The U.S. Supreme Court justices will meet this week to discuss whether to accept another case out of Louisiana that involves possible misconduct on the part of prosecutors. Credit: Scott Robinson / Via Flickr, Creative Commons

The U.S. Supreme Court doesn’t often weigh in on whether convictions should be overturned because prosecutors have failed to turn over evidence — only four times in the past two decades.

Three of those cases came from Louisiana. Each time, the high court chastised prosecutors in the Pelican State for violating the rights of defendants, and the state courts for letting the problem slide.

Yet, according to defense advocates and national legal scholars, Louisiana still hasn’t gotten the memo. They’re urging the Supreme Court to step in again with a stronger lesson.

The high court will discuss this week whether to hear the case of David Brown, the “Angola 5” member who was accused of plotting to kill a prison guard in 1999. His death sentence was endorsed in February by the Louisiana Supreme Court after a district judge had earlier overturned it.

Brown’s attorneys, in their petition for a U.S. Supreme Court hearing, say the facts of the case are alarmingly similar to Brady v. Maryland, the landmark 1963 ruling that required prosecutors to turn over all evidence favorable to a defendant.

The prosection’s argument at sentencing “focused on the fact that a life sentence would be the equivalent of no punishment at all because David Brown was already serving a life sentence at the time of the murder”— Legal brief from Jefferson Parish District Attorney’s Office

The similarities point to a pattern of stubborn refusal by Louisiana state courts to follow the U.S. Supreme Court’s direction, according to a group of law professors and legal ethicists who have filed a friend-of-the-court brief in the case.

Louisiana courts have “an abysmal history of consistently misinterpreting and misapplying the Brady doctrine, and there’s very little accountability,” said Ellen Yaroshefsky, a law professor at the Cardozo School of Law in New York who co-authored the brief. “The lesson has not been learned.”

Rarely do Brady violations turn up until long after a conviction and sentence — when Louisiana convicts have the right to review the state’s complete case file. Since only those condemned to death are afforded a state-appointed lawyer after their convictions, such allegations of misconduct arise frequently in death penalty cases.

Issue is not new to U.S. justices

Of the 127 death sentences reversed in Louisiana from 1976 to 2015, convictions were overturned due to prosecutorial misconduct 25 times, including nine due to Brady violations, according to a recent study by University of North Carolina political science professor Frank Baumgartner and statistician Tim Lyman.

Only two of those cases were overturned at the state level, Lyman said.

“It gives a good insight as to what’s going on in Louisiana (in regard) to Brady,” he said. “It’s mostly federal court” where convictions or death sentences get reversed.

Federal district courts and the 5th U.S. Circuit Court of Appeals have vacated many convictions when they’ve found that Louisiana courts botched the decision.

In their petition for Brown, attorneys Billy Sothern and Letty DiGiulio highlighted the parallels between their defendant’s situation and the original Brady case.

In Brady, the high court faulted prosecutors for not turning over a statement from John Brady’s alleged accomplice in which he admitting to killing someone during an armed robbery. Brady acknowledged he was there for the murder, and there was evidence that Brady urged the other man to strangle the victim. But the U.S. Supreme Court agreed that suppressing the statement violated Brady’s due process rights, so it vacated his death sentence.

Brown claimed he wasn’t there when the prison guard at Angola, Capt. David Knapps, was killed, although he helped drag Knapps inside a bathroom, getting the victim’s blood on his prison garb during a group escape attempt. Brown claimed he left before other inmates killed Knapps and that the murder wasn’t part of the escape plan.

The state never accused Brown, who at the time was serving a life sentence for a different murder, of striking Knapps. But it argued that he was guilty of first-degree murder for joining in a plot with the specific intent to kill.

Prosecutors Hugo Holland and Tommy Block, however, didn’t turn over a transcript of a statement from another state inmate, David Domingue, claiming that another man accused in the murder, Barry Edge, confessed that he and fellow inmate Jeffery Clark alone had decided to kill the guard.

State Supreme Court: It wouldn’t have mattered

Retired Criminal District Court Judge Jerome Winsberg overturned Brown’s death sentence, but not his conviction, in 2014. Winsberg found that that “there is a reasonable probability that the jury’s verdict would have been different had the evidence not been suppressed.”

But after an appeals court panel reversed Winsberg’s ruling, the Louisiana Supreme Court found that Domingue’s statement “provides no additional evidence as to who actually killed Captain Knapps” and “simply does not exculpate Brown.”

To Brown’s attorneys, the ruling marked another instance in which the Louisiana Supreme Court skewed the evidence.

“A comparison of the facts of this case makes clear that the due-process violation in Mr. Brown’s case is even more apparent than in Brady,” the attorneys wrote, “and the Louisiana Supreme Court inserted its own judgment without displaying the forbearance and restraint required by Brady.”

In their response to Brown’s petition, prosecutors argued that Brown jumped the gun in running to the U.S. Supreme Court when he could still have asked the Louisiana Supreme Court to rehear the case; that Domingue’s statement wouldn’t have been admissible at Brown’s trial; and that even if it were, it was “neither favorable nor material” to his cause.

Jefferson Parish District Attorney Paul Connick’s office, which picked up the case after other jurisdictions recused themselves, described Domingue’s statement as “wholly extraneous” to what prosecutors argued when they persuaded the jury to sentence Brown to death.

That argument “focused on the fact that a life sentence would be the equivalent of no punishment at all because David Brown was already serving a life sentence at the time of the murder,” wrote Connick and prosecutors Juliet Clark and Terry Boudreaux.

Even if Brown really had left the prison bathroom while Knapps remained alive, he “participated in the attack on Knapps such that he was already awash in the blood of his victim,” and he left the captain “to the tender mercies of Jeffrey Clark and Barry Edge” while moving on to further the escape plan, they argued.

Defense advocates say the decision in Brown’s case warrants a rebuke for the state judiciary. They say the Louisiana Supreme Court’s ruling in the case may only embolden prosecutors to narrow their view of what they need to disclose before a trial, with little fear of reprisal.

The U.S. Supreme Court in 2011 set a high bar on civil judgments against district attorneys’ offices in the case of former death row inmate John Thompson, denying him a $14 million judgment over withheld evidence.

Thompson was freed after a private investigator found that Orleans Parish prosecutors had hidden a crime lab report. Thompson won the financial judgment, but the U.S. Supreme Court negated it. Justice Clarence Thomas wrote for the 5-4 majority that Thompson had failed to show that former Orleans Parish District Attorney Harry Connick was “deliberately indifferent to the need to train the attorneys under his authority.”

Brown’s defenders claim the Thompson ruling protects district attorneys from financial peril for dirty tactics, and that the Louisiana Supreme Court’s decision in Brown’s case signals another forestalled avenue for discipline.

Prosecutors rarely disciplined

They cite a Feb. 29 letter from Charles Plattsmier, chief disciplinary counsel for the state Attorney Disciplinary Board, dismissing a complaint against Holland and Block, the prosecutors in Brown’s case.

“Because the same court that would consider the potential ethics violation has already determined that (Domingue’s) statement was not favorable” to Brown, Plattsmier wrote, “the filing of a disciplinary charge in this matter cannot be sustained at this time.”

Brown’s case wasn’t the first run-in with disciplinary charges for Holland, who has made a career out of seeking the death penalty in parishes across the state.

Holland formerly worked in Caddo Parish, where district attorneys were responsible for prosecuting half of the 10 cases resulting in death sentences in Louisiana between 2010 and 2015.

In a 2000 murder trial, defense attorneys argued that Holland withheld witness statements that could benefit 16-year-old Corey Williams, who was found to have an intellectual disability when the crime occurred.

More recently, Holland and Lea Hall — another prosecutor in Brown’s case — were asked in 2012 to resign from the Caddo Paddo District Attorney’s Office for falsifying paperwork to procure eight automatic weapons for the office.

Defense advocates note that just one Louisiana prosecutor in a generation has been disciplined for prosecutorial misconduct.

In their friend-of-the-court brief, the law professors and legal ethicists argue that the U.S. Supreme Court should hear the Angola 5 case “because the state courts need guidance, other methods for holding prosecutors accountable have not functioned, and, left alone, the Brown ruling has the potential to usher in a new, darker age of disregard for Brady.”

The U.S. Supreme Court is scheduled to discuss Thursday whether to review the case.

This story was reported and published in cooperation with The New Orleans Advocate.