Buoying Brady’s Burden

Details

Author(s):
  • Jonathan Abel
Publish Date:
March 19, 2015
Publication Title:
Daily Journal
Format:
Op-Ed or Opinion Piece
Citation(s):
  • Jonathan Abel, Buoying Brady's Burden, Daily Journal, March 19, 2015.
Related Organization(s):

Abstract

From the article:

…The Brady doctrine, as articulated by the U.S. Supreme Court [in Brady v. Maryland, 373 U.S. 83 (1963)], requires prosecutors to turn over all favorable, material information known to any member of the prosecution team, including the police. But Brady violations are so common that five federal appellate judges recently decried “an epidemic of Brady violations abroad in the land.” The basic problem is that Brady asks prosecutors to make disclosures that weaken their own cases and, thus, cut against their own selfinterest in winning.
Brady compliance becomes even more difficult when the evidence that must be disclosed concerns police misconduct. That is because police fear such disclosures will cost them their jobs. This fear has fueled an astounding resistance to disclosing anything related to police misconduct — a resistance that manifests itself in two main forms.
First is prosecutors’ lack of access to police personnel files. In California, for example, police personnel records are made confidential by statute and no one — not even prosecutors carrying out their Brady duties — can review them without first getting a court order. Even where there are no statutory protections for the personnel files, there are logistical impediments to prosecutors’ accessing records of police misconduct: There’s no comprehensive system for tracking misconduct across jurisdictions. So, officers who rack up credibility problems in one agency can transfer to another, even within the same state, without the misconduct following them.
The second hurdle to prosecutors’ disclosing police misconduct is their partnership with the police. Local prosecutors rely on the goodwill of the police on a daily basis. Prosecutors who disclose police misconduct, even pursuant to Brady, risk law enforcement’s wrath. This conflict of interest is one reason district attorneys struggle to police the police.

Indeed, the [U.S. Department of Justice] DOJ could investigate … cases as a way to launch a larger initiative aimed at identifying defendants convicted because police misconduct was not disclosed. Such an initiative would shine much-needed light on police misconduct while simultaneously vindicating the civil rights of the wrongfully convicted and demonstrating that police misconduct must not be swept under the rug.

Dishonest cops and the prosecutors who protect them pose a serious threat to civil rights, not just on the streets of Ferguson, Cleveland and Staten Island, but in courtrooms around the country. Where local authorities don’t address this problem, the federal government should.