Brooklyn Law School BrooklynWorks Faculty Scholarship 1-2015 Timing Brady Miriam H. Baer [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation 115 Colum. L. Rev. 1 (2015) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. COLUMBIA LAW REVIEW VOL. 115 JANUARY 2015 NO. 1 ARTICLE TIMING BRADY Miriam H. Baer* Criminal discovery reform has accelerated in recent years, trig- gered in part by the prosecution's widely perceived failure to abide by its constitutionalobligation, articulatedin Brady v. Maryland, to disclose exculpatory evidence. Practitionersand academics, disillusioned by the Supreme Court's hands-off approach, have sought reform along three axes: legislatively expanding criminal discovery's scope, increasing the degree and likelihood of prosecutorialsanctions, and altering the organ- izational dynamics that encourage prosecutors to withhold exculpatory evidence. None of these approaches, however, addresses the issue of timing and its effect on prosecutors. Over the course of a prosecution, incen- tives to withhold evidence develop, and temptations to withhold it recur. Accordingly, popular reform efforts such as mandatory "open-file" dis- covery remain incomplete. Just like Brady itself, these well-intentioned reforms are destined to fall short of their goals so long as they fail to address criminal discovery's temporal dimension. This Article inquires how timing affects the prosecutor's decision to disclose or withhold exculpatory evidence in advance of a criminal trial. After laying out timing's importance, the Article then explores its policy and design implications for criminal discovery reform. By con- sciously addressing timing, reformers across state and federal juris- * Professor, Brooklyn Law School. The author was an Assistant U.S. Attorney in the Southern District of New York from 1999 to 2004. This Article was greatly improved by feedback from Darryl Brown, Sam Buell, Bennett Capers, Deborah Denno, Brandon Garrett, Adam Gershowitz, Bruce Green, David Jaros, Mark Kelman, Caren Myers Morrison, Dan Richman, Paul Stancil, Colin Starger, Jenia Iontcheva Turner, Robert Weisberg, and workshop attendees at the Stanford-Yale-Harvard Junior Faculty Forum, the CrimProfs Conference at Rutgers School of Law-Newark, the Fordham Shmooze and the Seminar on Advanced Criminal Law and Criminal Procedure at Fordham Law School, the Midwestern Law and Economics Association's Annual Meeting at the University of Illinois College of Law, the ABA Criminal Law Educators Roundtable in Washington, D.C., and the New York City Junior Faculty Forum held at Fordham Law School. Outstanding research assistance was provided by Shannon Daugherty, Joanna Menillo, Jackie Dombroff, and Carissa Pond. Special thanks to Dean Nicholas Allard and Brooklyn Law School, whose generous summer stipend supported the writing of this Article. 2 COLUMBIA LAW RE VIEW [Vol. 115:1 dictions can better guarantee the defendant's access to exculpatory evidence. INTRODUCTIO N ......................................................................................... 2 I. BRADY VIOLATIONS: CONVENTIONAL EXPLANATIONS AND APPROACH ES ...................................................................................... 10 A. Brady's Fram ework ................................................................... 11 B. Three Models of Misconduct .................................................... 15 1. The Bad A gent ................................................................... 15 2. The Boundedly Rational Prosecutor ................................. 18 3. The Dysfunctional Bureaucrat ........................................... 20 C. Conventional Reform s ............................................................... 22 1. Scop e ................................................................................... 22 2. Sanctions ............................................................................ 26 3. Organizational Dynamics ................................................... 28 II. HOW TIMING AFFECTS PROSECUTORS ................................................... 31 A . Incentives Evolve ....................................................................... 32 1. Early Stages: Uncertainty and Alternatives ........................ 32 2. Later Stages: Alternatives Narrow and Costs Increase .......... 35 3. C onclusion .......................................................................... 38 B. Tem ptations Recur .................................................................... 39 III. TIMING'S IMPLICATIONS FOR CRIMINAL DISCOVERY REFORM ................ 43 A. (One More of) Brady's Shortcomings ...................................... 43 B . Sanctions ...................................................................................45 C. Norms and Organizational Dynamics ...................................... 46 D. Scope-Based Reform ................................................................. 49 1. Timing and the Open-File Policy ....................................... 50 2. Scope-Based Reform's Costs ............................................... 51 IV. TYING THE PROSECUTOR TO THE MAST: THE TEMPORAL BENEFITS OF MANDATORY EARLY-DISCLOSURE SCHEMES ........................................ 57 A. Temporal Reform in the Abstract: The Value of Precom m itm ent ........................................................................ 59 B. Temporal Reform on the Ground: Mandatory Early D isclosure ................................................................................ 61 C O N CLU SIO N ............................................................................................ 66 INTRODUCTION Criminal discovery reform is ascendant.' The strong law-and-order coalition that defended limited disclosure for nearly a century seems 1. See Darryl K Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 Calif. L. Rev. 1585, 1642 (2005) [hereinafter Brown, Criminal 2015] TIMING BRADY poised to disappear.2 State legislatures are increasingly adopting more generous discovery regimes, many of which impose earlier and more rigorous disclosure requirements on prosecutors.' So-called "open-file" laws now require the prosecution to disclose the bulk of its files in advance of trial, and sometimes much earlier.4 Federal criminal discovery, although still comparatively narrow, has become a target for periodic bipartisan reform proposals.5 Across broad- and narrow-discovery juris- dictions alike, district attorneys and lead prosecutors have publicly acknowledged criminal discovery's importance in ensuring a fair and effi- 6 cient criminal justice system. The impetus for this revolution has been the Innocence Movement's painstaking documentation of over two hundred instances in which pros- ecuting authorities have wrongfully convicted innocent individuals of ser- ious crimes.7 As researchers have combed exonerees' case histories, they Adjudication] (remarking criminal discovery rights, which were "nearly nonexistent until the 1930s, are now quite broad in many jurisdictions"). 2. See, e.g., infra notes 5-6 (describing bipartisan and, in some instances, prosecu- torial support for discovery-reform efforts). 3. See, e.g., Press Release, Office of the Governor, Gov. Perry Signs Senate Bill 1611, the Michael Morton Act (May 16, 2013), http://governor.state.tx.us/news/press-release /18521/ (on file with the Columbia Law Review) (describing adoption of new "open-file" discovery regime in Texas); see also Tex. Code Crim. Proc. Ann. art. 39.14 (West Supp. 2014) (codifying reforms). 4. See infra Part I.C.1 (describing open-file laws). 5. Despite their lack of success in expanding federal criminal discovery, reformers continue to press for broader disclosure. For discussion, see R. Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 Vand. L. Rev. 1429, 1445-52 (2011) (describing proposals intended to ensure federal disclosure of impeachment evidence prior to defendant's entry of guilty plea); Bruce A. Green, Federal Criminal Discovery Reform: A Legislative Approach, 64 Mercer L. Rev. 639, 641- 42 (2013) [hereinafter Green, Federal Criminal Discovery Reform] (describing bill pro- posed by Senator Lisa Murkowski and observing Department of Justice was so concerned by bill it "dispatched its second highest ranking representative ... to testify against the bill"). 6. A remarkable symposium hosted by the Benjamin N. Cardozo School of Law to "explore and identify the best practices" in criminal discovery included "representatives from state and federal prosecutors' offices, defense lawyers, judges," and experts from numerous fields. New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices, 31 Cardozo L. Rev. 1961, 1961 (2010) [hereinafter New Perspectives on Brady]. Members of the Working Group on Prosecutorial Disclosure Obligations and Practices concurred in the belief that "prosecutorial disclosure is neces- sary to promote the public interest in achieving fair trials and reliable outcomes in the criminal justice system." Id. at 1964. 7. See, e.g., Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 55-63 (2008) [hereinafter Garrett, Judging Innocence] (examining