The Epidemic of Brady Violations: ExplainedBy Jessica Brand
In courtrooms across America, prosecutors regularly withhold evidence from the defense that could blow holes in their cases.
These three examples could be replaced by hundreds more. When prosecutors withhold evidence that they are duty bound to turn over, they undermine the Constitution, the Supreme Court’s case law, and the premise of justice.
- In 2016, rancher and anti-government protestor Cliven Bundy, his sons, and his supporters occupied a wildlife refuge in Oregon to protest a government take-over, a stand-off that lasted for weeks until police shot one of the protestors. This was the Bundy’s second such protest. In 2014, the group (successfully) protested the government’s attempt to take the Bundy family’s cattle over purported unpaid grazing fees. The Bundy family claimed they armed themselves after discovering that the FBI surrounded its land with a SWAT team.
- After Oregon, the U.S. government charged Cliven Bundy and his sons with various conspiracy charges. But the December 2017 trial ended soon after it began. While the government claimed that the SWAT team allegations were “fantastical,” video evidence showed they were absolutely true. But the government withheld that video from the defense. It also withheld internal FBI reports concluding that the Bundy family was not dangerous. The judge granted a mistrial. As reporters at the Intercept state: “While so far unable to convict Cliven Bundy, U.S. prosecutors and investigators have at least proven beyond a reasonable doubt that the government really was out to get him.” [Trevor Aaronson & Ryan Devereaux / The Intercept]
- Prosecutor Amy Weirich’s suppression of exculpatory evidence in Noura Jackson’s murder trial constituted a “flagrant violation” of Jackson’s constitutional rights, the Tennessee Supreme Court wrote five years after the trial. Weirich — now the elected District Attorney for Shelby County — accused the 18-year-old of murdering her mother, claiming she couldn’t handle her mom’s tight rules. No forensic evidence linked Jackson to the crime, and testing excluded her as the source of blood found on the crime scene. The prosecution instead based its case on one witness’ testimony, who claimed Jackson called and asked him to come to her mom’s house just after the murder. He claimed she needed “a cover up.” The jury convicted her.
What is the Brady doctrine?
Under the Supreme Court’s 1963 case Brady v. Maryland, the prosecution has an ironclad duty to disclose, before trial, evidence that could undercut its case — “Brady material.” If the prosecution doesn’t do that, it violates the Due Process Clause. The Supreme Court recognized that “
ociety wins not only when the guilty are convicted but when criminal trials are fair,” and that a prosecutor should not be the “architect of a proceeding that does not comport with standards of justice.”
But what exactly qualifies as Brady material?...