A Gold Star for David Prater

Sunday, April 15th, 2012

For all the misbehaving public officials we spotlight on this site, it’s worth giving some praise to those who get it right. Oklahoma County, Oklahoma District Attorney David Prater is one of them.

Two Oklahoma prosecutors have been fired for allegedly withholding evidence favorable to the defense in a recent first-degree murder trial.

Oklahoma County District Attorney David Prater said assistant district attorneys Pam Kimbrough and Stephanie Miller did not turn over to the defense a statement by a witness in a case that was inconsistent with what the witness had previously told police. He fired them April 5, the Oklahoman reported.

Prater has also forwarded information from his investigation into the matter to the state attorney general’s office for possible criminal investigation. And he has sent similar information to the Oklahoma Bar Association for possible disciplinary action.

“Though I am heartbroken over their loss to this office, my decision to terminate [the two prosecutors] was an an easy decision to make,” Prater said in a written statement about the firings. “The gravity of their alleged ethical violation is so great that only one punishment equals their transgression.”

Kimbrough and Miller prosecuted the case against Billy H. Thompson, 25, who was convicted of first-degree murder last month in the 2010 stabbing death of a a 21-year-old man outside of Thompson’s Oklahoma City home.

Prosecutors alleged that Thompson had punched a man in a wheelchair in a fight over a cigar during a night of heavy drinking and then stabbed two men, including the victim, when they tried to intervene.

The two prosecutors allegedly withheld from the defense a statement by the man in the wheelchair that was “materially inconsistent” with his original statement to police about where the stabbings took place.

Kudos to Prater for not only firing his subordinates, but turning them over possible prosecution. I know Dallas County, Texas DA Craig Watson has called for criminal prosecutions for Brady violations. It was considered controversial when he did. Given the stakes, I’m not sure why it would be.

One reform that could get around some of these problems would be for states to adopt an “open file” policy. That would remove from prosecutors the discretion to determine what evidence is and isn’t exculpatory—they’d have to turn all of it over. But that sort of policy would need to come with some teeth.

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10 Responses to “A Gold Star for David Prater”

  1. #1 |  earl | 

    Bet there’s more to this. Wonder how many times he himself has done similar?

    They probably weren’t “receptive” or “pliable” enough, know what I mean?

  2. #2 |  NL_ | 

    That NYT story on the open file policy has comments closed, so I want to respond to “Mark Santa Romana” who argued that it would only be fair to require that the defense also make all its files open to the prosecution. As though these are equal parties and if a rule applies to one it must apply to the other. Of course, the parties are not equal. Simply being charged and accused puts somebody at an automatic and immediate credibility disadvantage.

    And especially at the federal level, the resource disparity is crushing. The DOJ can run grinding trial campaigns, hitting the same defendant for years in many cases. In fact, the US attorneys don’t like to admit defeat, so once they pick a target they don’t like to stop until they can find a way to turn some minor misstep into a felony. Most defendants just plea out rather than take on the beast.

    Of course, there’s a more basic problem. It violates the Fifth Amendment rule against self-incrimination. You’re forcing the defense, acting as agent for the accused, to present information that might lead to conviction. And it makes it likely that defense attorneys will not want to hire experts or investigators without knowing exactly what they will find. So you’d actually make it harder for defense counsel to vindicate the accused, for fear that the investigators might in the meantime discover evidence that corroborates the prosecution’s story. The prosecution gets enough undeserved credibility from juries as a default; it doesn’t also need to commandeer the efforts of defense experts to undermine the defense.

    It’s the job of the government (at least nominally) to find out the truth and determine who should be punished based on all available facts. It’s the job of the defense only to protect the accused, not to get at the truth. So the prosecution should have to make all information available to the defense as part of their search for what happened, but the defense should be able to select a strategy best able to defend the accused.

    Different rules because they have different functions.

  3. #3 |  John Jenkins | 

    There is actually more to this story. Not only did these ADAs not turn over the information, they conned the defendant’s lawyer into agreeing to a stipulation that the witness would make the statements the witness had previously made if called at trial. That affidavit is inconsistent, obviously, with the potentially exculpatory statement that the witness subsequently made.

    They were not fired for failing to turn over the evidence (which is bad enough) but for perpetrating a fraud on the court in proffering that affidavit (i.e., committing perjury).

    I doubt seriously they would have even been disciplined for merely failing to disclose the exculpatory evidence.

  4. #4 |  Bill Poser | 

    Generally speaking the “open file” policy sounds like a good idea, but aren’t there situations in which information is legitimately withheld from the defense, e.g. the names of confidential informants or of additional witnesses who will not be called, who might be at risk if identified, whose testimony would not be exculpatory? How is the need to keep certain information confidential handled when there is an “open file” policy?

  5. #5 |  Aresen | 

    1) David Prater probably saved the Oklahoma County a shitload of money by his actions.

    2) He is probably not going to be re-elected as every Police Union will have him marked as “soft on crime>’

  6. #6 |  Michael Chaney | 

    The proper punishment for Brady violations that result in a wrongful conviction is what I’ve been proposing for years now: the dirty prosecutor gets to spend the same amount of time in prison in the exact same cell (where possible) with the same people (no private cell) as the victim. I don’t care if that means a life sentence (i.e. prosecutor is 70 years old – too bad) or whatever. If you don’t do the crime you don’t do the time.

    And, yes, I know this would have a “chilling effect” and “well, (hand wringing) if we did that nobody would want the job”, etc. Good. The slimeballs would find something else to do and we’d be left with the right kind of people doing the job.

    The open file system is also correct but won’t totally solve the problem without the above teeth. The prosecutors would just “lose” stuff they didn’t like.

  7. #7 |  Marshall | 

    “Open file” policy: we should be doing that already. Right to confront one’s accusers, is all.

  8. #8 |  Stephen | 

    We just need to make it legal for the wrongfully convicted to shoot and kill those who wrongfully convict them. There should be some sort of a risk for a prosecutor that sends an innocent person to prison and I don’t mean just the risk of loosing their job.

    Convicting an innocent person should be like a ships captain having a collision with another ship or running aground. They should certainly never be given the opportunity to do it again.

  9. #9 |  XYZ | 

    They have open file in our area and it’s beyond worthless. There’s nothing unusual about a 1 page report for a charge that can put someone in prison for life. Why truly investigate if it’s just going to go help the defense?

  10. #10 |  lawyers | 

    What happens when 100, then 200, then 300 law firms start iPhone Apps because they think iPhone apps are cool and inhouse counsel sitting at airports will start search for apps and stumble across their app. They become worthless.

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