Legal Commentary

Earlier in the week, I blogged about Brady violations and theorized that now might be the time to improve the DOJ's compliance on such matters by changing its Office of Professional Responsibility.  In response, some commentators worried that I might be relying too much on internal mechanisms to do the job. 

Today, the Blog of the Legal Times reports that, "Amending the rules of criminal procedure to require prosecutors to disclose any exculpatory information to the defense will be considered during the October meeting of the Judicial Conference Advisory Committee on the Rules of Criminal Procedure," which will no doubt spur the DOJ to step up whatever training and internal review it already had planned. 

Would a Rule of Criminal Procedure requiring the disclosure of such material reduce additional Brady violations (assuming for the moment that such violations have increased)?  I guess it depends on the details of the proposed rule.  But if the problem here is that people failed to adhere to already existing Supreme Court precedent, the addition of new legal directives is not likely to solve the problem.  Rather, we need to find ways to increase the detection of such violations, and if possible, to prevent them in advance.

Moreover, if the problem is organizational (for example, if violations occur because attorneys lack discovery support or because particular offices overly emphasize aggressiveness in discovery), then the external pressure of a Rule of Criminal Procedure misses the value of a robust compliance department.  At least in theory, an internal compliance department can more effectively penetrate the organization, create law-abiding norms, and help individuals recognize (and proactively remedy) the organizational and contextual factors that cause them to fail to comply with standards and rules.  On that front, the Attorney General's April 2009 announcement that he was creating a Brady working group to address possible causes of Brady violations is promising -- but only if the working group creates recommendations for lasting organizational reform and does so in a transparent way.

And while we're at it, perhaps OPR can publish on its website its annual reports from 2007 and 2008?