December 1, 2004
Prosecutorial Control of Information
An interesting working paper by Professor Peter Margulies (Roger Williams), entitled Above Contempt?: The Attorney General, the Courts, and Informational Overreaching in Terrorism Prosecutions, looks at the issue of prosecutorial control of information and incentives to withhold such information from defendants. The abstract states:
Prosecutors face the continual temptation to overreach in decisions about the control of information. At each phase of a criminal proceeding, from investigation through trial, prosecutors make crucial decisions about information to disclose and highlight with courts, juries, and the public. In ordinary times, courts, defense counsel, the media, and internal sources of oversight can place some constraints, however tenuous, on the prosecutor’s efforts to monopolize the management of information. However, external events, such as the attacks of September 11, 2001, can weaken these constraints, producing alarming spikes in prosecutorial power.
The so-called "Detroit Terrorism Trial," in which with the government withdrew the most serious terrorism charges after it was revealed that the lead prosecutor withheld Brady information from the defense, is a good example of how the pressure on prosecutors to win convictions can result in a serious miscarriage of justice.