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The prosecutorial profession seems to have a particular distaste for accountability, the irony of which is not lost on us. Prosecutors in New York are back in the limelight this month, writing letters directly to Governor Cuomo and in almost every local publication urging him to veto legislation that will create the country’s first Commission on Prosecutorial Conduct. (One may wonder how much time and how many public resources the prosecutors have devoted to this massive lobbying effort.) Meanwhile, in Tennessee, prosecutors are quietly waging a similar war; there, federal and state prosecutors have pushed to reverse a new interpretation of an ethical rule that requires prosecutors to turn over all evidence favorable to a criminal defendant.

We know that prosecutors and their professional associations almost universally play whack-a-mole to beat back burgeoning proposals to provide consequencesany consequences—for misconduct and the misuse of power. So the situation in Tennessee is both encouraging and delicate: (1) at this juncture, the Tennessee Board of Professional Responsibility has done the right thing, adopting an opinion that requires disclosure of all favorable evidence and not just “material” favorable evidence; and (2) according to a local report, “[t]he board has agreed to hear the prosecutors’ arguments” about repealing this opinion in September.

This is an issue we have seen before, one dealt with in many jurisdictions. The question is whether ethical Rule 3.8(d)’s core requirement that prosecutors “shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense” is a broader obligation than the constitutional protection offered under Brady v. Maryland. Under Brady, there is a constitutional violation requiring judicial relief if the State suppressed favorable evidence that was material to the trial’s outcome. The text of Rule 3.8(d), however, does not condition the prosecution’s obligation to disclose exculpatory evidence on “materiality.” Rather than putting prosecutors in the very difficult position of forecasting how a piece of evidence favorable to the defense may ultimately influence the trial, the ethical rule simply commands that, as a matter of professional ethics, all favorable evidence should be disclosed regardless of its potential materiality.

Some jurisdictions have taken the view that Rule 3.8 does not actually require anything different than Brady, “that Rule 3.8 is simply an ethical codification of Brady.” As the Tennessee Board points out in its opinion, “None of the cases that support this position offer evidence to support that interpretation.” Indeed, the American Bar Association, the organization that created the Model Rules of Professional Conduct that most states have adopted in whole or part issued a formal opinion making clear that its rule is broader than Brady.

Before the Tennessee Board adopted its own opinion in March of 2018, the state’s District Attorneys General Conference—the body comprised of Tennessee’s head DAs—wrote a letter in January expressing opposition. The DAGs’ main argument is one that prosecutors have advanced in seemingly every jurisdiction in which this issue has arisen: making Rule 3.8(d) broader than Brady “would impose inconsistent disclosure obligations on prosecutors and only create confusion.” Before addressing this feeble point, it is worth noting that the letter undermines its own credibility.

Take, for example, its snarky aside that the problem the opinion seeks to deal with—the suppression of exculpatory evidence—may not even be a real issue: “if indeed there is an ill to be cured at all.” It is pretty gutsy to say this to the very Board that has had to deal with several high-profile and valid ethical complaints regarding the suppression of evidence in the past few years. Consider the prosecutorial debacle in the Noura Jackson case, which emanated from the Shelby County DAG’s misconduct both in making improper arguments and suppressing information. Amy Weirich’s ethical lapses were not the only ones that landed on the Board’s docket; a few years earlier, the Board censured Shelby County prosecutor Tom Henderson because, as a trial judge explained, he made “blatantly false, inappropriate and ethically questionable” statements to the court and defense counsel about the existence of exculpatory evidence and “purposefully misled counsel with regard to the evidence” in the Rimmer case.

Beyond glossing over the very serious ills that are readily apparent to anyone paying attention to prosecutorial behavior in Tennessee, the DAGs’ letter goes further, throwing on the Board the burden of proving “that the standard set forth by Brady and its progeny has proven inadequate in Tennessee.” This hardly needs to be picked apart. Besides being ludicrous on its face, it ignores that the Board has the authority to require more of the state’s lawyers. It is a body dealing with ethics, not the Constitution. Indeed, that alone makes the prosecutors’ gripes about the “layers” of obligations they possess even less persuasive.

As for the DAGs’ main point—the one about all of the confusion this interpretation of Rule 3.8(d) will engender—it lacks rhetorical force and empirical support. The DAGs’ complain about the lack of guidance on what is “favorable” and discuss the “Pandora’s Box” this lack of guidance will open. Favorability is not confusing. What is confusing is why the prosecutors are suddenly ill-equipped to determine what is “favorable” when they simultaneously talk about how they already have to do this kind of identification under Brady. As for Pandora’s Box and the possibility that defense lawyers will file bar complaints left and right and prosecutors will be getting disciplined even in cases in which there are no Brady violations—well, all that huffing and puffing is unfounded. No state bar is overrun with prosecutorial discipline; it is rare at best. If anyone should bear the burden of proving their claims, it is the DAs, especially considering what the real empirical evidence shows. (Spoiler: prosecutors almost never face sanctions for misconduct.) One can just look at The Open File’s coverage of the Tennessee Board to see that even in serious and clear-cut cases of prosecutorial misconduct, the body has been extremely lenient.

In June, a few months after the Board adopted the formal opinion, the U.S. Attorneys in Tennessee penned a letter to it on Department of Justice letterhead. Like the DAGs’ letter, the federal prosecutors’ request that the Board reconsider the opinion sends out flares suggesting it lacks credibility. Consider this gem: “[A]s a matter of policy, the Department requires all prosecutors to take a broad view of materiality when deciding whether a particular piece of evidence is either exculpatory or impeaching.” Did the federal prosecutors responsible for the Cliven Bundy prosecution and the J20 prosecutions just fail to read that stirring policy?

The US Attorneys do point out that the Board should clean up some references in its opinion. For example, the opinion cites a Louisiana case that no longer reflects the prevailing rule in that jurisdiction. We covered the Louisiana Supreme Court’s recent decision holding that its Rule 3.8(d) is coterminous with Brady. That court embraced the prosecutorial position that differing rules create confusion. More than anything, that decision did something the Tennessee Board should be leery of replicating; it effectively transferred the disciplinary power from the ethical body to the criminal courts. As we wrote:

In persuading the Louisiana Supreme Court to conflate Rule 3.8(d)’s disclosure command with Brady materiality, the LDAA [Louisiana District Attorneys Association] squeezed power out of the hands of disciplinary counsel and put it in the criminal courts, a place well-known to be safe for the state’s prosecutors—even the unethical ones.

Regardless of whether the Tennessee courts take Brady seriously—and there is some evidence that they do at least sometimes—the point is that ethical rules are distinct from constitutional rules. Due process protects a trial’s fairness according to constitutional commands. Ethical rules, on the other hand, govern the profession and maintain its integrity. These distinct goals very well may require different approaches. One may think that prosecutors, who possess almost unfettered discretion to make individualized judgment calls in every one of their cases, might understand and appreciate these differences. But, at the end of the day, state and federal prosecutors in Tennessee see only one thing in the Board’s new opinion: a hint of potential accountability. Nothing riles them up more. Their response is utterly predictable, and it should not alter the course toward greater prosecutorial accountability; rather, it ought to hasten in.

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