BEYOND BARS: Legal Espionage: The Degradation of the Brady Doctrine

By S. Gabriella Kiely
Romulus, NY

The US legal system is built on fair and equitable legal proceedings in criminal cases; securing fundamental rights for defendants, and restricting malicious behaviors by the lawyers. Over the years, many appellate cases have changed the face of criminal defense law; one of those cases was Brady v. Maryland (US Supreme Court 1963).

Brady, resting upon the Fourteenth Amendment of the Constitution, changed discovery for criminal defendants by requiring prosecution to disclose exculpatory evidence potentially in their favor, ensuring fair trials and constitutionally equitable plea deals.

Unfortunately, as constitutional obligations made to protect liberty interests of the accused are distinguished by courts, those who wish to undermine them fine-tune their tactics. Over the years while reviewing appeal cases, I have noticed a disturbing trend I call “legal espionage.” This trend is one that shakes the trust and foundation of criminal defense law to the core. This is where, no matter if done in good or bad faith, the defense attorney withholds exculpatory “Brady” evidence disclosed by prosecution from their client. This is especially distressing when it involves DNA evidence.

In one memorable case I worked on for a young man, who at twenty-two pled guilty to “First Degree Murder” and “Twenty-five to life,” this espionage was glaring. He’d been adamant regarding innocence and trial, but caved to a plea after being badgered and told there was no exculpatory evidence recovered. He pled guilty out of fear, and naiveté. It wasn’t until a year later after getting a copy of his lawyer’s case records that we discovered that blood and sperm DNA was recovered from the crime scene and victim’s body that was unidentified and not a match to the defendant or victim. His attorney had flat out lied and withheld evidence.
Defense attorneys must vehemently defend their clients and should only enter plea deals if they are equitable and uncoerced. Withholding exculpatory evidence, like blood and sperm, is clear coercion and fraud. “Brady” rights are not cognizable rights at all if defense counsel can undermine the integrity of discovery by withholding evidence to persuade a guilty plea.

We must demand the sanctity of the discovery disclosures, and defendants’ “right to know,” by requiring mandatory disclosure rules for defense counsel as well. ■

As a transgender jailhouse lawyer I work solely on LGBTTIQ rights work, both civil and criminal. A case must encompass an LGBTTIQ rights issue, or involve a LGBTTIQ client.