A horrifying case showing how much power prosecutors have determining the outcome of trials, and how we got here:
The Tennessee Supreme Court called Jones and Weirich’s failure to disclose Hammack’s note before trial a ‘‘flagrant violation’’ of Noura’s constitutional rights. The justices also overturned the verdict against Noura for another reason — Weirich’s closing exclamation in front of the jury demanding: ‘‘Just tell us where you were! That’s all we are asking, Noura!’’ The Constitution’s protection of the right to remain silent means that a defendant’s decision not to testify ‘‘should be considered off limits to any conscientious prosecutor,’’ the Tennessee justices wrote, so that the jury doesn’t view it as an implicit admission of guilt..
In the United States, defendants gained the right to see certain evidence in the government’s possession relatively recently, in the 1960s. Before that, our rules reflected their origin in early modern Britain, where people suspected of crimes were required to speak on their own behalf, without a lawyer. In 16th-century trials, people suspected of crimes had no right in advance to learn of the evidence against them, or even the charges, because the element of surprise was deemed crucial to ascertaining the truth. The idea of ‘‘trial by ambush,’’ as it is called, persisted throughout the 18th century, even after the accused gained the presumption of innocence, the right to hire a lawyer and the right to remain silent. In 1792, the Lord Chief Justice in Britain rejected a defendant’s request to see the evidence against him in advance of trial, saying that such disclosure would ‘‘subvert the whole system of criminal law.’’
Over the next century, however, the British courts changed course, joining countries like Germany and France to require broad disclosure of the prosecution’s case before trial, including a full list of witnesses, a summary of how they would testify and other investigative material, like police and lab reports. The nascent justice system in the United States, by contrast, imported Britain’s earlier rules. Judges in this country emphasized that defendants might harm or intimidate witnesses if they knew they were planning to testify.
In March 1963, Justice William J. Brennan Jr., an Eisenhower appointee who became one of the era’s leading liberal jurists, criticized the American practice of keeping the prosecution’s case secret before trial in a major speech at Washington University’s law school. Brennan argued that it was ‘‘particularly ironic’’ that at the Nuremberg trials, conducted in the late 1940s to bring Nazi war criminals to justice, Soviet prosecutors protested the American rules of evidence as unfair to defendants. Isn’t denying access to the facts of the prosecution’s case ‘‘blind to the superlatively important public interest in the acquittal of the innocent?’’ Brennan asked.
Brennan’s speech was part of a sweeping argument for criminal-justice reform. Led by Earl Warren, the consensus-seeking California governor chosen as chief justice by Eisenhower, the court revolutionized the process the government must follow to convict someone of a crime. The Warren Court gave poor defendants the right to a free lawyer, barred police officers from coercing confessions and required them to inform defendants of their rights (the Miranda warning).
Two months after Brennan’s Washington University speech, defendants for the first time won a constitutional right to see some of the evidence in the state’s possession. The ruling came in Brady v. Maryland, a 1963 appeal by an Air Force veteran, John Leo Brady, who was sent to death row for murder. Brady’s lawyers argued that prosecutors should have disclosed that a co-defendant had confessed to the killing. In response, the Warren Court decreed that before trial, prosecutors must turn over evidence that is ‘‘favorable’’ to the defense if it is ‘‘material either to guilt or to punishment.’’
The Brady ruling appeared to rebalance the scales between the defense and the prosecution, as British and European courts began doing a century and a half earlier. For years, however, little attention was paid to enforcing the Brady rule, in part because there was little proof it was being broken. Prosecutors decide what counts as ‘‘material’’ or ‘‘favorable’’ — in the heat of battle — while the judge and the defense have no way to see what they’re holding back. It’s as if prosecutors are tennis players calling their own lines when their opponents, and even the referee, can’t see the other side of the court...