No.

15-946
In the

Supreme Court of the United States

LAMONDRE TUCKER,
Petitioner,
v.
STATE OF LOUISIANA,
Respondent.
On Petition for a Writ of Certiorari to the
Supreme Court of Louisiana

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE AND BRIEF OF AMICI
CURIAE FORMER PROSECUTORS
IN SUPPORT OF PETITIONER
Lori R. Mason*
Maureen P. A lger
A ngela L. Dunning
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94304
(650) 843-5000
[email protected]

*Counsel of Record
264388

Counsel for Amici Curiae

Tim Cole, Mark Earley, Gil
Garcetti, Luther Scott Harshbarger,
Robert M. A. Johnson, Grant Jones,
James Petro and A.M. Stroud, III

A
(800) 274-3321 (800) 359-6859

i
MOTION FOR LEAVE TO FILE A BRIEF
AS AMICI CURIAE AND STATEMENT OF
INTEREST OF AMICI CURIAE
Pursuant to Supreme Court Rule 37.2(b), amici
curiae Tim Cole, Mark Early, Gil Garcetti, Luther Scott
Harshbarger, Robert M. A. Johnson, Grant Jones, James
Petro, and A.M. Stroud, III respectfully move for leave to
file the attached brief as amici curiae in support of the
petition for writ of certiorari. As required by Rule 37.2(a),
amici provided 10 days notice to all parties of their intent
to file a brief as amici curiae. Petitioner has consented
to amicis filing of the brief. The State of Louisiana did
not consent.
The Interest of the Amici Curiae is set forth on page
one of the brief. Amici have a unique perspective on
the issues before the Court. As former prosecutors, we
understand the critical need for prosecutorial restraint
in death penalty cases, and the miscarriage of justice
that may occur when prosecutors exercise their broad
discretion without due restraint.
Although imposition of the death penalty is now
confined to a small minority of jurisdictions in this country,
many of those jurisdictions continue to prosecute capital
cases in a largely unrestrained manner that raises serious
questions as to the constitutionality of the death penalty.
Amici respectfully request that the Court grant their
motion for leave to file the attached brief as amici curiae.

ii
Respectfully submitted,
Lori R. Mason*
Maureen P. A lger
A ngela L. Dunning
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94304
(650) 843-5000
[email protected]

*Counsel of Record

Counsel for Amici Curiae

Tim Cole, Mark Earley, Gil
Garcetti, Luther Scott Harshbarger,
Robert M. A. Johnson, Grant Jones,
James Petro and A.M. Stroud, III

iii
TABLE OF CONTENTS
Page
MOTION FOR LEAVE TO FILE A BRIEF
AS AMICI CURIAE AND STATEMENT OF
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. Prosecutorial Restraint Is a Key Factor
i n D et er mi n i ng W h ic h D ef en da n t s

Receive the Death Penalty . . . . . . . . . . . . . . . . 4
II. The Death Penalty Has Become an Unusual
P unishment S ought by P rosecutors in

Only a Small Handful of Counties . . . . . . . . . . 6
III. L a ck o f P r o s e c u t or i a l R e s t r a i n t
R a ises S erious Q uestions A bou t the

Constitutionality of the Death Penalty . . . . . . 8
A. Aggressive Charging Decisions . . . . . . . . . . 8
B. Wrongful Convictions . . . . . . . . . . . . . . . . . 12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iv
TABLE OF CITED AUTHORITIES
Page
Cases
Atkins v. Virginia,
536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Banks v. Dretke,
540 U.S. 668 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15
Berger v. United States,
295 U.S. 78 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bordenkircher v. Hayes,
434 U.S. 357 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Brady v. Maryland,
373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . . . . passim
Ex parte Brown,
No. WR-68,876-01, 2014 Tex. Crim. App. Unpub.
LEXIS 984 (Tex. Crim. App. Nov. 5, 2014) . . . . . . . 13
Donnelly v. DeChristoforo,
416 U.S. 637 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Glossip v. Gross,
135 S. Ct. 2726 (2015) . . . . . . . . . . . . . . . . . 4-5, 6, 7, 18
Kennedy v. Louisiana,
554 U.S. 407 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 8

v
Cited Authorities
Page
Kyles v. Whitley,
514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
McMillian v. State,
616 So. 2d 933 (Ala. Crim. App. 1993) . . . . . . . . . . . 14
Milke v. Ryan,
711 F.3d 998 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 13
Roper v. Simmons,
543 U.S. 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. Agurs,
427 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Bagley,
473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Wolfe v. Clarke,
691 F.3d 410 (4th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 15
Other Authorities
60 Minutes, 30 Years on Death Row, CBS News
(Oct. 11, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9, 17
Rachel Aviv, Revenge Killing: Race and the
Death Penalty in a Louisiana Par ish,
The New Yorker, Jul. 6, 2015 . . . . . . . . . . . . . . . . 9, 11

vi
Cited Authorities
Page
Radley Balko, Counties That Send the Most People
to Death Row Show a Questionable Commitment
to Justice, Huffington Post (Nov. 24, 2013) . . . . . . 11
Katherine Barnes, David Sloss & Stephen Thaman,
Place Matters (Most): An Empirical Study
of Prosecutorial Decision-Making in Death Eligible Cases, 51 A riz. L. Rev. 305 (2009) . . . . . . . . 5
Death Penalty Information Center, Executed
B u t Po s s i b l y I n n o c e n t , a v a i l a b l e a t
ht t p: // w w w. d e a t hp e n a l t y i n fo . o r g /
executed-possibly-innocent . . . . . . . . . . . . . . . . . . . . 18
Death Penalty Information Center, Innocence:
List of Those Freed f rom Death Row,
available at http://www.deathpenaltyinfo.org/
innocence-cases . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14
Richard C. Dieter, The 2% Death Penalty:
How a Minority of Counties Produce Most
Death Cases at Enormous Costs to All,
Death Penalty Information Center (2013) . . . . . . . 7
Lisa Falkenberg: Mother of 3 Pressured Into
Ch an gin g St o r y, But Jail ed Anyw ay,
Houston Chronicle (Apr. 20, 2015) . . . . . . . . . . . . . 13
Kent Fau l k , An th o ny Ray Hin t o n Fr ee
A f t e r Ne a r l y 3 0 Ye a r s o n A l a b a m a
Death Row, AL.com (Apr. 3, 2015) . . . . . . . . . . . . . . 16

vii
Cited Authorities
Page
Ada m M. G ershow itz , Statew id e Capital
Punishment: The Case for Eliminating
Co unti es Rol e in th e Dea th Pen a lty,
63 Vand. L. Rev. 307 (2010) . . . . . . . . . . . . . . . . . . . . . 6
Larry Hannan, Angela Corey Has Put More
People On Death Row Than Any Other
Prosecutor In Flor ida . Cr itics Say It
Hasnt Reduced the Crime Rate and Is Too
Costly But Victims Arent Complaining,
The Florida Times-Union, Mar. 9, 2014 . . . . . . . . . 10
Jonat ha n M. K at z & Er i k Eck hol m,
DNA Evidence Clears Two Men in 1983
Murder, N.Y. Times, Sept. 3, 2014 . . . . . . . . . . . . . . . 16
No r m a n L e f s t e i n , R e f o r m o f D e f e n s e
Rep resentation in Capital Ca ses: The
Indiana Experience and Its Implications
for the Nation, 29 Ind. L. Rev. 495 (1996) . . . . . . . . . 8
Justin Marceau, Sam Kamin & Wanda Foglia,
Death Eligibility in Colorado: Many Are Called,
Few Are Chosen, 84 U. Colo. L. Rev. 1069
(2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
R ich a r d A . O pp el , Jr., As Tw o Me n G o
Free, a Dogged Ex-Prosecutor Digs In,
N.Y. Times, Sept. 8, 2014 . . . . . . . . . . . . . . . . . . . . . . 16

viii
Cited Authorities
Page
Alyson M. Palmer, AG Wont Appeal Ruling
Lif tin g Dea th Pe n a l ty; Eve n Th o u gh
Judge Called Prosecutions Case Flimsy,
Brunswick DA Elects To Retry 1986 Triple
Homicide, Daily Report (Jun. 10, 2008) . . . . . . . . . 14
Prisoners Exonerated, Prisoners Exposed,
N.Y. Times, Feb. 13, 2016 . . . . . . . . . . . . . . . . . . . . . . 12
Sara Rimer, Two Death-Row Inmates Exonerated
in Louisiana, N.Y. Times, Jan. 6, 2001 . . . . . . . . . . 11
S a r a R i m e r, L i f e A f t e r D e a t h R o w ,
N.Y. Times Magazine, Dec. 10, 2000 . . . . . . . . . . . . . 14
T i n a R o s e n b e r g , T h e D e a d l i e s t D . A .,
N.Y. Times, Jul. 16, 1995. . . . . . . . . . . . . . . . . . . . . . . 11
Campbell Robertson, The Man Who Says Louisiana
Should Kill More, N.Y. Times, Jul. 8, 2015 . . . . . . . . 9
Brian Rogers, DA Drops Murder Charge in Killing
of HPD Officer; After Agreeing to Retrial,
Prosecutors Say They Dont Have Enough
Evidence, Houston Chronicle, Jun. 9, 2015 . . . . . . 13
Chelsea Creo Sharon, The Most Deserving
of Death: The Nar rowing Requirement
an d th e Pr olifer ati o n of Aggr avatin g
Factors in Capital Sentencing Statutes,
46 Harv. C.R.-C.L. L. Rev. 223 (2011) . . . . . . . . . . . . 5

ix
Cited Authorities
Page
R o b e r t J. S m i t h , Am e r i c as D e a d l i e s t
Prosecutors, Slate (May 14, 2015) . . . . . . . . 10, 11, 16
Rob er t J. Sm it h, Th e G eog r aphy of th e
Death Penalty and Its Ramif ications,
92 B.U. L. Rev. 227 (2012) . . . . . . . . . . . . . . . . . . . . 6, 7
A.M. Stroud, III, Lead Prosecutor Apologizes
for Role in Sending Man to Death Row,
The Shreveport Times (Mar. 20, 2015) . . . . . . . . . . 17
Rules
Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1
Model Rules
ABA Model Rules of Profl Conduct 3.8(d) . . . . . . . . . . 12
ABA Standards for Criminal Justice: Prosecutorial
Investigations, Standards 1.2(c)(i), (d)(1) . . . . . . . . . 15

1
INTEREST OF AMICI CURIAE1
Amici have a unique perspective on the issues before
the Court. As former prosecutors, we understand the
critical need for prosecutorial restraint in death penalty
cases, and the miscarriage of justice that may occur when
prosecutors exercise their broad discretion without due
restraint.
Although imposition of the death penalty is now
confined to a small minority of jurisdictions in this country,
many of those jurisdictions continue to prosecute capital
cases in a largely unrestrained manner that raises serious
questions as to the constitutionality of the death penalty.
Tim Cole served as District Attorney for the
97th District of Texas from 1993 to 2006, and
as an Assistant District Attorney in the 271st
District of Texas from 2010 to 2014.
Mark Earley served as the Attorney General
of Virginia from 1998 to 2001, and as a member
of the Virginia State Senate from 1988 to 1997.
Gil Garcetti served as District Attorney for Los
Angeles County, California from 1992 to 2000,
after serving in the office for over two decades
in other roles.
1. No counsel for any party has authored this brief in whole
or in part, and no person or entity, other than amici curiae and
their counsel, made a monetary contribution intended to fund
the preparation or submission of this brief. See Supreme Court
Rule 37.6.

2
Luther Scott Harshbarger served as Attorney
General of Massachusetts from 1991 to 1999,
and as District Attorney of Middlesex County,
Massachusetts from 1983 to 1991.
Robert M. A. Johnson ser ved as County
Attorney for Anoka County, Minnesota from
1982 to 2010, and was President of the National
District Attorneys Association from 2000 to
2001.
Grant Jones served as the District Attorney of
Nueces, Kleberg and Kenedy Counties, Texas,
from 1983 to 1991, and as a member of the Texas
State Senate from 1989 to 1993.
James Petro served as Attorney General for
the State of Ohio from 2003 to 2006, and as a
member of the Ohio House of Representatives
from 1981 to 1984 and 1987 to 1990.
A.M. (Marty) Stroud, III served as Assistant
United States Attorney for the Western
District of Louisiana from 1976 to 1982, and
as First Assistant District Attorney for Caddo
Parish, Louisiana from 1983 to 1989.
SUMMARY OF ARGUMENT
When the law punishes by death, it risks its
own sudden descent into brutality, transgressing the
constitutional commitment to decency and restraint.
Kennedy v. Louisiana, 554 U.S. 407, 420 (2008). This
constitutionally required restraint rests largely in the

3
hands of local prosecutors. In the last decade, death
sentences have become highly geographically isolated
to a small handful of counties that account for the
vast majority of death sentences in the United States.
Unfortunately, in the dwindling number of jurisdictions
that still regularly obtain death sentences, examples
abound of local prosecutors pursuing death sentences
in a way that does not reflect constitutionally required
restraint. Some prosecutors continue to seek the death
penalty against particularly vulnerable defendants like
Petitioner Lamondre Tucker, who was only 18 at the time
of the offense and had a very low IQ. Some prosecutors
also aggressively seek the death penalty in cases that do
not involve the worst of the worst. In addition to making
aggressive charging decisions, some local prosecutors
have also engaged in troubling conduct while prosecuting
these cases, including withholding exculpatory evidence
from the defense or failing to investigate exculpatory
leads.
Amici are gravely concerned about these problems,
which are especially evident in the small band of counties
that continue to obtain death sentences in large numbers.
Most troubling of all, innocent people may beor have
beenexecuted. Since 1973, 156 people who were
wrongfully convicted and sentenced to death have been
exonerated. Many of them languished on death row for
many yearssome for decadesbefore being exonerated.
Some of these individuals came perilously close to losing
their lives in an irreversible travesty of justice.
Amici urge the Court to grant certiorari to address
these important issues.

4
ARGUMENT
I. P rosecu tori a l R estra in t I s a K ey Factor in
Determining Which Defendants Receive the Death
Penalty.
This Court has long recognized the critical role
that prosecutors play in the administration of justice. A
prosecutor is the representative not of an ordinary party
to a controversy, but of a sovereignty ...whose interest
...in a criminal prosecution is not that it shall win a case,
but that justice shall be done. Berger v. United States,
295 U.S. 78, 88 (1935); see also Banks v. Dretke, 540 U.S.
668, 696 (2004) (acknowledging prosecutors special role
...in the search for truth in criminal trials) (citations
omitted); Donnelly v. DeChristoforo, 416 U.S. 637, 64849
(1974) (The function of the prosecutor under the Federal
Constitution is not to tack as many skins of victims as
possible to the wall. His function is to vindicate the right of
people as expressed in the laws and give those accused of
crime a fair trial.) (Douglas, J., dissenting). By faithfully
serving as ministers of justice and not mere advocates,
prosecutors protect societys interests in ensuring not only
that the guilty are punished, but that all accused receive a
fair trial and due process of law. See Brady v. Maryland,
373 U.S. 83, 87 (1963) (Society wins not only when the
guilty are convicted but when criminal trials are fair; our
system of the administration of justice suffers when any
accused is treated unfairly.).
The prosecutors vital role in seeking truth and justice
is particularly critical in capital cases, where life and death
are on the line. As Justice Breyer explained in dissent in
Glossip v. Gross: whether the death penalty is applied

5
turns in large part on the decisionmaking authority,
the legal discretion, and ultimately the power of the
local prosecutor. 135 S. Ct. 2726, 2761 (2015) (Breyer, J.,
dissenting) (citing numerous studies). 2
It is the prosecutor who decides whether to seek
the death penalty. See Bordenkircher, 434 U.S. at 364;
Chelsea Creo Sharon, The Most Deserving of Death:
The Narrowing Requirement and the Proliferation of
Aggravating Factors in Capital Sentencing Statutes, 46
Harv. C.R.-C.L. L. Rev. 223, 227 (2011) (observing that
the first, critical decisional point lies with the prosecutor
in deciding whether to seek the death penalty). Moreover,
whether a prosecutor chooses to seek the death penalty
is the most significant factor in determining the ultimate
result. 3

2. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)

([S]o long as the prosecutor has probable cause to believe that
the accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file ...generally
rests entirely in his discretion.).
3. See Katherine Barnes, David Sloss & Stephen Thaman,
Place Matters (Most): An Empirical Study of Prosecutorial
Decision-Making in Death-Eligible Cases, 51 A riz. L. Rev. 305,
311, 320 (2009) (conducting study of death-eligible cases in Missouri
between 1997 and 2001, and concluding that discretionary choice
by individual prosecutors is the dominant factor shaping decisions
about who will live and who will die); see also Justin Marceau, Sam
Kamin & Wanda Foglia, Death Eligibility in Colorado: Many Are
Called, Few Are Chosen, 84 U. Colo. L. Rev. 1069, 107074 (2013)
(reaching same conclusion based on study of Colorado murder
cases between 1999 and 2010).

6
Accordingly, this Court has emphasized the importance
of restraint in capital cases: It is an established principle
that decency, in its essence, presumes respect for the
individual and thus moderation or restraint in the
application of capital punishment. Kennedy, 554 U.S.
at 435. Prosecutorial restraint is necessary to ensure
that capital punishment is reserved for those offenders
who commit a narrow category of the most serious
crimes and whose extreme culpability makes them the
most deserving of execution. Id. at 420 (citing Roper v.
Simmons, 543 U.S. 551, 568 (2005); Atkins v. Virginia,
536 U.S. 304, 319 (2002)).
II. T he D eath P ena lt y H a s B ecome a n Un usua l
Punishment Sought by Prosecutors in Only a Small
Handful of Counties.
In the vast majority of jurisdictions, prosecutors now
forgo seeking the death penalty in the vast majority of
cases. Recent studies show that death-penalty convictions
are highly concentrated in certain counties, even within
states thought of as highly supportive of the death penalty.
See, e.g., Robert J. Smith, The Geography of the Death
Penalty and Its Ramifications, 92 B.U. L. Rev. 227,
23233, 28189 (2012) (hereinafter, Smith, Geography
of the Death Penalty); Adam M. Gershowitz, Statewide
Capital Punishment: The Case for Eliminating Counties
Role in the Death Penalty, 63 Vand. L. Rev. 307, 30809
(2010); see also Glossip, 135 S. Ct. at 2761 (Breyer, J.,
dissenting) (citing numerous studies).
Only 10% of all counties in the country imposed
even one death sentence between 2004 and 2009. Smith,
Geography of the Death Penalty, 92 B.U. L. Rev. at 228.

7
Within those limited jurisdictions, the death penalty was
further concentrated: fewer than 1% of all counties were
responsible for approximately half of the death sentences
imposed during that timeframe. Glossip, 135 S. Ct. at
2761 (Breyer, J., dissenting) (citing Smith, Geography of
the Death Penalty, 92 B.U. L. Rev. at 233).
More recent data continue to show the concentration
of the death penalty within certain counties. Between 2010
and June 2015, only 15 counties imposed five or more death
sentences: Mobile County, Alabama; Maricopa County,
Arizona; Kern, Los Angeles, Orange, Riverside, and San
Bernardino Counties in California; Duval, Miami Dade,
Pinellas, and Pasco Counties in Florida; Caddo Parish,
Louisiana; Clark County, Nevada; and Dallas and Harris
Counties in Texas. Glossip, 135 S. Ct. at 2774; id. at 2780,
Appx E (Breyer, J., dissenting).
That death sentences are confined to an everdiminishing number of counties points away from a
consensus that the death penalty is necessary to achieve
the legitimate societal goals it has been thought to serve.
Indeed, it suggests that the death penalty is not needed
for these purposesif it were, the rest of the country
would seek it with greater regularity.4 Instead, as detailed
below, one of the most salient characteristics of the
jurisdictions that regularly return death sentences is a
lack of prosecutorial restraint in charging and prosecuting
capital cases.
4. Of the more than 3,000 counties in the country, only 59
(fewer than 2%) accounted for all death penalties nationwide
in 2012. See Richard C. Dieter, The 2% Death Penalty: How a
Minority of Counties Produce Most Death Cases at Enormous
Costs to All, Death Penalty Information Center (2013), at 9.

8
III. Lack of Prosecutorial Restraint Raises Serious
Q uestions A bout the C onstitutionality of the
Death Penalty.
In those counties that still impose the death penalty,
some prosecutors overly zealous desire to win death
sentences has led to a number of deeply troubling results.
In certain cases, prosecutors have chosen to exercise
their charging discretion in an overly aggressive manner.
Many other cases involve Brady violations and other
highly prejudicial misconduct. And, most disturbing, these
problems have resulted in an alarming number of wrongful
death penalty convictions (including the conviction of the
actually innocent). The increasing number of exonerations
in recent years raises additional, serious questions about
the constitutionality of the death penalty.
A. Aggressive Charging Decisions
The vast majority of prosecutors exercise restraint
in their charging decisions, including the grave decision
to seek the death penalty. But overly zealous prosecutors
may seek the death penalty in borderline cases or stretch
to characterize a case as death-eligible, even where the
defendant is not accused of committing a narrow category
of the most serious crimes and cannot be described as
the most deserving of execution. Kennedy, 554 U.S. at
420 (citations omitted). Prosecutors also may seek a death
sentence where factors apart from the strength of the
evidence and nature of the crime make a conviction more
likely (e.g., where the defendant suffers from cognitive
defects or has poor representation). 5
5. See Norman Lefstein, Reform of Defense Representation
in Capital Cases: The Indiana Experience and Its Implications
for the Nation, 29 Ind. L. Rev. 495, 51112 (1996); 60 Minutes, 30

9
In Tuckers case, for example, prosecutor Cox chose
to seek the death penalty against an 18-year-old with a
very low IQ (Pet. App. 2a, 19a) based on aggravating factor
theories that were tenuous at best: (1) he intended to kill
more than one person, because Ms. Sills was pregnant;6
and (2) he had committed a second degree kidnapping
by cajoling her to go with him. (Pet. App. 7a.) The decision
to seek the death penalty against Tucker reflected Coxs
belief, stated following the exoneration of Glenn Ford,
that Caddo County should kill more people. Campbell
Robertson, The Man Who Says Louisiana Should Kill
More, N.Y. Times, July 8, 2015, at A1. Indeed, Cox does
not believe that the death penalty works as a deterrent,
but claims it is justified as revenge, because it brings to
us a visceral satisfaction. Rachel Aviv, Revenge Killing:
Race and the Death Penalty in a Louisiana Parish,
The New Yorker (Jul. 6, 2015), at 32 (hereinafter, Aviv,
Revenge Killing).
Cox is not alone in aggressively seeking death
sentences. Prosecutors in Maricopa County, Arizona,
which leads the nation in the number of death sentences
imposed, have displayed similar behavior and attitudes,
seeking death sentences even where there were compelling
mitigating factors. For example, one prosecutor recently
sent a 19-year-old with depression to death row even
though he had tried to commit suicide the day before the
Years on Death Row, CBS News (Oct. 11, 2015) (available at http://
www.cbsnews. com/news/30-years-on-death-row-exoneration-60minutes/) (acknowledging that prosecution was emboldened by
inexperience of defendants appointed counsel).
6. Tucker is the first defendant to be sentenced to death in
Louisiana under this theory.

10
murder, sought treatment, and was turned away. She also
obtained a death sentence against a 21-year-old man with
a low IQ who was sexually abused as a child, addicted to
drugs and alcohol from a young age, and suffered from
post-traumatic stress disorder. She then sent a U.S.
military veteran with paranoid schizophrenia to death
row. Robert J. Smith, Americas Deadliest Prosecutors,
Slate (May 14, 2015)7 (hereinafter, Smith, Deadliest
Prosecutors). The Arizona Supreme Court also labeled
her courtroom conduct inappropriate, very troubling,
and entirely unprofessional. Id.
The death penalty is also aggressively sought by
prosecutors in Duval County, Florida, which accounts
for only five percent of Floridas population but a quarter
of its death sentences. See Smith, Deadliest Prosecutors.
One such prosecutor has personally obtained ten death
sentences since 2008. Id. In Florida, the ultimate decision
to seek death comes from the elected State Attorney,
whose office sought the death penalty in the majority of
murder cases (42 of 82) and sent 21 people to death row
between 2009 and 2014. Larry Hannan, Angela Corey
Has Put More People On Death Row Than Any Other
Prosecutor In Florida. Critics Say It Hasnt Reduced
the Crime Rate and Is Too Costly But Victims Arent
Complaining, The Florida Times-Union, Mar. 9, 2014,
at A1.
A longtime prosecutor in Philadelphia County
another county that leads the nation in the number of
7. Available at http://w w w.slate.com /articles/news_
and_ politics/jurisprudence/2015/05/america_s_deadliest_
prosecutors_death_penalty_sentences_in_louisiana_florida.html.

11
death sentencessought the death penalty in virtually
every death-eligible case. Tina Rosenberg, The Deadliest
D.A., N.Y. Times, Jul. 16, 1995, 6, at 22. In doing so, she
sought and obtained the death penalty in a case involving
significant mitigating factors, including a lack of violent
history, a history of childhood abuse, and possible mental
problems. Id. This prosecutor was so aggressive in seeking
the death penalty that she earned the nickname Queen
of Death. Radley Balko, Counties That Send the Most
People to Death Row Show a Questionable Commitment
to Justice, Huffington Post (Nov. 24, 2013). 8 Since this
prosecutor retired, death sentences in the county have
plummeted. See Smith, Deadliest Prosecutors (45 death
sentences during her tenure compared with three in the
last six years).
Some prosecutors also seek death in cases where the
evidence is weak, and where other prosecutors would
likely seek a lesser sentence or decline to prosecute at
all. Cox, for example, recently secured a death sentence
against Rodricus Crawford, who was convicted of killing
his infant son, notwithstanding substantial uncertainty
that the death was even a homicide. See Aviv, Revenge
Killing. Other prosecutors have sought and obtained the
death penalty on similarly flimsy grounds. See Sara Rimer,
Two Death-Row Inmates Exonerated in Louisiana, N.Y.
Times, Jan. 6, 2001, at A8 (With a total lack of credible
evidence and conviction based largely on an unreliable
jailhouse informant, subsequent prosecutor said the case
against death row exonerees Michael Ray Graham Jr. and
Albert Ronnie Burrell was so weak [it] should never have
been brought to the grand jury.).
8. Available at http://www.huffingtonpost.com/2013/ 11/21/
counties-that-send-the-mo_n_4317245.html.

12
In all of these cases, whether the death penalty was
sought turned not on the heinousness of the crime or
the defendants degree of culpability, but rather on the
prosecutor responsible for prosecuting it.
B. Wrongful Convictions
Even more troubling, overly zealous prosecution or
outright prosecutorial misconduct has led to numerous
wrongful convictions in capital cases. Since 1973, 156
people on death row have been exonerated. See Death
Penalty Information Center (DPIC), Innocence: List of
Those Freed from Death Row, available at http://www.
deathpenaltyinfo.org/innocence-cases (DPIC Innocence
List). In 2015 alone, six people who had been sentenced
to death were exonerated. Id.; see also Prisoners
Exonerated, Prisoners Exposed, N.Y. Times, Feb. 13,
2016, at A20 (discussing five death-row exonerations in
2015).
Many of these wrongful convictions involved some
form of overly aggressive prosecutorial conduct, including
most commonly the failure to disclose exculpatory evidence
as required by Brady v. Maryland.9 See generally DPIC
Innocence List. Although this Court has presumed that
prosecutors will err on the side of disclosing exculpatory
9. Brady requires prosecutors to disclose all evidence that
is favorable to an accused and material either to guilt or to
punishment. 373 U.S. at 87; see also ABA Model Rules of Profl
Conduct 3.8(d) (8th ed. 2015) (a prosecutor must make timely
disclosure to the defense of all evidence or information known
to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense).

13
evidence,10 examples nevertheless abound of deathrow inmates exonerated or granted new trials because
prosecutors failed to turn over crucial Brady material.
Debra Milke, for instance, was released on March
23, 2015, after serving 23 years on death row in Arizona.
A Maricopa County judge dismissed all charges against
her after the Ninth Circuit reversed her conviction based
on prosecutorial misconduct, including withholding of
exculpatory evidence. See Milke v. Ryan, 711 F.3d 998,
1007 (9th Cir. 2013); DPIC Innocence List at #151.
In 2015, Harris County, Texas prosecutors dismissed
all charges against Alfred Dewayne Brown, who served
ten years on death row. The dismissal followed findings
by the Texas Court of Criminal Appeals that prosecutors
withheld exculpatory evidence. Ex parte Brown, No.
WR-68,876-01, 2014 Tex. Crim. App. Unpub. LEXIS 984
(Tex. Crim. App. Nov. 5, 2014). News reports indicated
that prosecutors withheld a phone record that supported
Browns alibi, and committed other misconduct, including
threatening Browns girlfriend, an alibi witness, into
implicating Brown. See Brian Rogers, DA Drops Murder
Charge in Killing of HPD Officer; After Agreeing to
Retrial, Prosecutors Say They Dont Have Enough
Evidence, Houston Chronicle, Jun. 9, 2015, at A1; Lisa
Falkenberg: Mother of 3 Pressured Into Changing Story,
But Jailed Anyway, Houston Chronicle (Apr. 20, 2015).11
10. See Kyles v. Whitley, 514 U.S. 419, 439 (1995); accord
United States v. Agurs, 427 U.S. 97, 108 (1976) ([T]he prudent
prosecutor will resolve doubtful questions in favor of disclosure.).
11. Available at http://www.houstonchronicle.com/news /
columnists/falkenberg/article/In-jail-mother-presented-with-two-

14
A Georgia superior court dismissed all charges
against Lawrence William Lee in 2015, after he spent
more than 27 years in prison (more than 20 on death
row)for a triple murder during a home robbery. The
court found that the prosecution had engaged in a
full spectrum of prosecutorial misconduct, including
affirmative misstatements to the defense and the court, as
well as the suppression and destruction of exculpatory hair
and fingerprint evidence. DPIC Innocence List at #155
(quoting and citing Order, Lee v. Terry, Superior Court
of Butts County, Case No. 89-V-2325 (May 1, 2008)); see
also Alyson M. Palmer, AG Wont Appeal Ruling Lifting
Death Penalty; Even Though Judge Called Prosecutions
Case Flimsy, Brunswick DA Elects To Retry 1986 Triple
Homicide, Daily Report (Jun. 10, 2008).
Walter McMillian was convicted of murder and
sentenced to death after a trial that lasted only a day
and a half, notwithstanding numerous alibi witnesses
that testified he was at a church picnic at the time of the
killing. See Sara Rimer, Life After Death Row, N.Y. Times
M agazine, Dec. 10, 2000, 6, at 100; DPIC Innocence List
at #50. After years on death row, McMillians conviction
and death penalty were reversed after post-conviction
investigation revealed that the prosecution had concealed
a tape recording (on which the prosecutions chief witness
told police that McMillian had nothing to do with the
crime), as well as other exculpatory evidence. McMillian
v. State, 616 So. 2d 933, 94247 (Ala. Crim. App. 1993).

options5629355.php?t=12bd14548129c86149 &cmpid=twitterpremium.

15
And in Wolfe v. Clarke, 691 F.3d 410 (4th Cir. 2012),
a Virginia murder-for-hire case, the Fourth Circuit
affirmed the district courts ruling that the prosecutors
systematic concealment of evidence violated Brady and
mandated reversal of Justin Wolfes capital murder
conviction. Id. at 42326.
Brady violations are not the only serious concern.
Some prosecutors also fail to pursue leads potentially
pointing to innocence of the accused, with similarly
devastating effects.12 This is especially so where indigent
defendants rely on poorly funded public defenders or
inexperienced court-appointed counsel.
Anthony Ray Hinton, for instance, was released
on April 3, 2015, after serving 30 years on death row.
His conviction for a double murder in Jefferson County,
A labama, was overturned when ballistics testing
(reportedly refused for years by the prosecution) could
not confirm that crime-scene bullets matched the revolver
found in Hintons home. See States Motion for Order of
Nolle Prosequi, Alabama v. Hinton, Nos. CC1985-3363,
CC1985-3364 (Ala. Cir. Ct. Apr. 1, 2015), ECF No. 56;
12. A prosecutors duty extends beyond turning over
exculpatory evidence: the prosecution must also undertake an
appropriate investigation to discover potentially exculpatory
evidence. See ABA Standards for Criminal Justice: Prosecutorial
Investigations, Standard 1.2(c)(i), (d)(1). Without a proper
investigation, the prosecutor cannot be said to have truly
search[ed] for truth. Banks, 540 U.S. at 696; see also United
States v. Bagley, 473 U.S. 667, 692 (1985) (discussing prosecutors
truth-seeking function and noting that [t]he purpose of a trial is
as much the acquittal of an innocent person as it is the conviction
of a guilty one) (citations omitted).

16
Kent Faulk, Anthony Ray Hinton Free After Nearly 30
Years on Alabama Death Row, AL.com (Apr. 3, 2015).13
Prosecutorial tunnel vision similarly resulted in
the wrongful conviction of Henry McCollum, who spent
30 years on death row for the rape and murder of a young
girl in North Carolina. The prosecutor had information
pointing to a different perpetrator with a history of violent
sexual assaults (and who confessed to raping and killing
another teenage girl in similar circumstances only a month
later). See Order, North Carolina v. McCollum, Nos. 83
CRS 15506-07, 158220-23 (N.C. Super. Ct. Sept. 2, 2014);
Jonathan M. Katz & Erik Eckholm, DNA Evidence Clears
Two Men in 1983 Murder, N.Y. Times, Sept. 3, 2014, at
A1 (hereinafter, Katz & Eckholm, DNA Evidence Clears
Two Men); Richard A. Oppel, Jr., As Two Men Go Free,
a Dogged Ex-Prosecutor Digs In, N.Y. Times, Sept. 8,
2014, at A1 (hereinafter, Oppel, As Two Men Go Free).
Nevertheless, the prosecutor pursued only McCollum
and his half-brother, Leon Brown, two mentally impaired
teenagers who gave inconsistent, contaminated, and
quickly recanted confessions. See Katz & Eckholm, DNA
Evidence Clears Two Men, at A1; Oppel, As Two Men
Go Free, at A1. The lead prosecutor has been dubbed
the deadliest prosecutor in America, securing 42 death
sentences while in office. Smith, Deadliest Prosecutors.
And the case of Glenn Ford provides yet another
poignant example of the injustice that can occur when
even well-intentioned prosecutors focus too narrowly on
obtaining a conviction. Mr. Ford served 30 years on death
13. Available at http://www.al.com/news/index.ssf/2015/ 04/
anthony_ray_hinton_freed_after.html.

17
row before finally being exonerated. See 60 Minutes, 30
Years on Death Row. Had former Caddo Parish prosecutor
(and amici) A.M. (Marty) Stroud, III followed up on
certain leads suggesting others involvement, Mr. Ford
might have been spared this injustice. See id. Stroud
acknowledged that his role as a prosecutor contributed
to this wrongful conviction:
[M]y inaction contributed to the miscarriage of
justice in this matter. Based on what we had,
I was confident that the right man was being
prosecuted and I was not going to commit
resources to investigate what I considered
to be bogus claims that we had the wrong
man. My mindset was wrong and blinded
me to my purpose of seeking justice, rather
than obtaining a conviction of a person who I
believed to be guilty. I did not hide evidence, I
simply did not seriously consider that sufficient
information may have been out there that could
have led to a different conclusion. And that
omission is on me....I end with the hope that
providence will have more mercy for me than I
showed Glenn Ford. But, I am also sobered by
the realization that I certainly am not deserving
of it.
A.M. Stroud, III, Lead Prosecutor Apologizes for Role
in Sending Man to Death Row, The Shreveport Times
(Mar. 20, 2015).14
14. Available at http://www.shreveporttimes.com/story/
opinion/readers/2015/03/20/lead-prosecutor-offers-apology-inthe-case-of-exonerated-death-row-inmate-glenn-ford/25049063/.

18
It is impossible to recount here the numerous
other instances around the country, both recent and
historical, where the prosecution was found to have
either intentionally or inadvertently failed to turn over
exculpatory evidence in death penalty cases or failed to
investigate exculpatory leads. It is similarly impossible
to estimate how many others on death rowor already
executed 15 have suffered the same deprivation of
due process by prosecutors whose misconduct went
undetected. Nevertheless, the powerful examples above
demonstrate the grave injustice that all too frequently
results when prosecutors fail to exercise restraint in
securing death sentences.
These examples underscore the urgent need for this
Court to examine the constitutionality of the death penalty
carefully.

15. There is reason to believe innocent people have been

wrongfully executed. See Glossip, 135 S. Ct. at 2756 (Breyer, J.,
dissenting) (collecting examples); see also DPIC Executed But
Possibly Innocent, available at http://www.deathpenaltyinfo.org/
executed-possibly-innocent (identifying ten people who may have
been wrongfully executed).

19
CONCLUSION
For these reasons, amici urge the Court to grant the
Petition for a Writ of Certiorari.
Respectfully submitted,
Lori R. Mason*
Maureen P. A lger
A ngela L. Dunning
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94304
(650) 843-5000
[email protected]

*Counsel of Record

February 29, 2016

Counsel for Amici Curiae

Tim Cole, Mark Earley, Gil
Garcetti, Luther Scott Harshbarger,
Robert M. A. Johnson, Grant Jones,
James Petro and A.M. Stroud, III