A letter to the editor appeared in the  New York Times from former New York County District Attorney, Robert M. Morgenthau. Morgy is old now, and out of office, but in his day he was the most powerful politician in New York.  Not up front, giving speeches or kissing babies, but a word from Morgenthau could change the political landscape. 

And now, he wrote a letter to the editor, not to extol the virtues of the system he carried for decades, but to complain of its failure.  This is an extraordinary thing.

On Tuesday [May 28th], the United States Supreme Court declined the opportunity to correct an egregious Brady violation that put William E. Kuenzel on Alabama’s death row 25 years ago.

Mr. Kuenzel was convicted in 1988 of killing a convenience store clerk. During the trial, the prosecutors assured Mr. Kuenzel’s lawyer that, in accordance with the Brady rule, they had turned over all potentially exculpatory evidence to the defense.

Twenty-two years passed before Mr. Kuenzel discovered that the prosecutors had concealed revealing police notes and grand jury testimony that supported his unwavering claim of innocence.

A brief description of the Brady violation follows. A rather pedestrian concealment of details that would have given Kuenzel the tools to fight the charges. There was no DNA to scientifically prove anything, but a basic Brady violation.

Mr. Kuenzel asked the Supreme Court for the chance to present this obvious Brady violation in federal court. The Supreme Court could have cut through the legal thicket of procedural impediments and held the state government accountable for flouting Brady.

But the court refused. As a result, the unthinkable consequence of the toothless Brady rule will be that an innocent man is executed and the prosecutor goes unpunished for his misconduct.

Remarkable words coming from a man who was DA for 34 years, and U.S Attorney before that.  Morgy was part of a trio who put their names to an amicus brief in support of certiorari, along with former Los Angeles DA Gil Garcetti and Milwaukee DA E. Michael McCann.  As they make clear up front, they are not people to be trifled with.

Indeed, one of those baby prosecutors Morgy trained who went on to serve in a judicial capacity was none other than Associate Justice Sonia Sotomayor. Of course, there was no need to mention this detail, and she knew where she came from.

They go on to concede the “truism that prosecutors’ offices and juries occasionally make mistakes, even if ever so rarely.” (My italics.)  And this case, the three former prosecutors contend, is that ever so rare mistake.

The gist of their amicus argument is that the procedurally-defaulted first-time habeas petitioner shouldn’t be saddled with the additional burden of Schlup v. Delo, presuming guilt and requiring him to show the probability of innocence before being entitled to a hearing.  They argue such a clarification of the burden will “ensure the fairness and accuracy of convictions,” and thus the integrity of convictions and imposition of the death penalty.

That a petition for cert by a death row inmate is denied is routine. That a petition with the support of Morgenthau, Garcetti and McCann as amicus is denied is ever so rare.  Claims of innocence by death row defendants with DNA to back them up have become something of the darling of innocence, having both the ability to meet the burden with scientific evidence that takes the burden off the courts. 

Even so, they don’t always succeed.  They still provide that painful glimpse into the working of a machine that convicts the innocent through the same ordinary, reliable methods that are adored by prosecutors, juries and judges, even though the ever so rare event that an innocent person is wrongfully convicted happens. It makes it increasingly hard to mouth the word integrity, knowing that in the absence of scientific evidence, there would be nothing to slow down the plunge of the needle.

The irony here, of course, is that when the sentence is death, even former prosecutors demonstrate an elevated concern for the integrity of the conviction.  Remember those 7,000,000 criminal proceeding for which these three former prosecutors are responsible? How many of those convicted innocent defendants?  There must be some, by their measure, even if mistakes are ever so rare.

Yet, no one can fault Morgenthau, Garcetti and McCann for signing on as amicus in support of William Kuenzel, who was convicted upon a failure of the “toothless Brady” and will now be put to death.  That they stood up for innocence, for Brady, is worthy of respect.

And now these three former District Attorneys know what it feels like to be a criminal defense lawyer, when despite their power, their bona fides, their more than 100 years of combined prosecutorial experience, the Supreme Court denied the petition without a word.  Perhaps Morgenthau trained his prosecutors too well.