Aside from the Supreme Court’s  sheer disdain for the defendant who suffered from prosecutorial misconduct as demonstrated in its  Connick v. Thompson decision, holding that a defendant who was concededly denied Brady information cannot sue for failure to properly train prosecutors in their duty to disclose, it presents a conundrum:  It’s in the prosecution’s best interest not to teach assistants about their duty.  Once again, ignorance prevails.

At PrawfsBlawg, Western New England law school professor Giovanna Shay raised the question that if prosecutors aren’t teaching their minions of their obligations under Brady, what are law schools doing about it?

Justice Thomas reasoned that the D.A. had not been deliberately indifferent to the need to provide line prosecutors with on-the-job training regarding their Brady obligations–in part because prosecutors attend law school.  Although I was dismayed by the result in Connick, I decided to view it as a validation of my decision to spend significant class time on Brady v. Maryland.  And I wonder: how can we in the legal academy more effectively teach Brady?

I cover Brady in my Postconviction Rights course, where the doctrine appears in numerous habeas cases, and also in Professional Responsibility (PR).  In PR, we devote one day to defense ethics and one day to prosecutors’ obligations.

Don’t laugh. So what if the entirety of professional responsibility in criminal law is covered in two days.  We’re lucky it’s covered at all.  The more important question is what is taught.

I put my students in the prosecutor’s role and read them each statement in turn.  We discuss whether they would turn it over.  (We also talk about potential differences between the constitutional Brady doctrine and MRPC 3.8).  This conversation usually surfaces some familiar quandaries (e.g., “But I know he’s guilty!”  or “But I know she’s suffering from battered spouse syndrome!”) 

I like that the problem is set in the DV context.  Some students who typically would sympathize with the defense find themselves more conflicted in a DV situation, thus providing better conversation. 

Is “better conversation” the point?  From an academic perspective, no doubt it is, though the rigors of teaching future lawyers that there is a duty to disclose even when they really don’t want to may well be lost, as students are given the opportunity (in their single class on the subject) to rationalize the failure to disclose.  Teach students that it’s legitimate to conceal evidence if can rationalize away constitutional rights and we end up with the system we now enjoy.  From Patrick S. O’Donnell‘s comment to Shay’s post:

 The fact that Brady is “more honored in the breach…” is testimony to the inordinate power of prosecutors generally and the ongoing failure to sufficiently cabin the discretionary power of prosecutors in particular. By itself, Brady can hardly change the fact that “prosecutors continue to engage in illegal behavior with impunity.” As Angela J. Davis writes in Arbitrary Justice: The Power of the American Prosecutor (2007),

“The Supreme Court has established nearly impossible standards for obtaining the necessary discovery to seek judicial review of some forms of prosecutorial misconduct. Inappropriate or unethical charging decisions, intimidating conversations with witnesses, selective and vindictive prosecutions, and grand jury abuse all occur in the privacy of prosecution offices—away from the public and the parties whose cases are affected by the harmful behavior. As a result of Supreme Court rulings, prosecutors know that it is highly unlikely that any of the behaviors will be discovered by defense attorneys or anyone who might challenge them.”

Aside from the brutal commentary on the failure of Brady as a practical matter, this would seem to argue that lawprofs better cut out the pedagogical crap of a “better conversation” and start banging some heads together to drill into those mushy minds that withholding exculpatory evidence from the defense puts innocent people in prison.  There is no legitimate feeling about “but I know he’s guilty” involved.  The only thing to be taught on the subject is that this is a Brady violation, and this is an outrageous wrong.

Whether characterized as yet another example of the disconnect between law school and the practice of law, or merely scholarly curiosity in lieu of teaching students to adhere to rules that rely solely on the integrity of a prosecutor to comply despite the fact that it’s not in the best interests of winning to do so, it’s nearly impossible to detect when she’s failed to do so, and there are no negative consequences to her for having done so. 

Shay asks whether more time should be put into teaching Brady, given the decision in Connick v. Thompson.   It strikes me as the wrong question.  It’s not about the amount of time, but about what is being taught.  O’Donnell seems to get it, that Brady is a joke if subject to rationalization and wiggly lines based on feelings of right and wrong.

The only time anyone seems to care about Brady violations is when an innocent person, proven extrinsically, ends up in prison or on death row.  Nobody, aside from the defense, gives much consideration to the fact that in the absence of available extrinsic evidence of innocence, the same innocent person would spend the rest of his life, however long that turns out to be in light of the sentence, because some prosecutor decided that there is no reason to reveal exculpatory evidence when “he knows the defendant is guilty.” 

If that’s what you’re teaching law students, then it really doesn’t matter how much time is spent on your “better conversation.”  They may pass, but you fail.