Skip navigation
The Habeas Citebook Ineffective Counsel - Header
× You have 2 more free articles available this month. Subscribe today.

The Fair Punishment Project Details an “Epidemic of Brady Violations”

by Christopher Zoukis

The Fair Punishment Project (“FPP”), a criminal justice reform group, released a report in November 2017 detailing an “epidemic” of Brady violations taking place in criminal courts across the country.

The U.S. Supreme Court ruled in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny that the prosecution is duty-bound to disclose any information to the defense, before trial, all material relevant to guilt or punishment within the actual or constructive knowledge or possession of anyone acting on behalf of the government that could be favorable to the defendant. To do otherwise, ruled the Court, would offend notions of fair play and violate the Due Process Clause of the U.S.  Constitution.

“Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly,” wrote the Court. Prosecutors should not be the “architect of a proceeding that does not comport with standards of justice,” observed the Court.

Brady has been the law of the land for over half a century. But the Brady rule is routinely violated by prosecutors. The situation has grown so dire that Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit has written several editorials and law review articles on the problem. According to Kozinski, there is an “epidemic of Brady violations abroad in the land,” and “[o]nly judges can put a stop to it.”

It is not difficult to understand why Brady violations occur so frequently in the adversarial criminal justice system. A prosecutor wants to win, and may be loathe to turn over evidence that may undermine or even destroy his or her case. And as the FPP report explains, prosecutors who violate Brady very rarely face repercussions and “therefore have little external incentive to change their ways.” Clearly, there is a pressing need for some external incentives to curb the widespread violation of Brady since internal notions of obeying the rule of law and the concept of the fair administration of justice are utterly ineffective in driving the behavior of a disturbing number of prosecutors across the country. 

Prosecutors are generally immune from civil suits. They have absolute or qualified immunity for almost everything they do, often up to and including violating Brady. Moreover, state bar associations rarely discipline prosecutors. In New Orleans, 36 convictions have been overturned since 2015 due to prosecutorial wrongdoing. Nine of the reversals involved defendants on death row. Yet, according to FPP, defense attorney complaints filed with the Office of Disciplinary Council over prosecutorial misconduct are largely ignored.

Furthermore, voters rarely hold prosecutors accountable for egregious Brady violations. The FPP report details the case of Orange County, California District Attorney Tony Rackauckas, whose office was aware of a law enforcement snitch operation inside the county jails, but failed to tell defense attorneys that informants from the jail were put there by police. Rackauckas’ office was placed under investigation by the FBI in 2016, but he is still the elected DA in Orange County and is running for reelection. And San Diego Assistant DA Summer Stephan, who hid exculpatory photographic evidence from the defense in a case where a child was being prosecuted for murdering his sister (but was eventually exculpated by tests on blood spatter evidence), is currently the interim DA and is running for election in 2018, touting that she “did the right thing” by hiding exculpatory evidence from the defense. If her bid for DA is successful, how seriously will prosecutors’ Brady obligations be taken within the office? 

The Brady rule exists for a reason. The FPP report details three death row cases where Brady violations likely led to wrongful convictions. John Thompson spent 18 years in prison, 14 on death row, for a murder that he did not commit, in part because the Orleans Parish DA failed to turn over blood evidence that exculpated him. Michael Weary spent over a decade on death row for murder because prosecutors failed to turn over damaging information about the two eyewitnesses used to convict him. And Cameron Todd Willingham, whose conviction for killing his children by arson has been cast in doubt due to the use of now-discredited arson evidence, was not told that prosecutors gave a jailhouse informant a deal for his testimony in the case. Sadly, Willingham was executed in February 2004.

Jessica Brand, legal director of FPP, pointed out that the foregoing examples of wrongful conviction due to Brady violations could be replaced by hundreds of others. Indeed, The National Registry of Exonerations estimates that over 50 percent of wrongful convictions occur because of official misconduct.

“When prosecutors withhold evidence that they are duty bound to turn over,” wrote Brand in the FPP report, “they undermine the Constitution, the Supreme Court’s case law, and the premise of justice.” Nevertheless, there is evidence that prosecutors do so on a mass scale, but even when caught, there are rarely any consequences for them. The same cannot be said for many of the defendants in those cases who are often sentenced to decades in prison or even death. 



As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login



The Habeas Citebook: Prosecutorial Misconduct Side
CLN Subscribe Now Ad
Disciplinary Self-Help Litigation Manual - Side