The chronic failure to discipline prosecutors for misconduct: proposals for reform.

• Author: Sullivan, Thomas P.
• Position: III. Proposals for Reform in Criminal Cases C. Recommendations Directed to Federal and State Legislatures and Supreme Courts through Conclusion, with footnotes and appendix, p. 914-946 - Symposium on the Center on Wrongful Convictions

3. RECOMMENDATIONS DIRECTED TO FEDERAL AND STATE LEGISLATURES AND SUPREME COURTS

   1. The United States Supreme Court, state supreme courts, and legislatures should require open file discovery in all felony cases and restrict the harmless error rule.

      The proximate cause of much of the prosecutorial misconduct described in this article is traceable to the fundamental fault in the Supreme Court's holding in Brady v. Maryland, (128) a fault that has been exacerbated by the Court's formulation of the harmless error rule. Grounded upon the Due Process Clauses of the Fifth and Fourteenth Amendments to the Constitution, and therefore binding in both federal and state court criminal cases, (129) Brady requires the prosecution to make pretrial disclosures to the defense of evidence in the possession of the prosecution including the police and government agencies. The mandatory disclosures are anything that is "exculpatory," "material," or "favorable to the defense" regarding the defendant's guilt or innocence, or potential penalties to be imposed in the event of a conviction. (130) It is a prime example of a well-meaning reform gone bad, for several reasons:

      1. The fundamental conflict of interest inherent in the Brady rule.

         The first defect is that in formulating the Brady rule, the Court gave the prosecution the discretion to determine, prior to trial, what evidence must be produced, even though the defense has the better vantage point to decide what is "favorable." (131) The prosecution is thus called upon to make value judgments that ought to be within the province of the defense lawyer. The tests for production--"favorable," "exculpatory," "material"--are imprecise and value laden, leaving a great deal of room for the exercise of prosecutorial judgment. In Brady, the Supreme Court appeared to overlook the obvious conflict of interest this doctrine creates between the prosecutor-advocate who has confidence in his indictment and wants a conviction, and the defense lawyer-advocate, who has an entirely different viewpoint and approach to the case, and wants an acquittal.

         Apart from the conflicting interests, in making his determination as to production, the prosecutor cannot know the potential uses the defense lawyer may have for the evidence. What may not appear useful to the prosecutor may be useful for defense counsel. The prosecutor is exposed to the natural condition of cognitive bias, which is common to litigators on both sides of disputed cases. (132) He is convinced in the justice of his indictment. He may never have defended a criminal case, and therefore may be unable to put himself in the defense lawyer's position. (133) Justice John Paul Stevens, who was a trial lawyer before being appointed to the bench, pointed out what experienced trial lawyers know: "The significance of an item of evidence can seldom be predicted accurately until the entire record is complete[.]" (134)

      2. A decision not to disclose usually means the evidence will never become known to the defense lawyer or the courts.

         The second flaw in the Brady rule is that the prosecutor is not required to advise the defense lawyer what he has deemed not exculpatory and therefore has decided not to produce, nor is he required to seek the advice of the court as to his obligation to produce. Accordingly, in the vast majority of cases, it is likely that the existence of the evidence in question will never become known to the defense or to the courts adjudicating the case. (135)

      3. If the evidence is discovered after conviction, the harmless error rule limits the basis for reversal.

         The final irony of the Brady rule comes into play if, after conviction, the prosecutor's failure to produce exculpatory evidence is disclosed. The harmless error rule--a form of which is used in all state and federal courts--then comes into play. Faced with the prosecutor's failure to make pretrial production of exculpatory evidence, the trial or reviewing court is called upon to determine whether, in light of all the evidence, "there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different," which means "the likelihood of a different result is great enough to undermine confidence in the outcome of the [conviction]." (136) The court imagines the trial that should have occurred, with the evidence produced to the defense, and compares it to the one that took place, with the evidence withheld. The court evaluates the differences between the two trials, one real and the other hypothetical, and reaches an opinion as to what might have resulted if the prosecutor had produced the evidence. The court is invited to ignore the prosecution's pretrial breach of the obligation to produce exculpatory evidence and excuse the prosecutor's failure to make exculpatory evidence available based upon a post-trial record. Thus, judges, sworn to uphold the Constitution, are called upon to apply a lesser standard of the process due to some defendants compared to others--that is, the stronger the prosecution's case compared to the defense, the lesser value is attributed to the right of the defendant to a fair trial without regard to the relative weight of the evidence.

         In the great majority of federal and state appellate rulings involving allegations about non-production of exculpatory evidence, the reviewing courts have held that the alleged Brady violations were harmless error. Justice Stevens called attention to the significant difference in the pretrial and post-trial tests applicable to production of exculpatory evidence:

         [T]here is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge. Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure. But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial. (137) Despite Justice Stevens' suggestion that "the prudent prosecutor will resolve doubtful questions in favor of disclosure," (138) many commentators have concluded that there are prosecutors who have treated the stringent after-the-fact "materiality" test as an invitation to narrow their pretrial disclosures--to withhold arguably exculpatory evidence at the trial level, in the expectation that if the defendant is convicted and the undisclosed evidence is discovered, the court will rule that the failure to disclose was harmless and therefore not grounds for reversal. (139) There is persuasive evidence to support this conclusion. For example, in a 2014 study of over 600 appellate decisions involving alleged violations of the prosecutor's duty to make pretrial production of exculpatory evidence to the defense, the authors concluded:

         Taking cues from the way in which courts analyze Brady claims in the post-trial context, the prosecutor's inquiry becomes not whether a piece of information is favorable, but instead whether the information would have made a difference in the outcome of the case. The judiciary's almost unilateral focus on materiality conveys a message that nonmaterial favorable information is unimportant and need not be disclosed. As a result, the current system of judicial review fails to promote a culture of compliance, instead fostering Brady, or "so-called Brady," violations. (140) In a 2013 dissent from an order denying a petition for rehearing en banc in United States v. Olsen, then-Chief Judge Kozinski, joined by four judges on the Ninth Circuit Court of Appeals, concluded that, "Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend." (141) After listing twenty eight reported appellate opinions involving breaches between 2003 and 2013, he concluded: "When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition." (142) The court "invites prosecutors to avert their gaze from exculpatory evidence" by requiring an "impossibly high" materiality standard to be met before a conviction will be reversed. (143) Over the years, a number of legal scholars have called attention to this phenomenon. (144)

         This potential for conflating the pre- and post-trial tests for production was pointed out by the Court of Appeals of New York:

         [A] backward-looking, outcome-oriented standard of review that gives dispositive weight to the strength of the People's case clearly provides diminished incentive for the prosecutor, in first responding to discovery requests, thoroughly to review files for exculpatory material, or to err on the side of disclosure where exculpatory value is debatable. (145) In Olsen, then-Chief Judge Kozinski and his fellow judges pointed out another risk caused by using vague terminology to define prosecutors' obligations to produce exculpatory evidence, coupled with forgiving appellate "harmless error" review: the likelihood that materials not produced at trial will never be discovered, or will come to light after the defendant has spent years in prison. The post-trial discovery of a Brady violation is "highly unlikely" to be discovered by any party, and "[t] his creates a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice." (146) Another deleterious effect of the harmless error rule, as identified by Professor Gershman and relevant to all types of alleged prosecutorial misconduct, is that it "encourages the view that the courts, by condoning prosecutorial lawlessness, are themselves promoting disrespect for the law." (147)

         Drastic adverse consequences to the fair administration...