The Courier Journal in an article written by Andrew Wolfson, details police misconduct issues raised by William Gregory, a Louisville man who was wrongfully convicted of rape in 1993 for which he served seven years in prison.
The lawsuit filed by Gregory resulted in a settlement with the City of Louisville of $3.9 million and another $700,000 from the State of Kentucky.
The charges involved allegations that the police intentionally withheld exculpatory evidence and a forensics expert employed by the state, falsified a report by withholding evidence of hairs being found on the victim from a third person.
The article which can be read at http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20070209/NEWS01/702090447 stated:
A federal district judge previously had dismissed the city and the officers as defendants in Gregory’s suit, but a federal appeals court last April overturned that decision, saying Gregory had shown that Louisville police used discredited identification procedures to arrest him.
The appeals court found that the police department encouraged one-on-one “show-ups” — in which police present one person to a witness and ask if that person is the suspect — rather than using a more reliable procedure in which the witness is presented with several people from whom to pick.
The appellate panel also said Gregory presented evidence that the department failed to train officers about their duty to disclose evidence that suggests a suspect is innocent.
The court said Officer Steve Clark, who investigated the first attack, testified at a preliminary hearing that the victim failed to pick Gregory from a photo array but did not reveal that she picked another suspect.
Clark testified at the same hearing that the victim’s description “fit” Gregory, even though she described him as 5 feet, 6 inches tall and clean shaven, when, in fact, he’d worn a beard for 10 years and was 5 feet, 11½ inches tall.
The court said Detective John Tarter, who has since retired, failed to tell Gregory that a second victim failed to pick him out of a photo pack. Tarter then persuaded Gregory to submit to the one-on-one show-up, in which the same victim identified him
The settlement with the state was paid on behalf of forensic examiner Dawn Ross Katz, who found that five of the hairs in the stocking cap were consistent with hairs taken from Gregory.
He accused her of falsifying her results and failing to disclose that two of the hairs didn’t match his. The tests were done in 1992, before DNA testing for hair strands was available.
The state has a duty to disclose exculpatory evidence.
The leading case on the dury to disclose exculpatory evidence is  Chavis v. Rowe, 643 F.2d 1281 (7th Cir. 1981).

The Chavis Court applied the general rule for disclosure of exculpatory evidence in criminal prosecutions set out in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), stating:
[31]        [S]uppression by the prosecution of evidence clearly favorable to an accused violates due process where the evidence is material either to guilt or punishment, even if it was not specifically requested by the defendant. Evidence is material ‘if [it] creates a reasonable doubt that did not otherwise exist.’ [United States v. Agurs, 427 U.S.] at 112, 96 S. Ct. at 2401. This means:
[32]        If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. Id. at 112-13, 96 S. Ct. at 2401-2402. Chavis, 643 F.2d at 1285.
[33]        The Court in Chavis further held that even though the disciplinary committee had access to the exculpatory evidence at the time of the hearing, due process still requires that the prisoner have access to the evidence prior to the hearing in order to “prepare the best defense he can and bring to the court’s attention any evidence helpful to his case.” Chavis, 643 F.2d at 1286.
Also see: Commonwealth of Kentucky v. Key, 633 S.W.2d 55 (Ky. 03/30/1982)
No one questions that under principles expressed in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1966), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the withholding by the state of information which ‘creates a reasonable doubt that would not otherwise exist’ is a denial of due process, regardless of good faith on the part of the governmental authorities responsible for the suppression….”

… we finally consider in passing the Commonwealth’s third argument that “no statutory duty exists to provide exculpatory evidence.” Our initial comments in considering the Commonwealth’s second argument are equally applicable here. The due process requirements mandated by the United States Supreme Court supersede any contradictory prohibitions in the criminal rules.


  1. hello: a MUST READ for anyone dealing with excuplatory/impeachment evidence is KYLES V. WHITLEY 115 S.Ct 1555 from the 1990s??? … an outstanding case in which S/Ct did a fact analysis of all that prosecutors and police did/did not do relative to disclosure of such evidence … Also, exculpatory/impeachment evidence is not “discovery” . . . such evidence is “disclosure” materials with 6th, 8th, and 14th Amendment grounds [Sec. 2, 7, 11, and 17 Ky. Const.] …. Caution: routine boilerplate discovery motions under Brady not sufficient to protect against prosecutor failure to disclose … the manner and complexities of the disclosure motion will impact what standard an appellate court applies on review … Mike Williams