Posted on December 18, 2013 by Phil Locke
An epidemic of Brady violations – those are not my words. They are the words of Alex Kozinski, Chief Judge of the US 9th Circuit Court of Appeals in a recent decision in the case of US vs. Olsen.
If you don’t know what a ‘Brady’ violation is — it’s when the prosecution fails to turn over exculpatory evidence to the defense. The US Supreme Court ruled in the case of Brady vs. Maryland (1963) that suppression of evidence by the prosecution violates the defendant’s due process rights. Note, however, that the ruling does not specify sanctions for prosecutors who fail to comply with Brady disclosure. It only stipulates that the defendant’s due process rights have been violated, thus making a Brady violation potential grounds for post-conviction relief.
Read the Huff Post story about Judge Kozinski’s opinion here.
This quote from judge Kozinski’s opinion: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” Kozinski’s statement is interesting, because it is recognizing that there is nothing in the law that punishes (sanctions) prosecutors for this unethical behavior. They are supposedly subject to sanction from their bar association, but guess what – this just about never happens.
There has been some meager legislative progress. The “Michael Morton Act” was signed into law in Texas in May of this year, and will go into effect Jan. 1, 2014. It actually goes farther than “Brady” in that it requires disclosure of all police reports and witness statements, regardless of whether the evidence is material to guilt or punishment.
Section 10.(b) of the Act specifies what compliance is required and what sanctions will occur in the event of non-compliance with the Act. Here is the language directly from the Act:
“If the court finds that a party has failed to comply with any of the provisions of this article, the court may order and compel such party to provide the required discovery or disclosure, grant a continuance, issue a protective order, take other appropriate action as necessary under the circumstances to accomplish the purposes of the required discovery or disclosure, or, and only if other remedial alternatives have been exhausted, prohibit the introduction of certain evidence, the calling of certain witnesses, or other relief necessary to assure justice. The court may not dismiss a charge under this subsection unless authorized or required to do so by other law.”
Note that the Act does not specify sanctions for prosecutors who willfully withhold exculpatory evidence either during trial or post-conviction. So in many respects, the Michael Morton Act is tantamount to Brady – no teeth; other than being able to compel disclosure if evidence suppression is discovered. It remains to be seen whether or not this Act will have a salutary effect on the problem of prosecutors hiding evidence. Time will tell.