The ABA Resolves: Leave Brady to the Grocery Clerks

Ah, Brady.  It’s the carrot always dangling just a bit too far in front of criminal defense lawyers to reach.  So much promise.  So little process.  It’s the most illusive of rights ever given by the Supremes, what I once called the  worst joke ever played by  William O. Douglas.

Nathan Burney (of royal blood, no doubt, thus explaining his use of the majestic “we”, as opposed to the more common explanation of schizophrenia)  explains the gamesmanship surrounding Brady disclosure:

What happens often enough, unfortunately, is that prosecutors try to game the rule.  Any game-playing by a prosecutor is abhorrent, beyond unethical, as it abuses the overwhelming power of the government.  But gaming the very rule intended to prevent such game-playing is perverse.

How do they do it?  One simple way is to just not hand it over, secure in the expectation that the defense won’t ever find out.  The prosecutor can justify this by claiming it wasn’t really Brady material.  Perhaps they spin it as something that isn’t really helpful to the defense, as if their perspective is the only correct one.  Perhaps they spin it as just discovery-type stuff, which unfortunately is not discoverable at this time, if ever.  Or they can just cross their fingers and hope nobody ever gets wise.

And it goes on and on, there being no shortage of games to play when it comes to failing to disclose and finding excuses, justifications, explanations and rationales for depriving the defense of exculpatory evidence.

The bottom line of it, of course, is that no matter what path is taken to deny either its existence or its turnover, or its turnover in a timely fashion so that the defense can actually make use of it, is that Brady is one of the best sounding rights that never happens.  And somehow, miraculously, no judge has ever lost a minute of sleep worrying about what might have been.

So the ABA, our shining White Knight, steps into the breach to fix what ails us.  Do they issue a blanket condemnation of unethical prosecutors and their deliberate concealment of exculpatory evidence in order to convict the innocent?  Nah. Not that it would give rise to more than a hearty belly laugh, but nah.  Do they demand that courts enforce Brady disclosures at the earliest opportunity with the most severe sanctions possible?  Nah, not that it would fix the underlying gamesmanship, though the time of disclosure has always been problematic.

So what does the collection of the most important lawyers in our nation, at least in their own minds, beloved of committees and consensus, come up with as the ultimate solution to the Brady debacle?  A resolution to create a committee to make a checklist.  You can’t make this stuff up.

RESOLVED, That the American Bar Association urges federal, state, territorial, tribal, and local courts  to adopt a procedure whereby  a criminal trial court shall, at a reasonable time prior to a criminal trial, disseminate to the prosecution and defense a written checklist delineating in detail the general disclosure obligations of the prosecution under Brady  v. Maryland, 373 U.S. 83 (1963), and its  progeny  and applicable ethical standards.

FURTHER RESOLVED, That the American Bar Association urges  federal, state, territorial, tribal, and local courts in implementing the above procedure to require a criminal trial court to create a standing committee of local prosecutors and criminal defense attorneys to assist the court in formulating and updating the written checklist delineating in detail the prosecution’s general disclosure obligations.

FURTHER RESOLVED, That any omissions or deficiencies in the written checklist provided by the court should not relieve either the prosecutor or defense counsel of their legal and ethical responsibilities with respect to providing and seeking disclosures.

Lest you think this was a slam dunk, they struggled over this resolution, and finally added in the third decretal paragraph, as there would be open war lest the resolution didn’t uphold the primacy of legal and ethical responsibilities.  As if anybody cared.

Let’s be clear, the relevance of this resolution to the practice of law is dubious at best.  Any prosecutor disinclined to comply with the Supreme Court and the occasional admonition of a trial judge isn’t likely to melt because of an ABA resolution to create a checklist.  But let’s suspend reality for a moment and pretend that the ABA carries some persuasive authority.

A checklist?  Because it works so well for grocery clerks

What about the idea of dealing with the reasons why Brady has been such a monumental non-starter, like prosecutors playing games with Brady, or courts ignoring the disclosure coming in the middle of trial, or a day after the verdict?

The Nathans, perpetually optimistic, try to find the positive in this resolution.

So it was with some cautious optimism that we saw the resolution that the American Bar Association adopted today, basically telling courts to devise detailed laundry lists of things that count as Brady material in their courthouse, and to provide them to prosecutors and defense counsel in the cases that come before them.  If adopted, this practice would make it at least more difficult for prosecutors to claim ignorance of material that could have existed.  And it would make it easier for defense attorneys to spot particular bits of police paperwork and other kinds of evidence that they might not have known to ask for, if not disclosed.  It would help the hard-working defense lawyer to root out the Brady that might be there, and it would help the ethical prosecutor collect such material that they might not otherwise have obtained.

I’m constrained to disagree with both the Nathans optimism and the efficacy of being optimistic.  One reason Brady has been such a miserable failure in action is that efforts to make it real seem to invariably fall into the lawyerly fantasy that it’s not that prosecutors don’t want to give the defense exculpatory evidence, but that they just really can’t figure out what it is.  If only someone would hold their hand, wipe their brow, show them the way, then the prosecution would happily fulfill its duty to the defense.  Gag me.

So here’s my checklist:

1. Find anything that could possibly show, or lead to something that could possibly show, the defendant isn’t guilty or that a prosecution witness is wrong.
2. Hand it over.
3. Now.

Let’s see how that pans out.

16 thoughts on “The ABA Resolves: Leave Brady to the Grocery Clerks

  1. Jdog

    My own, relying on my great expertise acquired having hung around with some CDLs and watched a lot of TV, including all flavors of Law and Order (it’s a documentary, right?) would be:

    Hand it all over. Now, bucko. The stuff that makes the defendant look guilty, the stuff that makes him look innocent, the stuff that you don’t have the vaguest idea about, either way, because you’re a prosecutor, not God, and only God gets to see all connections.

  2. mglickman

    If it was permitted, I would embed or link to the Dilbert comic this immediately made me think of.
    Dilbert: We’re creating a process to fix our product development process. But first we’re having some preplanning meetings… to decide on a project name.
    Dogbert: How about “Death Spiral”?

  3. SHG

    See how you’ve managed to convey the point without embedding anything?  Next time, you can just make the point in the first place through your very own descriptive powers.

  4. Lee Keller King

    But, Scott! Your proposal would reduce their conviction rate! How can any District Attorney take a chance at having less than a 99 % convicton rate??? He or she might not get reelected!!!

    Oh, you want fairness and justice. Never mind.


  5. Nathans

    The “majestic we” sounds much better than the “editorial first-person plural.”

    Some have posited, though, that a lifelong tendency to try to see both sides of any conflict is to blame. As there are two separate, incompatible viewpoints at all times, there must be two of us seeing them. Schizophrenia doesn’t even come close.

  6. SHG

    Sorry, pal(s), but your comment demands a bit of Joni MItchell.  It could have been Both Sides Now, but instead, I’ve chosen

  7. Mike

    It shows how moronic and worthless the ABA is.

    Numerous states have open file discovery. Convictions still occur. The system keeps doing its job of sending guilty people to prison.

    Open file discovery is the frame where the conversation should start. Why *shouldn’t* prosecutors just hand over everything that is not work product? What’s the reasoning for keeping information from the defense? Isn’t the prosecution’s job is to not merely seek convictions – but instead justice?

    What’s the ABA’s reason for not mandating (at least insofar as model rules are mandates) open file discovery?

  8. SHG

    My favorite response to your rhetorical question is that it would unduly prejudice the government to be required to disclose anything beyond the strictest reading of Rule 16.  I always argue in response how the truth, even their truth, could possibly prejudice them. Motion denied.

  9. Greg Lubow

    scott: Not to defend the ABA, BUT…In 2009 it did issue Formal Op. 09-454 effective Jan 1, 10 which clarifies and extends a prosecutors ‘Brady’ obligation beyond the Brady decision – essentially telling DA’s to give anything that even looks like Brady as soon as they obtain it.

    On more terrestrial matters, last week the Columbia County DA had to withdraw an indictment when the ADA disclosed to the judge and defense counsel, after jury selection, that the 2 eyewitnesses, including the shooting victim, had told him that they lied to the cops about not being able to ID the def; they then testified at the GJ. two days later the ADA resigned. it is not clear if the resignation was due to the late disclosed Brady violations, or, more likely, the fact that the indictment was withdrawn [Edit Note: Link deleted as against the rules.]

    several years ago I represented one of 5 defendants in a burglary/murder case, also in Columbia County. the ADA had repeatedly withheld ‘Brady’ material, including a transcript of one of the def’s giving information after making a deal. the judge imposed an ‘open file’ policy and required the People to produce, within several hours, all files from the 3 police agencies involved for review by all defense counsel, and directed the DA to provide copies of any document any def. lawyer asked for. The court asked for, and the defense atty’s provided suggestions for a further sanction. several months later, of course, the court took no further action.

  10. SHG

    That was discussed here. And what changed?  The funniest part is that you describe it as having an “effective” date.  Effective?  I don’t think so.

    How about this year’s joke being revisiting the failure of anybody to give a flying shit about Formal Op. 09-454?  I called the ABA a “toothless tiger” when it issued that opinion.  I’ve since received hate emails from toothless tigers demanding I retract it.

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