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July 20, 2011

Did Casey Anthony prosecutors violate Brady by intentionally withholding favorable evidence?

The question in the title of this post is prompted by this recent New York Times article, headlined "Software Designer Reports Error in Anthony Trial."   Here are the details:

Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.  The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted.  He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said....

The Orange County Sheriff’s Office had used the software to validate its finding that Ms. Anthony had searched for information about chloroform 84 times, a conclusion that Mr. Bradley says turned out to be wrong.  Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings.  Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.

Mr. Bradley’s findings were not presented to the jury and the record was never corrected, he said.  Prosecutors are required to reveal all information that is exculpatory to the defense. “I gave the police everything they needed to present a new report,” Mr. Bradley said....

Cheney Mason, one of Ms. Anthony’s defense lawyers, said it was “outrageous” that prosecutors withheld critical information on the “chloroform” searches.     “The prosecution is absolutely obligated to bring forth to the court any and all evidence that could be exculpatory,” Mr. Mason said.  “If in fact this is true, and the prosecution concealed this new information, it is more than shame on them.  It is outrageous.”...

Capt. Angelo Nieves, media relations commander for the Orange County Sheriff’s Office, said Mr. Bradley had a vested interest in coming forward since his software was used in the investigation.     “We’re not going to relive the trial again,” Captain Nieves said.  “We are not prepared to do that nor are we going to participate in that.”

A former Canadian police sergeant who specializes in computer forensic analysis, Mr. Bradley said he first became suspicious of the data after he testified on June 8.  He said he had been called to testify by the prosecution about his CacheBack software.  Instead, he was asked repeatedly about the Sheriff’s Office report detailing the 84 search hits on “chloroform,” which he had not seen....

Concerned that the analysis using CacheBack could be wrong and that a woman’s life might be at stake, Mr. Bradley went back to the drawing board and redesigned a portion of his software to get a more accurate picture....  His more thorough analysis showed that the Web site sci-spot.com was visited only once — not 84 times.

Mr. Bradley, fearing that jurors were being given false information based on his data, contacted the police and the prosecution the weekend of June 25.  He asked Sergeant Stenger about the discrepancy, and the sergeant said he was aware of it, Mr. Bradley said. He waited to see if prosecutors would correct the record.  They did not.  “They needed to get that right,” Mr. Bradley said.

July 20, 2011 at 09:19 AM | Permalink

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Professor:

I am pleased to see the government expert is intellectually honest.
However, I believe that you make the same mistake that prosecutors make when evaluating their obligations. The prosecutor’s obligation at the trial level is not to just turn over “exculpatory” evidence. Their job is to turn over “favorable” evidence. “We now hold that the suppression by the prosecution of evidence "favorable" to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).

Posted by: Y | Jul 20, 2011 9:58:47 AM

I think the clear answer to the title of this post is an absolute "Yes."

Posted by: DEJ | Jul 20, 2011 11:19:04 AM

Based on your astute comment, Y, I have now changed the question in the post title to use the adjective "favorable" instead of "exculpatory." Thanks!

Posted by: Doug B. | Jul 20, 2011 11:19:43 AM

It is highly unlikely the prosecutors will be sanctioned for this misconduct. Were they in my state, I would nonetheless report the story to the attorney grievance body and request an investigation.

Posted by: John Minock | Jul 20, 2011 11:38:13 AM

Irony alert?

Ms. Anthony was "clearly guilty" based on what the press reported and, now the prosecutors have “committed” an ethics violation based on a news report? The prosecution has already issued a response showing that they did disclose this to Mr. Baez who “brought the discrepancy forward in court testimony and again at closing with his court exhibit.”

I have no idea whether or not Mr. Baez did so, but I would guess the NY Times or the blogger could easily check the trial record. And perhaps should have done so before leveling the accusation at hand.

Posted by: mahtso | Jul 20, 2011 12:02:36 PM

As mahtso notes, it's strictly a factual dispute. Did the prosecutor tell defense counsel or not? I have no way of knowing, but I do know that those who insist on the presumption of innocence for axe murderers seem to be in a big rush to find the prosecution guilty based on one news report.

I guess my other reaction is that the defense, rather than bellyaching about this, should get on its knees and thank God that they got one of the few juries who would have returned the verdict that effectively let the lovely Ms. Anthony walk.

Posted by: Bill Otis | Jul 20, 2011 12:22:10 PM

Why didn't Mr. Bradley tell the defense attorneys what he knew?

Posted by: jacob berlove | Jul 20, 2011 2:54:35 PM

Bill Otis is certainly right that this appears to be a factual dispute. Interestingly, he admits he "has know way of knowing" how the issue should come out - yet in the next breath professes to be cocksure that few juries would not have found her not guilty. Also, he states "but I do know that those who insist on the presumption of innocence for axe murderers seem to be in a big rush to find the prosecution guilty based on one news report." I thought we all, including Bill, believed in the presumption of innocence not just for axe murderers but for all accused of a crime. If his point is we should not rush to a judgement without knowing all of the facts - I totally agree--and think he ought to practice that.

Posted by: Steve Prof | Jul 20, 2011 3:30:57 PM

Excuse the extra "not"

Posted by: Steve Prof | Jul 20, 2011 3:32:03 PM

Steve Prof --

"...professes to be cocksure that few juries would not have found her not guilty."

I missed the "cocksure" part. Where was that? Or is this another spliced-in "rhetorical flourish" like my supposedly alleging a dark "conspiracy" involving Justice Kennedy and the ABA, when actually "conspiracy" was both your word and your concept.

Or your comment now could be, I guess, another "hahaha, you took the bait" sort of thing. When, without notice, you can bail out of an ostensibly sincere postion and reverse course, there's no way to know what you actually intend.

"I thought we all, including Bill, believed in the presumption of innocence not just for axe murderers but for all accused of a crime."

You're sliding by a critical fact: In the Casey Anthony case, the evidence is in and the trial is over. The presumption accompanies the defendant into the jury room. It does not accompany her out of it. The trial is finished, and the presumption has gone poof.

The jury made up its mind, and I am entitled to make up mine. Time and again on this site, commenters acidly criticize verdicts of conviction as having been erroneous. Not once have I seen you question their prerogative to do so. Now, similarly, I will question the Casey Anthony verdict, as people across the country are doing. Their opinion by a massive amount is the same as mine: The jury blew it.

Juries get to decree legal outcomes. They do not get to decree reality.

P.S. I'm not giving the presumption of innocence to OJ either. If you want to hang around him when he's furious and has a long, nasty knife, go right ahead. I won't be joining you, with or without the presumption of "innocence."

Posted by: Bill Otis | Jul 20, 2011 4:28:41 PM

How the responsibility enforcers take responsibility:

Capt. Angelo Nieves, media relations commander for the Orange County Sheriff’s Office, said Mr. Bradley had a vested interest in coming forward since his software was used in the investigation. “We’re not going to relive the trial again,” Captain Nieves said. “We are not prepared to do that nor are we going to participate in that.”

It's contemptible.

Posted by: Anon | Jul 20, 2011 4:38:51 PM

Try reading what you wrote : "but I do know that those who insist on the presumption of innocence for axe murderers seem to be in a big rush to find the prosecution guilty based on one news report." YOU were writing about the presumption for axe murders not Ms. . Casey !!!! Of course you can have any opinion you want- but you do not know all the facts in the trial like the jury did. As for the "cocksure" that was my opinion based on the certainty in which you advance virtually every opinion on this site. So know you are the judge of reality- nice????

Posted by: Steve Prof | Jul 20, 2011 5:17:07 PM

Steve Prof --

Human beings judge reality hundreds of times a day, every day. Wanna try to walk across a busy street without judging reality? Wanna try to figure out the right school for your kids without judging reality? Wanna make a medical decision without judging reality?

I judge it all the time and so do you.

P.S. I see that "cocksure" now goes on the shelf with "conspiracy" -- i.e., you make up your own word, velcro it onto what I say, and then criticize me for the exaggeration YOU just created! Far out!!!

Posted by: Bill Otis | Jul 20, 2011 5:31:14 PM

You are actually worng, Bill. The jury did create reality b their NG verdict. YOU are free to not accept it but the Gov will not be incarcerating her based on your alleged reality that she is guilty. A reality you reach without knowing all the facts presented in trial. Now ....that's a cocksure person !!! Or if you prefer supremely overconfident.

Posted by: Steve Prof | Jul 20, 2011 5:36:55 PM

Bill, slow down because your epidermis is getting very thin. Do you concede that your diatribe about the presumption being lost when the jury started deliberating had absolutely nothing to do with my post - remember, Bill,you were talking about the presumption for the hypothetical axe murders not Ms.Casey. Come on Bill admit for once on the post you may be wrong ..can you do that??????

Posted by: Steve Prof | Jul 20, 2011 5:45:58 PM

Steve Prof --

"You are actually worng, Bill. The jury did create reality b their NG verdict. YOU are free to not accept it but the Gov will not be incarcerating her based on your alleged reality that she is guilty."

Ha! You're just pretending not to know that the reality I was talking about was not the undisputed real world effect of the NG verdict, but whether, in the real world, she killed the kid. Nice try, though.

"A reality you reach without knowing all the facts presented in trial."

I know a greater portion of the facts here than I did about the OJ trial, but, like the great majority of the country, not knowing all the facts the jury knew does not prevent me from strongly believing that OJ -- and Casey Anthony -- got away with murder. And you believe it too, don't you?

"Now ....that's a cocksure person !!! Or if you prefer supremely overconfident."

And how confident are you that she DIDN'T do it?

Posted by: Bill Otis | Jul 20, 2011 6:22:41 PM

Doug,

Your question raises an interesting conceptual issue: can Brady ever be violated if the defendant is acquitted? Because Brady is grounded in the Due Process Clause of the Fourteenth Amendment, and because the Due Process Clause guarantees due process of law before an individual is deprived of life, liberty, or property by the state, arguably there can never be a due process -- and hence, a Brady -- violation if the defendant is NOT deprived of life, liberty, or property. Are you aware of any cases addressing this issue? I am not.

Posted by: Michael J.Z. Mannheimer | Jul 20, 2011 7:10:43 PM

Bill, I did not hear all the evidence so I have no well informed opinion. The great majority of the country, thank God, does not decide guilty or NG in specific trials so that argument is a crimson herring. You appear to have been an appellate lawyer-- not a trial lawyer-- but in case you didn't notice a trial can turn on one statement of a single witness or snippet of evidence. You did not hear nor do you know all the evidence in either trial. It's amazing to me you can hold such strong opinions without knowing all the facts. I hope that is not a practice you held when you were entrusted with doing justice. And no, I do not know if Casey Anthony "got away with murder." I guess you only trust juries when they agree with you. Pathetic

Posted by: Steve Prof | Jul 20, 2011 7:57:08 PM

@ Michael: "Your question raises an interesting conceptual issue: can Brady ever be violated if the defendant is acquitted?"

At least doctrinally, the answer is no: even though the term "Brady violation" is often used as shorthand for any failure to disclose information that might have helped the defense, the Supreme Court has clarified that there is no such thing as true Brady violation unless the undisclosed information was material. The concept assumes a conviction, with the undisclosed information at least reasonably likely to have made a difference to the outcome.

None of this is to excuse failures to disclose information of which the defense is unaware and that prosecutors know or should know ought to be disclosed.

Of course, as commenter mahtso pointed out: there seem to be conflicting accounts as to whether the prosecution actually failed to disclose this information. That's a question as to which there's presumably a straight yes-or-no answer. It would help to actually know that answer before jumping to the conclusion that the prosecutors committed a flagrant violation of the defendant's rights.

Posted by: guest | Jul 20, 2011 11:35:28 PM

Steve Prof --

Maybe you've been a lawyer too long. As I have pointed out to you, in a discussion you assiduously avoid, ordinary human beings decide reality dozens of times a day, and without benefit of a trial or anything like a trial. This runs the gamut from everything to deciding whether it's safe to cross the street to deciding whether a given company or contractor is honest enough to do business with.

For example, you say: "The great majority of the country, thank God, does not decide guilty or NG in specific trials so that argument is a crimson herring."

Righto. And the argument that Osama was guilty of mass murder must also be a crimson herring, since he never got a trial at all. Everything we know comes only from news reports. A fortiori -- under your we-didn't-see-the-trial-so-we-just-can't-know theory -- we have no reliable basis for distinguishing between Osama and Mother Theresa.

News alert: One does not routinely need to be at a trial, indeed there does not routinely need to be a trial at all, in order for sensible people to draw a conclusion about the REAL WORLD conduct of Mr. or Ms. X. Again, you certainly know this, and are just pretending not to.

Even the untried Mr. Osama did not kill his own kid so he could go out for party time. Ms. Anthony, in all likelihood, did. Any other pretense is -- how should I say this? -- pathetic.

Posted by: Bill Otis | Jul 21, 2011 9:39:13 AM

Bill,
Your analogy of OBL to Ms. Anthony --well...let's just say ....PATHETIC - maybe I have been lawyer too long but are you sure you are one ??? With analogies like this ya gotta wonder, BIll. But you do provide lot's of entertainemnt!!!

Posted by: Steve Prof | Jul 21, 2011 10:54:29 AM

Steve Prof --

"...maybe I have been lawyer too long but are you sure you are one ???"

One of the reasons I post under my real name is so that anyone who cares to can look up my cases. Would you have an objection to putting up a link to some of yours?

The fact remains -- a fact you do not and could not rationally deny -- that people all the time make judgments about what happens in the real world based on information well short of the complete record, or ANY record, of a trial. Your idea that one cannot reach a sensible judgment about Casey Anthony without having read the entire trial record is less pathetic than absurd.

Posted by: Bill Otis | Jul 21, 2011 12:04:13 PM

Bill, I agree with your basic premise that we all make real world decisions all the time based on an incomplete record....that is stating the obvious..but quite different than pronouncing somebody guilty beyond a reasonable doubt based on a few TV riposts ..can't you see that difference ...of course, you can't!!!!

Posted by: Steve Prof | Jul 21, 2011 1:27:03 PM

Steve Prof --

"...quite different than pronouncing somebody guilty beyond a reasonable doubt based on a few TV riposts..."

Of course I never said she was guilty beyond a reasonable doubt. What I actually said -- which you full well know since you responded to it -- was this: "Even the untried Mr. Osama did not kill his own kid so he could go out for party time. Ms. Anthony, in all likelihood, did." (Jul 21, 2011 9:39:13 AM)

Did you miss the phrase "in all likelihood?" Does that phrase mean "beyond a reasonable doubt?"

Yikes. As you asked me, are you sure you're a lawyer? Or is this just another of your add-on "rhetorical flourishes?" You know, the sort of "flourish" in which you make up someone else's position for them so you can criticize it.

Posted by: Bill Otis | Jul 21, 2011 8:51:50 PM

Funny how everyone seems to be so outraged over this, yet we do not know if the prosectution turned it over or not. I find it especially ironic that the defense finds it "outrageous". I myself found their opening statement outrageous and I fully believe they knew that what they claimed about George, Lee and little Caylee drowning was absolutely NOT the truth. Yet people seem to be condoning that method of defense?
The truth is that there was in fact a search for "how to make chloroform" done from that computer at a time when Casey, not Cindy was home. Good enough for me.

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