The day after Leon Cannizzaro was elected district attorney in Orleans Parish, two ranking prosecutors from the office showed up at his home with some bad news: Attorneys for John Thompson, who was convicted of armed robbery and murder (in separate cases) in 1985, had won a huge legal judgment against the DA's office. The judgment came after a prosecutor made a deathbed confession that he had deliberately withheld evidence favorable to Thompson in the armed robbery case. Such favorable information, known as "Brady material" after a U.S. Supreme Court case by the same name, must be given to defense lawyers — or a conviction can be overturned. Thompson spent 18 years in jail — 14 of them on death row — for the subsequent murder conviction. He won a new trial and was acquitted of the murder charge in 2003. He then sued the DA's office and won a judgment that, with interest, had grown to a staggering $14 million.
Cannizzaro appealed the Thompson case all the way to the U.S. Supreme Court and ultimately prevailed, but Thompson was a harbinger of other explosive "Brady cases." Michael Anderson, who was convicted for the 2006 murders of five teenagers, got a new trial because prosecutors discovered a videotaped interview with a key witness after his trial. The video shows the witness making inconsistent statements as to what she saw — and clearly it should have been found and turned over to defense lawyers before the trial. Cannizzaro ordered the tape turned over to defense lawyers immediately, but he was pilloried in the press for not finding the tape sooner. In a deal to avoid a potential death sentence, Anderson has since pleaded "no contest" to five counts of manslaughter and awaits sentencing; he maintains his innocence.
Last month, Cannizzaro's office argued yet another Brady case before an increasingly hostile U.S. Supreme Court. The High Court has not yet ruled in the latest case, involving defendant Juan Smith, who was convicted of murdering five people in a 1995 home invasion. Smith now seeks a new trial. Cannizzaro says there is no allegation of intentional hiding of evidence in the Smith case, but he readily admits that every new Brady controversy undermines public confidence in his office and in the entire criminal justice system.
This Wednesday, Dec. 7, Cannizzaro is expected to testify in Orleans Parish Criminal District Court Judge Julian Parker's courtroom in response to a subpoena in yet another post-conviction Brady hearing, this one involving a defendant convicted last year for a 2008 murder. At issue is information about an alleged deal given a jailhouse snitch who testified against Jamaal Tucker. Defense lawyers were not given information about the deal until after the trial. Cannizzaro says he's not fighting the subpoena.
Last week, Cannizzaro sat down with Gambit to discuss these cases, their impact on his office's effectiveness, and how he hopes to overcome the damage that's been done.
GAMBIT: The topic of "Brady material" is very much in the news these days because of some high-profile cases alleging that New Orleans prosecutors withheld evidence that should have been turned over to defense lawyers. What is your definition of Brady material?
LEON CANNIZZARO: In the United States Supreme Court decision of Brady v. Maryland, the Court said if a prosecutor is in possession of information that exculpates or in any way assists the defendant in a criminal proceeding, it is his or her obligation to turn it over. The original Brady decision required that exculpatory information be turned over if there was a request by the defense for that information. Since then, the Supreme Court has said the defense does not have to request information that is helpful to the defense; the prosecutor has to turn that information over if he is merely aware of it. If he has it in his file, he must make that available to defense counsel.
G: So it puts an affirmative duty on the prosecutor to disclose?
CANNIZZARO: Correct. Not only information that he has that is of assistance to the defense, but also information that could impeach prosecution witnesses. If there is information that would assist the defense because it would impeach a prosecution witness' testimony, the government has a responsibility to turn that over.
Another example would be if the prosecution has a witness who got a plea bargain — some leniency in his case or a recommendation of leniency with regard to sentencing of a defendant in that case. That information, too, must be turned over to defense counsel.
The Brady rule has been extended by other cases since then. Those cases have essentially extended the prosecution's Brady obligation not only to give to the defense information which is helpful or which could assist the defense in his case, but now they also require the state to look to other sources. For instance, if a law enforcement agency learned information which is not necessarily going to be turned over [to the DA] in a police report, it's the prosecutor's responsibility to go to that law enforcement official and demand information that may be contained in his notes or other internal documents, to search for information that may be of assistance to the defense counsel — and to turn it over.
One of the public's big misunderstandings about Brady is that it has come to mean "intentional misconduct" on the part of the prosecutor. But the Supreme Court has recognized that a prosecutor can be in good faith in not turning over information — and it would still be a violation of the rules of Brady.
G: So even an inadvertent failure to disclose could get a case overturned?
CANNIZZARO: No question about that. The issue is not whether the prosecutor is in good faith or not. The courts look simply to whether or not this information would have been of a helpful, exculpatory nature to the defense counsel — and the information would have to be relevant, something that would make a difference in the outcome of the trial.
In some cases the Supreme Court has said, in effect, we find this information is certainly exculpatory, but it is not relevant or material because when we look at the totality of the circumstances ... we do not believe that this evidence would have made a difference in the outcome. And in some cases, even though the information might not have been disclosed, the Supreme Court will say, in fashioning a remedy, that it is not necessarily material or relevant to the ultimate issue of guilt or innocence. ...
My duty as a prosecutor is to turn the evidence over, not necessarily upon request, but upon my learning of any Brady material. And again, the Supreme Court has even expanded that responsibility. Our obligation goes to not only looking to our file — what the police have given us — but also going to law enforcement officials and asking them, "Even in the documents or the information you may have, even in the notes you have made in conducting this investigation, is there any exculpatory information? Is there any contradictory information that you have in your notes or your data that is not contained in the report that you have given us?" So it is simply our obligation. If we misstate the obligation or we are incorrect in our analysis of [Brady] information or incorrect in not turning over that information, then we're incorrect at our peril.
There have been instances where the defense requested that the police report or the DA's file be turned over to the judge for what we call an in camera ["in chambers," or private] inspection. And if the judge reviews the information and says, "I do not find there to be any Brady or exculpatory information in the file, and therefore I do not order that this be turned over to the defense counsel," if an appellate court sees it differently, then we still suffer for that error or overlooking of that particular information.
G: Given that extremely high burden and the broad scope of the duty placed upon you, why not just adopt a policy of "open discovery" and give defense lawyers everything in your file — as many other DAs in Louisiana do?
CANNIZZARO: Part of the problem with the open discovery rule is that right now, in our particular circumstances, we have to worry about the safety of witnesses and the safety of victims. If we were to turn over information to defense counsel with the names and the addresses and phone numbers of the witnesses or victims in non-homicide cases, what we have unfortunately seen in Criminal District Court is that in some circumstances those witnesses have been intimidated, physically harmed or have been prevented from coming into court and testifying. I just do not believe right now in Orleans Parish it is a good thing for me to make available to defense counsel all of the names and the information concerning the witnesses and the victims in these sorts of cases.
G: Aren't defendants, at some point, entitled to get the names of witnesses?
CANNIZZARO: They are not entitled. We have argued this issue in front of the Louisiana Supreme Court, that obviously when the case goes in front of a jury for the jury to determine someone's guilt or innocence, obviously [the witnesses] have to come forward. We certainly have to let [defense lawyers] know, if it's exculpatory information, the substance [of a witness' testimony]. If a witness is going to be called and they're going to give some contradictory information, we have to let defense counsel be made aware of that. But to turn over their names and their addresses and information personal to them, in my opinion, causes a great risk of harm to those individuals.
G: What if you redacted the witnesses' names and addresses and gave defense lawyers everything else?
CANNIZZARO: Well, right now the law in Louisiana is that we are not obligated to engage in open file discovery.
G: We understand the law doesn't require it. But given the temperature out there in Orleans Parish and the difficulties your office is encountering because of what is perceived to be a pattern of extensive, and even egregious, Brady violations, and given the lack of confidence in the system, why not just turn everything over? Have you even considered that policy?
CANNIZZARO: In some cases, we do turn over the entire file. In some cases the defense lawyer has exactly what the prosecutors have. In cases involving violence, in cases involving murders, attempted murders, armed robberies, rapes — in those sorts of cases, we sometimes err on the side of caution.
Believe me, we are certainly trying to weigh the rights of the defendant, but we have to weigh that against what we believe to be the interests and the concerns of the victims and the witnesses in a criminal prosecution — and weigh that against what we believe is the benefit to society, the overall public safety issue. If we have Brady or exculpatory information, it is our obligation to make defense counsel aware of that. If we are satisfying that obligation, then I don't see it as being necessary to give them our entire file.
Much of the information that is contained in the file they have the right to request and receive upon filing of the necessary discovery motions. Discovery rules have been expanded greatly to allow defense lawyers to pretty much learn just about everything about our case that they need to know in order to prepare themselves for trial. They certainly have the right to engage in preliminary hearings where they can listen to what the witnesses will say about what other witnesses will talk about. They have the right to obtain all of the scientific evidence that we have and will present. And they certainly have the right to obtain Brady information, information that assists them in defending the case.
But open file discovery, I guess the big concern that we have with that at present ... is that witnesses and victims do not want to get involved in the criminal justice system. And for us to say we are going to turn that information over to defense counsel, in my opinion, would place them in a great risk of harm. I think they would lose all confidence, and I think we lose a great deal of credibility if something were to happen to them.
We're going to give the defendants everything that they are entitled to with regard to exculpatory information. But I do not want to [turn over entire files] at the risk of losing the victim or the essential witness.
G: In your opinion, was there a pattern of Brady violations in the DA's office before you took over?
CANNIZZARO: The Thompson case is obviously the most egregious case that we have seen in the DA's office since I have been there. It threatened the very survival of this office because of the ramifications of the multimillion dollar judgment that the office was exposed to on the day that I took office.
The case that is in front of the United States Supreme Court right now is the Juan Smith case. That's a very good example of a case where I cannot say that there was any intentional misconduct on the prosecutor's part because he gave his total file to the district court judge — not once, but twice. And on the second occasion, the judge had a four day hearing to determine whether or not that information was in fact exculpatory to the defendant. On both occasions, the district court judge felt that that information was not Brady material. That decision was upheld by the 4th Circuit Court of Appeal. That decision also was upheld by our Louisiana Supreme Court. So you've had a number of judges who have looked at that issue and felt that that was not a Brady violation.
Now, bear in mind, that makes no difference to the United States Supreme Court. They certainly may find that the judges were wrong ... and reverse this second degree murder conviction.
That [Juan Smith case] was a situation where the argument has been that maybe there very clearly was a Brady violation. But was there intentional misconduct? I certainly can't say from the perspective of the prosecutor that he was intentionally wrong, as you can certainly point to in the Thompson case.
Can I say right now that there was a pattern? There have been some [bad] cases. But whether it's a pattern of deliberate indifference, I just can't say that because I don't think I've seen enough so far. ... We're talking about [cases] that took place in the '80s and one that took place in the late '90s.
G: So would you argue that Thompson was an isolated case?
CANNIZZARO: I don't think you can say that because you see other cases coming out of Orleans Parish. I don't think you can say it's an isolated case. It was certainly the most egregious. Thompson was wronged. There was a rogue prosecutor involved in the Thompson case. Thompson was convicted of an attempted armed robbery when the assistant district attorney responsible for prosecuting that case intentionally withheld evidence that exonerated him from that charge. That is not something anyone condones.
G: And at the U.S. Supreme Court level you won the Thompson case, at least in terms of saving your office a pile of money. But Justice [Ruth Bader] Ginsburg wrote a scathing dissent in that case, and a lot of people are looking at that dissent now in light of the Juan Smith case, which is pending before the same U.S. Supreme Court. Knowing about Justice Ginsburg's dissent, and after hearing some harsh questions during oral argument in the Smith case, do you feel that you took a bit of a risk in taking the Smith case all the way up, that maybe you should have conceded and given him a new trial rather than risk setting some new precedent or getting an adverse ruling — or finding that there's now a pattern of Brady violations in your office?
CANNIZZARO: Well, in the Smith case we had been through the district court on two occasions. On both occasions the judgments of the district court judge had been upheld by the intermediate appellate court and the Louisiana Supreme Court. And I think as Justice [Antonin] Scalia stated during the oral arguments [in the Smith case], the issue is not whether or not the information should have been turned over to defense counsel. In this case it was a witness indicating at some earlier time that he was not able to make an identification of anyone, and later coming back and saying he could identify someone. And the statement that he could not make an identification was not turned over to defense counsel. There is no question that that is impeaching information that should have been turned over.
But I think the question now goes to what is the remedy. There is a Brady violation, but should the defendant be entitled to a new trial? I think that from the Supreme Court's perspective, they now have to look at the totality of the circumstances, the entire record, to determine whether or not there is a basis for upholding that conviction. If they find that the Brady violation was relevant and material, then they will reverse the conviction and order a new trial. If they find that it was not relevant or not material, that the withholding was not prejudicial, then they will affirm the conviction.
G: So this is a very narrow case. And if you lose you're hoping for a narrow decision. But you do run the risk of a broader decision.
CANNIZZARO: There is no doubt that when we're in front of the United States Supreme Court they can certainly revise the entire decision with regard to Brady. We're well aware of that. ... Every time we go in front of the United States Supreme Court, we run that risk.
G: What's your office's policy with regard to teaching your assistants how to handle Brady obligations?
CANNIZZARO: When an assistant DA gets hired, one of the first things we do is give him or her a copy of the relevant cases. We ask them to familiarize themselves with that material. We also have booklets that are available to them where they can look at all of the cases that have come out surrounding this. Every year we provide at least two sessions of Brady instruction by our assistants. We talk about specific case scenarios.
G: Did that happen when you were an assistant DA under Harry Connick?
CANNIZZARO: No. It was not that extensive. We were aware of the obligations, but it was not as extensive. It's drilled into them today because it's part of their obligation.
G: What's your policy on disciplining assistant DAs who commit Brady violations?
CANNIZZARO: If we caught someone doing something as egregious as what happened in the Thompson case, they would obviously be terminated immediately, and we would take all steps to prosecute the person or persons responsible for hiding that sort of information.
We are trying to reform the criminal justice system. And the way that we have to reform this system is people have to have confidence in what we're doing in Criminal District Court. They have to have confidence in this process. Obviously by these violations, by people not believing that the prosecutors are playing fair, that certainly affects the ability of the law enforcement official to do his job. I think it certainly affects our ability to get convictions, and I think ultimately society suffers as a result.
I've talked to a number of witnesses. I've talked to family members of witnesses and victims. I spoke to a mother whose son was shot something like seven times, and he survived. And the mother comes in and says, "I don't want my boy testifying. ... I'm afraid. I'm afraid that if he testifies, even if you get a conviction, nothing's going to happen at the end of the day to the bad guy, that he in all likelihood is going to be back out on the streets, and then my son has to run the rest of his life looking over his shoulder. I just don't have confidence in the justice system."
That doesn't just mean me. That means the [New Orleans] Police Department. That means our office. That means the criminal justice system, the members of the judiciary. That is what, in my opinion, a Brady violation, a Thompson case, does to our office.
Look, it does me absolutely no good to cheat in order to get a conviction. I have a responsibility to get constitutional and legal convictions. It does me no good to go out and cheat to get a conviction because, although it might be good at the outset, the truth always comes out in the long run.
G: In regard to the Michael Anderson case, where the defendant was originally charged with murdering five people, you recently wrote to The Times-Picayune saying that your office voluntarily turned over the controversial DA's videotape of a witness' inconsistent statements as soon as it turned up. But wasn't the information on that tape — that is, the fact that the witness had made inconsistent statements — wasn't that the Brady material? And was that information turned over in a timely fashion, regardless of whether there was a tape to back it up?
CANNIZZARO: Yes, and if you check the cross-examination of that witness, you will see that every aspect that she was impeached on by defense counsel was contained in that tape statement.
G: So you're saying they already had the relevant information?
CANNIZZARO: There's no question about it. Now, look, I'm not going to scream sour grapes. We lost that issue. We argued that issue, and we lost that issue. But again, I think it's important to note there was no desire and no intent to hide that information.
G: What was your reaction when the videotape finally landed on your desk in the Anderson case?
CANNIZZARO: I'm sitting at my desk. They walk in. And they come in and they tell me we've got some bad news. They said they found a tape of this witness who had testified for us. And they said we have a taped statement that we did not give to defense counsel prior to the trial.
Initially I'm devastated. I'm crushed because I knew what went into the Michael Anderson case. I remember the Friday night before that case got started. We're sitting in a conference room around the table. We were all pitching in. And these discussions were going on Friday night, Saturday, Sunday. ... And everyone was focused. We were trying to put as many thoughts and ideas together as we could, trying to cram as much information into the prosecutors' heads as we could.
And it was a close case. ... It was a good win for what I thought was a very young office. So, yeah, I was devastated. I was crushed ... and they explained to me where the thing was found. The tape was in a box with some other material that was not related to the case. And it was just discovered when it was moved. It was in, like, a pile of boxes ... where no one would have had any idea about the tape and where it was. We were hurt by that.
But the first thing we did was give it to defense counsel. I said, "Give it to the defense attorney. Don't delay, don't hesitate. Go give that tape to the defense attorneys right now, immediately."
G: Was the trial over at that point?
CANNIZZARO: Yes, it was over with. We gave them [the tape] so that it would assist them in their motion for a new trial.
G: On another Brady front, in the Jamaal Tucker case, which is currently pending, you have been subpoenaed to appear this week in Judge Julian Parker's courtroom. Do you have some idea of what you're going to be asked or what allegations are being made?
CANNIZZARO: Because this case is an open case, I'm limited as to what I can discuss. I think that the issue in the Tucker case is going to be a narrow issue. The subpoena was requested by defense counsel, and the judge is simply performing a ministerial function in issuing the subpoena. You know, we're not filing any motions to quash the subpoena. I'm going to go and I'm going to answer the questions they pose to me with regard to this.
G: Has it crossed your mind since this subpoena came that perhaps this was some cosmic payback for the memo that you wrote to Attorney General Buddy Caldwell about the Criminal Court judges in an unrelated case — one in which you recused yourself but still outlined a possible case for indicting some of them?
CANNIZZARO: All I can say is you'd have to ask the judge that.
G: Do you have any regrets about putting that memo in writing as opposed to maybe just making a phone call? And did you ever think that it would be put into the public record somewhere in open court?
CANNIZZARO: I have been criticized a lot for that letter. And everyone's entitled to their opinion. But I want somebody to tell me what would have been the more prudent course of conduct. What is it that the district attorney should do if someone presents to him evidence of wrongdoing? The Metropolitan Crime Commission sat down with me, with my first assistant. Another individual involved with the Metropolitan Crime Commission sat down and spoke with us. We see the reports aired by one of the television stations. We're given information. And then we're asked what are we going to do about it.
We go to ethics counsel outside of our office, independent ethics counsel. I have no secrets about who it was. We go to [former Judiciary Commission attorney] Steve Scheckman, a person who's very well respected in this particular field. We sit down with him and say, "You tell me what you think I should do, but please put it in writing." He puts it in writing in a three-page letter and says, "Although legally I believe you can handle this case, I think as far as what is in the best interest of the criminal justice system, you [should] pass this onto the attorney general."
G: Nobody would fault you for your recusal, but why outline a possible indictment in writing if you're not going to handle the case?
CANNIZZARO: OK. Let me go as to why it's in writing. We go to meet with Buddy Caldwell. ... We explained what the issue was. I'm not apologizing for the fact that it's a five-page letter. We talked about three issues. We asked the attorney general, you investigate this. I have to recuse myself. You do what you think is right. I know the argument has been, "You called the judges criminal." I never called anybody a criminal. I simply asked the attorney general, "You investigate these allegations. These are allegations that have been made to me." I think that's my responsibility.
Did I hurt somebody's feelings? Yeah, I hurt their feelings. Look, if I'm going to reform the criminal justice system, I've got to do what I think is right in each and every instance. And if we place people like police officers or DAs or even judges on a pedestal such that they're above the law or above reproach, then the reform efforts are over with. I think at the end of the day, regardless of what the attorney general does with regard to this, I think our system will become stronger. I think it will fortify the criminal justice system.
I also believe that letter was never, ever intended to be made public. That letter was from one prosecutorial agency to another prosecutorial agency. It's the same situation as if a police officer were to give me a report in a murder case or any egregious case. I read the report. The only time anyone knows the contents of that report is if that report results in an indictment or a bill of information being filed. And the reason for that is because you do not want to sully anyone's reputation by putting out a document if the charge proves to be baseless or there is no basis in fact for that charge. ...
So I don't apologize for the letter.
G: Everything you've talked about relates to building confidence in the legal system. What do you say to New Orleanians who have lost faith in that system now because of the bad publicity about Brady violations in your office?
CANNIZZARO: I would say that I am aware of my Brady responsibilities. I'm aware of my obligations. And I am working extremely hard with the young men and women in that office to restore confidence in this community. Restoring confidence means we are not going in there and cheating in cases. We are playing by the rules.
The people of this city have got to give this office an opportunity. They've got to give us a chance. You've given other district attorneys in this community a chance. Give us an opportunity to go out and show that we can do it better, that we can get the convictions and we can get them fairly.
And I think that there has been some demonstration of that up to this point. I know that perception sometimes is reality, and we have to turn the perception around. I think if you look at numbers, at what this office is doing, some of the numbers are off the charts as far as the number of cases we've accepted, the number of convictions we've obtained, especially with regard to violent crimes. And the length of sentences that people have received, they exceed the numbers of previous administrations.
So we're doing the things we have to do to get the bad guys off the street and hopefully keep them off the street. But it's about people having confidence in our system.
There was a tremendous disconnect between our office and the Police Department [when I took office]. One of the first things we did was reached out to the Police Department to reestablish that relationship. How did we do that? With crimes of violence, we sent investigators to the scene along with an assistant DA and a case manager. Every homicide scene since February of 2009 we've had that group of three people from our office who have been out on the scene.
But we do more than that. Every week our first assistant, our chief of screening, and our screener who may be responsible for handling a particular homicide, rape, or gun charge meet with the police. We meet with those officers and the officers' supervisors, trying to create a better working relationship, to see to it that if there are any problems with a case, that we learn about the problems as a group. ...
So there is tremendous coordination. And we're getting the numbers. You've got to have faith in us. You've got to step up, and you've got to get involved. If you see something that's not right, if you're a victim or a witness, you have to let the police know about it. You have to give us a chance to work with them. If you're afraid, you have to come and talk to us. You have to let us know about that.
You know, I'm very proud of the fact that the people who have come forward and worked with us, we haven't lost anybody. Our Victim/Witness Unit has certainly been there to help people who have come forward and given us information about cases. We haven't lost anyone. The only people who have been harmed have been people who have spurned the assistance — "I don't need it. I'm all right. I can survive this on my own." Those are the only people that have really been affected because they've allowed themselves to stay out there and not take the offers of security that we have made available.
G: You've said your office can't protect every family member of everybody that testifies.
G: But when the public sees how easily their family members can be done in, in something like the Curtis Matthews murder, what can you tell the public to make them want to testify?
CANNIZZARO: I would urge them to give this system a chance, to give this process a chance. You know, [Curtis Matthews' brother] John Matthews was shot, I think it was seven or eight times in his own home prior to his testifying against Telly Hankton. And as a result of that shooting, he came forth and testified not once, but twice. He had a greater resolve, in my opinion, to show Telly Hankton and people of his ilk that you are not going to influence me, you are not going to intimidate me and run me away from doing what is the right thing. To me, he was a hero in that case.
That's what this is all about. This is about making the city of New Orleans a better place for everyone involved. And we can't do it unless the community is going to get involved and going to participate.
They have to give us a chance. I think so many things become better for this city. I think the economy becomes better. I think the education system becomes better. I think it all becomes better if we resolve crime, especially violent crime that is literally killing our future and killing our hopes in the city of New Orleans.