Last November, the National Association of Criminal Defense Lawyers in conjunction with the VERITAS Initiative at Santa Clara Law School issued its groundbreaking report: Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases.
The release of this report coincides with my present reading of the book: NOT GUILTY: The Unlawful Prosecution of Ted Stevens. For those of you unfamiliar with the case, the book is a fascinating read of prosecutorial misconduct in pursuing a conviction at all costs. A follow up report of the case and the behavior of the prosecution released in 2012 was described by ABC News as follows:
A court-appointed special prosecutor has determined that serious
misconduct by Justice Department prosecutors tainted the federal
investigation and trial of former Sen. Ted Stevens, according to a
report released Thursday.
“The investigation and prosecution of U.S. Senator Ted Stevens were
permeated by the systematic concealment of significant exculpatory
evidence which would have independently corroborated Senator Stevens’s
defense and his testimony, and seriously damaged the testimony and
credibility of the government’s key witness,” the report noted.
I am convinced that many prosecutors are never trained or supervised in their ongoing obligations to provide the defense with evidence that helps the accused. This failure leads to wrongful convictions and all the costs that go with it.
While the NACDL Report concludes "that Courts are impeding fair disclosure in criminal cases, and in so doing, encouraging prosecutors to disclose as little favorable information as possible. With Brady, the Supreme Court held that non-disclosure only violates the Constitution when the
information is material. This holding established a post-trial standard of review that
many prosecutors have adopted as the pre-trial standard governing their disclosure
obligations. Despite ethical rules that set forth a disclosure obligation far broader
than Brady, many prosecutor offices, and even some courts, have taken the same
incorrect position — prosecutors need only disclose as much as necessary to ensure
the conviction survives appeal."
The NACDL Report recommends step by step detailed changes to address the problems presented.