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How Should Brady Violations Be Deterred?

by: Don Samuel

At the heart of the punitive phase of our criminal justice system are the twin goals of deterrence and retribution. At least, that is how we generally view the reason that defendants are subject to punishment.

But what about lawyers who engage in misconduct during the course of the proceedings? How do we address their misbehavior? The answer is: erratically, and often with forgiveness, and the granting of second (or third) chances. At least, that is historically what happens when prosecutors violate the rules of the court, including violations of the constitutional rights of the defendants who are prosecuted.

Consider, for example, Brady violations. These are violations of the rules of discovery that govern practice in criminal cases: the Constitution requires that the prosecution team (including law enforcement officers and prosecutors) furnish to the defense any exculpatory information, or information that impeaches the testimony of a prosecution witness. Sometimes, it is debatable whether a particular item of information really qualifies as “exculpatory;” but sometimes it is as clear as the day is long.

What happens when a court finds out after trial that a prosecutor violated Brady and failed to reveal information that was exculpatory? Generally, the answer to that question depends on how important the information was compared to the strength of the prosecution’s case. Hypothetically, if the prosecution had a DNA sample or a hair sample that exonerated the defendant and the prosecutor or the police fail to reveal the evidence to the defense, then the defendant will be granted a new trial. If the prosecutor had information that was comparatively insignificant, compared to the overwhelming evidence of the defendant’ guilt, nothing will happen. But in neither circumstance the prosecutor who improperly withheld the information suffer any consequence.

Why do the twin goals of deterrence and retribution not apply in these situations? When a defendant is charged with a crime, does the court ever respond, “Harmless error?” If everybody in the system believes that compliance with the Constitution is important and that providing exculpatory information to the defense is an indispensable constitutional guarantee, why is there rarely any punishment for the misbehaving police or prosecutor who violate the command of Brady? We are attaching a short summary of forty pages of decisions in the federal appellate courts in which the court found Brady violations, and yet, no consequences for the prosecutors. And there also Georgia appellate decisions in which convictions were reversed based on Brady violations and not a hint of any sanction for the prosecution. Where is the deterrence?

That is the reason that a recent decision in New York is worth reviewing. The case involved a federal prosecution of a man for violating the Emergency Economic Powers Act, as well as bank fraud, and money laundering. The opinion is from the Southern District of New York. USA v. Nejad, 18-224 (S.D.N.Y. June 9, 2020). The defendant was convicted, but shortly after trial, the government moved to dismiss the charges – after conviction – apparently recognizing that Brady information was improperly withheld from the defense during trial. Judge Alison Nathan was not satisfied with simply dismissing the charges. She entered an Order demanding answers: How did this happen? Why did this happen? What kind of training do the prosecutors have in the world-renowned SDNY United States Attorney’s Office?

This reminds us of a case we handled in the Fourth Circuit in which the appellate court determined that Brady information was withheld from the defense during trial. The Fourth Circuit was outraged (kind of) and insisted that a copy of the decision be personally delivered to the Attorney General of the United States. This is what the Fourth Circuit wrote in that case:

Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants' convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices “harmless” as to a specific defendant's verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. “No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.

We urge the district court in the Eastern District of North Carolina to meet with the United States Attorney's Office of that district to discuss improvement of its discovery procedures so as to prevent the abuses we have referenced here. Moreover, if this sort of behavior continues in subsequent cases, this Court may wish to require that the United States Attorney for the Eastern District of North Carolina, as well as the trial prosecutor, be present at oral argument so that the panel can speak directly to her or him about any alleged misconduct. Sanctions or disciplinary action are also options.

To underscore our seriousness about this matter, and to ensure that the problems are addressed, we direct the Clerk of Court to serve a copy of this opinion upon the Attorney General of the United States and the Office of Professional Responsibility for the Department of Justice. The transmittal letter should call attention to this section of the opinion.

We do not mean to be unduly harsh here. But “there comes a point where this Court should not be ignorant as judges of what we know as men [and women].” … What we know is that we are repeatedly confronted with charges of discovery abuse by this office. What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable. Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated. Whatever it takes, this behavior must stop. U.S. v. Bartko, 728 F.3d 327, 342–43 (4th Cir. 2013).

We are also reminded of the decision in the Shaygan case in the SDFla, where the district court denounced the misconduct of the prosecutors and their supervisors, who surreptitiously taped the defense attorney who was interviewing witnesses and did not reveal what they had done until the middle of trial. The 45-page decision of the district court in that case is well-worth reading, though the award of attorney’s fees to the defense was later reversed by the Eleventh Circuit. The punishment of the prosecutors who engaged in this outrageous behavior? One prosecutor was transferred from the criminal division to the civil division of the US Attorney’s Office in Miami and another was demoted from her supervisory position.

And who is unaware of the abundant Brady violations in the prosecution of the Alaska Senator, Ted Stevens, whose conviction was set aside at the request of Attorney General Eric Holder based on the prosecutors’ persistent violations of the Senator’s constitutional rights?

But we ask, again, were prosecutors deterred from further discovery violations? Is the government’s response simply, “The reversal of the conviction and the public shaming of the prosecutor is sufficient deterrence.” That certainly never works for us when we represent a defendant being sentenced in federal or state court. Can you imagine a defense attorney arguing to a judge, “Please give my client a second chance, because there is no need to sentence him to jail, or impose a fine, because he has learned his lesson and he is ashamed and will not let it happen again.” Or how about this: “Please do not sentence my client to jail; his boss is going to talk to him and require him to take a short online course that instructs him not to commit felonies anymore … problem solved, case closed.”