If you ask a criminal defense lawyer what the most important cases are, she’s liable to include Brady v. Maryland if only because every time she files a discovery request on the government it includes a reference to Brady’s requirement that the government turn over any exculpatory information in its files to the defense.
We’re celebrating the 50th anniversary of Brady. It seems like only yesterday we were celebrating tine 50th anniversary of Gideon. In a few years, we’ll also be celebrating 50 years of Miranda. These are kind of the trifecta of criminal defense cases – the first deals with discovery, the second deals with right to counsel, and the third deals with interrogations.
What was happening 50 years ago? Earl Warren was the chief justice, an Eisenhower republican appointee, former governor of California, and former District Attorney of Alameda County.
In that last role, it is said that he dealt very fairly with defense counsel: “The public defender admitted that Warren never brought people into court unless he could prove they were guilty. Nothing troubled him more than the possibility that he might be sending an innocent person to jail. His instructions to his staff were: “Get the facts honestly and don’t color them. If the facts are there, you can proceed. If they’re not, we don’t want them. Be fair, courteous and never go against your honest instincts.”
If true, that explains some of the opinions his Court handed down. But these opinions have always been much less than they appear. Warren was, in spite of having what appears to have been a good soul, a man of the system.
Take Brady, for instance, which on its face appears to give the Defense anything that may be exculpatory (held in later cases to be beneficial to the defendant in terms of both the facts and sentencing). Theoretically, this would be a great deal of information. For instance, a DWI report that indicates that the defendant failed on four of 10 clues should fall under Brady’s exculpatory rule since it indicates that the defendant pass on 6 of 10 clues. Good stuff goes to the defense!
In reality, however, Brady puts the prosecutor in the role of the gatekeeper. Since the prosecutor is an advocate for one party in the contest, the prosecutor’s natural incentives, strictly speaking, can be in at odds with the prosecutor’s obligation to turn over exculpatory material to the Defendant.
A secondary problem is that because the prosecutor is usually the only lawyer who every looks at and decides whether something is exculpatory, if the prosecutor withholds the material, we only have the prosecutor’s say-so that the material that was never turned over was in fact not exculpatory.
These twin problems of Brady – the gatekeeper function and the transparency factor – mean that Brady‘s promise is unfulfilled.