State Supreme Court building in the French Quarter in New Orleans, Louisiana.
State Supreme Court building in the French Quarter in New Orleans, Louisiana. (Raul A. Rodriguez/

When I served as chief justice of Louisiana in 1990, Associate Jus­tice James Dennis (now a judge on the U.S. Court of Appeals for the Fifth Circuit) and I dissented when the Louisiana Supreme Court denied review to a death row inmate named Curtis Kyles. Kyles had petitioned the court for relief on his claims that his due process rights were violated when prosecutors suppressed exculpatory evidence at his death penalty trial in New Orleans in 1984.

Five years later, the U.S. Supreme Court reversed Kyles’ conviction and death sentence on those precise grounds in Kyles v. Whitley, an important precedent in the Brady v. Maryland line of cases that governs the prosecution’s obligation to disclose evidence that is favorable to the defendant in criminal trials.

Of the four cases that the U.S. Supreme Court has reversed on Brady grounds in the past four decades, three were from Louisiana: Kyles v. Whitley (1995), Smith v. Cain (2012), and Wearry v. Cain (2016).

Just three months ago, the Louisiana Supreme Court issued a decision much like the denial in Kyles similarly denying the Brady claim of Louisiana death row prisoner David Brown, this time over the dissent of three justices.

As in Kyles’ case two decades ago, Brown’s case is now before the U.S. Supreme Court, which has an opportunity to both correct the erroneous result in Brown’s case and, equally importantly, to provide clearer direction to the Louisiana courts about the rules that govern the discovery rights of criminal justice defendants.

Only through such guidance from the U.S. Supreme Court will Louisiana courts begin to enforce these rules meaningfully. Hopefully, such a ruling would ensure that Louisiana prosecutors’ distressing pattern of failing to disclose evidence is finally ended.

Like Brady itself, Brown’s case was never a whodunit. It was simply a who did what. At Brown’s trial, prosecutors, without any direct evidence to prove which defendants actually killed the victim, argued that Brown was the worst of the worst and was personally responsible. At trial, Brown claimed that when he last saw the victim, he was alive. He said that he was unaware anyone had died until informed by law enforcement. Clearly, the jury did not credit Brown’s account. They found him guilty and sentenced him to death.

However, the jury was never told that one of Brown’s co-defendants, Barry Edge, had confessed to an inmate that Edge and another co-defendant had decided to kill the victim on their own, and then they took his life.

Prosecutors were well aware of the confession months before Brown’s trial. However, the jury never heard this because they failed to disclose it to Brown, disregarding his plea for life and ignoring his constitutional right to any evidence that is favorable to him and could affect the outcome of the trial.

It is the duty of prosecutors to adhere to standards set in the state and federal constitutions, especially in cases where they are seeking the ultimate punishment. In this case, the state had an obligation to evaluate the confession for its potential to exculpate any of the five defendants in this case, including Brown. Part of the Brady requirement is that prosecutors may not assess the potential materiality and favorability of evidence in the light most supportive to the state’s case.

But, what occurred in Brown’s case is exactly what happens all too often in Louisiana courtrooms: the state either failed to recognize the value of the evidence or disregarded it, and then acted accordingly.

In my time as a justice and then chief justice of the Louisiana Supreme Court, I confronted cases like Kyles and Brown all too often. Brady issues are and have been, for decades, an endemic and persistent problem in Louisiana courts in both capital and noncapital cases. The Louisiana Supreme Court had a chance to address this in Brown, but instead, once again, neglected to do so.

It’s also clear that Brown is entitled to a new trial because of Brady itself. In that 1963 case from Maryland, John Brady and Donald Boblit were convicted and sentenced to death for the murder of a woman during a robbery. However, Brady was unaware of a confession by Boblit in which he identified himself, rather than Brady, as the trigger man in the robbery they committed together. The U.S. Supreme Court affirmed in Brady that a death sentence could not stand under these circumstances.

Brown’s case is likely to be considered by the U.S. Supreme Court in one of its upcoming June conferences. A grant of certiorari would be an important reminder to Louisiana prosecutors that defendants in 2016 are guaranteed the same rights that John Brady had, more than 50 years ago, and Curtis Kyles had, more than 20 years ago.