Legal News

Mistakes By Prosecutors Alive and Well; Few Punished

By Amir Efrati

The botched case against former U.S. Senator Ted Stevens (pictured, left) had us asking: Does the government fail to disclose so-called Brady material — evidence that could aid criminal defendants at trial — more often than one would think? Yes, according to many researchers we spoke to, including some former prosecutors.

We found a bunch of reports and studies that support the notion, a couple of which are cited in today's WSJ story on the topic. Of course, defense attorneys routinely claim that prosecutors violated such disclosure rules, but judges dismiss the vast majority of complaints as baseless.

Many disclosure violations by prosecutors aren't done on purpose. Prosecutors may not recognize certain evidence as being potentially helpful to the defense, and other times police officers don't give prosecutors all the evidence.

Still, prosecutors often have few incentives to turn over evidence that could damage a case, save for the goodness of their hearts. Let's not forget that prosecutors are often judged by one standard: winning cases.

Disclosure violations don't routinely come to light. But when they do, the conduct often goes unpunished, even if they are reckless or intentional. (For those deeply interested in prosecutor mistakes, check out this 1999 series by the Chicago Trib.)

Punishment is most likely to come in high-profile debacles. The six prosecutors on the Stevens case are now facing a federal criminal probe. Another example: former DA Michael Nifong, who in 2006 prosecuted three male Duke University athletes for alleged rape and later failed to disclose evidence that helped clear them of wrongdoing. Mr. Nifong (pictured, right) was disbarred and received a day in jail. (See another recent example from Boston here.)

How to fix the issue? Some have suggested these remedies:

*Allow defense attorneys access to material gathered by police and prosecutors during an investigation, but without endangering the safety of witnesses. (To see a nifty graphic on Brady disclosure policies nationwide, click here.)

*Instruct judges to report egregious violations to their courts' disciplinary committees or state bar association.

*Bolster state bar associations' enforcement of egregious violations.

*Require prosecutor offices to establish procedures for reviewing and punishing violations.

Full post as published by Law Blog - WSJ.com on April 16, 2009 (boomark / email).