The Need For An Open Records Mandate
By Jerry Summers
As the United States Supreme Court has noted, 1, the prosecutor represents “a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 633; 79 L.Ed. 1314, 1321].).68
The system was initially established to have:
- Police keep citizens safe from criminals;
- Prosecutors keep the citizens safe from overzealous police actions;
- Defense attorneys keep the accused safe from overzealous prosecutors; and
- Judges to insure these components followed the law
Ultimately the courts, through judicial reviews, were to hold any wayward elements within the justice system accountable for any violations of individual liberties.
Brady versus Maryland
Yet, since the Brady versus Maryland 2 decision in 1963, we have seen a systematic failure in that, according to the National Registry of Exonerations, 46% of the 1,576 people exonerated since 1989 were exonerated as a result of official misconduct.
In keeping with the multi-agency review process, we have seen over the last fifty years, the checks and balances set-up within the American jurisprudence system have also failed because of a lack of transparency.
Solutions to stop these occurrences
So, what are some possible solutions to minimize such occurrences from becoming an acceptable pattern in the American justice system? I suggest a three-pronged approach.
First, prosecutors should be required to have an open file policy where all potential evidence must be disclosed to the defense, whether the prosecutor intends to use it or not. The same holds true for all potential witnesses.
Second, the exemption for disclosure of personnel actions should be removed. That would allow the public the ability to judge for themselves whether proper management supervision is being exercised by the elected district or prosecuting attorney.
Finally, remove absolute immunity for prosecutors, and have it follow the qualified immunity of police officers. This would open prosecutors up to civil liability for willful misconduct and gross negligence in the performance of their duties, thereby holding them accountable for their actions in and out of the courtroom.
Corruption from top to bottom
It must now be apparent that the concept of self-policing is no longer a viable option, as it has failed with law enforcement, prosecutors, defense attorneys, and the courts. There has been reluctance among judges to take a hard stand against misconduct on the part of police officers, attorneys, and other judges, and the result is a corrupted judicial system from top to bottom. Safeguards established long ago have been abandoned for political correctness and systematic expediency, rather than justice.
The number of cases involving official misconduct is relatively small in comparison to all cases tried. Still, the fact that 46% of exonerations since 1989 were because of wrongful convictions as a result of misconduct proves there is a reason for a lack of public trust in the system. Add to that the question of how many others have been wrongfully convicted and haven’t had their innocence discovered (possibly because exculpatory evidence was destroyed) and the reason for losing the public’s trust increases dramatically.
No one, at this point, can put a definitive number to it because the closed-off judicial system doesn’t allow for a thorough examination of all the evidence.