Is it just me or are we seeing more and more ethical violations by prosecutors these days? Sure seems like it. Despite the clear and unequivocal language of Brady v. Maryland, SCOTUS’ nearly fifty-year old seminal decision recognizing a defendant’s fundamental right to any favorable information that might prove his innocence and a prosecutor’s duty to disclose it, some prosecutors continue to ignore it altogether or, at the least, honor it solely in the breach . For example, we’ve learned just this week that the Department of Justice (DOJ) has known for more than 8 years that a related study by the Inspector General established that forensic analysis of hair strand, follicle, and/or fiber evidence has been deeply flawed and resulted in false matches, and that related Crime Lab identifications were often based on false statistics. However, instead of sharing this information with the public, and more importantly with convicted prisoners impacted by such evidence like a Maryland man serving life in prison for a double murder, the results of the study were disclosed only to prosecutors, who did not bother to inform affected inmates after learning about it. Another example was seen back in January where SCOTUS was forced to overturn the murder conviction of a New Orleans man because the prosecution never informed the defense that the sole "eyewitness" originally said he could not identify the perpetrators. Still another egregious example is found in the 2008 DOJ prosecution of former Alaska Senator Ted Stevens where his conviction on various ethical violations was thrown-out by the trial judge due to "egregious prosecutorial misconduct" including withholding evidence, providing misleading information and permitting false testimony. Here in Boston, a few years ago, the Chief Judge for the District of Massachusetts took the unprecedented step of publicly admonishing an Assistant US Attorney for failing to disclose that a police officer’s sworn testimony in a gun case contradicted what he had previously told the same prosecutor prior to a suppression hearing. And in a case I was handling locally, I was stunned (but not surprised) when certified Emergency Records that the prosecutor claimed never to have subpoenaed or even looked at, which I had to summons myself, turned out not only to be wholly inconsistent with the complainant’s sworn testimony but also had nothing to do with the alleged assault she swore she had sought medical treatment for. Needless-to-say, I didn’t buy the prosecutor’s claim then about not having seen them (What prosecutor indicts a serious assault case without bothering to obtain supposedly related treatment records?), and I don’t buy it now. So to paraphrase an old rallying cry, what can be done, or more appropriately, what should be done? Well, a good start would be mandating that prosecutors at any level undergo training about their constitutional duty to share favorable evidence as the Chief Judge in Boston contemplated. Another is to remove prosecutors—especially those increasingly falling into the "win at all costs" category—from the unilateral decision-making process regarding what might be favorable and instead requiring them to submit any "close" or questionable evidence to the trial judge ex parte, so the judge can makes the final call instead. But really, the best way to address what has truly become an unacceptable situation is to once and for all legislate the underlying duties and obligations. This is precisely the premise of the Fairness in Disclosure of Evidence Act sponsored by Senator Lisa Murkowski of Alaska. The bi-partisan bill is expressly designed to clarify (for short-sighted prosecutors and tin-ear judges) not only what evidence must be disclosed and when it must be disclosed, but also the specific remedies (consequences) for non-disclosure. It’s funny to talk about the need to codify a bright-line Constitutional mandate that’s been a part of the National Lexicon for almost 50 years as being long-overdue, but there’s not much humor in any of this for those individuals repeatedly affected by unscrupulous prosecutors (think also the wrongfully accused Duke University Lacrosse Players) and unrepentant violators of one of the core principles of our Criminal Justice System, the right to receive any and all exculpatory evidence known to the prosecution.
If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828