When Wild Bill Douglas wrote the majority opinion in Brady v. Maryland,* he played a cruel trick on the defense. One little detail was omitted from the decision. Just a small thing. Barely worth mentioning, except for the fact that it was the key to any meaningful use of Brady material: When the duty to disclose arose.
That was 1963.
New York’s Chief Judge Janet DiFiore announced via a memo from the Chief Administrative Judge that she will issue a new rule requiring Brady disclosure by the prosecution 30 days before trial.
Judges would be required to issue the order at the first court date where both the prosecutor and defense counsel are present. Judges could choose to issue a model order included in the memo or write their own.
Disclosures are to be made at least 30 days before trial in a felony and 15 days before trial in a misdemeanor case. The model order requires prosecutors to look through files to find information favorable to the defense.
This is huge, a paradigm shift in that this is the first time a state will establish a fixed mandate to disclose Brady (which includes Giglio material as well). In the past, the defense would get Brady if and when the prosecution felt like disclosing it.
“This is a very big deal,” said Barry Scheck, a co-founder of the Innocence Project. ”They should be doing it before trial.”
Well, yeah, sure, they should. And as the Innocence Project has amply demonstrated, concealment and withholding of Brady is regularly implicated in wrongful convictions. Note Barry’s second sentence, “before trial.” If the prosecution acknowledges the existence of Brady material at all, it’s often turned over too late to make use of it. The day before trial. During trial. A week after the verdict. That’s if you’re lucky, since failure to turn it over means the worst that can happen is a new trial, and that’s a long shot as the burden falls to the defense to prove the Brady would have been likely to produce a different verdict.
Though Brady material is supposed to be given to the defense as soon as prosecutors obtain it, a report by the New York State Bar Association found that withholding it — willfully or not — was among the leading causes of wrongful convictions. Judge DiFiore’s new rule not only puts the onus on the prosecutors to comb their records for Brady material, but also places them on notice that they could face punishment for not disclosing it.
This isn’t quite right, as there is no “supposed to be given” time frame to Brady. There is no law, no rule, no decision that requires any particular time for turnover. If it’s turned over six months after the prosecutor learned it existed, so what?
And not to belabor the flip side of the point, but since 97% of cases end in guilty pleas, long before trial is a twinkle in a defense lawyer’s eye, 30 days before trial is a million years after the decision to go to trial has to be made. Guess what critical information remains unknown as the defendant decides his fate? Brady delayed is Brady you never knew existed.
Nor does this alter the scope of the prosecutor’s duty to search for Brady. Prosecutors have always been responsible for whatever is in the file, theirs and the cops, and charged with constructive knowledge of the existence of Brady material. The new rule explicitly says so? That’s nice.
Moreover, the measure gives defense lawyers a novel form of leverage, allowing them to proactively request that judges make sure that evidence is released in a timely fashion, instead of having to complain after the fact that the prosecution was slow to show its hand.
This too isn’t quite right. Lawyers always demanded Brady in their discovery motions as a matter of course, and judges routinely granted it “to the extent it exists.” And prosecutors routinely responded that they were aware of their Brady obligations and would certainly turn it over should it exist. This was boilerplate, and amounted to nothing.
So is Brady fixed now? Well, at least there is now an actual time frame, even if it’s not quite what it looks like from the outside. Brady material isn’t always the end game, but usually the starting point of investigation. Once the defense learns of Brady, it then has to chase down witnesses or evidence, find out what it all means, get cooperation and figure out how to put it to use. All of this has to be done during the 30 days before trial, while you’re simultaneously trying to prepare for trial.
And while the rule requires prosecutors to search their files, this is a red herring. They already know what’s in their files, and whether they decide it’s Brady remains entirely in their discretion. Sometimes it’s obvious, like another guy’s DNA or prints, but often the value of Brady requires a knowledge of the defense. The prosecutor doesn’t know the use to which evidence might be put by the defendant, so he’s not in a position to recognize Brady if it smacked him in the face.
None of this, however, changes New York’s nightmarishly limited discovery laws.
[Legal Aid Society’s Attorney-In-Charge Seymour] James, who welcomed Judge DiFiore’s order, noted that it would not directly affect New York’s antiquated discovery law, which heavily favors prosecutors. Unlike a handful of other states, which have passed legislation forcing prosecutors to hand over all discovery material as fast as possible, New York currently permits district attorneys and their assistants to delay giving defense lawyers some forms of evidence until a jury is sworn in. That makes it harder for the defense to prepare for trials and effectively cross-examine witnesses, providing prosecutors with what critics have called an unfair tactical advantage.
It’s far worse than this suggests. We get almost no discovery, as it’s limited only to a statutory list of items, most of which are ignored or get a boilerplate response. To the extent there is any “good stuff,” it’s in the Rosario material handed over a day or two before trial (if the prosecutor is a nice person) or right before cross (if the prosecutor isn’t).
So providing a 30-day advance requirement for Brady disclosure is a positive change. For those prosecutors who choose to play by the rules, they now have rules to follow. It won’t change the problem with identifying Brady. It won’t fix discovery otherwise. And 30 days before trial might be better than 30 hours, but in a case that has taken more than a year to reach trial, it’s still far too late to make the best use of the information.
And what happens to prosecutors who fail to comply with the rule?
Under federal law, prosecutors are immune from being sued for most actions taken while performing their official duties and are rarely held accountable, even for egregious courtroom errors. In keeping with that trend, Judge DiFiore’s order was specifically tailored to permit sanctions only against prosecutors who commit “willful and deliberate” misconduct, sparing those who merely make mistakes.
This is where trial lawyers smirk and shake their head. We’re incredibly lucky to find out that concealed Brady existed at all. Even if we’re lucky enough to stumble onto it, the chances we could show “willful and deliberate” misconduct are infinitesimal. It could happen, just like prosecutors could take this rule seriously and not shrug it off with a chuckle, but our clients are betting their lives on it. It’s a sucker’s bet.
*For the non-lawyers, Brady and its progeny refer to information or evidence which tends to be exculpatory to the defendant or can be used to impeach the prosecution’s witnesses.