When the Supreme Court botched the opportunity in  Connick v. Thompson to impose a duty on prosecutors to demonstrate a  passing competence, it enshrined ignorance of the law as the perfect excuse. Not for you or me, but for prosecutors.  Apparently, Steve Cooley, the Los Angeles District Attorney either didn’t get the memo or, more likely, is so filled with the hubris of office that it could be safely ignored.

You see, the admonition of the Supremes was that the prosecution had to adhere to the rule of Brady v. Maryland, to the extent such a rule could be discerned from Wild Bill Douglas’ modest proposal. Jamison Koehler puts it succinctly:

Brady v. Maryland, 373 U.S. 83 (1963), is a rule of fairness and minimum prosecutorial obligation, not a discovery rule. It requires the production of information, not specific documents. It covers any information that tends to cast doubt on the defendant’s guilt with respect to any essential element of any charged count; any physical evidence, testing or reports tending to make guilt less likely. It encompasses problems with making an ID and any information that tends to support an affirmative defense or that tends to case doubt on the admissibility of the government’s evidence.  Inconsistent statements by government witnesses are covered.  So is any information that relates to the potential health or physical impairment of any witness. The government must disclose any information relating to potential witness bias, including benefits received by a witness in exchange for his cooperation with the government.  It must also disclose any information related to a witness’ dishonesty or criminality and any instances of misconduct or abuse of authority by a police officer.

Not too hard to state. A bit harder to put into practice, but that’s the subject of many past and likely more future posts.  Regardless, as Agitator Lite (irony alert), Ken from Popehat, noted, the rule doesn’t travel well.

Last week the ACLU of Southern California and the firm Bird Marella filed suit seeking to prohibit the Los Angeles County District Attorney’s Office from enforcing its “Special Directive 10-06,” a policy memo dictating how the office’s hundreds of prosecutors are to treat exculpatory evidence in the tens of thousands of cases the prosecute. You can read it at the ACLU site or here.

The suit alleges that far from assuring compliance with constitutional obligations, the Los Angeles County District Attorney’s Office policy, if followed, violates those obligations. In fact, it purports to require that line prosecutors violate the constitution.

In a quite amazing show of disdain, for both the Constitution and the Supreme Court (I would add in here defendants, but that goes without saying), Steve Cooley has crafted a memorandum, a “special directive,” that his baby prosecutors are to follow that flies in the face of Brady.  Forget claims of ignorance of the law to protect the office from flagrant disregard for the law and the constitutional rights of defendants.  He put it in writing.  And the writing is outrageous.

For example:

Impeachment Evidence: The policy regulates the DA’s “Brady Alert” system, a database that collects information impeaching the credibility of law enforcement officers and government witnesses. The DA’s Office touts this system as assuring discovery compliance, but the lawsuit — and the attached Special Directive 10-06 — suggests that in fact it is a systematic justification for withholding discoverable impeachment evidence (that is, for you non-lawyers, evidence that can be used to question the credibility of a witness). For instance, as the suit alleges and the Special Directive shows, the DA’s Office only includes information about witness credibility if it believes that information is supported by “clear and convincing evidence” — a higher standard somewhere between preponderance of the evidence and beyond a reasonable doubt. But that’s not the law — a prosecutor doesn’t get to withhold impeachment evidence because he or she doesn’t credit it.

Or, try this:

Materiality: The policy purports to permit prosecutors to withhold exculpatory material that they deem not “material” — that is, not likely to change the outcome of the trial. But that’s not the standard for what prosecutors are obligated to turn over — it’s the appellate standard for determining when a discovery violation is so prejudicial as to require reversal of a conviction. Using that as the standard for what prosecutors should turn over is the equivalent of saying “you may withhold evidence if you can get away with it.”

These are the issues that go to the heart of Brady, or more properly stated, through the heart of the defendant who is denied this material in his defense.  This policy expressly instructs prosecutors to withhold that which the Supreme Court directed them to disclose.

The suit against Cooley’s office seeks to stop the implementation of this directive designed to undermine the defendant’s ability to challenge the accusation, but it stems from the existence of a written policy in contravention of Brady.  As Ken ponders, if this is what they do officially, in writing, what are they doing when there is nothing in writing, nothing that anyone can point to as an express command to ignore the law.

Of course, the question is rhetorical.  In the absence of a written policy, prosecutors are imbued with plausible deniability as to their knowledge of the law, providing complete insulation from responsibility.  And the chances of their being outed for Brady violations ranges from slim to none, since no one knows the known unknowns.

But most importantly, the remedy for a Brady violation is a do-over where the prosecution has to do what it was required to do in the first place. No prosecutor gets disbarred, or jailed, or thrown into the stocks in the village green. It’s possible, though rare, that a mean word or two will be said of the prosecutor, but that’s about it.  All of which makes Cooley’s special directive all the more insane.

If you’re purpose is to violate the Constitution and ignore the law, why put it in writing?  Of course, there is an alternative, such as comply with the law and constitutional requirements.  Maybe he could just pass around a copy of Brady,  Giglio and (just for good measure)   Kyles v. Whitley?