Here’s a thought. When prosecutors find evidence that might prove the innocence of the accused or reduce his punishment, they should turn that evidence over to the defense. Maybe this seems obvious—a trite statement of what most Americans would see as elementary fair play.
Not so fast.
In his new book, “When Innocence Is Not Enough: Hidden Evidence and the Failed Promise of the Brady Rule,” veteran defense lawyer Thomas Dybdahl traces the twisted journey of that simple conception of fairness from Justice William Douglas’s announcement (in Brady v. Maryland) that it expresses a Constitutional rule, through its collision with the realities of our criminal justice system, to its current moribund state.
The fact is, prosecution violations of the Brady rule are epidemic. In nearly half (398/802) of the National Registry of Exonerations’s tally of wrongful murder convictions since 1989 prosecutors withheld exculpatory evidence.
How did this happen? Why? Can we do anything about it?
Dybdahl’s treatment of these questions is exemplary. He provides an incisive analysis of the Brady rule’s central doctrinal weakness. Brady requires (but also permits) prosecutors to evaluate whether the evidence in their files is “material”—that is, likely to alter a proceeding’s outcome—before turning it over. Dybdahl explains how this formulation incentivizes prosecutorial wishful thinking, and how it cripples any efforts to evaluate the prosecutors’ hopeful guesses after a conviction has been obtained.
Dybdahl nails the naiveite in Justice Douglas’s blithe assumption that his new rule would be smoothly integrated into the Battle Model culture of a criminal system dominated by prosecutors who feel forced to focus on winning convictions and judges who are obsessed with preserving the “finality” of those convictions’ after they have been won.
And Dybdahl presents a cogent argument for a pragmatic reform that has proved workable in several states: a statutory scheme that requires “open file” discovery in criminal cases. In effect, this could be a “forcing function” that compels prosecutors to confront the existence of discordant facts and to share them. I’m all for giving it a try. It is a promising policy option, clearly outlined.
The Safety Lens: Conformity and Violation
Still, for me, a particular value of Dybdahl’s book lies in its fine-grained account of a notorious Washington, DC murder case that resulted in the convictions of seven young men for the robbery, sexual assault, and killing of Catherine Fuller near 8th & H Streets, NE—a grim precursor to the Central Park Five fiasco in New York a few years later.
This story isn’t told simply to respond to a publisher’s insistence on adding “human interest” to an argument about legal processes. Dybdahl’s careful narrative in “When Innocence Is Not Enough” creates an opportunity to apply a new set of lenses to what could have been an all-too-familiar prosecutorial misconduct scenario.
For example, there is a Safety lens.
Generic accounts of Brady violations after exonerations offer scathing “performance reviews” of individual rule-breaking prosecutors, and there is no doubt that Jerry Goren, the Assistant United States Attorney who prosecuted the Fuller case, withheld information that he should have shared. Goren knew of evidence pointing to other, better, suspects and of witnesses who undermined the prosecution’s central theory—that the killing was a savage gang attack by a dozen young Black men.
But Dybdahl’s book allows readers to look beyond Goren’s performance and to undertake a wide-angle “event review” that reveals the multiple sources of a full-system failure.
After the space shuttle Challenger exploded on launch in 1986 a Presidential Commission was convened to investigate. The immediate technical cause of the tragedy was easy to identify: the failure of rubber-like O-rings to seal out hot propellant gasses.
But the Rogers Commission also pointed to flawed decision-making processes preceding the launch. A narrative developed that arraigned the NASA managers for ordering the launch in cold weather that affected the O-rings. It portrayed the managers as “amoral calculators,” who, driven by budget pressures and career ambitions, had engaged in a variety of dangerous safety violations.
This is the story we tell in most Brady violation cases: an ambitious prosecutor, thirsty for a win, breaks the rules. It could be offered as the story of Jerry Goren.
But when sociologist Diane Vaughan took a rigorous empirical look at the Challenger disaster what she found was something quite different from swashbuckling transgressors, ruthlessly calculating public costs and personal benefits. Vaughan showed that, “The cause of disaster was a mistake embedded in the banality of organizational life and facilitated by an environment of scarcity and competition.”
What Vaughan uncovered in NASA is what Dybdahl’s story suggests was occurring in the DC criminal justice system: “the normalization of deviance.” We can see actors situated in an organizational setting coming to define their deviant acts as normal and acceptable because they fit with and conform to the cultural norms of the agency in which they work.
Seen through this Safety lens, the Supreme Court’s decision to sustain the Fuller convictions constitutes a refusal to interrupt this process. After all, you would not need a doctrine of finality if you did not know error was an inevitable part of the human condition, and a regular feature of criminal system life.
The resort to “finality” betrays a judicial preference for a system that confronts inevitable human errors with brittleness, not with the resiliency that a safe system would seek. Once mistakes are made, they stay made. Their victims live with the consequences.
And in wrongful conviction cases the real perpetrators are left free to find more victims. The two far more plausible suspects whom the system brushed past in the Fuller murder case both killed other women.
The Post-colonial Lens
In 1980 the population of the District of Columbia was 70 percent Black. The lives that were being lived in that community are vividly set out in Edward P. Jones’s “Lost in the City” and “All Aunt Hagar’s Children”—collections that do for the District what James Joyce did for his native city in “Dubliners.”
Thomas Dybdahl’s portraits of the young Black men who became the defendants in the Catherine Fuller murder case are in the same spirit.
Once you see these guys in their human contexts the Government’s theory of the murder—that the defendants all took part in a fatal, sexually depraved “wilding” with a dozen fellow gang members—seems insane.
But the criminal system did not see them in human contexts. It saw them as “8th & H Gang” members, inhabiting the netherworld of Them/There that the Washington Post’s grandees (including Bob Woodward and Ben Bradlee) had accepted as accurate when they published Janet Cooke’s fantasy of an “eight-year-old, third generation heroin addict”, “Jimmy’s World,” on the front page and nominated it for a Pulitzer Prize.
You can’t see wetness in any single molecule of H2O; it is an “emergent” quality.
And you wouldn’t see criminality in any of the young Fuller defendants alone, but when you see them as members of the gang collective, you can convince yourself—as the police and prosecutors did—that the gang’s intrinsic criminality will be found in each of its members if you just dig deeply enough.
You would deploy the psychologically coercive interrogation techniques that have been shown to yield false confessions when the suspects are young or mentally challenged.
Then, basic cognitive biases—expectancy bias, confirmation bias, all the elements of “tunnel vision”—take hold and cascade.
This process—not the substitution of Black defendants for white perpetrators—helps to explain the stark racial disparities in the wrongful conviction rates.
Dybdahl’s account lets us see this progression unfolding. It also shows why it was not effectively challenged in the Fuller trial.
As a structural matter it was never in the strategic interest of any individual defendant to challenge the Government’s gang scenario; for each defendant the best strategy was to accept the gang murder premise but claim that he himself was somewhere else.
“When Innocence Is Not Enough” allows us to see more than one Assistant United States Attorney who kept secrets from his adversaries; it illuminates a system successfully keeping secrets from itself—and a society keeping secrets from itself.
While the book offers a promising practice, in the proposed “open file” discovery rules, it also tempers our hopes for it.
The book portrays a culture in which the “Don’t turn it over” habits anatomized in its pages could easily be replaced through a process of “practical drift” with “Don’t write it down.”
(In my own experience defending homicides in the District in the 1980’s the idea of detectives intentionally leaving things out of their investigative files wasn’t exactly unheard of.)
The Safety experts would tell us that no “fix” stays fixed; all fixes are under immediate attack from their cultural environment. It’s worth remembering that 17 years after Challenger exploded, NASA, following a similar decision path, launched Columbia.
Let’s hope Thomas Dybdahl’s excellent book motivates us to initiate a change to a culture of safety in criminal justice, a culture that values continuously learning from our mistakes. Our challenge here is not protecting a safe system from dangerous people; it is finding the will to look constantly for system weaknesses.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes comments from readers.