In 2019, the Vanderbilt Law Review will publish an article by Professor Jason Kreag currently titled “Disclosing Prosecutorial Misconduct.” The article’s core idea picks up on the value of something we have tried to live out here at The Open File: putting judicial findings of misconduct in writing and sharing that information publicly (rather than just leaving them in legal databases for lawyers and clerks to find). Professor Kreag’s suggestion is more tailored than our effort to memorialize and publicize Brady violations on this website. He encourages judges who determine that a trial has been tainted by a Brady violation to write a Brady Violation Disclosure Letter “to the relevant stakeholders from the initial trial.” The stakeholders include the victim, jurors, witnesses, the trial lawyers, and investigating law enforcement officers. Kreag also suggests that the letter be sent to the heads of the prosecutor’s office and the public defender’s office, the police chief, the sheriff, and directors of local victims’ rights organizations. He envisions the letter as a “concise and clear statement” explaining the misconduct.
The new article continues Professor Kreag’s scholarly agenda, which focuses largely on prosecutorial misconduct and the deleterious effects that Brady violations have on our criminal justice system. It also emphasizes a practical solution that can easily be implemented in individual courts without a Supreme Court opinion or some speculative legislation that must be authorized by Congress or a state lawmaking body. The same can be said of his excellent essay “The Brady Colloquy,” which proposed the idea that trial court judges ask the prosecutor before trial about her disclosure obligations on the record. While a simple and straightforward suggestion, it captured the power of compelling prosecutors to make affirmative representations in open court about their compliance with their constitutional obligations. More than that, any judge could adopt the practice at any time. As he wrote about the idea’s unobtrusiveness, “when I presented a similar recommendation to Texas judges as part of the Texas Center for the Judiciary’s annual judicial training conference in 2013, several judges immediately indicated a willingness to implement this procedure in their courtrooms to help ensure the fair administration of justice.”
The Brady Violation Disclosure Letter is similarly unobtrusive yet potentially powerful. It isolates the information about misconduct, stripping away all of the legal complexities that make judicial opinions often difficult for members of the public to decode. It also creates an accessible public record of misconduct, which is enormously beneficial for a range of reasons (as the article explores in detail): it may deter prosecutors who fear having misconduct publicized; it acknowledges that Brady violations harm many stakeholders in the system—not just criminal defendants; it promotes transparency; and these letters can help establish a pattern of misconduct either by particular prosecutors or by an entire office. It offers an alternative to the long-standing tradition of secrecy surrounding misconduct, which Radley Balko has explained:
The complexity of piecing together a particular prosecutor’s record not only makes it more difficult for journalists and watchdog groups to identify misconduct, it also makes it nearly impossible for voters to learn about a prosecutor’s performance when he or she runs for re-election, or moves on to run for judge or political office.
Professor Kreag’s forthcoming article contributes to a substantial repository of legal research and scholarship that emphasizes the need to generate specific tools to curb America’s epidemic of prosecutorial misconduct. It builds upon several key concepts including “naming names” of prosecutors responsible for misconduct, pressing reviewing criminal courts to take ownership of the misconduct problem, and reducing information gaps by developing systemic facts about misconduct. While we remain of the view that courts (mis)interpret the Brady materiality doctrine (in large part because the Supreme Court’s opinions engender confusion)—and thus in most cases withhold the constitutional relief that would truly motivate prosecutors to curb Brady violations—we agree that simply finding a violation is not the end of the matter. Indeed, in terms of meaningful prosecutorial accountability, it is just the beginning. Courts should seriously consider Professor Kreag’s suggestion. It is high time judges take the lead and deepen our society’s recognition of the harm prosecutors do when they violate their constitutional obligations.