Management Resources principles Bob Rahn and Kim Anklin were honored to be included in Penn State’s online course, Presumed Innocent? The Social Science of Wrongful Conviction. Interviewed extensively about the wrongful conviction and exoneration of Jonathan Fleming, many questions arose from the class. Kim Anklin has been answering questions from students in the forum, “Ask Kim Anything.” Although the class is complete we are reprinting some of the general entries with the hope that readers will learn more about these types of investigations.
Obviously the main idea is to ensure that people are not wrongly convicted to begin with rather than to deal with appeals and so on after the fact. What advice would you have for young defense counsel and young prosecutors?
To better answer this question, I reached out to Attorney Marvin E. Schecter. Marvin is a very well-known criminal defense attorney here in New York who has served as the Section Chair of the NYSBA (New York State Bar Association) Criminal Justice Committee. For many years, Marvin has worked tirelessly to bring reform for prosecutorial misconduct. Recently he and the NYSACDL (New York State Association of Criminal Defense Lawyers) proposed a bill calling for the establishment of a new state commission that would bring public accountability to violators of ethics rules and criminal procedure laws.
A few words of advice for new defense and prosecution attorneys – Marvin E. Schecter:
For young defense attorneys, they must prepare their cases completely if wrongful convictions are to be prevented. Part of that preparation involves the aggressive litigation pre-trial of Brady issues. Only when prosecutors are pushed, and pushed hard, do we get a more searching inquiry on the prosecution side of potential Brady material in their possession.
Defense attorneys should be asking the courts pre-trial sign orders requiring the release of Brady material even if statutes already require such turn over. The advantage of an order is that if it is violated then the court can use its contempt powers to punish – yes punish – the prosecutor for failing to insure that the defendant received a fair trial or is getting due process as required by the Constitution. When a court signs an order it has the effect sometimes of causing the prosecutor to focus with greater intensity on searching for, or re-evaluating, evidence which can properly be classified as Brady material.
For prosecutors the task at hand is simple: if in doubt turn over the material. Prosecutors need to understand that they must view a piece of evidence which is favorable to the defendant, or for that matter can be utilized by the defense as a lead for further investigation which may reveal further evidence exonerating the defendant in a way which comports with the law instead of the current nationwide system in which many prosecutors seek a variety of ways to MINIMIZE the evidence as not being favorable and therefore not within the Brady compulsion.
First, the law is clear that it is not up to the prosecutor to determine if evidence is admissible or if the evidence is not really a prior inconsistent statement of a prosecution witness. Repeatedly thousands of cases have been decided in the federal and state courts that REQUIRE the prosecutor to turn over such evidence REGARDLESS OF WHETHER IT IS ADMISSIBLE in evidence because the simple standard is the sought after Brady evidence need only be favorable to require it being turned over. For example, a prior inconsistent statement – whether there strong or even weak inconsistencies – is in fact Brady material.
Furthermore, it is not for a prosecutor to determine the strength or elasticity of a statement that the defense can utilize to impeach the credibility of a prosecution witness whose testimony is being utilized by the prosecution to prove the defendant guilty beyond a reasonable doubt. It is for the jury to determine credibility and whether the burden of guilty beyond a reasonable doubt has been met and a jury cannot do that if the prosecutor is hiding Brady material. What young prosecutors need to do is confront a cognitive bias that impels them to discount favorable evidence, and instead wrap their cognitive brain power around the concept that justice must be done first.
Management Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey. . Management Resources is a member of the New York State Association of Criminal Defense Lawyers, Associated Licensed Detectives of New York, and Founding Members and Regional Directors of Investigating Innocence.
Bob Rahn and Kim Anklin are available for interviews or speaking engagements. Contact ImaginePublicity at 843-808-08509 or email firstname.lastname@example.org