple instructive U.S. Supreme Court decisions in Louisiana cases, the state judiciary continues to fumble the ball. The case Brown v. Louisiana that we highlighted in that earlier post reveals that the Louisiana Supreme Court has not only failed to grasp important questions about the materiality doctrine, but also does not possess a defensible understanding of whether suppressed evidence is even “favorable” to the defense.
Now, the Louisiana Supreme Court has finally resolved an important ethical question about prosecutors’ duty to disclose exculpatory evidence, and it did so in a way that almost completely strips the professional disciplinary body of its power to address prosecutorial abuses. The question is whether prosecutors violate their ethical responsibilities when they fail to disclose exculpatory evidence. Rather than make a straightforward assessment based on whether favorable evidence was disclosed before trial, the court decided that the ethical issue raises the same queries as a defendant’s claim that the violation of his due process rights requires a new trial.
Louisiana criminal cases with these due process (Brady) claims are not immediately reversed if a defendant proves that the State has suppressed evidence; instead, courts ask whether there is a reasonable probability that disclosure of the hidden evidence would have altered the outcome of the prosecution. This is the materiality question. But, the materiality answer should not be understood as a decision about whether unethical suppression occurred. It should instead be understood as a specific resolution of whether reversing a conviction or sentence is the appropriate remedy given all of the circumstances in the case. (To be fair to the Louisiana judiciary, the U.S. Supreme Court has not made the distinction between unethical suppression and materiality clear at all, leaving courts around the country grappling with uncertainty about when or whether there is a “violation” of Brady. See pages 17 to 20 of this brief for more about the need for clarity on this issue.)
The question of professional ethical obligations is different from the question criminal courts must answer when reviewing a defendant’s constitutional claims. Rule 3.8(d) of The Rules of Professional Conduct (fully adopted in Louisiana) sets out that:
“The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”
On its face, this rule indicates that disclosure obligations are broader than those upon which appellate courts reviewing Brady claims focus. The prosecutor is obligated to turn over “all evidence or information” that is exculpatory, not only that exculpatory evidence that is “material.” In responding to the bar complaints that were filed in the Brown litigation, the Louisiana Bar’s Chief Disciplinary Counsel explained that he does not believe that “materiality should be or is a factor for analyzing prosecutor conduct under 3.8(d).” In other words, on this view, a prosecutor’s failure to turn over exculpatory evidence—no matter whether that evidence would have a material effect on a trial’s outcome—would constitute a professional ethical violation. Even if a court denies a defendant’s request for a new trial because it finds that the exculpatory evidence was not material, the Office of Disciplinary Counsel could still recommend professional discipline for a violation of Rule 3.8(d).
We noted that Charles Plattsmier, the Chief Disciplinary Counsel, deserved credit for adopting this appropriate reading of Rule 3.8(d). Unfortunately, the Louisiana Supreme Court squashed it a few days ago in the disciplinary case against Vernon Parish assistant district attorney Ronald Seastrunk. In a lead opinion authored by Justice Crichton (himself a former prosecutor), the court held that Rule 3.8(d) and the “similar duty outlined . . . [in] Brady” are “coextensive.” In adopting a position that was advocated by the Louisiana District Attorneys Association [LDAA], the court “decline[d] to impose inconsistent disclosure obligations upon prosecutors, thereby eliminating confusion.”
The prosecutors’ claim that determining whether a piece of evidence is “favorable” or “tends to negate the guilt of the accused or mitigates the offense” is somehow more complicated than forecasting whether such evidence would be “material” at a trial is misleading. The only way that claim could be true is if prosecutors sought to answer the materiality question before answering the favorability question (after all, how else could it be more complicated to answer one question rather than that same question and an additional one?). That approach—the materiality-focused one—encourages suppression, not disclosure (see Part III of this excellent paper for more on this point).
Broken as the Brady enforcement system is in Louisiana, it is no wonder that the District Attorneys Association advocated for tying the ethical rule to criminal case outcomes. After all, the odds of a reversal due to Brady are slight. Reversals only seem to happen when the U.S. Supreme Court gets irked enough with prosecutorial misbehavior or judicial intransigence to grant certiorari on Louisiana Brady cases. Prosecutors may enjoy other strategic benefits as a result of the newly-adopted interpretation of Rule 3.8(d) as well. Now a judge evaluating a Brady claim will realize that reversing the defendant’s conviction may also lead to professional discipline for the prosecutor. Given that many judges are reluctant to challenge prosecutors specifically or to instigate professional disciplinary proceedings, she or he may be less likely to grant a reversal. In persuading the Louisiana Supreme Court to conflate Rule 3.8(d)’s disclosure command with Brady materiality, the LDAA squeezed power out of the hands of disciplinary counsel and put it in the criminal courts, a place well-known to be safe for the state’s prosecutors—even the unethical ones.