courthouseThis past September, District Court Judge Alison Nathan, from the Southern District of New York, issued a withering decision reprimanding prosecutors in the U.S. Attorney’s Office for a “cascade of failures to timely disclose” Brady materials before or even during trial, including documents that the Government disclosed to the defense only after the trial concluded and which the Government admitted were exculpatory. In fact, records that ultimately made their way before the Court showed that prosecutors knowingly misrepresented information about the handling and review of search warrant fruits and took steps to “bury” exculpatory documents in belated, post-trial productions.

Fortunately for the defendant in that case, United States v. Sadr, the Government eventually took a knee and acknowledged the prosecutors’ failings. The Court vacated the defendant’s conviction and dismissed the charges against him with prejudice. Unfortunately, these failures aren’t unique to the Southern District of New York.

The Fifth and Fourteenth Amendments to the U.S. Constitution guarantee due process to criminal defendants. One component of that due process is a requirement that prosecutors disclose to the accused all “evidence favorable to the accused” that is “material either to guilt or to punishment.” The prosecution’s failure to provide this evidence to the accused – so-called “Brady” material after the Supreme Court’s decision in Brady v. Maryland – is a constitutional violation regardless whether the prosecution acted in good faith or bad faith.

Brady disclosures are a critical means by which the defense can put the prosecution to its burden, even if it doesn’t ultimately get the defendant into the endzone (and out of prison). Indeed, exculpatory evidence can mean the difference between a conviction or an acquittal and, very often, can increase a defendant’s chance to obtain a less severe sentence. Given this importance, courts have reinforced prosecutors’ Brady obligations in the nearly six decades since the Supreme Court recognized them. But that reinforcement doesn’t exactly translate into prosecutorial compliance, as Judge Nathan’s decision illustrates.

Several years ago, federal prosecutors withheld crucial Brady material from the defense in a high-profile corruption prosecution of the late Alaskan Senator Ted Stevens. A multi-year investigation, after Stevens’ conviction had been vacated at the Government’s own request, uncovered several instances where the prosecution hid evidence that tended to show Senator Stevens was acting on the up-and-up, failed to disclose favorable witness statements, and improperly inflated the value of the alleged perks Senator Stevens purportedly received.

The impact of the Stevens case has been long-lasting, if slow to bring about real change. Just a few days ago, however, Congress enacted the Due Process Protections Act, a rare bi-partisan proposal led by Senators Dan Sullivan (R-Alaska) and Dick Durbin (D-Ill.), that provides for the amendment of Federal Rule of Criminal Procedure 5 to require judges in criminal cases, at the beginning of every case, to issue an “order to the prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.”[1] The Act also requires judges to remind the prosecution of the “possible consequences for violating such orders” and instructs each judicial district to develop a form order.

The reference in the Act to the “possible consequences” for a violation of Brady obligations is worth considering. The Eastern District of Virginia has already issued its model Brady order and refers to the “serious consequences” that can attend a Brady violation: vacating a defendant’s conviction or disciplinary action against the prosecution. The reality, of course, is that vacating a conviction is likely the consequence. In Senator Stevens’ case, the prosecutors found to have committed the violations were not punished in any meaningful way – two of the six were briefly suspended, but that was later overturned.

As for vacating a conviction, this only has a tangential effect on the prosecutors who committed the violation. They will continue to go about their jobs (like the Stevens’ prosecutors), managing heavy caseloads that might themselves be responsible for the more typical – if equally unacceptable – disclosure failures. It’s hard to see how reversal of a conviction offers any more than a vague incentive for prosecutors to take their Brady obligation seriously in the next case. And the lack of real consequence personally is even less incentive.

The Act is ultimately a small salvo in a growing conversation about the true extent of prosecutors’ conduct and misconduct in pursuing criminals. Last year, the New York legislature enacted a law creating a commission that would review state and local prosecutors’ offices to unearth and address prosecutorial misconduct. Unfortunately, the District Attorneys Association of the State of New York challenged the law and the Governor and legislature agreed to take the plan back to the huddle. Related questions of prosecutorial misconduct have been percolating, and we can expect defense counsel to hammer the Brady orders that flow from the Act, but it remains to be seen whether defendants’ due process rights and the “serious consequences” for violating them will be taken seriously.

[1] Public Law No. 116-182 (Oct. 21, 2020).