MISCARRIAGES of JUSTICE ORIGINATING from DISCLOSURE DEFICIENCIES in CRIMINAL CASES A. Disclosure Failures As Ground for Retria

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CHAPTER FOUR

MISCARRIAGES OF JUSTICE ORIGINATING FROM DISCLOSURE DEFICIENCIES IN CRIMINAL CASES

A. Disclosure Failures as Ground for Retrials: Common Law Standards and Examples

This chapter will delve more deeply into one of the most fundamental causes of miscarriages of justice in (international) criminal cases, namely failure on the part of police and/or prosecution to timely, adequately and fairly disclose potentially exculpatory evidence to the judge, juries, and defense. The U.S. National Registry of Exonerations (NRE) which keeps count of exonerations in the U.S. from 1989 onwards, does not – in its offi- cial counting – include cases of group exonerations due to police and prosecutorial misconduct. In its June 2012-report the NRE counted 901 exonerations, the number has risen to 1,000 exonerations only five months later.1 The report discusses cases of at least 1,100 defendants who were exonerated in the so-called “group exonerations”. These exonerations were the consequence of the revelation of gross police misconduct in twelve cases since 1995 in which innocent defendants had been framed by police officers for mostly drug and gun crimes.2 Yet, most of the group exonerations were spotted accidently, as the cases are obscure and for some of the scandals the number of exonerees could only be estimated; these num- bers are not included in the 1,000 exonerations the registry counted on 30 October 2012.3 In many cases it will be hard to establish that police or prosecutorial misconduct did in fact occur; a conclusion that was also drawn by the NRE. This chapter will delve into cases where misconduct did come to light while analyzing the criminal law proceedings which led to these errors.

1 The number of 1,000 exonerations was reached on 30 October 2012, accessed December 6, 2012, www.exonerationregistry.org. 2 Samuel R. Gross and Michael Shaffer, “Exonerations in the United States 1989–2012. Report by the National Registry of Exonerations,” National Registry of Exonerations, June 2012, http://www.law.umich.edu/special/exoneration/Documents/exonerations_us _1989_2012_full_report.pdf. 3 Gross and Shaffer, “Exonerations in the United States.”

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1. Disclosure Requirements Set Forth by the U.S. Supreme Court Concealment of evidence favorable to the defense is one of the main causes of wrongful convictions.4 In Brady v. Maryland (1963), the U.S. Supreme Court set forth the requirement that police and prosecutors must refrain from continuing a criminal prosecution whilst they are aware of the existence of exculpatory evidence for the accused which they are withholding from the judges and defense. An important question that arises is how judges and defense become aware of exculpatory evidence if it is (deliberately) withheld? How does police and prosecutorial misconduct come to light? The misconduct revealed in U.S. exoneration cases includes committing or procuring perjury, threats or other highly coercive interrogations, torture, forensic fraud and threatening or lying to eyewit- nesses; methods that are likely to result in false evidence.5 Also, cases of framing innocent suspects for crimes that never happened have been revealed, while the most common form of misconduct is, as said, the concealment of exculpatory evidence from the defendant and the court.6 The U.S. Supreme Court has defined the following disclosure obliga- tions on this area: (1) Disclosure requirements extend to documents and information affect- ing the reliability or credibility of key prosecution witnesses.7 In this regard it is said that within the U.S. system, a reviewing court will not overturn a conviction because the prosecution failed to disclose exculpatory evidence unless this evidence would have likely led to a differ- ent judicial outcome.8 (2) Prosecution is under an obligation to ensure that all procedures and regulations are in place to effectively communicate all exculpatory evidence from police to prosecution and ultimately to the defense.9 The foundation of the disclosure system, according to the U.S. Supreme Court, lies in the notion of a fair trial. In Brady v. Maryland, the Court expressly held that “society wins not only when the guilty are convicted but when the trials are fair.” There can be no fair trial when the (exculpatory)

4 George Castelle and Elizabeth Loftus, “Misinformation and Wrongful Convictions,” in Wrongly Convicted: Perspectives on Failed Justice, ed. Saundra D. Westervelt and John A. Humphrey (New Brunswick, NJ: Rutgers University Press, 2001), 26. 5 Gross and Shaffer, “Exonerations in the United States,” 66. 6 Gross and Shaffer, “Exonerations in the United States,” 66. 7 Giglio v. United States, 405 U.S. 150 (1972). 8 Strickler v. Green, 527 U.S. 263, 119 S.Ct. 1936 (1999). 9 See also Kyles v. Whitley, 514 U.S. 419 (1995).