How much evidence is the prosecution required to disclose to defense counsel? The U.S. Supreme Court recently upheld a standard that continues to allow district attorneys and police to be selective with the information they choose to share with defendants.

In Turner v. United States, the Court affirmed the 1990 murder convictions of seven men — despite the prosecution’s failure to reveal evidence that pointed to another suspect and may have led to an acquittal. Michigan law professor Samuel Gross, founder of the National Registry of Exonerations, examined this decision in The Crime Report.

“Turner reaffirmed a terrible old rule that has done great harm to the accuracy of criminal trials, and will continue to do so,” he wrote.

The problem with the Turner convictions begins with the police believing a 1984 murder/rape was committed by a gang of a dozen men. The crime scene, however, was far too small an area for more than a few assailants and the victim.

No DNA or forensic evidence connected any of the accused to the crime. One witness identified an entirely different man, who was arrested several weeks later for separate attacks on two other women.

This same man eventually was convicted for raping and murdering a third woman.

The police investigation was aware of all this conflicting information, but it was kept from the defendants throughout their trial. It took 26 years for this evidence to finally come to light.

“When a prosecutor does hide evidence, chances are nobody will ever know,” Gross explains.

The Justice Department agreed that the Turner evidence should have been disclosed at trial. But did this non-disclosure justify a new trial? The Supreme Court decided it did not.

“A prosecutor has to decide whether to disclose favorable evidence before the trial begins,” Gross continued. “How can she possibly know before trial whether undisclosed evidence might tip the jury’s decision at the end of that trial?”

“A court reviewing the case faces the same impossible question — what might have happened at trial if these facts had been known to the defense? — with an added twist: Judges are extremely reluctant to reverse jury verdicts and order new trials.”

Brady v. Maryland, the 1964 Supreme Court precedent, states that the government must always reveal evidence that is favorable to the defense in any criminal trial if that evidence is “material” to the case.

Later cases ruled that such evidence is only considered “material” under Brady if the reviewing court decides there is a “reasonable probability” that the outcome of the trial would have been different.

Federal Ninth Circuit Judge Alex Kozinski in 2013 blamed the “epidemic of Brady violations” on courts’ narrow definition of “materiality,” which realistically means prosecutors will almost never suffer consequences when they hide evidence from defense attorneys.

Professor Gross has a simple and clear solution. “Why not eliminate the ‘materiality’ requirement entirely and treat access to exculpatory evidence like other aspects of a criminal defendant’s constitutional right to a fair trial? If exculpatory evidence is concealed, it’s a violation of the Constitution, period.”

The National Registry of Exonerations lists 2,061 convictions from 1989 to present where innocent defendants were later exonerated, including 802 convicted of murder. The prosecution failed to disclose exculpatory evidence in 50 percent of these murder exonerations.

Parole board members in Missouri face accusations that they played outrageous games and openly mocked the prisoners who came before them seeking to be paroled.

Two persons on the seven-member panel reportedly would choose an irrelevant word or song title, and then keep score of how many times they could each use it or get the prisoners to say it during their interviews. This alleged pattern of malicious behavior was documented in a 2016 Department of Corrections inspector general report recently made public by the Roderick and Solange MacArthur Justice Center and the St. Louis Post-Dispatch.

“It seemed they were trying so hard to embed the words or song titles into their questions or statements that they were not focused on the proper questions to ask nor were they actively listening to the responses from the offenders,” wrote Inspector General Amy Roderick. “Most times, it seemed the offender was being made fun of …”

Missouri Board of Parole member Don Ruzicka and another unnamed employee chose inane words like “platypus”, “hootenanny” and “armadillo” along with songs such as “Hound Dog,” “Soul Man” and “Folsom Prison Blues,” according to the report. They would laugh derisively and acknowledge one another’s scores in the midst of the interviews while the prisoners sat there perplexed.

“Most times, it seemed the offender was being made fun of”

When Roderick questioned Ruzicka on how incorporating the word game into the hearings could help establish risk and potential release, Ruzicka answered, “Through the complete and thorough hearing process we were able to determine the release date.”

Even though other members on the board were aware of this game being played in front of them, the report said none reported it or tried to stop it.

“Who knows how many hearings were affected by this conduct?” asked Amy Breihan, an attorney with the MacArthur Justice Center who believes potentially thousands of cases may have been tainted. “Even in hearings where literal games were not played, one has to question how seriously parole staff are taking their duties.”

“These activities, so far as we are aware, have never come to light in the public’s eye,” said Mae Quinn, director of a nonprofit human rights law firm.

In recent years, the Missouri Board of Probation and Parole has been highly criticized because it operates almost entirely in secret and has become an employment destination for former elected lawmakers who reached their term limits.

Norman Brown is one of the Missouri prisoners who was denied parole by Ruzicka’s panel. He has served 28 years for a fatal robbery committed when he was 15. Brown’s attorney insists his client wasn’t even the shooter.

“This does not sound fair having hearings conducted by a man who sees people like my brother as a means of entertainment,” said his sister Shatiega Brown at the news conference held by the MacArthur Center.  “Imagine if this was your family, your father, your brother. Would you think this is right, appropriate or just?”

Brown is not alone in urging Gov. Eric Greitens to make sweeping reforms to the board, including the removal of Ruzicka.

“I am pleading with you so that my brother can have a second chance, a fair chance,” she said.

Many states are shortening probation terms and offering probation more often as an alternative to prison.

The reality of prison overcrowding and budget problems is forcing states to look at easing the burden by changing sentencing guidelines for low-level offenses so that probation is an option. The Pew Charitable Trusts, an organization that funds research and analysis, follows and reported on this trend in April.

“I see this as a good thing. Shorter terms and fewer conditions for probation allow people to become more productive citizens,” said Marcus Hodges, president of the National Association of Probation Executives.

Too often, people on probation are saddled with too stringent conditions, which make it more likely that they will violate the terms of their probation and end up back behind bars, Hodges said.

“I’ve got to ask the question, ‘Are we setting them up for failure?’” Hodges asked. “This whole notion of the probation-to-prison pipeline is something that we’ve got to look at.”

South Dakota faced an exploding prison population in 2014, Pew noted. Most of it was fueled by people whose probation had been revoked, said Greg Sattizahn, the state’s court administrator. Since then, South Dakota has worked to update its probation system, most recently enacting a law that allows people convicted of lesser crimes to be discharged from probation after one year for good behavior, Pew reported.

Missouri’s “earned discharged” approach allows probationers to earn time off for complying with conditions of their sentencing, such as drug treatment. In three years, 36,000 probationers and parolees reduced their probation terms by an average of 14 months – with no increase in recidivism, Pew noted.

In Georgia, one in 16 adults is on probation – almost four times the national average. Because of strict violation enforcement, offenders may end up remaining on probation for as long as 20 years, even life in some cases, Pew stated. And often strict probation codes lead to prison time.

Gov. Nathan Deal led Georgia lawmakers who passed a probation reform bill in March to shorten probation sentences and reduce the caseloads of probation officers who are spread thin.

Deal, a Republican, has focused his efforts on revising Georgia’s criminal justice system and is expected to sign the bill into law in July. Deal has introduced a slew of criminal justice reforms, including withholding salary raises for prosecutors in counties until they establish local drug and mental health courts to help struggling Georgians avoid jail time, according to The Christian Science Monitor.

Michigan Gov. Rick Snyder, another Republican, recently signed into law a package of bills to minimize punishments for “technical violations” of probation and allow judges to reduce probation time for good behavior.

Pew also reported:

Since 2012, Alabama and Hawaii have shortened probation terms.

Louisiana, Minnesota and Oklahoma also have bills pending to cut the time offenders spend on probation or parole.

Changing probation laws is currently popular with many lawmakers, from fiscal conservatives, worried about the rising costs of criminal justice, to social justice advocates concerned that too many people are locked up.

The bills typically pass with overwhelmingly bipartisan support. Georgia and Michigan passed theirs by unanimous vote.

“After someone’s demonstrated their ability to lead a productive life, to continue them on probation actually has negative consequences,” asserted Marissa McCall Dodson, the policy director of the Southern Center for Human Rights.

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