Brady and the Bargained Plea

It’s nothing new, though whenever a non-lawyer writer discovers prosecutorial misconduct, they’re sure it’s an epiphany. And for criminal defense lawyers, it’s always nice to put the issue of prosecutors playing “hide the Brady” on the table for others to see, whether just to remind them or, if we get really lucky, motivate people to give a damn.

Jordan Smith has a post at The Intercept revisiting the problem of Brady concealment, putatively stemming from testimony at a hearing before the Texas lege.

She told the committee that while cases involving prosecutorial misconduct have “dominated discussions about the integrity of our criminal justice system in recent years,” she was “pleased to report that those cases have become less prevalent.” She’d done the research and found that over the last 12 months, the Court of Criminal Appeals had only granted relief four times based on a claim that prosecutors had committed misconduct by withholding evidence.

The point, of course, was that this proves nothing about prevalence of violations.

Prosecutorial misconduct often takes years — and a fair amount of luck — to unearth. (In Storey’s case, it took nearly a decade.) Since that’s the case, it hardly seems fair to use only cases in which a court has granted relief as a measure of the extent of misconduct.

Yes, it hardly seems fair, though a lawyer might phrase it in less emotional terms. So nothing new, nothing not discussed to death before, nothing enlightening. Generalissimo Franco is still dead, but at least it’s good to know he’s still dead, right?

Except Smith goes on to try to “explain” how this has gone so very wrong.

Plea bargaining also complicates the ability to understand the pervasiveness of misconduct. Fully 95 percent of criminal cases are resolved by plea, but generally, as part of that process prosecutors are not required to turn over discovery materials to the defense — evidence against the defendant or evidence that may be exculpatory or mitigating — that would help them to evaluate whether the plea offer is fair. And, for the most part, taking a plea means waiving many rights, including to appeal. “So, who knows what misconduct happens there, right?” said Angela Davis, a longtime defense attorney who was director of the venerable D.C. Public Defender Service before becoming a professor of law at American University.

Plea bargaining has become a whipping boy of late, blamed for all manner of criminal justice horrors.

Prosecutors will often overcharge a defendant as a means of pressuring the person into taking a plea — slapping on a slew of charges, some of which they may ultimately never be able to prove beyond a reasonable doubt. And “a lot of times, it is before the defense attorney even has an opportunity to investigate the case,” she said. “But it looks like a good deal and you have to tell your client about it, but you haven’t had a chance to even get basic discovery — much less discover misconduct.”

In the minds of the terminally clueless, this is how crim law works, and they have no reluctance to spread their ignorance to the groundlings. It doesn’t occur to Smith that criminal defense lawyers get to speak with their clients and find out about the allegations before they offer advice. It doesn’t occur to Smith that a “slew of charges” means nothing, even if it seems that way to her, since sentences aren’t based on numerosity but the seriousness of the top count.

And, of course, not only is she completely unaware of the fact that discovery is limited by rule or statute, and doesn’t include Brady material, but that if the prosecutor intends to play hide the Brady, the defense doesn’t get it regardless.

Posts like Smith’s not only put criminal defense lawyers in an awkward position, since we’re all for keeping very serious, very real problems such as Brady concealment, in particular, and prosecutorial misconduct, in general, on the public radar. But what of the nonsensical claims used in the process of doing so? Not only are readers made stupider by such posts, but they tend to vilify things like plea bargaining for all the wrong reasons.

No, defense lawyers don’t get all shaky and scared when prosecutors pile on a “slew of charges” that make a plea “look like a good deal” without any clue what the case is about. And if a lawyer hasn’t investigated the case before agreeing to a plea, it’s not the prosecutor’s fault but the lawyer’s. No one says you can’t begin investigating the moment you’re retained or assigned. Of course, investigation takes money, and that’s often a problem, but then there wouldn’t be any investigation regardless because plea or not, there’s no way to pay for investigations.

The crim law activists and academics who similarly promote ignorance for their cause get very upset with lawyers who aren’t team players, gushing support for every article that tells of the sad story of the broken system. But what’s a lawyer to do, when the story is based on ignorance and, in the process, undermines something as critical to the vast majority of defendants as plea bargaining? Should we sell out our clients for the cause? Most activists would. Academics couldn’t care less about actual living, breathing human beings.

But “journalists” are the ones who put this simplistic nonsense out there. There are two wars being fought simultaneously. One is for reform. The other is for an accurate understanding of how the system works. I applaud Jordan Smith for writing about prosecutorial misconduct. I applaud her for writing about Brady concealment. I just wish she would keep her dumb mitts off plea bargaining. I just wish she had a clue.

5 thoughts on “Brady and the Bargained Plea

  1. B. McLeod

    She put too many things in the blender. It is an effective sharp practice for prosecutors to forego Brady/Giglio disclosures during plea discussions, but the rules in many jurisdictions allow it (as the constitutional requirement to make the disclosure is vague as to time). So the problem there is not “misconduct,” but circuit precedents and court rules that allow the practice.

    1. SHG Post author

      It’s an effective sharp practice for prosecutors to withhold Brady/Giglio until an hour before cross. Some disclose. Some hold. Some conceal. We know all that. Of course, we also know what the client told us.

      1. B. McLeod

        Right. And as a consequence, sometimes we know not to expect completely exculpatory evidence

  2. Eliot J CLingman

    It is clear that plea bargaining, draconian sentencing and (Brady) disclosure failures are highly intertwined, so they can’t be reformed in isolation without harming the defendant. In each state, there will need to be a radical and careful redesign of the process, which will take time to develop a public consensus. In particular, we need to simultaneously

    1. Bring back (for non summary offences) the non waivable Anglo-Saxon committal procedure (a/k/a pretrial examination) with oral cross-examination of witnesses (this naturally implements disclosure) and requiring the magistrate to commit the accused to trial only if they consider that there is a reasonable prospect that a properly instructed jury would convict the accused (enhanced filtering capacity). And of course let’s ditch the grand jury anachronism.

    2. Rewrite and markedly reduce sentencing guidelines.

    3. Require that pleas can only be entered AFTER the non-waivable pretrial examination, while also regulating the trial penalty (a/k/a plea discount).

    Yes, I’m off topic, not a lawyer, blah blah, but its Tuesday and the pretrial examination is absolutely crucial.

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