More than half a century ago, the Supreme Court established a rule that requires prosecutors to turn over to defense attorneys any evidence pointing to a defendant's innocence. It's known as the Brady rule, and violations of it occur far too often and can lead to devastating consequences. In a dissenting opinion last year, Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals declared that "there is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." There is no shortage of examples.
Take the case of Mark Sodersten. In 2007, a state appellate court reversed his 1986 murder conviction after finding that the prosecution failed to give the defense audiotapes of interviews with a key witness that contained evidence pointing to Sodersten's innocence. Tragically, the ruling came too late for Sodersten, who spent 22 years behind bars and died in prison months before he was awarded a new trial.
Or consider Kash Delano Register, who served 34 years behind bars for a 1979 murder in Los Angeles that he always maintained he didn't commit. He was released last year after a judge found that prosecutors and police "repeatedly concealed relevant evidence" that pointed to Register's innocence.
And then there's Obie Anthony, who was freed in 2011 after serving 17 years in prison for a murder in South Los Angeles after a judge ruled that the prosecutor failed to disclose exculpatory evidence. Anthony was released only after lawyers from Northern California and Loyola Law School innocence projects demonstrated that the key eyewitness for the prosecution hadn't actually observed the crime — and that the prosecution had not disclosed a deal to give the witness favorable treatment on unrelated charges in exchange for his testimony.
There is an easy step California should take to curb this type of prosecutorial misconduct — the adoption of an ethical rule. One reason even well-intentioned prosecutors violate Brady is the cognitive difficulty of predicting before a trial has even occurred whether undisclosed information might be considered "material" — or sufficiently important to overturn a conviction — by an appellate court. Instead, prosecutors should follow a simple prophylactic rule that errs on the side of caution. Under the proposed ethical standard, prosecutors simply turn over any potentially helpful evidence without judging whether it could help lead to an acquittal.
The American Bar Assn., which publishes "Model Rules of Professional Conduct" to serve as ethical standards for attorneys nationwide, enacted Rule 3.8. The rule's objective is to eliminate confusion. Part of the rule, which defines the evidence that must be disclosed, was designed to be broader and independent of Brady obligations, requiring prosecutors to disclose before trial all evidence that "tends to negate the guilt of the accused or mitigates the offense." Again, this differs from Brady because it does not require prosecutors to evaluate how much the evidence tends to negate the defendant's guilt. That is for the defense to argue and for the jury to decide.
The rule provides an exception so that prosecutors who have real concerns about witness safety, subornation of perjury or other significant considerations can seek and obtain protective orders from a court to delay disclosure. Equally important, other parts of the rule require prosecutors to turn over any evidence pointing to innocence that they become aware of after a conviction; they must take proactive steps to vacate a conviction if there is clear evidence of the defendant's innocence.
California is the only state in the nation that has failed to adopt some version of this rule. Last week, we testified about the need for this rule at the State Bar of California's hearing on attorney competency and disciplinary standards. The bar has spent nearly a decade redrafting a new set of rules of professional conduct. Complaints about the bar's approach to redrafting the new rules recently led California's Supreme Court to announce that it would restart the process with a new rules commission. The criminal-justice system cannot wait another decade to adopt a rule that will ensure fairer criminal trials. While the new commission considers how to revamp all the rules, the bar and court should adopt the American Bar Assn. model rule for disclosure of exculpatory evidence.
The obligations imposed by the rule are not about making the average prosecutor's job more difficult or punishing for innocent mistakes. In fact, these men and women deserve credit and praise for their public service and dedication to justice. Rule 3.8 is designed to make the system fairer and better by ensuring that criminal defendants have access to all relevant evidence that could aid in their defense. For the sake of the many men and women who have needlessly lost years of their lives because they weren't given a fair chance at trial, we urge the California Supreme Court to take this important step and bring California prosecutors in line with the rest of the nation. Waiting will just lead to more injustice.
Laurie Levenson is a professor of law at Loyola Law School and founding director of Loyola's Project for the Innocent. Barry Scheck is co-director of the Innocence Project at Benjamin Cardozo School of Law in New York City.
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