A few weeks ago, we posted about the Ohio death row case of Vietnam Vet Gary Cone, where the United States Supreme Court returned the case back to the lower courts for a fresh consideration of his sentencing after finding that 23 years ago, Cone’s due process rights had been violated because the prosecution withheld key evidence that was favorable to the defense – exculpatory evidence.

Sad to say, this happens all too often in this country.

Just this past week, in the Washington Post, Maryland attorneys Albert D. Brault and Timothy F. Maloney wrote an excellent article entitled, “A Standard for Fair Trials,” where they outlined several examples of prosecutorial misconduct in the form of withholding exculpatory evidence.

While not all of their evidence pertains to capital punishment – for instance, they include a reference to the case of Alaskan Senator Ted Stevens – they do offer both the Ohio example of Gary Cone, and their suggestions for correcting an obvious system-wide failure is worth consideration.

The Proposed Solution: Codification of Brady into the Discovery Rules

In sum, they look back to the American College of Trial Lawyers’ recommendation that the federal courts adopt rules of procedure regarding discovery in criminal cases that create “clear, bright lines” – essentially codifying the 1966 U.S. Supreme Court opinion in Brady v. Maryland and its progeny.

How much success they’ll meet is questionable, since it was only three years ago — in 2006 — when this same solution was rejected because of strong opposition by the U.S. Department of Justice – even though the federal rules committee had voted to recommend their adoption. There’s also the argument that the law is already on the books – prosecutors should be following Brady and subsequent precedents without the need for a nice, neat rule that outlines what Brady stands for.

Is Hiding Exculpatory Evidence an Established Practice?

While the majority of prosecutors play by the rules and strive to seek justice, are the exceptions making Brady violations an established practice? It seems that all too many state and federal prosecutors will continue this pattern of hiding the ball.. When caught, we’ll see prosecutors doing just what a Boston prosecutor did this week, practically on the same day that the Washington Post article ran – cry “mea culpa” and beg the court’s leniency because the prosecutor’s career is in jeopardy.

For more details on how Boston prosecutor Suzanne Sullivan hid evidence that a Boston police officer contradicted what he had previously told the prosecutor when he took the stand and actually gave testimony at a pretrial hearing, check out this Boston Globe article.