from the Brady-violations-will-continue-until-morale-improves dept
Criminal defendants face a tilted playing field all over the country. If it isn't the frequent withholding of exculpatory material by prosecutors, it's everything leading up to it -- beginning with questionable interrogation methods and continuing with the admission of dubious physical evidence.
Virginia's playing field is more slanted than most.
Although prosecutors in Northern Virginia mostly make their files available to defense lawyers, that’s not true across the Commonwealth, defense lawyers said. “Justice is different in one jurisdiction than the next,” said Norfolk defense lawyer Douglas Ramseur. “You could be charged in Richmond and Norfolk and get a completely different amount of information. That seems to me completely inappropriate and unseemly for our system.” He added that prosecutors who like one defense lawyer may provide more access than to a lawyer they don’t like, giving prosecutors unfair leverage.There's no consistency across jurisdictions. Even at its most accommodating, the amount of information available to defense lawyers pales in comparison to what can be uncovered in civil proceedings. Apparently, when it's only someone's freedom on the line, Virginia's judicial oversight feels "barely adequate" is more than enough.
It's gotten bad enough that the state's Supreme Court empanelled a Special Committee on Criminal Discovery Rules in 2013. In early 2015, a preliminary report was issued. This was followed by a letter from the state's ACLU, which highlighted some of the suggested fixes.
The proposed Rule 3A:11[b] would allow the defense to inspect "all relevant police reports," such as "reports of interviews of witnesses." The new rule would also allow the inspection of "all relevant statements of any non-expert witness," including written or signed statements, transcripts, or recordings.The discussion continued throughout 2015. The panel's suggestions were opened for public comment and the state's defense attorneys began looking forward to more equitable evidence sharing in the future. Virginia courts, where "trial by ambush" is the norm, would perhaps start moving towards something resembling the balance envisioned by the nation's founders.
The inclusion of police reports and witness statements in the routine discovery process will greatly improve the adversarial process. Under the proposed rules, defense attorneys will have access to the most basic information about their clients' cases. No person should have to stand trial without knowing basic information about the government's case against him. And in a criminal justice system that "is for the most part a system of pleas, not a system of trials," defendants must have access to this critical information before trial so that they can make an informed decision about whether to take a plea bargain or go to trial.
Proposed Rule 3A:11(i) would, for the first time, formally enact the rule of Brady v. Maryland into Virginia criminal procedure. More than 50 years ago, the United States Supreme Court held that, as a matter of federal constitutional law, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution…
This proposal is consistent with Brady and with adversarial principles. By requiring disclosure of exculpatory evidence upon indictment, waiver of indictment, or before entry of a plea, and by requiring the disclosure of impeachment evidence seven days before trial, the proposed rule provides stronger protection to defendants than offered by current constitutional jurisprudence...
By making clear that prosecutors must make disclosures of Brady evidence before trial, the proposed rule would place appropriate emphasis on the duty of a prosecutor to seek justice, not merely to convict.
Two years after the process began, the same Supreme Court that brought the committee into existence has rejected all of its suggestions. A single-paragraph announcement by the court states nothing will change.
On December 2,2014 came the Special Committee on Criminal Discovery Rules and submitted its final report, which included proposed revisions to Rules 3A:l1, 3A:12, 7C:5, 8:15, and which also proposed the adoption of Rule 3A:12.1. Having considered the Committee's report and the public comments submitted in response thereto, the Court declines to adopt the Committee's recommendations.Not a single recommendation adopted. A project that lasted two years and gathered more than 300 pages of public comments is nullified by 63 words. The court's excuse for this? It would have been difficult to implement even one of the recommendations because so much of the state's judicial system is in dire need of an overhaul.
Virginia Chief Justice Donald W. Lemons said in a statement to The Washington Post that the entire proposal was simply too much all at once. While commending the report, Lemons wrote that “such fundamental and sweeping changes in the system, especially in light of the strong public comments opposing them, seem unwise at this time.”"Difficult" maybe. But not impossible. Rather than engage in a task worth undertaking, the court has opted for stasis, because it's easier than dealing with the multitude of problems it has failed to address in the past. And it must be noted that the "opposing" comments the Chief Justice refers to in his cop-out were submitted by the beneficiaries of the broken system -- and those comments were in the minority.
“It would be difficult for the court to accept some of the proposals and not all of them as a package because the court cannot be certain about the interdependent nature of these compromises.”
[T]he Supreme Court asked for public comment and received 318 pages of letters and emails. The overwhelming majority, coming from defense lawyers and some defendants, supported the rules changes. But the Virginia Commonwealth’s Attorney Services Council and Virginia State Police filed long, detailed objections.When in doubt, defer to the "winning" team -- the one that always receives the lion's share of judicial deference. Better an innocent man do time than a few proposals upset the delicate balance of the skewed system by screwing with their "interdependence." No matter how the Supreme Court of Virginia spins this, the refusal to move forward is weak, cowardly and will do further harm to criminal defendants. And all the while, the judicial system will continue to pretend a "fair" trial can be had within the state's courts.