There is an article that is wrong-wrong in the current issue of the state bar journal. It makes two basic points, both misleading and false. One is that Brady v. Marylond, rather than requiring prosecutors to disclose favorable evidence, gives them the privilege to decide whether the prosecutor considers the favorable evidence sufficiently “material” to hand over. This is incorrect. Materiality is not the standard for disclosure, but the after-the-fact review standard for assessing the effect or prejudice from the prosecutor’s misconduct.
Even worse, the article opines that, inasmuch as there is a new open-file discovery statute in place, there is no longer any basis for a moratorium on capital punishment.
For various reasons, it would not be prudent for me to be the person who publicly responds to this article. But, someone needs to!