A report published this week in the New York Times Magazine exposes prosecutors’ persistent failures to disclose exculpatory evidence and the system’s failure to hold them accountable.
The Constitution requires that, before trial, prosecutors must turn over evidence that could help the defense if it is material to guilt or to punishment. But Emily Bazelon reports this rule is not effectively enforced because prosecutors decide what evidence to disclose, and judges and defense lawyers have no way to know what they are withholding, unless the case is later reopened.
In the minority of cases that are reopened, prosecutors have withheld evidence at a troubling rate, and the risk of error is greatest in close cases, “raising the chilling possibility that prosecutors could be more likely to withhold evidence when proof of guilt was uncertain.” In 2017, the National Registry of Exonerations reported that 70 of the 166 exonerations in 2016 involved government misconduct, usually withholding evidence. Recent research identifying prosecutors with numerous allegations of misconduct in their offices between 2010 and 2015 found that Shelby County, Tennessee, district attorney Amy Weirich had one of the most troubling records.
Bazelon traces Weirich’s ascent to becoming Memphis’s first woman district attorney to her conviction of 18-year-old Noura Jackson in the brutal stabbing death of her mother. No physical evidence linked Noura to the killing, and DNA evidence showed several unknown people were in her mother’s bedroom, but Weirich nonetheless won a guilty verdict. Soon after Noura was sentenced to 20 years in prison, Weirich was appointed district attorney.
When she took office, Weirich kept prosecutor Tom Henderson in a supervisory role even though courts had found he had withheld evidence in two death penalty cases in the 2000s, and in 2012 a judge found he had “purposefully misled” the defense about a critical eyewitness identification in a murder case, leading to a public censure from the Tennessee Board of Professional Responsibility. And in the past several years, Weirich has been called upon to testify about withheld evidence in two murder cases she tried. Earlier this year, a federal court reversed a capital conviction Weirich won in 2001, finding she elicited false testimony from a witness; Weirich claimed she did not know the witness (who testified she had not received any money) had collected money from the FBI, but the court held that “any competent prosector would have carefully reviewed the case file.”
In Noura Jackson’s case, the Tennessee Supreme Court unanimously overturned what Weirich had described as a “great verdict,” finding that Weirich had committed a “flagrant violation” of Noura’s constitutional rights by withholding information that would have helped the defense and making prejudicial statements to the jury about Noura’s decision not to testify. The court wrote that Weirich was “doubtless well aware” that her argument to the jury violated the law, citing three previous cases in which appellate courts criticized Weirich and her office for making prejudicial statements to the jury.
The Tennessee Board of Professional Responsibility recommended that Weirich and her co-counsel Stephen Jones accept a public censure for failing to disclose evidence in Noura’s trial, but a panel of lawyers believed Jones’s claim that he didn’t remember the evidence until after the trial and found him not guilty. The board dismissed the charges against Weirich in exchange for a private reprimand.
A federal monitor reported this summer that Weirich’s office has been seeking to transfer children to adult court without disclosing crucial evidence to the defense, with a disproportionate impact on Black teenagers. Her office continues to be investigated for withholding evidence in other cases.
Bazelon reports that recently, some prosecutors have acknowledged these problems in the system, rejecting their predecessors’ commitment to winning at all costs and campaigning on promises of reform. Newly elected district attorneys in cities like Chicago, Orlando, Jacksonville and Corpus Christi are pushing for accountability in their own offices, and some have adopted an officewide “open-file” policy requiring prosecutors to disclose to the defense nearly everything in their files. Six states require open-file practices for all prosecutors, Bazelon reports, while 15 states and the federal courts require prosecutors to reveal little.
In truth, in many cases the consequences for withholding evidence are relatively minor. Only a tiny number of prosecutors have been disbarred or jailed for withholding evidence.