This column examines the process of requiring prosecutors to provide favorable information to defense counsel as required by Brady v. Maryland, 373 U.S. 83 (1963). This case requires the prosecutor to turn over to defense counsel any information the prosecutor has that may affect the charging of a person with a criminal offense or affect the severity of the sentence. Since the date of that decision, there have been several hundred cases where exculpatory Brady material should have been turned over to the defense at the time of trial, and the defendants were improperly convicted. Many of these cases involved evidence that was finally produced years after trial and after the defendants had served years of a prison sentence.
A recent book by Thomas L. Dybdahl, “When Innocence is Not Enough,” published by The New Press, N.Y. 2023, gives a critical evaluation of the process. The author concludes that the Brady process is a failure. Dybdahl is a retired public defender from the District of Columbia. He makes a good argument that the process set forth by the Brady decision is not working, as evidenced by several hundred decisions overturning convictions and jail sentences, which would have been prevented had information learned by the prosecutor been turned over to the defense. He cites The National Association of Exonerations Report of 2019, which stated that of the 2,400 documented exonerations reported between 1989 and 2019, errors attributed to Brady violations led to conviction in cases involving 1,056 innocent persons. Dybdahl offers a substitute to the process required by the Brady decision.
