[Jonathan Abel] Don’t give up on ‘Brady’

Today’s post addresses a few of the issues readers have raised this week, on- and off-line. I’ve paraphrased some of the salient comments and responded to them.

1. Comment: Who cares about Brady? Everyone knows it’s a paper tiger.

Let’s tackle this one first, since it’s a frequently voiced concern. Yes, Brady relies on prosecutors’ acting in a way that makes it harder for them to win cases. Yes, there’s only a small chance Brady violations will ever be detected, and even then the remedy is just retrial. Yes, it’s hard not to worry about the basic workability of Brady, even before all the police privacy complications are added into the mix. But these aren’t reasons to give up on Brady or to stop worrying about how it’s applied.

Brady is still one of the most powerful tools the Constitution provides to guarantee a fair trial. My posts this week have argued that there is something seriously wrong with a situation in which prosecutors and police officers can violate Brady so openly in the name of protecting police privacy. That Brady can be blocked by a citation to a privacy statute or personnel-file policy sends the dangerous message that society is okay with police privacy interests trumping defendants’ constitutional rights. At the very least, Brady should have enough clout that people who want to violate it are forced to do so furtively.

2. Comment: Make police misconduct records public? No, no, keep them confidential, but let police departments and judges decide what to disclose?

On- and off-line, a number of commenters have struggled what the best policy prescription are for these files. Public access? Confidentiality? Some compromise position? I say, make the misconduct records publicly accessible. More pessimistic readers worry that making the records public would cause internal affairs investigators to put less information in their misconduct reports.

The second-order effect of making the records public is difficult to answer, but I’m optimistic that it would not result in a wholesale whitewashing of these reports. Having worked as a journalist in a public records state, I can say that there’s still a lot of information in these public reports that could be devastating to an officer’s credibility.

Of course, it could be that there would have been even more material in the reports if they were confidential. It’s impossible to know because we can’t effectively compare the quality of reports in open-records states with those in confidential-records states (because the confidential records are, well, confidential). My intuition is that police management would not declaw the internal affairs investigations, even if the records were going to be public, because police chiefs would still have an interest in weeding out bad apples from their organizations. To me, the bigger challenge is that it’s not politically feasible to make the records public in states with strong police unions.

On the other end of the spectrum are people who seek to resolve the conflict between Brady and police privacy by splitting the baby. It’s an understandable temptation, but I think it’s ultimately doomed. Brady’s Blind Spot discusses several varieties of compromise systems and explains why they won’t work.

The most sophisticated type of these compromise systems employs a Rube Goldberg approach to ferreting out police misconduct evidence without ever giving the prosecutor access to the files. In such a system, the police department purports to search all the personnel files for anything that could be Brady material. This search results in a list of names, which the department discloses to the prosecutor, all the while revealing nothing to the prosecutor about the nature of the officer’s Brady problem. The prosecutor then passes the names to the defense, if a named officer is slated to testify, then the defendant can, in turn, ask the court to review the personnel file for Brady material. The police department’s notification that the officer has a potential Brady problem is supposed to be enough to provide good cause for the judge to look in the file.

This was the type of system endorsed by the California Supreme Court last year in People v. Superior Court (Johnson). The central conceit of this system is that the prosecutor can claim that Brady material is being identified and disclosed, while the police department can rightly say it has never shown the file to the prosecutor or anyone else without a court order.

But beware of systems like this that seek to outsource the prosecutor’s Brady duty either to the police or the judiciary. The fatal flaw of these systems can be seen if one asks what happens when it is revealed