[V]iolations of Brady are the most recurring and pervasive of all constitutional procedural violations, with disastrous consequences: innocent people are wrongfully convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful legal and ethical enforcement and accountability has a corrosive effect on the public’s perception of a justice system that often appears to be arbitrary, unjust, and simply unreliable.
Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L. Rev. 13, 15 (2007).
At SimpleJustice blog (a blog worth following) there is a piece about Judge Kopf and a tweet which leads to a discussion of a prosecutors obligation to provide discovery to the defense.
Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.
LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.” All this caused Capt X (the defense counsel) to audibly sob at counsel table, and she was unable to continue.
Unfortunately, it appears that the words and actions of the trial counsel (prosecutor) caused the defense counsel to make “several decisions about the appellant’s representation that were against her client’s interest, against the advice of the DHQE, and consistent with a concern for her and her husband’s situation.”
Sadly, today we report the decision in United States v. Hale, decided 31 May 2017, by the Navy-Marine Corps Court of Criminal Appeals. Of seven assignments of error raised on appeal, the court reversed on this issue: “III. That the appellant received ineffective assistance from his trial defense counsel, who were laboring under a conflict of interest[.]”
Please don’t do this.
[T]he defense counsels did not respect the judge’s ruling.[I]n an astounding show of contempt, [they] tried to force the judge to reverse himself by their unilateral withdrawal from the proceedings, on the apparent pretext that they were not prepared.
In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.
This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.
Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?
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.
Military and civilian counsel military cases is bound by Service rules of professional responsibility as well as their bar. The military RPC are based on the ABA Model Rules. Thus, ABA interpretations can be meaningful and helpful.
What do you do with the client file when the case is over?
This past July, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 471 Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled