Brady at 50: The Cake is a Lie*

One of the most important, most discussed, most controversial and most worthless decisions issued by the Supreme Court of the United States of America turned 50 yesterday. Written by William O. Douglas, it offered a promise of substantive fairness that was breathtaking.  Fifty years later, the joke's on us.

Brady v. Maryland held that the prosecution violated the due process clause by withholding material favorable to the accused from the defense.  To this day, I imagine Wild Bill Douglas laughing out loud, muttering to his clerks, "let's see what problems this causes 'em."  Funny guy, Bill.

In an excellent HuffPo post, Radley Balko goes through a number of the loose ends of Brady.  The post is entitled Brady v. Maryland Turns 50, But Defense Attorneys Aren't Celebrating, recognizing that this decision, together with its progeny offered perhaps the best chance our criminal justice system ever had to level the playing field and provide a criminal defendant with half a chance, maybe just a quarter but definitely more than he had before, to challenge an accusation against him by the most powerful government to ever exist on the fact of the earth.  And failed.

"It simply hasn't worked," says Steven Benjamin, president of the National Association of Criminal Defense Lawyers. "Brady violations are a system[atic], everyday problem in the courts. I would say they affect a majority of criminal cases."

"In order to work, Brady relies upon police and prosecutors to locate and identify information that could cast doubt on a defendant's guilt," Benjamin explains. "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 the prism of confirmation bias."

That bias, Benjamin says, can be powerful. "You can have a piece of evidence that is pivotal to establishing someone's innocence, and police and prosecutors could interpret that same piece of evidence as further proof of the same person's guilt."

What's Brady? What will be "pivotal," or important, or the tiny bit of information that turns otherwise insignificant details into a certain defense? Sometimes it's obvious, but most of the time it's completely unknown or unknowable until the pieces of the puzzle fit together. What's Brady? It's what a prosecutor decides it is, based on whatever goes on in that dark, dank prosecutorial mind.

While many prosecutors are undoubtedly honorable and likely make every attempt to comply with their Brady responsibilities, confirmation bias and a culture of conviction can provide a strong incentive to overlook or misinterpret exculpatory evidence, even unintentionally. With no counterbalancing disincentive, it isn't difficult to see how Brady violations could become routine.

Failure to disclose Brady may not be a product of malice or impropriety, and indeed may not be recognized by the prosecution at all, but there is nothing in the system to compel the prosecutor to err on the side of disclosure, and every reason to shrug off the defense's demand, even highly particularized demand in those rare cases where there is an inkling that Brady exists, because, well, why not? 

So a demand is made and the prosecutor responds that he is fully aware of his Brady obligation and will of course disclose any Brady material should it exist. Which it doesn't, despite your pounding the table to argue that it does. If you're really lucky, a judge, sufficiently annoyed with your pounding, might take a look at a questionable bit of evidence to decide whether it's Brady, because judges certainly know how it will fit with the defense's theory and investigation, before announcing that it's nothing that matters to him, so it clearly can't matter to the defense. Move along, counselor.

And even if the prosecution concedes the existence of Brady material, it need only be disclosed within a time frame that provides a reasonable opportunity to use it, which may mean after two days of testimony with the jury in the box. This is where the judge says "certainly a lawyer of your competence will have no problem making use of the Brady material, counselor," when you complain about how this was needed six months ago to be used as part of your investigation. 

But the reality Is that Brady material is rarely disclosed, there being no incentive to disclose it (aside from integrity and good will) and a huge incentive to conceal it, because it's subject to harmless error on appeal.  Most of the time, the existence of Brady material is discovered by sheer, dumb luck, with someone stumbling upon it after the conviction. At that point, however, it's utility is extremely limited, since the burden shifts to the defense to show it was not only withheld, but would have been likely to produce a different verdict. 

Not just concealed. Not just material. Not just important or offered the possibility that the defendant would have been acquitted. No, no, no. The test is whether the Brady material, had it been disclosed, would have been likely to result in acquittal. Other than a smoking gun, very little can meet that standard.

On May 13, 1963, Associate Justice William O. Douglas told us that due process required that the guys with the guns and shields, the ability to investigate that dwarfed anything the defense could imagine, the power to accumulate evidence long before the defendant had a name, tell us that there was material that might be favorable to the accused.  But he gave us none of the tools, methods, means, law to make that right happen.

So here we are, 50 years later, incapable of making Brady work.  Such a fabulous right, just outside our reach.
And without the means to effectuate the grand disclosure required by Brady in a way and at a time when it matters, it's just another joke played on the defendant.  After 50 years of spectacular failure, there is little chance we will ever see Bill Douglas' opinion as anything other than a practical joke.

* The  "cake is a lie" comes from Gideon's reaction to the 50th anniversary of Brady.







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