United States District Judge Emmet G. Sullivan was said to be the type of judge who wouldn’t put up with government shenanigans. Time to re-evaluate. This is a prime example, for numerous reasons, of what’s fundamentally wrong with the application of due process in general, and Brady in particular. What makes this example particularly spectacular is that it involves the trial of a United States Senator. If a Senator can’t get a fair shake, then who?
This is the second Brady issue arising from the Stevens trial. This time, the government turned over redacted witness statements that omitted the parts that contradicted the government’s argument. After all, who wants the other side to know that you’re lying, right? This follows on the heels of sending the witness with favorable information for the defense off to Alaska because of failing health. That sure made sense.
Slater at the WSJ Law Blog was all over this yesterday, from the initial arguments for mistrial and dismissal to the ultimate ruling. But the story is made clearer by the Washington Post :
“Although the court is persuaded there is a . . . violation, the court is not persuaded that dismissal of the indictment or mistrial is the appropriate remedy,” said U.S. District Judge Emmet G. Sullivan. He added that the government’s actions had broken his trust in the prosecutors and ordered them to give Stevens’s attorneys copies of all witness interviews.
“The court has no confidence in the government’s ability” to meet its obligations to ensure a fair trial, he said.
And…so…the court did what? Ordered the prosecutors to provide the unredacted statements that they should have provided in the first place. Woo hoo!
To clarify how goofy this is, consider the following: The government is required to provide all information that is exculpatory to the defendant or can be used to impeach the testimony of a government witness, all falling under the rule of Brady v. Maryland, and known as Brady Material. The government has some. The government makes a deliberate decision, as evidenced by the act of redaction, to conceal this from the defense.
The trial proceeds. During the trial, the defense fortuitously (it’s always fortuitous) learns that Brady material exists. The government tried to break the law and got caught. The remedy is a vicious tongue lashing and an order to do what the government was supposed to do in the first place, even though the defense has now been irreparably harmed by the concealment of the Brady material.
So now, you inquire, how exactly does this remedy provide an incentive to the government not to break the law, since the only thing it does it require them to do what they should have done in the first place?
It doesn’t.
Then you ask, how exactly does this undo the damage to the defense, which has prepared its theory, its case, its witnesses, its opening, its cross-examination, based upon the disclosures made by the government as to what their witnesses will say?
It doesn’t.
Finally, you question whether the judge might be more concerned that the trial proceed at all costs, despite his expressed outrage and conclusion that the government has failed to fulfill their legal duties, than anything else.
You think?
Like I said, if even a Senator can’t get a fair shake, then what are the chances for the rest of us?
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And, of course, the prosecutor will *not* be punished. I’m 100% certain of that.
Lesson learned: Hide evidence. If you get caught, no biggie.
As an outsider, Brady’s always seemed kinda strange to me. Assuming, just for the sake of argument, prosecutors will always do what they’re supposed to and provide exculpatory evidence, just how are they supposed to judge what evidence meets the minimum standards for “exculpatory”? Picture of the defendant at a Mets game taking place when he was supposed to be hacking a guy to death in a SuperAmerica? Sure. Statement by a witness that the prosecution believes is a serial liar (assuming with good reason, and one that they know that they can demonstrate on the stand, if it comes to that) that he was at the Mets game? I dunno.
Particularly given that, apparently, evidence simply being “useful” isn’t enough; it must be “favorable” to the defendant and, even then, if the defendant’s lawyers already have it or can discover it by “reasonable diligence” there’s no harm, no foul.
So, if I understand it correctly, the prosecutor is supposed to put himself his adversary’s shoes, and decide what’s simply “useful” vs. “favorable” and then decide whether not it’s “material” enough to change the outcome of a trial that hasn’t had an outcome yet. And, hey, if the defense can discover it by reasonable diligence (whatever that is), let them do the work, eh?
When following the Duke Lacrosse Rape Hoax, it seemed to me that the local rules there made a lot more sense — just turn all the evidence over, and let the defendant’s lawyers figure out what’s useful. Then all the prosecutors have to do is try to figure out what the words “evidence” and “all” mean.
While there are times when it may be hard to say what is Brady and what must be turned over, there are more times when it is clear what must be done. The government has access to witnesses and information way ahead of the defense, and far more easily. They know when the get a witness who says the defendant didn’t do it, or contradicts himself to the FBI. This is the norm for Brady. It’s just not that hard, and yet the outcome (as here) is almost always to hide because there’s just no downside.