Ken White, guest blogging at the Agitator, discusses a revelatory lawsuit brought by the ACLU and private California firm Bird Marella, which alleges that an internal document in the L.A. D.A.’s office instructs prosecutors to handle exculpatory evidence in a manner inconsistent with their duties under U.S. Supreme Court precedent, California Supreme Court precedent, and California law:

Last week the ACLU of Southern California and the firm Bird Marella filed suit seeking to prohibit the Los Angeles County District Attorney’s Office from enforcing its “Special Directive 10-06,” a policy memo dictating how the office’s hundreds of prosecutors are to treat exculpatory evidence in the tens of thousands of cases the prosecute. You can read it at the ACLU site or here.

If you click on the last link in the quoted paragraph above, you will be directed to a  letter to counsel from Bird Marella detailing the grounds of the lawsuit.  In sum, the L.A. D.A.’s Special Directive 10-06 contains a so-called “Brady Protocol,” which governs the D.A.’s standards for when exculpatory evidence will be placed into the “Brady Alert System,” and turned over to defendants.  The name of the protocol is a reference to Brady v. Maryland, the landmark Supreme Court case requiring prosecutors to disclose exculpatory evidence to defendants and their lawyers “where the evidence is material to either guilt or punishment.”  

The lawsuit alleges that the Brady Protocol embedded in Special Directive 10-06 is inconsistent with both the U.S. Constitution and California law.  One example:

The Brady Protocol instructs reviewing deputies: “The decision to include information in the Brady Alert System will be made using the standard of clear and convincing evidence, a degree of proof which is higher than preponderance of the evidence but lower than beyond a reasonable doubt.  In other words, without clear and convincing evidence that the potential Brady impeachment evidence is reliable and credible, it will not be included in the Brady Alert System.”  

But the California Supreme Court says: “It is not the role of the prosecutor to decide that facially exculpatory evidence need not be turned over because the prosecutor thinks the information is false.  It is ‘the criminal trial, as distinct from the prosecutor’s private deliberations’ that is the ‘chosen forum for ascertaining the truth about criminal accusations.’”

After personally reviewing the largest inconsistencies, this seems pretty open and shut.  I think chances are quite good that the ACLU and Bird Marella will prevail in getting the protocol changed.

In some sense, the special directive reflects an honest effort by prosecutors in the L.A. D.A.’s office to come up with a policy for administering their responsibilities under Brady in a manner that splits the difference between their dual role as ministers of justice and zealous advocates for the people of California.  On the other hand, internal documents like this are plagued by the inherent cultural conflicts which pervade prosecutors’ offices generally, as Ken ably points out:

[S]peaking as a former prosecutor, I submit that prosecutors hold a very cramped and narrow view of what is exculpatory and what might influence a jury, and are culturally incapable of making a reliable call about what is likely “material.” No doubt that’s exactly why that’s not the standard for what they are supposed to turn over.

Sorting out conflicts of interest are a huge part of the legal profession.  Many large firms have entire practices devoted to dealing with and identifying professional and ethical conflicts that may arise during the course of a given transaction or litigation.  And when it comes to potential conflicts of interest, prosecutors’ office are no different: many prosecutors honestly want to live up to their professional obligations to defendants, and try to play by the rules.  But the cultural conflict of interest that Ken identifies makes it problematic to rely on prosecutors’ offices to decide for themselves how they’re going to interpret their legal obligation to turn over exculpatory evidence.  They are institutionally incentivized to interpret their responsibilities in a way that’s favorable to making their job easier.  To wit: as Bird Marella’s letter to counsel points out, the law is relatively clear about what is required.  Yet the Special Directive seems to be in clear discord with the law in several respects.

The sad part is that a truly ethical prosecutor who zealously represents the interest of the people should have no problem disclosing evidence if there is even the slightest chance that it’s exculpatory.  The dual role of the prosecutor is not tantamount to maximizing convictions; zealously representing the people in a wholistic sense is derivative of their duty to serve the interests of justice.  Hiding evidence that may lead a jury to believe that a defendant is innocent cannot possibly serve the interests of justice.  In our system, the guilt of a defendant is not for the prosecutor to determine.  Justice is served in our system by allowing a jury of a defendant’s peers to have all the facts in front of them, and decide unanimously that the defendant is guilty beyond a reasonable doubt.  If the prosecutor refuses to allow all the facts to be known to the jury, he or she is undermining the very mechanism by which justice is allegedly served in our system.  

It shouldn’t be this hard for a prosecutor to cheerfully shoulder this burden.  Unfortunately, prosecutors’ offices around the country regularly drift from this ideal, preferring instead to wrack up convictions, concerning themselves with “winning” rather than doing real justice.  Criminal defendants become viewed as uniformly pathological rather than human beings with complex motivations and lives.  This of course makes it easier to justify throwing the “worst of the worst” in prison for decades at a time, or threatening unsophisticated defendants with overloaded indictments to terrify them into taking a plea deal that’s not in their interests.  When you are part of a culture that makes it easy to systematically dehumanize defendants, you tend to feel less sympathy for them as a class.  

That, my friends, is a conflict of interest.  And it has consequences for the administration of justice, as demonstrated by Special Directive 10-06.  I have no doubt that the document was crafted in good faith.  And that’s really the biggest problem with it.