Monday May 13th, 2013 informationliberation.com
Brady v. Maryland -- 50 Year Anniversary (PoliceMisconduct.net)
Today marks the 50th anniversary of one of the most important criminal justice rulings of the Supreme Court. On May 13, 1963 the Supreme Court issued its landmark decision in the case of Brady v. Maryland. The case stands for the proposition that the government has a legal obligation to disclose exculpatory evidence and information to the accused and his defense attorney. Here is the key passage:
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution... 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.
I like this language from a related case that the Court quotes approvingly:
“Petitioner’s papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody….”
We should all be troubled that this rule was not clearly established in our law long before 1963, but better late than never. And do note that the prosecutor cannot turn over evidence if the police have kept it from him.

Let’s take a concrete example to illustrate what this is all about. Let’s say a jewelery store was robbed by a guy with a gun yesterday. Police arrived shortly thereafter to investigate and interview witnesses at the scene. Three witnesses say the robber was an Asian male in his 50s. Two witnesses say the robber was a white guy in his 30s.

Seven months later an Asian family arrives at your law office and asks you to represent their relative, a man who has been arrested for that jewelery store robbery. Your client turns out to be an Asian male, age 55. He has no criminal record. He says he is innocent, but he has no alibi–home alone watching television is his story. The prosecutor offers a plea bargain: Your client pleads guilty and must do one year in prison. If the deal is rejected and you insist on a trial, it’ll be a 10 year prison sentence. The prosecutor informs you that this case is “open and shut”–showing you police reports of three witnesses from the scene. And these three people also picked your client from a police line-up. He says, “Do we have a deal, or not?” Since you are in the dark about the other two witnesses, you recommend to your client that he take the deal and plead guilty. The client hates the deal, but he is frightened by the prospect of 10 years in prison and is unnerved that his own lawyer says that he will probably lose in court. So he pleads guilty and is taken to prison. You and the prosecutor move on to other cases.

The Brady rule is supposed to make such scenarios impossible. As noted, the rule says the prosecution has to tell the defense about those other 2 witnesses and their statements that constitute exculpatory evidence for your client. But there is a serious shortcoming with the Brady rule. It is sorta like the 55 mph speed limit for motorists on the highway. Violations are common. In 2010, a federal judge wrote, “The persistent recurrence of inadvertent violations of defendants’ constitutional right to discovery in the District of Massachusetts persuades this court that it is insufficient to rely on the Department of Justice training programs for prosecutors alone to assure that the government’s obligation to produce certain information to defendants is understood and properly discharged.” In 2009, a federal judge in Washington, DC threw out the criminal case against Alaska Senator Ted Stevens. The judge said withholding evidence that could be helpful to defendants had become a troubling trend.

The troubling trend is found in the state courts as well. John Thompson spent 18 years in prison, 14 of those years isolated on death row, before exculpatory evidence came to light. He did not commit the crimes of armed robbery and murder. Justice Ruth Bader Ginsburg noted that this was no isolated incident in New Orleans: “From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations … Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.” See Connick v. Thompson (2011).

So we have 50 years of experience now and still great reluctance to face the fact that Brady is mostly a paper tiger. When violations do come to light, often years later, the courts typically engage in a “harmless error” analysis. That is, they look to see if the outcome of the case would have been any different if the rules had been followed. If not, the court will just scold the prosecutor that what he did was improper but the conviction will stand. In my book, I suggest the courts adopt another rule: Automatic retrials whenever a Brady violation comes to light. This stricter rule would, I argue, “spur officials to meet their obligation, and improve the overall administration of justice.” The Innocence Project is proposing another approach in Texas and elsewhere.

For a related article where I discuss the connection between plea bargains and the Brady rule more fully, go here.