In late June, the Louisiana Supreme Court handed down an important opinion that primarily concerns the sentencing of juvenile offenders. The secondary issue in the case—the prosecution’s late disclosure of exculpatory evidence—is what brings The Open File to the scene. The majority opinion dismissed the defendant’s Brady claim, and in so doing it contributed to a recurring jurisprudential theme: Louisiana courts continue to misinterpret the scope of the State’s duty to disclose evidence to criminal defendants. This time, a dissenting opinion took note of the problem. While Thayer Green’s case has been sent back to the lower court to reconsider the appropriate sentence, questions about whether Bayou State prosecutors meet constitutional duties linger. Disturbing questions also remain about whether Louisiana judges are up to the task of correctly identifying and enforcing state attorneys’ Brady obligations.
The State v. Green Case
The State charged Thayer Green, who was 17 at the time of the offenses, with home invasion, armed robbery, and aggravated battery for an incident that unfolded at an apartment where he went to meet K.L, an ex-girlfriend and the mother of his child. At trial, the jury found Mr. Green guilty of home invasion as well as lesser charges of simple robbery and second-degree battery. Relying on the habitual offender statute (sometimes called “three-strikes” laws in other jurisdictions), the State sought a harsher sentence; the trial court deemed Mr. Green a third-time offender and sentenced him to life without the possibility of parole.
Here is how the majority opinion describes the defendant’s offenses:
The record indicates that the 17–year–old victim, K.L., and the 17–year–old defendant, who had dated previously and had a child together, had been communicating by text messages in the days preceding the offense on July 10, 2012. Early that morning, K.L. was sitting with a male friend in his car, which was parked at the apartment complex where she was staying with her cousin . . .
While in her friend’s car, K.L. saw the defendant circle the parking lot in his mother’s Toyota Camry. To avoid a confrontation, she exited the car and ran to her cousin’s second-floor apartment. Defendant stopped, left his vehicle running, and pursued her.
Once inside, K.L. tried to shut the door but defendant pushed in, knocking her to the floor. He then grabbed K.L. by the hair and punched her. K.L. screamed and told R.W., who had been sleeping on the couch, to call police. Defendant continued to punch, kick and choke K.L., and then grabbed a metal candlestick and struck her about the face and head. Ms. Williams, who had been asleep in her bedroom, was awakened by screams and hid in a closet to call 911. When she emerged from her room and told the defendant that she had called 911, he grabbed R.W.’s cell phone from her hand and fled. The police apprehended defendant shortly thereafter.
On appeal, the defendant argued that the State’s failure to disclose 635 pages of text messages until the second day of jury selection violated Brady. The defense explained that some of these messages were exculpatory on the home invasion charge because they indicated that K.L. actually invited Mr. Green over to the apartment, despite what she told police after the crime. In denying the claim, the majority emphasizes that the trial court “granted the defense a half-day recess to review” the messages, and also “permitted defense counsel to read [at trial] selected passages of the victim’s messages to defendant during the pertinent time (without defendant’s responses).”
While its specific decision to deny the Brady claim in Green’s case looks like a close call based on how a judge sees the record and determines what kind of effect earlier disclosure may have had on the trial, the majority opinion engages in flawed reasoning that inappropriately waters down the prosecution’s duty. In the Court’s words, “a defendant shows no entitlement to relief if the information was available to him through other means by the exercise of reasonable diligence.” This idea—that a defendant who could have obtained the suppressed information through another means rather than prosecutorial disclosure cannot prevail on a Brady claim—undermines the constitutional requirement. Though some courts have adopted the same position, a recent opinion by the Third Circuit Court of Appeals in James Dennis’s case reveals why it is faulty: “To the extent that we have considered defense counsel’s purported obligation to exercise due diligence to excuse the government’s non-disclosure of material exculpatory evidence, we reject that concept as an unwarranted dilution of Brady’s clear mandate.” The “due diligence” requirement is an artificial add-on to Brady, one that the Supreme Court never intended. As the Third Circuit found, “[a]ll favorable material ought to be disclosed by the prosecution. To hold otherwise would, in essence, add [an extra] prong to the inquiry.”
Not only did the majority in Green misinterpret the law, but it also appears to have misapplied the facts. It found that the defendant himself certainly knew about the text messages, and the messages were “available to the defense through the exercise of reasonable diligence.” The Court’s standard for “reasonable diligence” seems difficult if not impossible to meet. The dissent by Chief Justice Johnson indicates that the “defendant specifically requested impeachment and exculpatory evidence from the State on August 21, 2012, but was never informed when the texts were obtained.” The majority acknowledges that “the state gained possession of the text messages from defendant’s phone [ ] on November 8, 2012, over six months before trial.” Yet, the State did not notify the defense that it had seized the defendant’s cell phone months earlier or turn over the 635 pages worth of text messages until the second day of jury selection. According to the dissent, “the defendant was actively looking for his phone, knowing that it held crucial evidence for his defense. The defense was never told that the state had possession of defendant’s phone or that a search warrant had been secured for the phone and access to the information on the phone.”
The Louisiana Supreme Court majority’s diligence requirement eviscerates Brady. The opinion faults Mr. Green’s defense for not specifying that he sought text messages in his discovery request. If, as the Supreme Court held over 40 years ago, the Brady obligation does not turn on a defense’s request for exculpatory evidence but is instead a free-standing constitutional duty (contrary to what at least one Louisiana DA has claimed), then what sense does it make to penalize the defense for making a broad request? Moreover, the majority somehow interprets the timeline in this case to bolster the State’s position. It conveniently ignores that the prosecutors sat on exculpatory impeachment evidence—that the defense had already requested—for over six months.
In her dissent, Chief Justice Johnson explains how the facts of the case look different when one incorporates the text messages into the picture.
The narrative of what happened on July 10, 2012, is told through the text messages between defendant and K.L. The text messages suggest K.L. orchestrated the events of that night by toying with defendant and inviting him to her residence when she was there with another boyfriend. K.L. told police that she advised defendant she did not want him to come over or to see him, but the text messages sent by K.L. show otherwise. The texts establish K.L.’s pattern of manipulation of the defendant, wherein she repeatedly enticed defendant to come over to her residence. K.L.’s credibility was called into question when she testified that despite what was said in the text messages, she did not really want the defendant to come over, that she was just being sarcastic and joking with him, and she was playing with his mind to see what he was going to do.
These text messages were exculpatory on the home invasion charge because they demonstrate K.L. wanted and invited defendant to come to her residence on the night of July 10, 2012. The messages were central to the defense that there was no “unauthorized” home invasion because K.L. invited defendant to her residence.
. . . Had the defendant been given sufficient time to prepare his defense based on the texts obtained by the state, he could have fully impeached K.L.’s testimony, which was critical to the state’s case.
Louisiana Courts Misinterpret Brady Regularly
Unfortunately, the majority’s Brady opinion in Green will likely cause other bad results in cases around the state. This is not the first time Louisiana courts have demonstrated an inability or unwillingness to enforce prosecutors’ basic constitutional obligations. Last year, in a high-profile murder prosecution, we highlighted the Louisiana Supreme Court’s failure to even grasp what constitutes exculpatory evidence that is “favorable” to the defendant in Brown v. Louisiana. That decision “reveal[ed] that the Louisiana judiciary remains unable to comprehend (let alone enforce) Brady.”
The Louisiana Supreme Court’s failure in Wearry was a failure to intervene and keep lower state courts in line. If this week’s case sounds familiar to SCOTUS-watchers, you may recall the 2012 Supreme Court opinion in Smith v. Cain. There, the US Supreme Court overturned a Louisiana defendant’s murder convictions because prosecutors suppressed evidence that revealed that the State’s star witness could not provide a description of the alleged perpetrators. That was another “easy case,” an 8-to-1 ruling in the defendant’s favor authored by Chief Justice Roberts. The Louisiana Supreme Court had also written a one-word opinion in that case: “Denied.” See State v. Smith, 2009-1164 (La. 9/24/10), 45 So. 3d 1065. What may be most spectacular about Smith was that not a single Louisiana judge who reviewed the matter ever even found that the State improperly withheld evidence from the defendant. Perhaps something is amiss in [Louisiana].
One silver lining emerges in Green: two Louisiana Supreme Court justices dissented from the majority’s denial of the Brady claim. Whatever progress that reflects, it has sadly taken many, many years to move mere inches. Perhaps another U.S. Supreme Court summary reversal would help send another loud message to a judiciary that has so far been deaf to the crisis.
Reminder: Prosecutors Have Discretion
The Green case also brings into focus another central issue pertaining to prosecutorial discretion: a robust duty to disclose exculpatory evidence before trial can check overzealous prosecutors. Here, bear in mind that the prosecutors had text messages at least partially calling into doubt the criminal charges they filed against Thayer Green—or, at the very least, the strength of their case against him. Yet, rather than reducing the charges, they kept the messages under wraps and only revealed them in the midst of trial. Overcharging is a legitimate concern; Hillar Moore, the District Attorney of East Baton Rouge parish, positions himself as a progressive prosecutor, yet he presides over an office with some disconcerting approaches. This case raises questions about the office’s Brady practices as well as its charging policies.
Of course, the charges a DA files dictate the potential punishment a defendant would face if convicted. Yet, there’s an added layer of discretion that prosecutors possess under the habitual offender statute (and the mandatory minimum sentences it contains). In the end, it is the prosecutor who decides whether to seek sentencing enhancements under the habitual offender law. Here, the East Baton Rouge District Attorney’s office sought to put Mr. Green away for life for a crime that occurred in the heat of a juvenile disagreement with an ex-girlfriend whom the dissent found was manipulating him. Though he committed violent acts that deserve punishment, there is no doubt that Thayer Green is not the kind of offender that deserves the harshest possible sentencing outcome. On this score, the Louisiana Supreme Court’s majority opinion deserves recognition for upholding constitutional principles that protect juvenile offenders from being sentenced to die in prison for non-homicide offenses. That principle, however, only protects defendants from the most egregious abuses of prosecutorial discretion. More judicial oversight and more sentencing reform is needed to prevent prosecutors from continuing to pile up life sentences all over the country (and particularly in Louisiana).