Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

This issue of The Champion, the first of two issues focusing on prosecutorial misconduct, shines a light on a serious problem in the criminal justice system. The idea to aggregate a series of articles on this topic was in part triggered by a recent spate of high-profile cases. As President Cynthia Orr notes on page 5 in her president’s column, Prosecutorial Misconduct: An Essential Term of Art, the cases involving former Sen. Ted Stevens, the Duke lacrosse players, and chemical conglomerate W.R. Grace provide clear-cut examples that have thrust the misconduct issue into the public consciousness.¹ In Troubling the Heavens, Stephen Spivack, David E. Roth and Daniel P. Gordon hone in on Brady violations in the Stevens and W.R. Grace cases. The Q&A with Bob Cary and Brendan Sullivan provides firsthand insights in the case of Sen. Stevens. In addition, Angela J. Davis offers a multifaceted approach for Reform of the Prosecution Function.

Prosecutorial misconduct, however, is not new, nor is it limited to a handful of high-profile cases. A 2003 study by the Center for Public Integrity found that prosecutorial misconduct was a factor in dismissed charges, reversed convictions, or reduced sentence determinations in at least 2,012 cases since 1970.² Of course, experienced practitioners also know that the harmless error doctrine insulates many instances of misconduct. While misconduct can arise in many forms,³ the most prevalent, and the one which should be most preventable, is the practice of withholding evidence favorable to the accused. So what’s the problem?

On the federal side, there is a renewed focus on Rule 16. In the wake of the Stevens case fiasco, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia, who presided over the case, wrote to the Judicial Conference Advisory Committee on the Rules of Criminal Procedure and urged re-examination of Rule 16 to require disclosure of any exculpatory information. The proposed new rule would eliminate prosecutorial discretion to determine whether favorable evidence is material and replace it with a compulsory disclosure requirement. This simple salutary approach faces a rough road.

A similar effort to amend the rules failed in 2006. It was blocked when the Department of Justice (“DOJ”) strongly opposed the revision, arguing that a revision to the U.S. Attorneys’ Manual, which added a section defining prosecutorial disclosure obligations, was an adequate solution. Obviously, it was not. Now, as the Judicial Conference again considers an amendment, DOJ is again opposing revision. In October, Assistant Attorney General Lanny Breuer told the judiciary’s Criminal Rules Advisory Committee that recent reforms instituted by Attorney General Eric H. Holder Jr., are a sufficient response to any concerns.⁴ Downplaying the notion that prosecutorial misconduct is widespread, a theme he had expressed when he addressed NACDL’s White Collar Crime Seminar in New York two weeks earlier, Breuer left no doubt that DOJ will fight any effort to require prosecutors to turn over all favorable information to the defense.

To ensure that the views of the criminal defense bar are considered as the process of reviewing Rule 16 unfolds, NACDL has established a Discovery Reform Task Force. The mission of the task force, which is chaired by Board member Mark J. Mahoney, of Buffalo, N.Y., is broad.⁵ The group will not only craft NACDL’s position with respect to Rule 16, but will also consider legislative reforms and conduct a searching analysis of both state and federal practices throughout the country.

As this process unfolds, inevitably the task force will have to answer the question posed above: just what is the problem? Why is misconduct, especially the withholding of helpful evidence, prevalent? Why is it countenanced? Recently, NACDL co-sponsored a conference entitled New Perspectives on Brady and Other Disclosure Obligations: What Really Works? The program was conceived and organized by Professor Ellen Yaroshefsky, director of the Jacob Burns Center for Ethics at Benjamin N. Cardozo School of Law in New York and co-chair of NACDL’s Ethics Advisory Committee.⁶ The conference considered the problem from myriad perspectives. After a day of presentations from defense practitioners, state and federal prosecutors, judges, and experts from diverse but relevant fields such as risk management, cognitive science, and information management, several working groups brainstormed on a second day.⁷ The groups looked at prosecutorial disclosure obligations, the process of disclosure, training and supervision, systems and culture, and internal and external regulation. The full findings will eventually be published and will be an invaluable resource for reformers.

The most striking revelation was the view of those (few) prosecutors, who, either pursuant to law or enlightened practice, have opted to engage in open-file discovery. They report that this procedure minimizes instances of misconduct, promotes timely resolution of cases, and most importantly, advances the cause of justice. Viewed from this perspective, one cannot escape the conclusion that while there may be many potential solutions, including rule amendments and statutory reform, the real answer to discovery reform lies in a change in culture.

Although there are increasing exceptions, the prevailing approach to disclosure in criminal cases is to provide as little to the defense as possible and to provide it as late as possible.⁸ Every rule of disclosure, including Brady, is read as narrowly as possible, in the expectation that even when non-disclosure comes to light, the threshold for reversal is so high that the conviction may withstand attack.⁹ This culture of non-disclosure must change.

In a briefing for NACDL’s Discovery Reform Task Force, Mark Mahoney cited the Canadian approach to discovery as a model to consider. In 1991, Canada’s Supreme Court held that the prosecution had to turn over all material relevant to the charges, whether the prosecution intended to use it or not.¹⁰ The decision was based on a provision of the Canadian Charter of Rights and Freedom, adopted in 1982, that accords the accused the right to “make full answer and defen[s]e.” The provision is analogous to the compulsory process clause in the U.S. Constitution. The Court stated the general obligation as follows:
 

The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.¹¹ 

Imagine if that were the rule in the United States. In a culture of disclosure, instances of wrongful conviction would decrease, trust in the process would increase, and there would be no need for The Champion to devote dual issues to the subject of prosecutorial misconduct.

Notes

1. Just as this issue was going to press, another case of misconduct drew national attention when U.S. District Judge Cormac Carney of the Central District of California dismissed with prejudice the backdating-related charges in the Broadcom stock options cases. Judge Carney found a pattern of misconduct that “distorted the truth-finding process and compromised the integrity of the trial.” Transcript of Proceedings at 5195, United States v. Ruehle, No. SACR 08-00139-CJC (C.D. Calif. Dec. 15, 2009).
2. Center for Public Integrity, Harmful Error: Investigating America’s Local Prosecutors 108 (2003). See also The Justice Project, Improving Prosecutorial Accountability — A Policy Review 2 (2009).
3. The Justice Project report enumerates several prominent forms of misconduct, including the use of unreliable in-custody informant testimony, courtroom misconduct, mishandling of physical evidence, threatening or badgering witnesses, using false or misleading evidence, and improper behavior during grand jury proceedings. Id. at 2, citing Angela Davis, Arbitrary Justice 125 (2007).
4. On April 14, 2009, Mr. Holder announced several steps as part of “an ongoing process to ensure justice is served in every case.” The measures include providing supplemental training to prosecutors on their disclosure obligations; establishing a working group of senior prosecutors and senior DOJ officials to review discovery practices in criminal cases; and creating a new position at DOJ to focus on discovery issues.
5. In addition to Mark J. Mahoney’s leadership, the Discovery Reform Task Force includes William J. Genego, Peter Goldberger, Carmen D. Hernandez, Michael J. Iacopino, Joseph F. Lawless, Ellen S. Podgor, Donald G. Rehkopf Jr., Solomon L. Wisenberg, and Ellen Yaroshefsky. The task force also includes NACDL Past President Larry S. Goldman, Secretary Theodore Simon, President-Elect Jim E. Lavine, and President Cynthia Hujar Orr.
6. In addition to NACDL, co-sponsors included Cardozo Law Review, Louis Stein Center for Law and Ethics at Fordham Law School, Center on the Administration of Criminal Law at New York University Law School, the Criminal Justice Section of the American Bar Association, Justice Center of the New York County Lawyers’ Association, and the National District Attorneys Association.
7. I was fortunate to have been invited to attend the conference and participated in a working group that considered the role of external regulation.
8. Indeed, on the federal side, the Jencks Act (18 U.S.C. § 3500) delays discovery of a witness’s prior statements until after the witness testifies in direct examination at trial, severely undermining its essential value to the defense. But for the determination of district courts to assert their supervisory authority to minimize the need for extraordinary delay while a trial is underway, vital discovery material would almost never be of use to a defense attorney.
9. Reversal will generally require a defense showing that the withheld evidence was exculpatory and material, an exceptionally high burden. See United States v. Bagley, 473 U.S. 667 (1985); Strickler v. Greene, 527 U.S. 263 (1999).
10. R. v Stinchcombe, 3S.C.R.326, 68 C.C.C. (3d) 1 (1991).
11. The Court said that the obligation to disclose is subject to discretion in some situations, such as where privilege or the protection of informers is involved. But even in those situations the discretion is reviewable by the Court, which must be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defense.

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