An op-ed in Saturday’s Wall Street Journal by U.S. District Court Judge Emmet Sullivan celebrated New York’s comprehensive new rule that makes New York the first in the nation to require all of its criminal trial judges to issue so-called “Brady orders” to all prosecutors in every case (named after the 1963 case of Brady v. Maryland). As Judge Sullivan explains, the landmark administrative order is a critical step in ensuring that prosecutors across the state honor their legal and ethical obligations to turn over all evidence that is favorable to a defendant.
Judge Sullivan, who presided over the trial of former U.S. Senator Ted Stevens—which was marred by prosecutorial misconduct—is one of the prominent judges that has long issued his own individual Brady orders. But soon, as of January 2018, under the new order, all criminal court judges in New York will be mandated to do so.
As Sullivan explains in his op-ed, the purpose of the judge-issued Brady orders is, ultimately, to educate prosecutors on their legal and ethical obligations, to prevent wrongful convictions throughout the state and to provide a mechanism for sanctioning the small minority of prosecutors who deliberately conceal favorable evidence.
Earlier this month, New York’s Chief Administrative Judge issued an order directing all courts to issue “Brady” orders in criminal cases. The Innocence Project lobbied in support of the order, because judicial oversight of discovery was key in holding former Texas prosecutor Ken Anderson in criminal contempt for the misconduct that resulted in Innocence Project client Michael Morton wrongly serving 25 years for the murder of his wife before he was cleared by DNA evidence.
Sullivan wrote the following:
It’s one thing for prosecutors to know they are supposed to follow the law. But it’s far more likely actually to happen when a judge’s order tells them exactly what is expected, and what the consequences are for noncompliance. A Brady order also ensures that prosecutors who commit intentional misconduct can be held accountable. Often it takes years for a wrongly convicted defendant to discover that exculpatory evidence was withheld. By that time, the statute of limitations for bringing disciplinary or criminal charges against the prosecutor may have already expired. If a Brady order is in place, however, the prosecutor can be held in contempt of court or subjected to other judicial sanctions.
The full op-ed is available here with a WSJ subscription.