Re: The Michael Flynn Shitshow starts to collapse
Posted by:
EML
()
Date: March 15, 2020 03:19PM
To answer your question it is standard operating procedure in most prosecutors' offices. What is worse is that judges bend over backwards to approve the practice. Most defendants never learn of the unreavealled exculpatory evidence. If they do, they only learn of it after the time to request a new trial has passed, or after the time to include it in the appeal passes. At that point the defendant no longer has the right to a court appointed attorney so most cannot put together the proper motion to challenge it. If they do find an attorney the usual response will be that the judge will kick the motion out on procedural grounds. If that cannot be done either the judge hearing the motion or the appellate court will throw it out saying it isn't exculpatory. If all else fails the court will fall back on a "no harm, no foul" argument. (How the judge can be certain the jury would rule the same way if it had the evidence is something no judge has ever satisfactorily explained.)
In defense of prosecutors the usual explanation isn't a desire to frustrate the defense's ability to obtain exculpatory evidence. Sure that does happen. It has happened in some very high profile cases in Fairfax under Horan. It was a grievance against at least one former northern Virginia prosecutor. In the typical case though the prosecutor's reason for not turning it over is that the prosecutor doesn't know of the evidence. Many prosecutors are just as overworked as the typical public defender. They get briefed on the case by the police or their investigators who frequently are only looking at the evidence which supports the defendant's guilt. One reason that criminal defense attorneys have pushed for discovery in Virginia criminal cases is the belief that it will not only get the defense exculpatory evidence, but it will also confront the prosecutors with it.