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Monday, February 27, 2012

Justice and Open Files

Justice and Open Files
EDITORIAL - The New York Times  -  February 26, 2012

Prosecutors have a constitutional duty to disclose significant evidence favorable to a criminal defendant. But too often that duty, as laid out by the 1963 Supreme Court decision Brady v. Maryland, is violated.  To help ensure compliance, some prosecutors, criminal defense lawyers and legal scholars have sensibly concluded that prosecutors’ files, as a general rule, should be made open to defendants. In cases where turning over evidence might endanger a witness, for example, a judge could allow an exception.  A small number of state and local governments have adopted open-file policies that require prosecutors to make available well before trial all information favorable to the defense, without regard to whether such information is likely to affect the outcome of the case. North Carolina and Ohio and places like Milwaukee have found that such policies make prosecutions fairer and convictions less prone to error. The Justice Department should join this movement and set a national example. But instead, it continues to take half-measures in response to its own failures to meet disclosure requirements.  It responded to several cases of Brady violations by its attorneys — including egregious misconduct in the case of the late Senator Ted Stevens — by providing more training and by directing each United States attorney’s office to set forth clearly its version of the department’s Brady policy, which is to turn over favorable evidence only if it is “material,” meaning likely to make a difference in the case’s outcome.  Those changes are not sufficient because the Brady rule is too easily skirted. It allows prosecutors to withhold favorable evidence that they deem not to be material, leaving defense lawyers unaware of evidence that may be owed them. Ninety-six percent of federal criminal cases are resolved by plea bargains, so the rule puts defendants at a disadvantage in negotiation: without access to information in the government’s files, they don’t know the evidence they face and can’t assess their odds at trial.  This weakness in the Brady rule also means there is no way of knowing how many violations are buried by plea bargains. The few that become known, through trials or post-trial challenges, are no index of the problem’s true dimensions, but they can show how deeply rooted it is.  After the Justice Department dropped the case against Senator Stevens in 2009 because of prosecutorial misconduct, including the withholding of exculpatory evidence, Judge Emmet Sullivan of the Federal District Court in Washington, D.C., chose to appoint outside counsel to investigate what went wrong rather than trust the Justice Department to do it.  In 2009, Judge Mark Wolf in Boston likewise found that the long-standing problem eroded his trust in federal prosecutors. “In the District of Massachusetts,” he wrote, “the government has had enduring difficulty in discharging its duty to disclose material exculpatory information to defendants in a timely manner.”  In both the federal and state court systems, it is essential that rules about disclosing evidence be followed in ways that promote justice. An open-files policy would come closer to meeting this important standard.


a victim said...

We don't hear enough about the prosecutorial misconduct going on- state and federal. Can you really trust that the Department of Justice will embarrass itself by exposing how bad it really is?

Rat Catcher said...

The NY Times finally discovers there's something rotten in the courts after smelling the stink for forty years in NY? This is just a diversionary piece to make-believe injustice, judicial/court corruption, and the evil of Appellate and Court of Appeals malfeasance would be reported, but the NY Times like Rick in Casablaca, is totally unaware of it. The NY Times is polluting, even at the bottom of bird cages.

Anonymous said...

Gee, it's about time with the NYT! And to think that a few federal Judges even have come alive! The only thing the US Atty's and their crew care about is their next career move and they fix anything and everything they can to that end! It's an open secret, and no one gives a damn! By the while the ADA's all run the same game! The only way to stop these criminal acts is to take away (forever) their licenses to engage in the alleged practice of law - the oldest profession in the world! This would stop in a nano second!

Anonymous said...

OR CUT THEIR FUCKING HEADS OFF !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Anonymous said...

Open Files, sure like totally open, like the court dumps the files so there is no record and you get screwed again - that's when they get jammed up - GO TO JAIL AND DON"T STOP!

Kris Sergentakis said...

In my criminal case the Asst. US Attorney flated refused to turn over Brady material.

But the Judge allowed this then deleted it off the transcript.

"In the interests of Justice"

Ha ha

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