A Modest Proposal: The Brady Sting

August 17, 2015 (Fault Lines) — By now we’re all familiar with the problems keeping prosecutors on the straight and narrow when it comes to Brady. There’s no realistic chance of them getting caught. There are few consequences if they do. And even the crappiest training won’t make their municipalities liable when the time comes to pay the piper.

But the answer has been staring us in the face all this time. Sting operations, which make terrorism, drug selling, and stash house robbing cases into a breeze of already proven intent, are perfectly suited to deterring bad prosecutor conduct. Contrary to Josh Kendrick’s recent post, criminalizing Brady non-compliance could revolutionize America’s prosecutors.

Sting operations have already done a lot to improve the lot of ordinary Americans. Take, for example, the government’s brilliant idea to start a fake university that offered foreign students credit for classes even if they did not attend. By charging, deporting, or ordering these students to appear in immigration court, the government cracked down on the bane of the American public: student visa recipients who aren’t diligent enough about studying.

Undercover officers already routinely pretend to be arrested and charged alongside criminal co-conspirators, to keep their cover from being blown. And as the stingray has shown us, there are no special moral provisions preventing cops from lying to prosecutors. So simply present, for instance, an open and shut drug trafficking case to a prosecutor.

Then, you get the faux defendant some honest to goodness incompetent counsel. Somebody from the crusty end of the appointed list. Neither cops nor clients have any compunction about lying to defense attorneys. Just have the faux client insist on a trial, regardless of the plea offer.

Leave something deeply exculpatory in the file. Coconspirators discussing how the defendant had no idea what was happening. Inconclusive DNA results that could suggest someone else was responsible. A ballistics test proving that the defendant couldn’t have been the one to fire the gun. And wait.

The best thing about this is that it is totally up to the sting operator how exculpatory to make the evidence, and what facts should lead to the charging decision. If the prosecutor starts wavering and suggesting that he should turn in the evidence, have another plant strongly discourage the prosecutor from doing so, pointing out that the defendant is probably guilty of something else and that they’ll be making everyone safer.

Now a cynic might point out that this is kind of a waste of resources. There’s no guarantee, after all, that the prosecutor would be the type of person who would withhold Brady evidence under normal circumstances. But that’s nonsense. After all, honest people don’t do bad things even when confronted with an opportunity.

That’s how we know that our anti-terrorism stings are so effective. Sure, they routinely catch men of below average intelligence, living in their mothers’ basements, who would never otherwise have the wherewithal to plan a terrorist act. But the point is to catch the bad seeds before they can grow into malevolent terroristic trees.

And of course, as has been well-documented, the deterrent value of such sting operations is enormous. Imagine the paranoia of a prosecutor never quite sure whether he’s being set up to withhold information. Hell, maybe those prosecutors might even start to see the strategic advantage of proactively pointing out the problems in their case.

It might seem like it would be difficult to incentivize law enforcement to go after its own. But that’s a problem that (like most problems) can be easily resolved through an ever-expanding federal bureaucracy. With the simple creation of a “Federal Undercover Compliance Department,” able to create new regulations with minimal public oversight, and run exclusively by death penalty exonerees and their attorneys, the benefits of the sting operation can be brought to prosecutors who might otherwise be forced to do without.

Prosecutors brought to trial would, of course, have the full panoply of American rights and liberties. Now, there will be a mandatory minimum of ten years in prison, avoidable only if the prosecutor takes personal responsibility and meaningfully assists in catching other prosecutors. But the jury will still have to find all the elements of Brady failure beyond a reasonable doubt, as drafted by modern legislators. Which is to say, there won’t be an intent element, but the jury will have to find that a reasonable person might have thought that defense counsel would have wanted to know.

Yes indeed, it’s time to bring a little bit of sunlight into the offices of the Department of Justice. For too long, prosecutors have been shut out of essential American experiences, like worrying whether you’re being set up by the government, or hoping you can talk to a federal agent about your case without making a “false statement.” It’s time to welcome these community protectors back into the family. Welcome home.

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