Chesterton? (Updated)

You wouldn’t expect the venerable G.K. Chesterton to be quoted in law blogs.  But lo and behold.

It’s an important insight:  you not only have to know that a thing is there, you have to know why it is there before you might really understand it.

Case in point:  the well known idea of “Brady” violations (well-known among criminal defense lawyers, that is.)

Brady refers to a 1963 case we’ve discussed on many occasions, most recently here.  The case stood for the proposition that a public prosecutor has an obligation to search his file for any evidence potentially “exculpating” the object of his prosecution and turn it over to the defense.  It was described in the opinion itself as “…an extension of Mooney”, referring to a 1935 case, Mooney v. Holohan.

Mooney had held that the deliberate use of perjury or fabricated evidence by the prosecution, and the deliberate suppression of exculpatory evidence, violated a defendant’s right to due process of law.

So properly speaking, a Brady violation is the inadvertent failure by the prosecution to disclose exculpatory evidence.  But the deliberate suppression of exculpatory evidence is not so much a Brady violation as it is a Mooney violation.

But no one in the criminal defense bar ever talks about Mooney violations.  Just Brady violations.  And they are not the same thing.

Brady is such a well known case that no one bothers to read it:

We agree with the Court of Appeals that suppression of this [3rd party’s]confession was a violation of the Due Process Clause of the Fourteenth Amendment. The Court of Appeals relied in the main on two decisions from the Third Circuit Court of Appeals—United States ex rel. Almeida v. Baldi, 195 F. 2d 815, and United States ex rel. Thompson v. Dye, 221 F. 2d 763—which, we agree, state the correct constitutional rule.

This ruling is an extension of Mooney v. Holohan, 294 U. S. 103, 112,

The problem – well, one problem anyway – with confusing Brady violations with Mooney violations is that Brady has turned out to be a very hollow promise indeed.  Nevertheless, we can survive a system in which Brady is a hollow promise.  It shouldn’t be a hollow promise, and we should work to invest it with the working validity it deserves to have, but we can survive it.

But we cannot, absolutely positively cannot, survive a system in which Mooney is a hollow promise.

So here’s where you have to step back from thinking like a criminal defense lawyer to just thinking – maybe still like a lawyer, but then again maybe a bit more like a judge.  Because a criminal defense lawyer will never yield on the principle of Brady, nor should he really.  The criminal defense bar as a whole must insist on fulfilling the presently hollow promise of Brady, and to do that the egregious examples of suppressing exculpatory evidence – that is, when it is done deliberately – are useful.  Because they are especially persuasive in arguing that Brady should be more than a hollow promise, that indeed its rule should be vigorously enforced.

But you also bump up against the reality that a judge is going to be reluctant to overturn a conviction because of an inadvertent error by the prosecutor.  No doubt very few if any convictions are obtained without at least a few inadvertent errors by the prosecutor.

So it becomes important, then, to differentiate between the inadvertent (Brady) and the deliberate (Mooney) suppression of exculpatory evidence by prosecutors.  Especially when you can actually prove the latter. 

Important or not, though, what you’re liable to run into is not just the reluctance and skepticism of prosecutors and judges (which you are expecting) but a reluctance on the part of defense lawyers as well, a reluctance to distinguish deliberate from inadvertent suppression, owing to an instinctive belief that this will wind up minimizing the seriousness of the inadvertent suppression.

And that belief is not without some merit.

Still, if you’re one of the ones running the system as opposed to advocating for a litigant or a class of litigants, the importance of the distinction will, or should, drive your decision. 

In other words, the deliberate suppression of exculpatory evidence is always a violation of due process, not because of Brady but because of Mooney.  The inadvertent suppression of exculpatory evidence – what Brady was really addressing – is a violation of due process sometimes.  And sometimes it isn’t.

And truth be told, this is actually the law, and has been since 1935, the unfortunate confusion generated by Brady notwithstanding.

Maybe there should be a law school class on the thought of G.K. Chesterton.  It seems to make criminal defense lawyers smarter, anyway.

Update:  Oops.  I hadn’t noticed the currency of this whole Brady topic, having missed the NY Times editorial that Scott Greenfield didn’t.

Something must be in the air when the New York Times prints an editorial using the phrase “Rampant Prosecutorial Misconduct”, and it’s actually the title of the piece.


It’s an interesting little foray into the issue because once again you can see the importance of Chesterton’s fence parable.  As Greenfield points out, the Times editorial seems to miss the point of the very opinion (by Judge Kozinski of the US Court of Appeals for the 9th circuit) that has prompted its editorial.  Kozinski blames judges for the hollowness of the Brady promise; The Times editorial shifts the blame – and more troublingly, the proposed solution – to prosecutors themselves, providing a link to a document concerning itself with guidelines for “conviction integrity units” run by…..prosecutors’ offices.

There’s so much to be said here.  But for this update portion of this post I want to point out just one thing:  the curious invisibility of the criminal defense bar in the Times’ calculus of the whole issue.  One would think that “conviction integrity” strongly implicates criminal defense lawyers and the role they play in judicial processes that result in convictions, yet the Times editorial doesn’t even mention them.  I’ve noted this phenomenon before.  Perhaps I’ll have more to say about this later.

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Filed under Media incompetence/bias, wrongful convictions

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