Failure to Turn Over Evidence

David Flores has finally won his 15 year battle for a new trial on his conviction for the 1996 high-profile murder of bank executive, Phyllis Davis. (Des Moines Register Story) Mr. Flores has consistently maintained that he was wrongfully convicted since the jury returned its verdict some 15 years ago. His fight has taken him to the Iowa Court of Appeals twice and the Eighth Circuit Court of Appeals in federal court as well. His second trip to the Iowa Court of Appeals was the charm.

On April 13, 2011, the Iowa Court of Appeals affirmed Polk County District Court Judge, Don Nickerson's ruling that Mr. Flores was entitled to a new trial as a result of the Polk County Attorney's Office failing to provide his defense lawyer with a crucial piece of evidence pointing to another individual as a top suspect. The Court of Appeals' full decision can be found here. According to Judge Nickerson and the Iowa Court of Appeals, the Polk County Attorney's office failed to provide the defense with a police report documenting an interview with a witness that suggested an individual by the name of Rafael Robinson was actually responsible for the shooting of Ms. Davis. Obviously, the court concluded that this was important information for the defense to know about and failure to disclose it violated Mr. Flores' right to a fair trial and the prosecutors duty to timely disclose exculpatory evidence to the defense. The Polk County Attorney's Office claimed that they produced the disputed report and even obtained a receipt verifying that fact. However, interestingly enough, that alleged receipt was shredded by the Polk County Attorney's Office pursuant to "standard procedure." The Court of Appeals made a point to question why, if such a receipt existed, would the County Attorney have destroyed it when Mr. Flores was sentenced to life and postconviction proceedings were inevitable.

Mr. Flores' case highlights a problem of significant concern in our criminal justice system; defendant's access to evidence and the State's duty to timely and fully produce evidence within its possession. GRL Law has previously blogged about the destruction of evidence by the prosecution and the Flores case further demonstrates the danger of a prosecutor not turning over evidence in its possession. The scary thought is what would have happened to Mr. Flores had his family not been adamant advocates on his behalf and had he not been able to secure an attorney that was willing to fight for him? What if that report was never discovered? The blunt answer is that a potentially innocent man dies in prison.

Preventing the prosecution from "forgetting," altering, hiding or destroying evidence pertinent to a criminal prosecution can be challenging at times but all efforts should be made to protect a defendant's right to a fair trial. Defendants and defense lawyers can, should routinely make written requests and demands to preserve and produce evidence. However, any requests made through the courts will ultimately fall back into the lap of the prosecutor's office to ensure compliance. If the prosecution does not adequately communicate with the investigating law enforcement agencies, does not have the file in order, or simply does not want certain evidence to be disclosed, there is no realistic way for a criminal defendant to know about its existence. Every so often we are reminded of this fact when a high profile case surfaces where a prosecutor gets caught. Whether its the Duke Lacrosse prosecution, the lesser known Terry Harrington wrongful conviction in Council Bluffs or even Mr. Flores' case, evidence is altered, withheld, or simply "forgotten" by prosecutors more often than news stories could ever report.

What about those instances where the prosecution is not caught? What then? That is a risk that GRL Law is not willing to take. For years GRL Law has made it a practice to make specific requests directly to the investigating law enforcement agencies for the information important to the defense. Their goal is to ensure that ALL evidence relevant to a defense is not only preserved but produced in a timely manner. Experience has taught them that even in routine prosecutions, if they wait for a prosecutor to produce evidence or investigative materials, certain items will be missing or no longer available for one reason or another. This is simply not acceptable. Recently, GRL's "unconventional" approach to the problem has resulted in a heated legal battle with the Polk County Attorney's Office; the same prosecutor's office that was just found to not have turned over vital evidence of a defendant's possible innocence in Mr. Flores' murder prosecution.

Bottom line is that the only way to truly protect the rights of an accused and ensure that all evidence is properly disclosed and produced, is to hold publicly elected prosecutors accountable. A responsible prosecutor must ensure that their conduct and dealings with defendants is beyond reproach and that they always put justice first, even if it means that a case remains open or a conviction is delayed. They wear the "white hat" and should do everything possible to ensure it remains unblemished. Prosecutors have all taken an oath to abide by the prosecutorial standards which are above and beyond those of normal attorneys on opposite sides of litigation. Their role, which is often forgotten by some prosecutors eager to win the admiration of their superiors and peers, is best described by the Iowa Supreme Court in its decision in State v. Graves: "A prosecutor 'is not an advocate in the ordinary meaning of the term.' That is because a prosecutor owes a duty to the defendant as well as to the public. … [W]hile a prosecutor is properly an advocate for the State within the bounds of the law, the prosecutor's primary interest should be to see that justice is done, not to obtain a conviction."

When prosecutor's forget their duty, it is the public's job to remind them of their oath and responsibilities. Accountability is key. As elected officials, prosecutors are sensitive to public opinion. This can be used for good just as much as it can be used for bad. Sometimes public outcry leads to over zealousness and a win at all costs approach because that is what the public demands. Consequently the duty falls both on the public and prosecutors to ensure that justice is done. Justice delayed is still justice, so long as the right person is convicted after receiving a fair trial. Justice is never accomplished by convicting the wrong person or even possibly the right person without a fair trial. When prosecutors forget this it is the public's duty to remind them that such actions will not be tolerated. Without such a reminder there is a chance that the next illegal conviction is a friend or family member, or worse yet, yours.

Know your rights; exercise your rights; preserve your freedom.