The Criminal Justice Section of the New York State Bar Association has a long and honored tradition of equivocation so that no one’s feelings are hurt. Unlike specialized bar groups, the section includes defense lawyers, prosecutors and judges, where disagreements are tempered by civility and the assurance that all will be shown “respect,” meaning that it’s better to compromise on the evisceration of constitutional rights than call anyone out so that they can share a glass of sherry afterward in camaraderie.
Then came Marvin. Marvin Schechter is a past president of the New York State Association of Criminal Defense Lawyers, and the only defense attorney member of the commission formed by the National Academy of Sciences that produced the report, “Strengthening Forensic Science in the United States: A Path Forward.” And now (at least as of this writing, as it might change by the time you read this), Marvin is the chair of the CJS.
In the NYSBA Criminal Justice Section Newsletter, there’s a “message from the chair” column. As Marvin’s the chair, it’s his message. And following a decision out of the Bronx by Judge Edgar Walker in People v. Waters, where the court held that the prosecutor engaged in an “affirmative act of deceit” by withholding Brady material.
The Bronx District Attorney, Rob Johnson, argued that the judge was wrong as the withheld material, that a key witness changed his story, wasn’t Brady:
True, the decision was written by a judge. But both the decision and Schechter seem to ignore the fact that the material in question was inculpatory rather than exculpatory, which was fully explained in our motion to reargue the case, which the judge denied without detailed analysis. That’s right, the versions of the witness’ testimony which were more favorable to the defendant had been fully disclosed and were already in their possession for use as impeachment material.
In his “message,” Marvin pulled no punches:
Assistant district attorneys do not emerge from law school with a genetic disposition to hiding Brady material. Instead this is something which is learned and taught.
The joint went nuts. Manhattan DA Cy Vance, wearing his president of the District Attorneys Association hat and joined by former president and Westchester DA, Janet DiFiore, wrote to the president of the NYSBA, Seymour James (who is also the president of The Legal Aid Society) demanding a “clarification” that Marvin’s slur, which he “condemned in the strongest possible terms,” was not the position of the NYSBA.
James responded that it was clearly Marvin’s opinion, and went on to remind them that withholding Brady was the “most common cause of wrongful convictions.”
In a letter to the editor in the New York Law Journal, Richard Willstatter, president of the New York State Association of Criminal Defense Lawyers, in a clean break from his penultimate predecessor who preferred to curry favor with the district attorney, fully supported Marvin, adding:
The reliance of the district attorneys association on a recent handbook it prepared is telling. The handbook asserts that prosecutors need only disclose “material, exculpatory information.” But Vance certainly knows that is simply not the standard set forth by our courts and guaranteed by our Constitution.
This prompted Brooklyn DA, Joe Hynes, to write a letter of his own, castigating Willstatter for not being sufficiently respectful of prosecutors and, bizarrely, not reciting at length Marvin’s slur.
While it does not serve the best interest of our profession for Willstatter to commend Marvin Schechter, chair of the Criminal Justice Section of the New York State Bar Association for his baseless and reckless claim that “state and federal prosecutors frequently withhold evidence favorable to a defendant,” it’s unfortunate that he omits Schechter’s shocking and calumnious charge in a recent column he authored as chair of the section that the district attorneys of this state teach young prosecutors to violate the Brady rule as a matter of policy.”
Internally, prosecutors in the Criminal Justice Section went ballistic, with an email to members by Queens Chief Executive Assistant District Attorney Jack Ryan, joined by the others, stating:
The current Chair of this section did not accuse District Attorneys of not training or poorly training Assistant District Attorneys on Brady. He accused us of actually teaching Brady violations. I can express my outrage, but I cannot feign surprise that these are the opinions of our current Chair. His opinions would be just that, his opinions, and of little note except that he expressed them as the chair of our Criminal Justice Section. I seek no apology from our current chair – his beliefs are his own and I can*t imagine that he would sincerely apologize for his outrageous statements. I do, however, seek a clear statement from this committee, not just that the current chair*s statement is not the view of the committee, but specifically disavowing his statement that District Attorneys intentionally teach Brady violations.
Word is that there are more letters to the editor coming, including this stinger from former NYSACDL president Dan Arshack. This Pandora’s box being opened, it’s too late now to slam it shut.
The problem isn’t that Marvin is figuratively correct, but that he is precisely right. Prosecutors aren’t forced to listen to some guy who looks like Snidely Whiplash teaching them tricks to violate the Constitution. They are, however, taught that their duty is to disclose only “material, exculpatory” information, leaving it to the prosecutors themselves to decide what’s material and what’s exculpatory, even though Brady requires disclosure of anything favorable to the defense, without condition that the prosecutor gets to decide its materiality.
Even so, it’s not nearly enough, as the duty isn’t limited to material that tends to prove innocence, but also to information that can be used to impeach prosecution witnesses. It’s worth adding that failure to reduce “the bad stuff” to writing doesn’t obviate the duty either, as it’s the information, not the written evidence, that’s required to be disclose.
Ironically, the protestations of outrage, unprofessionalism and disrespect by the district attorneys have proven Marvin’s point. They have confirmed in writing that they are teaching their baby prosecutors to withhold Brady. And frankly, as these are some pretty smart people, and it’s not all that hard to read Brady, Giglio, Bagley and the rest of Brady’s progeny, it’s inconceivable that they don’t know what their constitutional obligations entail.
In an interview with Joel Stashenko at the NYLJ, Marvin relinquished all hope of winning the Nobel Peace Prize by sticking to his guns:
“There is nothing new in what I said. There is nothing outrageous in what I said,” Schechter said. “D.A.s are responsible for the training of the assistant D.A.s when they come to their offices and we have yet to see from the D.A.s any explanation of why these Brady violations are occurring in the record numbers they are occurring and in the seriousness in which they are occurring.”
The real shame is that the district attorneys demonstrate far more concern with salvaging their dignity after this well-deserved smack than they do about Brady failures and wrongful convictions, which they persist in sloughing off as if they can’t possibly imagine how such isolated incidents continue to occur.
The prosecutors want to be treated respectfully. So do defense lawyers and defendants. If they want to have a civil and respectful discussion about why things go wrong, then it starts with some harsh truth, one of which is that they are not teaching their people the full scope and depth of Brady. Show us you deserve the respect you crave by conceding that there is a huge problem. Then work together to fix it. Afterward, we can sip sherry.