Bowers v. Texas

It was the petition of the day for yesterday on the SCOTUS blog.

It’s disturbing, and not because of what the government is arguing, but rather because of what the Petitioner’s lawyers are arguing.  It’s a capital case.  Seems there’s a good likelihood that Bowers, who is slated for execution, is “actually innocent” although that’s not really being argued.

Because it makes Nino uncomfortable and you’re less likely to be heard.

What Bowers really deals with is deliberate prosecutor misrepresentation of evidence.  That is, the prosecutors lied to the jury, both by what they argued and because of evidence they suppressed.

This is then characterized as a Brady issue:

It is undisputed that the prosecution withheld documents regarding the ammunition, documents that seriously undermine a significant aspect of the prosecution’s case. The prosecution’s arguments to the jury were false in light of this withheld evidence. And all of this in a capital case, where the stakes cannot possibly be higher. This conduct violates Mr. Bower’s due process rights. See, e.g.,Giglio v. United States, 405 U.S. 150, 153 (1972); Brady v.Maryland, 373 U.S. 83, 87 (1963); Napue v. Illinois, 360 U.S.264, 269 (1959).

The only point of Giglio is that a prosecutor’s entire office bears the taint of the deliberate misconduct of any prosecutor.  The prosecutor can’t hand off to another prosecutor and then claim that the new prosecutor didn’t “know” and so wasn’t guilty of deliberate misconduct and the conviction can be preserved.  The point of Brady was to extend the principle of Mooney to unintentional conduct with regard to withheld evidence, not just deliberate conduct.  And Napue was not a case in the Brady line, obviously, having predated Brady; rather, it was a case of the Mooney line and concerned deliberate misrepresentation by prosecutors, not unintentional misrepresentation.

In other words, the advocates for this man on death row don’t know the difference between Mooney violations and Brady violations.

Those guys need to get over here and read.



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7 responses to “Bowers v. Texas

  1. We worked Cameron Todd Willingham case arguments since the beginning.

    A travesty!

    Same Governor then and now. He nixed the investigation and that’s (maybe) why theres so hard a push on the other prosecution for abuse of power.

    Will look imto this case specifics more and pray the execution is automatically stsyed per Brady/Giglio

    As it should be


  2. Counselor,

    Did you see what happened in Governor Siegelman,s case? judge Land took notice US Attorney canary wasn’t totally candid.

    Doesn’t seem to matter, when schemes

    are the themes


  3. The “convenience plea” is the reason Kerry Max Cook was not exonerated in Texas. And the prosecutors knew the results of new DNA evidence showed he was innocent but threatened to retry him unless he took the convenience plea for time served. After nearly 20 years on death row, back and forth each time a verdict was reversed for prosecutorial misconduct.


    • Hi Gloria.

      I suppose it’s another post, or prally a book, on the subject of how power over others becomes something of an intoxicant for those who seek it and then, having obtained it, wield it.

      That Kerry Max Cook story is pretty sad. Fighting for years to get out, and now he fights to clear his name.

      But the point of this post was how the distinction between deliberate misconduct and honest error has been lost among a large swath of the nation’s prosecutors. They’ve been taught this for more than a generation now, and the worst of them take it as a license to deliberately lie and cheat to get a conviction. The Napue case was about deliberate lying and cheating. The Brady case was not. Grouping those cases together, as Bowers’ attorneys did in their petition for cert, is a big mistake. Or at least it should be.

      The lawyer on the brief – one Peter Buscemi – used to be a prosecutor. Maybe that has something to do with it.

      Nice to see you over here.


  4. Zarepheth

    It seems to me that if Mr. Bower were retried based upon the current evidence, with an impartial jury and honest judiciary, he would be acquitted and the whole matter of sentencing would become moot. Why does the state even bother to continue pressing for his death?


    • Z, that’s a good question, and I don’t know the answer.
      Possibly, it’s because state attorneys have a misconception about their role and believe they must act as “advocates” for their “client”.


  5. Someehere, in draconuan lore upin high, it is written that goverments n prosecutors may never admit error or abuse. Hence, it is better to keep building empire state sized house of cards. As it is wrote, so shall it be done.

    Until the right, gentle wind, blows idown


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