Tennessee To DoJ: Make Brady Real Or Else

When Attorney General Dick Thornburgh issued his notorious memo in 1989, he put into writing what everyone took for granted. Federal prosecutors weren’t like mere lawyers, subject to the constraints of state ethical rules for lawyers. Not that it changed much about the way prosecutors went about their job, but it proclaimed they were untouchable. It wasn’t that AUSAs didn’t engage in misconduct, but that their misconduct wasn’t subject to the ethical rules that constrained the rest of us.

Thornburgh’s successor, Janet Reno, reversed course, issuing rules that federal prosecutors were subject to the same ethical rules as every other lawyer. This ended up being codified in 28 U.S.C. § 530(b). Not that it had much actual impact, as AUSAs remained unmolested, but at least it created the appearance of applicability.

The Volunteer State, Tennessee, has figured out that this gap provides a means to exert some control over prosecutors, and has joined other states in trying to exploit it. The DoJ is not pleased.

The Justice Department has picked a fight with an obscure ethics agency in Tennessee about how much evidence — called “discovery” — federal prosecutors should have to hand over to defense attorneys there.

It’s the kind of little-noticed move the department makes all the time but could have a lasting impact on the criminal justice system.

Well, bear in mind this is from The Marshall Project, so don’t be surprised that nothing is accurate. The agency isn’t “obscure” any more than any other lawyer disciplinary board is obscure. It’s not “discovery,” which is controlled by F.R.Crim.P Rule16, but Brady disclosure. And while it could have a lasting impact on the system, so too could space aliens landing in Knoxville.

Yet, what’s happening in Tennessee presents a showdown of sorts between the feds and the state for control. There’s little question that states don’t get to dictate to federal prosecutors how they do their job. And if states try to stick their nose too deeply into how federal prosecutors make sausage, let them try to march into a federal courthouse and do something about it. Sure, § 530(b) says they can, but find a federal judge who instructs the marshal to take charge.

But most federal prosecutors eventually leave the government and need to work for a living. Sanctions imposed by state disciplinary bodies suddenly become far more important, far more real. Even if a prosecutor can shrug off a state suspension because the federal judges before whom he practices neither know nor care, failure to abide a sanction can wreak havoc with his bar status. So maybe the states, Tennessee in this instance, has more control over federal prosecutorial misconduct than it realized?

The Tennessee case revolves around what any prosecutor in the state, local or federal, should do with evidence that could prove a defendant’s innocence. The U.S. Supreme Court has ruled in the famous Brady v. Maryland and other decisions that district attorneys are duty-bound to disclose this evidence only when it’s “material” to a case — in other words, when it would probably change the outcome.

The Justice Department believes that guidepost is enough.

Beyond this grossly underwhelming grasp of the breadth of the duty under Brady and its progeny is the depth of its inherent problems. The “materiality” prong is one. The time is another. The fact that it’s left entirely to the sensibilities of the prosecutor, however, is the worst. Criminal defense lawyers are painfully familiar with the problems.

“Every other constitutional right applies from Day One, except for this, apparently,” said Michael Working, executive treasurer of the Tennessee Association of Criminal Defense Lawyers, which supports the state’s new ethics opinion. “And it’s just on the honor system, which is moronic.”

So Tennessee’s Board of Professional Responsibility has sought to impose an ethical duty to turn it over. All of it. Screw prosecutors assessment of materiality. Screw gaming it to the last minute. Turn it over.

The rule being adopted in Tennessee and the other states is that prosecutors must hand over all evidence that is in some way favorable to a defendant, no matter if they believe it would affect the outcome or not. They also must do so early on enough in a case for the information to be used effectively by the defense team, meaning before any kind of hearing when a guilty plea might be made. (That often happens at arraignment.)*

Regardless of what federal courts have determined Brady to require, Tennessee wants to bootstrap its ethical duties to compel more, to fix the gaps and make the Brady obligation a matter of state ethics. If the feds won’t do it on their own, and if federal courts won’t make them, then Tennessee will use its authority to discipline lawyers to compel prosecutors to disclose Brady. And rather than shrug and laugh at the puny state authority, the feds are taking it seriously enough to oppose the effort.

That’s why the Justice Department has taken such an interest in the Sept. 14 meeting. In their letter urging the board to rescind its new opinion, the federal prosecutors argued that adding a professional-conduct rule that is stronger than what the Brady decision requires will create a confusing double standard for them to follow. It would also let defendants, they said, “engage in blind fishing expeditions through the government’s files.”

The department’s letter also said that forcing prosecutors to furnish sensitive information about eyewitnesses to crimes — including those who may never actually testify at a trial — could put their lives or privacy at risk and scare them away from cooperating.

The DoJ arguments range from silly to outright nonsense. There is no “confusing double standard,” as if federal prosecutors can’t figure out how to manage this really hard thing “called ‘discovery,'” although the Supreme Court bought this absurd contention when it burned John Thompson. If disclosure risks harm to a witness, the government can get a protective order, like it does in every other instance of disclosure. Big deal.

What this is about is the feds facing a state ethics body telling its prosecutors what they are ethically obligated to do, and this could make it much harder for the feds to game the system, conceal Brady and Giglio, and enjoy the advantage of asymmetric information that has long given federal prosecutors the upper hand by depriving the defense of exculpatory information.

And if that happens, and defendants learn early enough of the holes in the prosecution’s case to make use of the information, make knowledgeable choices as to going to plea or trial, it could mean the feds might lose a case or two. They’re not letting that happen without a fight.

*The parenthetical is correct in state court proceedings, but completely wrong in federal courts, where guilty pleas almost never happen at arraignment.


13 thoughts on “Tennessee To DoJ: Make Brady Real Or Else

  1. Robert S

    Love your writing, and I rarely comment, but I felt it was worth asking if the final line shouldn’t be :

    They’re NOT letting that happen without a fight.

    If not, then I really need to take a break from the internet because my reading comprehension has gone to shit.

    1. SHG Post author

      You’re right. Someone else told me that this morning as well, but things got busy and I neglected to fix it. It’s not you, it’s me.

  2. Billy Bob

    This is why some of us civilians are so mad at the so-called criminal justice asymmetry. Brady v. Maryland. What a joke that is! Can anyone ever take the Feds seriously? Heads they win, tails we lose. It happens all the time.

    Tennessee Board of Professional Resposibility! Who ever woulda thunk? Go Volunteers. And if you need reiforcements, some of us northerners should be onboard. For real.

    We’re not necessarily big on jurisprudence, but we know a good fight when we see one. Some people get their jollies by putting fellow citizens in prison, as previously posted by me multiple times. Not a pretty picture!

  3. Richard Kopf


    FYI, the federal courts in Tennessee may have something to say about this subject.

    28 U.S.C. § 530(b) explicitly states that federal courts can control ethics matters through their local rules for all lawyers who practice before the federal courts. The District of Nebraska has done so, explicitly rejecting any state codes of professional responsibility and, in addition, explicitly taking jurisdiction of ethics matters relating to open or closed cases in federal courts. For those who are interested, see Nebraska General Rules 1.7(b)(2) and 1.8(c) and (g). (All of our rules can be accessed through our external website (opening page)).

    We elected to use the ethics rule found in the federal common law as stated in Federal Rule of Appellate Procedure 46(b)(B). “A member of the court’s bar is subject to suspension or disbarment by the court if the member: . . . is guilty of conduct unbecoming a member of the court’s bar.” By using this standard we can look at various ethics materials used by the states or written by other authorities but we are not bound by them. (At this juncture, please remember, fondly, ABA Model Rule 8.4(g))

    A little background, and I will get back to rejecting yet another habeas petition. Criminal defendants, both during pending criminal proceedings and afterward started having fun filing state ethics complaints against prosecutors and, please note with emphasis, criminal defense lawyers. This forced federal practitioners to defend themselves before state ethics regulators sometimes during the pending of a pending federal proceeding. Additionally, we then began to see these state ethics complaints referenced in section 2255 motions. With the cooperation of the Nebraska Supreme Court, now an ethics complaint filed with the state folks get referred to us and we resolve them. Works just fine.

    Well, back to the habeas. All the best.


    1. SHG Post author

      That explains the massive disbarment of AUSAs in Nebraska for Brady violations (plus the ordinary prosecutor meth parties stuff, obviously), right?

      1. Richard Kopf


        You are such a skeptic and better yet a cynic of epic proportions. I would kiss you on the lips but Dr. S.J. would object.

        All the best.


  4. B. McLeod

    The 1989 DOJ position was always idiocy. The federal government does not license attorneys. States do, and the standards of the licensing state(s) follow the state-licensed lawyer until he or she dies or is disbarred. It isn’t a close question, and DOJ has no authority to tell any state bar, anywhere, that it can’t discipline one of its licensees for misconduct.

    1. SHG Post author

      If federal judges give AUSAs a free pass for as long as they’re in the govt employ, there’s little the state can do about it. But once they’re out, they are then fair game for the state. If they get suspended during their tenure, but refuse to comply, the state can take them out later with sanctions on both ends.

      1. LocoYokel

        It’s my understanding that practicing law without a licence is a prosecutable offence in most states. If a state disbars an attorney, no matter which court system he operates in, could they not then go after him for practicing without a licence?

        1. SHG Post author

          If they disbarred an AUSA, it would be a crime. That would be fun to watch, but it hasn’t happened yet as far as I’m aware where the state did so and the feds stood behind their lawyer and refused to comply.

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