By Reid Allison, J.D. Candidate

On November 8, the Supreme Court heard oral argument in Smith v. Cain.  Smith is not interesting because of controversy surrounding its facts or because the Justices appear reasonably split on the questions of settled law.  Instead, this case is important because it deals with an absolutely essential predicate to a fair trial: disclosure by the prosecution of all potentially exculpatory evidence as required by the decades-old case ofBrady v. Maryland

The timing of this case is also significant as it comes only one term after the Court’s decision in Connick v. Thompson.  In Thompson, the Court held that a “single violation” of Brady did not expose district attorneys to § 1983 liability.  Criticism of the opinion was widespread and largely focused on the Court’s framing of the facts as a “single violation,” as well as the unprotected state in which it appeared to leave defendants’ Due Process rights as set out in Brady.  See generallySusan Bandes, The Lone Miscreant, The Self-Training Prosecutor, and Other Fictions: A Comment on Connick v. Thompson, 80 Fordham L. Rev. 715 (Nov. 2011).  While the four dissenters from Thompson would have the ability to grant certiorari on their own, under the Supreme Court’s “rule of four,” it is very unlikely that they would have done so without feeling that there were strong prospects to gain at least one vote for an opinion remedying some of the deficiencies in Thompson and strengthening theBrady requirement.

If oral argument in the Supreme Court still means anything, it seems likely that the Court will rule—perhaps unanimously—in favor of the petitioner.  The petitioner’s case was argued by former Assistant to the Solicitor General, and current Williams & Connolly partner, Kannon Shanmugam.  By all accounts the oral argument was a rout.  Thus, the question does not seem to be for whom the Court will rule, but how broad and strong an opinion the Court will draft.  Because of the fundamental importance of the right to defendants, the Court should issue an opinion revisiting its Brady jurisprudence and establishing strong mechanisms for deterrence of prosecutor misconduct in disclosure of exculpatory material evidence.

Under the Court’s current approach, all “material” evidence, importantly including that which may be exculpatory for the defendant, must be disclosed to the defendant.  See Brady v. Maryland, 373 U.S. 83, 87 (1963).  However, failure to disclose such evidence will not result in § 1983 liability for offending prosecutors or offices.  See, e.g., Bandes, at 715.  This approach has led “[s]cholars [to] decry disclosure practices and the ‘dissonance between Brady's grand expectation to civilize the United States criminal justice and the grim reality of its largely unfulfilled promise.’”  Ellen Yaroshefsky, Prosecutorial Disclosure Obligations, 62 Hastings L. J. 1321, 1325 (May 2011) (quoting multiple scholarly articles on the subject).

There are multiple layers to the problems inherent with the Supreme Court’s current approach.  First, the Court does not seem to fully grasp the unique set of circumstances and incentives that confront a prosecutor every day.  Though tasked to uphold the law and ensure that fairness is done in criminal prosecutions, including the pre-trial stage, a prosecutor clearly has other incentives.  Where resources are overstretched and priorities clearly lie elsewhere, a prosecutor may knowingly neglect to closely examine possible exculpatory evidence.

Given this precarious position, it appears overwhelmingly likely that prosecutorial misconduct in the form of failing or refusing to disclose material information to the defense will occur very often.  Studies show that this danger is very real.  See, e.g., David Rittgers, Connick v. Thompson: An Immunity that Admits of (Almost) No Liabilities, 2011 Cato Sup. Ct. Rev. 203,218–19 (detailing and noting the existence of studies showing an alarming rate of prosecutorial misconduct).  In light of the risks inherent in the act of prosecution, strong mechanisms to deter failures to disclose need to be implemented in order to give real meaning to the criminal defendant’s Constitutional rights. 

The current state of the law does not provide deterrent mechanisms sufficient to significantly lessen the incidence of prosecutor misconduct.  Courts have typically left sanctions against particular prosecutors up to DA’s offices or state bars.  The Court relies on these avenues to provide a deterrent effect to future violations by prosecutors.  The trouble with this judicial abdication is that the discipline the Court assumes will come from offices or bar disciplinary committees does not come to pass in a significant percentage of misconduct cases. See generally Joel Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined By Their Offices or the Bar: Three Cases Studies That Prove That Assumption Wrong, 80 Fordham L. Rev. 537 (Nov. 2011).  Once the Court’s assumption of other deterrent mechanisms is shown to be flawed, if not entirely erroneous, the need for reexamination of Brady case law toward better protection for criminal defendants’ constitutional rights is clear.  Whether imposing § 1983 liability on violations that are proven to be willful or creating some other means of deterrence, if the Court is serious about the Brady requirement, and the essential defendant rights it protects, they must significantly alter current law.

Moreover, the problem of prosecutorial misconduct is compounded by the current state of many large prosecutors’ offices across the country.  Many large counties across the country have more criminal cases than their District Attorney’s office can effectively handle.  See, e.g., Adam Gershowitz & Laura Killinger, The State Never Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants, 105 Nw. U. L. Rev. 261,267–74 (Winter 2011).  This inundation of DA’s offices naturally has many deleterious effects on the quality of prosecutions and the fairness of proceedings provided to criminal defendants.  Of particular note here is the lessened ability of prosecutors to fully disclose material, possibly exculpatory evidence to the defense as required by Brady.  See, e.g.id. at 282-85. 

Furthermore, on a more psychological level, there are clear dangers of cognitive dissonance in prosecutorial discretion to disclose or not to disclose.  See Nathan Frazier, Note, Amending for Justice’s Sake: Codified Disclosure Needed to Provide Guidance to Prosecutor’s Duty to Disclose, 63 Fla. L. Rev. 771, 784-87 (May 2011).  In the rare case where prosecutors have ample time to closely review all evidence for Brady concerns, they still have a cognitive bias toward nondisclosure where they have convinced themselves of the defendant’s guilt. These varieties of violation of a defendant’s rights under Brady are of an unintentional variety and therefore not capable of deterrence.  As such, even a strong Supreme Court decision in Smith providing for deterrence mechanisms against intentional prosecutorial misconduct will not serve to lessen the incidence ofBrady violations that occur unintentionally.

In light of these complications, which occur largely on an unintentional level, to fully effectuate the aims of Bradyand protect the defendant’s constitutional rights, a supplemental, non-judicial solution is required.  As David Rittgers so aptly put it, “[a] recalibration of the incentives that currently fail to deter Brady violations would make a worthy addition to any legislative agenda that follows from that recognition--and fulfill the intent of the Fourteenth Amendment and the Civil Rights Act of 1871 along the way.”