Episode 5 Season 1: The Essence of Louisianas Exonerations

This is a call to action for the Juneteenth organizations, Black Ministers, Fraternities, Sororities and all right thinking counterparts that celebrate Dr. King and all the soldiers involved in the Civil Rights Movement that worked so hard for us to have equal justice and be treated fairly in the Courts. 

Ask yourself, can we really continue to ignore the fact that those we pay to represent us in State courts be allowed to withhold exculpatory material evidence from the Defense without us demanding that there be major Accountability under the fullest extent of the law.

Yes, there are Federal and State laws that forbid such behaviors, they just haven't been applied when it comes to black people being wrongfully convicted and later exonerated. 

In addition to pursuing investigations into State Prosecutors that participate in these offensive behaviors, as a lower level of Accountability there are State Bar Rules that govern State Prosecutors but, even those have rarely been utilized when it comes to taking the freedom of a black man or other wrongfully convicted person that was later exonerated. 

This case went all the way to the U.S. Supreme Court but, what happened in the lower Louisiana Courts details the steps the Court found State Prosecutors took that resulted in what was later found to be a wrongful conviction that later resulted in an exoneration. 

Be sure to listen to each Episode of the Judge's rulings because it should make you wonder as it does me:  Why All the Disrespect for black men and others? Why all the Disrespect for the law?  Why all the Disrespect for the safety of the public and public trust? Why all the Disrespect for the Rules that govern lawyers? 

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Transcript

SPEAKER_00 0:03

I can't play my tongue. I gotta put my tongue up by the fake em down with the weak man of course. Yeah, we take them back, but I don't do a throwin' beer, put a push and wall, back door, pick 'em down, dummy, we're in the court. Wake 'em up, wake 'em up, gotta know the fact.

SPEAKER_01 0:24

You would throw them in, put a twist and wall, black box, in contrast to defendant's theory, the jury heard evidence suggesting that the Brady violation was not solely the result of Deegan's actions. Whitaker testified that he had seen the report and placed it on Williams' desk, and Realman testified that he had no reason to believe that Deegan would have taken the report off of Williams' desk. Although denying that he ever saw the report, Williams admitted that he was aware there was blood evidence in the case and that he deliberately avoided mentioning blood evidence in JT's armed robbery trial. Former Assistant District Attorney Glass testified that he helped investigate the incident when it was brought to Connick's attention in 1999 and that it was his impression that Whitaker and Williams were covering something up. Also, according to Glass, Williams told sibling number three that the blood evidence was, quote-unquote, inconclusive. Thus, although there was evidence that Deegan acted alone, there is also evidence from which the jury could have believed that others had had a hand in failing to turn over the exculpatory evidence. Further, throughout the trial of this matter, defendants attempted to place the blame for JT's conviction on Numa Bertle, henceforth known as Burtle, JT's defense counsel at his armed robbery case. Defendants argued that, because Williams stated at the motion to suppress hearing that the government wanted to take JT's blood, Bertle should have been aware that there was blood evidence and made an effort to discover it. Such reasoning could easily be applied to defendants in this case whose knowledge of the blood evidence was superior to Bertle's. In sum, then, drawing all inferences in favor of JT, a reasonable jury could have believed that the constitutional violations in this case were not solely attributable to Deegan's alleged criminal conduct, but instead were the result of confusion over Brady by various attorneys in the DA's office. Footnote 15. Quote, a jury verdict must be upheld unless there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did. Because there is a legally sufficient evidentiary basis for the jury's verdict, we may not reverse on this ground. Number three, the blood evidence was obviously exculpatory. Next, defendants assert that because the blood evidence was obviously exculpatory and withholding the evidence was such a clear violation of the law, no training could have helped in this instance. Defendants rely on Burge versus Parish of St. Tammany, Burge 1, 187, Federal III, 452, Fifth Circuit, 1999, for their claim that there can be no failure to train when the evidence is obviously exculpatory. In Burge 1, the plaintiff claimed that the district attorney failed to implement policies and training to ensure that all materials, including exculpatory evidence, that were gathered by the sheriff's office were transmitted from the sheriff to the district attorney and then disseminated to the appropriate assistant district attorneys and turned over to the criminal defendants. ID at 472. After reviewing the evidence, the court determined that there was no deliberate indifference. ID at 473. The court went on to state that, even if the training were inadequate, the material at issue, quote, was of such a quality and quantity that any reasonably qualified and experienced prosecuting attorney would have recognized it as braiding material that he was required to disclose. End quote. ID at 475. Therefore, any alleged failure to train did not cause the constitutional violation. ID. The problem with defendants' argument in this case is that several of defendants' own witnesses contended that the blood evidence was not braiding material in the absence of knowledge of JT's blood type. Val Solino, hereafter referred to as Salino, the Rule 30B6 representative for the DA's office, testified that, quote, if I'm holding a crime lab report that says blood on a shoe is B, and I have some reason to believe that the blood on the shoe came from the perpetrator, and I don't know what the perpetrator's blood type is, do I feel I have a legal requirement at that point to disclose that lab report? No, end quote. Footnote 16. Glass testified that in 1999, Connec argued with him that there was no duty to turn over the report unless the attorney knew that it did not match JT's blood type. Although Williams later testified that he would have turned the report over, he stated that had he been in charge of responding to JT's request for evidence in the armed robbery trial, he would simply have responded that the evidence was, quote unquote, available for inspection. With respect to the withheld police reports, Dubalier argued at trial that he was not required under Brady to turn them over. Therefore, despite defendants' current agreement on appeal, defendants' position at trial was less than clear about whether the evidence at issue was obviously exculpatory. Given defendants' conflicting claims, there is no cause to overturn the verdict on the ground that the material was obviously exculpatory. Number four, Conic provided adequate training, supervision, and monitoring. Defendants' next contention is that CONIC provided adequate training in the form of on-the-job training, Saturday training sessions, dissemination of memos and case opinions, and counseling. Further, each attorney had received training in law school and participated in self-training after law school. In support of their argument, defendants rely on two cases from this court that concerned training on Brady issues. First, in Burge 1, the evidence showed that there was no special training program on Brady, 187, Federal III at 471. Instead, the district attorney, quote, relied on the professional education, training, experience, and ethics of his subordinates and the performance of their constitutional responsibilities, end quote. ID. However, the plaintiff in Burge 1 did not, quote, focus directly on the adequacy of the training or supervision of the district attorney's assistants and employees in relation to the tasks that particular persons must perform, end quote, but instead attempted to identify deficiencies in the procedures relating to their surrender of Brady material. ID at 473. Thus, the office procedures related to Brady materials were called into question in Burge 1, not the training on Brady. Footnote 17. Defendants also rely on this court's decision in Cousin versus Small, 325, Federal 3rd, 627, Fifth Circuit, 2003, which, like the instant appeal, concerned the Orleans Parish DA's office's failure to train on Brady issues. There, however, the plaintiff conceded that the training on Brady was adequate in 1995. ID at 629-638. That concession says nothing of the training, supervision, and monitoring that existed when the DA's office tried JT in 1985. Footnote 18. Thus, neither Burge 1 nor cousin stands for the proposition that a district attorney may rely solely on the law school or on-the-job training of attorneys. Although there were some evidence in this case that attorneys in the DA's office might have received some training, the jury was entitled to believe the ample evidence that the attorneys received no training on Brady's requirements. None of the three prosecutors involved in JT's prosecutions recalled receiving any Brady specific training. For example, Williams testified that he did not recall any training related to Brady's requirements. Question. What type of training was there at the DA's office regarding Brady material? Williams. Again, I don't recall any specific training. Duvalier testified similarly. Question. Do you recall any specific Brady training? Duvalier. I don't recall specifically any training. As did Whitaker. Question. So they didn't sit down and do a little seminar for you on what Brady was and how to live with it? Whitaker. Not that I recall. Other attorneys in the DA's office at the time of JT's prosecutions testified consistently. For example, Realman stated, quote, to answer your question specifically as it relates to Brady, I don't recall that I was ever trained or instructed by anybody about my Brady obligations. No. End quote. Indeed, the government stipulated that, quote, none of the district attorney witnesses recalled any specific training session concerning Brady prior to or at the time of the 1985 prosecutions of JT. End quote. Footnote 19. That is, no prosecutor testified about a specific example of Brady-related on-the-job training, Brady-related Saturday training sessions, Brady-related advance sheets, or counseling or pretrial of a case that resulted in Brady specific discussions. This evidence supported the jury's findings that Conock failed to adequately train his attorneys on Brady and lent credence to the district court's conclusion that JT did not need to prove a pattern of similar violations as discussed above. See City of Canton 49, U.S. at 390, No. 10, 109, Supreme Court, 1197. Walker, 974, Federal 2nd, at 300. Quote, we conclude that a complete failure by the DA in 1971 to train assistant district attorneys on fulfilling Brady obligations could constitute deliberate indifference sufficient to give rise to Section 1983 Municipal Liability. End quote. Number five, miscellaneous arguments. Defendants make two other arguments regarding the sufficiency of the evidence in this case. That there was no evidence, one, that Connick was deliberately indifferent in failing to establish policies or procedures to ensure the acquisition of Brady material from the police department, and two, that Conock was deliberately indifferent to the need to establish an open file policy. Neither argument merits much attention. The need for a policy to ensure the acquisition of Brady materials from the police department was not a theory of liability argued to the jury. It came up in a roundabout way in the post-trial briefing, and there is no indication that the district court relied on any arguments in that regard. The open file policy was mentioned at trial, but only in the context that the lack of an open file policy increased the need to make sure that the attorneys understood Brady. Again, it was not argued to the jury as a theory of liability. Therefore, there is no basis for reversal on either of these grounds. C. Jury instructions. Defendants next argue that the district court erred in its instructions to the jury regarding deliberate indifference, and by not giving the jury various other instructions. We review a jury charge for abuse of discretion. Julian vs. City of Houston, 314, Federal, 3rd, 721, 727, Fifth Circuit, 2002. In doing so, we use a two-pronged standard of review to assess the propriety of the given instructions. First, the challenger must demonstrate that the charge as a whole creates substantial and eradicable doubt whether the jury has been properly guided in its deliberations. Second, even if the jury instruction were erroneous, we will not reverse if we determine, based upon the entire record, that the challenge instruction could not have affected the outcome of the case. Johnson v. Sawyer, 120, Federal 3rd, 1307, 1315, Fifth Circuit, 1997. Quote, a prerequisite to our review of the instructions in this manner, however, is that the objection must have been brought to the attention of the District Court at trial, end quote. Navigant 508, Federal III, at 293. Pursuant to the Federal Rule of Civil Procedure 51C1, quote, a party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection. End quote. Failure to properly object to an instruction will result in a plain error review, which will require defendants to establish one error. Two, that is clear and or obvious. And four, that, consistent with the court's discretion, not correcting the error would seriously affect the fairness, integrity, or public reputation of the judicial proceedings. See Wright vs. Ford Motor Company, 508, Federal III, 263, 272, Fifth Circuit, 2007. With that in mind, we turn first to the instructions regarding deliberate indifference. 1. Deliberate Indifference Instructions. Because the jury found that the DA's office was deliberately indifferent to the need to train its attorneys on Brady, many of the defendants' arguments concerning the jury instructions have to do with the issue of deliberate indifference. Defendants argue that the district court, one, failed to properly define deliberate indifference for the jury. 2. Incorrectly indicated that an unintentional failure to monitor was sufficient for liability, and three incorrectly stated that deliberate indifference did not necessarily mean intentional. We address each argument in turn. A failure to define deliberate indifference. Defendants assert that although the district court informed the jury of what deliberate indifference was not, negligence or gross negligence, the district court never explained to the jury what deliberate indifference was, leaving the jury to guess at the term's meaning. Defendants did not raise this objection before the district court, so we review their claim for plain error. See Navigant 508, Federal III at 295-396. Having reviewed the jury's instructions given by the District Court, we conclude that defendant's assertion is unfounded. As noted earlier on the topic of deliberate indifference, the district court instructed the jury as follows. Deliberate indifference requires a showing of more than negligence or even gross negligence. For liability to attach because of a failure to train, the fault must be in the training program itself, not in a particular prosecutor. In order to find that the district attorney's failure to adequately train, monitor, or supervise amounted to deliberate indifference, we must find that JT has proved each of the following three things by a preponderance of the evidence. First, the district attorney was certain the prosecutors would confront the situation where they would have to decide which evidence was required by the Constitution to be provided to an accused. Second, the situation involved a difficult choice, or one that prosecutors had a history of mishandling, such that additional training, supervision, or monitoring was clearly needed. Third, the wrong choice by a prosecutor in that situation will frequently cause a deprivation of an accused constitutional rights. To paraphrase them, the district court told the jury that for a failure to train to be deliberately indifferent, there must be proof that the district attorney knew that prosecutors would be confronted with difficult legal issues that had a substantial impact on defendants' constitutional rights. Footnote 20. This tracks the Supreme Court's requirement that a failure to train is deliberately indifferent when, quote, the need for more or different training is obvious and the inadequacy likely to result in the violation of constitutional rights. See also Estate of Davis 406, Federal Third at 381, stating that an official acts with deliberate indifference when he, quote, disregards a known or obvious consequence of his action, end quote. Indeed, in their proposed jury charge, defendants themselves requested a nearly identical instruction regarding the above three-element standard. Thus, rather than leaving the jury with nothing on which to base its decision, the district court spelled out the requirements of deliberate indifference as described by the Supreme Court and this court. Further, as discussed below, the District Court correctly informed the jury that deliberate indifference was more than negligence and gross negligence, but less than intentional. Consequently, we find no error, plain or otherwise, in this aspect of the district court's instructions. B. Response to jury question. Defendants next contend that the district court's response to the jury's question was erroneous because it left the jury with the impression that deliberate indifference could mean any unintentional failure to mark. As noted earlier, the jury sent out the following question during its deliberations. What does deliberate indifference mean? Does it mean intentional or would failure to monitor be considered deliberate? The district court responded, deliberate indifference does not necessarily mean intentional, but does require more than mere negligence or even gross negligence. Please refer to pages 26 and 27 of the legal instructions for further guidance. Defendants interpret the jury's question as presenting two options of what deliberate indifference might mean. One, intentional conduct, or two, any unintentional failure to monitor. Because the district court stated that deliberate indifference was not necessarily intentional, defendants assert that the jury must have believed that any unintentional failure to monitor was sufficient. Review of the transcript of the discussion between the court and counsel regarding how to respond to the jury's question reveals that defense counsel did not raise this point of alleged error before the district court. Regardless, we see no error in the district court's response. Defendants' assertion that the jury could have believed that any unintentional failure to monitor was sufficient lacks support in the record. The jury was instructed that the failure to train or monitor had to be deliberate and could not be based on mere negligence or gross negligence. Therefore, contrary to defendants' claims, any unintentional act would not have been sufficient to create liability.