Mimesis Law
19 September 2020

Brady Is About More Than Prosecutorial Misconduct

August 23, 2016 (Fault Lines) — As you may have noticed, there are not a lot of prosecutors around here. To the credit of the Fault Lines, someone like me, who is from the other side, is allowed to play in the same sandbox as criminal defense attorneys. As a result it’s often lonely, but occasionally a wayward criminal defense attorney decides to stick up for prosecutors here. Josh Kendrick did just that with his piece entitled “Making Bad Prosecutors Felons Is A Bad Idea.”

Josh discusses a California proposal that would make falsifying or withholding evidence by prosecutors a felony. He writes:

Well, if nobody gives a damn about something, the best way to make them care about it is to make it a felony. Crime fighting is all about upping the punishment. Time and time again, we have seen that increasing the severity of punishment is what solves crime. Making something a felony almost always guarantees it won’t happen anymore.

Just kidding. Read the links. This is a stupid idea. It’s not going to fix prosecutorial misconduct. In fact, it will probably have the opposite effect.

Josh then goes on to criticize the bill because it’s unlikely to deter folks and it just perpetuates the “there ought to be a law” type of magical thinking. Josh goes to point out that there are already penalties. So, if lawyers are ignoring the penalties, then there is cause to believe that more penalties are unlikely to do that as well.

He goes on to point out that the failure to report misconduct is perhaps the biggest problem of all. No one can hold anyone accountable without knowing that someone needs to be held accountable. There are proposals to create accountability measures that do not require a distantly seated overseer to become involved. Yet, the “set it and forget it” solution is to pass a criminal law.

Lest prosecutors begin feeling too warm and fuzzy, Andrew Fleischman douses all with cold water. First, he reports how the prosecutors in Ted Stevens’ case did not receive any serious punishment, unless you count the government paying for his attorneys’ fees. Second, Andrew then “modestly” suggests that we should endorse stings directed at prosecutors. The object would be to catch prosecutors violating Brady.

Although both Josh and Andrew address prosecutorial misconduct broadly, but Brady factors large in their discussion. That’s because outside of closing argument, it’s the most likely place where a prosecutor may commit reversible error. And really, for all the concern about prosecutor misconduct and so-called cheating, reversible error is what matters. With it a defendant can get a new trial or perhaps walk out of prison without a new trial.

While Josh identifies some policy reasons why it is wrong to criminalize a wide swath of Brady-related misconduct, there are also an important legal reason. And there is an impact on the careers of certain law enforcement officers.

In large measure, the failure of law enforcement to turn over Brady material to prosecutors is imputed to prosecutors. So, a Brady by the cops violation my not, as a matter of fact, be caused by the prosecutor. Yet, it will be the prosecutor who is held accountable under Brady.

In addition, Brady creates some friction between the prosecutor and law enforcement. After Kyles v. Whitley, prosecutors and law enforcement interests were no longer closely aligned. Officers with discipline issues documented in their files presented prosecutors with the obligation to reveal those as impeachment evidence. And cops who can always be impeached are nearly useless as witnesses. As you might imagine, cops don’t like that:

Prosecutors’ reluctance to use Brady cops on the witness stand in turn limits the type of police work the officers can do. An officer who can’t be counted on to testify also can’t be counted on to make arrests, investigate cases, or take part in any of a wide range of policing activities that might lead to the witness stand. Police department budgets have little room for the dead weight of officers who can’t testify, and such officers may struggle to find work with new police agencies, if their Brady problems become known to prospective employers.

Moreover, creating Brady files on cops is yet one more unofficial power that prosecutors can exercise with little oversight. If anything, the Brady rules encourage being over cautious:

In light of the dire career consequences of putting an officer on the Brady list, one might think there would robust procedural protections to prevent an officer from being wrongly labeled a Brady cop. But the decision to put an officer on the Brady list is entirely up to the discretion of the prosecutor. The prosecutor can make the Brady designation based on rumor or shaky evidence, and he does not need to give the officer a chance to contest the Brady allegations on the front end or to appeal a negative Brady decision on the back end. * * *

Such unchecked power in the hands of the prosecutor has caused much consternation among police officers. Unfortunately, prosecutors in some cases have abused this Brady power, using it to carry out personal vendettas against police officers.

In a number of cases around the country, officers have alleged — rather convincingly — that prosecutors placed them on the Brady list for inappropriate reasons, including that the officers criticized the district attorney in the newspaper, supported the wrong candidate in the district attorney’s race, investigated corruption among the prosecutor’s employees, provided testimony that was truthful but unhelpful to the prosecution, complained to city officials about corruption in the police department, and failed to apologize to the prosecutor for some perceived slight.

Thus, creating a strict Brady regime has, in some measure, has expanded prosecutorial power. And vicarious liability may benefit a defendant in a particular case, where the State is being punished for the misconduct of its agents. But it does little to ensure prosecutors are being held accountable for conduct that they always can control.

A better solution for discovery and disclosure violations would be narrowly tailored rules, rather than broadly sweeping constitutional doctrines. But, as Josh already noted, that is not as appealing as clubbing the problem. Meanwhile, we wonder if a Brady violation happens, does anyone really care.

8 Comments on this post.

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  • Josh
    23 August 2016 at 10:23 am - Reply

    I have always wondered this, and now have a prosecutor in my sandbox to ask…why not just turn over everything? If it has anything to do with the case, just give it to the defense and see what happens.

    In civil cases, I don’t debate what should be turned over. I just produce it. Sometimes its bad for me, sometimes its terrible for me. But it rarely ever makes or breaks my case. So I always wonder, what is the harm in just giving the other side everything?

  • TMM
    23 August 2016 at 10:32 am - Reply

    Big problem with Brady is the assumption of the unity of interests between the prosecution and the police. In most of this country, most felonies are investigated by city police officers but prosecuted by county prosecutors. The large cities have their own attorneys (sometimes even counsel specifically assigned to represent the police department) that have their own interest as to what information the city wishes to release (particularly about pending internal affairs investigation). As a result, the county prosecutor is sometimes in the dark about potential impeachment material available against particular officers. Even when a case is investigated by county officers, the prosecutor is outside the chain of command and there is no supervisor (other than the voters) who can dictate that the county investigators more fully cooperate with the prosecutor.

  • jdgalt
    23 August 2016 at 10:37 am - Reply

    In light of the dire career consequences of putting an officer on the Brady list, one might think there would robust procedural protections to prevent an officer from being wrongly labeled a Brady cop.

    The above sentence is so outrageous I did a double take. Common sense tells us that a defendant’s freedom is more important than the career of the person trying to unjustly convict him. If prosecutors are going to hesitate AT ALL to create a “Brady file” for a cop, then the prosecutor shouldn’t have a choice about it; the judge should be required to order it every time.

    You either have integrity or you don’t. A cop who doesn’t has no business being a cop.

    • SPM
      23 August 2016 at 11:19 am - Reply

      I don’t know if you read the article. The question under discussion is what happens when someone is placed on a “Brady list” for things that DO NOT compromise integrity; that is, like backing the wrong candidate in the Prosecuting Attorney election, or being a whistleblower and reporting misconduct. Or when the cop arrests the prosecutor’s nephew. The problem is that there are no “checks and balances.”

      • maz
        24 August 2016 at 2:44 am - Reply

        Is there really a belief there are *too many* cops tagged with a Brady file? Or are these concerns about misuse of the Brady process anomalous outliers that should be taken as a notice to whoever is watching the watchmen this week to keep an eye open for possible abuse, rather than evidence of inherent vice? The best we get is a claim this has happened “[i]n a number of cases around the country.” One is a number; so is one million.

  • bacchys
    23 August 2016 at 9:14 pm - Reply

    It doesn’t seem to be much of a career-ender for cops to be on Brady lists.

    In fact, there seems to be little consequence to prosecutors or police for concealing Brady material or even knowingly working to get a wrongful conviction. This entire piece is based on a fictional notion of what might happen, not what happens in the real world.

    In the real world, the Brady cop finds evidence, but the prosecutor and police put another cop on the stand to lie and claim to be the one who found the evidence. Or, he’s honest about it, but the judge allows it into evidence anyway. The cop with credibility problems is still working and still impacting cases, but the defense isn’t notified because he’s not testifying.

    As things are right now, there are in practical, real terms no consequences for failing to turn over Brady material. Ignorance of the law is an excuse if you’re in law enforcement.

  • Peter Gerdes
    25 August 2016 at 8:17 pm - Reply

    It seems like the reasons you provide merely argue for ensuring only the individual who knowingly withheld Brady material be subject to criminal sanctions. The fact that police are considered part of the prosecution team for the purposes of the defendants rights at trial doesn’t in any mandate that prosecutors be criminally culpable on the proposed law for information they didn’t have. Let’s simply make the officers themselves criminally culpable for failing to disclose potential Brady material to the prosecutor.

    While the issue of how Brady lists are managed by prosecutors is a real one it is hardly relevant to the other concerns in the article. Ultimately, it is not the Brady regime which gives rise to the prosecutor’s power over police careers. After all it is perfectly possible (as I believe some states have done…but not sure) to simply make all police misconduct files a matter of public record in which case Brady imposes no special duty on the prosecutor to turn over material about police officers they call to testify.

    Ultimately, Brady lists are simply an incarnation of the prosecutor’s general discretion to decide which officers are desirable to call as witnesses. Unless you honestly believe information impeaching officer’s credibility should be denied to the defense in the interest of promoting harmony on the prosecution team you can’t avoid the fact that prosecutors will decide certain officers are more desirable to call in court than others and these decisions will affect officer careers.

    Ultimately, a Brady list is just a kind of negative job performance evaluation. A prosecutor has determined that a given officer is not very good at one part of his job (giving convincing testimony in a trial). It is intrinsically no more or less open to abuse than any other job performance evaluation and plenty of police chiefs have destroyed officer’s careers for equally unjustified reasons. The same kind of safety measures we use to ensure other kind of job performance evaluations aren’t abused can be applied to Brady lists, e.g., allowing review of determinations to see if they are made maliciously etc..

    Ultimately, however, I don’t see the argument for how mismanagement of the system by which police officer’s job performance, i.e., ability to be a compelling witness, is evaluated really bears at all on the question of how we ought to incentivize the prosecution team to turn over exculpatory material.

  • Peter Gerdes
    25 August 2016 at 8:25 pm - Reply

    Also your concerns seem to be self-defeating.

    Either we should assume that prosecutors so rarely abuse their power that unappealable Brady list determinations present no problem or that they are so likely abuse their power that the (non-parody) equivalent of Brady stings really are required. If anything a prosecutor who makes a retaliatory Brady list determination is more likely to be found out and discipline than one who knowingly chooses not to hand over Brady material to the defense.