Continuously opining, intermittently publishing.

Archive for November, 2011


The New York Times opines in its Sunday, November 13, 2011 editorial that the two-pronged inquiry set forth by Brady v. Maryland, 373 U.S. 83 (1963), should be collapsed into one question. Under Brady, the Supreme Court required prosecutors to turn over evidence to defendants if the evidence is favorable to the defendant and if it is likely to affect the outcome of the case. Id. at 87. NYT’s editors suggest that this second ‘materiality’ (likely to affect) inquiry should be abrogated and that all favorable evidence, regardless whether the prosecutor thinks it might be immaterial, should be handed over to defendants. I agree.

The prosecutor does not have the proper incentives to fairly answer the materiality question on the heels of discovering evidence favorable to the defendant. This is because to do so would be to give the defendant evidence (read: ammunition) that could exculpate himself. When a prosecutor honestly believes in his heart that the defendant is guilty, it hurts him to think that the evidence might show otherwise, and it is easy to see how he would be tempted to hold on to evidence. And when a prosecutor is corrupt enough to convict no matter the evidence, he almost certainly wants to keep exculpatory evidence hidden. Assuming the vast preponderance of prosecutors are ethical, one would never not disclose defendant-favorable evidence when it is obviously material. But what about when the materiality of the evidence is less clear, even if the prosecutor is ethical? And what does it mean, really, for evidence to be likely to affect the outcome of the case?

It all depends on how much evidence there is, as well as how well the defendant’s attorney will use the evidence to his client’s advantage. Effectively, the prosecutor could decide that his opponent (the defendant’s attorney) is a bad lawyer and that the evidence is unlikely to affect the outcome of the case precisely not because it doesn’t speak to the defendant’s lack of guilt, but precisely because the defender is an idiot. Or, the evidence could be material if cast in a certain light, but easily brushed aside if cast in another light. When the call is a close one, what incentive does the prosecutor have to boldly state the evidence is likely to affect the outcome of the case, when the likelihood can’t even be determined—especially when doing so might hurt his case if it turns out to be material when he has plausible deniability that the evidence will be found material? Why does prosecutorial discretion include the power to decide when evidence is likely to affect the outcome of the case in favor of the defendant? Isn’t that really a jury’s job?

The Editors of the NYT make a great point. Such discretion should not exist because the incentives motivating the discretion do not comport with the true role of a prosecutor—to find the truth at the expense of his conviction rate.

But I would take it further. What profit is it to society, where the criminal law is built as a deterrent to outlandish behavior and as a retributive way of punishing evil behavior (at least according to its origins in the common law), to withhold any evidence from a defendant before or after trial? One might argue that because discovery rules allow a defendant to withhold exculpatory evidence from a prosecutor so long as he doesn’t request discovery of the prosecutor’s evidence, that the prosecutor should be able to withhold unfavorable evidence from him. But that begs the question. The discovery rules exist to implement a matter of policy, so they cannot be a reason for the policy.

And furthermore, why is that the policy? Who really cares if the rules are purely fair from a procedural standpoint when prosecutors have anywhere between a 65 and 97% conviction rate? Should we, as a society, care that only defendants who are guilty are put in jail? John Adams said,

It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, “whether I do good or whether I do evil is immaterial, for innocence itself is no protection,” and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.

Even if prosecutors’ convictions numbers go down, we could be more certain those convictions were fair if we knew that prosecutors were turning over every scintilla of evidence to defendants, even if defendants weren’t required to do the same. It would give innocent defendants a better (fighting) chance and would not truly harm the ability to punish guilty defendants.

Critics will balk for fear that a defendant will use the evidence that a prosecutor could otherwise keep secret, e.g., evidence unfavorable to the defendant, to make up a story about his innocence. But, in order to come to trial, prosecutors already release evidence to a defendant to (typically) get him to negotiate a plea (one cannot negotiate without showing some cards—even if they are only strong cards). Prosecutors are already used to showing their hands before trial, so why bother with the inquiry in the first place?

Why not collapse discovery in criminal cases to require prosecutors to turn over all evidence? The Supreme Court should overrule Brady in its entirety and hold that prosecutors hand over all evidence to a defendant. if the purpose of the prosecutor is to uphold justice rather than win, it would be more consistent to require prosecutors post-indictment (or information) to hand over all evidence to the defendant before trial, irrespective of its favorability or materiality. It would give the defendant the fairest chance to mount a proper defense, and it would serve to make trials and plea bargaining fairer.

That will not happen in Smith v. Cain, despite that the Supreme Court was imploring the counsel for New Orleans to confess error and give up its contorted arguments that New Orleans was in the right for not handing over evidence it is obvious the city should have. The Supreme Court will not go that far since the propriety of Brady is not at issue. But the Court should consider expanding the responsibility of the prosecutor to turn over evidence to the defendant. Or Congress (and the States) should.


Here I am at the New Orleans Apple Store reminding myself why I downgraded from OS X Lion (10.7.1) to Snow Leopard (10.6.8). The upgrade to Lion changed the way that gestures work on trackpads. The worst change is that there is no longer an effective way to show the desktop.

In Snow Leopard, one could simply use four fingers and swipe upward to show the desktop. In Lion, the swipe requires a pinch and outward movement with three fingers and a thumb. Besides the fact that the swipe is hard to do, it doesn’t seem to work correctly every time. I end up trying to do the gesture over and over again until my hand hurts.

This makes for a bad notebook user experience, and I do not plan to upgrade to Lion until there is an effective workaround (F11—the key that will show desktop still works, but again, it’s not as convenient as using the 4-finger Snow Leopard gesture). This is crippling for notebook workflow, since the screen space is small enough that clearing the screen to see the desktop is almost a requirement for such workflow. It may not be as necessary on iMacs or Mac Pros, or if a notebook is hooked up to a larger screen, since one can more easily show part of the desktop (as a temporary space for playing Tower of Hanoi with files).

I think there may be some third-party software to handle the problem, but I don’t want to have to install a third-party application to make the Mac desktop UI worth using on a Mac where I have a trackpad instead of a mouse. The new gesture is positively terrible. I implore Apple to allow for a setting for Lion users to use all of Snow Leopard’s gestures.