Friday, June 13, 2008

My Personal View of Brady

When I was a kid, I aspired to be a football player. (NOTE: I really stunk at football.)

Back when I had delusions of grandeur of being an offensive lineman (at 5' 11" and 140 lbs.), I remember my dad telling me a story of a lineman in the pros. He told me that the lineman was so good that when he took the line before the snap, he would tell the defensive tackle across from him exactly what he was going to do -- and then he would do it.

There was no trickery. There were no misdirection plays. He would just knock his opponent on his ass.

For some reason or another, that story that my Dad told me (way back when) always comes to mind when I think about compliance with Brady.

As a prosecutor, I never had any reservations about laying out what I had. Hell, I normally would/will give a defense attorney a complete copy of my exhibit list and my witness order, in addition to keeping a completely open file.

If there is something that the Defense Bar can do to manipulate it to a not guilty, more power to them.

But if prosecutor's case is good and righteous, there is no reason to be hiding things.

Sure, there are some things that are not Brady.

For instance, take the following two examples:

1. Complainant on a Family Assault case tells you the assault never happened -- DEFINITELY BRADY.

2. Complainant on a Family Assault case tells you that although the assault did, in fact, happen, she doesn't want to testify -- NOT BRADY.

But, as a prosecutor I never felt/feel anything wrong with telling defense counsel that our witness wasn't cooperating with us. More often than not, the defense attorney probably knew this fact long before the prosecutor did, because the victim of the assault called him first (and probably often). By hiding the fact, a prosecutor just sacrifices his or her own credibility.

That's just my thought.

The bottom line is that if a prosecutor tells a defense attorney something that the defense can somehow spin to a degree that an acquittal results, then the acquittal probably needed to happen. If the State's case is weak enough that they have to hold their cards that closely to their vest, then they probably need to be looking more closely at their cards.

That's how I always operated/have operated, and I've been pretty satisfied that justice was done in the vast majority of my cases that I took to trial. (NOTE: On those instances where I didn't think justice occurred, it was an acquittal when I thought there should have been a conviction. It's a personal opinion thing.)

I also enjoyed the benefit of nobody ever calling me unethical or questioning how I did my job.

I always do/have give the defense everything I have on a case, because I didn't want anyone questioning my ethics. And guess what. I still won a case or two. :-)

As Father's Day approaches this weekend, it's kind of nice to think back on some of the lessons we have learned from our fathers.


Anonymous said...

I have actually heard of a prosecutor down right lying about the status of the victim...whether they were cooperating or not, and that they were recanting. Doesn't this prosecutor realize just what you are saying? The victim was probably in the defense atty's office before the case is filed....

Anonymous said...

The prosecution is often left in the lurch because other state agencies have Brady material that the ADA may not know about, but which SCOTUS on down imputes knowledge of which to the state. This imputation often creates the appearance that things were hidden and/or that ADA's were willfully blind. That is why there are so many discussions about the duty to seek brady out - not so much to go out and look for exculpatory witnesses - but to make sure that agencies aren't not sending stuff up the chain to the ADA. Another example of frequent misappreciations is the idea that Brady in CPS files need not be disclose because such files are "confidential" and need a court order.

QRE said...

Totally off topic, but congratulations for going 100K hits, AHCL.

Anonymous said...

Completely off topic, but congratulations for going over 100k hits, AHCL.