Encouraging Developments

It is absolutely clear (widely ignored, but absolutely clear) that the Due Process Clauses of the Constitution ( Fifth and Fourteenth Amendments) require the prosecution to turn over any evidence in the possession of the government that is favorable to the defense. We call it "Brady material" after the Supreme Court's 1963 decision in Brady v. Maryland. (The Court extended the rule in 1995 in Kyles v. Whitley, a case out of Louisiana.)

The evidence doesn't need to be exculpatory, just favorable - either to determinations of guilt or punishment. It doesn't even need to be in the possession of the prosecutor. The obligation is ultimately the government's with the prosecution acting as the agent (and potential fall guy) for the rest of the gov. So the prosecutor has a duty to gather the evidence that the rest of the government has, scour it for what might be favorable, and turn it over.

There's a second set of discovery obligations in criminal cases that are set forth in court rules. The federal version is in Federal Rule of Criminal Procedure 16. The states each have their own. Ohio's is Ohio Rule of Criminal Procedure 16. The federal and Ohio rules are similar but not identical. Those rules overlap Brady obligations, but require release of non-Brady material, too.

It won't shock regular readers of this blog (are you out there?) to suggest that these obligations are too often honored only in the breach. And when prosecutors do get caught violating Brady or local criminal rules, alas, the sanction is too often nothing, at most a slap on the wrist.

Anyway, that's all preliminary to a couple of developments.

DEVELOPMENT 1

The American Bar Association, which has a lot of members, a big budget, significant prestige among big firm lawyers and law professors and people who know absolutely nothing about the day to day practice of law, and no actual power whatsoever, released an ethics opinion in July that might just make a difference. It's "Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense," and as Scott Greenfield notes, we haven't been giving it the publicity and attention it deserves.

Here's the ABA's summary (all in italics in the original which makes it hard to read, so I've removed them).

Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further obligated to conduct searches or investigations for favorable evidence and information of which they are unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all lawyers in the office comply with their disclosure obligation.

There are three key things here.

First, the disclosure obligation extends not just to evidence but to "evidence or information." Prosecutors have too often hidden Brady material by claiming that it's not really "evidence."

Second, the disclosure must occur

as soon as reasonably practicable so that the defense can make meaningful use of it.

That might seem self-evident, but try putting it to the prosecutor who "satisfies" his obligation by turning over material during the trial.

Third, it's an ethics opinion. I know, I know. But really, there are ethical rules for lawyers. And we're supposed to obey them. When we don't, we can be sanctioned, even disbarred. (Of course, the reality is that comparatively trivial transgressions tend to result in severe sanctions against criminal defense lawyers while major violations get prosecutor's wrist's slapped just before they get elevated to the bench, but that's just how it looks to an objective observer.) State ethics rules are the ones we're obliged to follow, and they are mostly modeled on the ABA's rules and interpreted in accord with the ABA interpretations. So this opinion has, at least potentially, some actual clout. At least, it does if we push it hard.

Development 2

Here in Ohio know we've been working for years to amend our Criminal Rule 16 to provide for greater discovery, ideally open file discovery. If the state is confident enough to charge my client, it should be confident enough to let me see what it's got. The fight has been going on for years, but the rule hasn't changed significantly. Now, however, it looks like there's actually going to be a real change.

It's not pure open file discovery and it's not the rule I'd have liked, but the Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorneys Association have agreed on a draft rule (see story here). With both those organizations in line, there's every reason to believe the rule will be enacted and effective in 2010. This is big stuff.

Development 3

I've talked here and here about the discovery efforts in the Rommell Broom case. The Cuyahoga County Prosecutor hid evidence at his capital trial. Shortly after the defense got it, and before the defense could use it, the Ohio Supreme Court seemed to say, in another case, that the defense can neither get nor use such evidence. So, since 1994, Broom has sat on death row in Ohio with this evidence he couldn't use. Then, in July, the Cuyahoga County Court of Appeals said that Broom could use the evidence.

But can he? The state is planning to kill him in less than two weeks, on September 15. And the prosecutor has appealed the order allowing use of the information. Yesterday, the Ohio Supreme Court almost stepped in. In a three paragraph unsigned order yesterday, the court agreed to hear the appeal and ordered expedited briefing to be completed by September 9. One hopes that if it agrees the evidence can be used, it will also grant a stay of the execution so that it can be used.

For reasons they don't explain, Justices O'Connell and Pfeifer would not have expedited the briefing.

So, what does all this mean? Is honesty to rear its ugly head in the criminal justice system? Is someone actually going to force the government to play by the rules? Integrity? Fairness? Dare I say "Justice"?

No, I won't say any of that. But it's a glimmer, a start, a basis for some hope. That'll matter to Broom, of course. And it should matter to the rest of us.