An Epidemic of ‘Brady’ Violations (Prosecutorial Misconduct)

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.

7 responses to “An Epidemic of ‘Brady’ Violations (Prosecutorial Misconduct)

  1. I am curious… are defendants and their counsel ever able to tell if the prosecution is withholding evidence? This to me seems like a virtual impossibility. If the prosecution decides to hide exculpatory evidence, how can the defense ever find it?

    • VERY good question.
      It’s almost always discovered in post-conviction investigations.

      • That’s sad…..I highly doubt many defendants and/or their counsel have the time or money needed to perform post conviction investigations. Most have difficulty with pre-trial investigation expenses, don’t they? I can’t imagine a local public defenders office being able to EVER perform post-conviction follow up investigations as they are already so overwhelmed, understaffed, and underfunded to begin with.

  2. Some advocates are able to receive additional discovery through the use of FOIA requests. Anyone can submit these but these are typically volunteers dedicated to helping free a person. You’re correct that the public defender’s office likely will not have the time to put the extra effort in.

    I know that in the Greg Taylor case, the Innocence Project of NC found additional evidence about a test for blood that was actually negative but the State witness testified that it was blood at trial. This ultimately lead to his exoneration.

    I wish there was more easy access to the entire case file, especially in cases where the appeals have all been exhausted.

  3. It should be a felony to withhold exculpatory evidence.

  4. Maricopa County, AZ:

    “Bill Montgomery’s Actions Argue in Favor of Ethical Rule He Opposes”
    By Stephen Lemons Mon., Oct. 7 2013 at 2:00 PM

    “At the beginning of August, I wrote about proposed new ethical rules for Arizona prosecutors, in a petition currently pending before the Arizona Supreme Court.
    Opposed by Maricopa County Attorney Bill Montgomery, as well as numerous other county, state and federal prosecutors in Arizona, these amendments to Ethical Rule 3.8 would require prosecutors to reveal to defense counsel or a court any “new, credible, and material” evidence that creates a “reasonable likelihood” a convicted defendant did not commit the crime in question.

    Under the suggested guidelines, a prosecutor must “make reasonable efforts” to look into the matter or have the “appropriate law enforcement agency” investigate the new evidence. And if there is “clear and convincing” evidence of a convicted person’s innocence, the prosecutor must work to “set aside the conviction.”

    See also:
    Bill Montgomery Opposes Ethics Rule Requiring Prosecutors to Reveal Evidence of Wrongful Convictions

    The changes were suggested two years ago by the Arizona Justice Project, a non-profit group that works to free the wrongly convicted. The proposals are based on more stringent language adopted in 2008 by the American Bar Association.”

  5. AZ: Maricopa County, “Bill Montgomery Opposes Ethics Rule Requiring Porecutors to Reveal Evidence of Wrongful Convictions” by Stephen Lemons, Phoenix New Times

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