Articles Posted in Discovery

Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective,

By D. Kim Rossmo and Joycelyn M. Pollock.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

Friend and colleague draws attention to McGee v. McFadden, a petition for a writ of certiorari to the U. S. Supreme Court.

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United StatesUnited States v. BagleyBrady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

More information, including the petition at SCOTUSBlog here.

Here is a link to a few cases of interest that were provided me last week at the 49th VACLE Criminal Law seminar.

Virginia is in the Fourth Circuit which, I believe, has a reputation as slightly conservative leaning.

United States v. Abdallah, ___ F.3d___ (4th Cir. 18 December 2018).  Code 45 Alumni and friend Jim Wynn is one of the panel members.  This case involves two issues: invocation of the right to silence and the all-important Brady issue.

I have always argued for full and early discovery in court-martial cases.  How can you defend someone when discovery is delayed or held-back.  And how can you make a properly considered judgment on a PTA or not.

“The Right to Evidence of Innocence Before Pleading Guilty,” on SSRN. Here is the abstract:

George Alvarez, a ninth grade, special education student, pleaded guilty to assault of a peace officer in Texas. Four years into his sentence, Alvarez learned that the State had suppressed a video of the incident that proved his actual innocence. Alvarez claimed that the city violated the Brady doctrine by failing to disclose material exculpatory evidence. In rejecting his claim, the Fifth Circuit concluded that “case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” Given that 95% of convictions are secured through guilty pleas, such an interpretation of Brady means that few defendants are entitled to evidence of their innocence before being convicted.

I, currently, ask for the following as a minimal initial discovery request.

Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner.  This includes but is not limited to Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked.  The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue.  In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.

We can expand the initial request as more information comes to light.  I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

ACCA is back online to the public.

On 27 March the court decided United States v. Ellis, a case in which:

Appellant asserts that the government’s failure to provide a copy of the accident report was a disclosure violation entitling him to relief on appeal. Appellant assigns both constitutional and non-constitutional error. We address both. In so doing, we address when a law enforcement investigation is separate from the investigation into the charged offense under Brady v. United States, 397 U.S. 742 (1970). We also discuss what constitutes a “specific request” for disclosure under Rule for Courts-Martial [R.C.M.] 701(a), triggering a heightened standard of review.

As we see frequently, texts and messages on cellphones can be important evidence in a case.  Most of the time the MCIO’s merely got the CW to provide a screenshot and otherwise cherry-pick what they want to take as evidence in the beginning.  Of course the cherry-picking is in favor of the CW and they ignore what might be Brady-plus material.  True, I’m starting to see more MCIO’s do a Cellbrite extraction, which is good.

United States v. Pham from the NMCCA teaches us that we need to be precise in what we ask for when we are seeking the CW’s phone.

Here, the CW “voluntarily provided her cell phone, a Samsung Galaxy S-IV, to NCIS for forensic examination. NCIS investigators performed a logical extraction of the phone and returned it to PI the same day. In response to a January 2016 defense discovery request for a copy of the physical extraction” the defense got “a logical extraction performed 11 months earlier.”

All current rape and serious sexual assault cases in England and Wales are to be reviewed “as a matter of urgency” to ensure evidence has been disclosed.

Director of Public Prosecutions Alison Saunders warned the review could see “a number of cases” dropped.

It comes after the collapse of several rape trials because evidence had not been shared with defence lawyers.

[V]iolations of Brady are the most recurring and pervasive of all constitutional procedural violations, with disastrous consequences: innocent people are wrongfully convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful legal and ethical enforcement and accountability has a corrosive effect on the public’s perception of a justice system that often appears to be arbitrary, unjust, and simply unreliable.

Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L. Rev. 13, 15 (2007).

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