What is Due Process?
Due process or due process of law is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land, instead of respecting merely some or most of those legal rights.
Brady material refers to the http://en.wikipedia.org/wiki/Brady_v._Maryland consists of exculpatory or impeaching information that is material to the guilt or innocence or to the punishment of a defendant. Following Brady, the prosecutor must disclose evidence or information that would prove the innocence of the defendant. Evidence that would serve to reduce the defendant's sentence must also be disclosed by the prosecution.
What is a Brady Violation?
A recent U.S. Supreme Court decision concerning the governments’ Constitutional duty to disclose information favorable to the Accused contained the language in the beginning quote. Reaffirmation of the prosecutor's role "...the representative...of sovereignty...whose interest...in a criminal prosecution is not that it shall win a case, but that justice shall be done."
As a result of Brady and Giglio, the government is constitutionally required to disclose any evidence favorable to the defendant that is material to either guilt or punishment, including evidence that may impact on the credibility of a witness. Furthermore, the defendant's failure to request favorable evidence does not leave the government free of this obligation because constitutional error results "...if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." The "duty to learn" thus extends the prosecutor's obligation not only to ensure that all exculpatory information is provided to the defense but also to undertake reasonable steps to ensure that the prosecutor is aware of all such material in the government’s possession. Even after the trial, the prosecutor is still responsible to disclose new information that is favorable to the defense. The prosecutor is also still held accountable for a Brady Violation even after the trial.
A Brady violation does not alone mean showing the prosecution knew of an item of favorable evidence unknown to the defense. But the prosecution which alone knows what is undisclosed has the consequent responsibility to gauge the likely effect of all such evidence. They must make disclosure when the point of ‘reasonable probability’ has been reached. This means that an individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf including experts and police.
EXAMPLES OF PROSECUTORIAL MISCONDUCT
Suppression of evidence
Misuse of the media
Misconduct involving witnesses
Investigative misconduct
Trial misconduct.
Improper closing argument based upon evidence known by the prosecutors to be false.
Any specific act of prosecutorial misconduct may fall into more than one category. For example, knowingly presenting perjured testimony would be misconduct involving a witness, as well as a violation of the duty to disclose exculpatory evidence.
Military Prosecutors chose not to disclose evidence!
The governements expert Dr. MacDonell did a demonstration for the prosecutors on Wednesday showing that the man was shot in the side of the chest first and then as he dropped to the ground his head passed in front of the muzzle. "That is the most logical explanation for what happened" Dr. MacDonnell said . When Dr. MacDonnell did the ONLY demonstration for the trial counsel and a few others, they had a duty to disclose this information.
Thursday, when 1LT Michael Behenna testified about what happened and Dr. MacDonnell leaned over to Dr. Byrd (also in on the demonstration) said "That's exactly what I told you yesterday". Dr. Byrd had a duty to disclose this information to the Defense! Dr. MacDonell told defense counsel as he was leaving the courtroom to catch a plane on Thursday night ‘Too bad I wasn’t allowed to testify because I would have been your best witness.’ When asked by defense counsel why that would be Dr. MacDonell explained that he was still retained by the government and so he couldn’t say, but to ask the prosecution.
Friday morning Mr. Zimmerman asked the Trial Counsel if they had any exculpatory evidence from Dr. MacDonnell based on his comment and they said no. The Trial Counsel has an independant responsibiliy to investigate what Dr. MacDonnell meant by that comment and they did not. Then in closing arguments again on Friday morning they stated that 1LT Michael Behenna's rendition of what happened was "impossible", "ridiculous" but they argued with the Defense's experts that there were tons of possibilities of what could have happened! It is one way or the other!
The Military Prosecutors had at least 3 or 4 chances to disclose Dr. MacDonnell's theory about what happened to the Defense counsel and they chose not to. There only motive was to build gainsmenship, they only wanted to win! Reaffirmation of the prosecutor's role "...the representative...of sovereignty...whose interest...in a criminal prosecution is not that it shall win a case, but that justice shall be done." Prosecutors, civilian or military are there, win or lose, to find out the TRUTH!
Quote
"This is evidence that does not forget. It is not confused by the excitement of the moment. It is not absent because human witnesses are. It is factual evidence. Physical evidence can not be wrong, it cannot perjure itself, it cannot wholly be absent. Only human failure to find it, study and understand it, or worse, to hide it, can diminish its value. Professor Edmond Locard
Michael, I Love you always
Shannon
0 comments:
Post a Comment