NACDL: Widespread failure of `Brady rule’ disclosures in criminal cases

NACDL: Widespread failure of `Brady rule' disclosures in criminal cases.
Today, at the National Press Club in Washington, DC, NACDL is officially releasing its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School.
Today’s event will feature comments by NACDL President Theodore Simon, and special guests David W. Ogden, former Deputy Attorney General who is now a partner at the WilmerHale firm, and the Hon. Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals.
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Over 50 years ago, in Brady v. Maryland, the Supreme Court declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. In courtrooms across the nation, accused persons are convicted without ever having seen information that was favorable to their defense. The frequency with which this occurs and the role it plays in wrongful convictions prompted NACDL and the VERITAS Initiative to undertake an unprecedented study of Brady claims litigated in federal courts over a five-year period. The study asked: What role does judicial review play in the disclosure of favorable information to accused? The results revealed a troubling answer—the judiciary is impeding fair disclosure in criminal cases and, in doing so, encouraging prosecutors to disclose as little favorable information as possible.
The study’s findings are extensive and dramatic including, for example:
The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.
Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.
Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.
In his dissent to the Ninth Circuit’s 2013 decision denying a rehearing en banc in United States v. Olsen, Chief Judge Alex Kozinski acknowledged that “[t]here is an epidemic of Bradyviolations abroad in the land” which in his view, “[o]nly judges can put a stop to.” Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases documents that epidemic and sets forth a prescription for how to contain and ultimately cure it. As former Deputy Attorney General David W. Ogden wrote in his foreword to this report, “judges have an indispensable role and obligation to oversee the system’s guarantees of fairness and to make sure that its truth- and justice-seeking mission is fulfilled in each case.”

Unfinished Business: The Legacy of Brown v. Board of Education | The Center for Professional Responsibility

By William C. Hubbard
William C. Hubbard is the President of the American Bar Association. Mr. Hubbard is a partner with Nelson Mullins Riley & Scarborough LLP in Columbia, South Carolina.

This article is adapted from remarks to staff at ABA headquarters, Chicago, at an event commemorating the 60th anniversary of Brown v. Board of Education and the 50th anniversary of the Civil Rights Act of 1964.

In December 1953, a taxi carried Thurgood Marshall from the Wardman Park Hotel to the U.S. Supreme Court to argue his biggest case, Brown vs. Board of Education. Marshall turned to his co-counsel William T. Coleman and said, “I have to be at my best today.”Marshall said he was going to have to be as good as Henry V at Agincourt, where the young king led his vastly outnumbered forces to victory over the French. The two lawyers knew what the stakes were on that exciting, memorable day. Marshall rose to the occasion, and their work changed history.But has it changed history in the way that the Supreme Court and Thurgood Marshall and William Coleman thought it would? Regrettably, unfinished business is the legacy of Brown v. Board of Education. We need to finish this unfinished business if we are to fulfill the promise of Brown.

via Unfinished Business: The Legacy of Brown v. Board of Education | The Center for Professional Responsibility.

OTHERWISE: Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty | The Marshall Project

OTHERWISE: Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty | The Marshall Project.
Today is the first day that The Marshall Project went live. It is an investigative journalism project led by Bill Keller, former Executive Editor of the New York Times. Several of the pieces focus on the death penalty and inadequate lawyering. This excerpt from an interview with A.G. Eric Holder focuses on sentencing disparities and his rejection of the idea that prosecutors should routinely seek to maximize penalties. – gwc

Wal-Mart, Attorney-Client Privilege, and In-House Counsel

This isn’t exactly current news but nonetheless very noteworthy. A Delaware Supreme Court en banc opinion, Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, Del. Supr., No. 614, 2013 (July 23, 2014), explicitly endorsed the Garner exception to the attorney-client privilege in a Section 220 books-and-records proceeding. Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970) recognized an exception “where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, [and] protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show cause why it should not be invoked in the particular instance.”  Huge victory for shareholders who can show cause, and huge loss for those who think that the attorney-client privilege should be absolute.

Also noteworthy is the resignation of Maritza Munich, the general counsel of Walmart International. Munich had tried to stop a bribery scandal as it was unfolding at Walmart. Michael Scher of the FCPA Blog provides some interesting detail on the scandal and Munich’s resignation.

For teaching purposes, one can construct a hypothetical based on the facts of the Wal-Mart case and ask the student to put herself in the shoes of an in-house attorney (such as Munich) who uncovers serious law violations within her corporation: what would she do? Good opportunity to talk about how to comply with Sarbanes-Oxley 307 (SOX 307) and the meaning of an attorney “appearing and practicing before the Commission” under SOX 307 covers. If you want to add a psychological perspective to the discussion, I talked about the  pressures of being in-house counsel in prior work.

Court Reprimands Big Firm Lawyer for Forwarding Complimentary E-mail from Judge

Judge sends lawyer email mentioning that he and his colleagues think lawyer is terrific.  Lawyer shares the email “with no fewer than 35 existing or propsective clients.”  Judge resigns.  Court reprimands lawyer.  See the story in Ars Technica.  H/t Joel Reidenberg. Great issues for marketing ethics and judicial ethics.

Fifth Annual Zacharias Award for Scholarship in Professional Responsibility

Prof. Sam Levine of Touro has asked us to announce that the Professional Responsibility Section of the AALS has given the fifth annual Fred Zacharias Award for Scholarship in Professional Responsibility to Russell M. Gold, for Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. Davis L. Rev. 1591 (2014).