Monday, November 21, 2011

Sauce for the Goose

The Los Angeles Times gets it.  Maybe it's gotten it for years.  (I don't live anywhere near the Golden State and don't look at the LA Times editorial pages more than once a year or so when someone draws my attention to them.)  But long ago or just this week, the Times understands.
Prosecutors cheat.
I know.  I know.  It's something, isn't it.  Dog bites man.
The editorial is called "Defending the Brady rule," and here's how it begins.
The Supreme Court recently heard a case in which prosecutors withheld from the defense information that might have acquitted a murder defendant. The court can rectify this one injustice by ruling for the defendant, but broader reforms are necessary to prevent prosecutors nationwide from concealing evidence.
The case before SCOTUS is Smith v. Cain and it's yet another case where the prosecutors in New Orleans decided that the best way to ensure a conviction was to hide the evidence that it's case sucked.  Specifically, the only evidence that Juan Smith had anything to do with shooting up a birthday party and killing five people was his identification by an eyewitness who survived, Larry Boatner.  Boatner testified to his certainty.
I'll never forget him.
Which is interesting, since he repeatedly told the cops that he couldn't identify anyone and had no idea what the guy looked like.  It has been clear since at least 1963 when the Court decided Brady v. Maryland that prosecutors have a constitutional obligation to turn over to the defense any information which is favorable to the defense on either guilt or punishment.  Prosecutors (not every one of them, but far too many) ignore that obligation.  Some ignore it routinely.  Some ignore it only on special occasions.  But ignore they do.
It's a particular problem in the Big Easy, though a majority of the Court ruled last year (Connick v. Thompson) that it was only a one-time thing there before agreeing to hear Smith and giving the lie to their prior decision.  So they argued Smith on November 8 (transcript here) and it was kind of a disaster for the assistant prosecutor who was sent to Washington to be sacrificed on the altar of Brady.
Anyhow, the LA Times figured out not just that prosecutors violate Brady but that the occasional slapping around (it actually has happened a few times, and it's likely to happen again in Smith, though you never know) by SCOTUS doesn't really accomplish anything.
When you pit the constitutional rights of the accused against the desire to convict the winner is pretty regularly going to be the desire to convict.  Which is why Brady violations (and other forms of prosecutorial misconduct) are so damn ordinary.
Oh, there's lovely language in court decisions.  See, especially, Justice Sutherland in Berger v. U.S.
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Sure. But the good Justice wouldn't have had to write it if prosecutors actually obeyed.
What they know is that it doesn't much matter.  They'll get their convictions. Should they get caught, it probably won't get the convicted guy released. (Factual innocence? it is to laugh; mere legal innocence? it is to guffaw.) And it sure as hell won't get the prosecutor punished - unless becoming a judge is punishment.  Besides, the putatively bad guy will still have done whole bunches of time, and isn't that the point?
Constitutional rights?  Sure.  In some other universe.
So what to do?
Cathy Cook, as I've noted here several times, told the Ohio Supreme Court during oral argument,
You've got to make them lose to make them learn.
But the court wouldn't.  And doesn't.  And neither, with anything like the requisite regularity, does any other court.  Nor do the prosecutors suffer any sanction - either in-house or to their license.
What to do?
Back to the LA Times.
A victory for Smith would remedy this particular injustice, but violation of the Brady rule is widespread in the criminal justice system. The National Assn. of Criminal Defense Lawyers has proposed model legislation that would ensure that the Brady rule would be faithfully followed. For example, it would require prosecutors to disclose information that is "favorable" to the defendant even if it's not considered admissible. Prosecutors also would have to disclose material sought by the defense "without delay."

The proposed legislation would apply to federal prosecutions, but it could serve as a model for the states as well. Both state and federal prosecutors are bound by Brady, and both have been guilty of undermining it. Congress must act because the Supreme Court alone can't deal with all the abuses. 
Well, uh, yeah. Sure. That'll fix it.
I'm a member of NACDL. It's a terrific organization. It does important work. It provides a variety of resources and support for criminal defense lawyers.  It helps to educate the public about what we do and how and why.  It advocates in court.  And it lobbies Congress on criminal justice and constitutional issues of importance to all of us (even those who don't realize that they matter).
All of that is important.  And I hope NACDL's proposed statute (you can find the text and related documents here) becomes law.
And then?  Why prosecutors who don't give a shit about the constitutional rights of the accused will wake up to a new dawn.  They'll run to the office, and announce to their staff
Folks, we have a new policy starting today.  We have wisely ignored our Brady obligations for 48 years now, but Brady is just a requirement of the Constitution.  There's now a statute that says Brady counts.  And we know that statutes are far more important than the Constitution.  Since Congress wants us to obey Brady we must do so.  Fully.  Thoroughly. Beginning today. No excuses.
As I said, I really do hope it becomes law (though I'm not holding my breath).  But the LA Times editors really do live in a fantasy world if they believe that a statute will
ensure that the Brady rule would be faithfully followed 
when its violations are now "widespread."
You have to change the culture, not the law.  Strong words from SCOTUS are nice.  So would be a statute.  And the occasional win is lovely.  But none of that changes the mindset.
So here's the trick.
  • Vote the liars and the cheats out of office.
  • Yank their licenses.
  • Abolish prosecutorial immunity.  (Hell, abolish all government immunity which is bullshit anyway in a supposedly free society.)
  • And make the money come out of their pockets.
Think about it this way: Prosecutors believe that the only way to change behavior is to make the miscreant suffer.
Do unto them.


  1. Innocent Man Imprisoned For 25 Years - Must Pay Costs!

    Even if the prosecutors were made to foot the bill for such 'accommodations' it might have a salutary effect on their decisions. As long as there is absolutely no penalty what will change? Right or wrong, every conviction is a gain for them.

    What about prosecutors who outright lie to the jury? Or defense attorneys who let this pass without objection? That seems worse than Brady.

  2. There's no shortage of bad things out there. And there's no statute that's going to remedy them.

    As for ranking them? When we start punishing, we can begin to figure out what's worse than what - if that seems a worthwhile enterprise. As long as we just nod and say, "Bad boy, but don't worry yourself too much over it," rankings are totally pointless.

  3. Can this problem be addressed by State's ethical conduct rules? Something that clearly states that Brady violations are reason for disbarment?

    1. If they actually started disbarring prosecutors who violated Brady it might make a difference. But prosecutors are very rarely brought up on ethical charges. When they are, the charges are generally dismissed. When they're actually sanctioned, the penalty is typically a slap on the wrist. All this for behavior that would get defense counsel suspended or disbarred.

      There are already rules. If courts won't enforce them, why would we imagine ethics boards would.

      The call is for actual accountability. Any method of actually and regularly holding prosecutors personally accountable for misconduct would make a difference. Until that happens . . . .