Thursday, May 10, 2018

"Prosecutorial misconduct — especially the unlawful withholding of exculpatory evidence from the defense — is rampant across the country, yet prosecutors themselves are hardly ever held accountable."

That's a quote from this Cato Institute article on prosecutorial misconduct.  This is one of the dirty little secrets of the criminal justice system.  Nothing happens when prosecutors withhold Brady...
Prosecutorial misconduct — especially the unlawful withholding of exculpatory evidence from the defense — is rampant across the country, yet prosecutors themselves are hardly ever held accountable. Internal discipline does little to nothing, criminal prosecutions are incredibly rare, and — thanks to the Supreme Court’s invention of the doctrine of absolute immunity — prosecutors can never be held civilly liable, even for the most egregious, willful misconduct. This is all the more troubling because prosecutors wield enormous power in our criminal justice system, especially given the immense leverage they can bring to bear on defendants to coerce them into accepting pleas. In light of this background, it is crucial for the SJC to issue broad relief — in particular, to issue standing orders that compel pre-plea compliance with the disclosure obligations of Brady v. Maryland, and that provide for meaningful discipline and sanctions if prosecutors fail to meet these obligations.

One major problem is that there is absolutely no deterrence at all, either to prosecutors themselves for the misconduct (if you ask OPR, there has never been an intentional case and nothing even happens even when a judge finds misconduct) or to the cases when misconduct occurs (because the prejudice standard is made to be impossible). Why don’t all prosecutors have open-file, turn over witness statements and grand jury testimony, etc. It’s not because of concerns of witness safety (when is the last time something happened to a witness?); it’s because of the desire to win. The same thing for bail— why ask for detention... not because of any real fear that the defendant will run (that happens in a statistically insignificant number of cases); it’s for a desire to win. The same for arguing for monster sentences after trial. It’s done to convince people to plead. These incentives cause huge problems. 

It's not a surprise that the U.S. has the largest incarceration rate in the world.  The criminal justice system needs to be revamped to address these issues.  Until that time, we need judges to step up -- order disclosure of material (and not just say that the prosecutors know what their obligations are); grant bail (and not detain so many presumed innocent defendants); give reasonable sentences even after trial (so that the risks of trial don't result in 97.5% of cases pleading out, which means that innocent people are pleading).  And on and on.  Please excuse the rant.




17 comments:

Anonymous said...

The reason judges don't order compliance with Brady is to prevent non-compliance from turning into a contempt charge, protecting their old offices. See Special Counsel investigation of Prosecutors in US v. Senator Ted Stevens.

Anonymous said...

I wonder if the OPR for the USAO for the Southern District of Florida found that Sean Paul Cronin did not intentionally commit prosecutorial misconduct. Any non government lawyer who practices the way Mr. Cronin did would lose their license, in a heartbeat.

No. 09–12129 D.C. Docket No. 08–20112–CR–ASG

Anonymous said...

Isn't Brady compliance already in the standing discovery order?

Anonymous said...

No, the reason judges don't order compliance with Brady is that they never fully complied with Brady when they were prosecutors and see nothing wrong with it.

Anonymous said...

Dude Brady is totally in the SDO you are way off here.

Anonymous said...

Exactly the point.

The SDO isn’t a ‘real order’

Anonymous said...

Judges don't order Brady compliance because Brady means more trials. Ans judges don't want trial, they want pleas.

Anonymous said...

805

Have you ever asked for a 'real order', whatever you mean by that, requiring Brady disclosure?

What was the result?

Please provide the pacer cite so we all can figure out what point you are making.

Anonymous said...

Just look at the special counsel investigation into US vs Sen Ted Stevens.

They ‘skated’ on contempt charges due exactly to the judge refusing to order Brady compliance.

The standard line is: I’m not going to order the government to produce Brady material, they know the law.

Anonymous said...

Do you think prosecutorial misconduct is rampant SDFLA? If so why not name names?

Anonymous said...

Why ask for no bail? You appear to have ignored the other basis for PTD--danger to the community.

Anonymous said...

Wow. Someone is really fixated on the Ted Stevens case.
I think there is a greater miscarriage of justice carried on daily against poor defendants, especially people of color and immigrants.
I guess they just need better publicists.

Anonymous said...

That office is a walking Brady violation

Robert Kuntz said...

I teach PR to law students. I tell them, if they want to see what the practice unregulated looks like, they should consider federal prosecutors. Plenty of fine, ethical, decent folks -- but essentially no means to hold the outliers accountable. If judges, with Article III lifetime appointments, won't step up to do so, little hope that legislators with only attenuated influence on the executive anyway (and sure to be labeled "soft on crime" if they try) will provide a remedy.

As I tell the students: The current circumstance is not the fox guarding the hen-house; it is the fox guarding the fox den.

Anonymous said...

is anyone guarding the hen house?

Anonymous said...

If it can happen to the nation's longest serving Senator, it can happen to anyone.

Anonymous said...

There's no consequence, Brady withholding or outright lying goes on unpunished regularly here.

Even perjury is OK, if you're LEO. It's barely discoverable, to protect it from future disclosure.