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Today, we take a brief look at a capital conviction in Florida that raises eyebrows. It is no secret to regular readers that death sentences often represent the prized result of prosecutions infected by State misconduct. In case after case after case after case from all over the country, we see a strong link between prosecutorial misconduct and the death penalty that appears to rest on at least three realities: (1) prosecutors press hard for the desired death sentence in what are almost always high-profile cases (see page 2 of this article for more on this point); (2) defendants at some stage in the process may push for meaningful discovery and potentially obtain the evidence that was suppressed before trial (this distinguishes capital cases from non-capital cases; when the death penalty is not at issue, defendants less frequently obtain post-conviction representation that can uncover misconduct); and (3) the District Attorneys most eager to put someone on death row also cultivate professional environments that tolerate or encourage misconduct. The case of Derrick Tyrone Smith, a man on Florida’s death row for a 1983 murder committed in Pinellas County, underscores this link. What stands out is that the prosecution suppressed at least seven pieces of exculpatory evidence, and the State relied on expert testimony that has been wholly discredited. Despite this bevy of undisclosed and unreliable evidence, the Florida Supreme Court recently affirmed Mr. Smith’s conviction and sentence.

The legal question upon which the Florida Supreme Court decided was a cumulative Brady materiality question: whether, if the State had disclosed seven separate pieces of exculpatory evidence, there was a reasonable probability of a different outcome. There was no lingering dispute about suppression. (In 2009, the federal Eleventh Circuit Court of Appeals noted that Mr. Smith brought “a car load” of prosecutorial misconduct claims involving Brady and Giglio, but it whittled down fifteen of them to six for a variety of procedural and technical reasons. Meanwhile, the defense had raised another Brady claim in the state courts through a successive post-conviction petition, and the post-conviction court found that the defense proved the State had suppressed even more exculpatory evidence.)

Capital cases are often complicated, and we will not belabor the facts here. Suffice to say, a great deal of the hidden evidence called the credibility of key witnesses in question. For example, the State kept the following information about a critical witness—eyewitness Melvin Jones—under wraps: he sought help from the prosecutor with the probation violation and grand theft charges against him; fearing arrest, he sought help from the prosecutor in regard to the sexual abuse allegations his daughter was making against him; and, police reports indicated that he had initially been considered as a suspect in 1983. For the Florida courts, this and more was not enough to require a new trial.

Piles of suppressed evidence were not the only problem with Mr. Smith’s conviction, however. It turned out that “expert” testimony several witnesses from the FBI gave at trial was false. Based on “comparative bullet lead analysis, [CBLA]” the witnesses testified that the bullet that killed the victim was “materially indistinguishable” from bullets found at the defendant’s uncle’s house. In evidentiary hearings in post-conviction, the defense established that the FBI has since concluded that CBLA “science” can, as Justice Pariente put it, “do nothing of the sort” of linking the bullet to the defendant that the experts claimed at trial.

While it is not clear whether the prosecutors knew at the time of Mr. Smith’s trial they were putting on junk science, it is clear now that junk science—like prosecutorial misconduct—plays a major role in producing wrongful convictions. And, prosecutors around the country continue to defend the use of all kinds of forensic evidence despite scientific agreement that some practices provide unreliable and inaccurate results. This incessant digging in of prosecutorial heels is reflected in policy discussions as well as judicial decisions in cases from years ago, like Mr. Smith’s.

The conclusion the Florida Supreme Court reached—that the suppressed evidence as a whole did not meet the materiality standard—is questionable. Justice Pariente “strongly disagreed with the majority” in her dissenting opinion. Even more troubling is the way the court dismissed the potential combined effect that the introduction of suppressed evidence and revelation that the State’s “scientific” evidence was false could have had on the verdict. The need to perform a cumulative analysis of the Brady evidence is a sensible command from the U.S. Supreme Court; isolating the junk science from that comprehensive assessment is problematic. While the Florida Supreme Court gave lip service to the idea that “the exclusion of the CBLA evidence” would not have probably resulted in an acquittal “even when . . . considered cumulatively with the seven Brady violations” in a single sentence, it provided no analysis to substantiate the determination.

Derrick Smith’s conviction and death sentence raise fundamental questions that courts generally do not ask and do not answer. For example, what does it mean for the justice system that the prosecution suppressed a striking range of exculpatory evidence rather than something more minimal like a single statement? How can courts trust prosecutors when they violate the continuing duty to disclose exculpatory evidence, even into post-conviction proceedings where such evidence is already explicitly at issue? Why do courts instruct jurors that they can disregard a witness’s testimony if they decide the witness is lying, but then embrace prosecutors’ claims even after the defense has proved that the State has lied? These questions hang in the air like a dense cloud of doubt. Doubt that the judiciary is appropriately policing prosecutors. Doubt that someone should be executed in light of such extensive prosecutorial misconduct. Doubt that Mr. Smith should even be under a conviction given the real weaknesses of the State’s case. Yet, the state courts have just greased the skids toward the execution chamber.

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