The Rules of Professional Conduct, governing all lawyers in Missouri, are clear. A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. The U.S. Supreme Court also announced very clearly in 1963 that a prosecutor may not suppress evidence favorable to an accused.

Unfortunately it happens too often. If it happens at all, it is once too often. Have you ever wondered how many people are sitting in jail at this very moment because an overzealous prosecutor withheld evidence from the criminal defense team that could have been used to exculpate the defendant? It’s not a pleasant thing to think about.

Of course, a lot of people in prison think that they are innocent of the crimes they have been convicted of committing. Yet, there are undoubtedly many people in prison who have been wrongfully convicted, and in some instances because the prosecutor withheld evidence.

There have been two high-profile cases in Jackson County in the past 10 years when this occurred. Ted White recently received a multi-million dollar verdict in federal court in Kansas City against a Lee’s Summit police officer and the City of Lee’s Summit for their role in the wrongful conviction of Mr. White. Mr. White was convicted on 12 counts of molesting his adoptive daughter by a Jackson County jury. The appellate court reversed the conviction and gave Mr. White a new trial where he was acquitted of the charges because the prosecutor withheld exculpatory evidence and intentionally misled the jury by deliberately concealing a romantic relationship between White’s ex-wife and a Lee’s Summit detective who was assigned to investigate the case. The detective’s deposition was taken in the case and the prosecutor sat by silently as the detective testified that he had no interest in the outcome of the case even though the prosecutor knew that the detective was engaged in a romantic relationship with Mrs. White.

The Missouri Court of Appeals found that Mr. White’s right to due process was violated by this intentional suppression of evidence, relying on Brady v. Maryland, a 1963 decision of the United States Supreme Court. A “Brady” violation occurs if evidence favorable to the accused is exculpatory or impeaching, the evidence was suppressed by the state either willfully or inadvertently, and the suppression prejudiced the defendant. The Brady rule violation in Mr. White’s case gave him the right to a new trial, and the rest is history.

In the second high-profile case, an attorney in Kansas City was convicted of murdering his law partner. The case is still pending and so I won’t discuss it in great detail, but I can tell you that the conviction was reversed because the trial judge determined that there was a “Brady” violation in the case. Portions of a surveillance videotape were suppressed by the prosecution and the court determined that the prosecutor had acted improperly by failing to turn over the videotape.

The most interesting part of the Brady case was that Brady was actually guilty of participating in a crime that resulted in a murder. He confessed his participation, but denied he actually did the killing. The suppressed evidence was the confession of the co-defendant who had done the killing. Both men were convicted of capital murder and sentenced to death. The court reversed the sentence and let the conviction stand.

Only the penalty part of his conviction was set aside, but Brady was afraid to try the penalty phase of the case again because he feared that he might be sentenced to death again. For years, neither side made a move and Brady was transferred off of death row. He was ultimately released from prison, and started a family with a nurse who had married him while he was on death row. He later divorced the nurse and then moved and started another family somewhere in the South. He now lives in obscurity, but the case that bears his name has been used on multiple occasions to reverse criminal convictions. Literally hundreds of convictions have been reversed as a result of “Brady” violations.

Unless a civil lawsuit is later filed, as in the case of Ted White, there is often little consequence for the prosecutor’s conduct in suppressing the evidence. The prosecutor is immune from civil liability upon the rationale that to hold the prosecutor liable in a civil court would disserve the broader public interest and prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the functioning of the criminal justice system.

In some instances, the Brady violation also involves a violation of an attorney’s ethical duty to disclose such evidence. I am not aware of any attorney being reprimanded or otherwise punished for such an ethical lapse.

Fortunately, most prosecutors do obey their ethical and moral duties. Yet, there are a few who do not, and that should haunt us all.