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Friday, June 03, 2011

How do We Teach Brady?

This semester while I was teaching Professional Responsibility, the Supreme Court issued its decision in Connick v. Thompson, finding that the New Orleans District Attorney was not liable for failure to train line prosecutors based on the Brady violation in that case.  Justice Thomas reasoned that the D.A. had not been deliberately indifferent to the need to provide line prosecutors with on-the-job training regarding their Brady obligations--in part because prosecutors attend law school.  Although I was dismayed by the result in Connick, I decided to view it as a validation of my decision to spend significant class time on Brady v. Maryland.  And I wonder: how can we in the legal academy more effectively teach Brady?

I cover Brady in my Postconviction Rights course, where the doctrine appears in numerous habeas cases, and also in Professional Responsibility (PR).  In PR, we devote one day to defense ethics and one day to prosecutors' obligations.  I've found it useful to pose some questions to the class based on Bennett Gershman's 2006 article Reflections on Brady v. Maryland.

Gershman makes the point that exonerations have exposed numerous Brady violations, and also that Brady is notoriously difficult to enforce.  But what I really find useful for class is fn 24 of his article, excerpting a survey that John Jay Legal Clinic of Pace Law School did of New York domestic violence prosecutors.  It lists several possible statements by a hypothetical domestic violence complainant, and asks whether they should be turned over as Brady.  It also reports how the "real-life" prosecutors responded.

I put my students in the prosecutor's role and read them each statement in turn.  We discuss whether they would turn it over.  (We also talk about potential differences between the constitutional Brady doctrine and MRPC 3.8).  This conversation usually surfaces some familiar quandaries (e.g., "But I know he's guilty!"  or "But I know she's suffering from battered spouse syndrome!") 

I like that the problem is set in the DV context.  Some students who typically would sympathize with the defense find themselves more conflicted in a DV situation, thus providing better conversation.  Also, many students who will work as prosecutors begin in DV units, so there is additional practical value.

After Connick, we might want to consider spending more time on Brady.  I'd be interesting in hearing others' thoughts.

Posted by GiovannaShay on June 3, 2011 at 07:56 AM | Permalink


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I just want to clarify: At the conclusion of the Brady exercise, when we've debated all of the examples in the John Jay Legal Clinic survey, I tell students that I believe every statement in the survey should be turned over to the defense. -GS

Posted by: Giovanna Shay | Jul 12, 2011 8:35:29 AM

For those interested:

My article focusing on prosecutorial accountability in the wake of Connick and incorporating Davis' contributions is up on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1840083

Posted by: george weiss | Jun 3, 2011 12:51:33 PM


Thanks for the link to the article and your post on same: her proposals are indeed intriguing. Where you write that "If a prosecutor currently has evidence that toes the line between 'material' and 'immaterial,' it is easy to see the prosecutor sitting on the evidence rather than disclosing it," reminded me of Davis' statement that "the line between legal prosecutorial behavior and illegal prosecutorial conduct is a thin one."

Posted by: Patrick S. O'Donnell | Jun 3, 2011 10:20:08 AM

Cynthia Jones recently published a fantastic piece about Brady, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, that I think has the potential to change the way that we think about Brady. Here's the article:


and here's a post that I did about it on my blog:


Posted by: Colin Miller | Jun 3, 2011 10:02:51 AM

The fact that Brady is “more honored in the breach...” is testimony to the inordinate power of prosecutors generally and the ongoing failure to sufficiently cabin the discretionary power of prosecutors in particular. By itself, Brady can hardly change the fact that “prosecutors continue to engage in illegal behavior with impunity.” As Angela J. Davis writes in Arbitrary Justice: The Power of the American Prosecutor (2007),

“The Supreme Court has established nearly impossible standards for obtaining the necessary discovery to seek judicial review of some forms of prosecutorial misconduct. Inappropriate or unethical charging decisions, intimidating conversations with witnesses, selective and vindictive prosecutions, and grand jury abuse all occur in the privacy of prosecution offices—away from the public and the parties whose cases are affected by the harmful behavior. As a result of Supreme Court rulings, prosecutors know that it is highly unlikely that any of the behaviors will be discovered by defense attorneys or anyone who might challenge them.”

As Davis further points out, prosecutors act “without meaningful supervision or accountability, [and] they are rarely punished when they engage in misconduct. In fact, they are often rewarded with promotions and career advancement as long as their conviction rates remain high.”

Existing mechanisms of accountability (the electoral system, budgetary restrictions, time limitations, etc.) are woefully inadequate. Moreover, the prospects for reform are dismal owing to the fact that the perception of need for same in much of the legal community but especially the public at large is conspicuously absent.

The situation is uncomfortably analogous to that which exists with Gideon v. Wainwright: The constitutional right to effective counsel* in criminal cases, “in practice…makes a mockery of formal guarantees” (Deborah Rhode). The current structure of indigent defense gives pride of place to ineffective representation. What Anthony Lewis said in Gideon’s Trumpet (1964) remains as true today as when it was first written:

“It will be an enormous social task to bring to life the dream of Gideon v. Wainwright [372 U.S. 335 (1963)]—the dream of a vast, diverse country in which every man charged with crime will be capably defended, no matter what his economic circumstance, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.”

In short, a chasmic distance remains between the aspirations to criminal justice enshrined in these two cases and the legal practice in our system of adversarial adjudication.

*Keeping in mind that even “grossly incompetent lawyering,” as Freedman notes, “is not enough to establish ineffective counsel”! The current criminal justice system—especially for poor people—is, in Monroe Freedman’s pithy characterization, “unethical, unconstitutional, and intolerably cruel.”

Posted by: Patrick S. O'Donnell | Jun 3, 2011 9:26:41 AM

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