The ABA annual meeting was held recently and the House of Delegates announced 9 criminal justice resolutions. One of them bothers me. It says that Judges are encouraged to “conduct a conference with parties in a criminal case prior to trial, advising them of their respective disclosure obligations, such as the obligation of federal prosecutors to disclose information under Brady v. Maryland and related case law.”
Before I explain what bothers me about this, let's remember that there is a specific rule of professional conduct that spells out clearly the duties of prosecutors particularly the duties of disclosure and the notion that the prosecutor is a 'minister of justice.' All prosecutors are expected to know their duties and to act according to them. Failure to either know them or abide by them can, and should, be the basis of disciplinary action.
So, here is what bothers me about the resolution. First, there's the notion that we need to remind prosecutors that they need to comply with their duties. Then, more importantly, there's the fact that if prosecutors are not complying with their duties what the ABA should be encouraging judges to do is to impose severe sanctions on those prosecutors who either do not know their obligations or who act in disregard of their obligations!