Criminal law cases at the U.S. Supreme Court
The U.S. Supreme Court heard arguments Tuesday in two criminal appeals, Arizona v. Johnson and Cone v. Bell. In Arizona v. Johnson the government is trying to increase officers' abilities to conduct Terry frisks, or pat downs for weapons, during police encounters such as traffic stops. Terry v. Ohio said that an officer must suspect that "crime is afoot" before an officer can conduct a pat-down, but in Johnson the government seeks to expand that authority to situations where there is no suspicion of wrongdoing but the officer suspects the person may be armed and dangerous. The National Association of Criminal Defense Lawyers filed an amicus brief. The transcript from oral arguments is available on the Supreme Court's website.
The issue on appeal in Cone v. Bell is
whether a federal habeas claim is “procedurally defaulted” because it has been presented twice to the state courts, and whether a federal habeas court is powerless to recognize that a state court erred in holding that state law precludes reviewing a claim.
However, at the oral arguments, all parties seemed to agree that the claim of procedural default made no sense - a claim would be procedurally defaulted if it had not been presented in the state courts, but in this case it had been presented to the state courts, although the lower courts did not fully rule on the issue.
The trial prosecutor withheld evidence from the defense regarding the defendant's drug use, which was important because the defense was that when the murders were committed the defendant was acting under a drug induced psychosis. The prosecutor at trial said that the defense's theory was "baloney" and argued to the jury that the defendant was a drug dealer and not a drug user, and yet had in his file evidence that the defendant was a drug user and was on drugs at the time of the crime. Although not central to this appeal, the prosecutor had withheld other evidence in the case as well, including statements given by the state's witnesses that were material for cross-examination.
It would seem that we need strong cases dealing with prosecutorial misconduct in withholding evidence, given that it happens so often. But, the fact is we already have strong cases denouncing the withholding of evidence, and it does not make a difference. Prosecutors do not always turn over evidence that will hurt their case, despite the clear requirement to do so in Brady and Kyles v. Whitley. Apart from cases where the evidence is not provided and the defense may never learn what is out there that should have been provided, there is the common practice of withholding evidence until the last minute, and springing witness information or other Brady material on the defense on the day of trial, or the Friday before trial begins.
No harm, no foul, right? The trial judges and the appellate courts will not give relief to a defendant unless he can show prejudice, and if he received the information before the start of trial, or even during trial, there is no prejudice? Because it is not reversible error does not make it ethical. We need prosecutors who uphold the rule of law even in their own office, and who seek justice not convictions. If they cannot police themselves, the trial courts and appellate courts should be providing some type of sanctions for misconduct - if not dismissal, then exclusion of evidence provided at the last minute.
Now, none of this is going to happen in Cone v. Bell, but one more strongly worded opinion regarding the impropriety of withholding evidence while asking a jury to send a person to prison, or even to kill that person, will not hurt one bit.
