Disclosing Prosecutorial Misconduct

By Kreag, Jason | Vanderbilt Law Review, January 2019 | Go to article overview

Disclosing Prosecutorial Misconduct


Kreag, Jason, Vanderbilt Law Review


Introduction

Andre Hatchett was exonerated in 2016 after spending twentyfive years in prison for a murder that he did not commit.1 He proved his innocence and regained his freedom after a reinvestigation uncovered rampant police and prosecutorial misconduct in his case. The misconduct included the prosecution's failure to disclose evidence that was favorable to Hatchett in advance of trial in violation of Brady v. Maryland.2 For example, prosecutors withheld information that the only eyewitness to the crime initially identified someone other than Hatchett as the perpetrator.3

Terry Williams prevailed in his three-decade-long effort challenging his death sentence in 2017.4 Unlike Hatchett, Williams committed the murder in his case, yet he challenged his death sentence and ultimately proved that the prosecution violated Brady in his case as well. In Williams's case, the prosecution concealed evidence of the extensive history of sexual abuse Williams, a juvenile at the time, suffered at the hands of the man he killed.5 In vacating Williams's death sentence, the court recognized that the jury should have been provided the opportunity to consider this information when deciding whether Williams deserved the death penalty.

This Article explores how the criminal justice system should respond to Brady violations. It argues that the existing tools have proven insufficient.6 As such, it proposes adding a new option-the Brady Violation Disclosure Letter. The letter is a concise, clear statement memorializing the prosecutorial misconduct and its effect on the case. To be most effective, the letter should be sent to participants in the adjudicatory process-the jurors, witnesses, judge, prosecutor, and defense attorney from the original trial; the victim of the underlying crime; and relevant criminal justice organizations, including victims' rights organizations, the public defender's office, the local prosecutor's office, and the law enforcement agency that investigated the case.7 Publicly disclosing prosecutorial misconduct in this manner promotes Brady compliance, validates the interests of the range of people harmed by Brady misconduct, and increases transparency. It is also a flexible tool that can be implemented immediately without new laws, rules, or regulations.8 This flexibility is thanks to individual judges possessing sufficient inherent authority to implement this reform today.

Before exploring the details of this proposal, it is helpful to return to Hatchett's and Williams's successful Brady claims. The paths their cases weaved through the system give context as to why responding to Brady violations with a targeted public disclosure of the misconduct merits adoption.

The early signs of misconduct in Hatchett's case went unexplored. In the months after his conviction, a conflict forced Hatchett's first appellate attorney to withdraw from the case.9 The conflict was that another attorney in the same defense agency represented the prosecution's chief witness against Hatchett-the purported eyewitness who claimed to see Hatchett commit the murder.10 When the appellate attorney handed the case to new counsel, he referenced a deal the state's witness received for cooperating in Hatchett's case.11 Hatchett's trial attorney had suspected the state's witness received a deal but was unable to uncover evidence proving this at trial.12 The reference to a deal initially went unexplored, but it proved to be an ominous marker of what was to come.

By 2008, Hatchett secured representation from The Innocence Project, and he sought DNA testing of the physical evidence in his case.13 Hatchett's motion for DNA testing argued that the state's chief witness was not reliable, in part because of the likelihood that he received a deal in exchange for testifying.14 The DNA testing failed to conclusively prove Hatchett's innocence. Despite this, Hatchett persisted, focusing on investigating the possibility of a Brady violation. …

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