Criminal

Brady Prosecutor’s Duty to Disclose Exculpatory Mitigating Evidence Part 4

The other thing that you can look for are; comments that the prosecutor makes to jurors. And we heard earlier a speaker talk about in one of the breakout rooms prosecutors making statements that prejudice the jury and for future pools that you know,” Boy, if you have heard the rest of the evidence that we had, boy howdy you know, you would’ve had a different impression here.” And that’s what kind of open the door to things in the Michael Morton case. Because the lawyers said and I’ve got, I spend a little time on this one. The reason that Michael Morton is out today is because Bill Allison and Bill White kept sensing that something wasn’t being told to them. They sensed it because there was this single focus on their client, the exclusion of everyone else.

There was this haste to prosecution. And I, in all these cases where we find Brady and where we sense that it’s going to occur, there’s always this immediate vilification of the defendant, they’re just held in, they’re just very emotional about it and just know their right from the get going and there’s just no room for discussion. And that’s how it was in Morton. And Bill White and Bill Allison filed a motion for Brady and then they got a rule. And then they asked the judge to ask the prosecutor on the record,” have you provided all favorable evidence, to the defense? “And “do you have any favorable evidence to provide?” “No, I don’t!” and so, you know just how having an automatic discovery rule which is fabulous, isn’t enough as you heard this morning in the legislative update lecture. You need to make a record of what’s been ordered, what’s been provided, what you’ve asked for, what the court has ordered to be provided? Or else you have nothing for appellate review. Michael Morton wouldn’t be out today if those words wouldn’t keep scratching in the way.

Even after receiving that order and having the alleged Brady sealed in the appellate record, we now know the prosecutor did not provide the Brady evidence even to the court. It wasn’t in the appellate record in the sealed envelope. And they kept scratching away. And after the jury came back, Bill Allison heard one of the prosecutor say to the juror’s boy, “you know if you’d seen all the other evidence we had, there was this much reports” and he’s thinking,” hmmm, didn’t see this much reports. I only saw you know a few items. You know, what the heck he is talking about! You file a new motion for the trial, and memorialize that comment” and you know 25 years later I mean, Bill went to Barry Sheck and asked him to become involved.

Barry and Nina asked john Reilly, a civil, mal-practice lawyer who you awarded a spear of justice to award to last year for working on it for 8 years on innocence claims. And then, Brady evidence tends to accumulate. It wasn’t just that there was another suspect case in the joint; Allen Norwood. It wasn’t just that his DNA was on the Bloody Bandana found out behind the place. It was also that there were neighbors who saw suspicious people with a club; and this one was clubbed to death. It was that the 3 year old, had observed the murder to took place and he told his grandmother, the deceasing’s mom about it. It was just one thing after another, all this hidden from you! And the lawyer just kept scratching a way until finally, it was revealed! So you know he being the ear outs for hints that Brady might occur. Sometimes, it’s because you see a, you get a case locally, hometown and prosecutor, after prosecutor’s getting off the case and handing it off to someone else. That’s another hint that there’s Brady and it’s time to get really aggressive about pushing the envelope.

Also when test results and items don’t match! This one was a discovery I made during a writ hearing. I, the lawyers had been asking for this is a case in which a child died of sodium poisoning and it’s alleged the mother forced the sodium down his throat so this would have shown up in his stomach and so there was this test thing that showed that the gastric contents from the hospital was tested to see what his sodium level was and they said it was hospital, not his emergency room gastric content. And it turned out when I looked at the photographs, if you look at the prior slide it said,” D” you can kind of make it out on the left there, it’s supposed to be the gastric contents and “E” below it; this is supposed to be Zatarein spice and water.

And in the photo, the Zatarein spice is next to a cup turned backward where you can see that it says its “sample D” and the gastric contents is “Sample E” which is backwards from what the report says. And we were off to the races. It turned out this sodium content of the child’s stomach comprisable just to what my client said she fed this kid the same as Wendy’s Chili that was a 250 on the sodium content and hospital gastric content around that same level. So that you know, sometimes it falls out in your lap and this illustrates another point I want to make about Brady. Because in this case, I had subpoena the Emmy’s office and I had asked the DA’s office and I’d gotten full disclosure of the file, from that prosecutor who testified that she wasn’t aware they had this vomit and but her colleague did and so that’s a Brady violation and all that was going on. And yet, none of us knew that they had gotten the samples mixed up and it was more favorable then we realized, until these shook out because I subpoena the ME’s office 3 separate occasions. I did that because I thought someone was hiding something to me and lying to me on purpose. No! I traditionally do that, because whoever is filling the subpoena request that day may get it all, maybe get some of it, and someone might be trying to hide it as well. And they might not to be around that next time! But I’ve, in a number of cases had the Brady evidence fall out, after really, you know numerous times knocking at the same door. Much like it was in the Michael Morton case.

Francisco Hernandez

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