Fifty years ago, in the landmark Brady v. Maryland case, the U.S. Supreme Court established a fundamental principle about the duty of prosecutors – to seek justice fairly, not merely win convictions by any means. This meant that due process required prosecutors to disclose any exculpatory evidence that was likely to affect a conviction or sentence. Known as the Brady Rule, the case was meant to lead to more transparency and equity in criminal proceedings; however, its power has been restricted by subsequent rulings of the court and severely weakened by a near complete lack of punishment for prosecutors who skirt around the rule.
It is impossible to know how often prosecutors violate Brady since this type of misconduct, by definition, involves concealment. But there is good reason to believe that violations are widespread. The National Registry of Exonerations has compiled detailed data for about 1,100 exonerations for the period 1989-2012. Of those cases, a whopping 42% were caused by what has been deemed “official misconduct.” Allowing for a 50-50 split between police and prosecutorial misconduct, the number still hovers around 21%, and when one considers that prosecutors are meant to seek justice rather than convictions, that is a rather alarming rate. The court has long agreed that individual prosecutors should be protected from civil liability so that they may freely pursue criminals; unfortunately, that allows for almost complete unaccountability for wrong-doings in judicial proceedings.
Recently the “Michael Morton Act” was passed in Texas, a law meant to decrease the amount of wrongful convictions within the state. The bill’s namesake spent 25 years in prison for the murder of his wife before DNA evidence finally exonerated him in 2011. The prosecutor in his case has been accused of deliberately withholding a substantial amount of evidence that would have led to an acquittal, including an account from the defendants three-year-old son who witnessed the murder and explained that “Daddy wasn’t home” at the time, neighbor testimonials who saw a man park a green van outside the house the morning of the murder, and a police officer in San Antonio who stated he could identify a woman who had used the victim’s stolen Visa card in a jewelry store – all of which were withheld from the defense.
The case of John Thompson represents another example of atrocious prosecutorial misconduct and the Supreme Court’s refusal to hold the prosecutor accountable. Mr. Thompson spent 14 years on death row before he was exonerated following the discovery that lawyers in the New Orleans district attorney’s office had kept more than a dozen pieces of evidence secret, even destroying some. Yet the Supreme Court overturned a $14 million jury award to Mr. Thompson, ruling that the prosecutor’s office had not shown a pattern of “deliberate indifference” to constitutional rights.
One root of the epidemic of misconduct may stem from prosecutors positions as pseudo-politicians. The position of “prosecutor” is imbedded with an incredible level of power, and as Lord Acton wrote 126 years ago, “Power tends to corrupt, and absolute power corrupts absolutely.” Not only do prosecutors have power, but they are essentially free from accountability. The outrageous breaches of due process discussed here are merely illustrative of a deep-rooted indifference towards the assurance of justice.
But what can be done? One example of a better approach that has been adopted in North Carolina and now Ohio is to adopt an open-files reform to make criminal cases more efficient and fair. The state statute require prosecutors in felony cases, before trial, to make available to the defense “the complete files of all law enforcement agencies, investigatory agencies and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the defendant.” The Justice Department insists that is has solved the problem by tightening requirements for disclosure, but numerous misconduct scandals show that is not sufficient. The best way to fulfill the promise of Brady is with open-files reform, which addresses the need for full disclosure of evidence that could show a defendant’s innocence.