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.
Let’s see how that pans out.