An interesting justification for a Brady violation

A major piece in the New York Times magazine by Emily Bazelon dissects the conviction of Noura Jackson for the murder of her mother.

The accused’s DNA was excluded as a match for any of the three DNA profiles found at the scene and there was no physical evidence linking the accused to the killing.

The accused was convicted on circumstantial evidence.

Five days after the verdict, a note passed to prosecutors during trial, by Andrew Hammock, the only witness who puts Jackson at the scene, is disclosed. He was ‘‘rolling on XTC.’’ Instead of immediately turning it over to the defense to use on cross, it was stuck inside a notebook and forgotten. Oopsie.

On Aug. 22, 2014, the Tennessee Supreme Court unanimously overturned Noura’s conviction. ‘‘It is difficult to overstate the importance of this portion of Mr. Hammack’s testimony,’’ the justices wrote, pointing out that no DNA evidence linked Noura to the crime scene and that the ‘‘blood of unknown individuals’’ was ‘‘present in the victim’s bed.’’

Local news asked Weirich what she thought of Bazelon’s story, which she claimed she hadn’t yet read. Weirich responded.

“To push an agenda of pro-crime, anti-police, anti-prosecutors,” she said.

See more about this on SimpleJustice blog.

Brady violations are more common than thought, IMHO.  The legal system often resolves a Brady violation on appeal as minor, not deliberate, and non-prejudicial.  That may be true, especially where there is an inexperienced prosecutor.  But when experienced prosecutors violate Brady, one wonders what level of knowledge and intent is involved.  The prosecutor has a constitutional duty to disclose Brady material to the defense at a time when it can be evaluated and possibly used at trial, not after.

For a recent military example of how Brady and other discovery issues can arise in a court-martial, check out:

United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2014).

United States v. Coleman, 72 M.J. 184 (C.A.A.F. 2012).

United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2010).

I filed a brief amicus curia on behalf of the NIMJ in Behenna, along with some excellent law students.  Give us a bell at 703-298-9562 or drop an email to if you have a case in which you think there are some Brady issues affecting the trial or a court-martial appeal.

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