While I was AWOL, Scott at Grits for Breakfast picked up on a post by Alexandra Natapoff at Snitching Blog about a new ABA opinion requiring prosecutors “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”
Alexandra explains the opinion:
Let’s begin at the mothership, Brady v. Maryland, the case that likely gave rise to more guffaws within the Supreme Court’s sanctum sanctorum than any other since Plessy v. Ferguson. Brady is filled with so many sweet words that it could give a criminal defense lawyer cavities, but it’s a right without a remedy. It leaves the fox in charge of the chicken coop, the prosecutor being the initial arbiter of what must be disclosed and, worse still, when to do so. After the verdict has proven to be a convenient time for many prosecutors, which likely is decided after the celebratory beer blast following the sound of “guilty”.
As Brady has been one of the most painful jokes the law has to offer, so too is the ABA’s belated chorus of Kumbaya. Aside from the fact that the ABA’s opinion carries slightly less weight than the hot air of its debates, it’s nothing more than amusing given that the Supremes feel compelled to undermine even the non-practicing theory of Brady by issuing decisions like Van de Kamp v. Goldstein, absolving prosecutors of responsibility even in the oddball circumstance of Brady non-disclosure coming to light.
However, Alexandra’s point that this opinion reflects a growing recognition that this is a very real problem, and has disastrously bad consequences, is well taken. That the ABA not only recognizes the need for change and sees the extant law as inadequate and going in the wrong direction, perhaps it will eventually have an influence on either courts or legislatures who are considering the issue. Of course, it’s unclear that legislators are worried about the problem, given how their attention is largely focused on getting re-elected. Nonetheless, it’s certainly better that the ABA comes out in favor of supporting disclosure of Brady and extending it to the point where it might actually serve its promise.
The relative silence on this opinion isn’t so much a reflection of the lack of interest on the part of criminal defense lawyers, but our not wanting to be the butt of yet another lawyer joke. This is no laughing matter, and it should be appreciated that the ABA, toothless tiger though it may be, put in the time and effort to take a stand on this critical issue.
It’s just that we’ve all lived through the promise of Brady, and again with Kyles v. Whitley , only to be reminded case after case that it’s an empty promise. We don’t want to have our hearts broken again.
Alexandra explains the opinion:
The opinion interprets this ethical mandate very broadly: it is more demanding than constitutional Brady disclosure requirements; it covers all information favorable to the defense, not just evidence; it is up to the defense, not the prosecution, to evaluate the utility of the information; the government must disclose information as soon as is reasonably practical, and the defendant cannot waive these rights or absolve the prosecutor of her disclosure duties.Anybody got a beef with this? I didn’t think so. So why hasn’t this opinion been smeared across every criminal law blog throughout the blawgosphere? Why have the lawprofs not expounded in pedagogical fashion about the scope and breadth, not to mention ethical implications, of this rule. Why are we not dancing in the streets?
Let’s begin at the mothership, Brady v. Maryland, the case that likely gave rise to more guffaws within the Supreme Court’s sanctum sanctorum than any other since Plessy v. Ferguson. Brady is filled with so many sweet words that it could give a criminal defense lawyer cavities, but it’s a right without a remedy. It leaves the fox in charge of the chicken coop, the prosecutor being the initial arbiter of what must be disclosed and, worse still, when to do so. After the verdict has proven to be a convenient time for many prosecutors, which likely is decided after the celebratory beer blast following the sound of “guilty”.
As Brady has been one of the most painful jokes the law has to offer, so too is the ABA’s belated chorus of Kumbaya. Aside from the fact that the ABA’s opinion carries slightly less weight than the hot air of its debates, it’s nothing more than amusing given that the Supremes feel compelled to undermine even the non-practicing theory of Brady by issuing decisions like Van de Kamp v. Goldstein, absolving prosecutors of responsibility even in the oddball circumstance of Brady non-disclosure coming to light.
However, Alexandra’s point that this opinion reflects a growing recognition that this is a very real problem, and has disastrously bad consequences, is well taken. That the ABA not only recognizes the need for change and sees the extant law as inadequate and going in the wrong direction, perhaps it will eventually have an influence on either courts or legislatures who are considering the issue. Of course, it’s unclear that legislators are worried about the problem, given how their attention is largely focused on getting re-elected. Nonetheless, it’s certainly better that the ABA comes out in favor of supporting disclosure of Brady and extending it to the point where it might actually serve its promise.
The relative silence on this opinion isn’t so much a reflection of the lack of interest on the part of criminal defense lawyers, but our not wanting to be the butt of yet another lawyer joke. This is no laughing matter, and it should be appreciated that the ABA, toothless tiger though it may be, put in the time and effort to take a stand on this critical issue.
It’s just that we’ve all lived through the promise of Brady, and again with Kyles v. Whitley , only to be reminded case after case that it’s an empty promise. We don’t want to have our hearts broken again.
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Cynicism, thy name is us.
Ohio seems actually to be in the process of adopting (after decades of failing to) a significantly broadened discovery Rule. (Our current Rule is very narrow.) That’s a good thing, especially since the formal Rules have vastly more practical, day-to-day consequence (and even more consequence in the appellate courts) than Brady/Kyles – let alone more than an ABA opinion.
But even broader rules will, ultimately, be no better than the willingness of prosecutors to obey them and courts to both enforce them and punish prosecutors who violate them.
D.C. District Court Judge Emmet Sullivan is going to make at least part of the ABA Opinion part of his Standing Orders.
Lots happened in the Zhenli Ye Gon while you were gone. It was another Ted Stevens case.
BTW, Mike Scarcella at the Blog of Legal Times has been doing phenomenal work covering prosecutorial misconduct.
Here’s a post noting Judge Sullivan’s new policy.
Burn a federal judge enough and that’s what happens. Now if only the rest of ’em will pay attention.
It’s amazing how much I missed while away. Thanks Mike.
American Bar Association Issues New Guidelines on Prosecutorial Ethics
The American Bar Associate recently issued an important opinion expanding a prosecutor’s ethical duties. Significantly, the ABA has interpreted the Rules of Professional Conduct to be more demanding than constitutional requirements under Brady v. Maryland. The ethical bar has been raised. Entitled, “Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense,” Formal Opinion 09-454 begins: Rule 3.8(d) of…
You are right that this didn’t get much press. It is a big deal. I downloaded the Op. a couple of weeks ago, but forgot to blog it. That error has been corrected.
This morning I asked an upstate NY County court judge to revisit his June 2, 2009 Brady ruling – which essentially reminded the DA that if they withhold Brady material until it is almost too late, they do so at their peril (as toothless a threat if ever there was one) – in light of 2 developments: The April 1, 2009 effective date of a new Code of Professional Conduct by the NY Court of Appeals; and the July 8, 2009 formal opinion of the ABA on prosecutors ethical duties under the Model Code – 3.8(d)to disclose Brady material ‘as soon as practical’. The case involves the ID of 1 of 4 defendants in a push-in burg/robb/kidnap at a drug dealers house. This D was the only one supposedly not masked. He was ID’d by the “V” and “V’s” girlfriend. V knew D, but GF ID’d him from photo array. DA refused to turn over V’s criminal history – which I have heard includes cooperation in another drug case where he was a suspect, several convictions and a new drug arrest a week after the home invasion; DA withdrew GF’s 710.30 notice on eve of Wade hearing. I asked court why? Is there any Brady material re: GF – is she now not cooperating? recanting? has she disappeared?
RE: V – I asked why we can’t get his rap sheet during the past 3 months to prep the defense. Judge adopts my word – this is gamesmanship – in asking DA why not.
I invited the judge to become the first to follow Judge Sullivan by incorporating the ABA opinion into his Brady decision.
Since I surprised the DA and the judge with this argument, he gave them a week to respond, but I think he likes the argument. I suspect his written decision will be less enthusiastic – he is a former DA after all.
If he embraces the ABA opinion – WOW. If not, it will be visited on appeal if we get there.
Thanks, Scott, for the posting. As informative and entertaining as the blog can be, this was one (not that there weren’t others) that has had an immediate impact on the practice. I expect that more attorney’s will be including the ABA opinion into the Brady portion of their Omni Motion.
FYI: It is 3.8 (b) of the new NYS Code which follows 3.8(d) of the ABA Model code, the subject of the Opinion.
Hey Greg. Glad it was helpful, and thanks for the corresponding cite for the new NY code, particularly since we’re now relieved from the duty to be zealous and need only be competent.
Posts like that must warm even SHG’s heart. (It’s actually a great example of blogging as pro bono.)
Cold, dark place that it is, you mean? Actually, Greg’s an old friend. We went to NCDC together about a million years ago.
The ABA police have been around for decades & just now deciding to kinda play fair. Prosecutorial misconduct victims will continue to be a taxpayers expense from the time of arrest, until the last wrongful conviction check has been cashed. FYI, it’s up to $80K plus, plus, so far in Texas.
Why has this NOT been a part of the game all along and why is this not news worthy info.? I’m very thankful for the SGH feed & I’m always hungry for the truth / education. Toothless or not, it’s about damn time someone grew a pair. I can’t wait to read what you former Texas ADA’s have to say.
There’s an opportunity to get this opinion some dentures by evoking it on a daily basis. Good luck with that.
If any of you find yourself on the ABA panel in the future, maybe you can vote to have ALL info. turned over to a neutral entity charged with storage & dispersal of info. recording all request & so forth. Thus, keeping the ole fox off the property & letting clerks clerk. *Drugs & weapons of course have a need to be in a protected vault (not in a property room down the hall where everyone knows the ol boy in the cage.) Just a thought.