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A Case in Point

W. Scott Cole

Posted on May 3, 2019 02:29

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In the 1963 case, Brady v. Maryland, the United States Supreme Court ruled that, under the Constitution and prior to trial, the prosecution must turn over to the defense all evidence and information that may exonerate the defendant. This is a story of what happens when the prosecution fails to do it’s duty.

On November 25, 2016, Colorado State Trooper Cody Donahue was standing on the shoulder of an interstate highway investigating an accident when he was hit and killed by a semi-truck that drifted towards the shoulder as it approached him. The investigation determined almost immediately that it was not intentional.

The driver of the semi-truck was arrested and charged with careless driving resulting in death, careless passing of an emergency vehicle resulting in death, both Class 1 misdemeanors, and criminally negligent homicide, a Class 5 felony under Colorado law. It took almost two years to bring him to trial (we will not get into a discussion of speedy trial rights here).

The trial began in September of 2018. It had not proceeded very far when the judge declared a mistrial because the prosecution withheld evidence that was clearly material to the defense. At that time, the judge warned the prosecution that any repeat of such conduct at the retrial would result in severe sanctions.

The second trial began in February of 2019. It also did not proceed very far before the judge declared another mistrial because, you guessed it, the prosecution withheld yet more evidence that was required to have been turned over to the defense under Brady.

Because the evidence withheld both times related to the felony charge, the severe sanctions threatened by the judge took the form of the felony charge being dismissed, leaving the truck driver facing the two misdemeanor charges. Naturally, the District Attorney cried foul and appealed the ruling to the higher courts. I have not heard of a resolution to the appeal at this time.

The question here is why a prosecutor would withhold evidence clearly material to the defense, not just once, but twice. Sadly, it’s a simple answer.

The people that graduate from law school at the top of the class and then get the top scores on the bar exam are the ones District Attorney Offices hire. They are the brightest and most driven. In some ways, that is not a good combination, because they are also the ones who most hate to lose, ever.

Although law schools teach their students that their number one goal is to find the truth in criminal court, in practice it doesn’t always work that way. Too many times, the search for truth is a secondary consideration to getting a conviction.

In order to make the Brady requirements more effective, changes need to be made. Right now the person that decides what evidence is material to the defense is the District Attorney trying the case. That makes it too easy to simply not hand over information that could hurt the chances for a conviction, which is basically what happened here.

A good cure would be to, either have all of the prosecution's evidence turned over to the defense, or to have a team of independent attorneys review the evidence and decide what the defense needs.

Until something changes, things like this will keep happening.

W. Scott Cole

Posted on May 3, 2019 02:29

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