The price of nondisclosure
It wasn't a good week for Cuyahoga County Prosecutor Bill Mason. On Monday, the 6th Circuit affirmed a Federal judge's ruling that the state cannot retry Joe D'Ambrosio for a murder they claim he committed in 1988, and for which he spent 21 years on death row. Mason, then an assistant prosecutor, sat second chair in the case. As the opinion explains,
For more than twenty years, the State of Ohio has displayed a remarkable inability to competently prosecute Joe D’Ambrosio. In 1988, the state botched D’Ambrosio’s trial by violating Brady v. Maryland, an error that later came back to bite it in federal habeas review. Then, after D’Ambrosio was issued a conditional writ of habeas corpus, the state misunderstood the district court’s clear, binary order and attempted to simultaneously comply with both of the two alternatives it was given: retry D’Ambrosio within 180 days or vacate his conviction and release him. After failing to complete only the prompt-retrial option, the hapless state marched back to district court and, making D’Ambrosio’s argument for him, conceded that it failed to comply with the conditional writ. Ever since, the state has asserted a variety of confused jurisdictional arguments in both the district court and in this court...
Oh, by the way, that's the dissenting opinion.
Then on Tuesday, a Federal magistrate here handed down another opinion in a case where exculpatory evidence was withheld. In that respect, though, Mason fared a lot better than the police officer who withheld the evidence: the latter could ultimately be on the hook for damages in a §1983 action.
The facts of the D'Ambrosio are well known, at least here, as the episode played out in both Federal and state courts over the past two years. The very short version is that back in 1988 D'Ambrosio and two other men, Michael Keenan and Eddie Espinosa, took Tony Klann out to a place called Doan Creek and killed him. Espinosa wound up being the start witness against D'Ambrosio, and a three-judge panel found him guilty and sentenced him to death. Cracks started appearing in the State's case, though, as recounted in this 2003 article, and in 2006 a Federal judge granted habeas relief, finding that the State had withheld exculpatory evidence. It ordered the State to retry D'Ambrosio or release him within 180 days. That 180 days began when the 6th Circuit affirmed the grant of habeas relief, and would have ended on March 9, 2009. On February 20, the State informed the court that it had provided all the evidence it had to the defense. A few hours later, it informed everybody that it had just discovered four new envelopes containing additional evidence. Things got pretty ugly after that, including the State failing to let anyone in on the fact that Espinosa, its star witness, had died until several months after he'd shuffled off this mortal coil, all culminating in the decision on Monday, freeing D'Ambrosio and barring the prosecution from retrying him.
The facts in the second case, Vaughan v. Shaker Heights, are much simpler. Vaughan was arrested for gross sexual imposition in 2006, involving a 9-year-old girl. A social worker named Stout interviewed the girl, who told her that Vaughan had only touched her outside her underwear. She also learned that the girl's mother was frustrated with the lead detective, Hyams, because he didn't believe there was proof to support a rape charge, and that she and her ex-husband planned to "pull some strings" to get Vaughan indicted. Stout called Hyams, reported her assessment that there was no evidence of trauma, and learned that Hyams also agreed there was no evidence to proceed.
That's not what Hyams told the grand jury, though; he testified that the girl had been interviewed by the doctor and children's services, and had been consistent with all of them that Vaughan had penetrated her anal area with his finger. It wasn't until after Vaughan was convicted in a bench trial, which would have subjected him to to life imprisonment without parole, that evidence of Stout's interview and conversation with Hyams surfaced. The judge granted a new trial, and a jury took less than an hour to acquit Vaughan at the retrial.
Vaughan then sued Mason, the detective, and the City of Shaker Heights, Hyams' employer, and Hyams' partner, and all the defendants filed a motion to dismiss. Mason and the partner got out from under; there was no evidence to indicate that the partner was ever involved in any of this, and Mason's office was positioned to argue the same thing, buttressed further by the broad absolute immunity a prosecutor generally enjoys and the Supreme Court's earlier decision this year in Connick v. Thompson (discussed here), which had reversed a $14 million award against a Louisiana parish prosecutor's office for allegedly failing to properly train its staff in Brady requirements. Hyams tried to ride out of town on the same train, arguing that absolute immunity also applies to courtroom testimony. That might be true, but here it was Hyams' pretrial acts that were the problem -- his testimony before the grand jury, and his failure to inform prosecutors of what Stout had told him. That was enough to keep him in the case, and to keep the city in, too; under Ohio law, they're on the hook for any compensatory damages, though not for punitives.
The opinion is a good one, although one is left with the thought that the prosecutor's office bore some responsiblity for Vaughan's predicament; had it merely contacted Children's Services or obtained its case file, actions which would seem typical in prosecuting a child rape case, it would have learned of Stout's findings. But while sloppiness is sufficient for a Brady error -- failure to disclose need not be intentional; recklessness and even negligence suffice -- it's not sufficient to impose civil liability, especially in light of Connick's seeming adoption of a Mulligan Rule in that regard.
A while back, when open discovery was first adopted, I had a discussion about it with a former prosecutor, now a defense attorney. He related something one of his supervisors had told him: "If we don't decide what gets disclosed, somebody else will." That jaundiced view was apparently a suggestion that if prosecutors were required to disclose everything, police officers would short-circuit that by not disclosing certain items to the prosecutor. Det. Hyams can now tell you that the risks of nondisclosure for a police officer are much greater than those for a prosecutor.