“Brady.” For most, that word conjures up other words and phrases that include, “Marsha, Marsha, Marsha!” It also may spark words like, “The Bunch,” “Greg,” and/or even “Sam the Butcher.” Others may think of “the man that has it all,” star Patriot quarterback Tom Brady. For most of us who work within the Criminal Justice System, Brady refers to the prosecutors’ obligation to provide defendants any “exculpatory evidence,” which includes favorable evidence to the accused, evidence that may reduce a defendant’s potential sentence and/or evidence that could impeach the credibility of a witness. The principle was represented in the landmark 1963 Supreme Court decision Brady vs. Maryland.
In that case, a guy by the name of Brady and a buddy of his named Boblit were prosecuted in Maryland for murder. Brady confessed to playing a part in the murder, however, he passionately told law enforcement that it was Boblit who did the actual killing. While prosecutors had a written confession from Boblit that he had done the killing all by himself, they failed to turn that document over to Brady’s attorneys. After his conviction and sentencing, he appealed, arguing that prosecutors violated his due process rights because Boblit’s statement was material to either Brady’s guilt and/or potential punishment. He was successful in persuading the Supreme Court that had prosecutors turned over that statement, Brady’s outcome, certainly his sentence, would have been different.
In spite of the Brady ruling, too many state and federal prosecutors choose to ignore their obligation to play fair. Every day it seems we hear of innocent defendants wrongfully convicted, many spending decades in prison. Often, the cause is prosecutors’ failure to fulfill their constitutional duty and instead, withhold crucial evidence in numerous cases. A recent study revealed that 43% of those defendants falsely accused were as a result of prosecutors committing Brady violations. Why do they (obviously not all, but many) routinely do it? Cause’ they can, and are rarely held accountable for their actions.
In many cases, the appellate courts may chastise prosecutors for their failure to turn over evidence, however, their rulings don’t change the outcome of the cases. Judges often will find that a “Brady violation” occurred, however, will rule that the defendant would have been convicted anyway, even if the material had been turned over initially.
A number of studies reveal that prosecutors were punished by courts in less than two percent of cases where findings were made that prosecutors willfully failed to disclose Brady evidence. In the tiny amount of cases where prosecutors were punished, they typically received minor penalties like having to pay costs for the disciplinary hearing.
The answer is to punish prosecutors more. Recently, one prosecutor who hid exculpatory evidence was actually given a jail sentence after an innocent man languished in prison for two decades. Additionally, prosecutors should no longer be given the job of deciding which pieces of evidence they think may help the defense, thus requiring disclosure. Instead, let us see it all. We’ll decide which evidence is helpful to our client’s case. Hopefully, after needed changes, the public’s confidence in the criminal system will increase while wrongful convictions will decrease.