Of the many aspects of criminal practice that sounds far better on paper than in practice, disclosure of Brady material is high on the list. Perhaps even the highest, given the critical nature of information exculpatory to the defense that never seems to find its way from the cop’s pocket to the prosecutor’s file to the defense lawyer’s table. Odd how Brady is so much more difficult to get out than, say, a confession or murder weapon. They so rarely lose those.
Over at PrawfsBlawg, Miriam Baer notes that efforts are underway to change how Brady is delivered:
Today, the Blog of the Legal Times reports that, “Amending the rules of criminal procedure to require prosecutors to disclose any exculpatory information to the defense will be considered during the October meeting of the Judicial Conference Advisory Committee on the Rules of Criminal Procedure,” which will no doubt spur the DOJ to step up whatever training and internal review it already had planned.
Last April, our trusted friends at the DOJ, embarrassed by its massive public failings to disclose Brady in cases big and small (like Alaska Senator Ted Stevens), decided to form a working group to find lasting ways to improve fulfillment of its Brady obligation. The judicial conference, on the other hand, pushed by Judge Emmet Sullivan who wasn’t satisfied with the idea of leaving it all in the hands of the DOJ, urged a change to Rule 16 to include Brady within its disclosure requirements, a move the DOJ argued was “unnecessary”.
Judge Emmet Sullivan of U.S. District Court for the District of Columbia wrote the committee in April urging it to re-examine amending Rule 16 to require the disclosure of any exculpatory information. In 2006, the Justice Department opposed the amendment, according to Sullivan’s letter. Justice lawyers argued then that modifying the U.S. Attorney’s Manual—to include a section on disclosure obligations—was sufficient.
Brooklyn Lawprof and former SDNY prosecutor Miriam Baer’s idea is that the DOJ Office of Professional Responsibility should somehow beef up its efforts to improve compliance internally. But consider her notion of the problem :
Baer assumes it’s rare because the failure rarely comes to light. Is that because the government does, in most instances, fulfill its obligations, or because nobody knows when it doesn’t since the defense has no access to the government’s files. The point is akin to DNA exonerations, ignoring the 99% of cases where there’s no DNA involved to suggest that no innocent defendant is ever convicted in non-DNA cases as proved by the absence of proof of innocence.
The solutions to the Brady problem fall into two categories. Trust the DOJ or create a new rule that requires courts to trust the DOJ. While the new Rule 16 proposal has certain virtue, foremost of which is that it resolves the long-standing problem of when the government must disclose Brady, which it now holds to the very last second if it’s to be disclosed at all, rendering the defense incapable of investigating or making good use of the information. But it still doesn’t address the core issue: The determination of what is Brady is left to the discretion of the prosecution, and the duty to disclose it at all remains the decision of the prosecutor.
The proposed “solutions” are thus dependent on the answer to this question: Do you trust the prosecutor?
If we can’t trust the prosecutor, each and every prosecutor in every district throughout the country, to disclose Brady, to err on the side of disclosure, to disclose timely, then neither new rules nor procedures that continue to rely on the discretion of prosecutors will solve the problem. Clearly, former prosecutors and even judges who’ve been burned still seem to put their faith in the integrity of the government. Somehow, I don’t find this satisfying, but then nobody engaged in this discussion seems to think that the defense side of the courtroom should have any say in the matter.
Why does this remind me of an old joke?
Brooklyn Lawprof and former SDNY prosecutor Miriam Baer’s idea is that the DOJ Office of Professional Responsibility should somehow beef up its efforts to improve compliance internally. But consider her notion of the problem :
You could conclude that professional misconduct rarely occurs among federal prosecutors, but that when it does occur, it is a doozy and the outcome is devastating for both the government and prosecutors alike. That’s why these Brady-type violations get so much press.Pop Quiz: What missing from every aspect of the discussion of both this problem and its cure? That’s right, the defense. Ironic that Baer considers this a PR problem for the government, demonstrating neither concern for, nor acknowledgment of, the fact that defendants are actually being denied disclosure of Brady material.
Baer assumes it’s rare because the failure rarely comes to light. Is that because the government does, in most instances, fulfill its obligations, or because nobody knows when it doesn’t since the defense has no access to the government’s files. The point is akin to DNA exonerations, ignoring the 99% of cases where there’s no DNA involved to suggest that no innocent defendant is ever convicted in non-DNA cases as proved by the absence of proof of innocence.
The solutions to the Brady problem fall into two categories. Trust the DOJ or create a new rule that requires courts to trust the DOJ. While the new Rule 16 proposal has certain virtue, foremost of which is that it resolves the long-standing problem of when the government must disclose Brady, which it now holds to the very last second if it’s to be disclosed at all, rendering the defense incapable of investigating or making good use of the information. But it still doesn’t address the core issue: The determination of what is Brady is left to the discretion of the prosecution, and the duty to disclose it at all remains the decision of the prosecutor.
The proposed “solutions” are thus dependent on the answer to this question: Do you trust the prosecutor?
If we can’t trust the prosecutor, each and every prosecutor in every district throughout the country, to disclose Brady, to err on the side of disclosure, to disclose timely, then neither new rules nor procedures that continue to rely on the discretion of prosecutors will solve the problem. Clearly, former prosecutors and even judges who’ve been burned still seem to put their faith in the integrity of the government. Somehow, I don’t find this satisfying, but then nobody engaged in this discussion seems to think that the defense side of the courtroom should have any say in the matter.
Why does this remind me of an old joke?
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What’s all this Rule 16 and amendments thereto business? It is called “Brady” for a reason.