by Steve Horn

A draft copy of an academic article set to be published in 2019 in the Vanderbilt Law Review calls for a novel approach to chipping away at the nagging issue of Brady violations that occur during criminal cases.

That paper, titled “Disclosing Prosecutorial Misconduct” by University of Arizona College of Law associate professor Jason Kreag, calls for U.S. court systems nationwide to utilize what he calls a “Brady Violation Disclosure Letter” in response to violations of this key tenet of criminal procedure. A Brady violation is a shorthand way of referring to vthe withholding of exculpatory evidence by prosecutors.

Under Brady, prosecutors must provide defendants—in a good faith manner—any and all evidence requested by the criminal defense team, even if that evidence would be damaging to prosecutors’ cases and could help the defense in their own legal advocacy efforts. Because prosecutors are at an informational advantage when bringing criminal indictments and carrying out criminal cases, Brady is a vital safeguard in ensuring a fair trial.

But as Kreag’s paper points out, just because Brady exists as the law of the land in the U.S., it doesn’t necessarily automatically follow that prosecutors and police comply with their obligations under Brady. And that’s where Kreag’s proposal comes in. Kreag believes a system that maintains Brady Violation Disclosure Letters as a day-to-day reality will make the criminal justice system more transparent, will hold prosecutors increasingly accountable for their actions, and could lead to – most importantly – fewer Brady violations in the future by prosecutors.

Think of a Brady Violation Disclosure Letter as akin to a politician disclosing what investments he or she has or which corporations are financing his or her campaign. The databases and journalists and other advocates shining a light on that data can have what Kreag describes as a “shaming” effect, prospectively altering the behavior of prosecutors in the future due to the bright spotlight of public pressure.

The Brady Violation Disclosure letter, explains Kreag of the concept, “proposes sending a concise letter documenting the misconduct to the relevant stakeholders who participated in the initial trial that was corrupted by a Brady violation. It also promises to increase Brady compliance and to promote transparency in a criminal justice system that is increasingly opaque.”

Kreag begins his paper by cataloguing who the major victims of Brady violations are and explaining what is at stake when Brady violations occur.

“The scars from Brady misconduct represent wrongful convictions of innocent defendants, including innocent defendants sent to death row because of prosecutors’ misconduct. They represent harms victims endured when the actual perpetrator remained free while prosecutors pursued the wrong person in trials corrupted by misconduct,” writes Kreag. “They represent harms jurors and witnesses faced when they realized that they unknowingly participated in the prosecutor’s misconduct. They represent harms prosecutors faced when they realized that their competitive and adversarial nature resulted in misconduct. And they represent the harm resulting from the public questioning the very integrity of the criminal justice system.”

He came up with the idea behind the letter, which would be distributed to all stakeholders involved in cases involving a Brady violation, because – he concluded – all other routes taken by the criminal justice system in response to these violations have failed to do much to chip away at the problem. Those avenues have included high-profile and costly independent counsel investigations, civil litigation, and professional disciplinary actions taken against Brady violators and even criminally prosecuting those prosecutors who knowingly violate their Brady obligations.

All of those options have failed to resolve the quagmire because, Kreag writes, they only chip away at the issue on the margins—or worse—do nothing but pay lip service to the issue of accountability in the case of professional disciplinary action. And while criminalizing Brady-centric prosecutorial misconduct appears satisfactory at face-value, Kreag is quick to point out that only two states – California and North Carolina – have criminal statutes on the books that penalize such behavior. Neither state though, according to his research, has ever utilized the statutes.

While Kreag says this concept could help chip away at the issue, by no means does he believe that it will resolve it. Just like transparency around campaign finance and lobbying has done little in the way of eliminating all misconduct related to those activities.

“Publicly disclosing prosecutorial misconduct with a Brady Violation Disclosure Letter is no panacea. I do not offer it as a comprehensive remedy for Brady misconduct,” write Kreag. “Rather, given the limitations of the current remedies, it should be added to the mix, particularly because in light of the ease with which it can be implemented and the potential benefits it offers.”

Before closing his paper off by presenting readers with an example of a sample Brady Violation Disclosure Letter, Kreag concludes by delving deeper into why public shaming of prosecutors via the letters could, at the very least, put a dent in the issue of prosecutorial misconduct stemming from failure to comply with Brady.

“[P]rosecutors are not immune from public influence, particularly where negative publicity stems from misconduct that cuts to the core of the prosecutorial function, as Brady violations do,” Kreag concluded. “Shedding light on misconduct in a targeted fashion carries promise to influence prosecutors to employ robust disclosure practice … The available empirical data, case studies, and theoretical studies support the conclusion that Brady Violation Disclosure Letters have the potential to increase Brady compliance.”

For now, though, Brady Violation Disclosure Letters are merely a hypothetical proposal. Journalists, criminal justice advocates, activists, and well-situated defense attorneys will – in the meantime – have to continue carrying out their own system of disclosure in the attempt to snuff out Brady violations. 

Sources: law.arizona.edu, papers.ssrn.com, supreme.justicia.com

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