Judges from Alabama get a bad rap. Like Job, Roy Moore cannot seem to catch a break, despite his professions of great faith. Still Moore ought to be more liberal, given that he, and all of us, are descended from a transgendered woman. After all, Eve was made from a male rib, the tissue of which carried a Y chromosome:
“And the rib, which the LORD God had taken from man, made he a woman, and brought her unto the man.”
Genesis 2:22. Even if Eve magically ended up with two X chromosomes, certainly Judge Moore must accept that the result was part of a cosmic sex change operation. Moore might prefer Lillith, who was built female from the ground up, as his female progenitor.
But Alabama is not so bad, really. My Cousin Vinny got a fair trial for Bill Gambini and Stanley Rothenstein in Beechum County, Alabama. Vinny was surprised by the prosecutor’s generosity in turning over his file, based upon a casual oral request, but as his fiancée Mona Lisa Vito pointed out, the prosecutor had to do this; it’s the law. Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose to defense counsel any evidence that could reasonably be construed to favor the defendant.
Actually, Alabama law interpets Brady in the typical fashion to require the prosecutor to disclose only exculpatory evidence. Alabama Rules of Criminal Procedure Rule 16. And Judge Chamberlain Haller, who presided over State v. Gambini, was a stickler for the rules.
And Beechum County prosecutor, Jim Trotter III, was a decent sort. Not only did he offer Vinny his hunting lodge as a quiet place to prepare for trial, Trotter turned over his entire case file upon a casual oral request, without delay. When the evidence appeared to exclupate Gambini and Rothenstein, Trotter withdrew the charges. Outside of Beechum County, that sort of thing happens mostly in movies; in the real world, it is dog eat dog.
The recently publicized case of Wilbert Jones is probably a more typical case. Jones was duly convicted on the testimony of the woman he supposedly raped. The identification, which was the only inculpatory evidence, was shaky, but it was sufficient for one Louisiana jury. What the jury did not hear, however, was that there was another man, who fit the description of the rapist, and who had committed similar crimes in the vicinity. The prosecutor did not think to share that information with Jones’s counsel. When later challenged about the prosecution’s failure to disclose the information, the prosecutors argued that the information was not exculpatory, and would not have made a difference in any event to the “hanging” jury that heard the case. A federal judge, hearing Jones’s petition for the writ of habeas corpus, disagreed, and vacated Jones’s conviction. Jacey Fortin, “Louisiana Man Freed After 45 Years as Conviction is Tossed Out,” N.Y. Times (Nov. 17, 2017). Despite having their conviction vacated, the Louisiana prosecutors have vowed to appeal the decision and retry the case.
Chief Judge Janet DiFiore, of the New York Court of Appeals, is also a stickler for the rules, much like Judge Haller of Beechum County, Alabama. Recently Her Honor issued a new rule that requires trial judges to order, in each case, the prosecution to review their files and disclose all favorable (exculpatory) evidence, at least 30 days before trial. Imagine that; New York prosecutors have to be ordered to comply with the constitutional requirement of disclosure, set out in Brady! See Alan Feuer & James C. McKinley, “Rule Would Push Prosecutors to Release Evidence Favorable to Defense,” N.Y. Times (Nov. 8, 2017); Emmet G. Sullivan, “How New York Courts Are Keeping Prosecutors in Line,” Wall St. J., at A11 (Nov. 18, 2017). See also Andrew Cohen, “Prosecutors Shouldn’t Be Hiding Evidence From Defendants,” The Atlantic (May 13, 2013).
The news media accounts of Chief Judge DiFiore’s newly promulgated rule quotes Innocence Project founder Barry Scheck as stating that the new New York rule is a “big deal.” The New York rule strikes me as a “raw deal,” which leaves to prosecutors to dole out what they think is exculpatory, on the eve of trial. Murder suspects in Beechum County, Alabama, get much better treatment from the likes of Prosecutor Jim Trotter.
The problem, even under the new New York rule, is that prosecutors are advocates and constitutionally incapable of looking at their files from the defense perspective to determine fairly what must be disclosed. Allowing prosecutors to decide what is exculpatory or not is bad policy, bad law, and bad human psychology. The better view would be to require prosecutors to turn over their complete file well in advance of trial, to permit defense counsel to prepare an effective defense.
Criminal trials, like civil trials, end with each side’s lawyer arguing that all the admitted evidence at trial favors his or her side. From the prosecutor’s perspective, none of the evidence exculpates the defendant, or even creates the slightest smidgeon of doubt. How schizophrenic must prosecutors be in order to step inside the psyche of the adversary, before trial, to see the potential inferences and potential for arguments that they will vehemently reject at trial, as utterly implausible and too farfetched to create reasonable doubt?
The entire system of permitting prosecutors to decide the disclosure issue, ex parte, and without supervision, violates the spirit and mandate of Brady. Whatever we may think of Alabama Judge Roy Moore, we could all use some of that Beechum County sense of fair play and due process.
