Constitution Daily

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A controversial detective and the Brady Rule

September 9, 2013 by NCC Staff


The New York Times has done a series of pieces about a Brooklyn detective who may had put an innocent man behind bars. But the case is also bringing new attention to the apparent disregard of a Supreme Court decision requiring the disclosure of evidence to the defense in such cases.

Scales of justice

The Times series is about Louis Scarcella, a Brooklyn detective who, six months ago, the Brooklyn district attorney said had put an innocent man behind bars—and may have done much worse.

The District Attorney’s office is reviewing about 40 cases investigated by Scarcella.

The latest Times piece, on September 6th, agrees with the detective that a significant share of whatever blame he deserves should fall on prosecutors in the D.A.’s office:

“An examination by The New York Times of some cases Mr. Scarcella handled indicates that prosecutors in the district attorney’s office itself either ignored warning signs in the detective’s work or made missteps of their own," it says.

This development in the case underscores that the case implicates one of the major problems in criminal justice—that over-empowered prosecutors frequently flout their obligation to follow a constitutional requirement for fairness in criminal justice, by disclosing evidence to the defense that might change the outcome in the case—and do so with complicity from the Supreme Court.

Lincoln Caplan wrote about this subject from time to time for the Times editorial page, in this May 2013 editorial:

“Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence.

It might seem obvious that prosecutors with any sense of fairness would inform a defendant’s lawyer of evidence that could be favorable to the defendant’s case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.”

The Scarcella case provides a concrete way to explore the Brady problem.

In understanding the Brady rule’s importance, it helps to understand the fundamental insight of the late William Stuntz—the conservative, evangelical scholar who was a professor at Harvard Law School and who convincingly showed that in criminal justice, “the rule of law has been replaced by the misrule of politics, with a one-way ratchet of ever-expanding criminal laws giving boundless discretion to police and prosecutors, leading to a system that wrongly punishes too many black men.”

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