May 10, 2014

The Banality of Brady Violations

Like many others, I recently took note of Bronx Criminal Court Judge John Wilson's smackdown of Bronx ADA Megan Teesdale for a blatant Brady violation, and his subsequent banishment of Teesdale from his courtroom. Unlike some other bloggers, my post focused on the episode as yet further evidence of the harms inflicted by absolute prosecutorial immunity. In retrospect, perhaps I should have paid more attention to Judge Wilson's abject refusal to recognize the violation as more than a mere mistake; that Wilson's willful blindness to the deliberateness of the conduct in the case before him and the casual ease with which some prosecutors violate their oaths was itself emblematic of the "epidemic" of Brady violations that infect too many prosecutors' offices.

In any event, I should also confess that I did have some fuzzy concern for Megan Teesdale (whom I don't know), who had the misfortune of being caught doing something that she may well have been taught in her on-the-job training was perfectly ok (nod nod, wink wink). The subtext being the open question as to whether Teesdale was simply a young prosecutor who was, at worst, profoundly sloppy, or if the "error" she made was more akin to office policy? And if it were the latter, was it fair to make her the sacrificial lamb?

It was not a hard call to make: her failure to find or promptly disclose plainly exculpatory evidence (and a rape victim's statement to an investigating officer that the sex was consensual is as blatantly exculpatory as can be), strikes at the heart of the criminal justice process. Prosecutors are required first and foremost to do justice, not simply stockpile convictions by any means necessary. Complying with the Supreme Court's dictates in Brady v. Maryland  by immediately turning over this evidence is a constitutional cornerstone of the criminal justice system, particularly since this evidence is almost always available only to the prosecution and we are entirely reliant on their adherence to the honor system to disclose.

That these violations occur so frequently as to be called an epidemic (see here, e.g.), speaks volumes. That prosecutors cannot be sued for withholding this evidence, or suborning perjury, or otherwise taking steps to railroad defendants, no matter how much harm they cause to the wrongly accused, the victims, the affected families, and the integrity of criminal justice system. This effectively incentivizes misconduct and protects those that value trial victories and convictions over doing justice.

In reading subsequent commentaries, I was struck by Scott Greenfield's comments in his blog, Simple Justice. He acknowledged Wilson's deliberate self deception, quoting the jurist, "For my own peace of mind, I absolutely refuse to believe that you did this on purpose. However, it is gross negligence on your part to have no found this information, and turned it over to the defense . . . ."  Greenfield plainly (and entirely correctly) reads Wilson's finding to mean precisely what Wilson says he means: I don't want to believe prosecutors do this on purpose because it would be too unpleasant, so I will pretend it was an accident.

Greenfield also applauded Wilson's exiling of Teesdale, depicting it as "huge," while wondering if she were the exception in the Bronx DA's office, rather than the rule.  Whether she was simply an incompetent "baby prosecutor," a rogue Brady violator, or the product of an prosecutor's office culture that valued ends over means. This, parenthetically, is not meant to suggest that Bronx D.A. Robert Johnson's office is the primary culprit. My own experience has led me to some unsavory findings in cases involving the recently deposed Charles Hynes.

Citing Greenfield, Rick Horowitz noted on his RHDefense blog, "Meh. As I said, a banal happening." Horowitz's point was that there was nothing unusual about the blatant Brady violation, that it happens all the time. He too cited Judge Wilson's anger at the egregiousness of the violation, pointing out that what Judge Wilson was really saying was that, hey, violations happen, but they shouldn't be this bad.

Horowitz's take was that Teesdale's Brady violation should have been what was huge, not the penalty. We should all be surprised that the error occurred, and not the slightest bit amazed that a supervisor corrected the record. Horowitz cites respected defense attorney Joel Rudin's comments that Brady violations like these reflect a culture that permits, if not encourages them, and that a top-down investigation is warranted. But this, Horowitz observes is, ahem, unlikely.

Hence, Horowitz says,
Why? Why is [punishing Teesdale] “huge” when “compared to deep-sixing the Brady“? It’s huge just because deep-sixing Brady material is a banal happening. . . . 
And why? Because prosecutors get away with deep-sixing Brady material virtually every day of the week, every week of the month, every month of the year, every year of their careers. People’s lives are ruined, but it’s usually not the lives of prosecutors.
Horowitz is not wrong. Which brings me back to immunity. Speaking anecdotally, based on my experiences and my review of decisions involving those fortunate enough to be exonerated, it is not at all uncommon for some investigating officers to withhold Brady material from prosecutors, or for that evidence to be turned over late or withheld altogether.

Yet, the public revelation that prosecutors have withhold evidence that every first-year lawyer knows must be produced immediately upon discovery is treated with the same headshaking bewilderment that such a thing could occur. Not to fear, Judge Wilson is telling us: this was an anomaly, the fault of a sloppy prosecutor who has been properly punished. Yet, Wilson surely knows what is commonly known: that Brady violations are an epidemic, albeit one that occurs so frequently that we only consider it "huge" when a jurist seems to care.

Until the criminals defendants who are wrongly prosecuted and imprisoned are given the tools to pursue those that knowingly violated the constitution to put them in jail for days, weeks, months, or years, those errant prosecutors who place convictions over justice will blithely continue to do so unimpeded and undeterred.


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