Los Angeles Dist. Atty. Jackie Lacey is getting credit for revising the… (Nick Ut / Associated Press )
Fifty years ago, in Brady vs. Maryland, the U.S. Supreme Court ruled that prosecutors have an obligation to turn over to defendants any evidence that might help prove their innocence or favorably change the outcome of their trials. Failure to do so, the court ruled, violates the Constitution's promise of due process of law.
It was a landmark decision whose underlying principle seems both obvious and fundamental: A prosecutor's duty is not to win cases at all costs, but to seek justice. In the years since the decision was handed down, many, many prosecutors have followed the law and turned over exculpatory evidence as required under the so-called Brady rule, helping to ensure that innocent defendants were not wrongly convicted. Many other prosecutors have failed to do so, but when that has happened — if and when it has come to the attention of a judge — convictions have often been overturned.
In Los Angeles County, then-Dist. Atty. Steve Cooley won praise for setting up a relatively thoughtful Brady policy earlier than many other prosecutors. He urged his employees not to withhold material evidence from the defense and he established a database, known as the Brady Alert System, to track negative information about law enforcement officers and government-paid witnesses that could be important to defendants. But last year the American Civil Liberties Union of Southern California sued, saying that the policy was insufficient and had led to a "system of injustice" for defendants. Among other things, the ACLU argued that prosecutors had been encouraged look only in the Brady Alert database and not anywhere else when checking for potential Brady material. What's more, according to the lawsuit, Cooley's policy had wrongly suggested that some potentially exculpatory evidence need not be turned over if prosecutors didn't find it credible.
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This week, the office and the ACLU resolved their differences. Dist. Atty. Jackie Lacey, who took over from Cooley in December, issued a directive explicitly stating that the Brady Alert System may not contain all the evidence the office is required to turn over, and that prosecutors should not rely exclusively on the database to satisfy their disclosure obligation. Lacey's revised guidelines also make it clear that prosecutors must comply with California law, which puts strict limits on what the district attorney can and cannot withhold — and which states that it is not the prosecutor's role to decide whether potentially exculpatory evidence is believable or not. That decision should be left to a judge or jury.
Lacey's announcement is a welcome change that will help ensure a fair trial for defendants in Los Angeles County. But even as she takes that one step forward, she's also taking a step back in a case involving four Irwindale officials who were indicted in 2011 for embezzlement after they took lavish business trips and sought per diems from the city even though their meals were paid for by others.
In seeking an indictment, prosecutors failed to disclose to the grand jury two documents that might have undermined their case. Under state law — law that is rooted in the same principle of fairness that inspired the Brady decision — prosecutors are required to present any exculpatory evidence they are aware of to grand jurors. One of the documents that was withheld was a memo from the city manager that explicitly states that city officials could apply for the $75 daily allotment even if they did not pay for their own meals. Because the documents were not turned over, a California appeals court threw out the indictment.
The district attorney's office, however, insists that the appeals court got it wrong, because the two deputy district attorneys handling the case were unaware of the memo. Saying that it is unreasonable to expect the prosecutors to have handed over information they knew nothing about, the office is appealing the case to the California Supreme Court.
But that argument is specious. The fact is that the memo was in the prosecution's case file, and other people in the office, including the lead investigator in the case, were well aware of the documents.
As the appeals court rightly noted, interpreting the law to apply merely to the two individuals who personally presented the case to the grand jury "is contrary to the purpose of the statute." Rather, the court said, it is the duty of the prosecution to gather all potentially exculpatory material held anywhere in its offices and disclose it to the grand jury.
In other words, the lead investigator and the other prosecutors in the office — not just the two deputies working directly on the case — all had an obligation to make sure that the potentially exculpatory information was given to the grand jurors. In failing to do so, they shirked their legal responsibility.
Lacey's appeal is misguided. Instead of trying to defend a sloppy prosecution, she should stand up for a broad interpretation of the law that recognizes the fundamental importance of disclosing all potentially exculpatory material. Fairness and justice require nothing less.