Does discovery stack the deck for felons?

Rule: The requirement on turning over evidence has been a contentious issue in recent weeks.

The Court

September 09, 2001|By Sarah Koenig | Sarah Koenig,SUN STAFF

SO YOU'RE the dealer in a poker game, and the rule is that you have to tell the other players all the cards in your hand that could possibly help them win, but they don't have to do likewise.

It's unfair, and you quit, right?

In the courtroom, though, the rule is known as "discovery," a requirement that has gained agitated attention in recent weeks because of yet another murder case botched when a city prosecutor failed to promptly reveal all her cards to the defense.

The public outrage directed at city State's Attorney Patricia C. Jessamy's office for mishandling the murder case of Courtney M. Noakes - the third time he's gotten off - sounds familiar by now. Since 1997, her office has lost or seriously undermined cases against a dozen defendants because of discovery problems. Her office refused to reconsider evidence in a wrongful murder conviction, and she has resisted reopening another case of a man convicted of murder 26 years ago based on what legal experts say is flawed evidence.

But after years of criticism and discussion, more training and the creation of a special court to handle discovery disputes before trial to prevent disasters, a new question arises: How on earth can mistakes like this still happen?

Maryland's discovery rules sound pretty straightforward: There's a list of standard reports and documents that the defense can get from prosecutors, such as defendant statements, reports by experts, police charges and the names and addresses of witnesses.

Beyond that, more than three decades ago the U.S. Supreme Court ruled that prosecutors must - without being asked - turn over any exculpatory evidence "material either to guilt or to punishment" of the defendant. Since "exculpatory" can be subjective, this is the part of the rules that lawyers usually argue about.

"The problem is, it's counterintuitive for a prosecutor who wants to win a case to provide the tools to the defendant that can allow that defendant to beat him," says Circuit Judge John N. Prevas, who runs the discovery court. With the exception of what Prevas called a few "misfits" with an "ostrichlike" attitude about discovery, most Baltimore prosecutors deal with evidence correctly, he and other judges say.

Prosecutor Lawrence C. Doan, who trains other prosecutors, says his colleagues clearly understand the rules, but that "at the fringes, this stuff can get very gray." Mistakes are just that - not an attempt to subvert justice. (Baltimore isn't the only jurisdiction where mistakes happen. A Prince George's murder case was declared a mistrial recently because someone failed to copy both sides of a police document. And Prince George's County has an "open file" policy, in which practically everything is turned over to the defense.)

Baltimore Judge David B. Mitchell, in charge of the criminal docket, has raised his voice repeatedly about discovery violations. But even he says that on a scale of one to 10, with 10 being the worst, city prosecutors' discovery problems rate a two, or maybe three. But, Mitchell says, "When you do have a screw-up, it can be monumental."

The Noakes case was monumental, even though the discovery court put in place to solve evidence problems worked properly.

Noakes, 21, and Phillip Jay Hill, 22, both of Baltimore, were charged with first-degree murder in the death of Daniel Eugene Gales, 37. Gales was shot several times on the 800 block of Jack St. He was hospitalized for almost a year before he died in August of last year.

As they prepared for trial, public defender Gregory Fischer, Noakes' attorney, and Jane Loving, representing Hill, asked prosecutor Cassandra Costley for additional evidence - specifically defendants' statements and police reports.

Costley didn't turn the material over, and the two sides finally ended up before Prevas for a hearing in July. Costley said the police reports didn't contain any exculpatory evidence. A detective testified to the contrary. Prevas ordered Costley to turn over the reports.

In them, the defense found a wealth of useful facts: descriptions of Gales' shooter that did not match the towering Noakes; names of other suspects; references to a missing police folder; a statement by Hill that Noakes "did not shoot nobody." Costley later said she had "misconstrued the nature of the information."

Based on this new information, about a week later Prevas ordered the entire police file be turned over the defense, an unusual step. And sure enough, the defense found still more evidence they claimed was exculpatory and asked that the case be dismissed. The continuing fight traveled between courtrooms as various judges tried to figure out what to do.

Finally, last month, Judge Wanda K. Heard was infuriated when Costley appeared in court with yet another piece of missing evidence: that the state's sole eyewitness to the shooting had been arrested for prostitution but not charged when she gave information about the case.

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