Under the United States Constitution, prosecutors have an obligation to turn over potentially exculpatory evidence — whether it is evidence that is directly favorable to the accused and unfavorable to the government’s case, or evidence that undermines the credibility of the government’s witnesses.
But, as our kind host frequently discusses, there’s a broad gulf between what should happen and what does happen in the criminal justice system. Prosecutors withhold exculpatory evidence all the time, usually without consequence.
Given human nature, the cultural pressures of law enforcement, and the lack of supervision in some prosecutorial agencies, such behavior by “rogue prosecutors” probably doesn’t surprise readers of The Agitator. What might surprise you is that the suppression of exculpatory evidence is sometimes systematic and based on written policy from the highest levels of local government.
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.
The suit alleges that far from assuring compliance with constitutional obligations, the Los Angeles County District Attorney’s Office policy, if followed, violates those obligations. In fact, it purports to require that line prosecutors violate the constitution. For instance:
Materiality: The policy purports to permit prosecutors to withhold exculpatory material that they deem not “material” — that is, not likely to change the outcome of the trial. But that’s not the standard for what prosecutors are obligated to turn over — it’s the appellate standard for determining when a discovery violation is so prejudicial as to require reversal of a conviction. Using that as the standard for what prosecutors should turn over is the equivalent of saying “you may withhold evidence if you can get away with it.” Moreover, speaking 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.
Impeachment Evidence: The policy regulates the DA’s “Brady Alert” system, a database that collects information impeaching the credibility of law enforcement officers and government witnesses. The DA’s Office touts this system as assuring discovery compliance, but the lawsuit — and the attached Special Directive 10-06 — suggests that in fact it is a systematic justification for withholding discoverable impeachment evidence (that is, for you non-lawyers, evidence that can be used to question the credibility of a witness). For instance, as the suit alleges and the Special Directive shows, the DA’s Office only includes information about witness credibility if it believes that information is supported by “clear and convincing evidence” — a higher standard somewhere between preponderance of the evidence and beyond a reasonable doubt. But that’s not the law — a prosecutor doesn’t get to withhold impeachment evidence because he or she doesn’t credit it. Prosecutors are culturally prone to believe government witnesses and disbelieve accusations against them; it’s patently ridiculous to make them the gatekeepers of what damaging information is sufficiently credible to be turned over to the defense. Moreover, the Special Directive requires prosecutors to withhold impeachment evidence about government witnesses if it is based on pending criminal or administrative investigations — that is, investigations that have not yet led to a result. Once again, there’s no basis in law for that limitation — if the government’s witness is under investigation for a crime, that goes directly to bias, motive, credibility, and any number of other relevant factors.
Read the lawsuit. This is what the government does openly, in writing, as official policy — so imagine what it does as a matter of practice, behind closed doors.
I’ll offer updates on the lawsuit as it proceeds.
Disclosure: I have litigated against the L.A. County District Attorney’s Office for 12 years, and currently represent defendants charged by them. Moreover, I know both Peter Eliasberg, the ACLU attorney on the matter, and Benjamin Gluck, the Bird Marella attorney on the matter, and think highly of both of them.