February 16, 2014

An Epidemic of Misconduct, continued

It is impossible to talk about civil rights and police misconduct, without also talking about prosecutorial misconduct and the chronic violations of Brady v. Maryland. This is really just a brief primer on the issue, which is complex and requires substantial time and space to properly discuss. In sum, our constitution mandates that police inform prosecutors with Brady material, meaning evidence that may impeach the prosecution's witnesses or otherwise support a criminal defendant's claim of innocence. It is also incumbent on prosecutors to immediately disclose that evidence, or any other exculpatory evidence they are aware of. Far too often, however, these rules are ignored, often without consequence.  

This is a serious problem, and one that will likely be mentioned here time and again. As set out in two separate posts on the Lumer & Neville website, the Chief Judge of the Ninth Circuit called his brethren to task for enabling the chronic disregard of Brady, which was followed by a New York Times editorial echoing Judge Kozinski's lament.
We previously blogged about how Alex Kozinksi, the Chief Judge of the United States Court of Appeals for the Ninth Circuit, had warned about an "epidemic" of prosecutorial misconduct. It is good to see the New York Times, however belatedly, take notice of this important issue, and echo our concerns. Immune from lawsuits and free from daily scrutiny, line prosecutors are responsible for putting their obligation to serve justice and the constitution ahead of their office's (and their own) need to win. But the pressure to deliver convictions is powerful indeed, and can easily lead prosecutors to withhold evidence from criminal defendants that might help those defendants avoid a conviction. Courts are the only institution that can hold prosecutors accountable when they choose "winning" over justice or the constitution. It is critical that judges do so, even when that means punishing prosecutors to "make them care" about upholding their constitutional obligations.
Our post concerning the opinion is here, and the post on the NYT editorial is here

I have seen anonymous police officers complain on blogs that they are scapegoated for "creative writing" when it comes to justifying searches and arrest, even when that sort of fabrication is encouraged by prosecutors. I have no doubt that this sort of nudging and winking occurs on a regular basis, and that this casual approach to basic constitutional safeguards is a major cause of malicious prosecutions and wrongful convictions. A tip of the hat to Judge Kozinski for calling out his fellow jurists for not doing more to enforce Brady, and a hearty catcall to his colleagues on the Ninth Circuit for leaving the backdoor open for those prosecutors who choose to ignore the law.

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