Yesterday, the Supreme Court took the New Orleans prosecutor's office to task during an oral argument in Smith v. Cain for what one justice said was a long history of accusations that the office has blatantly ignored the right of defendants to be provided with exculpatory evidence before trial pursuant to the landmark ruling in Brady v. Maryland, which has been on the books since 1963.
The problem is that the Court is not willing to do anything beyond scold. Just last term, in Connick v. Thompson, the Court reversed a $14 million civil rights judgment against the same office for doing the same thing in a different case. The justices don't seem to get that at this point there are no true consequences for failure to turn over exculpatory evidence.
Here's how the system currently works. Someone is charged with a crime. The government withholds evidence that shows that the person didn't do it.
The person is convicted of the crime and spends, let's say, twenty years in jail. An appeals court rules that Brady evidence was withheld. The person is granted a new trial. No prosecutor goes to jail, no prosecutor or prosecutor's office pays so much as a nickel in fines. In fact, the prosecutors get another shot at a trial.
This blog post was written by Washington DC criminal lawyer David Benowitz.