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Brady Violations in Context

It's scarcely news at this point that the prosecution is required to turn over exculpatory evidence to the defense.  It's also scarcely news that the Department of Justice has found very serious failures in that regard by the prosecutors in the Ted Stevens corruption trial.  Indeed, the Attorney General found the violations so serious as to warrant dropping the case altogether.

It is principally, although not solely, this failure that motivated Senator Lisa Murkowski to introduce the "Fairness in Disclosure of Evidence Act of 2012."  I have not read the entire bill and so will not comment on it.  My sole aim here is to highlight a single, quite revealing paragraph in DOJ's response:

The discovery failures in the Stevens case were not typical and must be considered in their proper context. Over the past 10 years, the Department has filed over 800,000 cases involving more than one million defendants. In the same time period, only one-third of one percent (.33 percent) of these cases warranted inquiries and investigations of professional misconduct by the Department's Office of Professional Responsibility. Less than three-hundredths of one percent (.03 percent) related to alleged discovery violations, and just a fraction of these resulted in actual findings of misconduct. Department regulations require DOJ attorneys to report any judicial finding of misconduct to OPR, and OPR conducts computer searches to identify court opinions that reach such findings in order to confirm that it examines any judicial findings of misconduct, reported or not. In addition, defense attorneys are not reticent to raise allegations of discovery failures when they do occur.

It's easy to focus on one outlandish case, or a few outlandish cases, and paint the whole operation as in need of top-to-bottom reform  --  easy but misleading.  There is too much slipshod and sleazy practice in federal criminal law, of that I have no doubt.  Reforms are past due.  But we should not deceive ourselves about where the bulk of the game-playing, truth-devouring problems arise.  Whatever heartburn one legitimately may have about an increasingly politicized or even (very occasionally) reckless DOJ, it's not the prosecution that's the main culprit in hiding the ball. 

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