Prompted by a tweet from Scott Greenfield this morning, we read a short editorial the New York Times did a couple of days ago, arguing that federal and state prosecutors should adopt open-file discovery policies, in order to limit Brady violations and promote justice. We’d missed it the first time around, because … well, because we never bother to read NYT editorials.
This one is decent enough, so far as it goes. The Times points out that it’s up to the prosecutor to decide whether something is material enough to disclose under Brady, and so defendants very often don’t learn of facts that might have been favorable to them. With full disclosure, perhaps fewer defendants who are over-charged or improperly charged would plead guilty, and perhaps fewer wrongful convictions might result.
Yeah, but …
Here’s the thing: “Open file” policies are rarely that. Prosecutors’ offices with open file policies rarely (if ever) make their complete file available to the defense. More often “open file” just means they comply with their existing discovery obligations without putting up too much of a fight.
Prosecutors in general are unwilling to engage in true open file discovery, and for reasons that are anything but nefarious. It would be like playing high-stakes poker in a game where you and only you have to show all of your cards, all of the time. Unless you have four aces and a joker every hand, that’s a losing strategy. Defendants will be able to see all the weaknesses of the evidence with plenty of time to exploit them. People who “should have been” convicted will go free.
In practice, prosecutors only show their hand if it’s going to make the defendant fold. Or to the extent that it will persuade the defendant to fold. Show the ace, but don’t bother showing the 2, 6, 7 and jack.
Of course, it’s a misplaced concern to worry that people who “should have been convicted” will go free. If the evidence does not establish guilt beyond a reasonable doubt, then it doesn’t matter whether they did it or not, they don’t deserve to be convicted. It’s not even correct to think of whether they deserve to be convicted — the concern is whether the State is entitled to punish them. If the government’s evidence, all of it, is too weak to convict, then the State doesn’t get to punish. (What the defendant deserves only enters into it when asking how much punishment to inflict.)
The proper concern is whether people are being convicted when the evidence was insufficient to support a verdict of guilty beyond a reasonable doubt. If the evidence — all of it together, not just the good bits — is too weak to support such a verdict, then the prosecutor has no business charging the case to begin with.
That is a concept that some prosecutors’ offices, and some prosecutors, understand better than others. We often tell the story of how, when we were interviewing with DA’s offices in law school, we politely walked out of our interview with the folks from Dade County. It came out during the interview that they sincerely believed that their job was to zealously prosecute whomever the police arrested, just as the defense attorney’s job was to zealously defend him. The precise topic was whether one should prosecute a case in which one was not personally convinced beyond a reasonable doubt of guilt. At first, I thought they (there were two of them) were just testing me, and continued arguing that that is of course not the prosecutor’s job at all. But at length it became clear that they were very serious. So we got up, thanked them for their time, and said we probably wouldn’t be a good fit.
Since then, both in our many years as a prosecutor and subsequently as a defense attorney, we’ve encountered many offices with mindsets similar to the folks in Miami — the job is to fight for the conviction. Many don’t even have the personal discretion to choose otherwise (apparently forgetting that abdicating or failing to exercise one’s discretion is itself an abuse of that discretion, and serious misconduct).
That’s not how we were trained. Looking back, it’s amazing how fortunate we were to be guided by Peter Kougasian, Bob Hawkes and Matt Menchel — who insisted that we decline to prosecute any case we did not sincerely believe we could prove beyond a reasonable doubt, and were not ourselves convinced beyond a reasonable doubt. Peter (our first bureau chief), in fact, firmly stated that if he ever insisted on our prosecuting a case we did not believe in, it was our duty to resign rather than go forward. And many’s the time we had to sit through the fury of a police officer whose case we declined to prosecute. (“You know he did it, I know he did it, but we can’t prove it, so go out and get him next time and let’s hope the evidence is better next time” just doesn’t seem to mollify some people.)
It’s not how we were trained, but it’s how a lot of prosecutors are trained, and how a lot of them do their job. But even for those of the highest ethics and strongest character, it is very easy to forget that the job is not about what the defendant deserves, but what the evidence can show.
And when the evidence is weak, or some of the evidence might actually hurt the prosecutor’s case, and prevent that defendant from getting what he deserves, the temptation is strong to simply not share it. Temptation, nothing — it’s a full-on moral judgment that sharing it before trial would categorically be the wrong thing to do.
So it’s really not good enough to insist on an open file policy. Stuff that prosecutors don’t want to share with the defense will simply not make it into the file, or more realistically into that portion of the file that would get shared (much will be held back in any case as attorney work-product, witness protection concerns, etc.).
Sure, go ahead and impose such policies if it makes you feel better. But don’t think they’ll solve the underlying problem.