Prosecutors Must Play Fair: Are We Any Better Off on the 50th Anniversary of the Brady Decision?

In any criminal case, whether in Federal Court or one of the State Court systems, prosecutors are supposed to “play fair”. The Fifth Amendment to our dear Old Constitution enshrines this fairness obligation in what we lawyers call the “Due Process Clause.” Yesterday was the 50th anniversary of the day in 1963 when the United State Supreme Court issued its landmark ruling of Brady v. Maryland. That was the case in which, for the first time, the Supreme Court said that the Due Process Clause mandates that a prosecutor play fair by telling the defense about any exculpatory evidence, or evidence that tends to show that the defendant was not guilty. However, as basic as this obligation seems to be, I often wonder if our clients are that much better off than 50 years ago.

Like defendants in many famous Supreme Court cases, John Brady was no saint. On June 27, 1958, he and Donald Boblit robbed and killed a man named William Brooks. Boblit quickly confessed that he had strangled Brooks to death, and that he acted alone. However, the prosecutors handling the case against John Brady never informed the defense attorneys about this confession and never turned over the transcript of Boblit’s remarks.

Both Boblit and Brady were convicted and sentenced to death. Only after the trial did Brady’s lawyers discover that prosecutors had a confession from Boblit that helped exonerate Brady. The attorneys found out by reading a transcript of Boblit’s trial. So, Brady’s attorneys sensibly asked for a new trial. The trial judge refused. Next, the Maryland Court of Appeals concluded that the suppression of the confession violated Brady’s Due Process rights, but said he was only entitled to a new sentencing trial. Because his lawyers believed the whole trial had been tainted, they asked the United States Supreme Court to look into the matter.

The justices used Brady’s case to memorialize a constitutional rule that imposed on prosecutors the affirmative duty to share with criminal defendants evidence that by its very definition would undermine the prosecution’s case. The motives behind the suppression of the evidence didn’t matter. However, in later years the Supreme Court greatly reduced the impact of this landmark ruling, by holding that an unfair prosecutor who hides exculpatory evidence will not cause a new trial unless that hidden evidence was “material”. Evidence is material, only when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” This was a big victory for prosecutors and an even bigger defeat for aggrieved defendants.

As a young lawyer, I was kind of shocked about how the Brady rule is played out in a real case. I would always ask the Judge to make the prosecutor turn over the “Brady materials.” The prosecutor would routinely roll his or her eyes, and intone that the government was well aware of its obligations, and that was it. The judge never made any inquiries, and I was left with the distinct impression that the Brady rule is merely an example of the fox guarding the henhouse. Why would a prosecutor ever turn over evidence that helps the Defendant if the prosecutor truly believes the Defendant is guilty? Furthermore, even if a prosecutor is not trying to hide anything, it seems ridiculous to ask that same prosecutor to figure out if a piece of evidence is potentially exculpatory, in that the prosecutor does not really know where the defense is going. Federal court is the worst of all, in that the discovery rules do not make a prosecutor turn over very much at all, and so no one really knows if there is some truly good defense evidence lurking in the files of one of the investigators.

Not only does the Brady rule seem to fall flat in real cases, it seems that when a prosecutor is caught withholding evidence, very little is done. Prosecutors who violate the obligation to disclose favorable evidence are rarely sanctioned by courts, and almost never by disciplinary bodies. I remember one case where I caught the prosecutor red-handed. Fortunately, my client was acquitted. When I complained about the prosecutor’s violation, his boss shrugged, saying “Why does it matter, you walked your man didn’t you?” That attitude seems to still prevail 50 years after the Brady decision was issued. Things might be better if all prosecutors would simply use an “open file” discovery system, but for some reason, they often are reluctant to do so. That is truly bizarre, since when there is a fight over money, each side has to make full disclosure to the other, but when freedom (or even the death sentence) is at issue, one side gets to hide the ball and only has to turn over exculpatory evidence when it is “material.” Have we really improved since 1963?