Guilt By Omission: When Prosecutors Withhold Evidence Of Innocence Prosecutors are obliged to turn over evidence that could exonerate a defendant. But if that evidence never makes it to trial, for whatever reason, quite often nobody will ever know.


Guilt By Omission: When Prosecutors Withhold Evidence Of Innocence

Guilt By Omission: When Prosecutors Withhold Evidence Of Innocence

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Prosecutors are obliged to turn over evidence that could exonerate a defendant. But if that evidence never makes it to trial, for whatever reason, quite often nobody will ever know.


We're going to talk now about a phenomenon the writer Emily Bazelon calls guilt by omission. If a prosecutor has evidence that someone is innocent, sharing that evidence could mean the prosecutor loses the case. Holding onto it could mean sending an innocent person to prison. In The New York Times Sunday Magazine, Bazelon writes that what the prosecutor does often boils down to an honor system. Emily Bazelon, welcome back to the program.

EMILY BAZELON: Thanks so much for having me.

SHAPIRO: You specifically talked about the story of a woman named Noura Jackson who was 18 years old when her mother was murdered in Memphis, Tenn., in 2005. Her trial was widely reported on at the time. And we actually have a clip here from the judge's sentencing. Let's listen.


CHRIS CRAFT: It's the judgment of the court you're found guilty of that offense, sentenced to 20 years and nine months in the Tennessee Department of Correction as a 100 percent violent offender without parole.

SHAPIRO: Noura was convicted of second-degree murder, but the prosecutor in this case had evidence that did not make it into the trial. What was that evidence?

BAZELON: The evidence was a handwritten note from a key witness at trial. His name is Andrew Hammack. He was the only person who testified that Noura was at the scene of the crime at the key period in which her mother was killed and a time when Noura was unaccounted for. Hammack told the jury that Noura asked her to meet him at her house in these early morning hours when her mother was killed and that he thought that was not normal, that - not something she had asked him to do before.

It turned out that in this handwritten note he gave to the police, he said that he was rolling on ecstasy that night. And he also said that he gave his phone to a friend. So the Tennessee Supreme Court, when it reversed Noura's conviction, found that the defense could have used this note to completely undermine Andrew Hammack's testimony and really shred this account he gave of this night which implicated Noura.

SHAPIRO: So even though the Tennessee Supreme Court reversed this conviction and Noura Jackson today is free, she spent years behind bars. What kind of obligation do prosecutors have in cases like this to hand over evidence that could exonerate a defendant?

BAZELON: Well, the prosecutor has a constitutional obligation to hand over evidence that is favorable to the defense if it is material either to guilt or to punishment. And that line, that standard, comes from a 1963 Supreme Court case called Brady v. Maryland. The question is, how do prosecutors interpret that sentence? And as you mentioned, it's an honor system.

So if prosecutors decide that something isn't material - and that's a pretty subjective standard, right? - then they can decide they don't have to turn over the evidence. And often no one will know because we're talking about a situation in which they can see what's in their files, but the defense can't see it. And the judge can't see it either. So they're really making this very important call on their own.

SHAPIRO: Emily, you spoke with one district attorney in Kansas City who told you that admitted evidence is a major reason for wrongful conviction and for people taking pleas that they shouldn't have taken. Do we have any way of knowing how often this happens?

BAZELON: It's very hard to tell. You know, when you're talking about something that's missing, then you don't necessarily know how often it stays hidden. And no one ever finds out about it, especially because it takes a really conscientious defense team on appeal with resources to go digging back into old files.

But we do have some studies that suggest that in close cases where prosecutors might be more likely to lose if they turn over the evidence, it may be more likely that they don't disclose it. That comes from a Columbia Law School study of death penalty cases. And the other thing is that there are a significant fraction of exonerations on the National Registry of Exonerations in which the failure to disclose evidence was part of what went wrong in the wrongful conviction.

SHAPIRO: There seems to be some growing reaction to this problem from the legal community. You describe states adopting what are called open-file laws. Explain what those are.

BAZELON: Well, this is a really interesting remedy. So we've been talking about how prosecutors are making this judgment call, a key judgment call that might make it harder for them to win a case. Open file laws say, OK, you know what? The prosecution is going to be required to just open their files to the defense. Let the defense attorneys decide what's going to help their case and what's not important. It sort of takes the prosecutors out of this kind of hot seat that they're in otherwise.

SHAPIRO: Emily Bazelon of The New York Times Magazine. Her new piece is "Guilt By Omission." Thanks a lot.

BAZELON: Thanks so much for having me.

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