One of the Supreme Court's most celebrated criminal procedure decisions turns 50 years old Monday. By a 7-2 vote, the Court ruled in the 1963 case Brady v. Maryland that under the 14th Amendment's due process clause, prosecutors are obligated to disclose all exculpatory evidence to criminal defendants. "A prosecution that withholds evidence ... which, if made available would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant," wrote Justice William O. Douglas in the decision. "That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice."
Like many of the controversial criminal-justice decisions issued during the tenure of Chief Justice Earl Warren, the popular perception of Brady over the years has been that a prosecutor's failure to disclose the most minor and insignificant of details to defense attorneys has often resulted in violent criminals "getting off on a technicality." But a number of studies conducted since the onset of DNA testing in the early 1990s have shown that not only is that not true, but the Brady decision itself -- renowned as it is -- may have been mostly symbolic and had little practical effect on the day-to-day justice system.
"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."
In theory, there are a few ways that Brady could be enforced. The first is by granting new trials to defendants who are convicted in cases in which the prosecution withheld evidence. But in subsequent rulings, the Supreme Court has made it difficult to get that sort of relief. Under the doctrine of "harmless error," it isn't enough to merely show that a prosecutor withheld exculpatory evidence. A defendant must also show that had the evidence been introduced at trial, the jury would likely have acquitted.
"It requires appellate court judges to sit as jurors," Benjamin says. "It takes a really extreme cases to overturn a conviction."
Other ways to enforce Brady include professional sanctioning for prosecutors who violate the rule, subjecting them to civil liability and making such violations a criminal offense. The Supreme Court has basically taken civil liability off the table by shielding prosecutors with "absolute immunity." In the 2009 case Pottawattamie v. McGhee, the Supreme Court was set to decide if even prosecutors who knowingly manufacture evidence in cases that resulte in the conviction of innocent people should be protected from lawsuits. The case was settled before the Court could rule, so it's still an open question. In the 2011 case Connick v. Thompson, the Court also barred a wrongly convicted man from suing the municipality that employed the prosecutors who convicted him, even though those prosecutors willfully withheld the evidence that would have proven his innocence.
Then there is professional sanction. In the Connick case, Justice Clarence Thomas suggested that discipline from bar associations could be sufficient to keep prosecutors in line. But study after study has shown that this simply isn't true. For example, one study by the Center for Public Integrity looked at more than 2,000 cases between 1970 and 2003 in which appellate courts overturned a conviction due to prosecutorial misconduct. Only 37 of those cases resulted in disciplinary action against the prosecutor. Another 2010 study by the California Innocence Project looked at 700 cases in which California courts found misconduct; just six prosecutors faced any disciplinary action from the state bar. And last month, a ProPublica investigation found that prosecutors in New York City were rarely if ever sanctioned for misconduct.
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.
Just how routine is difficult to say, as many such violations may go unnoticed. One study found Brady violations in one of every six death penalty convictions between 1973 and 1995. If it's that common even in such notorious cases, it's likely more common day to day, Benjamin says.
"The proof is the arrogance you see on display in high-profile cases," he says. "Look at the Duke lacrosse case. I had a theory then that if a prosecutor can become so complacent and commit blatant violations in a case where everyone is watching and the defendant can afford top-notch legal representation, we know that this is rampant. I think my theory was confirmed in the Ted Stevens case, where again we saw these violations in the trial of a U.S. senator. And these were federal prosecutors."
A few years ago, Dallas County, Texas, District Attorney Craig Watkins -- himself a former defense attorney -- suggested that prosecutors should face criminal charges for willful Brady violations. Benjamin says he'd support such a law, so long as the state could show that the offending prosecutor knowingly withheld exculpatory evidence, and that the offense wasn't due to mere negligence or oversight.
Former Texas prosecutor Ken Anderson is currently facing criminal charges for tampering with and withholding evidence in the wrongful conviction of Michael Morton, although the withholding charges allege he violated a specific court order, not his general Brady requirements. But the prosecution of Anderson, like that of Mike Nifong, the DA in the Duke lacrosse case, are exceptions that prove the rule. Criminal sanction of prosecutors who commit misconduct is as good as nonexistent.
Benjamin's main recommendation to reinforce Brady is mandatory disclosure of every piece of evidence and information related to a criminal case. "Every fact known about the case should be made available," he says. Currently, that usually only happens post-conviction, when the bar to get a new trial is set high. Full disclosure from the start would allow defense attorneys to look for exculpatory evidence themselves, instead of relying on the judgment of prosecutors about what is and isn't exculpatory.
The Brady decision was really about establishing fundamental fairness in the criminal justice system and making trials a search for truth, rather than lawyering competitions. But the decision lacked an enforcement mechanism with any real bite. Without it, that sense of justice has been overwhelmed by a generation of tough-on-crime rhetoric from politicians and poorly-structured incentives that reward convictions, while overlooking or even punishing prosecutors who value fairness over filling prisons.