Before he took office as Orleans Parish District Attorney last year, Jason Williams said he had a plan to tackle a problem that had plagued the office’s reputation for decades: the failure of prosecutors to turn evidence over to defense attorneys in a timely manner — or at all.
Under prior DA administrations, New Orleans prosecutors gained national attention for failing to hand over favorable evidence to defense attorneys, and as a result, locking up innocent defendants. A 2015 report by the National Registry of Exonerations found that Orleans Parish had the highest rate of wrongful convictions per capita of anywhere in the country. Many of those stemmed from the decades-long tenure of DA Harry Connick beginning in the mid-70s. The office under Connick was excoriated by critics — Williams among them — for failing to properly train his prosecutors on their obligations to turn over exculpatory evidence.
In one high-profile case, John Thompson, who spent 14 years on death row before having his conviction overturned, sued Connick and the DA’s office being deliberately indifferent to their legal requirements to turn over evidence. Thompson initially won his lawsuit and was awarded $14 million by a jury, but in a controversial 5-4 decision the United States Supreme Court tossed out the judgment and held that Connick wasn’t liable.
Prosecutors under Williams immediate predecessor, Leon Cannizzaro, have also been accused of failing to turn over essential evidence that ultimately led to overturned convictions. And in 2013, the watchdog group Court Watch NOLA said that Cannizarro’s office was failing to turn over evidence in a timely fashion, which they said was causing delays in moving cases forward. They recommended implementing an”open-file” discovery policy in which rather than making determinations about whether or not a specific piece of evidence needs to be turned over, “defense generally has access to the prosecutor’s entire case file.”
Williams promised a new era in terms of evidence disclosure. During his campaign, he vowed to implement open-file discovery, which he said should be standard across the country. But he also said that more needed to be done to change the culture of an office.
“So we will have open-file discovery,” Williams told The Lens in December of 2020, following his election but before he took office. “But we need more. You can’t just tell someone to stop doing the same thing they’ve been doing for years, and expect that to be enough, right?”
Specifically, Williams said he would develop “written policies that articulate and explain at a granular level, what is expected from an ADA, and an investigator in terms of their ongoing obligation” to turn over evidence. “That’s a piece that gets left out, and that’s a piece that causes innocent men to go to jail for crimes they didn’t commit,” Williams said.
He also said that he was committed to turning over evidence quickly, and said that he felt defense attorneys should have access to as much information as possible even prior to a defendant being formally charged with a crime.
Those promises to reform pre-trial discovery were a key component of Williams’ broader commitment to abandon the “win-at-all-costs” culture that he said permeated prior DA administrations and helped make New Orleans one of the most incarcerated places in the country.
And Williams’ pledges to roll out a new discovery policy weren’t confined to press interviews. His office also promised one in court, when it settled a lawsuit over a wrongful conviction from the Connick era.
But over a year into his term, and as jury trials have started ramping up following a long hiatus due to COVID-19, public defenders and civil rights attorneys who seek to overturn wrongful convictions say that prosecutors under WIlliams are still frequently taking too long to turn over evidence, and that the office has not shown them any written policies related to pre-trial discovery.
The lack of a clear policy, they say, could lead to unfair trials and more potential wrongful convictions.
“Without discrete, concrete policies for consistent and constitutional courtroom practices, the opportunity for injustice remains high,” the Orleans Public Defenders said in a statement. “We continue to run the risk that many of the sins of the past will continue to live in the present.”
The DA’s office strongly pushed back on the characterization of their office as a continuation of the prior administration.
“Our administration’s protocols around open file discovery and information sharing are starkly different than that of the previous administrations actually responsible for making our city the most incarcerated city in the world with the most exonerations in the world,” said First Assistant DA Ned McGowan in a response to questions from The Lens. “To suggest that we are similar is untrue.”
He said that prosecutors have “been unequivocally open about expeditiously sharing all information germane to a case and putting internal systems in place to help manage evidence.”
But officials in the public defenders office told The Lens that they still “often wait months after arrest to get basic discovery information, such as witness statements and video evidence,” which “is crucial to protect innocence and the rights of everyone. However, they declined to provide specific examples of cases to back up their claims, citing the fact that representative cases were still open.
‘A leading cause of innocent people being convicted’
The DA’s office declined to turn over any policy related to discovery to The Lens, and a public records request submitted earlier this month for all of the office’s written policies hasn’t yet been fulfilled. McGowan said that the office’s “policy is to fully comply with the broadest discovery obligations in the code of criminal procedure; information is redacted only as mandated by law, or in the interest of victim/witness safety.”
He said that the “office has trained and continues to train, both through formal sessions approved for CLE [continuing legal education] credit, and through divisional office meetings, on the applicability and importance of Brady disclosures.” (The Lens requested any material used in the training, but the office declined to provide any.)
If the DA’s office lacks a written policy on pre-trial discovery beyond the state’s code of criminal procedure — and particularly turning over exculpatory evidence — it not only would go against Williams’ statements prior to taking office, but it may mean the office is in violation of a multi-million dollar settlement agreement reached several months ago related to the wrongful conviction of Robert Jones.
Jones, who had been convicted in 1996 of a series of crimes including kidnapping, robbery, and rape, and manslaughter, had his convictions overturned by an appeals court in 2015 after attorneys for Jones uncovered evidence that was in possession of prosecutors that implicated another suspect in the killing, but was never turned over to Jones’ initial defense attorneys. Cannizzaro agreed to drop the charges against Jones in 2017.
In 2018, Jones sued the DA’s office, alleging that Connick’s prosecutors were not properly trained to turn over exculpatory evidence, and that Cannizzaro didn’t adequately review his case. During his campaign for DA, Williams was outspoken about the injustice he felt was done in Jones’ case, and when he took office it was one of several lawsuits that he settled in his first year.
In addition to agreeing to pay Jones $2 million, the terms of that settlement required the office to develop a written policy related to a prosecutor’s obligations to turn exculpatory and impeachment evidence under seminal United States Supreme Court rulings in Brady v. Maryland and Giglio v. The United States, and subsequent cases.
“The policy will include citations to, and require prosecutors to review, precedential Brady rulings, and will direct prosecutors to timely disclose favorable material regardless of materiality,” the settlement reads.
McGowan said that the office is in compliance with all aspects of the Jones settlement, and said that Jones himself led a training in the office.
“The Robert Jones case is a glaring example of the impact of when all evidence is not turned over and how it can affect someone’s life,” McGowan said. “From the beginning, we have stood with Robert Jones.”
He also said that the office has “instituted multiple layers of safeguards to ensure compliance with Brady and its progeny” — including “direct supervisory review of each case that is set for trial, with specific inquiry into identification and disclosure of all discoverable information within our office’s control.”
Lawyers for Jones, who now works at the public defender’s office, declined to comment on whether or not they felt the DA was in compliance with the terms of the settlement.
But Richard Davis, legal director at the Innocence Project New Orleans said he was unimpressed with what the office has put forth as an ostensible “policy” — noting that discovery failures are “a leading cause of innocent people being convicted.”
“Preventing these failures requires clear detailed written policies with a supervision structure that consistently enforces these policies,” Davis said. “Generalities about fairness are not enough and phrases like ‘broadest discovery obligations,’ ‘expeditiously,’ and ‘open file discovery’ without uniform definitions give little guidance to line prosecutors. As we know from John Thompson’s case, Harry Connick’s staff described his policy as ‘follow the law,’ and that did not prevent Brady violations.”