Seems Greenfield has been reading over here again. On the sly, of course.
You’ve got the Brady Mooney thing and we’ve extensively chronicled how prosecutors have mangled it all up (just one example) but we have also wondered aloud – in this as in so many other aspects of the criminal justice system – whither the criminal defense bar?
Turns out they are backing up the prosecutors. Or at least some of them are.
Anyway, a few days ago SHG got into it, and this is the position he’s carved out for himself:
Not just Brady, but the narrow and rarely used Mooney brand of intentional concealment. The reason no one uses Mooney is that it’s nearly impossible to prove, and even if you do, judges almost never adopt it. It’s one thing to say that exculpatory evidence has not been disclosed, and another to lay blame on a prosecutor for intentional, malevolent concealment. That’s a step too far, and the surest way to seize defeat from the jaws of victory.
Where to begin?
“No one uses Mooney”? It’s not true – Mooney is still cited in court opinions with some frequency – but ponder that phrasing for a while. Is Mooney just a tool, a lesser used weapon in the criminal defense lawyer’s arsenal in his campaign to game the system to win, every single time?
No. Mooney is the law, and it has been since 1935, “use” it or not.
Besides, what is being advocated here? That if you have a Mooney problem you should ignore it, since it is the “surest way to seize defeat from the jaws of victory”? Victory would be assured if you “subsumed” Mooney into Brady? And that’s because Brady is always followed by prosecutors and judges whereas Mooney is not?
Is Greenfield serious? You uncover a Mooney situation and it’s one of those rare cases where you can prove it and you’re supposed to let it go? A prosecutor abuses his office in the worst way he can – against your client, so it’s your responsibility to correct – and you should bury your proof, look the other way and argue something else, because it’s a “bridge too far” and the judge won’t like it?
Put another way, the argument here is that you should match the prosecutors abuse of his office with a corresponding abuse of your own.
Any lawyer who would do that has no right to complain about any atrocity the system dishes out. The “bridge too far” is obviously the prosecutor’s conduct, not the defense lawyer fulfilling his obligation to ferret it out and obtain relief for his client, not to mention protecting the whole system from an unspeakable corruption.
It’s a really lousy argument, Scott. We realize you’re desperate to find some basis to disagree with us on this subject, but some things are just true, or just, or unarguable. Willful blindness for ego’s sake isn’t going to change anything, and it certainly isn’t going to help anything.