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Thursday
Nov182010

hard things to prove

withheld evidence:

The morning news says that Texas overturned Roderick Newton's death sentence:
The Texas Court of Criminal Appeals tossed out the capital murder conviction after it agreed with a Dallas judge who found prosecutors in his 2000 trial withheld evidence that could affect the outcome of his case.

I'd just like to point out how difficult that is to accomplish.

Prosecutors have all the investigative power (police, state bureaus of investigation, etc.), so they generally have all the evidence.  They are required to turn over "exculpatory" (good for the defense) evidence to the defense team.

But what's exculpatory?  There's a big grey area.

And who gets to decide?  The prosecutors.  Prosecutors look at evidence differently from defenders, so even prosecutors with high integrity inadvertently withhold evidence that the defense might see as exculpatory.  And yes, some prosecutors forget that they are supposed to "seek justice," and just do what they need to do to win.

But in any case, was the defense diligent about requesting the evidence?

And does the evidence have to be admissible in court?

Is it exculpatory when it doesn't really show anything itself, but is a clue to other things.

So whether the evidence meets the definition of exculpatory is one thing.

There's also the problem of discovering that the prosecution withheld it.  Not easy.  The prosecution may not have even had the evidence.  It could be that some other agency that is considered part of the "prosecution team" withheld it from the prosecutor, intentionally or not.  This happens sometimes when police investigators fail to turn over evidence from their investigations.  If you think I'm making that up, I'll give you a close-to-home example.

But no need, that's what happened in Newton's case.  The police failed to turn over a statement by Newton's co-defendant (who got 10 years, hello?) that contradicted the co-D's trial testimony.  [This kind of testimony warrants its own blog post.]

The defense team didn't discover it -- the prosecution did, and turned it over.  This says a lot about the prosecutor's integrity, but it also shows how hard it is for the defense team to find the evidence.

But let's say a defender discovers some clearly withheld and clearly exculpatory evidence.  She has to convince the judge of that, again not easy.  And then what is sometimes the hardest part:  she has to convince the judge that it is "material in the sense that it undermines confidence in the trial."  So, the judge (who is often a former prosecutor) can say, "Yes, well, the evidence was withheld, but there was all this other evidence, so it wouldn't have made any difference."

Even if she wins this one, she then has to win when the state appeals, as it did in this case.  [I'm not sure why the state appealed the Dallas judge's decision when it agreed that he did not get a fair trial.]

So getting Newton's sentence overturned was more of an accomplishment than it appears at first glance.

mental retardation:

The article also mentions the possibility that Newton is mentally retarded (a phrase the court still uses).  If he is, then he is exempt from execution.   But that's another thing that's harder to prove than it might appear.

Courts have very specific definitions of mental retardation, most involving not only IQ score of 70 or below, but also evidence of onset before age 18, and significant limitations in adaptive skills.

Of course, the state will fight back on this, presenting any available evidence that the defendant was not severely limited.  I know of one case in which the state pointed to the fact that the defendant was a father.  (Really?  sex requires intelligence?).  The state may also think the defendant is "malingering" and try to convince the judge of that.  He's motivated to get a low score, so is he trying to do so?

Many people raised in poor school districts never had IQ tests in school, so the onset is hard to prove.  Sometimes a teacher can be found who will testify that the defendant was "slow" or in special ed,  and sometimes the court will accept that kind of evidence.

Anyway,  it's more complicated than it looks.

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