A Broken Justice System and the Supreme Court’s Indifference

Perhaps the most compelling story in Karen Houppert’s superb Chasing Gideon is Greg Bright’s.   Bright spend nearly 30 years in prison for a murder he didn’t commit, based on evidence weaker than the “evidence” that convicted Cameron Todd Willingham. The state had no physical evidence, a credible alternative theory based on people who (unlike Bright) had a motive, and its case rested solely on the eyewitness testimony of an exceedingly impeachable witness.  How did this happen?

Partly, this was the result of one New Orleans specialty, gross prosecutorial misconduct.  The state suppressed the police reports showing that they had been pursuing another more plausible lead, that the eyewitness who was their sole source of evidence had told multiple, radically different stories about what happened, and most importantly that said eyewitness was not only a convicted felon (under a different identity) but a paranoid schizophrenic.  (The trial was actually delayed because the witness was in a mental hospital, so these issues were well-known to the state.)

And yet, Bright’s story is the centerpiece of a book about the right the counsel because, even with the systematic violations of the Brady rule, any mildly competent defense lawyer should have been able to get a not-guilty verdict.   Bright’s public defender, however, failed to visit the crime scene where he would have seen that the witness couldn’t have seen what she claimed, to prepare any substantive opening or closing statements, to call Bright’s alibi witnesses, or to conduct an effective cross-examination of a paranoid schizophrenic who had never told the same story twice.  And nor was this the story of one bad apple.   Louisiana’s system for providing counsel to the indigent pretty much guaranteed these miscarriages of justice.  By paying a flat fee to lawyers, appointed by local judges, who had to divide time between paying and non-paying clients, the state pretty much guaranteed that countless people accused of serious crimes would receive an inadequate defense.  It should also be noted that Bright was finally released from prison not based on findings by anybody within the Louisiana criminal justice system, but because the Innocence Project happened to open an office in Louisiana.

All of this background also says something about contemporary judicial conservatism this well.  Earlier this week, using classic Alito authoritarian zen koans (“but what if the delay wasn’t about the underfunded public counsel system, but about the defense complaining about the underfunded public counsel system, man?”) the Supreme Court rejected an opportunity to make it clear to states that the failure to provide counsel would weigh against the state for the purposes of the speedy trial clause of the Sixth Amendment.   And in an even more egregious 2011 case, the Court’s Republican appointees strained as hard as they could to ensure that nobody could be held accountable for appalling prosecutorial misconduct by the New Orleans district attorney’s office.   When the institutions charged with supervising Louisiana don’t care about its violations of the Bill of Rights, it’s hard for the system to improve.