June 2005
Featured Disciplinary Case
Topic
A criminal law prosecutor has no discretion to withhold evidence when the evidence impeaches the testimony of a witness whose credibility or reliability may determine guilt or innocence notwithstanding the fact that the prosecutor may believe that the evidence is inculpatory rather than exculpatory.
Summary
In re Roger W. Jordan, Jr., 2005 WL 1527693 (La. June 29, 2005). In 1995, Michael Gerardi was shot at point-blank range during an armed robbery attempt outside New Orleans’ Port of Call restaurant. Gerardi’s companion that evening, Ms. Babin, was the only eyewitness. She gave three separate statements to police during the homicide investigation. First, when questioned on the night of the murder, a "visibly shaken" Babin told the police that she "did not get a good look at the perpetrators and probably could not identify them...” In a second statement which was tape recorded by police at her home three days after the murder, she said that the shooter was wearing an oversized denim jacket. She described the shooter's hair and said that the perpetrator was in his late teens and five feet seven or eight inches tall. In addition, she stated:
I don't know, it was dark and I did not have my contacts nor my glasses so I'm coming at this at a disadvantage…I…you know you could see outlines and shapes and things that stick out, but er...the socks, I remember the colorful socks, because he kept drawing my attention to it when he kept fidgeting at his ankle area…As he looked to me…I keep getting this vision of a young man with, with an older man's face…er I don't know that if this is coming…er somewhere, or if I really did see this person...if this is just coming from my imagination or what, but I... every time I go over it and close my eyes er…I remember thinking that he had an older man's face or a young body, on a young person…how I visualize that, I don't know...
Third, three weeks after the murder, Babin viewed a photographic lineup and positively identified sixteen-year old Shareef Cousin as the shooter. Cousin was indicted for first-degree murder. The case was assigned to Jordan, an Assistant Orleans Parish District Attorney. In preparing for trial, Jordan interviewed Babin. She informed him that she was nearsighted, but needed corrective lenses only for nighttime driving and not to see at close distances. Considering this information, Jordan unilaterally determined that the absence of contacts or glasses on the night of the murder did not affect her identification. Jordan believed that Babin's second statement provided significant additional details that tended to corroborate her identification of Cousin, especially the observation of the killer as having "an old man's face" on "a young person's body." He therefore concluded that, in his judgment, Babin's second statement was not material exculpatory evidence to which the defense would be entitled under
Brady v. Maryland, 373 U.S. 83, 87 (1963). Accordingly, he did not produce that statement to Cousin's attorneys in response to a motion for the production of exculpatory evidence, although he did tender copies of her first statement and the statement made during the photographic lineup.
Before trial, Cousin's lawyers moved to suppress the identification. At the suppression hearing, Babin described the perpetrator as youthful, slim, and slightly shorter than the victim, with short-cropped hair and a very distinctive "unusual" or "evil-looking" face. Cousin's attorney also asked whether she told the police "about any characteristics that you felt were outstanding." Babin said that she could only recall stating "that he had an older-looking face on a younger body." While Cousin's attorney attempted to discover whether she had given any additional descriptions to anyone else before the photographic lineup, Jordan objected, and the question was rephrased. Eventually, Cousin's attorney questioned Babin as to whether she had provided any additional statements to the police other than the night of the murder and the photographic lineup. Babin testified that her description had been consistent throughout. Because of these answers, the only way that the defense could have known about the second statement would have been disclosure by Jordan. At trial, Babin affirmed her positive identification of Cousin, who was convicted of first-degree murder. The same jury subsequently sentenced him to death. Several days before the penalty phase, however, a copy of the second statement was delivered anonymously to defense counsel. On appeal, the defense raised as error Jordan’s failure to produce the second statement. A unanimous Supreme Court reversed the conviction based on the erroneous admission of a testimony and Jordan's improper use of that evidence in closing argument, not on
Brady grounds. Nevertheless, the Court commented in footnotes that the second statement was "obviously" exculpatory material to the issue of guilt and "clearly" should have been produced. The Orleans Parish District Attorney's Office never retried Cousin.
Later, Cousin and his sister filed a grievance against Jordan with the Office of Disciplinary Counsel alleging that Jordan wrongfully suppressed Brady evidence. In his response to the grievance, Jordan asserted his belief that the witness's statement at issue was more inculpatory than exculpatory and argued that disclosure of the statement was not required by Brady. Following an investigation, ODC dismissed the grievance but the disciplinary board remanded the matter to ODC with instructions to file formal charges before the hearing committee.
In a split decision, the chair and the public member of the hearing committee found that ODC did not establish prosecutorial misconduct and recommended that the formal charges be dismissed. The majority found Jordan’s testimony regarding the nature of the Brady material to be credible and concluded that there was no Rule 3.8 violation because Jordan reasonably believed that Babin's statements were inculpatory rather than exculpatory. The dissenting hearing officer opined that a prosecutor has no discretion to determine whether to disclose exculpatory evidence to the defense. Rather, Brady imposes an affirmative duty on the prosecutor to disclose material exculpatory evidence, irrespective of whether a request was made by the defense. Subsequently, the Disciplinary Board determined that Jordan technically violated the ethics rules, but found that no discipline was appropriate and dismissed the formal charges. ODC sought review.
The Supreme Court noted that this was a case of first impression in Louisiana. Never before has it confronted the issue of disciplining a prosecutor for failing to disclose evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.
The Court wrote that the duty of a prosecutor to disclose exculpatory evidence is embedded in the principle that a criminal defendant is deprived of a fair trial when the state withholds exculpatory evidence that is material to guilt or punishment. The state's failure to disclose material evidence favorable to a criminal defendant implicates more than the defendant's discovery rights; the prosecutor has an affirmative duty to disclose such evidence under the Fourteenth Amendment's Due Process Clause. The Court noted that, during his testimony before the hearing committee, Jordan testified that he did not believe Babin's second statement was material and did not qualify as Brady material. Specifically, he stated that he thought the evidence was inculpatory rather than exculpatory as Babin recounted specific details regarding the defendant's clothing and colorful socks.
While the definition of materiality set forth in Kyles [Kyles v. Whitley, 514 U.S. 419 (1995)] and its progeny may be seen as leaving a prosecutor with a degree of discretion, it does not…Exculpatory evidence includes evidence which impeaches the testimony of a witness whose credibility or reliability may determine guilt or innocence…Clearly, Ms. Babin's second statement negates her ability to positively identify the defendant in a lineup. The statement should have been disclosed to the defense…As we noted in our decision overruling Mr. Cousin's conviction, citing Justice Souter's eloquent statement in Kyles, a prosecutor anxious about "tacking too close to the wind will disclose a favorable piece of evidence" and "will resolve doubtful questions in favor of disclosure."
Interestingly, although neither Brady nor Rule 3.8 incorporates a mental element, the Court concluded that Jordan knowingly withheld
Brady evidence. Because he knowingly violated prosecutorial standards in such a manner, the Court ruled that he should be suspended for three months. In light of the mitigating factors, the suspension was deferred in its entirety, subject to the condition that any misconduct during a one-year period following the finality of judgment could be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. One Supreme Court Justice dissented as to the sanction, believing that, due to the actual injury caused by Jordan’s misconduct, the suspension should not be deferred.
