Dettelbach, Steven M.

English

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 57 | Issue 32007Commentary: Brady from the Prosecutor'sPerspectiveSteven M. DettelbachFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationSteven M. Dettelbach, Commentary: Brady from the Prosecutor's Perspective, 57 Case W. Res. L. Rev. 615 (2007)Available at: https://scholarlycommons.law.case.edu/caselrev/vol57/iss3/13COMMENTARY: BRADY FROM THEPROSECUTOR'S PERSPECTIVESteven M DettelbachtI would like to provide a prosecution perspective on Brady, eventhough I am now a defense attorney. I want to thank Case for havingthis program and for having me, and I want to thank ProfessorGiannelli for his upcoming and past work on this topic. As a memberof this local community, I take pride when I see somebody fromCleveland play such an important role in an important debate. Wehave a few such people in the debate of DNA and exoneratingevidence, including Professor Giannelli and my partner Jim Wooley.Cleveland really can be proud of itself.I am very conscious of the fact that I am talking to an audience ofexperts. What I hope I can do is give you a different perspective, andit is admittedly limited. Although I am now a defense attorney, Icome from many years as a federal prosecutor.I don't know that I can talk with expertise about every prosecutor'soffice. They are all different, but I will give you what I learned in myyears as a federal prosecutor. I will try to apply my experience toProfessor Giannelli's proposal that we need additional objectivediscovery rules to handle Brady evidence.There are three things I remember learning as a prosecutor relatedto the issue of exculpatory evidence.First, on almost my first day as a prosecutor in Washington D.C., avery senior appellate prosecutor came in and lectured to all the babyprosecutors on Brady. The first thing he said stuck with me for allthese years, and I will clean it up a little bit for this audience.The senior prosecutor said "When you learn about a piece of theevidence, if you say, 'Oh, heck,' then it is Brady." And he followed itup by-and I will clean this up a little bit, too--"There is no case andno criminal that is worth your integrity and your career," which is at Distinguished Practitioner of Law, Baker & Hostetler LLP.CASE WESTERN RESERVE LAW REVIEWunique and compelling way to explain to prosecutors, in their ownterms, in their own language, the necessity of complying with therequirements of Brady.Second, my personal experience was that prosecutors actually feltthe fear of personal consequences in making these decisions. I thinkthat often led to open file discovery and going beyond what the rulesrequire in certain jurisdictions.Third, I still remember reading a memo by Stephen Trott that islore in the Department of Justice and is pounded into every youngDepartment of Justice prosecutor. Stephen Trott, who was the headof the Criminal Division and later became a judge on the NinthCircuit, wrote a memorandum concerning the use of informants andcooperating witnesses. The two lessons from the memorandum thatevery prosecutor is taught: One. Don't do it unless you have to. Two.Corroborate, corroborate, corroborate. From a prosecutor'sperspective, you never want to have any necessary part of your casedepend upon the credibility of a cooperator alone.Those are three overview points that provide a prosecutor'sperspective on these issues.I think it is also worth talking about the defense perspective andhow we got to this state of affairs in the law. We ought to examinewhat caused the development of the materiality requirement, whichwe heard about from the first panel and Professor Giannelli.Specifically, we heard that the materiality requirement is a very strictrequirement and narrows Brady significantly.There is actually a tension between today's panels on this issue-we are hearing on the current panel that we have to get rid of themateriality requirement, but we heard on the first panel that thenarrowness of the materiality requirement is why we feel comfortableimposing a Brady rule on plea negotiations. So there must be somereconciliation of the issue.I think part of the reason for the materiality requirement is a self-defense mechanism on the part of the criminal justice defend againstvery talented and creative pool of defense attorneys. This is whathappens in many cases, and I think this is every prosecutor's worstnightmare. They try a case. They try to do the right thing. They try tomake these discovery decisions. They get a conviction, andafterwards the case is scrutinized under a microscope, in the view ofperfect hindsight, with incredibly creative and aggressive defenseattorneys making arguments about why things were exculpatory orrelevant to the trial, when in reality the trial was about totally[Vol. 57:32007] BRADY FROM THE PROSECUTOR'S PERSPECTIVE 617different matters. Again, this is the prosecutor's perspective, butthat's the fear.Moreover, I think this fear is shared by courts. I think courts havedeveloped this materiality requirement in order to serve as a self-defense mechanism and to protect from second guessing rightfulconvictions. I don't think anybody is claiming that in the scheme ofthe criminal justice system, one hundred and ninety-four or evennineteen thousand is the majority or even a significant proportion ofcriminal convictions over the last twenty years. And as a self-defensemechanism, unfortunately, we have had a narrowing of the Brady ruleby this materiality requirement to prevent against the kind of armchairquarterbacking and second guessing that gives no finality in thecriminal justice system. That's not to say it is right, but I believe thatis how we got to where we are now.We live in a constitutional system, but it is also a democracy. AndI think in the long run, the vast majority of people, of voters, want tohave reliable enforcement and reliable consequences to definecriminal conduct. So it is a difficult balancing act that we are doinghere between a defendants rights and the will of the majority toimpose sanctions on criminal conduct.Those are general overview comments. But I want to get toProfessor Giannelli's point in his upcoming piece, which is whetheror not there should be additional specific rules of discovery that helpus thread this needle. I think there should be such rules, because thereis no way in a system with human beings that you can rely totally onsubjective determinations.The more objectivity that we get in the system, the better. But Ihave a caveat to Professor Giannelli's proposal, which is that therehas to be a balancing. I think that the imposition of these rules, then,has to come with a presumption that somehow limits the ability tomake post hoc challenges based on novel theories when the rulesthemselves have been complied with. So if the prosecutor follows therules and does all the things required by such rules-even though itmight not be constitutionally required in certain cases-then we oughtto reward that conduct by limiting the second guessing that goes onafter the fact.There is a model for this: the Jencks Act. With the Jencks Act, weaddressed what we should do with prior statements. We have said it istoo messy for a prosecutor to figure out if the prior statement of awitness is somehow impeachable, whether it is perfectly consistentwith the trial testimony or not. The prosecutor, therefore, has to giveall of the statements over to the defense.CASE WESTERN RESERVE LAW REVIEWBut the rule also comes with certain mechanical restrictions:timing for the release of Jencks statements may differ from what thedefense counsel might want, or the uses of a statement might belimited in certain circumstances. There is also litigation about whatconstitutes a prior statement that is covered by the act and whatdoesn't. Are summaries covered? In some places they are covered;other places they are not. But if prosecutors follow the written rules,they have some comfort that they will not somehow be punished laterfor failing to produce certain material.This model can be applied to Brady material. It might not be aperfect model, but it is a model that rewards good behavior basedupon defined rules. I think we ought to consider doing that.I don't think that as a political matter-and this is coming from myexperience as counsel on the Senate Judiciary Committee-we aregoing to get to 'yes' by simply forcing a series of what will be viewedas pro-defense rules down the mouth of the Department of Justice andthe community.I don't think that's going to happen because it isn't a politicalpossibility given the general community's feeling about crime. Thecommunity is rightfully schizophrenic on this issue. They hate itwhen a guilty person is acquitted, but they also hate it when aninnocent person is convicted. We have to be careful about thebalance.One of the things I fault both the Justice Department and the ABAfor is that neither has truly created an inclusive group to make thisbalancing happen. To be fair, it is hard. We tried to create aninclusive group a few years ago around the issue of contacts withrepresented persons. We found that it is very, very hard to get thepeople in the room talking to each other. That's why I think that thesekinds of conferences and these kinds of dialogues are so veryimportant. You cannot get to a solution that makes sense unless youget buy-in from all the different communities involved.[Vol. 57:3

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