Associate Justice William O. Douglas was a bastard. He knew damn well that Brady would be huge, and that he left out the details that would make it work. I’ve never forgiven him, not that he cares. Of course, he’s dead, but still.
Ask any criminal defense lawyer about the efficacy of Brady and its progeny (we always include the part about its progeny, like Giglio), and she will tell you what a mess it is. Not because the concept isn’t wonderful. After all, who doesn’t agree that the defense should be informed by the prosecution that they have stuff that tends to show a defendant is innocent, or their witnesses are lying scum?
Nobody wants to convict the innocent, right? Well, maybe Douglas, since he neglected to include anything about when the duty to disclose had to happen, like more than 12 seconds before the jury returned with its verdict. Like I said, a bastard.
But what about after the conviction? What if the prosecutor, in the faithful performance of his duty, doesn’t learn (or, in the exercise of due diligence, find out) that evidence exists that proves the poor shmuck he convicted is the wrong guy? Douglas left that out entirely.
As four men sat in prison for a murder they didn’t commit, records show that state investigators sent proof of their innocence to a North Carolina prosecutor, but he never revealed it to the convicted men.
He didn’t have to. Nothing in North Carolina’s legal standards requires a prosecutor to turn over evidence of innocence after a conviction.
The four, along with a fifth who also was convicted, were eventually cleared through the work of a commission that investigates innocence — but not until they’d served years in prison, including several years when a judge says the prosecutor and sheriff “did nothing to follow up on” another man’s confession.
That’s right. There is no duty for a prosecutor who comes into possession of proof of innocence (no less evidence that merely “tends” to prove innocence) from telling anybody. The prosecutor isn’t prevented from doing so, but he’s not required to do so either.
“If prosecutors have an ethical duty to avoid wrongful convictions, then they should have some sort of ethical duty to remedy wrongful convictions,” said attorney Brad Bannon, of the North Carolina Bar’s ethics committee.
He wants North Carolina to adopt a rule recommended by the American Bar Association, requiring prosecutors to come forward if they find “new, credible and material evidence” that an innocent person is serving time. Thirteen states have adopted the post-conviction rule. North Carolina isn’t among them.
In fairness, North Carolina has been really busy lately, but still, a little multitasking won’t kill them. That this issue arises at all reflects another deep hole in the 1963 Brady regimen. Perhaps it never occurred to Justice Douglas that Brady material would be discovered after trial. Perhaps he didn’t care. Perhaps (yes, I know, this is the real answer) the issue wasn’t before the Court, so it wasn’t addressed. Whatever, it remains a huge issue, particularly given the fact of DNA’s utility in demonstrating that the “best legal system ever” still convicts the innocent.
People who think the rule makes common sense may be imagining cases with clear-cut evidence such as DNA, said Orange County District Attorney Jim Woodall. More typical are phone calls from people saying they heard from a friend that a witness says he or she lied on the stand, Woodall said.
“It can be very hard for a prosecutor, even the person who handled the case, to filter through,” he said.
Like everything about the legal system, there are as many permutations of how issues arise as there are people and wily lawyers, trying their darnedest to make the best possible argument for their client. While a DNA test may prove fairly conclusive, what about the recanting witness? What about the call from some third-party who says he heard the drunk in the bar take credit for the murder? What rises to the level of information that should be disclosed? How “real” does exculpatory information have to be before it reaches the point of an ethical dilemma?
While no one knows how often post-conviction evidence of innocence remains buried, advocates say any preventable cases are too many.
“There’s no number that’s acceptable if there are things we can do to avoid it,” said Chris Mumma, executive director of the North Carolina Center on Actual Innocence, a nonprofit that identifies, investigates and advances credible claims of innocence. “Innocence should be an issue supported by prosecutors and defense attorneys. If prosecutors would step out of their adversarial roles and into their roles as ministers of justice, there wouldn’t be any question about this.”
While Mumma’s solution offers no guideline aside from the vagaries of conscience, because “ministers of justice” is about as meaningless a phrase as it gets, she nonetheless raises a pretty good point: how does a prosecutor come into possession of information or evidence that a defendant he convicted was innocent and, well, do nothing? Of course, just as cops shoot unarmed innocent kids, some prosecutors just don’t wear the minister of justice collar well.
There should be little question but that a duty exists for prosecutors, post conviction, to disclose newly discovered evidence of innocence. There is no one arguing that we want to convict innocent people, and now that Justice Scalia has joined Douglas’ poker game, even calls for finality over accuracy are beginning to fade. Whether and how prosecutors will satisfy that duty, however, will continue to be a nettlesome problem. And no, don’t mention “common sense” as an answer, or you’ll get beaten unmercifully.
It would seem that the first step is to impose the duty upon the prosecution, with the bright line test to be hashed out over time. This certainly seems far more effective than withholding the mandate until all the details are tweaked, as innocent defendants rot in prison while prosecutors are well aware of their wrongful conviction. Of course, the Supreme Court could have made this part of Brady, part of the duty of the prosecution long ago. But then, Douglas is a bastard.