You can understand how Thompson has come to his views. But those views are shared by many of the experts who practice in and write about this corner of the law. "What troubles me most," law professor Stephen Bright told me last week, "is that so many Brady violations are discovered as a matter of serendipity. In capital cases, we sometimes find them by getting the prosecution's file in Open Records (or Freedom of Information) actions. But most people convicted of crimes have no lawyer to represent them after their conviction has been upheld on appeal. ... It is impossible to know how many Brady violations are never discovered ..."
When he overturned the jury's verdict in Thompson's favor, Supreme Court Justice Clarence Thomas wrote that there were other meaningful remedies available to aggrieved defendants to ensure that prosecutors complied with their Brady obligations. "Legal training and professional responsibility" were enough to immunize district attorneys from such awards, Justice Thomas wrote. But study after study proves conclusively that this is wrong -- that prosecutors are rarely sanctioned by the bar when they cheat on their disclosure obligations. "The Myth of Prosecutorial Accountability," is how the Yale Law Journal put it.
This paradigm doesn't affect the vast majority of prosecutors who try to do right by their Brady obligations. But the problem is that it also doesn't affect the small minority of prosecutors who do not. It's essentially a no-lose situation for the cheating district attorney. If she fails to disclose the evidence and doesn't get caught no one ever knows (except the condemned inmate and the real criminal). And if she fails to disclose the evidence and eventually gets caught, the wrongly convicted man is freed, but she gets to keep her job in the prosecutors' office without punishment. Under pressure to get convictions, dealing often with an overworked and understaffed defense attorney, why not take a shot and withhold the evidence?
Last month, the outer limits of these transgressions was exposed. In Texas, a state judge named Ken Anderson was arrested and charged with hiding exculpatory evidence at the expense of Michael Morton, who spent 25 years in prison for a murder he did not commit. Anderson faces relatively minor charges. But if it were up to Thompson, Anderson would be facing attempted murder charges. "What happens when we learn that a district attorney has killed an innocent man?" he asked me yesterday. "Isn't it premeditated murder? What are we willing to accept" from our prosecutors?
The Path Ahead
It's not difficult to see where the law's priorities lie. When we have disputes over money, Bright told me last week, "there is elaborate discovery with a full exchange of documents, names of witnesses, depositions, interrogatories, requests for admissions, etc. but in cases involving possible loss of life or liberty, we still have 'trial by ambush' in most jurisdictions with very little discovery." The problem of Brady enforcement is made worse, Bright says, because the complexities of today's criminal law means that "the prosecution often has no idea what the defense will be. Bright reasoned:
Even the most conscientious prosecutor may not know how critical a document may be to establishing the defendant's innocence. Plus, the prosecutor has no more incentive to turn over exculpatory evidence to the defense than the government has to provide the defendant with a good lawyer. Few prosecutors who are convinced of a defendant guilt are going to turn over evidence that may hurt their chances of obtaining a conviction. It is very easy to rationalize - from the prosecutor's view of the case - that the evidence is not really exculpatory.
The answer here is not nearly as difficult as judges and prosecutors and bar associations make it out to be. To honor the legacy of Brady, to be true to its constitutional command, to reduce the perverse incentives that now affect too many prosecutors' offices, pretrial discovery in criminal cases must be broadened to include all evidence (trial judges can protect witness security as appropriate). And there must be swift and significant punishment for prosecutors who violate the rule. John Thompson says that this isn't happening more often today because judges and lawyers want to protect each other, even at the expense of wrongly convicted criminal defendants. There is little in the record of the past 50 years that proves him wrong.