Six weeks after my birth, the United States Supreme Court issued the landmark opinion of Brady v. Maryland, 373 U.S. 83 (1963), requiring prosecutors to disclose material exculpatory evidence upon the request of the defense: "We now hold that the 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 , 373 U.S. at 87. Therefore, Brady is a sword for the criminal defense in seeking exculpatory evidence, and a shield for seeking court relief when Brady is violated.

Absent judicial in-chambers review of prosecutors’ evidence, prosecutors are left to decide what is or is not Brady evidence, in the middle of already long and often exhausting workdays for line prosecutors, often filled with heavy caseloads. Consequently, when prosecutors fail to disclose Brady evidence, reasons for the non-disclosure can run from lack of intent, to multiple demands on time, to differing interpretations of Brady (running from honest to disingenuous interpretations of Brady), to overlooking that certain evidence is Brady evidence, to outright intentional concealment of evidence. 

How is a criminal defense team to know whether Brady has been violated beyond learning of previously-undisclosed Brady evidence when it comes to light in the courtroom? Starting points include thorough investigation; digging, digging, and more digging; and being open to those wanting to provide ideas and evidence to the defense team, even when the speakers’ motive is suspect or mental stability is in question.

Brady violations were so rampant in the prosecution of late and former Alaska senator Ted Stevens that Attorney General Eric Holder successfully asked the trial judge to set aside his conviction.

Yesterday, Stevens’s trial judge, Emmet G. Sullivan (D.D.C.) gave a glimpse into an exhaustive investigation into the prosecutorial misconduct in Mr. Stevens’s prosecution. Judge Sullivan’s November 21, 2011, order gives the government the opportunity to seek to withhold portions or all of the report from the public. However, the Change president’s administration should not stand for that.  

Please urge President Obama (here) and Attorney General Holder (here) not to stand in the way of disclosing this report on prosecutorial misconduct in the Ted Stevens case.