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The Brady Loophole: Absolving the Post-Trial Destruction of Potentially Exculpatory Evidence

When it comes to the criminal legal system, some situations are so unique there exists no means for judicial relief.

Kenny Kozol has fought for years to exonerate his brother Steven, who had been sentenced to serve 39 years in prison. (Photo: Courtesy of Kenny Kozol)

When it comes to the criminal legal system, some situations are so unique there exists no means for judicial relief. It is as if a bizarre, hypothetical case presented to law students to highlight the limits of due process suddenly came to reality — in Washington State.

For years, Kenny Kozol has fought for his brother Steven’s exoneration, believing as the Supreme Court long ago maintained in Marbury v. Madison, that “every right, when withheld, must have a remedy, and every injury its proper redress.”

Kenny set up a website to drum up interest in Steven’s case. He gave an interview on national public radio. He even wrote a country song, “A Brother’s Prayer,” because, as he explained to a Dallas disc jockey, “I had exhausted every resource I had over the years trying to help him and all I really had left to give him was my music.”

In 2001, Kenny’s brother Steven was convicted of attempted first-degree murder and sentenced to serve 39 years of confinement in the Washington Department of Corrections.

Much has happened since then.

An anonymous letter from someone claiming to have committed Kozol’s crime was sent to local media and forwarded to prosecutors. Notably, the letter’s author confessed that he lost his watch at the crime scene while struggling with the victim. However, no evidence of a watch was ever introduced during Kozol’s trial, and his trial attorney maintained that its existence was never disclosed to the defense.

This watch was apparently destroyed at the behest of the lead investigator, Det. Denny Gulla, a mere three years after Kozol was convicted — notwithstanding policies mandating that evidence from violent crimes be retained “until the case has been adjudicated and any suspects have completed serving their sentence.”

As for the confession letter, the King County Prosecutor’s office was quite helpful and ordered DNA and fingerprint analysis. Unfortunately, Det. Gulla had the evidence destroyed before further testing to identify the author could be completed.

According to the King County Sheriff’s Office, Det. Gulla should have been fired long ago for his extensive history of misconduct that has since been exposed by the media.

As for Kozol, the destruction of the letter and the watch left him without any means to prove (and prosecutors without any way to establish) that someone else committed the crime for which Kozol is confined.

Prosecutors stopped trying.

Kozol has not.

Of course, inferences can be drawn one way or another. Nevertheless, the circumstances surrounding this case raise many questions.

Yet even if these facts are viewed in the light most favorable to Kozol and his protestations of innocence are indeed true, constitutional law does not provide a remedy for the post-trial destruction of exculpatory evidence.

This precludes Kozol and others in his shoes from obtaining judicial relief. Instead, they must patiently await the day when, hopefully, the US Supreme Court provides a solution to this legal conundrum.

In 1963, the US Supreme Court determined in Brady v. Maryland that prosecutors must disclose favorable evidence to criminal defendants before trial. Furthermore, “police who deliberately withhold exculpatory evidence, and thus prevent the prosecutors from complying with the obligations articulated in Brady, violate the due process clause.” [See Newsome v. McCabe, 260 F.3d 824, 824 (7th Cir. 2001)].

That said, in order to obtain post-conviction relief for a Brady violation, a person must (among other things) convince the court that “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” [See: Cone v. Bell, 556 U.S. 449, 469-470 (2009)].

Therein lies the rub: If the evidence was destroyed after the conviction was obtained and no forensic testing ever occurred, all someone in Kozol’s position can do is rely on speculation and conjecture — not evidence.

Call it the Brady loophole.

Through this loophole, it becomes impossible for a petitioner to undermine the court’s confidence in the outcome of the trial, for all he can do is point to potentially exculpatory evidence that law enforcement first suppressed, then destroyed.

It is similar to requiring a defendant to show how he was prejudiced when spectators were barred from the courtroom, for to require such proof “would be ironically to enforce against him the necessity to prove what the disregard of his constitutional right has made it impossible for him to learn.” [See, for example, United States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3rd Cir. 1969)].

For law enforcement, apparently two wrongs can make it right. That is the first lesson of Kozol.

One might think that destroying potentially exculpatory evidence is a constitutional violation in and of itself. It is — but only in limited circumstances.

In Arizona v. Youngblood (1988), the US Supreme Court determined that failing “to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant … does not violate due process unless a criminal defendant can show bad faith on the part of the police.” [See: Illinois v. Fisher, 540 U.S. 544, 547-548 (2004)].

Bad faith aside, as one federal court recognized, “Neither Youngblood nor any United States Supreme Court case has held that a conviction is invalid because evidence was lost or destroyed after the conviction became final.” [See: Floyd v. Cain, 2012 U.S. Dist. LEXIS 175271 (2012)].

Therefore, no matter the connivance on the part of the police, destroying potentially exculpatory evidence after someone has been convicted is perfectly all right, constitutionally speaking.

To get away with destroying evidence that could exonerate the wrongfully convicted, timing is everything. That is the second lesson of Kozol.

The US Supreme Court also recognizes criminal trials are meant to “vindicate the public interest in the enforcement of the criminal law while at the same time safeguarding the rights of the individual defendant.” [See: Standefer v. United States, 447 U.S. 10, 25 (1980)]. The courts should now recognize that when law enforcement destroys potentially exculpatory evidence in bad faith, the constitution is violated, no matter when the destruction took place.

As one court succinctly expressed,

The destruction of evidence has a uniquely damaging effect on the administration of justice, for once evidence has been destroyed it cannot be retrieved for judicial review. And the destruction is irrevocable. With a concomitant impossibility of vindication by a wronged defendant and an accompanying subversion of the public interest in correct, not merely swift, justice.” [See: Wilkinson v. Ellis, 484 F.Supp. 1072 (E.D. Pa. 1980)].

Quite simply, destroying evidence that could exonerate the wrongfully convicted is offensive to justice. Whether the Supreme Court takes heed remains to be seen.

Meanwhile, Steven Kozol and others like him will just have to be patient, awaiting the day when they can seek judicial relief.

As for Kenny Kozol, he will have to hope that his song, “A Brother’s Prayer,” one day resonates in the halls of justice.

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