Mimesis Law
28 June 2017

Fiasco in Tallahassee 2: Judge Terry Lewis Punts on Brady

June 25, 2015 (Mimesis Law) — Leon County Circuit Judge Terry Lewis fancies himself a writer.  A writer of fiction, in fact.  Lewis has taken his real life experience as a judge and has penned three legal thrillers.  However, in a recent ruling on the Henry Segura murder case before him, he truly outdid himself.  In his greatest work of fiction yet, he found that the Florida Department of Law Enforcement (FDLE) crime lab had “unintentionally violated evidence-disclosure rules” by failing to turn over exculpatory DNA evidence in the case.

As recently discussed, the evidence in the murder case against Henry Segura totally sucked.  In spite of the scant evidence against him, Mr. Segura found himself staring down the barrel of a quadruple murder trial with his fate soon to rest in the hands of a Tallahassee, Florida jury.  At the eleventh hour, though, Prosecutor Campbell (not to be confused with his father, Sheriff Campbell) sauntered into court and informed Judge Lewis that there was a slight issue.  The DNA found at the murder scene matched someone else.

This was not newly discovered evidence.  In 2013, the FBI matched DNA found at the site of the murders to a Colombian drug runner named Angel Antonio Avila-Quinones.  The match to Avila-Quinones should have surprised no one, especially law enforcement.  Their initial suspicions were that Brandi Peters was a drug courier and she and her three children were murdered over $80,000 worth of lost drugs.  However, the FDLE was neither surprised nor shocked by the FBI’s report, they were indifferent.  So indifferent, in fact, that they didn’t tell anyone about the DNA match.

Now, two years later, years that Mr. Segura has spent incarcerated and unconvicted, Jo Ellen Brown, who also tried her hand at fiction when she wrote up the FDLE’s DNA report, had to clear her conscience.  In a deposition two weeks ago, when asked why she finally brought the FBI report forward to prosecutors, Brown said that she felt the attorneys “needed to know” that she had lied in her report that the DNA was “not interpretable.”   In case anyone wanted to point fingers, though, Brown only filed the false report (that she signed with her own signature) because her boss told her to.

Brown’s repentance is where we left off from last week’s article.  At that point, any and all sanctions were still on the table. Segura could have been released.  His case could have been dismissed.  Jo Ellen Brown could have been arrested for filing a false report, if not cowardice.  The judge could have ordered an independent investigation of the DNA evidence.  Or, as so many have before him, the judge could have said, “no harm, no foul.”

During the hearing before Judge Lewis, prosecutor Campbell called the director of the FDLE, Karen Martin, instead of Jo Ellen Brown.  It was a calculated move.  Martin, chief of forensic services at FDLE and Brown’s boss, carried a lot more clout than Brown.  Martin told a packed courtroom that she ordered that the FBI report of the partial DNA match NOT be disclosed to defense attorneys or investigators.  It must have been like a nerdier version of the climactic scene from A Few Good Men.

What possible reason could Martin and Brown have had for withholding such clearly relevant evidence in a death penalty case?  Martin testified that the DNA found on a phone at the scene of the murders fell below minimum standards to be interpreted and never should have been uploaded to the FBI database.

OK, but it was.  And it was not matched by Sonny’s BBQ & DNA Testing, it was matched by the FB-frigging-I.  Martin’s argument that FDLE standards should have stopped the test from even happening says nothing about the value of the FBI report and everything about whether the FDLE should give some serious thought to reconsidering its standard.

Just to recap, the FDLE apparently has standards regarding the minimum quality of a DNA sample that must exist before they will test it. Fine.  Makes sense.  However, the DNA sample in Segura’s case, for whatever reason, was forwarded to the FBI.  They tested the DNA and found a possible match with Avila-Quinones, a person who is not, and never was, Henry Segura.  The FBI notified the FDLE of their findings and urged the FDLE to investigate this evidence further by obtaining another DNA sample from Avila-Quinones.

Normally, when the Federal Bureau of Investigations says jump, most people, even in law enforcement, ask how high.  But this isn’t just most people; this is Karen Martin, head of the law enforcement department of an entire state.  However, the state at issue here is my beloved home state, Florida, and a section of the country that most kind folks would describe as ‘batshit crazy.’  When the FBI told the FDLE to look into the DNA match, they should have.  Instead, Martin told Jo Ellen Brown to file the report in the ‘work to be done never’ box.

Last week, Martin walked into a courtroom and testified that the DNA match the FBI found was unworthy of mention, because, you know, science or something.  Prosecutor Jack Campbell, a paragon of fairness and totally impartial on the matter, put it more eloquently:  “Garbage in, garbage out.”  I envision this statement being given from atop a bale of hay next to a sleeping hound dog.

But this is a court of law.  Arguments (often silly) are made on all sides, and then judge makes the final decision.  Karen Martin’s admissions placed Judge Terry Lewis in a rather easy position to determine whether or not the Brady rule (prosecution and law enforcement must turn over any evidence “material either to guilt or punishment” that is favorable to the defense) had been violated.  It had.  But then Judge Lewis took off his robe, donned his writing sweater (writer’s wear sweaters, right?), and ruled that the clear violation was “unintentional.”

The intent of the violation did not bar further action by Lewis.  However, with so many possible sanctions available to him, Lewis chose to do . . . nothing.  He postponed the trial to allow Segura’s defense attorney, Chuck Hobbs, the opportunity to investigate.  Mr. Hobbs will undoubtedly find it easy to obtain information from the FBI and another DNA sample from Avila-Quinones, given how much everybody wants to help the defense.

This goes to the heart of the utterly flaccid nature of Brady.  It empowers judges like Terry Lewis to determine that a flagrant and deliberate violation is unintentional, thereby removing the necessity of imposing sanction to deter future malfeasance.  If the government didn’t mean to do anything wrong, what’s the point in punishing them?

Except in this case, we would be hard pressed to find a more “intentional” instance of a Brady violation than that committed by Karen Martin and Jo Ellen Brown.  Brown admitted that she submitted a false report to investigators, and she admitted that she knew she had lied in that report.  And this was not a false report that said the murder weapon was found on the counter when it was actually in the sink (although still relevant).  This was the FDLE’s decision to conceal a report from the Federal Bureau of Investigation indicating that the DNA evidence found at the scene of the murders was at least a partial match to a known drug-runner.  This evidence should have rung all of the bells since the police already had evidence suggesting that the deceased, Brandi Peters, was a fairly involved drug courier up until her untimely death.

It is nearly impossible to understand how Judge Lewis could have found that this blatant Brady violation was unintentional.  Nearly.  See, Judge Lewis was just doing what so many other judges do.  When presented with evidence that the prosecutor or the police have failed to turn over relevant material to the defense, they shrug at the screaming defense attorney and mutter, “well, now you know.”  Judges view the eventual disclosure as righting the present wrong, and since everything is back on track, nothing further need be done.

This persistent practice entirely misses one of Brady’s main purposes.  In Brady v. Maryland, the Supreme Court was concerned with establishing a rule to prevent non-disclosure of “material” evidence in future cases.  In the landmark ruling, the Court found misconduct on the part of the part of the prosecution for failing to turn over the co-defendant’s statement that Brady was innocent.  However, they reaffirmed Brady’s murder conviction, primarily because Brady testified that was present but did not commit the murder in an apparent attempt to avoid the death penalty.  But the rule mandating disclosure carries on.

While the Brady rule may be one of the most well-known procedural rules of American jurisprudence, the enforcement aspect is where the rule loses all its teeth.  Prosecutors often fail to abide by the rule because it promotes fairness over convictions.  Judges almost never find intentional violation, and even when they do, they see the only ill to be cured as the unfairness to the present defendant.  If actual sanctions were imposed against a DA or a cop (or the FDLE), then the theory of accountability would suggest that the DA or cop (or FDLE) might think twice about being brutally dishonest the next time.

Perhaps, once this debacle of a prosecution against Henry Segura is over, Judge Lewis can take a break from writing the next great American novel and use the time to read Brady and its progeny.  Or maybe he can write his next book about a rogue judge who presides over the circus trial of an innocent (or at least not guilty) man.  He may want to change the names to protect the not-so-innocent.

3 Comments on this post.

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  • Richard Kopf
    25 June 2015 at 1:50 pm - Reply

    Let’s assume that the omission was innocent in the sense it was not intended as a cover up. So what? While I don’t pretend to know the facts in any intimate detail, it does appear that at the very least the crime lab was grossly negligent. Some type of sanction is therefore required. While I doubt I would dismiss, I certainly would give the defense wide latitude in letting the jury know about the failure to disclose and the contents of that which was undisclosed. I would also release the defendant on bond. While this might not be time to call “bull shit,” it appears that it is certainly the time to call “dog shit.”

    All the best.

    RGK

    [Ed. Note: In Latin, dog shit is canis stercore, which makes it sound much more official on a writ. Just trying to help, Judge.]

  • Ken Womble
    25 June 2015 at 3:18 pm - Reply

    I think the term “chickenshit” might be more apt.

  • Marc Reiner
    26 June 2015 at 12:05 am - Reply

    I think the remedy, and under Florida law, a motion to dismiss is appropriate. While it’s a hard ruling to get, a resolution could be the Court grants a spoliation jury instruction about inferring something suspicious or properly “the reasons why the State failed to disclose.” That can lead to a JOA if the government can’t prove the elements BRD based on the jury instruction which the DC can argue necessarily negates reasonable doubt because your argument (though not required) would have centered on how the evidence would’ve cleared your client and that’s why they’re going forward with no evidence but testimony; or the State knew and hit it hoping they could slip something part them…