In what is only the latest in a long list of troubles in the Jefferson County Commonwealth Attorney’s office, a judge this week dismissed a felony assault charge, saying the prosecutor had “deliberately” and “improperly” kept medical records from the defense, which the judge herself had twice ordered to be fully disclosed.

More, however, than a routine bit of prosecutorial misconduct, this case is a striking demonstration of a jurisprudential incoherence that lies at the heart of criminal discovery procedures in America.

As Jason Riley of WDRB.com reports, Judge Audra Eckerle ruled from the bench that Assistant Commonwealth’s Attorney Jamhal Woolridge had “altered” medical record evidence by removing thirty-eight pages of documents which tended to show that the victim of the alleged assault had a drinking problem and a history of violence while drinking, information which would have supported Enrique Sandoval’s argument of self-defense.

The failure to disclose exculpatory evidence has been a major problem in Jefferson County for sometime now. It took Commonwealth Attorney Tom Wine’s office three attempts to convict Dejuan Hammond, whose first two murder trials resulted in mistrials when undisclosed exculpatory evidence came to light. At least one assistant prosecutor has been forced to resign for her conduct.

In an interview with Riley last fall, Wine said the office had “learned a lesson,” but pointed out that no judge had actually made a formal finding of prosecutorial misconduct in the process of declaring mistrials and frequently chastising prosecutors in open court.

Now that slender defense no longer applies. “Defense attorney Rob Eggert…asked Eckerle to rule that Woolridge had committed misconduct and dismiss the case against Enrique Sandoval.” And that is precisely what she did, making a formal finding that Woolridge had “deliberately” and “improperly” withheld evidence.

Prosecutor Admits the Incoherence of Brady Doctrine

News that Wine’s efforts to better supervise his prosecutors have apparently failed to put an end to a pattern of non-disclosures is noteworthy enough in assessing the efficacy of self-policing in this context. But it turns out the relatively inconsequential Sandoval case offers another, inadvertent sign of the conceptual problem that lies at the heart of the entire disclosure regime in criminal cases.

As reported by the Courier-Journal, during the hearing that led to the dismissal of the assault charge this past Tuesday,

Woolridge defended his actions, saying the medical records he disclosed in March were clearly labeled as pertaining only to the November 2013 incident and that they were offered to the defense in keeping with the state’s rules of discovery… Woolridge said he did withhold nearly 40 pages of hospital records from an unrelated 2011 incident because he believed them to not be relevant to the case at hand… Those additional medical records weren’t exculpatory, Woolridge said in his response, adding that the commonwealth cannot be expected to “accurately assess what information might be exculpatory” if it does not know what defense an attorney is planning to pursue.

To underline: “the commonwealth cannot be expected to ‘accurately assess what information might be exculpatory…‘” There is, of course, a perfectly logical reason for this: no one can see into the future. To know what evidence might be exculpatory, a prosecutor is required to (a) imagine a trial and a defense that has yet to take place, (b) evaluate what role a piece of evidence might play in that future defense. Leaving aside the inevitable cognitive bias of a prosecutor in an adversarial system, this is a logical impossibility.

This inability to foresee the future is, if anything, an even bigger problem when it comes to the Brady materiality requirement. How material to the defense case a piece of evidence is, and how undermining it may turn out to be of the state’s case, is impossible to accurately predict ex ante.

Illustrating the incoherence of this regime in remarkably direct and honest terms, Woolridge makes two mutually exclusive assertions: (1) the additional medical records were not exculpatory; and (2) he cannot “accurately assess” whether they were exculpatory or not.

Thus, here, in a single colloquy in a court room in Louisville, Kentucky is revealed a striking truth: prosecutors in America are granted powers that are logically impossible for them to use responsibly. Unless they turn over all the evidence they and the police have collected, regardless of their view of its utility to the defense, they are engaging in a de facto delimiting of a defendant’s right to craft their own best defense.

That the failure to disclose in this case was, according to the judge, deliberate is reprehensible. But what the prosecutor’s response tells us is something much larger. It is not just the sharp practices of prosecutors themselves that need reforming. It is the conceptually incoherent regime of criminal discovery that systematically produces such violations of citizens rights.