Brady Violations and the Bronx D.A.

The epidemic of Brady violations and associated prosecutorial misconduct continues unabated. Viewed most simply, absolute prosecutorial immunity, coupled with the inherent pressure on young prosecutors to prove themselves (or the lack of consequential pressure on senior prosecutors) inevitably results in misconduct for which the victims often have no recourse. More precisely, I am talking about the deliberate withholding of Brady material in blatant disregard for the constitution and basic principles of fairness and due process.

Prosecutors are constitutionally obligated to turn over evidence that would be helpful to a criminal defendant (Brady material) as soon as they become aware of it. Sadly, this does not always happen, and it has seemingly become routine for prosecutors to sit on evidence suggesting that the defendant is innocent -- evidence the prosecutor knows s/he is constitutionally obligated to immediately turn over. Instead, the prosecutor continues to press the case, hoping to coerce a plea deal that will secure the coveted conviction. And in those cases where the gambit fails, what are the consequences? Often none, either for the defendant, who has had to fight charges for weeks, months, or years, often from inside a jail cell, or for the prosecutor, who may, at worst be briefly scolded by a judge. When prosecutors succeed at playing hide the ball, it results in unjust convictions and imprisonment and ruined lives. It also does great damage to the integrity of our criminal justice system and undermines our faith in the outcome of the entire process. But the judicially sanctioned doctrine of absolute prosecutorial immunity protects prosecutors from any individual liability, even when they have deliberately withheld evidence, knowingly allowed their witnesses to lie, and otherwise engaged in blatantly improper conduct. The defendant who loses days, weeks, months, and years of his life has no recourse against that prosecutor.

This doctrine has long since outlived its usefulness. Basic fairness and prudence dictate that any immunity available to prosecutors ought to be qualified, at most. The continued deluge of exonerations underscores the need to hold prosecutors accountable when they choose to elevate convictions over the justice.

Our most recent example: Bronx Assistant District Attorney Megan Teesdale, who was handling the prosecution of Segundo Marquez. As detailed in the New York Daily News, Marquez had been accused of rape and had been incarcerated for 8 months when his case went to trial. The victim (apparently) testified at trial that she had not consented to any sexual relations. It was only after closing arguments had been heard that a supervisor from the Bronx District Attorney's Office advised the Court that, in fact, the victim had initially told a NYPD Sergeant that the sex was consensual. These interview notes were not passed on to the Marquez, who was thus unable to challenge the victim's trial testimony.

The prosecution moved to dismiss the charges and the case ended. But, as Bronx Criminal Court Judge John Wilson stated, the failure to find or disclose the notes was "a disgrace" that deprived both the victim and the defendant of their rights to seek justice. He banished the prosecutor from his courtroom, stating that since he could no longer believe her, she could not appear before him. It was not clear what her fate would be within her office, although the article suggested that this practice was not uncommon for Bronx District Attorney Robert Johnson's office; a fact that, if true, would confirm that this Brady violation was an intended result of a deliberate policy, not an accidental oversight.

What are Marquez's civil options? ADA Teesdale is personally immune from suit, even if she consciously withheld the information. That means that, aside from any professional considerations flowing from the office's embarrassment, she has no liability. Marquez would have to sue the office itself under a theory that this failure was in fact brought about by a policy decision. That is, that the Bronx D.A. either encourages its assistants to sit on Brady material, or otherwise fails to train or supervise them properly about their Brady obligations, and that these failures brought about this particular violation. It is a difficult and costly battle, and one that is tough to win given that the vast majority of evidence lies within the control of Johnson's office.

The takeaway? Until line prosecutors can be held liable for misconduct, there is little reason to believe that they will resist the pressure to violate Brady (and other, similar requirements) in order to gain convictions. Holding prosecutors responsible for their own deliberate actions will help create accountability and incentivize constitutional compliance.