District attorneys are challenging an accusation by a New York State Bar Association section chairman that prosecutors instruct their assistants to conceal Brady materials from the defense in criminal cases.

Manhattan defense attorney Marvin Schechter, in a “Message From the Chair” in the summer quarterly newsletter of the state bar’s Criminal Justice Section, contends that “ From its inception, case history shows that Brady [v. Maryland, 373 U.S. 83] has been continually violated, thus undermining the popular, though quaint notion of fair play based on the prosecutor’s dual obligation to the public as well as the accused, to be fair and honest in the presentation of evidence and in reviewing material which is favorable to the defendant.”

Schechter writes that “the slow trickle of uncovered Brady violations spawned by DNA exonerations has become a steady, flowing stream of egregious cases.”

And he observes that “assistant district attorneys do not emerge from law school with a genetic disposition to hiding Brady material. Instead this is something that is learned and taught.”

That allegation drew an immediate response from the District Attorneys Association of the State of New York (DAASNY).

“DAASNY condemns these sentiments in the strongest possible terms,” the group said in a letter to state bar president Seymour James. “We ask the [state bar] to clarify that it is not the official position of our statewide bar association that district attorneys are teaching their assistants to violate the constitution.”

The July 25 letter was signed by the Manhattan District Attorney Cyrus Vance Jr., DAASNY’s president, and Westchester County District Attorney Janet DiFiore, its immediate past president.

“Our colleagues in DAASNY believe that criminal defense is an honorable profession,” states the letter from the district attorneys. “We trust there is similar respect and support from our bar leaders for the thousands of public prosecutors throughout New York state.”

James responded in a July 26 letter that Schechter’s column “was clearly an expression of the author’s own personal opinion.”

“It was not offered and cannot reasonably be interpreted as an expression of the opinion of the State Bar Association,” wrote James, who is attorney-in-charge of criminal practice for the Legal Aid Society of New York City.

James noted that the official policies of the 77,000-member state bar are set by votes of the group’s House of Delegates.

He added that a state bar task force identified government practices, including “intentional and nonintentional Brady violations” as being among the most common causes of wrongful convictions (NYLJ, June 7, 2010).

Based on that finding, which was approved by the House of Delegates, James said the group is advocating legislation (A4879/S3276) to “strengthen the Brady obligation” and to provide additional training to prosecutors, judges and defense lawyers about disclosure rules.

According to the sponsor’s memorandum, the bill would clarify what information must be turned over to the defense and establish a timeline for delivering. Finally, the bill would authorize “various sanctions for noncompliance to be imposed at the court’s discretion, and provides for reference to a disciplinary body where a failure to comply is intentional or reckless.”

The district attorneys association is opposing the bill.

Vance said he was “disappointed with Mr. James’ response, because I think it was a missed opportunity for him to acknowledge the critical work that New York prosecutors do every day. Prosecutors in this state have a long and deep history of acting ethically and honorably, ensuring public safety on our streets while striving, under often difficult conditions, for absolute fairness in our courts.”

DiFiore declined to comment.

‘Yet to See Any Explanation’

Schechter did not back down in an interview.

“There is nothing new in what I said. There is nothing outrageous in what I said,” Schechter said. “D.A.s are responsible for the training of the assistant D.A.s when they come to their offices and we have yet to see from the D.A.s any explanation of why these Brady violations are occurring in the record numbers they are occurring and in the seriousness in which they are occurring.”

He cited as a recent example People v. Waters, 571/2007, in which Bronx Supreme Court Justice Edgar Walker (See Profile) criticized the “egregious conduct” of prosecutors in not disclosing sooner to the defense a significant change in the testimony of a key prosecution witness in a murder case (NYLJ, April 10).

Schechter said judges like Walker appear to be getting “more cautious” about potential Brady violations in the disclosure of potentially exculpatory materials.

Prosecutors acknowledged to Walker that, “in retrospect,” when they learned of the change in the witness’ story they should have disclosed it immediately to spare the defense a “surprise.” But prosecutors said the failure to disclose earlier was not a Brady violation because the information was not exculpatory.

In his newsletter, Schechter asks a series of questions: “Why do Brady violations of this magnitude occur? What happens to assistant district attorneys who engage in these practices? Is there a punishment system in place that would discourage others from these tactics? Are penal laws violated by such conduct, specifically Obstruction of Governmental Administration and/or Official Misconduct? And what responsibility is shouldered by the trial supervisors of the assistants? Are the District Attorneys in New York trying to deal with Brady violations?

According to the DAASNY letter, the bar group has developed an ethics handbook, The Right Thing: Ethical Guidelines for Prosecutors, which has been distributed to every office in the state.

In it, prosecutors are cautioned that under Brady, the prosecution “must disclose to the defense…material, exculpatory information.”

The guidelines also point out that failure to disclose such material need not be intentional on prosecutors’ part to violate Brady.

The handbook warns that a “knowing or willful failure” to disclose Brady materials to the defense could subject prosecutors to punishment for violating ethical canons.

Schechter said in the newsletter that he will return to the issue of Brady violations in his next issue. He said in an interview that state bar officials had not contacted him to discuss his views.

The Criminal Justice Section has 1,350 members, mainly defense attorneys.