The U.S. Supreme Court will soon consider whether to grant certiorari in Brown v. Louisiana, a capital case about prosecutorial misconduct. The question the Court must consider is whether the Louisiana courts again failed to enforce prosecutors’ constitutional duty to disclose exculpatory evidence to the defense under Brady v. Maryland. David Brown’s Brady claim has been well-described recently in the New York Times, National Law Journal, and Huffington Post. 

Along with legal ethics centers at Cardozo, Fordham, and Yale Law schools, the Fair Punishment Project submitted an amicus brief in support of David Brown’s petition. The amicus makes three points in support of the Petitioner’s request for Supreme Court review. First, it explores how the Louisiana judiciary undermines the Brady doctrine. By highlighting many cases in which federal district courts, the Fifth Circuit Court of Appeals, and the U.S. Supreme Court itself have granted defendants relief and reversed state-level Brady decisions, the brief “establish[es] the proposition that Louisiana’s state courts often misapply Brady’s critical constitutional commands.”

Second, the brief analyzes and debunks the oft-stated idea that prosecutorial misconduct will be identified, punished, and thus deterred by other mechanisms for accountability like the state bar association or civil liability. The brief explains that prosecutors in Louisiana are essentially never disciplined by the state bar’s disciplinary board. In fact, the prosecutors in David Brown’s case have evaded professional responsibility because the Louisiana Supreme Court denied the Brady claim and somehow found the undisclosed evidence was not “favorable” to Mr. Brown. FPP’s brief also makes clear that civil liability is essentially foreclosed in light of the Supreme Court’s decision in Thompson v. Connick.   

Third, the amicus brief articulates what will happen if the U.S. Supreme Court allows the Louisiana Supreme Court’s decision in David Brown’s case to stand. The state court ruling below provides prosecutors with another powerful “tool for nondisclosure;” in so doing, the decision will “embolden” prosecutors to withhold even more exculpatory information from criminal defendants. And, these additional Brady violations will be undiscoverable is most cases, compounding Louisiana’s legacy of misconduct and wrongful convictions.

Ultimately, the amicus emphasizes the point that judicial intervention in criminal cases is necessary to ensure that the constitutional protection of due process means something. Such intervention will only happen if Louisiana’s state courts utilize the appropriate legal standards and comprehend fully that Brady is not optional and the Constitution is not a technicality. The U.S. Supreme Court needs to drive this message home.