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March 8, 2012

The Constituton Project calls upon Congress to reform federal criminal discovery

I received today via e-mail a link to this new lengthy statement coming from a panel of experts assembled by The Constitution Project.  The statement urges Congress to pass legislation to ensure federal prosecutors adhere to Brady obligations, and here are excerpts from the start and end of the statement:

We, the undersigned, are current and former judges, prosecutors, law enforcement officers, defense lawyers and others, all with substantial professional experience within the criminal justice system.  We call upon Congress to address the persistent problems with discovery in the federal criminal justice system by immediately enacting legislation that clarifies federal prosecutors’ obligations to disclose information to the defense and that provides appropriate remedies when prosecutors fail to do so.

Over the past few years, we have seen a troubling number of cases involving failures to disclose evidence to the defense pursuant to Brady v. Maryland and its progeny....

We have concluded that Brady violations, whether intentional or inadvertent, have occurred for too long and with sufficient frequency that Congress must act.  Self-regulation by the DOJ has been tried and has failed.  It is ultimately not a solution to the injustices that continue to occur.  Nor is an amendment to the Federal Rules of Criminal Procedure a solution.  Such a proposal has been considered at least twice by the Advisory Committee on the Rules of Criminal Procedure, only to be rejected by either the Advisory Committee or the full Standing Committee on Rules of Practice and Procedure, at least partly in deference to the DOJ’s attempts to address the issue internally.  But, again, DOJ’s own internal efforts have not remedied the problem.

Only federal legislation can adequately address these continued violations by federal prosecutors, creating a uniform standard for what must be disclosed and what remedies will exist for non-disclosure, and sending a strong message to the DOJ that there will be consequences when federal prosecutors violate their discovery obligations....

The time has come for Congress to act.  Clarifying Brady obligations will ultimately strengthen effective law enforcement.  All previous attempts to cure this problem — a problem that goes to the heart of the fairness and accuracy of the criminal justice system — have failed.  Nothing short of the legislation described above is adequate, and we urge Congress to take immediate action to enact it.

March 8, 2012 at 06:02 PM | Permalink

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I wonder what could have prompted such a proposal? I'm sure it couldn't have anything to do with the following cases:


Smith v. Cain 132 S.Ct. 627 (2012) (where the eyewit¬ness’s testimony was the only evidence linking Smith to the crime the State’s suppression of his inconsistent statements violated Brady. ); Cone v. Bell, 129 S.Ct. 1769 (2009) (remand was required, on petition for habeas corpus from Tennessee murder conviction and death sentence for review of the effect of prosecution’s suppression of evidence regarding the seriousness of defendant's drug problem on his sentence); Guzman v. Dept. of Corrections, 663 F.3d 1336 (11th Cir. 2011) (state violated Giglio when its key witness and its lead investigator testified falsely about the existence of a deal between the state and Cronin); U.S. v. Freeman 650 F.3d 673 (7th Cir. ,2011) (mistrial proper where government knew, or should have known witness presented false testimony); Texas v. Morton (Williamson County, Texas No. 86-452-K26) (2011) (just google “Michael Morton”) (Michael Morton exonerated by DNA evidence after 25 years in prison in case in which prosecutors hid Brady evidence); LaCaze v. Leger, 645 F.3d 728 (5th Cir. 2011) (second degree murder conviction and 40-year sentence vacated because prosecution hid from defense and the court that it gave assurance it to its key witness that his son would not be prosecuted for driving him the murder scene); Sivak v. Hardison 658 F.3d 898 (9th Cir. 2011) (prosecutor’s failure to correct informant’s false testimony that he had no deal with prosecution requires vacating of death sentence); Lambert v. Beard, 633 F.3d 126 (3rd Cir. 2011) (murder conviction vacated under Brady where prosecution failed to disclose inconsistent statement of its critical witness that named a person other than the defendant as the killer); U.S. v. Kohring 637 F.3d 895 (9th Cir. 2011) (Withheld evidence that key government witness had allegedly sexually exploited minors was material for purposes of defendant's Brady/Giglio claim warranting reversal of conviction); Johnson v. Florida 44 So.3d 51 (2010) (“The reversal of the death sentences in this case is directly attributable to the misconduct of the original prosecutor. He knowingly presented false testimony and misleading argument to the court…”); William v. Ryan 623 F.3d 1258 (9th Cir. 2010) (case remanded for evidentiary hearing on whether defendant prejudiced where prosecutor suppressed evidence suggesting an alternate person was the perpetrator which is "classic Brady material."); Stanley v. Schriro 598 F.3d 612 (9th Cir. 2010) (“Moreover, the increasing frequency with which innocent people have been vindicated after years of imprisonment counsels a different approach. See Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 523-24 (2004) (noting that from 1989 through 2003 exonerated individuals “spent more than 3,400 years in prison for crimes for which they should never have been convicted . . .”). We note this phenomenon, not to imply that Stanley is innocent, but to emphasize that it is never too late to correct an injustice.”); State ex rel. Engel v. Dormire, 304 S.W. 3d 120 ( Mo. 2010) (kidnapping conviction reversed where state failed to disclose letter suggesting that a prosecution witness had been paid for his testimony); Valdovinos v. McGrath, 598 F.3d 568 (9th Cir. 2010) (murder conviction vacated because "a pattern of non-disclosure permeated the proceedings against [petitioner]" which deprived petitioner of due process.); Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010) (murder conviction vacated where prosecution suppressed material impeachment information concerning its key witness, Sims; namely that that Sims had worked as a paid informant for at least three local and state law enforcement agencies in multiple cases); U.S. v. Johnson 592 F.3d 164 (C.A.D.C.,2010) (conviction for possessing heroin with intent to distribute vacated because of government's failure to disclose evidence that heroin found in defendant's bedroom was actually owned by his cousin); Gonnella v. State, 686 S.E.2d 644 (Ga.,2009) (murder conviction reversed where prosecutor failed to disclose deal with accomplice); Simmons v. Beard, 590 F.3d 223 (3d Cir. 2009) (murder conviction and death penalty vacated because of due process violation where prosecutor failed to disclose that witness was pressured to cooperate and that a second witness committed perjury); Wilson v. Beard, 589 F.3d 651 (3d Cir. 2009) (murder conviction and sentence of death vacated because of prosecutor’s suppression of favorable information regarding witnesses criminal convictions and providing money to witnesses); Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009) (murder conviction and death penalty vacated because of prosecutor’s failure to disclose exculpatory report from ‘witnesses who would have cast serious doubt on the State’s case.” U.S. v. Price, 566 F.3d 900 (9th Cir. 2009) (conviction reversed where prosecutor violated his due process duty under Brady to learn the results of investigation into criminal past of government witness); U.S. v. Reyes, 577 F.3d 1069 (9th Cir. 2009) (government violated due process by not disclosing favorable evidence discovered in parallel SEC proceedings); Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) (murder conviction and death penalty vacated because of due process violation where prosecutor failed to disclose promise to key witness); Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (murder conviction vacated because of due process violation where prosecutor knew witness was testifying falsely); Harris v. Lafler, 553 F.3d 1028 (6th Cir. 2009) (murder conviction vacated because of due process violation where prosecutor suppressed promise to key witness); U.S. v. Robinson, 538 F.3d 1265 (10th Cir. 2009)(conviction reversed because of district court’s refusal to disclose informant’s mental health records to defense which violated Due Process); Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (prosecutor presented false evidence to jury and failed to later correct the record);

Posted by: Michael R. Levine | Mar 9, 2012 12:22:19 AM

The most common problems I encounter arise from federal agents' refusal to record their interrogation of defendants. I don't know if this technically falls under Brady, but it often prevents disclosure of information that might cast doubt on the reliability of agents' recollection of the discussions. Thus, defense counsel rarely hears from the agents about the implied promises they make to defendants, the overt or implied threats, the misinformation, the false statements of law or fact used to convince a defendant to make a statement, etc. Actually, we hear it from our clients all the time, but agents never seem to recall it, and they certainly don't put it in their reports. Interrogations that last hours are summarized in a few sentences in an agent's report. Nearly incoherent clients with mental problems are portrayed as making detailed, cohesive narratives that flow chronologically. None of these circumstances seem to be recorded by the agents.

Since no law requires recording of the interrogation of suspects, potentially exculpatory information never gets revealed to defense counsel or to the jury. Congress should follow the lead of many states and require that defendants' statements to investigators be inadmissible unless recorded or unless written and signed by the defendant.

Posted by: C.E. | Mar 9, 2012 1:37:43 AM

C.E., I agree with you. At the very least, the jury should be instructed that where agents do not record the interrogation, the jury should view the agents' testimony with distrust.

Posted by: Michael R. Levine | Mar 9, 2012 9:22:04 AM

The folks committing these Brady violations are the same folks who commit frequent Batson violations and who frequently present cases based on the testimony of snitches.

Those who purport to enforce the law break the law with alarming frequency.

Cross-examine a cop at an evidentiary hearing on a 4th Amendment motion. You've got about a 50% chance of getting the cop to testify truthfully. In their book, the ends Judith the means.

It is a refreshing breath of fresh air to come across an honest prosecutor. They're are some.

Posted by: Calif. Capital Defense Counsel | Mar 9, 2012 9:45:24 AM

I think the authors of this proposal are making a basic category error when they if they actually wish to enlist Congress in their bid to fix these issues. Most members of Congress see the current behavior of DoJ as a feature not a bug. And that even after that exact same behavior was used to convict one of their own.

As for all the state cases, to provide deterrence on an individual case level about the only thing Congress could do would be to loosen the strings of federal habeas review of state convictions. I see absolutely no chance that Congress will do so, indeed I see a greater possibility that Congress will decide that AEDPA did not go far enough in keeping frivolous state cases out of the federal system and somehow limit such review even more. Unlike with DoJ and federal cases Congress just doesn't have a great deal of direct control over state criminal court practices.

Posted by: Soronel Haetir | Mar 9, 2012 11:58:09 AM

Mr. Levine's list of cases is a powerful argument in favor of the proposed legislation. I understand that these are the cases where the suppressed evidence was discovered. As I non-lawyer, please explain to me how was the discovery of such evidence is made after the trial? And if these are the cases where the suppressed evidence was discovered, what about all the cases where the suppressed evidence is never discovered? Why is this not a very powerful argument against the death penalty--after all once the guy is dead, the discovery of suppressed favorable evidence is useless. Will someone please help me out with these questions.

Thanks.

Posted by: Donna from Kansas | Mar 9, 2012 12:05:14 PM

Interestingly, in its report, the Constitution project does not cite any of the cases I cited in the above comment. They do cite the following examples of suppression of evidence which I will add to the list:

1. The conviction of Alaska Senator Stevens in 2008 was thrown out and the case dismissed because prosecutors had suppressed critically favorable evidence that would have impeached the trial testimony of a key government witness and bolstered the Senator’s defense. A later panel found that that the prosecution had been “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated the Senator’s defense.


2. In December, 2011, in the Lindsey Manufacturing Company case in Los Angeles, the judge found that the government had “recklessly failed to comply with its discovery obligations.”

3. A month later, federal prosecutors in Massachusetts moved to dismiss charges against defendant Andrew Berke related to an illegal Internet pharmacy. The prosecutors’ dismissal immediately followed a statement from the trial judge that he was going to have to dismiss the charges himself based on the fact that a law enforcement officer had destroyed “apparently exculpatory” evidence in the case and prosecutors had not notified the defense when they learned of this fact.

4. The Grace case in 2009 in Montanaprosecutors failed to disclose compelling information impeaching a key witness’s credibility.

5. In 2009, in the Darwin Jones case in Massachusetts, the federal prosecutor failed to produce prior inconsistent statements of a police officer witness in the and the court reprimanded the prosecution for its “dismal history of intentional and inadvertent violations of the government’s duties to disclose” favorable evidence.

Posted by: Michael R. Levine | Mar 9, 2012 12:24:14 PM

The actions of the offending prosecutors bring tarnish the criminal justice system and cause me to question the integrity of all convictions. As Donna fro Kansas asks in her comment: how do we know prosecutors have not withheld evidence favorable to the defense in those cases? Indeed, how do we know??

Professor Berman: Please, how do we know?

Posted by: Amy not a lawyer | Mar 9, 2012 1:25:56 PM

It is interesting that loquacious government stooges and their pro-government flunkies, e.g., Bill Otis and federalist, are so reticent on this subject.

Posted by: Calif. Capital Defense Counsel | Mar 9, 2012 1:39:50 PM

Calif. Capital Defense Counsel, Please ease up on the ad hominem attacks which only detract from the merits of your argument. Besides both Bill Otis and federalist have deplored prosecutorial misconduct. I do recall that Bill Otis once joined Michael Levine in pressing for the discipline of wayward prosecutors.

Posted by: anon12 | Mar 9, 2012 1:52:12 PM

i agree. I think in this day and age NO interview with ANYONE should be considered UNLESS recoreded on a one-use non-modifial media unfortunatly i think soronel hit it right on the head here!

"I think the authors of this proposal are making a basic category error when they if they actually wish to enlist Congress in their bid to fix these issues. Most members of Congress see the current behavior of DoJ as a feature not a bug. And that even after that exact same behavior was used to convict one of their own.

As for all the state cases, to provide deterrence on an individual case level about the only thing Congress could do would be to loosen the strings of federal habeas review of state convictions. I see absolutely no chance that Congress will do so, indeed I see a greater possibility that Congress will decide that AEDPA did not go far enough in keeping frivolous state cases out of the federal system and somehow limit such review even more. Unlike with DoJ and federal cases Congress just doesn't have a great deal of direct control over state criminal court practices.

Posted by: Soronel Haetir | Mar 9, 2012 11:58:09 AM"

Our govt currently is occupied and controled by the biggest set of crooks since the age of PIRATES!

IF it does not benefit THEM it will not happen and just WHY would a bunch of CROOKS want to make the CRIMINAL JUSTICE SYSTEM work better?

THEY WON'T

Posted by: rodsmith | Mar 9, 2012 1:52:12 PM

What astounds me that the Federal Rules Committee does nothing about this!
Are they blind to the injustice that exists here?

Posted by: anon12 | Mar 9, 2012 2:37:00 PM

anon12 --

Thank you.

I'm actually in favor of comprehensive reform, by adding to federal court rules and to the canons of ethics the following sentence: "Counsel in a criminal case are to be truthful and fully forthcoming with the court, the jury and each other, and any attempt to mislead the court or jury, by concealment or non-production of relevant facts or otherwise, is forbidden."

It's time to quit the game-playing on all sides. When we do, there's at least a chance the reputation of the legal profession, and confidence in the legal system, will get a needed boost.

Posted by: Bill Otis | Mar 9, 2012 3:17:25 PM

that's a nice ideal bill unfortunatley with out some type of criminal PUNISHMENT for it's violation it's a waste and till youi shoot the boys and girls on the USSC and can that soverign immunity bullshit ...that's NOT GONNA HAPPEN no matter what anyone else wants!

Posted by: rodsmith | Mar 9, 2012 9:09:44 PM

Donna from Kansas asked for someone to "please explain to me how was the discovery of such evidence is made after the trial? And if these are the cases where the suppressed evidence was discovered, what about all the cases where the suppressed evidence is never discovered?"

As another non lawyer, I too would like someone to answer these questions. Does anyone know the answers?

Posted by: anon15 | Mar 10, 2012 3:03:41 PM

well donna and anon15 usualy it happens by accident. Either during talks after the trial is over and the defense and DA and jury get together and talk and talk with the media.

But the biggiest amount come from AGE. As the cases get old and forgotten sooner or later some new kid on the block will find a file and say WHAT THE HELL! and spill the beans! or not know it's NOT to be released.

That is why we see so many that have been locked for for YEARS and DECADES suddenly released when new evidence shows up!

It's been hidden all that time by the criminals in the DA's Office or the local Law Enforcement's files!

and even sometimes in the Defense Lawyers files!

Posted by: rodsmith | Mar 10, 2012 3:49:36 PM

Anon and Donna:

For what is worth as a former state prosecutor and defense attorney I believe it is relatively rare. My practice and many other prosecutor's practice was simply to give defense counsel everything. My motto was "If you wonder about whether it's Brady material, it probably is Brady material."

Also, legitimate factual questions of guilt are relatively rare.

Posted by: Robert Barnhart | Mar 12, 2012 9:30:43 AM

well robert i agree it is "relatively" rare unfortunately that doesn't mean it's NOT a big number 1 out of 1,000 convicitons seens rare till you figure in the what 10,000,000 convictions a year in the us?

and i'm glad you do the right thing and just show them everything. Pity a large hunk of prosecutors in the us don't do that!

Posted by: rodsmith | Mar 12, 2012 12:30:18 PM

Mr. Barnhardt,

Your state that your motto is "If you wonder about whether it's Brady material, it probably is Brady material." This is precisely correct.
See Kyles v. Whitley 514 U.S. 419, 439, 115 S.Ct. 1555, 1568 (1995)("This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See Agurs, 427 U.S., at 108, 96 S.Ct., at 2399–2400 (“[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure”). This is as it should be. Such disclosure will serve to justify trust in the prosecutor as “the representative ... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.”)

Were all prosecutors to follow your motto (and they should definitley do so), the number of Brady reversals would be sharply reduced.

Posted by: Michael R. Levine | Mar 12, 2012 1:50:23 PM

how true michael!

i've always went with that system!

If you have to ask yourself "is it" then it PROBABLY IS!

just like if you have to ask your lawyer if what your doing might be a criminal act! Guess what it PROBABLY IS!

Posted by: rodsmith | Mar 12, 2012 3:59:25 PM

rodsmith, reminds me of what I would tell my students the first day of criminal law class: "remember, if what you're doing is fun, it's probably a crime."

Posted by: Michael R. Levine | Mar 12, 2012 4:27:54 PM

yep! right up there with

"if it tastes GOOD! it's probably BAD for you!"

Posted by: rodsmith | Mar 13, 2012 1:12:22 AM

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