Study finds courts give prosecutors leeway on disclosing evidence

More than 50 years ago, the U.S. Supreme Court said prosecutors, who have much more access to crime-scene evidence than defense lawyers, must turn over any information they find that might help the defendant. But when they fail to turn over favorable evidence, courts these days seldom do anything about it, according to a new study co-authored by a Santa Clara University law professor.

The nationwide study examined 210 cases over a five-year period in which prosecutors had withheld evidence that defense lawyers, when they later learned about it, claimed they could have used to get an acquittal or a lesser sentence. In 188 of those cases — nearly 90 percent — federal courts ruled that the evidence, while potentially favorable to the defendant, wasn’t important enough to have made a difference, the report said. The defense prevailed in only 22 cases.

The prosecution victories included several rulings upholding death sentences. In one, a federal appeals court affirmed the capital conviction and sentence of William Payton for a 1980 rape and murder in Orange County, despite finding that prosecutors concealed evidence that a key witness had acted as a government agent, an allegation he had denied on the witness stand. After unsuccessfully appealing his death sentence, Payton is among a group of condemned prisoners challenging lethal injection procedures in California, which last conducted an execution in 2006.

Another appeals court discounted Tennessee prosecutors’ withholding of information about self-destructive behavior by murder defendant Abu Abdur’Rahman, which defense lawyers might have used to try to persuade a jury to spare his life. Abdur’Rahman is scheduled to be executed in October.

A Southern California case turned out better for the defendant, but only after he spent 36 years in prison, the longest confinement in the state for an inmate later ruled to be wrongfully convicted.

Police reports sealed

Daniel Hanline was freed last week by a Ventura County judge after newly tested DNA evidence indicated he was innocent of the murder for which he was serving a sentence of life without parole. Four years ago, a federal magistrate recommended overturning Hanline’s conviction because prosecutors had sealed police reports that could have damaged the credibility of their main witness, Hanline’s former girlfriend. But U.S. District Judge Virginia Phillips rejected that recommendation in 2011, saying the prosecution’s case was so strong that the withheld evidence didn’t matter.

“Despite the clear correlation between withholding evidence and wrongful conviction, courts far too often tolerate prosecutors’ failure to properly disclose favorable information,” said Santa Clara’s Kathleen Ridolfi, who heads the Veritas project at her law school and conducted the study along with the National Association of Criminal Defense Lawyers.

The report has been strongly endorsed by a prominent federal jurist.

“Once evidence has not been presented to the defense and doesn’t come in and you get a conviction, all of the momentum of the process is to uphold the conviction,” said Alex Kozinski, a Ronald Reagan appointee who has just completed a seven-year term as chief judge of the Ninth U.S. Circuit Court of Appeals in San Francisco. He was speaking at a panel discussion on the newly released report.

The study, Kozinski said, presents “a rare opportunity to go back and recalibrate our criminal justice system in light of hard evidence that, really, there are people being put away who didn’t do it. This is a sobering thought that should shake us all to the roots who are involved in criminal justice.”

Key 1963 court ruling

The study focuses on courts’ implementation of the Supreme Court’s landmark 1963 ruling in Brady vs. Maryland. The 7-2 ruling said the government must turn over all “material” evidence — information with a “reasonable probability” of affecting either the conviction or the sentence.

Ridolfi noted that prosecutors, not judges, make the initial decision on whether evidence in their possession is “material” — which means, she said, that defense lawyers may never learn about undisclosed information that might help them. And if the evidence comes to light only after the trial, Ridolfi said, courts have proven reluctant to disturb the jury’s verdict.

In one case cited in the study, a federal judge in 2009 upheld Victor Hunt’s conviction and sentence of 40 years to life for a 1998 murder in Stockton, despite finding that prosecutors had withheld information about a leniency agreement with a witness. The judge noted that the jury had heard about the witness’ criminal record, so the non-disclosure, though improper, was immaterial.

Another federal judge upheld Raul Salgado’s conviction and life sentence for a 2005 attempted murder in Palm Springs, despite ruling that prosecutors should have disclosed the intended victim’s description of his attacker and a drawing made from the description, which did not resemble Salgado. The judge said there was “overwhelming” evidence of Salgado’s guilt, including his fingerprints at the crime scene.

In the case of Abdur’Rahman, sentenced to death for the 1986 robbery and murder of a drug dealer in Nashville, prosecutors withheld a police report that said the defendant, after his arrest, repeatedly banged his head against a table and a wall at the police station.

Defense lawyers said the report might have persuaded one or more jurors that Abdur’Rahman was mentally ill and should not be executed. But in a 2-1 ruling in 2011, the Sixth U.S. Circuit Court of Appeals said Abdur-Rahman and his wife testified about his alleged mental illness, and that the suppressed head-banging incident “adds little” to the evidence the jury considered and rejected.

Senator’s case

The best-known recent case of withheld evidence involved Sen. Ted Stevens, R-Alaska, convicted in 2008 of failing to disclose gifts and defeated for re-election later that year. Newly appointed Attorney General Eric Holder dismissed the charges in 2009 after concluding Alaska prosecutors had concealed important evidence.

After Stevens’ death in a plane crash, another senator from Alaska, Republican Lisa Murkowski, introduced legislation in 2012 that would require prosecutors to disclose all evidence potentially favorable to the defense, regardless of whether it is “material.” Holder’s Justice Department opposed the measure, saying it went too far, and it was defeated. Murkowski plans to reintroduce it next year and says the new study shows why a change is needed.

“We can no longer allow the government to have a finger on the scales of justice,” the senator said in a statement.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko