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Arrogance and obstruction have no place when it comes to exculpatory evidence

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Arrogance afflicts all but a handful of people.

In the criminal courtroom, prosecutors are at risk of all the more arrogance because of their privilege, power, and excessive deference they receive from too many judges and other courthouse personnel.

I still remember the day around a year ago when a bailiff in a Maryland District Courtroom started pushing me out of the well of the courtroom almost a split second after starting to say "Clear the well" as the judge entered the courtroom. This was the first time I either witnessed or suffered such an assault by a bailiff. I was in the well for the same reason many of my criminal defense colleagues were there, which was to talk to the prosecutor to determine whether their cases were going to trial and to sort out remaining discovery matters.

The prosecutor was the one lawyer that this assaultive bailiff never would have thought of pushing out of the courtroom well. In every criminal courtroom where I practice, prosecutors are permitted to park themselves at a table in the well of the courtroom throughout the courtroom proceedings. Perhaps that is practical, because the prosecutors handle most of the prosecutions. However, it is not right when judges and courtroom security enforce a one-way street of allowing prosecutors to roam freely in the courtroom to talk with defense lawyers, but not to permit defense lawyers to walk up to the well o to sit in a chair in the well to see if the prosecutor will talk with the lawyer.

Prosecutors are entitled to no more deference than any other lawyer in the courthouse. Such deference by judges and courthouse personnel to prosecutors can go to their heads.

Prosecutors are obligated promptly to turn over exculpatory evidence to the defense. Specifically, "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83 (1963). Despite the forgoing rule, I have had more than one Virginia prosecutor shamelessly, and even dismissively, argued to keep a Brady provision out of my proposed discovery orders, saying that a Brady provision exceeds the scope of Virginia’s governing discovery rule, or that the discovery order is not the place to tell prosecutors the obligation they already have under Brady.

Such prosecutorial responses are infuriating, whether or not resulting from arrogance, ignorance, arrogance bred from ignorance, or a feeling of prosecutorial power fiat. For one thing, as a Supreme Court rule, Brady cannot be limited by state court rules. For another thing, Brady says that exculpatory evidence is only due "upon request." If Brady is omitted from the discovery order, what good is my letter demanding Brady material from prosecutor’s offices that routinely do not get my Brady letters into the hands of the prosecutors handling my cases on the day of court?

The fifty-year-old Brady rule, issued forty-two days after my birth, is here to stay. For prosecutors to avoid running afoul of Brady, they should both overdisclose evidence, ad over-investigate evidence, starting with assuring that police are fully educated in Brady and checking early on and frequently with police for Brady evidence. How do you think I felt when a prosecutor told me only three days before a critical suppression motion hearing in a drug felony case that I ultimately won before a jury, that video footage existed of most of my client’s onsite interactons with the cops on his arrest date (in a county where plenty of police and their vehicles lack video equipment)? I was at once overjoyed by the great exculpatory gems in the video, and sobered by the number of times that such exculpatory evidence never sees the light of day. This video disclosure came over five months after my client’s arrest. Why had it not been turned over earlier?

Brady violations take place when prosecutors and cops misunderstand Brady, disagree on what evidence constitutes Brady evidence, lack of diligence, overwork, lack of concern, negligence, recklessness, and outright hiding the ball.

Watch what happens when a criminal defense lawyer asks a judge to independently review withheld prosecutorial evidence in chambers/in camera (and I am not talking Nikon nor Kodak) to determine whether any of the evidence is Brady material. Invariably, judges will tell me that such reviews are outside the scope of their role, and that prosecutors, as members of the Bar, should be given the province to determine for themselves what is Brady.

Praised be the Ninth Circuit’s Chief Judge Alex Kozinski (a Reagan appointee, thus countering the dismissive claims of so many prosecutors in trial court about Ninth Circuit opinions being unreliable, read "liberal", on the claim that the Ninth Circuit so often gets overturned) yesterday for calling out rampant Brady violations:

I wish I could say that the prosecutor’s unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors’ offices across the country. But it wouldn’t be true. Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend… We must send prosecutors a clear message: Betray Brady, give short shrift to Giglio, and you will lose your ill gotten conviction.

U.S. v. Olsen, ___ F.3d ___ (9th Cir., Dec. 10, 2013) (Kozinski, C.J., dissenting from denial of a full panel rehearing of a three-judge panel giving a pass on a serious Brady violation (joined by four judges)).

A prosecutor who displays some of the best aspects of a good prosecutor (honest, civil, fair, and a respectful listener) recently told me he likes my Underdog blog. I am happy that prosecutors are reading such blog entries as today’s Brady piece.

This particular prosecutor is likely among the last who needs to read this blog entry, but plenty of other prosecutors and cops need to see and internalize it, without delay.