Wednesday, November 2, 2011


"These failures have had very real consequences. Four defendants who were sentenced to death in Orleans Parish were later exonerated in cases involving violations of the Brady decision; another, who was facing a death sentence, was granted a new trial just last year.

More broadly, according to a survey of both capital and non-capital cases by the Innocence Network, 10 prisoners have been exonerated since 1990 in Orleans Parish in such cases."



"NEW ORLEANS — For the third time in 16 years and the second time in two, the Orleans Parish District Attorney’s office must explain itself before the United States Supreme Court," the New York Times story by reporters Campbell Robertson and Adam Liptak published earlier today under the heading, "Supreme Court looks again at methods of DA's office in Louisiana," begins.

"Harry Connick, the former Orleans Parish district attorney, left the Federal Court House in New Orleans in 1990. The district attorney's office is answering to accusations of prosecutorial misconduct," the story continues.

"Each of the cases involve prosecutorial misconduct, and in particular the failure to turn over crucial evidence to the defense, a constitutional violation that defense lawyers, former prosecutors and four Supreme Court justices have said was at least at one time “pervasive” in the district attorney’s office here. In the case last year, one of the key issues was not whether the misconduct took place, but just how widespread it actually was.

On Tuesday, the justices will hear the case of Juan Smith, who was convicted of murdering five people here. The court will consider whether he deserves a new trial because prosecutors withheld evidence from his lawyers. Such a concealment can be a violation of Brady v. Maryland, the 1963 Supreme Court decision that required prosecutors to turn over favorable evidence to the defense.

The Orleans Public Defenders office, in a brief supporting Mr. Smith, said that 28 convictions obtained by the district attorney’s office were later ruled to have been tainted by violations of this kind.

The district attorney’s office disagrees, saying the correct number is 13. In its own Supreme Court brief, the office called such lapses lamentable.

“It is inarguable,” the office told the justices, “that, in striving to comply with the teachings of this court, the state has not always succeeded in attaining its goal.”

These failures have had very real consequences. Four defendants who were sentenced to death in Orleans Parish were later exonerated in cases involving violations of the Brady decision; another, who was facing a death sentence, was granted a new trial just last year.

More broadly, according to a survey of both capital and non-capital cases by the Innocence Network, 10 prisoners have been exonerated since 1990 in Orleans Parish in such cases.

Two of the capital cases reached the Supreme Court. In the first, in 1995, the justices admonished District Attorney Harry F. Connick, who ran the office from 1974 to 2003, and told him to be more careful. In a concurrence, Justice John Paul Stevens called the office’s violations “blatant and repeated.”

Still, Mr. Connick testified in 2007 that he had seen no need to change the office’s policies after the 1995 warning from the Supreme Court. That testimony came in the trial of a civil claim brought by a former death row inmate, John Thompson, who was exonerated after 18 years when withheld evidence came to light. The jury awarded him $14 million.

The Supreme Court wiped out that award in March, in a 5-to-4 decision that split along ideological lines. The office conceded that it had violated the Constitution by withholding evidence, and Justice Clarence Thomas, writing for the majority, said prosecutors here had violated their duty to see justice done. But Justice Thomas added that Mr. Thompson was not entitled to the jury award because he had not overcome the doctrine of prosecutorial immunity.

Justice Ruth Bader Ginsburg, in a dissenting opinion, said that “misperception and disregard of Brady’s disclosure requirements were pervasive,” and thus indicative of more than just a rogue prosecutor.

Former employees of Mr. Connick have said that the office under his tenure maintained a win-at-all cost approach and a restrictive attitude toward its obligations to hand evidence to the defense.

In a 2004 affidavit in another Brady-related wrongful conviction case, Bill Campbell, who had worked in the prosecutor’s office during Mr. Connick’s tenure, put it simply: “The policy was ‘When in doubt, don’t give it up.’ ”

Even Mr. Connick’s successor, Eddie Jordan, came close to acknowledging as much in a 2003 interview with The New Orleans Times-Picayune. “The previous administration,” he said, “had a policy of keeping away as much information as possible from the defense attorney.”

Christopher Bowman, a spokesman for the current district attorney, Leon A. Cannizzaro Jr., said that since taking office in 2008, Mr. Cannizzaro had instructed attorneys on his staff to study the Supreme Court decisions relating to prosecutorial misconduct, including the one involving the Orleans Parish District Attorney’s office in 1995. The office also conducts “multiple continuing legal education classes each year” on these issues.

As for the office’s repeated appearances before the Supreme Court, Mr. Bowman said that they represented “less than two one-thousandths of one percent of the cases that the District Attorney’s office has handled in the past 16 years.”

But defense attorneys here are skeptical that anything has changed. Their suspicion grew last year after a case involving a man named Michael Anderson.

Mr. Anderson was convicted in 2009 of slaying five people and received the first death penalty verdict in a dozen years in a New Orleans murder case. A few months after the verdict, prosecutors disclosed that they had not turned over a videotaped interview of the key witness, in which she contradicted her trial testimony in several significant aspects, nor had they revealed the nature of a deal with a jailhouse informant who testified for the prosecution.

Mr. Anderson was granted a new trial, and eventually pleaded guilty to reduced charges of manslaughter for the killings.

The revelations troubled defense attorneys, prompting a veteran civil rights lawyer to file several complaints about the prosecutors’ conduct with the state attorney disciplinary board.

“Business as usual,” said the lawyer, Samuel S. Dalton, about the practices of the district attorney’s office.

Three months after its decision in Mr. Thompson’s case, the Supreme Court agreed to hear Mr. Smith’s case, which, unlike the Thompson case, is a rather straightforward plea for a new trial.

The case arose from a mass murder in 1995, when a group of men, in search of money and drugs, burst into a house and opened fire, killing five people. Mr. Smith was the only person tried for the killings, and was convicted solely on the eyewitness testimony of a survivor, Larry Boatner. Unknown to Mr. Smith’s lawyers, Mr. Boatner had said conflicting things in interviews with the police, telling officers at more than one point he could not identify the intruders.

The brief filed by the district attorney’s office did not dispute that Mr. Boatner’s statements to the police had not been provided to Mr. Smith’s lawyers. But the lapses were harmless, the brief said. Had the contrary statements been presented, the brief said, jurors would have discounted them as “understandable, temporary equivocation.”

Prosecutors who withhold evidence are almost never disciplined, according to a new study in The Yale Law Journal Online.

But there are exceptions, and one of them was the lead prosecutor in Mr. Smith’s case, Roger W. Jordan Jr. In 2005, the Louisiana Supreme Court barred Mr. Jordan from practicing law for three months for withholding evidence in a different case. Noting that was the first time that court had ever disciplined a prosecutor for violating the Brady decision, the court suspended the punishment."

The story can be found at:

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

Harold Levy: Publisher; The Charles Smith Blog;;