nytlogo152x23For the second time in the last two years, the New York Times has rightly pointed to open-file reform, coupled with “punishment for prosecutors who flout the rule,” as the “best way to fulfill the promise of Brady.” Citing the weakening of Brady in subsequent decisions, its inapplicability in the context of plea bargaining (“which account for about 95 percent of [criminal] cases”), and the lack of accountability even in the most egregious cases, the Times concludes that “the Brady rule” as currently enforced “is simply insufficient to ensure justice.”

Acknowledging the excellent examples of North Carolina and Ohio, the Times asserts that the “the better approach is to require the opening of prosecutors’ files to defendants, as a general rule.” These state statutes (bright-line rule not subject to any post-hoc materiality analysis) require “prosecutors  in felony cases, before trial, to make available to the defense ‘the complete files of all law enforcement agencies, investigatory agencies and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the defendant.’”

DOJ sealThe failures of the Justice Department to adhere to even the most basic obligations of fairness in criminal prosecutions are well documented.  The Times therefore properly concludes, that Congress, like Ohio and North Carolina, should act to demand more of its federal prosecutors:

The Justice Department insists that it has solved this problem by tightening requirements for disclosure in its manual for federal prosecutors, but numerous misconduct scandals show that is not sufficient. Since the Brady decision, prosecutors throughout the justice   system have acquired more power, with little to deter them from abusing that power. The best way to fulfill the promise of Brady is with open-files reform, which addresses the need for full disclosure of evidence that could show a defendant’s innocence.