Bill to bolster Brady touted by defense lawyers

Defense bar backs bill to require judges to inform juries if evidence not disclosed

By Hamed Aleaziz

Daily Journal Staff Writer

It’s an issue Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, has described as an “epidemic” in America: prosecutors failing to disclose potentially material exculpatory evidence to defense lawyers.

Now, the California Attorneys for Criminal Justice, an organization made up of criminal defense attorneys, is pushing state legislation to address what they, too, see as a growing problem.

Under AB 885, if a judge finds that a prosecutor either before or during trial failed to disclose certain information, then the judge must inform the jury that a “failure to disclose has occurred and that the jury may consider the failure as circumstantial evidence to support the presence of reasonable doubt.”

The requirement, laid out in the U.S. Supreme Court’s landmark 1963 ruling in Brady v. Maryland, is not being followed in some cases because courts “don’t make” prosecutors care about it, Kozinski wrote in a December dissent. In that case, prosecutors had knowledge of a report indicating that its forensic scientist had performed sloppily in the past, leading to past convictions being overturned. They did not tell the court or the defense lawyer of the report.

Elsewhere, in Santa Clara County, the state bar court suspended a former prosecutor for, among other things, hiding beneficial evidence from the defense.

“It’s a stubborn problem, because prosecutors are charged with different missions,” said David Sklansky, a professor at UC Berkeley School of Law.

“On the one hand they’re supposed to ensure the integrity and fairness of the process, and on the other hand they’re supposed to be forceful advocates for their sides,” he said.

Prosecutors say the bill is addressing a problem that doesn’t exist.

Of the more than three million California criminal cases from 1997 to 2010, just 202 were overturned, mistrials declared, or evidence barred for errors or violations, including Brady, said Mark Zahner, CEO of the California District Attorneys Association. Prosecutors in California, he said, are trained to immediately turn over such evidence to the defense.

“You’re talking about extremely rare instances happening,” he said.

The bill stalled in the Assembly last year. But last week, Assemblyman Tom Ammiano, D-San Francisco pushed it through. Now it is headed for the Senate.

Defense lawyers say the are seeing an increasing number of instances of prosecutors waiting until the last minute to turn over potentially exculpatory evidence. They say this legislation is aimed at making sure prosecutors disclose evidence but also disclose it in a timely manner.

“We’re starting to see individual prosecutors playing games with that requirement,” said Ignacio Hernandez, a legislative advocate for the CACJ. “They may wait months and they turn it over, literally on the day before trial or the week before trial.”

A recent study by the Center for Prosecutor Integrity found that pretrial Brady violations were the most common form of prosecutorial misconduct nationwide.

Such violations handicap the defense, said Scott Sugarman, president of the CACJ and partner at Sugarman & Cannon, by, for example, making it more difficult to track down evidence or a favorable witness. It also can leave defense attorneys with less time to prepare arguments.

“If the bill becomes law, the jury instruction will help level the playing field,” Sugarman said.

The bill, more than anything, could serve as a preventative measure, experts say.

“It could help by creating incentives that will encourage prosecutors to be more careful to make sure that they turn over materials that they are required to turn over,” said David Sklansky, a professor at UC Berkeley School of Law. Whether it’s going to have that impact, and to what degree, remains to be seen, he said.

Andrea Roth, another law professor at UC Berkeley, echoed that view.

“Really this is a deterrence rule,” she said. “This is just a ‘we’re going to tell the jury that they can draw this inference if you don’t get your act together.'”

Remedies to violations are already available to judges in California: a continuance, dismissal, contempt finding, and even an instruction to the jury that it may “consider the effect, if any,” of a late disclosure, Zahner said. The instruction the bill would require judges to deliver is problematic, prosecutors say, because it allows the jury to weigh a procedural error when determining if a defendant is guilty or not.

That error, he said, has nothing to do with the quality of evidence introduced throughout the trial. In other words, a procedural mistake by a prosecutor does not make a defendant less likely to be guilty.

There are other issues with the legislation, including that the instruction could actually further muddy a jury’s analysis of the case, said Rory Little, a professor at UC Hastings College of the Law.

“Most research shows that the more you instruct juries, the more confused they become… Are jury instructions that express opinions that lawyers and judges have, are they helpful to jurors or not?” he said.

“There’s a whole camp that says we should simplify and reduce jury instructions, not increase them.”

What’s more, said Roth, the UC Berkeley professor, the bill won’t solve the biggest factor in Brady violations: “prosecutors not understanding what is and what is not Brady.”

For defense attorneys, the instruction is necessary in that it requires judges who find that a violation occurred to provide the defendant with recourse that doesn’t exist now.

“This sends a message both to judges and prosecutors, this is serious business, we want you to provide fair notice, particularly of material that’s exculpatory, that tends to help the defense.”