In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.
Yet far too often, state and federal prosecutors fail to fulfill that
constitutional duty, and far too rarely do courts hold them accountable.
Last month, Alex Kozinski, the chief judge of the United States Court
of Appeals for the Ninth Circuit, issued the most stinging indictment of
this systemic failure in recent memory. “There is an epidemic of Brady
violations abroad in the land,” Judge Kozinski wrote in dissent
from a ruling against a man who argued that prosecutors had withheld
crucial evidence in his case. “Only judges can put a stop to it.”