Mimesis Law
7 August 2020

Locks Keep Honest People Honest

Mar. 18, 2016 (Mimesis Law) — Clients rely on attorneys to represent their interests in legal proceedings. Because this is an agency-type relationship, many traditional aspects of agency law apply, such as the power of the agent to bind the principal. As such, the principal often seeks ways to limit the risk of faithless agent, such as through indemnity, sureties, insurance, compensation structure, limited delegation of authority, and so on.

But unlike most other environments where the principal-agent relationship exists, the law is peculiar in that the agents (lawyers) largely get to write the rules to which the principals (clients) must adhere. This is particularly true in criminal law.

In the case of criminal defendants, they are often assigned an attorney. If assigned a public defender, the lawyer may have a crushing caseload that impacts the attorney’s ability to represent the client. If counsel is appointed, then the fee structure may be such that the less work performed, the more profitable the case is for the attorney. In the case of a prosecutor, the principal is the State, which is a mosaic of different and often conflicting interests. This can make the principal’s wishes difficult to discern. Further discussion of some of the incentives lawyers have to lie to clients can be found here.

In the criminal context, there is little that the clients can do to control their agents. So, it often falls to the judges (also lawyers) to come up with remedies for clients harmed by their lawyers. Presently, trial courts do very little of that in criminal matters. Generally speaking, the appellate courts are the ones that create the case law that guides future cases. But those courts are operating retrospectively. The ink is dry on the conviction and all the evidence is in the record before it reaches the appellate court. Judges have the same brain the rest of us have, and therefore are susceptible to the same psychological biases, such confirmation bias.

In addition, appellate courts’ remedies are generally limited to affirming, reversing, or modifying the judgment itself. Moreover, in criminal cases where ineffective assistance of counsel is present, the trial attorney does not prosecute the appeal, for hopefully obvious reasons. Consequently, appellate courts are faced with cases where the judges are usually convinced that the right judgment was reached, the wrongdoing attorney is often not present, and the only remedy available to a wronged principal is to reverse the case and redo the proceeding.

As a result, the rules emerging from appellate cases, such as waiver, plain error, necessity of prejudice or materiality are then understandable. A more surgical remedy is needed to address the misconduct, but the appellate courts do not have the necessary tools to craft such as remedy. As noted previously, attorney conduct generally has to be excessively bad to receive a reversal.

This arose because Tim Cushing from Techdirt tweeted out this post:

Yesterday, Tom Moore sent me the following Amended Notice of Proposed Local Rule Change and Opportunity to Comment: Download Brady Proposal. This local rule change would increase the Brady obligations of federal prosecutors in the District of Columbia. The change was proposed by a committee that included Professor Cynthia Jones, who, as I’ve noted before, has long advocated for Brady reform.

A rule of this sort, which is enforced by the trial court, is a far better method for vindicating Brady than the current appeal-and-pray-for-reversal rule we have now. Rules, similar to the proposed D.C. rule, force actors to be more personally accountable. In addition to the proposed rule, Judge Kozinski recently discussed trial courts having greater judicial oversight in vindicating Brady:

The solution to this problem is for judges to routinely enter Brady compliance orders, and many judges do so already. Such orders vary somewhat from judge to judge, but typically require the government to turn over, when received, documents and objects, reports of examinations and tests, expert witness opinions and all relevant material required by Brady and Giglio. Entering such an order holds prosecutors personally responsible to the court and will doubtless result in far greater compliance. * * *

The details are outlined in Professor Kreag’s article but the general idea is that, during pretrial hearings and before a defendant enters a guilty plea, the trial judge would have a conversation with the prosecutor on the record, asking him such questions as, “Have you reviewed your file . . . to determine if [it] include[s] information that is favorable to the defense?” and “Have you identified information that is favorable to the defense, but nonetheless elected not to disclose [it] because you believe that the defense is already aware of the information or the information is not material?”182 There is nothing like having to face a judge on the record to impress upon lawyers the need to scrupulously comply with their professional obligations. But the questions must be sufficiently specific and detailed to avoid the mantra, “We’re aware of our Brady obligations and we’ve met them.”

Shifting the responsibility to the trial court and the agents themselves is far more likely to avoid wrongdoing than hoping for a reversal. Especially when that reversal is years or decades removed from the misconduct. Although Brady is about a prosecutor’s constitutional obligation, there is no reason for the scope of rules aimed at deterring misconduct must exclude addressing defense counsel misconduct. The general guiding principle would be to minimize the risk of a faithless agent rather than focus exclusively on defense counsel or prosecutors.

Moreover, when trial courts have both the tools and the duty to remedy attorney misconduct, then a variety of options are available. For example Professor Jones has recommended that Brady violations be treated similarly to civil discovery violations.

The proposed “Brady instruction” is closely akin to adverse inference instructions, also known as “missing evidence” or “spoliation” instructions. Those specially crafted instructions are traditionally used by courts to address evidentiary imbalances created when discoverable or admissible evidence is suspiciously lost or inexplicably destroyed while in the exclusive possession of an adverse party. Commonly, adverse inference instructions inform jurors that they are permitted to infer that if the absent evidence had been produced at trial, it would have been damaging to the party responsible for its loss. * * *

Accordingly, when the government intentionally withholds Brady evidence, the defense is entitled to present the facts surrounding the government’s Brady misconduct at trial and receive the full evidentiary benefit of the “consciousness of a weak case” inference, including presentation of facts related to the government’s awareness of the Brady evidence and the measures taken by the government to prevent its disclosure to the defense.

For one thing, the instruction proposed for the accidental destruction or loss of potentially valuable evidence is far better than the bizarre Youngblood standard. In any event, these sorts of proposed remedies tend to target the bad actor rather than punish the principal. While it might be too harsh to dismiss a criminal prosecution for prosecutorial misconduct, the jury instruction would publicly shame the wrongdoer without giving a guilty defendant an unjust windfall. That is not to say that ought to be the only remedy, but it is a far better remedy than the all or nothing remedy of reversal.

It might be a controversial idea among the criminal defense bar, but the overwhelming majority of prosecutors are generally honest people that normally want to be honest. But nearly all humans have the capacity to be dishonest and cheat. If you are surprised by that particular fact, welcome to Earth and enjoy your visit.

Rules that encourage and remind attorneys of moral, legal, and ethical obligations at the time of the actual decision, are far more likely to protect the client and alleviate systemic gamesmanship. If you combine these sorts of procedures with requiring attorneys to have skin the game, such as through financial, professional, and social penalties, then it will be far easier to spot the truly bad apples and get them out of the system.

4 Comments on this post.

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  • Richard G. Kopf
    18 March 2016 at 6:49 pm - Reply


    I am very intrigued by the DC District’s proposed local rule regarding the Brady obligation. I would not have stumbled across it but for your thoughtful and informative post.

    I may well post about the Rule, and what I tentatively think about it. But, as I just told Scott over at Simple Justice, it is Friday and I’m drunk (not really*). I will think more about it over the weekend.

    All the best.


    PS Actually, I had three more teeth removed yesterday by some guy who claimed to be a maxillofacial surgeon. He had huge hands, a nasty collection of pliers, and a mean glint in his eye. Think of the “dentistry” scene in “Marathon Man.” If you haven’t seen it, be my guest: https://www.youtube.com/watch?v=kzw1_2b-I7A. It is safe.

    • Andrew King
      20 March 2016 at 7:58 pm - Reply

      Thanks Judge.

      I didn’t comment too much on the rule itself because I have reservations about it. The scope seems to be broader than Brady, and I am not entirely I am comfortable with that. So I look forward to any comments you may have about the rule.


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    7 June 2016 at 9:28 am - Reply

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