Brady points

Courtesy of Prof. Colin Miller and his excellent evidence blog, here are some thoughts for the day on prosecutor error.

Keep this in mind when the prosecution want’s to admit documents or reports.

6th Circuit Case w/Brady Violation Based on Nondisclosure of Cover Sheet About Unreliability of Evidence

In the recent reopened PCR proceedings, Adnan made the claim that the State violated the Brady doctrine by failing to disclose that an AT&T disclaimer about incoming calls being unreliable for determining location applied to Exhibit 31 (which did not include the disclaimer or the page indicating that the exhibit was a Subscriber Activity report). So, is there an analogous case finding a Brady violation under similar circumstances? Absolutely.

In Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010).

Proposed D.C. Local Rule Would Expand Prosecutors’ Brady Obligations

Yesterday, Tom Moore sent me the following Amended Notice of Proposed Local Rule Change and Opportunity to Comment: Download Brady Proposal. This local rule change would increase the Brady obligations of federal prosecutors in the District of Columbia. The change was proposed by a committee that included Professor Cynthia Jones, who, as I’ve noted before, has long advocated for Brady reform.

Supreme Court of Ohio Gives Slap of the Wrist to Prosecutor Who Catfished Alibi Witnesses

I tweeted about the Brockler case yesterday. The only thing more surprising than the shocking misconduct of the prosecutor being “disciplined” is the way in which he was “disciplined” by the court.

The prosecutor created a fictitious Facebook page, and used it to “catfish” several alibi witnesses.  He failed to immediately acknowledge this when confronted by another prosecutor.  In fact he maintained that such deceptions are lawful.

Brockler continued to maintain that his conduct was ethical, acknowledging that his conduct violated the letter of the law, but claiming that there should be an exception for “prosecutorial investigation deception.”

The Board of Professional Conduct disagreed with Brockler but merely “recommended that he be suspended for one year, fully stayed on conditions.” The Supreme Court of Ohio later agreed, finding that “the misconduct was an isolated incident in an otherwise notable legal career.” In other words, unless Brockler does something else wrong, he will not be suspended.

I fundamentally disagree with the Supreme Court of Ohio, and so did Judge O’Donnell, who dissented with the following one sentence opinion: “Respondent engaged in unacceptable dishonest conduct that materially affected the administration of justice, and I would impose an indefinite suspension.”

I will add that Brockler himself admitted that this wasn’t a one time thing; instead, he said that he had previously used the Facebook ruse in “a prior case.” Moreover, it’s not as if Brockler acknowledged his serious error in judgment and immediately made amends. Instead, he first covered up his actions and later claimed that they were justifiable and commonplace. To me, this justified a lengthy suspension, maybe even disbarment.