Judicial Reports: Lexposition: Discovering a Joke

By Scott H. Greenfield
Posted 11-21-07

It's been more than 40 years since the U.S. Supreme Court enshrined the principle that due process demands true discovery. Laugh till you cry.

That William O. Douglas. What a kidder. Consider the laugh that he and fellow prankster, “Wild” Bill Brennan, must have had on May 13, 1963 when they announced the decision in Brady v. Maryland. And generations of criminal defense lawyers have been reliving the joke ever since.

Brady and its progeny offer the tantalizing prospect of due process by requiring the prosecution to turn over to the defense any evidence favorable to the accused. But with considerable glee, there was no mention by those merry jokesters of the mechanics by which this should happen. And so comes the really funny part.

The promise of Brady is left to the considerable integrity of the prosecutor. In the first of a series of choices, the police must initially decide whether to let the Assistant District Attorney know that evidence exists that may be favorable to the defendant. What makes evidence favorable? Well, that depends on who you are, which side you’re on, and what the likelihood is that anybody is going to find out about it later.

Even if we are to assume that the prosecutor would be inclined to turn over exculpatory evidence to the defense, he has to have it before he can give it. So if a slightly jaded cop felt that an ADA couldn’t be trusted to keep things close to the vest, then nothing that doesn’t further the prosecution will find its way into the file.

Once a piece of evidence creeps into the prosecutor’s hand, Brady only comes into play if he perceives it to be favorable to the accused. Favorable is determined by whether the prosecutor can make any credible argument that the evidence isn’t. Funny, right?

So let’s say that the cops bring back a confession, except it’s by someone other than the defendant. Is this favorable to the accused? Get real. Since the prosecutor believes the defendant committed the crime, the confessor is inherently incredible. A confession without credibility doesn’t help the defendant. Bury it in the file, baby.

But let’s say we get past the first step. The evidence is exculpatory or, as Brady’s nephew (Giglio v. United States) would put it, useable to impeach a prosecution witness. Then we have the fox guarding the henhouse dilemma. Do we trust the prosecutor to turn over to the defense evidence that could blow a hole in the case?

With smirkless face, I note that there are Assistant District Attorneys who will both identify Brady material and turn it over without a second thought. Justice Douglas complained of prosecutors who "tacked skins to the wall," but at least they didn't take all the fun out of decision like Brady.

But then there are the prosecutors who play the odds. What are the chances that the defense is ever going to find out that we’ve got evidence that the defendant didn’t do it? Short of somebody doing the unthinkable, spilling their guts at trial, chances are that no one will ever find out. Why? Ah, that’s what judges are there for.

This is where Douglas and Brennan proved themselves to be jokesters extraordinaire. Short of the judge rummaging through the drawers of the prosecutor’s desk, what’s she to do?  The defense moves for discovery of Brady material. The prosecutor responds with the usual acknowledgement of their solemn and continuing duty to provide same, and the judge shrugs.

But the judge doesn’t get off that easy, because there’s no decent joke without a punch line. When and if the shoe drops, and the existence of concealed Brady evidence spills all over the courtroom floor, everybody turns to look at the bench with faces frozen in anticipation. Does the judge boom outrage from the bench. Oh, come on now. You know better than that.

Sure the judge gets angry. After all, the prosecution just made him look like fool for having made the mistake of trusting them. And now, with a solid conviction on the line, it’s left up to the court to clean the mess off the floor. It’s no fun being the judge when there’s Brady to clean up. 

Using the most Wapneresque voice possible, the judge must now make sure that no bad faith be attributed to the prosecutor’s inadvertent failure to turn over the secret confession and, through the expert use of soothing words and faint praise, shift the onus onto the defense to make whatever use of the Brady they can. After all, “with a defense lawyer as brilliant and experienced as you (ahem), I’m sure you will use this evidence to effectively address your client’s defense. Proceed.” 

So what if you’re in the middle of cross-examining the most critical witness against the defendant and, given this Brady epiphany, a few months worth of investigation might be helpful. After all, in a perfect world, you never would have known the evidence existed. Be thankful that any Brady surfaced.

The harsh reality is that Brady is a right of the defense that is wholly dependent on the largess of the prosecution. Judges will invariably defer to whatever the Assistant District Attorney says. If he says there’s no Brady, then there’s no Brady. It’s a right without a remedy. The absolute worst that can happen to the prosecution is that they will be forced to turn it over. The punishment for suppressing the evidence? At most, a very stern look from the judge. 

Even when faced with a specific claim that Brady evidence exists (which oddly enough happens from time to time when the defense learns from a witness what he said to the cops), the judge will turn to the prosecutor for her decision. You see, as mush as due process may demand that any exculpatory evidence be provided the defendant, the harsh reality is that it’s only a big joke played in the courtrooms of New York every day, solely contingent on the integrity of the particular individuals involved on the side of the prosecution or a fortuitous turn of events. Those Supreme Court Justices. What a bunch of cut-ups.

Scott H. Greenfield is (no surprise here) a defense attorney. 

Posted by Dirk on November 21, 2007 01:50 AM to Judicial Reports