Academic journal article Vanderbilt Law Review

Brady Obligations, Criminal Sanctions, and Solutions in a New Era of Scrutiny

Academic journal article Vanderbilt Law Review

Brady Obligations, Criminal Sanctions, and Solutions in a New Era of Scrutiny

Article excerpt


Six days after terrorist attacks shook New York City and Washington, D.C., the FBI raided an apartment complex in a suburb of Detroit and apprehended three North African men.1 Among the men's possessions were hand-drawn sketches potentially detailing targets for terrorist attacks abroad. Four men2 were charged with providing material support for terrorism and document fraud and were brought to trial two years later.3 Richard Convertino, an assistant United States attorney with a strong track record in the DOJ, was tapped to prosecute the case and won convictions against three of the four defendants.4 Attorney General John Ashcroft personally and publicly lauded the importance of the case and proclaimed the convictions victories in the war on terror.5

Allegations soon arose, however, that Convertino and a "regional security officer" concealed photographs of one of the alleged targets from the defense at trial.6 The defense claimed that these photographs would have shown that the sketches were benign and not "terrorist casing sketches" as the prosecution had asserted at trial.7 Convertino vigorously denied any wrongdoing, but an investigation revealed that he may have received an email containing the photographs at issue. Amid a maelstrom of controversy and allegations of political reprisal, Convertino was charged and indicted for conspiracy, obstruction of justice, and making false declarations.8 This may have been the first time a U.S. attorney faced prosecution for failing to adhere to his prosecutorial duty to disclose exculpatory evidence. That distinction was of little solace to Convertino as he awaited his fate at trial, facing the very real possibility of years behind bars.9

At almost the same time in Durham, North Carolina, an exotic dancer accused three athletes at Duke University of raping her at an off-campus party where she had been hired to perform.10 The county's district attorney, Mike Nifong-facing reelection11 and a volatile electorate-immediately took the reigns of the case, speaking to the media freely and exalting the strength of the impending prosecution.12 As the prosecution moved forward, it became apparent that the evidence in the case was less than convincing. Nifong subsequently withheld the results of a DNA test, witness statements, and other evidence that cast significant doubt on the guilt of the three accused.13 Against an onslaught of criticism, Nifong remained recalcitrant, refusing to abandon the prosecution, and instead asked the state attorney general's office to take control of the case.14 The North Carolina Attorney General soon dismissed all charges against the students, proclaimed their innocence, and cited numerous prosecutorial improprieties.15

Admittedly, prosecutorial behavior in these two cases was extreme, but each example gives rise to significant questions about our system of criminal justice. When a prosecutor misbehaves, what outcome is just? Should a factually guilty defendant escape punishment because of a prosecutor's error? Who really suffers in these situations? How should prosecutors pay for their misdeeds? Convertino endured a full-blown jury trial and could have spent years behind bars if convicted, while Nifong lost his license to practice law and spent just one night in jail.16 Which outcome is fair?

The two cases also illustrate that prosecutors can wield an incredible amount of control over the civil liberties of their fellow citizens by withholding evidence. When abuses of this nature occur, repercussions are few and inconsistent. This Note examines the federal and state remedies currently employed to combat prosecutorial failure to disclose evidence. An examination of these remedies reveals a frustrating system; disclosure violations continue to occur at high rates at both the federal and state levels,17 while individual prosecutors rarely face repercussions for these violations. This Note makes two primary recommendations for decreasing the incidence of disclosure violations. …

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