[Vision2020] Justice and Open Files

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>


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February 26, 2012
Justice and Open Files

Prosecutors have a constitutional duty to disclose significant evidence
favorable to a criminal defendant. But too often that duty, as laid out by
the 1963 Supreme Court decision Brady v.
Maryland<http://supreme.justia.com/cases/federal/us/373/83/case.html>,
is violated.

To help ensure compliance, some prosecutors, criminal defense lawyers and
legal scholars have sensibly concluded that prosecutors’ files, as a
general rule, should be made open to defendants. In cases where turning
over evidence might endanger a witness, for example, a judge could allow an
exception.

A small number of state and local governments have adopted open-file
policies that require prosecutors to make available well before trial all
information favorable to the defense, without regard to whether such
information is likely to affect the outcome of the case. North Carolina and
Ohio and places like Milwaukee have found that such policies make
prosecutions fairer and convictions less prone to error. The Justice
Department should join this movement and set a national example. But
instead, it continues to take half-measures in response to its own failures
to meet disclosure requirements.

It responded to several cases of Brady violations by its attorneys —
including egregious misconduct in the case of the late Senator Ted Stevens
— by providing more training and by directing each United States attorney’s
office to set forth<http://www.justice.gov/dag/dag-to-usas-component-heads.html>clearly
its version of the department’s Brady policy, which is to turn over
favorable evidence only if it is “material,” meaning likely to make a
difference in the case’s outcome.

Those changes are not sufficient because the Brady rule is too easily
skirted. It allows prosecutors to withhold favorable evidence that they
deem not to be material, leaving defense lawyers unaware of evidence that
may be owed them. Ninety-six
percent<http://www.bjs.gov/content/pub/html/fjsst/2008/fjs08st.pdf>of
federal criminal cases are resolved by plea bargains, so the rule puts
defendants at a disadvantage in negotiation: without access to information
in the government’s files, they don’t know the evidence they face and can’t
assess their odds at trial.

This weakness in the Brady rule also means there is no way of knowing how
many violations are buried by plea bargains. The few that become known,
through trials or post-trial challenges, are no index of the problem’s true
dimensions, but they can show how deeply rooted it is.

After the Justice Department dropped the case against Senator
Stevens<http://www.nytimes.com/2009/04/02/us/politics/02stevens.html?fta=y>in
2009 because of prosecutorial misconduct, including the withholding of
exculpatory evidence, Judge Emmet Sullivan of the Federal District Court in
Washington, D.C., chose to
appoint<http://www.nytimes.com/2009/04/08/us/politics/08stevens.html?scp=5&sq=Scheulke%20appointment&st=cse>outside
counsel to investigate what went wrong rather than trust the
Justice Department to do it.

In 2009, Judge Mark Wolf in Boston likewise
found<http://pdfserver.amlaw.com/nlj/USAvJonesMay18order.pdf>that the
long-standing problem eroded his trust in federal prosecutors. “In
the District of Massachusetts,” he wrote, “the government has had enduring
difficulty in discharging its duty to disclose material exculpatory
information to defendants in a timely manner.”

In both the federal and state court systems, it is essential that rules
about disclosing evidence be followed in ways that promote justice. An
open-files policy would come closer to meeting this important standard.


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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