CrimLaw

Sniper - Muhammad:

Here's another discussion of the fact that the prosecutor did not disclose certain Brady evidence (which it probably didn't know about). I discussed this some previously here. I have to take issue with this statement:

Richard Friedman, a University of Michigan law professor who is an expert on evidence, said the Brady doctrine "is not based on the idea that prosecutors should be doing the defense's job. I don't think anybody else in the government would have the responsibility to communicate what they knew about this witness. . . . It's a big government."

That's not a proper reply to non-disclosure of Brady material. As I stated in my last post, one of the obvious purposes of punishing the prosecution for non-disclosure is to prevent willful blindness on the part of the prosecutor. However, I don't think that is the only evil which must be addressed in enforcing Brady. There is also the ever present danger that police will just not tell the prosecutor everything. Like I said in my last post, who thinks that a witness (or his supervisors) will come to the prosecutor and tell him that he has been accused of being a racist who skews evidence and keeps a lab so messy that it screws up results? If there is no reason to disclose they won't.

Now, in cases such as this where the Defense probably has an investigator or two and is able to find this information it may not matter too much (although the article is not clear over whether this was found by the Defense or was a late disclosure by the prosecution). However, in the vast majority of the cases out there the only "investigator" is an overworked defense attorney and there is no way that Brady material will be discovered unless both the officers and the prosecution act in good faith and hand it over. Most of the time I'm sure they do and I'm sure that even when Brady material is not disclosed it is usually because they don't realize it. However, the only way to ensure that it is handed over is to punish the prosecution in those very few cases where it can be proven they did not.

Will it happen in this case? I'd bet good money that upon appeal it will be found to be "harmless error" by the appellate court. And it very well may be in this case but if its not punished here when will it be punished? The most likely answer is never.

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Addendum
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Actually, thinking this over, it might be extremely useful to the Defense to call this guy up during sentencing (if the judge will allow it) and expose all this. It might be a way to keep Muhammad from being killed.