Don't stifle Brady

The California Attorney General charged Diana Teran, the former head of Los Angeles District Attorney George Gascón's Justice Integrity Unit, with several felony counts alleging she illegally accessed LA County Sheriff's deputies' personnel files while she worked in that department as a Constitutional Policing Advisor in 2018.

Attorney General Rob Bonta believes that Teran downloaded these personnel files documenting officer misconduct and later provided them to the District Attorney's office in an effort to ensure that the District Attorney's Office complied with their ethical duties under Brady v. Maryland.

In a press release issued by the Attorney General's office regarding the charges, Attorney General Bonta stated, "No one is above the law. Public officials are called to serve the people and the State of California with integrity and honesty. At the California Department of Justice, we will continue to fight for the people of California and hold those who break the law accountable."

Attorney General Bonta's actions will undoubtedly have a chilling effect on prosecutors seeking to abide by their ethical responsibilities as a prosecutor.

Sixty years ago in Brady v. Maryland, the U.S. Supreme Court recognized the constitutional importance of providing a person accused of a crime with favorable information and declared that failure to do so violates due process when that information is "material" either to guilt or punishment. Yet, studies over the past two decades have conclusively demonstrated that prosecutors often fail to fulfill this duty.

According to the National Registry of Exonerations, 52% of the 289 exonerations in California since 1989 involved prosecutors withholding exculpatory evidence. The frequency with which Brady violations occur and the huge role they play in wrongful convictions prompted the Northern California Innocence Project to look at the problem from a different perspective. Particularly: what role does judicial review play in the disclosure of favorable information to the accused?

In 2014, we published "Material Indifference: How Courts Are Impeding Fair Disclosure In Criminal Cases," which provides empirical support for the conclusion that the manner in which courts review Brady claims has the result, intentional or not, of discouraging prosecutors from disclosing information that does not meet the high bar of materiality. The regularity with which courts conclude that suppressed information is favorable to the defense, yet not material (and thus not a Brady violation), creates an impression that a prosecutor's disclosure of all favorable information in a criminal case is not required.

Based on our research findings, we concluded that it is the judiciary which must lead efforts to address the problem of non-disclosure of favorable information. Judges should grant a standing Ethical Rule Order in all cases for the prosecution to disclose all favorable information in accordance with California Rule of Professional Responsibility 3.8(d), which would bind prosecutors and make it possible for judges to sanction those prosecutors who fail to comply.

In the case of Teran, her role in the sheriff's department provided her with first-hand knowledge of officer misconduct in that office. In her role as a prosecutor, she has an ethical duty to disclose that information if favorable to a defendant -- an ethical duty that extends beyond Brady jurisprudence.

In the ensuing decades since Brady, the Court expanded the reach of Brady to include information not specifically requested by the defendant, information that may be used to impeach government witnesses, and information in the control of government agents regardless of whether the prosecutor was aware of the information. But the parameters of a prosecutor's obligation to disclose favorable information, and a defendant's corresponding right to access that information, are not defined entirely by Brady. And in 2017, the CA legislature enacted Penal Code section 141, subdivision c, which makes it a felony for a prosecutor to knowingly and in bad faith withhold relevant and material information from the defense.

Teran's decision to ask a colleague at the DA's office to review publicly available court records and consider whether the officers in question should be included on the LADA's Brady list-- a database of law enforcement officers accused of or found to have committed misconduct -- is consistent with a prosecutor's ethical obligation under California Rule of Professional Responsibility 3.8(d) to "make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence..."

To think Teran should ignore instances of officer misconduct she learned of during her tenure at the LA Sheriff's department goes against notions of justice. To think Teran should suppress instances of officer misconduct because she or a court may not deem them material to a criminal case violates her ethical responsibilities as a prosecutor. In fact, Chapter 14 of the LADA's own policy manual clearly states: "The Office's policy is to adhere to these [disclosure] obligations regardless of materiality to ensure defendants receive a fair trial and to preserve the integrity of convictions."

Attorney General Bonta and the court should consider what is at stake in this case. Punishing prosecutors who abide by their ethical obligations undermines justice and will lead to wrongful convictions. California courts must stand for integrity and honesty, not against it.