Greetings, blog readers! This month we will explore the topic of Brady Evidence, its' prevalence in wrongful convictions, and methods in which Innocence Projects have used violation of this type of evidence in proving innocence for their clients.
To begin, please read this thorough blog post about Brady Evidence written by Board Member Parker Kelly and Clinic intern Kathryn Seaton, J.D. 2016. Stay tuned for more articles about this important contributor to wrongful convictions throughout the 4 weeks.
What Is Brady Evidence?
By Parker Kelly, Montana Innocence Project Board member and Kathryn Seaton, Juris Doctorate Candidate 2016
So-called “Brady evidence” is the label given to criminal case evidence known to the prosecution that has possible exculpatory or mitigating value to an accused person. Evidence of that nature must be disclosed to the accused in the interest of avoiding wrongful conviction or unwarranted severity of sentencing.
As prescribed by Justice Douglas in 1963 when he wrote the U.S. Supreme Court’s majority opinion in the case of Brady v. Maryland, prosecutors must surrender to persons accused of crime all evidence in the prosecutor’s possession or known to him that is “favorable to an accused [and] material either to guilt or to punishment ….” 
Evidence material for Brady purposes is that which, if not disclosed, would cause a reviewing court to believe that the likelihood of a different result at a new trial with disclosure is great enough to undermine confidence in the outcome a first trial that, without disclosure, resulted in a conviction or an unduly harsh sentence.
Brady violations are among the top ten factors leading to wrongful convictions according to a 2012 National Institute of Justice study. Chief Judge Alex Kozinski of the federal Ninth Circuit Court of Appeals wrote in a 2013 dissenting opinion that “There is an epidemic of Brady violations abroad in the land.” Mindful of the problem, attempts to ascertain the extent of Brady abuses have been made by the Department of Justice Office of Professional Responsibility, revealing, albeit trending downward, more than 100 alleged Brady abuses in the department during the period 2009 to 2012.
However, and regardless of what the studies and opinions may suggest, it is impossible to quantify the full extent of abuse: defense evidence can easily be concealed or destroyed in such a way that it won’t be found or disclosed at time of trial or later, thereby minimizing or eliminating altogether the likelihood of present or future knowledge of its existence. Prosecutors and police officers may frustrate disclosure based on misplaced zeal for their cases or because of careless evidence management practices, abuses that later they will be loath to admit. Whatever the causes and numbers of non-disclosures, the consequences can be devastating not just to an accused person, but also to subsequent victims of a perpetrator left at large because the wrong person had been prosecuted and convicted in his place.
In April of this year a man who had spent half of his 51-year life doing time for a murder he did not commit was released from prison because it finally was found that Brady evidence of his innocence had not been disclosed at his trial. Another man served 25 years in prison for allegedly murdering his wife in their home; he was released in 2011 after the prosecutor was shown to have withheld eye witness evidence tending to prove that the defendant was not at home at the time of the killing, that there had been a different man in the home at the time, that a man had been seen lurking in the area of the home, and that a bloody bandanna had been found nearby. DNA recovered from the bandanna revealed the true identity of the murderer, a man left free to commit a similar murder two years after the one wrongfully charged to an innocent man.
In the interest of prosecutorial integrity it has been proposed that full disclosure by prosecutors is best accomplished by making available to defendants and their counsel an open and complete prosecutorial file of a defendant’s case. The fair play aspect of such a policy clearly aligns with Brady’s mandate but (make that capital BUT) it is the integrity and efficiency of prosecutors and police agencies that are the key ingredients of any plan to guarantee that the prosecutor’s file is, indeed, fully open and complete. More is needed than just a collegiate-type honor system.
We propose a plan that includes scrupulous office oversight and published sanctions for individuals responsible for non-compliance; a plan with teeth in it would, we submit, bring the criminal justice system closer to full implementation of Brady’s mandate. A legislative assist would be helpful, however, and that may (will) not be easily achieved.
 After admitting guilt to a murder charged to him and his co-defendant, Mr. Brady was sentenced to death by a jury despite his claim that he had not personally killed the victim. In further proceedings after sentencing it was discovered that the prosecution had withheld from defense counsel the co-defendant’s written admission that he had personally killed the victim, not Brady. The Supreme Court affirmed a lower Maryland court’s decision to remand Brady’s case for a new sentencing trial.
 The disclosure obligation encompasses not just what aids the defense but also what is harmful to the prosecution. Within Brady’s reach, for example, are exculpatory witness statements; physical evidence supportive of the defense case; evidence of possible guilt of others; impeachment evidence found in the criminal history of prosecution witnesses, in promises of leniency given to witnesses, in any history of lying by police or civilian witnesses, and in the status of any witness as a paid informant. Critical in some cases is law enforcement’s obligation to preserve evidence of possible defense value or suffer trial sanctions for failure to have done so.