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Tuesday, June 14, 2011

More on Brady

No sooner had I finished reading the ABA Journal's story about Connick v. Thompson, quoting law prof Rachel Barkow, when scotusblog, via Lyle Denniston, was reporting that the SCOTUS had granted cert in another Brady case--again out of New Orleans.  Denniston mentions a series of alleged Brady violations from the New Orleans office, including the seminal case Kyles v. Whitley.  It seems likely that office has some problems.  But I have wondered if even prosecutors acting in good faith might have trouble recognizing exculpatory evidence, due to litigation psychosis or just a difficulty seeing things from the defense perspective.  Keith Findley of Wisconsin has written about the role of "tunnel vision" in wrongful convictions.  Do some prosecutors have trouble recognizing that a piece of evidence that does not fit the government's narrative might actually point to an alternate explanation?  I have toyed with the idea of creating a Brady exercise in which students playing the roles of prosecutors and defense attorneys would be provided with certain (different) pieces of information about a case.  The goal would be to illustrate how a seemingly unimportant (yet exculpatory) piece of information in the prosecutor's possession might, when disclosed to the defense, prove extremely important.  I'd be interested in hearing others' thoughts.

Posted by GiovannaShay on June 14, 2011 at 01:55 PM | Permalink


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The cert petition in Smith makes a strong showing that there were serious systemic problems in that district attorneys office. The Reasons for Granting the Writ section begins with a quote from the current DA: ”The previous administration had a policy of keeping away as much information as possible from the defense attorney.” The petition is really remarkable in that it is a merits brief, and makes no attempt to carry out the usual tasks of a cert petition such as demonstrating the national importance of the questions raised.

I posted about the petition and the case when it came out on the orders list Monday morning.

Posted by: NMissC (Tom Freeland) | Jun 17, 2011 3:25:12 PM

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