Foul Blows: Using the Ethical Standard to Prevent Low-Level Brady Violations from Slipping Through the Cracks

• Author: Jordan Chemtob
• Position: J.D., Georgetown University Law Center (expected May 2021); B.A., New York University (2017)
• Pages: 807-829

Foul Blows: Using the Ethical Standard to Prevent

Low-Level Brady Violations from Slipping Through

the Cracks

JORDAN CHEMTOB*

INTRODUCTION

Over the past election cycle, the presidential campaigns of Vice President

Kamala Harris and Senator Amy Klobuchar have both faced severe scrutiny over

allegations of impropriety during the candidates’ time as District Attorneys.

1

Specifically, critics alleged that the two former prosecutors had withheld exculpa-

tory evidence from criminal defendants and defended instances of prosecutorial

misconduct.

2

At the same time, prosecutors have been criticized for their failure

to either hold their partners in law enforcement accountable for their excesses or

resist the conviction-focused, tough-on-crime culture that leads prosecutors to

violate their legal and ethical obligations by withholding information that should

be shared with the accused.

3

The cases of prosecutorial misconduct that occurred

under Vice President Harris and Senator Klobuchar demonstrate that a problem

of prosecutorial failure to disclose exists, but they do not demonstrate the scale of

the problem; they are simply the rare examples of prosecutions that have gathered

enough post-conviction scrutiny to reveal prosecutorial abuse of power. These

* J.D., Georgetown University Law Center (expected May 2021); B.A., New York University (2017).

© 2021, Jordan R. Chemtob. Thanks to Professor Shon Hopwood for his guidance in writing this Note.

1. S.A. Miller, Kamala Harris’ prosecutor past threatens 2020 White House bid, A.P. NEWS, (Jan. 30,

2019), https://apnews.com/article/cb35de115586c2e1e3ee704d64351982 [https://perma.cc/WM2F-U5XL];

Michael Kranish, Crime lab scandal rocked Kamala Harris’s term as San Francisco District Attorney, WASH.

POST, (March 5, 2019), https://www.washingtonpost.com/politics/crime-lab-scandal-rocked-kamala-harriss-

term-as-san-francisco-district-attorney/2019/03/06/825df094-392b-11e9-a06c-3ec8ed509d15_story.html [https://

perma.cc/M3S9-UJ2M]; Christina Carrega, Minnesota man seeks to toss his murder conviction Sen. Amy

Klobuchar stood behind for 17 years, ABC NEWS, (February 24, 2020) https://abcnews.go.com/US/minnesota-

man-seeks-toss-murder-conviction-sen-amy/story?id=69123101 [https://perma.cc/59X5-8V85].

2. See Kranish, supra note 1; Carrega, supra note 1.

3. See Kristy Parker, Prosecute the Police, THE ATLANTIC, (June 13, 2020), https://www.theatlantic.com/

ideas/archive/2020/06/prosecutors-need-to-do-their-part/612997/ [https://perma.cc/NP4P-JXN]; Diana Becton,

Satana Deberry, et. al., ‘Prosecutors Are Not Exempt From Criticism,’ POLITICO MAG., (August 25, 2020),

https://www.politico.com/news/magazine/2020/08/25/black-prosecutors-11-ideas-393577 [https://perma.cc/

9YFY-U92Y]; Kate Levine & Joanna Schwartz, Hold Prosecutors Accountable, Too, BOSTON REV., (June

22, 2020), http://bostonreview.net/law-justice/kate-levine-joanna-schwartz-hold-prosecutors-accountable-

too [https://perma.cc/XQK4-ZU96].

807

cases are the exception; the vast majority of criminal convictions do not draw

scrutiny of prosecutors’ actions.

4

Prosecutors have long been held to distinct standards regarding the disclosure

of information to opposing parties beyond ordinary discovery requirements. Most

famously, the Supreme Court held in Brady v. Maryland that prosecutors are obli-

gated to by a constitutional due process standard to disclose exculpatory evidence

to criminal defendants.

5

Despite this constitutional requirement, however, there is

ample evidence that prosecutors routinely withhold evidence favorable to defend-

ants and that these prosecutors are rarely disciplined for doing so. There have

been multiple studies demonstrating both the widespread failure of prosecutors to

disclose exculpatory information

6

and the widespread failure of disciplinary

authorities to hold prosecutors accountable for such failures in a meaningful

way.

7

These studies of prosecutorial disclosure violations likely understate the prob-

lem because they depend on violations being detected and accurately reported as

violations. Defense attorneys are likely to fail to detect violations based on infor-

mation that is never disclosed to them; defense attorneys will therefore remain

unaware that there is a basis for challenging convictions. Even when it does

become apparent that prosecutors have withheld information, these potential vio-

lations are likely to remain invisible as a result of the Brady disclosure frame-

work, which includes a “materiality” requirement that deems prosecutorial

withholding of information to not be a violation at all if it is not readily apparent

on appeal that disclosure would have altered the outcome of the case.

8

Under this

materiality standard, violations that are “immaterial”—that is, they do not appear

4. See Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors, 36 HOFSTRA L.

REV. 275, 298-300 (2007) (describing media exposure in a high-profile criminal case as unusual).

5. Brady v. Maryland, 373 U.S. 83, 87 (1963).

6. See, e.g., Ken Armstrong & Maurice Possley, The Verdict: Dishonor, CHI. TRIB., (Jan. 11, 1999), at Al

(summarizing the results of the reporters’ nationwide study of prosecutorial misconduct in homicide cases). It

is important to note that this investigation only focused on the comparatively rare defendants who were con-

victed at trial and whose homicide convictions that were eventually dismissed. Because of its limited scope, it

likely understates the problem of prosecutorial suppression of evidence. See also Davis, supra note 4, at 279-80

(describing studies that reveal widespread and routine Brady violations); Richard A. Rosen, Disciplinary

Sanctions against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. REV. 693, 697 (1987); Andrew

Smith, "Brady” Obligations, Criminal Sanctions, and Solutions in a New Era of Scrutiny, 61 VAND. L. REV.

1935,1938 (2019) (“An examination of these remedies reveals a frustrating system; disclosure violations con-

tinue to occur at high rates at both the federal and state levels, while individual prosecutors rarely face repercus-

sions for these violations.”); Jessica Brand, The Epidemic of Brady Violations: Explained, THE APPEAL (April

25, 2018), https://theappeal.org/the-epidemic-of-brady-violations-explained-94a38ad3c800/.

7. See Rosen, supra note 6; Smith, supra note 6; Daniel S. Medwed, Brady’s Bunch of FLaws, 67 WASH. &

LEE L. REV. 1533, 1545-47 (2010) (“Yet, disciplinary bodies hardly ever sanction prosecutors who disregard

Brady’s precepts.”); Kevin C. McMunigal, The (Lack of) Enforcement of Prosecutor Disclosure Rules, 38

HOFSTRA L. REV. 847, 860-64 (2010).

8. Strickler v. Greene, 527 U.S. 263, 281-82 (1998) (“[S]trictly speaking, there is never a real

‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the sup-

pressed evidence would have produced a different verdict.”).

808 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:807