Yesterday marked the 50th anniversary of the Brady v. Maryland decision in which the United States Supreme Court ruled that the suppression of favorable evidence by the prosecution violates due process where the evidence is material either to the guilt or punishment of the accused, irrespective of the good faith or bad faith of the prosecution. (Read more about the definition of Brady here.)
In reflecting on the Court’s decision, writers Andrew Cohen (The Atlantic) and Radley Balko (The Huffington Post) scoff at current proposed remedies for Brady violations in light of Connick v. Thompson and the seeming lack of accountability through state bar associations. As concerning as the lack of accountability for prosecutors who have fouled up, they reason, is the resulting lack of deterrence for prosecutors taking cases to trial in a culture that measures success by number of convictions. Balko writes,While many prosecutors are undoubtedly honorable and likely make every attempt to comply with their Brady responsibilities, confirmation bias and a culture of conviction can provide a strong incentive to overlook or misinterpret exculpatory evidence, even unintentionally. With no counterbalancing disincentive, it isn’t difficult to see how Brady violations could become routine.
The question quickly follows: how widespread is this problem if no one is prepared to draw attention to it? Cohen quotes law professor Steve Bright:What troubles me most,” law professor Stephen Bright told me last week, “is that so many Brady violations are discovered as a matter of serendipity. In capital cases, we sometimes find them by getting the prosecution’s file in Open Records (or Freedom of Information) actions. But most people convicted of crimes have no lawyer to represent them after their conviction has been upheld on appeal. … It is impossible to know how many Brady violations are never discovered …
Here at The Open File, we seek to honor the Brady decision by drawing attention to those violations that have been discovered. After all, the first step in addressing any problem is to acknowledge that it exists. Cohen and Balko provide compelling commentary about how to address it from there.
Cohen suggests,[P]retrial discovery in criminal cases must be broadened to include all evidence (trial judges can protect witness security as appropriate). And there must be swift and significant punishment for prosecutors who violate the rule.
Balko adds,Full disclosure from the start would allow defense attorneys to look for exculpatory evidence themselves, instead of relying on the judgment of prosecutors about what is and isn’t exculpatory.