Four months after a jury sentenced David Brown to die in 2011, prosecutors handed over a 37-page transcript that shocked his defense lawyers.

Brown and five other prisoners were part of a botched escape from Louisiana's State Penitentiary that resulted in the beating and stabbing death of Capt. David Knapps in 1999. Brown admitted he was part of the attempted prison escape but denied involvement in Knapps' killing.

The transcript, a statement by another prisoner, appeared to bolster Brown's case. It claimed that co-defendant Barry Edge had admitted that he and another escapee, Jeffrey Clark, decided to kill Knapps and followed through on their plan.

Prosecutors only shared the alleged jailhouse confession because they planned to use it against Edge at his trial and acknowledged they had obtained the statement four months earlier. Had he had that statement, Brown argues he could've used it to support his defense that he was not present during Knapps' slaying and that, contrary to the prosecution's theory, he did not hold him down during the fatal beating in a prison bathroom.

Brown, who has asked the U.S. Supreme Court to hear his case, is far from alone in claiming Louisiana prosecutors routinely flout their obligations to hand over so-called Brady material favorable to the defense.

"Brady violations are a national problem, but Louisiana is an outlier in terms of the number of Brady petitions and Brady errors that have remained unaddressed. It's much more extreme," said Ellen Yaroshefsky, who has written extensively about Louisiana's criminal justice system and is the Howard Lichtenstein Professor of Legal Ethics at Hofstra University.

If Brown's petition is accepted, it would be the fourth time since 1995 that the nation's top court has scrutinized Louisiana's interpretation of the landmark Brady decision — a dubious distinction that experts say calls attention to an entrenched prejudice against Black defendants. All the Brady cases the U.S. Supreme Court has reviewed from Louisiana, and many of the certiorari petitions it has received from the state alleging prosecutorial misconduct, have involved Black defendants.

Experts say Brown's case offers the Supreme Court another opportunity to send a forceful message on Brady compliance.

"This most recent distortion of established doctrine will strip defendants of constitutional protections, incentivize prosecutorial non-compliance, and deprive jurors of information essential to their determinations of guilt and punishment — all providing powerful reasons for this court to grant certiorari," the National Association of Criminal Defense Lawyers said in an amicus brief urging the Supreme Court to step in.

After the jailhouse statement was disclosed, the trial court granted Brown a new sentencing proceeding, but the state's high court reversed the ruling. Other state high courts or federal appeals courts would have followed precedent and upheld the trial judge's order, Brown argues.

"But because petitioner's case arose in Louisiana, he sits on death row," his petition says. "Only this court can rectify that incongruity and reiterate Brady's teachings to Louisiana prosecutors and courts."

'He Said We Did It'

The U.S. Supreme Court reversed the past three Brady cases it reviewed from Louisiana courts, with prosecutors sometimes getting exasperated tongue-lashings from the justices during oral arguments.

In 2011 the justices heard arguments in Smith v. Cain , a death penalty case where prosecutors did not disclose that their only eyewitness to five homicides provided contradictory statements about the shooter.

"May I suggest that you stop fighting as to whether it should be turned over? Of course it should've been turned over," the late Justice Antonin Scalia said to the attorney defending Orleans Parish in the case. "I think the case you're making is that it wouldn't have made a difference."

The Jefferson Parish District Attorney's Office, which prosecuted Brown, is saying something similar now — that prosecutors did not disclose the jailhouse confession because it was neither favorable nor material in determining Brown's guilt or punishment. The evidence showed Brown played a significant role in Knapps' death, the DA's office says.

"After Captain Knapps had been hit in the head with a mallet by Edge, and after Captain Knapps was already bleeding, petitioner chose to facilitate the continued attack on Captain Knapps by forcibly removing him from the hallway, placing him in the bathroom, and keeping him there by brute force where the brutal beating could continue in relative privacy," the prosecutors say in their cert response.

It's uncontested that Brown dragged Knapps into a bathroom after he was struck in the head and that the guard's blood was on Brown's clothing. Brown insists he wasn't there during the killing and did not know what his co-defendants planned to do.

The prisoner to whom Edge allegedly confessed recalls that Edge said he and Clark decided to kill Knapps.

"He said we could have let him live. He said we did it. We made a decision to kill him to help our self," Richard Domingue's statement says.

The Jefferson Parish District Attorney's office declined to comment to Law360, citing Brown's pending petition.

Brown, Edge and Clark were serving life sentences for murder in different cases when they were convicted in separate trials of first-degree murder for Knapps' death. Clark received the death penalty along with Brown, the only Black inmate who participated in the escape plot. Edge was sentenced to life because jurors could not agree on the death penalty.

Two other inmates also received life sentences for first-degree murder. A third was fatally shot by a prison guard during the attempted escape.

Only One Prosecutor Disciplined

Death sentences in Louisiana are often reversed because of prosecutorial misconduct, according to a 2016 study by Frank R. Baumgartner, a political science professor at the University of North Carolina at Chapel Hill, and Tim Lyman, a documentation specialist who has worked for Chevron and Dow Jones.

From 1976, when capital punishment was reinstated in the U.S., through August 2015, Louisiana sentenced 241 people to death and 148 of them were Black, according to the study. Of the 155 cases that had been resolved, 127 ended in reversals — an 82% reversal rate that is 10 percentage points higher than the national average, the study said. Twenty-five reversals were attributed to prosecutorial misconduct, second only to judicial error at 38.

Prosecutorial misconduct is also a leading contributor to wrongful convictions, according to a September 2020 report from the National Registry of Exonerations. Of the first 2,400 exonerations in the registry, 44% involved concealing exculpatory evidence.

Prosecutors frequently go unpunished for those violations in Louisiana and other states, experts say.

"The problem is most disciplinary authorities don't deal with criminal cases to begin with. They don't have the expertise in it. They tend to defer to district attorneys thinking that they're policing their own," Yaroshefsky, the Hofstra professor, said.

Only one prosecutor has ever been disciplined by Louisiana's disciplinary body for a Brady violation in all types of cases, despite the state withholding evidence in 50 of 77 exonerations, according to the National Registry of Exonerations.

"A result of that is that prosecutors do not have an incentive to not commit misconduct because they never pay any consequences anyway," said Richard Davis, the legal director of the Innocence Project New Orleans.

The sole prosecutor who was disciplined, Roger Jordan, received a three-month suspended sentence for hiding exculpatory evidence in the case of Shareef Cousin, who was 17 when he was sentenced to death in 1996 for the fatal shooting of Michael Gerardi.

Cousin became one of the youngest prisoners on death row in the U.S. and the youngest in Louisiana history. After Jordan's misconduct was revealed, the Louisiana Supreme Court ordered a new trial in 1998 and his case was dismissed the following year.

Jordan was accused multiple times of Brady violations, according to court documents, including in Smith v. Cain. The Supreme Court reversed Juan Smith's conviction in 2012.

"The names are known, the behavior is known, and the behavior is tolerated and excused," said Angela A. Allen-Bell, B.K. Agnihotri Endowed Professor at the Southern University Law Center.

Jordan, who formerly practiced in Orleans Parish, is now a defense attorney in private practice. He did not respond to a request for comment.

Repeat Allegations of Misconduct

An attorney for Brown, Letty Di Giulio, has filed three cert petitions alleging misconduct by one of Brown's prosecutors in other cases. In November, the high court declined to review Assistant District Attorney Thomas Block's conduct in a human trafficking case, but Justices Sonia Sotomayor and Ketanji Brown Jackson dissented.

In the case, Block testified to rebut the defense's contention that a key witness received a deal for her testimony, but Justice Sotomayor wrote that his testimony "went far beyond that limited purpose" and called his behavior "one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct."

"I had hoped that this case, in which ADA Block so flagrantly flouted and abused his power, might finally be a reckoning," Di Giulio told Law360 at the time.

Block declined requests for comment through his office.

The other prosecutor in Brown's case, Hugo Holland, has been accused of multiple Brady violations, including in the case of Corey Dewayne Williams, a 16-year-old intellectually disabled boy who was convicted and sentenced to death in the 1998 murder of a pizza delivery driver. At the time, Williams still sucked his thumb, frequently urinated himself, and ate dirt and paper, according to his attorney's 2018 cert petition to the U.S. Supreme Court.

Until investigators obtained a confession from Williams after hours of overnight questioning, police suspected three older men were conspiring to pin the crime on Williams, but prosecutors did not disclose that to the defense during trial, according to court documents.

"Some of the most egregious Brady cases have come out of Louisiana," said Mary McCord, the executive director of the Institute for Constitutional Advocacy and Protection, which filed an amicus brief in Williams' case and has submitted one on behalf of Brown. It includes signatures from dozens of current and former prosecutors.

"The government has an obligation to prosecute where prosecution is warranted but it needs to do so by playing by the rules and doing so fairly," McCord said.

The U.S. Supreme Court never got a chance to decide whether to review the case because after 20 years in prison, the Caddo Parish district attorney said Williams' constitutional rights may have been violated during his trial. Williams was released after agreeing to a deal in which his first-degree murder conviction was vacated in exchange for him pleading guilty to manslaughter and obstruction of justice charges.

Unlike Block, Holland is not employed by Jefferson Parish. He's been working as a freelance DA since being forced to resign from Caddo Parish in 2012 after he and a colleague allegedly lied on a federal application to obtain automatic rifles for the office.

Holland declined to comment.

Counting Trial Wins, But Not Brady Violations

Louisiana's dysfunctional justice system has been a problem for decades and is rooted in racism, said Allen-Bell, author of an upcoming book, "The Summons," about race and justice in the state. Prosecutors lie in open court about evidence they have, she said, citing the case of Kenny "Zulu" Whitmore as an example.

In 1977, Whitmore was prosecuted for the death of former Zachary Mayor Marshall Bond, who was beaten and stabbed at his farm. A non-unanimous jury — a Jim Crow-era holdover — convicted Whitmore on a 10-2 vote.

"The scene as I stated, had no fingerprints. All rough surfaces. Nothing left there," the prosecutor in the case said during Whitmore's trial, according to a transcript he obtained.

"Fast forward to 2019 and Mr. Whitmore has sent me copies of all these fingerprints that this prosecutor said never existed," Allen-Bell said.

Whitmore has been in prison for more than 40 years, most of them in solitary confinement. He has asked the state to compare his fingerprints to those found at the crime scene, but his request has been beset by delays. His pro bono attorney has already paid a fingerprint expert who definitively excluded Whitmore from two latent prints, according to Whitmore's motion.

"You have a history of cases in Louisiana, many of them not even published, that I was able to find where people are being subject to these Brady violations on a routine basis," Allen-Bell said. "It is not rare, it is not occasional. It is consistent, it is regular, it is predictable. That's how bad this is."

An August 2019 report from Loyola Law School professor Laurie L. Levenson underscored the point. Comparing Brady violations in Orleans Parish to district attorney offices with similar caseloads in other states since 1963, the year of the Brady ruling, Levenson found that "the numbers are not even close."

She found four Brady violations in Fulton and DeKalb counties in Atlanta; six in Shelby County in Memphis, Tennessee; and 10 in St. Louis. New Orleans' 37 Brady violations were "nearly 400% higher than the next highest jurisdiction," Levenson said.

Levenson's report was commissioned by attorneys for Robert Jones as part of his lawsuit against the Orleans Parish District Attorney's Office, which prosecuted him in 1992 for a series of violent crimes in the French Quarter, despite having information that pointed to another man.

Jones spent 23 years in prison before being exonerated.

Much of Levenson's report focused on the culture of the district attorney's office when Jones was convicted during the tenure of Harry Connick Sr., who served from 1974 to 2003. Connick's office did not have a policy to ensure Brady compliance, Levenson said. The trial secretary tracked prosecutors' wins and losses to include in their personnel files, but not Brady violations, she added.

Jason Williams, who has been Orleans Parish district attorney since January 2021, settled Jones' lawsuit for $2 million during his first year in office. Defense attorneys saw it as a promising sign that the office is changing.

"This DA's office administration is actively working to improve the practices of the office relating to timely and complete disclosure of evidence, as required by Supreme Court precedent and state statutes," Williams' office said in a statement, adding that staff participate in training sessions with "former prisoners whose convictions were vacated by courts on Brady grounds."

Williams' office also created a new division to examine "past cases involving allegations of evidence suppression," the statement said. That unit helped exonerate five people in 2021, according to the National Registry of Exonerations.

"He is the only DA in the state that has openly acknowledged the high incidence of [Brady violations], and he's the only one that has put systems in place to confront it," Allen-Bell said.

Courts, not just prosecutors, also have to improve how they handle Brady violations, defense attorneys say. Judges are inconsistent on their interpretation of materiality in deciding Brady claims and too often side with prosecutors, according to a 2014 NACDL study that examined 620 federal cases over five years.

In 145 of those cases, prosecutors did not disclose favorable information to the defense, the study said, but judges sided with the government 86% of the time in concluding there was no violation.

"When you're fighting about Brady information, the things prosecutors say in court belie their understanding of Brady," said Gwyneth O'Neill, a New Orleans attorney with Schonekas Evans McGoey & McEachin. "If they've never done defense work, a lot of these prosecutors don't even necessarily understand how it could be favorable to the defense. The Supreme Court long ago cautioned that they should err on the side of disclosure. They've clearly chosen not to heed that warning in Louisiana and have suffered no consequences for failing to do so."

--Editing by Marygrace Anderson.