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.