Troy is a law student working for me upstairs in my law practice

>> Steve Palmer: All right. They don't teach you that in Law School? What don't they teach you in Law School? Everything we're talking about right here. So what you got here is a law student, Troy, working for me upstairs in my law practice, and I'm a lawyer. Been doing this almost. There's 29 and a half, however many close to 30 years. I probably. I don't know the exact number. Um, and I've sort of learned a thing or two over the years, and Troy brings questions to me. Um, what is, uh, what does your guy think of that? So that's what we're talking about here today.

Last week, we talked about Brady versus Maryland and the prosecutor's duty

Now, look, I want to. Before we get into the. We got some other stuff to talk about, but I think last week, we talked. Last week, we talked about Brady versus Maryland and the prosecutor's duty to disclose the good stuff or the exculpatory evidence. And then, lo and behold, we went right upstairs and talked to Paul, one of our colleagues upstairs, and he had a Brady issue that had emerged. M. And so, I guess, but it was a little bit different than what we talked about, and it dawned on me there's a whole section of this we didn't cover. So Brady, uh, versus Maryland, basically says the prosecutor has to give you all the exculpatory evidence. That's fancy Lawyer Talk, words to say. They have to give you the stuff that helps the defense. And the sad part is, we have to rely on the prosecutor's good faith to do that. And not only that, we have to rely on the prosecutor actually understanding what might help the defense, because usually the prosecutors will get caught red handed not giving us stuff and say, look, I, uh, didn't think it would help you guys anyway. I looked at this. This isn't even relevant to the case. Uh, there's no way that would help you. So I just didn't give it to you. And my response is almost always, well, look, with all due respect, I'll make that decision, not you. Uh, but, uh, this sort of dovetails with a couple of things that have come up. One, Paul's question, and here's what Paul was talking about that we didn't cover. The prosecutor's duty is not just stuff they have in their own file. It is anything that the government has. It is anything that the State has. So prosecutors actually have a duty, an affirmative duty, to go look for the good stuff. They have an affirmative duty to go find stuff that's in the possession of police. So often I will do. I will, uh, call up a prosecutor and say, all right. Look, dude, my investigator has found out. Xyz, I think the police actually interviewed somebody here, and they haven't told you about it, and they're like, well, I don't know about it. I'm like, yeah, go find out, because if that exists, that is exculpatory. I get it. So they have a duty, an affirmative duty, to go seek out a. The exculpatory stuff. Um, but look, if there's stuff that they couldn't have found or they didn't know about, the remedy might be a little bit different, but they have a duty to give it to us. Now, the other thing that came up with Paul is what happens if they don't give it to us? Uh, it all depends. So a Brady violation can result in some pretty drastic consequences if you catch them after the fact. But usually what we do is we catch them during trial. We catch them right before trial or during trial. We do our own investigation. We find out some exculpatory stuff, stuff that helps us. Um. Um, sometimes the remedy is a mistrial. If you're in the middle trial, you get it, you get a do over. Other times, the remedy is a continuance. And every now and then, if the prosecutor does something really egregious, intentionally egregious, you can get a dismissal of the case. Or if they find a witness, or if they. If something, uh, if it has to do with one of their witnesses, you might get a witness excluded or something like that. But, uh, you know, I was talking to, uh, another one of our colleagues who's a big golfer, and it dawned on me, being a prosecutor sort of like being a competitive golfer, because in golf, you know, you've got this. You want to go win. Your goal is to. Your goal is to actually win the tournament, but then you have to follow the rules. But there's nobody really following you around, making sure you follow the rules. So it's just you're left to your honor. So if you're in the middle of the woods and you sort of kick your lie or improve your, uh, position a little bit and cheat, who's going to know? So a lot of times, being a prosecutor is sort of like that. Uh, uh, it's a great analogy, but, uh, generally speaking, the duty of prosecutors is not just what they have, it's what they could have. It's what's in the possession of the government, generally speaking. One.

>> Troy Henriksen: One of the issues, though, was, when we were talking with Paul, is for the appeal that we went over for Brady. It was, they found out on, like, their own accord, like, they talked to the police or the witness that was, could have impeached, and they found out. There was that video, I think, like, a really interesting thing that nothing a lot of people know exist is how Paul did find out, which was the. Wasn't, uh, it the post integrity? Was it the conviction integrity unit?

>> Steve Palmer: Yeah.

>> Troy Henriksen: A lot of people, like, don't know that's a thing, and that's not in most counties. I'm pretty sure it's only in, like.

>> Steve Palmer: Yeah, there's a handful of counties that have a conviction integrity unit of, um, in the prosecutor's office. And the idea would be the prosecutor is going to employ people who look at cases. I don't know how they screen the cases to look at, but they look at cases and they want to find out, is this case one that we should take a closer look at to see? Maybe the guy didn't do it, or maybe there was a big problem with it, and that's it. In Paul's case, the conviction integrity unit found some evidence, I think it was actually DNA evidence that was not handed over to the defense at the Time. And, you know, that guy ended up pleading guilty to a crime to avoid the death penalty, so he's doing life in prison. His lawyers didn't know this evidence, and there was, I think, maybe a witness statement, like you said, too, and, uh, it was found out later. Now, what's going to be the remedy for that? It remains to be seen. It gets really difficult, as I like to say, the air gets really thin the higher you get on the appellate ladder, it's really hard to breathe. It gets really hard to find a real suitable remedy. But if you've got a conviction integrity unit in a prosecutor's office, that's not fighting you tooth and nail to get this remedy, I think hopefully that guy can, can find some relief, because I know, uh, Paul talked to me in depth about that case, and there's some really, really exculpatory stuff that would have helped the defense, um, um, if they'd have had it at the Time. And the kind of stuff that he certainly, uh, I don't say certainly not, but may well not have pled guilty and may have actually fought the case and won it.

>> Troy Henriksen: It's kind of impressive and found out. I always describe to people, I'm outside, so, like, I don't, I don't know if there's a great explanation. I always tell people, uh, layman's term, it's kind of like internal affairs for the prosecutor's office. So it's hard for them to even, like, find stuff. They don't get a lot of, like, cooperation. At least my buddies, that clerk there, that's what they say. It's, it's kind of, you're just fighting against a prosecutor and cops, and they don't necessarily want to help you that much.

>> Steve Palmer: Look, there, there's a, uh.

You bring up an interesting point, because I'm working on a conviction integrity case

You bring up an interesting point, because I'm working on a case right now out in a county in Ohio. I'm not going to talk about the county or the person or any of it, because we're working on it actively. But I've always said this. Um, I don't think, I think most prosecutors, generally speaking, don't set out, and in fact, almost always, they rarely would set out just to frame somebody or intentionally convict the wrong guy. I think they all operate on the premise that they have the right guy. So on the one hand, you would say, well, that's good. On the other hand, think about that for a second, because in the name of righteousness, this is really what that is. They think they've got the right guy, they're convicting the right guy. There really is no limit to what a human might do. By human, I mean, we are all flawed in the name of, I've got the right guy. This guy needs to go down. It's my job to take him down. It gets really easy to start overlooking things here and there because it's for the right. Cause that's the kind of, that's where the bad stuff tends to happen. And what you're talking about is exactly that. So you've got the conviction integrity unit, like internal affairs, crawling up these prosecutors backsides with a magnifying glass, saying, where's all the stuff? You know, why didn't you do this? Why didn't you do that? Immediately you get defensive. You know, it's like immediately they start to Circle the wagons because it feels like a personal attack, and they felt that they were doing the right thing. It's really difficult, uh, in the course of human affairs, to accept when we do something wrong, really difficult. And it's even harder, I think, when you do something wrong, but it was for all the right reasons, you tend to justify it, or people tend to justify it. And when you're dealing with conviction integrity, that's exactly what's going on, and that's the danger of it. And it's also why that those unit, those divisions, those units, in theory, have to be sort of separated, um, from the fray. They have to be sort of outside looking in. And by the way, there are all sorts of innocence projects around. Um, Barry Scheck famously, uh, established the innocence project, and I know there's a few in Ohio that work on cases. I deal with them sometimes. Um, and it's the same thing. Once you start poking around a little bit, and once you find the mush and start pushing, uh, people get defensive really fast, and that's what's going on in the county, in the case we're working on. And, uh, people are running for cover. Um, and there's a lot of yabbits, yabbit, yabbit, yabbit. And I'm thinking, well, look, but, you know, this guy didn't get a fair trial, and he may well be innocent, and he's doing life in prison. Uh, so that's. That's, I think, in theory, uh, the conviction integrity units are great. The more of that we have, uh, I think the better anybody will feel about the system in general, because, look, it's all human. You know, the defense lawyers are humanity. They make mistakes. The prosecutors are human. They make mistakes. The judges are human. They make mistakes. The police are human. They make mistakes. And the supreme Court has talked Time and Time again about the clashing of ideals. The adversarial system is what creates a, ah, good outcome, and it's almost a paradox because it's inconsistent with the prosecutor's job, which is to seek justice. So they get sort of low on the ground, boots on the ground in the middle of the fight, and they forget they should be up here looking down on the fight, looking for justice. And I'm not faulting anybody for being human. I'm just saying the system has tools that are in place and protections in place, uh, against that. And that's why we get cross examination. That's why we get subpoena power. That's why we have due process and they don't. Right, by we, I mean the defense, because we do the good, you know, we're doing God's work. So, anyway, I think that sort of beats that dead horse home. Uh, uh, and, uh, uh, I'll bet you. I'll bet you one thing. They didn't teach you that in Law School.

>> Troy Henriksen: No.

>> Steve Palmer: No, no. All right, so Lawyer Talk. They didn't teach you that in Law School? Coming at you week in and week out with more and more content. Check us out. Lawyertalkpodcast.com. we're on YouTube.

>> Troy Henriksen: Yes.

>> Steve Palmer: Facebook.

>> Troy Henriksen: Yes.

>> Steve Palmer: Even the tick tock. Yeah, even tick tock. So check us out, wherever you, uh, check out podcast, wherever you check out your social Media, we are there, off the record, on the air until now.