Wednesday, April 08, 2009
Why Brady Matters
In class, I often tell my students about the importance to prosecutors of thinking broadly when considering whether or not to turn over material which may help the defense (which we call Brady material after the Supreme Court case that announced the duty to do so). It is always better to err on the side of disclosure.
Another example of why this is important is now on the front pages. The conviction of Senator Ted Stevens has now not only been undone, but the judge who presided over the case has named a special prosecutor to investigate the prosecutors. Troublingly, the targets of the new investigation include the chief and deputy chief of the Public Integrity Section of the Department of Justice.
I certainly understand the desire not to turn over exculpatory material (I've been there), but it often surprises me how often prosecutors make this mistake when they probably would have won the trial anyways-- it reflects a clubhouse mentality that emphasizes gaining an advantage, when prosecutors above all others should avoid that mindset.
There is a true irony here, too. The Bush administration was often criticized for politicizing prosecutions, and now Bush-era DOJ officials are going to have their careers likely ended-- for their actions in taking down a Republican senator. Probably the more important critique of the Bush DOJ would not have been that it created a culture of politicization, but one of overzealousness. Some glimpses of that DOJ show a dominant group that embraced an unfortunate conception of the prosecutorial vocation that rests on winning, not justice, with the underlying assumption that if our side (DOJ) wins, justice is done.
Once again, we find that such an assumption just is not true.
Another example of why this is important is now on the front pages. The conviction of Senator Ted Stevens has now not only been undone, but the judge who presided over the case has named a special prosecutor to investigate the prosecutors. Troublingly, the targets of the new investigation include the chief and deputy chief of the Public Integrity Section of the Department of Justice.
I certainly understand the desire not to turn over exculpatory material (I've been there), but it often surprises me how often prosecutors make this mistake when they probably would have won the trial anyways-- it reflects a clubhouse mentality that emphasizes gaining an advantage, when prosecutors above all others should avoid that mindset.
There is a true irony here, too. The Bush administration was often criticized for politicizing prosecutions, and now Bush-era DOJ officials are going to have their careers likely ended-- for their actions in taking down a Republican senator. Probably the more important critique of the Bush DOJ would not have been that it created a culture of politicization, but one of overzealousness. Some glimpses of that DOJ show a dominant group that embraced an unfortunate conception of the prosecutorial vocation that rests on winning, not justice, with the underlying assumption that if our side (DOJ) wins, justice is done.
Once again, we find that such an assumption just is not true.
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The Framers had a palpable fear of an aggressive government - in all its forms. If history proves anything (other than that good mexican food cannot be had outside of Texas), it proves that this fear was well-founded.
The framers believed power was the enemy of liberty. The rub was always that too much liberty was also the enemy of liberty. Good government is achieving the right balance.
In terms of my healthy skepticism of government power, this embodies one my very worst fears in re the abuse of power.
Not good.
In terms of my healthy skepticism of government power, this embodies one my very worst fears in re the abuse of power.
Not good.
Humility is never an easy pill to swallow, much less an easy path to walk. For those employed by the government, the paycheck usually serves up a daily dose. Most people who get into this game (public servants) do so to serve the state, make Texas a better place, and to have a stable job. The trouble is, natural competitiveness, camaraderie and the resentment many feel towards opposing counsel and the accused (as well as juries...etc) builds and builds, and too often causes good people to make stupid decisions. Feeling unappreciated and unsupported by those you serve can also lead to further insulation among your cohort.
Moral of the story? No attorney should lose her humility, but everyone out there should hug a public servant and tell him "thank you!" today! :)
Moral of the story? No attorney should lose her humility, but everyone out there should hug a public servant and tell him "thank you!" today! :)
Government, when it is civil and turned toward the aid and betterment of society, is functioning properly.
Government, when it is turned toward overzealous policing and attempts to value the conviction over doing the right thing, is bad.
Public servants (like prosecutors!) should value only one thing as members of the civil government: doing right. I would rather a guilty man walk free than compromise the integrity of my office by violating the law myself. If I act as if the law does not apply to me, by what right can I fairly say that it should apply to others?
Competition, personal advancement, glory seeking... these things have no place in the professional life of the public servant. HOWEVER, there's a bit of a problem here... as long as we require people to self-select themselves to run for office, a bit of avarice is going to be unavoidable.
What we need is better people. Men and women that are willing to put a higher, nobler goal ahead of themselves. That, as Ginger points out, requires a bit of humility, and ain't none of us like to swallow that pill.
Government, when it is turned toward overzealous policing and attempts to value the conviction over doing the right thing, is bad.
Public servants (like prosecutors!) should value only one thing as members of the civil government: doing right. I would rather a guilty man walk free than compromise the integrity of my office by violating the law myself. If I act as if the law does not apply to me, by what right can I fairly say that it should apply to others?
Competition, personal advancement, glory seeking... these things have no place in the professional life of the public servant. HOWEVER, there's a bit of a problem here... as long as we require people to self-select themselves to run for office, a bit of avarice is going to be unavoidable.
What we need is better people. Men and women that are willing to put a higher, nobler goal ahead of themselves. That, as Ginger points out, requires a bit of humility, and ain't none of us like to swallow that pill.
I use Brady to complicate prosecutor's lives quite a bit. If they did embrace an expansive idea of Brady, i wouldn't be able to play those games. By the way, every time I've asked a judge to make the state investigate something under brady, I've ultimately discovered exculpatory material. From a co-defendant's sealed juvenile record (which the state could access from their computer in the courtroom) to a cop's training record, every single time the state claimed they never looked into something because it didn't seem relevant - there was evidence which helped us. None of it helped as much as making the state look like they were hiding evidence, though, and none of it was so bad for the state that it justified the mess that ensued when sanctions were requested. Seriously, having learned Brady from Osler and Serr, I thought the state would have the same reaction the leads to open file policies. When the State plays things straight, it makes it much harder for guilty defendants to walk.
The attitude you mentioned in your post, Professor, isn't just dangerous or potentially unethical, it's counterproductive against any competent defense attorney. Besides, how much more satisfying was it when you won a case where you handed the defense something to help them? I bet you got a little extra bit of satisfaction in those cases when you knew you'd done the right thing when it was hard AND still got the job done. These overzealous types will never get that.
Thank you for training us well, and right.
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The attitude you mentioned in your post, Professor, isn't just dangerous or potentially unethical, it's counterproductive against any competent defense attorney. Besides, how much more satisfying was it when you won a case where you handed the defense something to help them? I bet you got a little extra bit of satisfaction in those cases when you knew you'd done the right thing when it was hard AND still got the job done. These overzealous types will never get that.
Thank you for training us well, and right.
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