Supreme Court Killing an Innocent Man

Nat Hentoff

In those states that still have capital punishment, prisoners on death row often depend desperately on court appeals wielding the Brady Rule to keep them alive.

This is Brady: “Evidence or information favorable to the defendant in criminal case that is known by the prosecution: under the Unties States Supreme Court case of Brady v. Maryland (1963), the prosecution must disclose such material to the defendant if requested to do so.

“Under subsequent Supreme Court cases, the material must be disclosed, even if not requested, if it is obviously helpful to the defendant’s case. These requirements are collectively known as the Brady rule (law.yourdictionary.com/brady-rule, 6/1/2013.

As I’ve discovered covering death penalty cases, either because of incompetent defense attorneys or judges made of stone eager to finish a case, the Brady rule is at times not allowed to be invoked and executions proceed.

I found a recent appalling example of that extinction of justice—not in a New York Times story or editorial but in a brief letter, “Injustice on Death Row,” buried at the very bottom of the June 1, 2013 Letters section, “An Injustice on Death Row.”

The author, Robert Morgenthau, was the most impressively and searchingly New York City District Attorney I’ve reported on in more than 60 years of covering the city’s courts where I live.

On May 28, Robert Morgenthau began, “the United States Supreme Court declined the opportunity to correct an egregious Brady violation that put William E. Kuenzel on Alabama’s death row 25 years ago.”

Mr. Kuenzel had been convicted in 1988 of killing a convenience store clerk.

“During the trial, the prosecutor assured Mr. Kuenzel’s lawyer that, in accordance with the Brady rule, they had turned over all potentially exculpatory evidence to the defense.”

Apparently the defense attorney took the prosecutor’s word.

But, Robert Morgenthau continues: “Twenty-two years passed before Mr. Kuenzel discovered that the prosecutors had concealed revealing police notes and grand jury testimony that supported his unwavering claim of innocence.”

Dig this from what the prosecutor did not disclose: the sole witness to the murder, an admitted accomplice who testified against Mr. Kuenzel in exchange for a 10-year prison sentence, originally told the police that he had been at the store with a different man and that Mr. Kuenzel had been at home in bed.”

Imagine Kuenzel being on death row all these years picturing himself in bed while that grisly murder was going on.

Former District Attorney Morgenthau searched into the case record to find out more about “the only other witness who placed Mr. Kuenzel at the scene of the crime.” She had told the grand jury that she ‘couldn’t really see a face’ as she drove by the store.”

The Supreme Court of the United States refused Mr. Kuenzel’s urging to act on these vivid violations of the Brady rule.

Who could not agree with Robert Morgenthau that “the unthinkable consequence of the toothless Brady rule will be that an innocent man will be executed and the prosecutor goes unpunished for his misconduct.”

Now let’s look at how our highest court made the Brady rule toothless. Justice Ginsburg delivered the opinion of the court declining to judge this case. . . . Joining her were Justices Kennedy, Breyer, Kagan and, to my great disappointment, Sotomayor, whose record until this case has truly focused on justice.

Joining Justice Scalia in dissent were Roberts, Thomas, and, in part, Alito.

Kuenzel’s habeas plea of actual innocence, Ginsburg decreed, involved “timing” as a relevant factor in “elevating reliability of a petitioner’s proof of innocence,” and “habeas petitioner failed to demonstrate diligence required to equitably toll period for filing habeas petition.”

This case, she continued, can’t be appealed to this court because “he did not file petition until nearly six years after coming into possession of affidavits supporting this claim of actual innocence.” The failure was much more likely his attorney’s.

And the relevant legislation concerning timing in such a case is a bill that President Bill Clinton strongly supported and signed into law, “The Antiterrorism and Effective Death Penalty Act,” which I criticized and documented at the time as a model of multi-dimensional injustice.

It provides a one-year statute of limitations giving a petitioner no more than one year to file a habeas petition in federal court.

You don’t have to be a legal scholar to be startled that an American citizen is now facing execution for a murder that took place when he was home in bed.

Justice Scalia’s dissent objects to a majority of his colleagues even having considered taking this case. Pointing to the one-year habeas limitation in the Antiterrorism and Effective Death Penalty Act, he maintains there is no exception “to this clear statutory requirement. The Constitution vests legislative power only to Congress.”

But in a June 1 editorial, “Beyond the Brady Rule” by the New York Times Editorial Board (not to mention the Kuenzel case), there is a much needed response to the shallow, misguided reasoning of Justice Scalia. Not seeing it, will a future Supreme Court follow his distortion of fundamental justice blindly?

Recommended by the editorial: “require the opening of the prosecutor’s files to the defendant as a general rule. North Carolina adopted open-files reform to make criminal cases more efficient and firm. . . . Ohio has followed North Carolina’s lead and other states should as well.

Is your state moving toward justice by ensuring that the Brady rule is fully enforced?

 

Nat Hentoff

Nat Hentoff is a United Media syndicated columnist, a senior fellow at the Cato Institute, and the author of, among other books Living the Bill of Rights (University of California Press, 1999) and The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2004). His latest book is At the Jazz Band Ball: Sixty Years on the Jazz Scene (University of California Press, 2010).


In those states that still have capital punishment, prisoners on death row often depend desperately on court appeals wielding the Brady Rule to keep them alive. This is Brady: “Evidence or information favorable to the defendant in criminal case that is known by the prosecution: under the Unties States Supreme Court case of Brady v. …

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