In 1963, John Brady and his co-defendant, Charles Boblit, were convicted of first-degree murder in the death of one of their friends. Brady insisted that although he participated in the related robbery, he played no role in the murder. He insisted it was only Boblit’s doing. Nonetheless, both men were sentenced to death.
After the sentencing, Brady learned that before trial, Boblit had confessed to investigators that he acted alone in the murder and gave a written statement to that effect. But the prosecution had withheld the confession from Brady’s defense team.
Nine years later, John Giglio was convicted of passing forged money orders. One of the key witnesses against him at trial, Robert Taliento, testified that he had not been given immunity in exchange for his testimony. In reality, the Assistant United States Attorney had promised Taliento he would not be prosecuted if he cooperated with the government. But that promise was never disclosed to the defense. And because the prosecutor who dealt with Taliento had left the government by the time the trial took place, and his replacement was unaware of the deal, the witness’s false testimony wasn’t corrected before the jury deliberated.
These two otherwise unrelated cases are connected because they now form the basis for the dual guarantee to defendants in criminal cases that they will receive both exculpatory evidence and evidence about witness credibility from the government in discovery. Exculpatory evidence tends to show that a defendant is innocent or provides a legal excuse for the crime they are accused of committing, including proof of actual innocence, like an alibi, or DNA evidence that conflicts with proof of guilt. Evidence about witnesses extends to anything that can be used to impeach a witness’s credibility. Defendants are entitled to this evidence in order to prepare their defense, before they face trial.
Brady ultimately appealed his conviction all the way to the Supreme Court, which ruled that the prosecution’s suppression of Boblit’s confession violated Brady’s constitutional right to due process under the Fourteenth Amendment. Importantly, they held that the government was responsible if it failed to provide the defendant with evidence that was favorable to him, even if that failure was unintentional. The decision emphasized that the integrity of the justice system was compromised if withheld evidence interfered with the truth-finding process that ensured defendants a fair trial. In Giglio, which also made its way to the Court, the justices held that the prosecution was obligated to disclose any evidence that could be used to impeach a witness’s credibility, including promises of leniency, like an offer that they could avoid prosecution by testifying, or any other benefits. Again, the Court ruled that the government is accountable for any failure to disclose, even if unintentional, because a defendant’s due process rights are violated in the absence of access to evidence of this nature, which resides with the government. The government’s failure to disclose could result in the dismissal of charges, reversed convictions, and new trials granted.
There is also the prospect of other sanctions against the prosecution, and even the prosecutors, for misconduct. In July 2008, Alaska Senator Ted Stevens was indicted by the Justice Department , charged with seven counts of failure to report improper gifts running hundreds of thousands of dollars. Stevens, who was up for reelection in November, sought and received a speedy trial, hoping to clear his name in advance of the election. He was convicted on all charges on October 27 that same year. Although he was the longest serving Republican Senator in U.S. history at the time, he lost his bid for reelection.
Stevens later alleged that prosecutors suppressed key evidence that should have been disclosed under Brady and Giglio. His allegations were supported by available information. Under pressure from an angry district judge and congressional investigators, the Justice Department conducted an internal review of the case. The government’s failure to disclose exculpatory evidence, including conflicting witness statements, was deemed so serious that the government took the highly unusual step of moving to dismiss Stevens’ conviction. U.S. District Judge Emmet Sullivan found that there had been “‘serious, widespread and at times intentional’ concealment of evidence by the Justice Department that could have helped Mr. Stevens prove his innocence.” An independent reviewer was brought in to assess the government’s failures.
Prosecutors were suspended, and there was serious discussion of additional sanctions, including criminal prosecution. Ultimately, none were imposed, and their suspensions ended, but their careers were seriously damaged by the report, which concluded they had engaged in “reckless professional misconduct.” One of the prosecutors in the case, Nicholas Marsh, committed suicide while the investigation was underway. The government undertook a review of discovery practices in criminal cases in every federal district nationwide. Each U.S. Attorney’s office was required to develop and make public its policies. Brady and Giglio obligations were emphasized in training.
Brady and Giglio violations have serious consequences, and after the Stevens case and the focus it brought to bear on them, prosecutors have little room for error. Donald Trump’s lawyers themselves explained, in a brief in the Mar-a-Lago case, that “‘[u]nder Brady, prosecutors have an affirmative duty to reveal any ‘evidence [that] is material either to guilt or to punishment’” and “‘may not leave evidence in the hands of a third party to avoid disclosure.’”
Moreover, “[t]he issue of whether evidence is ‘favorable’ under Brady is a ‘relatively low hurdle.’” Any evidence that could bolster the defense case or impeach a potential witness should therefore be disclosed.
That takes us to the recent indictments against former FBI Director James Comey and New York Attorney General Letitia James. There has been much discussion of selective and vindictive prosecution motions the defendants may offer. But Brady and Giglio loom large here, as well—perhaps even larger. With experienced prosecutors declining to move forward and already public discussion of conflicting or even misleading theories and evidence, there may well be evidence in the government’s possession that contradicts the prosecution’s theory of guilt. It’s likely there is a healthy dose of evidence that must be disclosed.
But that evidence will, by its nature, be harmful to the government’s case. If the administration were to continue its past pattern of inartful noncompliance with court orders, the consequences for both prosecutions and the prosecutors conducting them would be severe. One would expect experienced prosecutors like Attorney General Pam Bondi and her second in command, Todd Blanche, to be well aware of these rules and keyed in to the importance of compliance. But in this Justice Department, the presumption of regularity that typically lets courts assume public officials perform their official duties properly and in good faith doesn’t always apply. The Department should be prepared for close scrutiny of its conduct in these cases—if not by its leaders, then by the courts.
