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The Brady rule and justice for all

Posted: March 28, 2012 - 12:00am

In October 2008 there should have been an Empire headline that read “Sen. Ted Stevens acquitted.” Instead he was wrongfully convicted on seven felony counts. Now, two years after his conviction was overturned, a new report confirms that prosecutors deliberately withheld evidence from his attorneys. And Stevens isn’t here to champion the cause of protecting common citizens from the kind of prosecutorial misconduct that ended his career.

First of all it’s important recognize the wrong that was done to Stevens. Nobody should have to face a jury of their peers when evidence vital to their defense is concealed by the government. As Sen. Lisa Murkowski wrote in the Anchorage Daily News, it’s “the solemn responsibility of federal prosecutors to secure justice — not simply convictions.” And to correct the problem she’s introduced the Fairness in Disclosure of Evidence Act; a bill she says will require “federal prosecutors to make early disclosure of evidence that demonstrates the innocence of a defendant.”

The evidentiary principle at issue here is known as the Brady obligation. It stems from a 1958 case in which John Brady was convicted of murder. He never denied taking part in the crime, but he steadfastly claimed his partner killed their victim. Brady’s attorney appealed the conviction when they learned that prosecutors had concealed the accomplice’s written murder confession.

The case went to the Supreme Court in 1963. The justices didn’t overturn the conviction, but it did rule that Brady was unjustly sentenced to death. Since then it’s been the legal basis of a prosecutor’s obligation to turn over all evidence favorable to the defendant when requested.

The Brady rule was ushered in under the liberal court that Chief Justice Earl Warren presided over. Three years later came the Court’s Miranda ruling which established the requirement for all criminal suspects to be informed of their rights to remain silent and to speak to an attorney before they’re questioned by law enforcement officers.

These Supreme Court decisions ignited a firestorm of resentment from conservative politicians. In 1968, presidential candidate Richard Nixon campaigned with the promise to counter the Warren Court rulings. And ever since then Republicans have been portraying Democrats as being soft on crime. That was the message in the infamous Willie Horton ad used by George H.W. Bush in the 1988 presidential election. And it was a major theme in Newt Gingrich’s Contract with America in 1994.

Has four decades of conservative “crackdown on crime” rhetoric imposed undue pressure on prosecutors to put convictions ahead of justice? Nobody can be sure how often they’ve sent innocent people to prison after not abiding by the Brady rule. As the 3rd Circuit Court of Appeals wrote 1984, “we are left with the nagging concern that material favorable to the defense may never emerge from secret government files.”

It shouldn’t have taken the Stevens case to bring this to light. And even though Murkowski says her legislation “is not about seeking vindication for Ted,” it’s hard to imagine she would have strong bipartisan backing had not one of their own become victim to a Brady rule injustice. No, Congress should have been outraged long before now.

Consider the case of John Thompson. In 1985 he was convicted of armed robbery and murder. Like Brady, Thompson was sentenced to death. After 14 years on death row and within weeks of being executed, his legal team discovered that the lead prosecutor in his trial had knowingly concealed evidence favorable to Thompson’s defense.

Thompson was given a new trial in 2003 and the evidence prosecutors withheld the first time helped exonerate him of both crimes. But last year, in a 5-4 decision, the U.S. Supreme Court deprived him of a $14 million jury award in his lawsuit against the former district attorney of the parish where he was wrongfully convicted.

How would Stevens have reacted to that decision by the conservative Roberts Court? Would he revert to the tough prosecutor he was known as during his brief stint as a U.S. Attorney in Fairbanks? Or would find genuine empathy and compassion for Thompson’s suffering? We’ll never know, but wondering what Uncle Ted would have done might help us better understand the meaning of justice for all.

• Moniak is a Juneau resident.

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