Toward an “open file” discovery requirement

A constitutional right without any way of enforcing that constitutional right is hardly any right at all.  That’s a pretty accurate description of the government’s obligations under the Due Process Clause of the U.S. Constitution and Brady v. Maryland to turn over exculpatory information to the defense. Relying almost entirely on the goodwill and integrity of the individual prosecutor assigned to a case, it is great in theory but not so good in practice.

Yes, a court that finds that a Brady violation has occurred can dismiss the case or impose other sanctions against the government. The offending prosecutor can also be disciplined for violating ethical responsibilities under the applicable Rules of Professional Conduct. In D.C., that would be Rule 3.8(e) which requires the prosecutor to disclose to the defense “any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense.”

But there is no real oversight mechanism for assuring compliance.  All the training and policy guidance in the world will come to nothing if the decision on whether to turn over a piece of evidence is left in the hands of the wrong prosecutor.

Brady violations usually come to light in one of two ways. In one scenario, the defense inadvertently stumbles upon a piece of evidence – often after trial – that suggests that the prosecutor was sitting on something that he or she should have turned over. In another scenario, such as in a case that is currently under dispute in D.C., the Brady violation is only discovered after the original prosecutor leaves the case and the information is belatedly turned over by the new prosecutor. In both cases, discovery of the violation is pure happenstance.

With some prosecutors acting out of a mistaken notion of justice, others out of ignorance about the full reach of Brady, and all prosecutors unable to put themselves into the shoes of the defense attorney in deciding what is material to the defense, leaving responsibility for such an important right – one with constitutional dimensions — within the discretion and judgment of the individual prosecutor is a recipe for disaster. Just look at the ongoing dispute between the U.S. Department of Justice and the D.C. Office of Bar Counsel over a former federal prosecutor’s failure to turn over Brady information in an aggravated assault case from a number of years ago.

The defendant in United States v. Arnell Shelter was charged with wounding Christopher Boyd in a drive-by shooting. Boyd told a police officer from his hospital bed that he could not identify his assailant. When the officer specifically brought up the defendant’s name, Boyd still did not identify the defendant.  The officer told this to the prosecutor, and the prosecutor wrote this down in his notes.  But the prosecutor never disclosed this information to the defense.

The only reason the Brady violation in this case ever came to light was again purely by chance:  the initial prosecutor left the Office of the U.S. Attorney after the first trial resulted in a hung jury.  It was not until the case was reassigned to a different prosecutor for re-trial that the violation was discovered and the information turned over to defense counsel on the eve of the second trial.

What are the costs of all of this to the system?  First, and most importantly, the defendant was denied his constitutional right to a fair trial. As the D.C. Bar Counsel pointed out in one of its briefs, “the crime was a drive-by shooting that took place shortly after midnight, well after dark.  The shooting happened quickly, with the shooter’s car traveling at a high rate of speed.  The shooter’s car was variously described as a silver Honda, a baby-powder blue Toyota or a dark colored Toyota Camry.”  The complainant also made all his observations through the tinted windows of his car.  Could anyone seriously believe that Boyd’s failure from his hospital bed to identify the defendant as his shooter might not be something defense counsel might want to know?  Armed with this information, the defense counsel might well have been able to secure an outright acquittal of his client at the first trial, thereby avoiding his client’s conviction after the second.

Moreover, apart from the normal platitudes about how we all suffer every time an innocent person is convicted of a crime, the failure to turn this information over has resulted in the expenditure of an astronomical number of lawyer hours to resolve this matter — through both the appeal process and disciplinary proceedings for the offending prosecutor.  For example, the amicus brief that the Department of Justice filed in support of the prosecutor alone is, with attachments, almost three-quarters of an inch thick.  And all of this to resolve a matter the judge in the second trial described as pretty clear cut:  “I don’t see how any prosecutor anywhere in any state in the country, could say I don’t have to turn that over. . .”

The solution to reducing the number of times this happens is equally clear cut.  If the Supreme Court recognized in Brady a constitutionally protected right to this information, legislatures throughout this country should provide a mechanism for assuring access to this information.  A uniform requirement for open file discovery would serve this purpose.  Such laws could be named after the former senator from Alaska, Ted Stevens, who suffered from prosecutorial misconduct to at least an equal degree.

Take the decision out of the hands of the individual prosecutor. Get rid of the shell game. Open the file to the defense attorney and make him or her do the work. Let the defense attorney decide what is relevant or material to the case, and if the defense attorney fails to recognize the significance of materials that are in the file, that is on him or her.

As it is, you get the sense that Brady violations are occurring daily in every jurisdiction in this country because, let’s face it, prosecutors are overworked, misinformed, improperly motivated and trained, and sometimes just plain malicious. And evidence of those violations are lost just as soon the defendant is led off in handcuffs and the prosecutor’s case file is shipped off to a government storage facility somewhere.

A person facing criminal charges should not have to rely on the integrity or goodwill of individual prosecutors, nor should the system be so reliant on happenstance to uncover Brady violations where they occur. The U.S. Supreme Court has fashioned judicially-imposed remedies, such as the exclusionary rule, to protect constitutional rights in other areas.  Failing action by Congress and state legislatures, it could do the same thing here.

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