It's time to shine a light on prosecutors who are trampling on the rights of the accused in order to win cases.
On April 1 Attorney General Eric Holder, Jr., stunned the legal and political world with his announcement that the U.S. Department of Justice would abandon its corruption case against former Alaska senator Ted Stevens. Why? Because of new revelations that prosecutors from the Justice Department's "public integrity" section didn't live up to their name and hid vital evidence from the defense at trial.
Although the announcement may do some justice in the Stevens case, the problem of prosecutors failing to disclose exculpatory evidence will not go away until systemic change broadens the scope of evidence that prosecutors must disclose and changes a prosecutorial culture that too often subordinates ethical excellence to winning a big case.
Because the very nature of this sin is concealment, we can be sure that cases of hidden evidence are more common than publicly exposed. Just a few months ago, a federal judge in Boston cited ten cases of similar prosecutorial misconduct in Massachusetts alone. Ted Stevens had help from one of Washington, D.C.'s premier law firms. But most criminal defendants cannot afford such formidable resources to ferret out misconduct, and this may be especially true for the large number of federal drug trafficking cases pursued against indigent minority defendants.
Prosecutors who purposely hide evidence should be subject to severe sanctions, including disbarment and prosecution themselves for obstruction of justice. But a greater danger is prosecutorial indifference and negligence--prosecutors afflicted with "conviction psychology" who don't bother to unearth adverse evidence in police files, or who buy in to cooperating "snitch" witnesses, declining to entertain doubts about the stories a snitch tells or to press for evidence that undercuts the snitch's uncorroborated version of events.
THE WRONG STANDARD
Part of the problem is the U.S. Supreme Court's malformed standard of what the Constitution requires. Rather than requiring prosecutors to disclose all the government's evidence that could be helpful to the defense, the Court concluded in its landmark 1963 decision Brady v. Maryland that the Constitution requires the disclosure of evidence only so exculpatory that its disclosure might have changed the outcome of the case.
This decision built a chicken coop inside the fox's den. The Court left it to a prosecutor--who is convinced already that the defendant is guilty and who has a vested reputational interest in winning a case--to decide if exculpatory evidence is "important" enough to be disclosed. And it left the decision to a prosecutor who may not even know what defense will be presented at trial or how one seemingly insignificant-but-undisclosed witness account may powerfully corroborate the defense version of events.
What should be done? Congress or the Justice Department is free to require more protection than what the Supreme Court requires. Indeed, to its credit, Justice changed its policy in 2006 to require federal prosecutors to disclose evidence that is not "consistent" with an element of the case (regardless of whether the prosecutor believes the evidence could change the outcome of the case). But even this standard is flawed, because it still leaves it to prosecutors to decide the helpfulness of evidence to a defendant's case.
Prosecutors should go one step further to disclose any evidence that is relevant to proof of their criminal cases. Let defense counsel decide if the evidence has exculpatory value.
This presumption of disclosure of all relevant evidence should be overcome only for compelling reasons, such as if disclosure would jeopardize the safety of a witness or compromise the integrity of another investigation. To make sure that these exceptions are limited and properly invoked, prosecutors should explain in writing to the judge why and what information has been withheld.
By pegging disclosure to what is relevant, the scope of disclosure need not depend on a prosecutor's inherently jaded evaluation of the helpfulness of evidence to the defense case.
A broader concern is the more than 95 percent of defendants who--unlike Ted Stevens--never go to trial but plead guilty after learning from the prosecution of the evidence against them. The Supreme Court has, disturbingly, declined to require that prosecutors advise defendants who decide to plead guilty of the evidence that they could have used to impeach the government's key witnesses at trial.
With a skewed picture of the strength of the evidence against him, a defendant sitting in a jail cell while his case lingers on the docket may well decide to cop a plea (especially in state cases under the Alford doctrine, which allows a defendant to take a plea without admitting guilt) rather than exercise his right to a trial. Prosecutors should ensure the fairness of guilty pleas by disclosing impeachment evidence.
But more is needed than broadening the range of evidence all prosecutors disclose to the defense.
Supervisory prosecutors must set a tone from the top that ethics always matters more than making the numbers. The message must be that prosecutors dig as hard for evidence to disprove a case as the evidence to make it. The basic culture and mind-set must change to realize that ethics does not come at the expense of the public interest or safety. To the contrary, ethical excellence inspires cooperation and confidence of all in the fairness of prosecution, while avoiding monumental public recriminations as in the Stevens case or the equally scandal-plagued case against members of the Duke University lacrosse team.
The Supreme Court is regrettably reluctant to hold the government accountable for misconduct. This year it has ruled (in Van de Kamp v. Goldstein ) that supervisory prosecutors who fail to enforce policies requiring disclosure are absolutely immune from civil liability. It has also ruled this year (in Herring v. United States ) that even when police negligently violate the Fourth Amendment, the evidence they seize may still be used in court if their misconduct was not intentional, reckless, or the result of "gross" negligence.
Prosecutorial discretion means that prosecutors may choose to do more than what the Court says the Constitution minimally requires. The ends of conviction do not justify the means of depriving defendants and the public of the right in every case to a fair process. Let's end the era of hiding the evidence.