D.A. Policies Fail to Protect Rights

D.A. Policies Fail to Protect rights

By Richard D. Willstatter

New York Law Journal

July 31, 2012

State Bar Criminal Justice Section Chair Marvin Schechter should be commended for publicly stating a simple but uncomfortable truth about the state and federal criminal justice system: Prosecutors all too frequently violate defendants’ right to receive favorable information. The district attorneys association’s condemnation of Schechter’s statement (“D.A.s Challenge Claim by Bar Section Head They Undermine Brady,” NYLJ, July 30) demonstrates that many prosecutors cannot even admit their failure to adopt policies to prevent violating the rights of the accused. As the D.A.s should know, the state bar’s Task Force on Wrongful Convictions found that Brady violations are a continuing problem, denying defendants a fair opportunity to organize and present a defense. That is why the state bar endorsed A.4879/S.3276 and one major reason why broad discovery reform is required and is sought by our association, the New York Civil Liberties Union, the Innocence Project, the Legal Aid Society, and the National Association of Criminal Defense Lawyers, among others. Predictably, these needed reforms are resisted by the district attorneys association.

We are disappointed that Manhattan District Attorney Cyrus Vance Jr., himself a former defense attorney, would express disappointment that state bar President Seymour James did not respond to his complaints with laudatory comments for prosecutors. At least one of New York’s district attorneys, Charles J. Hynes, understands the issue. He has stated that “disclosure is not only an ethical and legal obligation, it is a moral imperative.”

A 2010 Working Group on Brady hosted by the Jacob Burns Ethics Center at Cardozo Law School and cosponsored by, among others, the National District Attorneys Association, found that “as a general principle, but subject to exceptions, prosecutors should disclose all evidence or information that they reasonably believe will be helpful to the defense or that could lead to admissible evidence.” Although Vance gave a talk at this same symposium, he apparently seems to have forgotten that finding and now thinks prosecutors may only be given “respect and support.” His criticism of James is as disheartening and baseless as was the district attorneys’ criticism of Schechter.

The reliance of the district attorneys association on a recent handbook it prepared is telling. The handbook asserts that prosecutors need only disclose “material, exculpatory information.” But Vance certainly knows that is simply not the standard set forth by our courts and guaranteed by our Constitution. The courts and the Constitution require the disclosure of all information that is “favorable” to the defendant. The DAASNY‘s position on Brady obfuscates their real and continuing obligations as public officials to promptly disclose favorable information and adherence to it will inexorably lead to more innocent people being wrongfully convicted.

Richard D. Willstatter
The author is president of the New York State
Association of Criminal Defense Lawyers

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