The Politics of Justice: Revisiting Brady

In 1963, a team of Maryland prosecutors failed to disclose an admission by homicide defendant Donald Boblit, setting in motion a case that would eventually establish one of the most important legal checks to prosecutorial misconduct in American jurisprudence. After litigation in county and appellate courts, the Supreme Court published its opinion in Brady v. Maryland. The decision and its progeny aspired not only to buttress the Due Process clause of the 14th Amendment, but also to reaffirm our nation’s commitment to providing a fair judicial process.

Boblit and his accomplice, John Brady, were charged with the robbery and murder of their acquaintance, William Brooks.[1] Brady testified that Boblit was responsible for the killing, but both were sentenced to death. During discovery, Brady’s defense attorneys subpoenaed all of Boblit’s extrajudicial statements from prosecutors. Upon receiving four statements, the defense counsel for Brady proceeded with trial. Following conviction, Brady’s newly appointed lawyer discovered a fifth statement that had previously been withheld from defense attorneys: Boblit’s confession to bludgeoning the victim to death with a shotgun.[2]

Brady’s lawyers used the prosecution’s suppression of this exculpatory statement to petition for retrial, but the Maryland Court of Appeals was not persuaded. Brady petitioned again, this time for certiorari. The Supreme Court heard Brady’s case and affirmed that his access to due process had been restricted, codifying 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.”[3]

While Brady certainly established itself among landmark Supreme Court cases, the decision raised as many questions as it assuaged concerns. Although it forbade the withholding of exculpatory evidence from defendants, Brady highlighted the lacuna between what is written in our sacrosanct laws and what is enforced in practice. The perennial legal question arose again: how is our judicial system to enforce the laws it has limned into our legal code?

Enforcing Brady has proved challenging, largely because preventative solutions to Brady violations are nearly impossible. Such solutions require defense attorneys to have supernatural clairvoyance, to be aware of evidence they never received. Moreover, as Steven Benjamin, president of the National Association of Criminal Defense Lawyers, argues, “Brady relies upon police and prosecutors to locate and identify information that could cast doubt on a defendant’s guilt. The problem is that those are the people with the least motivation and least ability to do so. If they’re trying someone, they believe he is guilty. So they’re viewing all the evidence [through] the prism of confirmation bias.”[4]

Retroactive solutions to Brady violations are similarly discouraging. By the time defense attorneys realize they were deprived of evidence in discovery—a massive undertaking in and of itself—the trial is likely already in full-swing or has concluded. Months of trial proceedings are in the books, the jury has completed their arduous civil duty; a judgement has been reached. Convincing a judge that one statement, one photo, one admission would change the course of a trial is a near Herculean task.

What’s more, in its 1963 decision, the Supreme Court took care to avoid setting a punitive standard for Brady violations. The Court determined that the violation of due process is derivative to the nature of the suppressed evidence, not to the intentions of the prosecutors. In other words, the Constitutional violation occurs independently of a prosecutor’s intent, and therefore the remedy ought to avoid penalizing the prosecutor. In most cases of Brady violations, offending prosecutors are not named and District Attorney offices are not held accountable.[5] To this point, a study by the University of San Francisco Law Review estimates that less than 1 percent of offending prosecutors are disciplined, creating a culture that allows or even encourages miscarriage of justice via prosecutorial impunity.[6] Why is this precedent so dangerous? The answer requires a closer analysis of the American District Attorney’s Office.

In no place is the bond between politics and justice more apparent than in the District Attorney’s office. Although the prosecutor and the politician occupy separate roles, the distinction is increasingly blurred.[7] Serving as a prosecutor who is “tough on crime” and who carries an almost-too-earnest commitment to the betterment of the community has proven a successful strategy for household-name politicians from Jeff Sessions to Kamala Harris and John Kerry, all of whom held District Attorney titles. In over 38 states, an attorney general, governor, or senator in the last ten years was once a prosecutor. In the last ten years, 10 percent of Senators and 19 percent of governors in the United States were once prosecutors.[8]

Simply put, there is motive to violate Brady. There is motive to “lose” exonerating needles of evidence in the haystack. Ethics, morals, and decency aside, this makes sense. After all, what makes for better optics than a civil servant whose career has rid us of criminals? The National Registry of Exonerations estimates that over 50 percent of wrongful convictions result from governmental misconduct.[9] To be sure, prosecutors are a vital cog in our criminal justice machine. The question, however, remains: if they check crime, who checks them?

Remedies for Brady violations are difficult to fashion because they must find compromise between the impossibility of preventative solutions and the ineffectiveness of current retroactive measures. Some jurists advocate for in-trial solutions, where the jury is promptly informed of the Brady rule whenever a defendant becomes aware of suppressed material evidence.[10] Others propose punitive measures for offending prosecutors. Between 1996 and 2009, North Carolina adopted a series of laws that mandate “open-file discovery,” a solution that, as UNC Law Professor Robert Mosteller suggests, does “not rely on the ethical judgment of a prosecutor involved in a fiercely competitive adversary trial process to determine what is exculpatory. Instead, they impose a blanket rule of general disclosure.”[11] Unlike current laws which give prosecutors the discretion to hand over evidence they deem material to the defendant’s case, open-file discovery mandates the disclosure of all evidence bearing to the crime.

In an era of mercurial politik, checks on governmental misconduct are paramount. Ironically, the responsibility and ability to enact positive reform lies almost exclusively within the courts and Congress. Both should seriously reconsider the written and unwritten rules of criminal trials. Their actions will answer the aforementioned question. Who checks prosecutors? Until we establish a framework that holds prosecutors accountable, the answer remains: no one.

[1] "Brady v. Maryland." Oyez. Accessed August 8, 2018.

[2] Bibas, Stephanos. "The Story of Brady v. Maryland: From Adversarial Gamesmanship Toward The Search for Innocence?" Penn Law: Legal Scholarship Repository, 2005.

[3] Kemp, David S. "Brady v. Maryland, 373 U.S. 83 (1963)." Justia Law. Accessed August 08, 2018.

[4] Balko, Radley. "Landmark Case Turns 50 -- But Defense Attorneys Aren't Celebrating." The Huffington Post. May 13, 2013. Accessed August 12, 2018.

[5] Balko, Radley. "The Untouchables: America's Misbehaving Prosecutors, And The System That Protects Them." The Huffington Post. December 07, 2017. Accessed August 08, 2018.

[6] Gregory, Brian. "Brady Is the Problem: Wrongful Convictions and the Case for “Open File” Criminal Discovery." May 16, 2012.

[7] "Prosecutor or Politician?," The Economist. January 13, 2010. Accessed August 08, 2018.

[8] Sawyer, Wendy, and Alex Clark. "New Data: The Rise of the "prosecutor Politician"." Mass Incarceration: The Whole Pie 2016, Prison Policy Initiative. Accessed August 08, 2018.

[9] Zoukis, Christopher. "Criminal Legal News Dedicated to Protecting Human Rights ." Criminal Cops: Tracking Crimes Committed by Police Officers, Criminal Legal News. January 19, 2018. Accessed August 08, 2018.

[10] Dewar, Elizabeth Napier. "A Fair Trial Remedy for Brady Violations." Yale Law Journal, 5th ser., 115, no. 6 (2006).

[11] Mosteller, Robert P. "Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery." George Mason Law Review 15, no. 2 (December 15, 2015).