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In the 1995 case Kyles v. Whitley, the Supreme Court blasted Connick's office for its failure to disclose evidence favorable to a defendant during a murder trial. Such evidence, called "Brady material" after a precedent-setting case, is supposed to be turned over to ensure a fair trial, based on all the facts. Many defense attorneys around New Orleans say Connick's office continues to flout the law. In the past three months, says local defense lawyer Rick Tessier, Connick's office has withheld favorable evidence three times in three separate capital cases in which he's been involved. "Capital cases are so political that winning becomes far more important for the average D.A.," says Denise LeBoeuf, an attorney specializing in capital cases for the nonprofit Loyola Resource Center. "We're not talking about being competitive. We're talking about winning at all costs. Deliberately deceiving the court. Withholding favorable evidence. Arguing things they know aren't true. Harassing defense witnesses. Concealing deals they make with their witnesses. Winning means getting a death sentence. They are out to win."
Roger Jordan, one of Connick's star prosecutors, says such charges are scurrilous and the Cousin case, in particular, was built on solid evidence. "You've got three IDs of Shareef Cousin, one positive, two tentative," says Jordan. "You had five different lineups of six pictures each, and Shareef was identified each time."
So why didn't the D.A.'s office share Babin's seemingly indecisive original statement with the defense? Berry says the prosecution had no legal obligation to share the statement. But Bryan Stevenson, head of the Equal Justice Initiative in Montgomery, Ala., says prosecutors do, in fact, have a legal obligation to share with the defense exculpatory evidence--and in capital cases mitigating evidence, as well. Says Stevenson: "The obligation of the prosecution is to accomplish justice, not just get a conviction."
And what about the evidence that indicates that Cousin was at a basketball game or on his way home with coach White around the time of the murder? "We investigated that alibi seriously," says Jordan. "We had witnesses telling us these games usually lasted 35 to 40 minutes. The defense was trying to make a 40-minute basketball game into an hour and a half." Of course, the key question is when the game started--and White and several other witnesses say it started around 9:30 p.m., leaving Cousin, if he was the killer, an improbably small amount of time to play a full game, cross town and murder Gerardi.
Jordan also defends the fact that he asked for the death penalty in the case. "The fact that [Shareef] was 16 was a shame," says Jordan. "It's a shame that 16-year-olds go out and commit crimes and devastate lives. It's a shame that they've got guns in their hands to do these crimes."
The brutal nature of Cousin's alleged crime, Jordan argues, called for the ultimate punishment. "It was an armed robbery," he says. "He pulled the gun prior to the robbery. He shot Mike in the face. Then he held him up to pick his pockets. Mike Gerardi was just another bag of bones. Shareef Cousin didn't care if Mike was dead or alive. A jury of 12 citizens looked at this crime. The jury spoke."