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.
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.