HUFFINGTON
08.04.13
THE UNTOUCHABLES
an ethics standpoint, if it’s favorable to the defense, they’re obligated to turn it over. And we’ve
told them that the fact that the
information they withheld was
deemed immaterial by a court
doesn’t preclude us from opening
an investigation.”
Another possible reform would
simply be to require prosecutors
to share everything with defense
attorneys — what’s known as an
“open file” policy.
“I think open file is the minimum reform we need right now,”
says Michael Banks, the attorney
for Thompson. “There will always
be rogue prosecutors to deal with,
and we need some changes to
handle them better. But open file
would really improve the way evidence is handled.”
Others are more skeptical. “Open
file only works if you have a prosecutor who keeps a good file,” says
the National Association of Criminal Defense Lawyers’ Steven Benjamin. “Prosecutors who hide information or who don’t investigate
police reports and procedures aren’t
going to have that information in
their files. I think it would help with
unintentional mistakes, but it won’t
help much with willful misconduct,
or with willful blindness.”
“Open file could help,”
Plattsmier says. “But you have to
be wary about the safety of witnesses. There are some real concerns there.”
Of course, neither better prosecutor education nor open file
access would address the fact that
even the most willful, egregious
“You hear about these
overturned convictions,
and then you hear that
only three prosecutors
have been disciplined
in 20 years, and the
natural reaction is,
‘So what’s wrong with
the system?’”
misconduct is rarely punished.
“I wouldn’t be at this job if I
didn’t think we were making a
difference,” Plattsmier says. “You
don’t take this job to be liked. I
save a lot of money on stamps every Christmas. Things are getting
better, but I understand the view
that it isn’t enough. Ultimately, I
think the courts are going to have
to take a more active role in this.
Judges are going to have to start
reporting misconduct to the bar.