In Hash v. Johnson, 845 F. Supp 2nd 711, Judge James C. Turk, Senior District Judge for the Western District of Virginia, found outrageous failure to provide plea negotiations and polygraph results that would have shown their witnesses were lying, as well as other intentional misconduct. The Judge found a disturbing miscarriage of justice and an “extreme malfunction” of the state criminal justice system. Although the prosecutor resigned he maintained that he had done nothing wrong. The proposed rule changes would have required the disclosure of the evidence. The case was decided February 28th, 2012. I believe the bar has taken no action against the prosecutor. An ethics complaint was filed against the prosecutor in June of 2012.

In Wolfe v. Clarke, 691 F3d 410, The Fourth Circuit found intentional suppression of exculpatory evidence. The prosecutor explained that his office did not have an open file policy because in the past he had found that when information is given to defendants and their counsel they are able to fabricate a defense. The Federal Judge found this assertion “flabbergasting” and so do I. The proposed rule changes would have disclosed the exculpatory evidence. The opinion was written. The case was decided August 16th , 2012. The bar has taken no action against the prosecutor.

In Commonwealth v. Manigo, 2010 Va. Cir Lexis 6, Fairfax Circuit Court Judge David S. Schell found a prosecutor had failed to provide exculpatory evidence and correct false testimony of a witness. The Judge found that failure to disclose a deal with prosecution witnesses and allowing them to lie about it on the witness stand violated due process. The proposed rule changes would have disclosed the deal that effected their credibility. The case was decided January 6th , 2010 and on June 4th, 2012 the bar gave the prosecutor a public reprimand.

These cases are examples of the reluctance of prosecutors to share facts. A further example was their withdrawal, last August, from the task force discussing discovery when they realized the discussions might actually result in discovery. Discovery and the disclosure of exculpatory evidence are two aspects of the same issue.

In the cases I mentioned; A sentence of decades in the penitentiary, a sentence of life in prison, and a death sentence were overturned when luck or accident allowed desperate defense attorneys to discover the evidence that was withheld. One must assume that hundreds of other cases like these go undiscovered ( literally). If you consider misdemeanors, the cases number in the thousands. The proposed Rule would not apply to most misdemeanors prosecuted in Virginia. If the rule is designed to be fair, one must assume they are omitted because, for misdemeanors, it would be too much trouble to be fair.

Unlike many other prosecutor’s offices, the City of Alexandria has an open file policy and gives access to all the materials in their files in prosecutions for felonies and misdemeanors. It seems to be no trouble at all. Not coincidently, no one in their office has ever been accussed of failing to disclose exculpatory evidence. Their prosecutions are vigorous and successful and the trials are fair.

They feel it is fundamentally important to make criminal prosecutions fair. My question is; Do the Virginia State Bar and the Supreme Court of Virginia feel the same?