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Prosecutors’ withholding of exculpatory information until the eve of trial in two recent cases in two different states serves as an important reminder that the tactic is commonplace. In both cases, the stakes couldn’t be higher, with defendants going to trial on murder charges. Rather than seeking to protect the integrity of the potential convictions, prosecutors chose to skirt their ethical and constitutional obligations to win.

In the first case, out of Iowa, defense attorneys for Jason Carter are asking the trial court to grant a motion for judgement of acquittal following revelations that the State had waited until the middle of trial to disclose over a hundred pages of new documents and two gigabytes of written reports and recordings, including potentially exculpatory “emails deleted by a detective that referred to leads and suspects.”

According to the Des Moines Register, County Prosecutor Ed Bull tried to duck the allegation of wrongdoing by suggesting that Carter’s attorneys could have filed a Public Records Act request to get a hold of the exculpatory emails.

Bull said Carter’s defense team could have filed a records request for the emails a while ago but did not. Branstad said they did file a request but it was denied because of the ongoing investigation; she argued the emails should have been disclosed when the defense asked for any exculpatory information.

In arguing for the motion for judgment of acquittal, Branstad said there was no forensic evidence implicating Jason Carter in his mother’s killing. Prosecutors lacked a motive or proof of a premeditated slaying, a requirement for a first-degree murder charge.

“It is such a thin line of evidence,” she said.

In New Jersey last month, attorneys for two men facing murder charges alleged that despite New Jersey’s open file law, prosecutors at the Hudson County Prosecutor’s Office withheld exculpatory evidence for more than two years. The evidence involves contradictory eyewitness statements and one prosecutor admitted that the delay was “a big error.”

The Jersey Journal notes that the last-minute disclosure is part of a broader pattern:

This is the third time in a year that the HCPO has been criticized for sitting on evidence considered to be exculpatory. The New Jersey Supreme Court in December ordered a new detention hearing for a man because prosecutors did not give his attorney all the statements they had…

Newly discovered evidence came up during an April 2018 New Jersey Supreme Court hearing on gun charges facing Jersey City man Tariq Gathers. Three days before that hearing, the HCPO gave Gathers’ attorney two-year-old lab results showing no usable DNA was found on a gun that prosecutors alleged Gathers used in August 2015.

The December case involved murder charges facing Shaquan Hyppolite. The state Supreme Court ruled Hyppolite was entitled to a new detention hearing because during the first hearing prosecutors relied heavily on the statement of a witness who identified Hyppolite as the killer, but did not turn over a contradictory statement made by the same witness hours after the shooting.

The same prosecutor, Assistant Prosecutor David Feldman, was involved in two of the three recent incidents where evidence was withheld.

We have previously noted that DA’s offices often get away with the last-minute disclosure of exculpatory evidence, as in the recent federal case out of Texas, U.S. v. Swenson, when the Fifth Circuit decided that “better late than never” was a sufficient principle by which to uphold a criminal defendant’s indictment. We have also discussed why this tactic is so problematic:

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.

And yet, as with all prosecutorial wrongdoing, a lack of accountability ensures that DA offices need not change their approach. Until judges are willing to call out late disclosures for what they are – violations of Brady v. Maryland – and punish them, there is no incentive for prosecutors to act differently.

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