May 2013
Brady v. Maryland requires prosecutors to provide a person accused of crime with all favorable information that might affect the case. Fifty years after this ruling, the failure to satisfy Brady obligations is commonplace. Why? What can be done about it?
Articles in this Issue
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A Half-Century Struggle for Fairness (Inside NACDL)
Sadly, the struggle to obtain information favorable to an accused that rests in the hands of prosecutors and their agents rages on 50 years after the Supreme Court declared in Brady v. Maryland that 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. And so the 50th anniversary of Brady, which occurred on May 13, 2013, is less a celebration than a lamentation.
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Affiliate News
2013 NACDL & Affiliate CLE Calendar
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Book Review: Accidental Felon
Author Gloria Wolk has a commendable motivation in writing a federal criminal justice thriller, but her book is unimaginative and contains a jumble of clichéd situations.
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Codifying the Brady Rule
NACDL devised a model statute that would codify the Brady rule. The Fairness in Disclosure of Evidence Act does not attempt to reform criminal discovery generally, but it does seek to clarify and implement the Brady rule in each respect that case law development has made problematic.
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Collateral Consequences Roundtable
Collateral Consequences Roundtable Collateral Consequences Roundtable May 2013 82 One in four Americans has a criminal record. The consequences of a criminal conviction — specific legal barriers, generalized discrimination, and social stigma — have become more numerous and severe, more public, a
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Combatting Brady Violations With An ‘Ethical Rule’ Order for the Disclosure of Favorable Evidence
The authors offer a proposal that, if adopted by state and federal judges, would solve many of the problems that have hindered meaningful compliance with Brady over the last 50 years.
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Faces of Brady: The Human Cost of Brady Violations
These are the stories of real people whose lives were dramatically harmed by the government’s failure to comply with the constitutional demands of Brady.
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Fifty Years Before Brady
Editor’s Note: This article is based upon Colin Starger’s prior work on the evolution of Brady doctrine. See Colin Starger, Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v. Maryland, 46 Loy. L.A. L. Rev. 77 (2012).
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From the President: Brady at 50
Many years ago I was asked to talk at an annual meeting of a statewide prosecutors’ association. They wanted me to speak from a defense perspective about common prosecutorial mistakes. Really, this was their idea. I accepted happily.
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Gideon’s Champions
When some people in the indigent defense community speak of federal public defenders, there is often a twinge of jealousy because federal defender offices embody many of the ideals of parity and equality about which state public defenders can only dream. Federal defenders are generally paid at the same rate as their counterparts in the U.S. Attorney’s Office and their caseloads are measured by multiples of 10 rather than multiples of 100.
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Law Student Essay Competition
Editor’s Note: NACDL’s Diversity Task Force sponsored a law student essay contest. The task force asked students to discuss voter ID laws and whether they are being used to disenfranchise citizens from exercising their right to vote. Congratulations to Ojoke Oyegunle (first prize), Preston Smith (second prize), and Sally Tyler (honorable mention).
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NACDL News: Bipartisan Effort Establishes Overcriminalization Task Force
The House Committee on the Judiciary voted unanimously on May 7, 2013, to create the “Overcriminalization Task Force of 2013.” According to Judiciary Committee Chairman Bob Goodlatte (R-VA), “The task force will be authorized for six months and will be led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner and Ranking Member Bobby Scott.” It will “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.”
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NACDL News: Constitution Still Applies in Alleged Domestic Terrorism Cases
On April 22, prior to Boston Marathon suspect Dzhokhar Tsarnaev being read his Miranda rights, NACDL issued a statement supporting the use of America’s civilian criminal justice system for cases of alleged domestic terrorism and reiterating its opposition to any expansion of the “public safety exception” to Miranda v. Arizona. The narrow “public safety exception” permits law enforcement to temporarily interrogate suspects without providing them their constitutionally-mandated Miranda warning in emergency situations.
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NACDL News: Indonesian Legislators Visit NACDL
NACDL News: Indonesian Legislators Visit NACDL Ivan J. Dominguez NACDL Executive Director Norman Reimer and other staff members meet with a group of legislators from Indonesia’s House of Representatives during their visit to NACDL headquarters in Washington, D.C., on April 24. 2013
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NACDL News: Manning Granted Stay of Execution by Mississippi Supreme Court
Willie Jerome Manning, who had been scheduled to be executed by the State of Mississippi on May 7, 2013, at 6:00 p.m., was granted a stay of execution by the Mississippi Supreme Court “pending further Order of this Court.” The order came less than four hours before the scheduled execution. Significant doubt had been raised concerning the forensic evidence used to convict Manning of murdering two university students in 1992.
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NACDL News: NACDL Launches Domestic Drone Information Center
On April 30, NACDL launched a new web resource called the Domestic Drone Information Center. NACDL’s Domestic Drone Information Center aims to be a one-stop source of cutting-edge information on the use of drones inside the United States. It collects news from leading publications across the nation; features a comprehensive listing of legislative developments; and contains sections devoted to relevant case law, scholarship, upcoming events, and data on drone usage.
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NACDL News: NACDL Remembers Richard Bing
NACDL lost one of its true champions May 3, 2013, with the passing of Richard Bing, the editor of The Champion from 1991 to 2006. Richard was a gentle, soft-spoken man with a quirky sense of humor. While he may have lacked a commanding presence, he had a deep concern for NACDL’s members and an unfailing drive to make the organization’s monthly magazine the very best publication of its kind.
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NACDL’s New Way to Connect
NACDL’s New Way to Connect Membership April 2013 10 NACDL is delighted to announce the launch of a new platform for community discussion groups. NACDLConnect dramatically enhances the versatility and richness of member-to-member communications by providing an updated interface and myriad options
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Pursuing Discovery in Criminal Cases: Forcing Open the Prosecution’s Files
Editor’s Note: Although Mike Klinkosum practices law in North Carolina, a state that provides “open-file” discovery (defined as discovery in which everything contained in the files of law enforcement and the prosecution, with the exception of work product and privileged material, is provided to defense attorneys) by statute, such was not the case prior to 2004. See N.C. Gen. Stat. § 15A-903 (2010); S.L. 2004-154, S.B. No. 52 (N.C. 2004). The techniques and strategies discussed in this article were employed by Klinkosum prior to 2004.
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Reflections on the Jeffrey MacDonald Case
My first truly searing experience with federal prosecutors violating the Brady rule continues to sear today, nearly a quarter century after I was introduced to the case of United States v. Jeffrey R. MacDonald. Having practiced criminal defense law since 1967, I have, of course, run across the usual array of Brady violations, but nothing I saw before MacDonald, and nothing since, has disgusted me in the same way.
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The Brady Battle
The capacity of judges to use Brady to halt the conveyor belt to conviction requires that Brady violations be discovered — a challenging task that demands aggressive and persistent defense lawyering.
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The Class of ’63: Major Supreme Court Cases of the 1963 Term
The year 1963 saw a U.S. Supreme Court comprised of a diverse array of justices. The Court proved to be a critical element in the establishment of fundamental rights for all Americans, including criminal suspects and juvenile offenders.
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The Supreme Court’s Unfortunate Narrowing of the Section 1983 Remedy for Brady Violations
Editor’s Note: Some parts of this article build upon New York Law Journal columns written by Professor Schwartz: Section 1983 Brady Claims, N.Y.L.J., April 18, 2008 at 3; Supreme Court Overturns $14 Million Verdict for Wrongful Conviction, N.Y.L.J., June 15, 2011 at 3; Wrongful Conviction Claim Barred by Prosecutorial Immunity, N.Y.L.J., June 16, 2009 at 3. This article is an original work and substantially modifies, expands, and updates the material in these columns.
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TV Review: Gideon's Army
“How can you represent those people?” It is a question every public defender has heard. It often comes from people who are well meaning in their concerns about criminal justice but who harbor fundamental misperceptions about the work we do and the people we represent. Gideon’s Army, which will air on HBO July 1st, provides a definitive answer to that question.
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Why Do Brady Violations Happen?: Cognitive Bias and Beyond
Stop. Do you need to read another article that begins with, “Despite its fifty year history, the Brady promise remains unfulfilled”? You know that. You know the law. You know that the actual practice is far afield from what Justice Brennan might have envisioned in the noble pursuit of fairness in Brady v. Maryland.1