Monday morning

The NY Times explains how discovery and sentencing are broken in the criminal justice system. But this is old news, no?

On Brady:

The current Brady rule requires prosecutors to make two judgments: Is evidence favorable to the defendant? If so, is it likely to affect a decision about guilt or punishment? Too often, prosecutors avoid disclosing evidence by answering no to the second question.

In ruling on the Smith case, the court should refine the Brady rule by eliminating the second question and requiring that prosecutors hand over all favorable evidence. Let a judge or jury weigh its importance.

On Sentencing:

The racial disparities in sentencing are also stark. In some cases, mandatory minimums can be reduced for offenders if the crime did not involve violence or a gun. But most African-American drug offenders convicted of a crime carrying a mandatory minimum sentence could not meet these and other requirements: only 39 percent qualified for a reduction compared with 64 percent of whites.

The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.” Not “may.” Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

New boss, same as the old boss? (UPDATED)

So, Eric Holder has been saying all the right things about criminal discovery issues and has even issued guidelines to line AUSAs about more liberal disclosure, but there is increased grumbling amongst defense lawyers and judges that nothing has really changed (and in many cases, has gotten worse). In fact, DOJ is lobbying hard against changing Rule 16 to allow for more liberal disclosure of Brady/Giglio material.

I don't typically blog about my cases, but here's my most recent experience with this issue (without naming names): I was in court last week where DOJ was taking the position that even though their two critical witnesses lied to the grand jury, they did not need to disclose the grand jury testimony because Jencks trumped Brady. I kid you not. Needless to say, the district judge disagreed. But is this really the sorts of positions that DOJ should be taking?

Here's an op-ed by Jim E. Lavine and Ellen S. Podgor about DOJ not practicing what it preaches:

The practice of prosecutors failing to abide by constitutional and ethical
standards in providing important materials to the defense is not unique to
these cases, but it is particularly problematic to see when prosecutors are
then turning around and charging crimes against others who allegedly do the
same thing -- fail to give the other side materials they believe are
important to their investigation.

That’s exactly what they did when they decided to indict a former vice-president and associate general counsel of Glaxo-Smith Kline. Prosecutors charged her with crimes that included obstruction of justice and concealment of documents from an FDA inquiry, arguing that the counsel failed to provide materials to the federal agency.

The problem here is clear. The three new policies of the Department of
Justice are all internally controlled, provide for no external monitoring
and allow each local United States Attorneys’ Office to set up their own
discovery policies for their individual office. There is no real
oversight.

In fact, the Department of Justice has opposed making any rule changes that
would include some outside scrutiny. How many chances should they get?


Update -- Here is the proposed amendment to Rule 16 that DOJ opposes. Someone explain to me why this is controversial:

Rule 16. Discovery and Inspection
(a) GOVERNMENT’S DISCLOSURE.
(1) INFORMATION SUBJECT TO DISCLOSURE.
* * * *
(H) Exculpatory or Impeaching Information. Upon a defendant’s request, the government
must make available all information that is known to the attorney for the government or agents of law enforcement involved in the investigation of the case that is either exculpatory or impeaching. The court may not order disclosure of impeachment information earlier than 14 days before trial.

Unbelievable

5-4 per Justice Thomas in Connick v. Thompson:

Held: A district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation.

One reason given is that lawyers learn enough about Brady from law school and the bar exam. Justice Ginsburg for the dissenters rightfully blasts this: The Court nevertheless holds Canton’s example inapposite. It maintains that professional obligations, ethics rules, and training—including on-the-job training—set attorneys apart from other municipal employees, includingrookie police officers. Ante, at 12–15. Connick “had every incentive at trial to attempt to establish” that he could reasonably rely on the professional education and status of his staff. Cf. ante, at 10, n. 6. But the jury heard and rejected his argument to that effect. Tr. 364, 576–577, 834–835.

The Court advances Connick’s argument with greater clarity, but with no greater support. On what basis can one be confident that law schools acquaint students with prosecutors’ unique obligation under Brady? Whittaker told the jury he did not recall covering Brady in his criminal procedure class in law school. Tr. 335. Dubelier’s alma mater, like most other law faculties, does not make criminal procedure a required course. Connick suggested that the bar examination ensures that new attorneys will know what Brady demands. Tr. 835. Research indicates, however, that from 1980 to the present, Brady questions have not accounted for even 10% of the total points in the criminal law and procedure section of any administration of the Louisiana Bar Examination. A person sitting for the Louisiana Bar Examination, moreover, need pass only five of the exam’s nine sections.23 One can qualify for admission to the professionwith no showing of even passing knowledge of criminal law and procedure.

The majority’s suggestion that lawyers do not need Brady training because they “are equipped with the tools to find, interpret, and apply legal principles,” ante, at 17– 18, “blinks reality” and is belied by the facts of this case. See Brief for Former Federal Civil Rights Officials and Prosecutors as Amici Curiae 13. Connick himself recog-nized that his prosecutors, because of their inexperience, were not so equipped. Indeed, “understanding and com-plying with Brady obligations are not easy tasks, and theappropriate way to resolve Brady issues is not always self-evident.” Brief for Former Federal Civil Rights Officials and Prosecutors as Amici Curiae 6. “Brady compliance,”therefore, “is too much at risk, and too fundamental to the fairness of our criminal justice system, to be taken for granted,” and “training remains critical.” Id., at 3, 7.

Here's the AP article.