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Promoting Justice

The following article from the New York Times outlines how some of your privacy is [or is not] being protected.

“Prosecutors have a constitutional duty to disclose significant evidence favorable to a criminal defendant. But too often that duty, as laid out by the 1963 Supreme Court decision Brady v. Maryland, is violated.

To help ensure compliance, some prosecutors, criminal defense lawyers and legal scholars have sensibly concluded that prosecutors’ files, as a general rule, should be made open to defendants. In cases where turning over evidence might endanger a witness, for example, a judge could allow an exception.

A small number of state and local governments have adopted open-file policies that require prosecutors to make available well before trial all information favorable to the defense, without regard to whether such information is likely to affect the outcome of the case. North Carolina and Ohio and places like Milwaukee have found that such policies make prosecutions fairer and convictions less prone to error. The Justice Department should join this movement and set a national example. But instead, it continues to take half-measures in response to its own failures to meet disclosure requirements.

It responded to several cases of Brady violations by its attorneys — including egregious misconduct in the case of the late Senator Ted Stevens — by providing more training and by directing each United States attorney’s office to set forth clearly its version of the department’s Brady policy, which is to turn over favorable evidence only if it is “material,” meaning likely to make a difference in the case’s outcome.

Those changes are not sufficient because the Brady rule is too easily skirted. It allows prosecutors to withhold favorable evidence that they deem not to be material, leaving defense lawyers unaware of evidence that may be owed them. Ninety-six percent of federal criminal cases are resolved by plea bargains, so the rule puts defendants at a disadvantage in negotiation: without access to information in the government’s files, they don’t know the evidence they face and can’t assess their odds at trial.

This weakness in the Brady rule also means there is no way of knowing how many violations are buried by plea bargains. The few that become known, through trials or post-trial challenges, are no index of the problem’s true dimensions, but they can show how deeply rooted it is.

After the Justice Department dropped the case against Senator Stevens in 2009 because of prosecutorial misconduct, including the withholding of exculpatory evidence, Judge Emmet Sullivan of the Federal District Court in Washington, D.C., chose to appoint outside counsel to investigate what went wrong rather than trust the Justice Department to do it.

In 2009, Judge Mark Wolf in Boston likewise found that the long-standing problem eroded his trust in federal prosecutors. “In the District of Massachusetts,” he wrote, “the government has had enduring difficulty in discharging its duty to disclose material exculpatory information to defendants in a timely manner.”

In both the federal and state court systems, it is essential that rules about disclosing evidence be followed in ways that promote justice. An open-files policy would come closer to meeting this important standard. “

For the original article: http://www.nytimes.com/2012/02/27/opinion/justice-and-open-files.html?_r=1&hp

The Supreme Court is guilty of a broad “failure to communicate” to the public it serves, constitutional scholar and law dean Erwin Chemerinsky said on Friday.

And this failure extends beyond the Court’s stubborn resistance to allowing camera coverage of its oral arguments. At almost every point of its decision-making process, according to Chemerinsky, the high court should be doing more to inform the public about what it does.

Chemerinsky, founding dean of the University of California, Irvine School of Law, was the keynote speaker at a symposium on the Court, the press and the public at Brigham Young University’s J. Reuben Clark Law School. Scholars and journalists spoke on different aspects of the interaction – or lack thereof — between the Supreme Court and the public.

The conference coincided with renewed calls for the Court to allow cameras in, this time for the upcoming oral argument on the constitutionality of the Affordable Care Act. Several requests for broadcast access are pending before the justices.

“People should be able to watch their government in action, and [the Supreme Court] is a crucial institution of government,” said Chemerinsky, who added that he thinks a First Amendment argument in favor of broadcast access could be made.

Chemerinsky said many members of the public think that the fate of the health care reform law will turn on issues of individual liberty, rather than on the Constitution’s commerce clause. Airing the oral arguments in late March would clear up that misunderstanding, Chemerinsky said, and would be a “tremendous civic education.”

The public would see nine “exceptionally intelligent” justices working hard to get the right answer, he said, asserting that televised oral argument would enhance, not diminish, the Court’s stature with the public. It might even encourage “better behavior,” Chemerinsky said. “Justice Thomas might ask some questions.”

Chemerinsky did not focus only on the long-running debate over cameras at oral argument, highlighting other deficiencies in its procedures. The Court has pointed with pride to advances in this area, including its web site, where decisions and oral argument transcripts are posted quickly. But Chemerinsky said much more is needed for the Court to explain itself better to litigants and to the public, in the interest of enhancing the Court’s legitimacy and public understanding.

For example, he said the Court owes litigants as well as the public some explanation why it has denied review in pending petitions. The “vast majority” of petitioners, even some that pose a circuit conflict, are denied review without learning why. That, he said, is an “extremely important failure to communicate.”

The Court could also be doing more to inform the public when it releases opinions, Chemerinsky said. It should be telling in advance which decisions it will be releasing – as courts in California and Canada do – to assist the press and commentators in getting ready to write about its decisions. The justices should also spread out the release of opinions “to allow the press to accurately report” on them, he added.

And to increase understanding of sometimes “dense and hard to follow” decisions and syllabi, Chemerinsky said the Court should hire a “clear writer” who would boil each decision down to a single paragraph that would be released along with the ruling.

Justices should also strive to make their opinions more concise, he said. There is a “perfect inverse correlation,” Chemerinsky said, between the decrease in the number of cases the Court decides with opinions, and the increase in the length of those opinions.

Other presenters at the conference sought to drew correlations between the justices’ personal experiences and their views on the media.

Conference host and Brigham Young professor RonNell Andersen Jones, formerly a clerk to Justice Sandra Day O’Connor, explored the seeming inconsistency between the Court’s “overwhelmingly press-protective” decisions and its “access-stingy” policies relating to its own work. One explanation, she said, is that the Court can exercise “a colossal amount of control over their operations.”

Boston College Law School professor Mary-Rose Papandrea spoke about the justices’ “quite cautious” approach to new technology in their decisions and in their personal lives. She said “my beloved boss” Justice David Souter, for whom she clerked, recently said – perhaps jokingly – that he had tried to use an iPad, but hid it in a closet because he could not figure out how to turn it off.

By Tony Mauro

For original article go to: http://legaltimes.typepad.com/blt/2012/01/supreme-court-fails-to-communicate-effectively-to-public-law-scholar-argues.html

Central Utah Law – Pleasant Grove, Utah