Volume 59

Planning Brady's Comeback: Public Defenders Are Needed as Judges to Lead the Restoration of Brady's Lost Promise

by Ben Miller

Since 2020, nearly 60% of all people who have been exonerated have had cases infected with Brady violations, costing these people to lose more than 3,600 years combined to wrongful incarceration. Nevertheless, the United States Supreme Court has transformed from once recognizing that Brady violations undermine the “very integrity of the judicial system” to disregarding their impact as not that harmful of a constitutional violation. The promise once surrounding Brady has largely been replaced by hollow prosecutorial proclamations of a commitment to their disclosure obligations followed by courts forgiving those very same prosecutors when they suppress favorable information. Such a dynamic occurred in Turner v. United States, where Justice Breyer quoted the government’s claim of a “generous” disclosure policy in the opinion. He and the majority then upheld the convictions even though the prosecution hid from the defense a substantial amount of information that could have changed the “whole tenor” of trial.

This Essay details why prosecutorial claims of having and following a generous disclosure policy were inaccurate at the time of Turner and remain inaccurate today. It explains that when courts are unwilling to uphold Brady’s purpose of ensuring a fair trial they encourage prosecutors to play games with disclosures. If judges want to prioritize everyone’s right to a fair trial, they must be willing to impose a series of suggested remedies and sanctions when prosecutors do fall short in their disclosure obligations. The Essay concludes by arguing that if there is any chance of systemic improvements to howBrady is applied, courts need judges with different experiences. They need public defenders. Replacing Justice Breyer with Justice Ketanji Brown Jackson was an important start. As Justice Jackson said during her confirmation hearings, she has “dedicated [her] career to ensuring that the words engraved on the front of the Supreme Court building, ‘Equal Justice Under Law,’ are a reality and not just an ideal.” But to restore Brady’s promise of equal justice, appointing public defenders must occur in all courts from the Supreme Court on down.

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