World Without Consequences

In my next life, I want to be a prosecutor. I want to live in a fantasyland without consequences. I want to make mistakes, and never be held accountable for them. I want to stand tall for justice, and then do whatever I think is right. I want the right to demand that others be held accountable, without ever being accountable myself.

            Consider: A man shoots to kill, but he is a bad aim. The man fails to accomplish his objective, but he is nonetheless charged with attempted murder. We say in the criminal law that failing does not excuse an act done with criminal intent. There is no discount in the land of consequences for the inept.

            But when the state fails to perform its duty, there are no consequences unless the defense can prove that the failure mattered, or, in legal speak, unless there is prejudice to the defendant. Just how do we square this nonsense with the presumption of innocence?

            I was reminded of this during trial the other day.

            We interviewed a witness Sunday night, and learned, for the first time, that he had recently attended a meeting with a prosecutor from the Chief State’s Attorney’s office and an inspector. At the meeting, the witness, a physician, expressed serious reservations about how he had been treated by previous law enforcement interviewers. The doctor also disavowed some of the inculpatory remarks he had made previously.

            Students of the criminal law know what this means. The state has an affirmative obligation to disclose evidence tending to show innocence. Everyone in the criminal law either knows the holding in Brady v. Maryland, or, if they don’t, they ought not to be practicing.

            We promptly brought the issue to the court’s attention as evidence began. Several days later, when the doctor testified, he confirmed on the record what took place. We asked for a mistrial, for some sanction against the state for failing to do its job. What we got was a goose egg.

            I just don’t get it. I really don’t.

            In a civil case, a side that monkeys with evidence gets sanctioned. A defendant in a criminal case gets charged with a crime for tampering with witnesses or destroying documents in anticipation of an investigation. But the state, that frosty legal fiction, routinely gets away with evidentiary murder.

            The trial court struggled with our motion for a mistrial. In chambers there was agreement that a Brady violation had occurred. But the court found no prejudice to the defense. The state’s failure was excused by the defense’s diligence and creativity.

            I argued in open court that there was something wrong, some near fatal asymmetry tilting the courtroom in favor of the state, something that should never occur in a courtroom serious about the presumption of innocence.

            How is it, I asked, that the prosecution can stand here demanding that my client be held accountable for her failings, but that the state refuses any measure of accountability for its own failings? A client fails and the prison gates open; a prosecutor fails and we wink and pretend it is business as usual.

            Respect for the law is not promoted when the courts apply double standards in the criminal court. The state has an affirmative obligation to provide exculpatory evidence to the defense. When the state fails, there should be consequences, regardless of whether there is prejudice to the defendant. We requested that the court do something, perhaps even keeping the doctor from testifying. We got nothing in response other than a tepid lecture that the state would take note of the court’s concerns about the state’s conduct.

            That is simply not good enough. A civil litigant failing in such a manner suffers consequences; so do criminal defendants. Why do we go out of our way to cut the state so much slack? The answer is simple: we’re not serious about the presumption of innocence. It really is that simple.


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