Let’s take the Supreme Court case of Cone v. Bell as an example. Gary Cone was found guilty of a brutal double homicide in 1980. For more than a quarter century the case has maneuvered through the courts, (typical of capital punishment cases), with the latest installment coming today in Washington D.C. Memphis prosecutors failed to release evidence to the defense that Cone was high on amphetamines at the time of the murder. The defense’s main argument was insanity, something that would have spared their client the death penalty. (And prevented 25 years of appeals and millions of dollars in court fees, paid by taxpayers.)
Being high on amphetamines would have lent credence to their claim, but Prosecutors today told the High Court such evidence was irrelevant. Some of the justices fervently disagreed, with Souter going so far as to call the respondent’s argument “utterly irrational.” Justice Stevens commented on the record that he worried about the ethics of the profession.
If the court rules against the state here, Cone might get spared the death penalty. But what about the prosecutors? Don’t let the Duke Lacrosse case and what happened to disgraced prosecutor Mike Nifong fool you-not every defendant is a wealthy white Duke Lacrosse player with money and clout to get a prosecutor disbarred. In fact, cases such as this usually go silently into the night-or silently into the court’s archives-without anything happening to prosecutors.
Something needs to be done. Prosecutors have an ethical and legal duty to uphold the law; releasing exculpatory evidence to the defense is the law. If they fail to uphold this important constitutional safeguard, they must face discipline. This is a serious transgression-by failing to release evidence they are obligated to give up, they are being dishonest not only to defense counsel, but to the court hearing the case.
Although criminal sanctions may be going too far, some sort of mandatory bar disciplinary action is necessary here. Prosecutors should be motivated to err on the side of disclosure in deciding whether to release evidence to the defense. As things currently stand, some prosecutors seem preoccupied with winning the case, not upholding the law and the principles of the Constitution.