Brady be the new buzzword:

 

07.18.2017   by @51kikey

 

Speaking to an ex-friend a week or so past I asked them if they felt ignorance or apathy was the greatest danger to our society. Their response that they didn’t know and didn’t care sealed our relationship. Fortunately it appears my ex might just be in the minority of late.

Justice, or should I say Injustice is all the rage and the blame game is running at an unrelenting pace. Public opinion relating to bent cops, shady lawyers and stacked Courts has never been such a hot topic, certainly not to the layman anyhow. Within the legal arena however it is a prerequisite of the system, a byproduct of the human condition. Holding a job of great responsibility does not guarantee purity of intentions. Up until recently there has been a general sweeping under the carpet of discrepancies and unlawful behaviour by those charged with keeping the peace and running a law abiding society. Things change, and public access and in turn scrutiny is now at a level where reform needs to materialize.

Enter Brady, he’s been here since 1963 and passed to protect the defendant against forgetful, unscrupulous or perhaps even unknowing prosecutors. [Brady vs Maryland](https://supreme.justia.com/cases/federal/us/373/83/case.html) delved into the due process of the 14th amendment and defendants were from then on protected from prosecutors withholding exculpatory evidence from the defence. Easy to sidestep you might say but the prosecutions knowledge of this evidence does not need to be known for Brady to occur. This is surely just though, as any new evidence that comes forward which is favourable to the defendant should be known? Here we have our first grave problems. That problem being timing & in turn precedents.

Stack of files

The odd unexpected exoneration, whilst remaining rare can actually look good for the State that they befall upon. It evokes the human spirit of acceptance that one can make a mistake, even if that one is the powers that be. A just system rights its wrongs and compensates the afflicted. There is legislature in place to protect against wrongful convictions and this said legislature is enforced. However what happens when 1 case becomes 10 and then exponentially grows? The financial ticking time bomb is ticking down for each and every State in the land. Perhaps it’s time to change the laws.

The [‘epidemic’](http://www.abajournal.com/news/article/epidemic_of_brady_violations_decried_in_kozinski_opinion) has arrived and it continues to grow. A recent vote by the Supreme Court regarding [Turner vs United States](https://thecrimereport.org/2017/07/14/how-concealing-key-evidence-convicts-the-innocent/?utm_content=buffer848ec&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer) saw Judges vote 6 to 2 in favour of upholding the conviction. With media sources acting as the babysitter for the hierarchy, expect a backlash soon. It’s just not feasible to have exonerations become commonplace.

So how can the emerging crisis be dealt with on a practical level. Accountability for prosecutorial misconduct would certainly be a start. Where the sole aim for many is to win and justice is a mere nuisance holding prosecutors criminally liable is a must. The river flows downwards and possible LE misconduct would be stemmed to a certain degree with the enforcement of a stricter hand being shown towards prosecutors.

 

Here we encounter the rub though. How do we differentiate between the lawyers that intentionally evoke Brady and those that don’t. Nothing is black and white within the reading of the law. Brady strictly states that an exclusion of evidence need not be known for a violation to occur which can, and does put the State in a tight spot. As we have seen from The Supreme Courts rulings regarding Turner though Brady Violations are not strictly upheld for a number of reasons. The case in point being that the withheld evidence was immaterial to the original conviction as to that of a mob committing the crime and that is just one of many reasonings that could have been made.

Still, the harsh truth is that the legal system is being scrutinized like never before and that scrutiny is by Joe Public. Sure, Law Enforcement have been derided before and lawyers have often been the buck of a barbed joke or two but the general perception was that of hard-working decent people doing the best for their communities. Not anymore. Everyone law related is under the microscope and they are being assumed guilty before innocent. Some of this has been brought upon themselves, indeed but as often is the case, the backlash is very unforgiving. Angela Davis summed it up best for me over 10 years ago and I’ll just straight up quote her rather than paraphrase. To do so would be an injustice.

When the law is broken by the very people the public trusts to enforce the law, meaningful action must be taken. Prosecutorial misconduct is widespread and unchecked, and it is unlikely that either the courts or the general public will take action to eliminate it. Prosecutors certainly have not policed themselves. Thus, the legal profession must take the lead in instituting meaningful reform that will assure oversight and strict accountability when prosecutors break the law. Although criminal lawyers in individual cases may not have the ability to affect meaningful reform, other lawyers, through local and national bar associations, should advocate for legislation and binding professional rules that will be enforced against wrongdoers. Lawyers have a vested interest in improving the reputation of the profession and in the fair administration of justice for everyone. They also have the expertise to institute reforms and the responsibility to eliminate what has become a shameful epidemic of misconduct among prosecutors.

The full article is [here](http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1001&context=clb) and points to many of the same problems that are inevitably still with us now. The saving grace might just be that now the audience has grown and justice reform is picking up pace. I just hope that it is going in the right direction. With the likes of Kathleen Zellner bringing these issues to the masses via up to date mediums such as Twitter the future might possibly be looking brighter. Without the people taking an active interest what right should they have to complain?

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    James Didcock

    Journalist

    Writer at betherain.org Non profit organisation detailing Justice Reform and Environmental Issues. Get involved and make a difference.

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