The Justice Department is taking on the Tennessee Supreme Court’s Board of Professional Responsibility over the Brady Rule--the responsibility of the prosecution to turn over evidence to the defense, reported The Marshall Project.
It’s the kind of little-noticed move the department makes all the time but could have a lasting impact on the criminal justice system.
The department’s grievance is with an opinion published by the Tennessee Supreme Court’s Board of Professional Responsibility earlier this year announcing that prosecutors have a higher ethical obligation to divulge certain kinds of evidence than what’s legally required of them under the Constitution. That may seem like a nitpicky distinction. But in June, the department’s three U.S. attorneys in Tennessee penned a scathing 10-page letter demanding to appear before the board — a hearing that has now been scheduled for September.
“The DOJ can’t stand it when states try to use ethics to restrain their prosecutors’ conduct,” said Jennifer E. Laurin, a law professor at the University of Texas and an expert on discovery, who noted that federal prosecutors have been complaining about discovery rules since long before the Trump administration.
The Tennessee case revolves around what any prosecutor in the state, local or federal, should do with evidence that could prove a defendant’s innocence. The U.S. Supreme Court has ruled in the famous Brady v. Maryland and other decisions that district attorneys are duty-bound to disclose this evidence only when it’s “material” to a case — in other words, when it would probably change the outcome.
The Justice Department believes that guidepost is enough.
But over the past decade, lawyer ethics panels in at least a dozen states, now including Tennessee, have said it’s a vague and impotent standard. Prosecutors, these agencies say, are left to define “materiality” however they see fit, judging for themselves whether a piece of evidence might be useful to the defense or not.
Typically, prosecutors also don’t turn over evidence until trial. Yet estimates are that more than 95 percent of criminal cases are decided long before then, during plea bargaining.
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