Brady Violation in the Casey Anthony Trial?

According to this New York Times story, prosecutors in the Casey Anthony trial had reason to believe that Ms. Anthony had visited a site relating to the use of choloroform only once, rather than 84 times (as prosecutors had argued during the trial). 

I haven't followed the Casey Anthony case closely, but my understanding (confirmed by the story) is that the number of website visits played an important role in the prosecution's case.  If the prosecution had information that tended to show that there was only one such visit and failed to turn that information over to the defense, it's hard to see how that failure would not have constituted a Brady violation.

UPDATE:  The State's response is here.

Comments

[Mike Frisch]

Lucky thing that all prosecutors learn their Brady obligations in law school, at least according to Chief Justice Roberts.

[Underwood]

Not just Brady. If they learned that the evidence they had offered was false, then they had an obligation to take remedial measures.

[Andrew Perlman]

If the reports in the story are accurate, wouldn't it be reasonable for bar counsel in Florida to conduct some kind of investigation? Brady violations are entirely too common, and a high profile investigation (and discipline, if warranted) might help to be bring some much needed attention to the problem.

[Mike Frisch]

Don't hold your breath waiting for the Florida Bar to act--the state bars have a long history of not treating Brady violations as serious misconduct.

[Andrew Perlman]

Very true, Mike, which is why a high profile investigation would be so useful.

[Monroe Freedman]

The prosecution repeatedly relied on the 84 searches for chloroform to show premeditation by Anthony. In 2008 their own investigation had shown that Anthony had made only one search,which led to use of chloroform in the 1800s, but they didn't tell the expert witness that. Ten days before the trial ended, the expert witness, who had testified to the 84 searches, having redone his research, told both the police and the prosecutors that he had found that his testimony had been inaccurate, and that there had been only one search. The response was that they had known of the inconsistency all along.

Should we take up a pool on how many days it will be before the prosecutors are professionally disciplined?

[JohnSteele]

3.3 duty to correct and Brady ("our expert just informed us that he believes it was one, not eighty-four, seraches"), right? would a letter from ethics profs help? not to condemn and convict anyone, but simply to say that according to news accounts . . . . and that enforcement of Brady is really important, so an investigation might be warranted?

[Rick Underwood]

Throw in a 4.1(b) and an 8.4(c) too. A taste of multiple overlaping counts! Oops - I'm sounding like a prosecutor.

[Rick Underwood]

Just saw a post on Above the Law. Florida prosecutor get's drunk and shoots gun off in a parking garage. No prosecution.

[Andrew Perlman]

John, I would be willing to sign such a letter. As you note, the goal should be to encourage an investigation (not necessarily discipline) in light of publicly reported information from a reputable source (the New York Times).

[Rick Underwood]

Best bet is to reward the reporter by telling him that he is on to something (Brady and 3.3). Another NY Times story might get someone's attention. My guess is that even if "a prosecutor" was told, the reply will be that the prosecutors trying the case did not know. They were busy "fighting the fight," etc... Still, this underscores the need for training beyond law school, and some kind of enforcement. SCOTUS's treatment of the issue was not satisfactory. The problem here is that the public is with the prosecutors, and nobody will care about such "technicalities," especially when they are raised by "law professors."

[Monroe Freedman]

I'll also sign on, John

[Underwood]

I just sent John a post which says the prosecution did disclose this and reached a resolution with Baez. If that's true I'm not sure I understand the other defense lawyer's outrage. Anyway, I would have the NYT's reporter recheck her facts prior to sending a letter signed by LEF.

[Andrew Perlman]

Thanks, Rick. I've updated my original post and created a new post with a link to the State's response.

[mt45]

Quite a rush to judgment on this prosecutor in these comments. I question your ethics.

[Andrew Perlman]

mt45, I think you'll find that the vast majority of the comments (including the original post) did not assume misconduct; they only suggested that an investigation would be an order if the NY Times story had validity. What's wrong with that?

[bob]

as for brady-i dont think there is a violation here as all is disclosed.

as for the failure to take remedial measures-that only applies to false statements of fact that are either known false when made or are known false before the trial is over. there was no concrete information prior to the verdict that her viewing the site 84 times was false-just conflicting reports. the conflicting reports is brady material-but that was disclosed.

[Monroe Freedman]

mt45: You seem to have rushed to judgment with an excessive criticism. There's nothing unethical in taking a NY Times report at face value for purposes of discussion, and potential action, in a Legal Ethics Forum. The report was entirely plausible --it's not as if Brady violations are rare and unlikely to have occurred.

[Rick Underwood]

I disagree on you interpretation of 3.3, mt45. Model Rule 3.3(a)(3) refers to material false evidence. If you have introduced it, and you come to learn of its falsity during the proceeding (that would include during an appeal of a conviction - and note the new addition to Rule 3.8 that apply in some states), then you have to take remedial measures. Evidence could be lay testimony, expert opinion, a forged or manipulated document, and so on. The rule is usually referred to when defense lawyers are accused of introducing perjured testimony, but it obviously applies to both sides of the v., and all types of evidence that can be proved false. It is true that there were conflicting reports, but one report appears to have been false. The expert made a mistake and wanted to correct the mistake. That is, the prosecution expert testified that there were 84 hits based on his program, and the prosecution pushed that (presumably they thought it was material). Then the prosecution learned that there were not 84 hits and that the expert's program was screwed up and yielded a result that was not true - that is, false, right? It appears that the State has taken the position that they did take remedial action as soon as they could.

Why is this not correct?

[a blog reader]

Speaking of a "duty to correct," some might call the original poster's behavior here unethical -- not in the "legal ethics" sense, but in a good-old-fashioned morals sense.

You use the text of your posting to give details of alleged legal and ethical lapses by the prosecutor -- namely, the alleged nondisclosure of exculpatory information to defense counsel.
Then, when the accused prosecutor puts forth facts showing that he did disclose the information, you don't post the details of his statement. You don't even summarize it as "the prosecutor has stated that he did disclose the information to Mr. Baez.". Instead, you post a one line cross-link to "the prosecutor's response," never noting in the body of your text even a hint as to the content of the response.

Talk about unethical!

[John Steele]

"a blog reader",

Thanks for commenting. I think that that if you read the title of the post (including the question mark), as well as the comments (taking care not to accuse), and the subsequent posts and comments (including multiple links to stories that presented the other side), then I think you'll conclude that we handled this responsibly.

Being fair to the people we comment about is important to us.

[Rick Underwood]

John posted the statement of the State, which had not been disclosed by anyone before. It has not been posted by the NYTimes. I forwarded the matter to John when it came to my attention when I was trying to find out all I could about this issue, and I forwarded it to ATL so the word would go forth. I think "blog reader" is off base here. Indeed, the ABA Journal gave a hat tip to ATL, whose source was LEF. You protest too much.

[Rick Underwood]

Sorry, I meant Andrew posted the State's response when I searched for and found the other side of the story.

[HollysGmom]

June 8 2011 Bradley revisits the search results
June 23 2011 LDB cross-examines Cindy Anthony and STRESSES the 84 searches
June 25 2011 Bradley relays the information to Sgt Stenger (Court recesses early for "legal issue", Saturday)
June 27 2011 Court is delayed in starting 1 hour due to "legal Issues" question. Court decides Casey fit for trial (standard proceedure in a Capital Case) This same day Lead Detective Yuri Melich admits on the stand to providing false testimony in previous testimony.
July 4 2011 Prosecutor LDB gives her closing rebuttle (No mention of 84 searches)

[Omar]

If you go to youtube and search "Casey Anthony Trial: 7/4/2011" the search will yield sevaral "parts". Go to part 4. Here, Mr. Baez, defense counsel, begins by addressing the inaccuracy of the "84" searches for chloroform and asks the state to correct the error in the presence of the jury. Ms. Burdick of the SAO basically tells Baez to get lost (not in those words, of course). The judge then states that he doesn't know if there has been a Brady violation or not and advises Defense counsel to file the appropriate motion. Throughout the remainder of the State's rebuttal, no mention is made of the inaccuracy of the 84 searches for chloroform. Burdick says she had an ammended discovery motion prepared on 7/4, but since the jury came back with the verdict on 7/5, she didn't have time to get it to the defense. I am no legal expert, but if we are talking about ethics from a layperson's point of view, this activity from the prosecution was abhorrent. The SAO knew that one search was performed since 2008. The CashBack program that returned the inaccurate 84 search results was not used until much later than the original computer search date. It was the job of the LE and the prosecution to check the accuracy of their "results" and to account for this discrepancy before they presented fictitious evidence to the jury. As the judge stated on more than one occasion, "once you've rung the bell, it can't be unrung." Fortunately, the verdict was "not guilty", but had there been a different verdict, how long would the defendant have had to wait in jail for a ruling or a new trial? This is a disgusting display that makes me as an American citizen fearful of an overzealous prosecution with a desire to win at all costs....ethics be darned.

[HollysGmom]

http://youtu.be/EVGIrtkY3F8?t=32m33s

Lead Investigator Yuri Melich admits to giving false testimony previously.

[HollysGmom]

Yuri Melich's testimony about his previous false testimony continues here:
http://youtu.be/m6EX6Sk6-_g

[HollysGmom]

June 27 2011 was a very interesting day in court.

1) Mr Bradley had informed authorities as to the error in his previous testimony on Sat June 25
2) The court had been in early recess the previous court day, Saturday due to a "legal issue"
3) The defense calls 4 prosecution witnesses in a row to refute and correct erronious testimony that had previously been given.
4) Is the day both PT & DT agreed upon Mr Bradley's imput

[Rick Underwood]

What was the Melich testimony about? I wasn't glued to the tv on the 4th. If Melich provided corrective testimony regarding the computer search data, then what was the defense lawyer talking about in the NYT story, and why didn't the NYT story pick it up? Also, I have not seen a correction or retraction.

[bob]

rick-no you misunderstand

the duty to correct regards FALSE evidence KNOWN to be false at some point during the trial.
NOT evidence that the attorney THINKS is POSSIBLY or even probably false

we still don't know how many times she hit the site...because there are two programs with two different findings.

[Omar]

We DO, in fact, know how many times she hit the site. There was testimony at trial that cleared that up during Mr. Baez's cross examination of Strenger and Osbourne. Whoever did the search hit the site ONE time and only one time. There is no misunderstanding. Linda Burdick prepared an amended discovery motion on July 4th but did not send it to the defense until July 5th...the day the verdict was read. The prosecution knew well before July 4th that there was one hit. Strenger and Osbourne knew before then as well. In fact, it was Strenger who told Bradley that they had known of the discrepancy long before he called them to notify them. So YES, there was misconduct. It was not a matter of the attorney THOUGHT POSSIBLY that the info was false. Will anything be done about it? Probably not. Should something be done about it? Definitely.

[bob]

omar-wait-if it was cleared up-then what remedial measures were in order?

[Omar]

Bob....if the state KNEW that there was only one search for chloroform as Strenger stated much earlier than July 4th (he said they had known this for a long time)and Bradly states that he spoke with Burdick on or around June 23rd, then it was the obligation of the state under Brady to disclose this to the defense. Instead, they swept it under the carpet and the defense uncovered it. What if the defense had not discovered this until AFTER the verdict had been rendered? Would that have changed the verdict? We will never know....but just because the defense uncovered it and cleared it up does (or at least SHOULD) not excuse the state's ignoring the obvious error and their refusal to correct it. It is quite obvious that the state's attorneys are seldom punished for such violations after the fact....particularly when the verdict is in the defense's favor. Does that make it ethically ok?? How many times are these tactics used and the defendent is found guilty? That's like saying that I ran my car into your house because I was angry at you, but no one got hurt, so we'll just ignore it. That is unexcusable and flawed thinking. If the state withheld exculpatory evidence, then they should not be able to skate by and cry "no harm no foul" just because the defense was astute enough to figure it out before the state got around to letting them know. OBVIOUSLY the state knew because Osbourne came into court with her attorney.....

[bob]

omar-brady lets you give them exculpatory evidence even at trial-not a brady violation because they told them eventually. brady is a disclosure rule that applies to things they even might think was exculpatory-not just things they know-but the only obligation is disclosure not correction-not before trial.

what i was saying was more on the issue of correction of actual false information (i,.e the allegedly false info regarding how many times she visited the website) unlike brady which applies to anything which might be exculpatory-the duty to correct only applies to things known to be false-there was nothing known to be false in this case-just things that might be exculpatory-and those were turned over-just a bit late.