The Champion

May 2013 , Page 46 

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Faces of Brady: The Human Cost of Brady Violations

By Tiffany M. Joslyn and Shana-Tara Regon

Fifty years ago in Brady v. Maryland,1 the U.S. Supreme Court recognized the constitutional importance of providing a person accused of a crime with any and all favorable information that might affect the case. This decision established certain constitutional obligations for prosecutors during the pretrial information-sharing process known as “discovery.” Unlike discovery in civil cases, where the rules require that all parties get equal access to the same information, criminal discovery all too often is guided by prosecutors’ exceedingly narrow reading of the requirement established in Brady that the government disclose all favorable information to the defense. The failure to satisfy Brady obligations presents an obvious risk of conviction of the innocent and puts a significant financial burden on the accused. Yet such failures are commonplace. These are the stories of real people whose lives were dramatically harmed by the government’s failure to comply with the constitutional demands of Brady.

Michael W. Morton

On August 13, 1986, Michael Morton’s life took a tragic turn.2 Not only did Morton lose his wife in a horrific act of violence, but that day was the first in a deeply disturbing chain of events that ripped his family apart and, ultimately, culminated with Morton spending 25 years of his life behind bars for a crime he did not commit — the murder of his wife Christine Morton. Although it was DNA evidence confirming Morton’s innocence that resulted in his official exoneration in December 2011, the postconviction DNA litigation unveiled information even more disturbing than the conviction of an innocent man. Prosecutors obtained the conviction by repeatedly abandoning their constitutional obligations under Brady.

Eleven days after witnessing his mother’s ghastly murder, Eric Morton, the three-year-old son of Michael and Christine, shared what he witnessed with his maternal grandmother, Rita Kirkpatrick. Despite the trauma from witnessing this event, Eric was able to describe the crime scene and murder in great detail. He stated that a “monster,” not his father, attacked his mother. In fact, the young boy explained that his “Daddy” was “not home” when it happened. Eric’s grandmother brought this information to the police and it was recorded in the notes of lead investigator Sgt. Don Wood. This information never made it into the hands of Morton and his defense team.

In fact, when the defense team raised the possibility that something was amiss, the prosecutors responded by providing the trial judge with a sealed file of Sgt. Wood’s notes and reports — a file that was lacking in several respects. The file did not include young Eric’s eyewitness account, and it did not include statements by the Mortons’ neighbors that a man in a green van had repeatedly parked on the street behind the Mortons’ home and walked off into the nearby wooded area. This critical evidence, providing material support to Michael’s defense that an intruder came into his home and brutally victimized his wife that day, was not only withheld from the defense but intentionally suppressed during the trial court’s discovery inquiry.

While Michael sat in prison for a crime he did not commit, Christine Morton’s actual murderer went on to take another life — Debra Master Baker in Travis County, Texas — in the same brutal manner. And while Michael watched his relationship with his son Eric grow distant and eventually fall into disarray, the district attorney who inflicted this miscarriage of justice on Michael — former District Attorney Ken Anderson — won election to the bench and is now Judge Ken Anderson. In February 2011, another Texas judge ordered a formal “Court of Inquiry” to determine whether Judge Anderson’s misconduct during the Morton case warranted its own criminal action. During this rare legal proceeding, Michael explained that although he does not want “revenge” or “anything ill” for Anderson, he realizes “that there needs to be accountability” because, “[w]ithout that, every single thing falls apart.”3 In his April 19, 2013, probable cause order, the judge presiding over the inquiry wrote: “This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and life sentence.”4 

Michael Zomber

An antique firearms dealer, Michael Zomber,5 lost two years of his life in prison and over five years fighting for his innocence after prosecutors withheld letters contradicting the testimony of the government’s key witness in violation of Zomber’s constitutional rights. In 2003, Zomber was charged with conspiracy to commit mail and wire fraud based on three letters he wrote to induce another collector of antique firearms to purchase some antique firearms at allegedly inflated prices. The collector was the government’s primary witness and Zomber’s conviction rested almost entirely on the collector’s testimony on the value of the guns. It was only after the trial concluded, however, that letters written by the collector, contradicting his testimony about the value of the guns, came to light. The prosecutors had this evidence in their possession before the trial, but they never disclosed it to the defense.

In overturning Zomber’s conviction and ordering a new trial, the Third Circuit Court of Appeals explained that “it [is] no stretch to believe that a cross-examination of [the collector] with the benefit of [the withheld] letters may have seeded reasonable doubt in the minds of one or more jurors. …” After serving more than half of his original sentence and paying more than $1 million in legal fees, Zomber regained his freedom when the government dismissed the charges against him in exchange for his agreement not to seek sanctions against the government for their flagrant violation of his constitutional rights.

Lindsey Manufacturing

Companies facing criminal charges rarely go to trial, but Lindsey Manufacturing President and CEO Keith Lindsey and Vice President and CFO Steve K. Lee took the trial risk and mounted an aggressive defense,6 on behalf of themselves and their company, that lifted the veil on numerous violations of their constitutional rights. The Lindsey defendants were charged and ultimately convicted of multiple violations of the foreign bribery statute (FCPA). In a lengthy post-trial order, however, U.S. District Judge Howard Matz described this case as an “unusual and extreme picture of a prosecution gone awry.” The judge threw out all the convictions and banned the government from retrying the case. Occurring over a three-year period, the misconduct included the intentional withholding of several grand jury transcripts evidencing the serious flaws in the investigation and substantially undercutting the government’s case. Judge Matz characterized these transcripts as the “most complete and compelling evidence that the government investigation had been tainted” and explained that without the transcripts the defense was severely hamstringed. Despite all this, the Lindsey defendants were able to fight for their innocence and protect their rights. But the successful defense of these individuals and their company came at great cost.

Antonio Lyons

Prior to being put on trial in 2001 for crimes including cocaine trafficking, Antonio Lyons was a respected Florida businessman. A jury convicted him and he spent three years in jail. By reading the facts as laid out in a 2010 opinion by U.S. District Judge Gregory Presnell, one could conclude that Lyons was a model citizen.7 

A college graduate who had never been in trouble with the law, Lyons owned a clothing store and a nightclub. He was viewed in the community as a leader and a role model, especially for his work with programs for low-income children.8 At trial, prosecutors did not tell the defense about the evidence that could have discredited the 20 prison inmates who testified against Lyons. The government promised some witnesses an early release if they implicated Lyons. One witness told the FBI that he had been buying five kilograms of cocaine face-to-face from Lyons every two weeks for three years. This witness, however, had difficulty identifying Lyons in a photo lineup. The defense asked for reports, notes, and taped conversations involving this witness, but the government told the court that the documents were not in its possession and that the taped conversations had been destroyed. The government’s statements were false, and the material requested by the defense did include Brady material.

Six years after his release, as part of proceedings brought by Lyons seeking damages for the government’s wrongful conduct, Judge Presnell granted Lyons’ motion for a certificate of actual innocence.9 

William and Corinne Jean Dollar

In May 1997, prosecutors charged licensed firearms dealers William and Corinne Jean Dollar with unlawfully facilitating “straw man” purchases of guns, i.e., lawful sales made with knowledge that the guns would be unlawfully resold to individuals who could not legally purchase them.10 One year later, shortly before trial and after repeated requests by the defense for disclosure, the defense was inundated with several documents that the prosecutors should have provided months earlier. Concluding the government “had failed to timely produce Brady materials,” the court continued the trial for another four months and yet, after the lengthy continuance and a full trial, the prosecutors still had not turned over everything. For example, the government put two of its key witnesses on the stand without ever providing to the defense statements by these witnesses that contradicted their testimony and information about the plea deal made with one of the witnesses. In another instance, the prosecutors only produced the written statements of a witness the evening before he took the stand, forcing the defense to scramble as it sifted through the evidence.

The first time it came to light that the prosecutors failed to disclose evidence favorable to the defense, the trial court postponed the trial. However, when it was discovered after the trial that prosecutors still had not fully complied with their constitutional disclosure obligations, the court dismissed all the charges and prohibited the government from trying the Dollar siblings anew.

When U.S. District Judge U.W. Clemon dismissed all the charges and refused to give the government another chance, he wrote: “From the outset of this case, defense counsel have been unrelenting in their effort to obtain” evidence from the government potentially helpful to the defense, and the government’s “general response has been to disclose as little as possible, and as late as possible.” With the prosecutors trampling on their constitutional rights at every turn, it took the Dollar siblings nearly two years of fighting for their innocence before they were ultimately exonerated.

Dr. Ali Shaygan

For the last five years, Dr. Ali Shaygan has been fighting to restore his professional reputation and to receive compensation for the damage the government inflicted upon him through a series of constitutional violations in its unsuccessful attempt to prosecute him for unlawfully dispensing prescriptions.11 

Dr. Shaygan came under investigation in 2007, was indicted on 141 counts in 2008, and his entire defense team was inappropriately investigated prior to trial. The jury ultimately acquitted the doctor on all counts, but not before, at the government’s request, two informants secretly recorded conversations with the defense team and shared the recordings with the government. Although these two informants later testified against Dr. Shaygan, the prosecutors withheld all information, notes, and an informant agreement related to these recordings. The recordings only came to light because one informant accidentally mentioned them while testifying.

U.S. District Judge Alan S. Gold described the events surrounding Dr. Shaygan’s prosecution as “profoundly disturbing” and, in a sharply worded order imposing sanctions on the government, chastised the prosecutors for “knowingly and willfully disobeying” court orders, failing to comply with their discovery obligations, and engaging in “unethical behavior not befitting the role of a prosecutor.” The government successfully appealed that order, and the U.S. Supreme Court declined review, leaving Dr. Shaygan unable to be made whole by the justice system despite proving his innocence at trial.

Sen. Theodore ‘Ted’ Stevens

Theodore Fulton “Ted” Stevens12 served in the U.S. Senate for over 40 years, from December 1968 to January 2009. He was the longest-serving Republican senator, holding the position of majority whip of the Senate twice, serving as president pro tempore of the Senate once, and being only the third senator to hold the title of president pro tempore emeritus. Despite this lifelong commitment to public service, Sen. Ted Stevens did not end his career with the dignity traditionally afforded a cherished public servant. Rather, his service was taken from him, along with his reputation, through a destructive miscarriage of justice.

On July 29, 2008, during his re-election campaign, a federal grand jury indicted Sen. Stevens on seven counts of criminal ethics violations. Maintaining his innocence and attempting to clear his name prior to Election Day, the senator unsuccessfully invoked his right to a speedy trial by jury. On Oct. 27, 2008, the jury returned a verdict of guilty on all counts and, approximately one week later, the Alaska electorate replaced their senior senator with his challenger. It was only after this electoral defeat, and shortly before his tragic passing, that Sen. Stevens was finally exonerated.

From the start, this prosecution was permeated with government misconduct, making it impossible for the senator to receive a fair trial. During a pretrial interview, for example, the government’s star witness, Bill Allen, stated that he believed Stevens would have paid construction bills if they were sent to him. This statement was crucial evidence for the defense, as the senator’s knowledge of and intent to pay construction bills was the main issue in the case. The prosecutors did not, however, give this statement to the defense. Instead, they covered up its existence and procured a new and inconsistent statement from Allen to turn over. This fact not only demonstrates that the prosecutors egregiously violated their constitutional obligation to disclose exculpatory evidence under Brady, but it suggests that they knowingly allowed their star witness to commit perjury during his trial testimony.

Further, during the trial, the prosecutors knowingly introduced false business records on the cost of the disputed construction, suppressed exculpatory statements made by renovation foreman Rocky Williams during pretrial interviews, and refused to give the defense grand jury testimony by Williams in which he reiterated the exculpatory statements. Specifically, Williams repeated statements that fully corroborated the defense that Stevens paid for all the costs of the renovation and did not intentionally file false financial disclosure forms. And yet, the prosecutors intentionally failed to record such statements in their notes of the pretrial interviews and represented that the grand jury testimony by Williams was not “material” and therefore need not be turned over to the defense. The prosecutors then sent Williams back to Alaska — making him completely unavailable to the defense — without informing either the defense or the court of their action.

The prosecution’s Brady violations were not limited to this material exculpatory evidence; the violations also included the unlawful suppression of material impeachment evidence. Specifically, the prosecution withheld FBI notes relating an interview with Bambi Tyree, a child prostitute who had a sexual relationship with Allen when she was 15 years old. The notes did not merely discuss the relationship between Allen and Tyree. Rather, the notes revealed that Allen asked Tyree to sign an affidavit in which she falsely stated that she and Allen had never had sex. The prosecutors not only denied knowledge of these issues, but they concealed the documentary evidence of Tyree’s admission that she lied under oath at Allen’s request. The prosecutors knew the value of this impeachment evidence — it would have completely undercut the credibility of star witness Allen — and suppressed it accordingly.

These are just a small portion of the egregious Brady violations and instances of misconduct committed by the experienced prosecutors in this case. It was only after a whistleblower pulled back the curtain on this appalling behavior that the senator’s conviction was dismissed.

Conclusion

These stories, and all those left untold, make it clear that the time for discovery reform is now. In case after case, prosecutors have failed to discharge their constitutional obligation under Brady, whether as a result of intentional tactical decisions, negligence, or a misunderstanding of the obligation. The need for discovery reform creating clear and meaningful standards governing the prosecutor’s constitutional duty to disclose any and all evidence favorable to the defendant has never been more urgent.

Notes

  1. Brady v. Maryland, 373 U.S. 83 (1963).
  2. Ex Parte Morton, No. AP-76663 (Tex. Crim. App., Oct. 12, 2011).
  3. Chuck Lindell, Lawyers Spar Over Documents in Anderson Inquiry, Am. Statesman, Feb. 4, 2013, available at http://www.statesman.com/news/news/anderson-court-of-inquiry-set-to-begin/nWFRp/.
  4. In re Honorable Ken Anderson (A Court of Inquiry), Probable Cause Order, at 13;Cause No. 12-0420-K26 (26th Jud. Dist. Ct. Williamson Cty., TX, April 19, 2013) https://docs.google.com/file/d/0B6HJLeMEu3hlal9tN21kRDVFelk/edit.
  5. United States v. Zomber, 299 Fed.Appx. 130 (3d Cir. 2008).
  6. United States v. Aguilar et al., Case No. CR-10-1031(A)-AHM, (C.D. Cal. 2011); also see http://abovethelaw.com/2011/12/benchslap-of-the-day-what-not-to-do-if-youre-a-prosecutor/.
  7. United States v. Lyons, 726 F. Supp. 2d 1359 (M.D. Fla. 2010); read the USA Today article at http://usatoday30.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm?loc=interstitialskip; see alsoUnited States v. Lyons, 352 F. Supp. 2d 1231 (M.D. Fla. 2004).
  8. United States v. Lyons, 726 F. Supp. 2d 1359, 1360 (M.D. Fla. 2010).
  9. Id. at 1369.
  10. United States v. Dollar, 25 F. Supp. 2d 1320 (N.D. Ala. 1998).
  11. United States v. Shaygan, 652 F.3d 1297 (11th Cir. 2011), petition for cert. denied, 133 S. Ct. 609 (U.S. Nov. 13, 2012) (No. 12-44); also see http://www.scotusblog.com/case-files/cases/shaygan-v-united-states/.
  12. In reSpecial Proceedings, Case No. 09-mc-198 (D.D.C. 2012).

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