Discovery Games

When it comes to the government’s obligation to turn over all relevant information to the defense in the process of discovery, the question is never whether or not the prosecution leaves material out, but how much they leave out.

Under the Brady rule, prosecutors and police investigators are required to disclose anything they come across that might be expected to play a role in a suspect’s defense – provided that defense counsel has no means to obtain the information on its own. Nowadays, however, the Brady rule is little more than a polite suggestion, as attorneys for the prosecution routinely leave out material documents from the discovery package hoping that defense counsel never gets wind of them. Even if the defense raises a fuss, prosecutors face no sanctions except perhaps a stern talking-to by a judge, and sometimes not even that.

Even in high-profile cases, prosecutors won’t think twice about playing the ‘hide the evidence’ game. On June 9th, Judge Barry G. Williams of Baltimore City Circuit Court blasted the lead attorney who was prosecuting officer Caesar R. Goodson Jr. in the death of Freddie Gray for failing to disclose a prosecutor’s interview with Donta Allen, a suspect who rode in the back of the van with Mr. Gray.

Reflecting the usual irreverence toward constitutional safeguards, the prosecutor, Michael Schatzow, claimed that the meetings with Mr. Allen yielded information that was “silly” and not germaine to the defense. The judge didn’t buy it. He called the meeting’s value “extremely exculpatory” and ordered prosecutors to disclose any other relevant information by the following Monday. “What else is out there that you haven’t turned over?” the judge asked.

In any case, the prosecution’s gambit successfully delayed the flow of information to the defense, giving it less time to prepare. As this and many other cases emphasize, allowing prosecutors discretion over what material to turn over to the defense is a situation that invites corruption.


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