By Dan Christensen, BrowardBulldog.org
The smoke has cleared in the recent public dustup between State Attorney Michael Satz and Public Defender Howard Finkelstein over the quality of justice in Broward County.
Neither man has changed his mind.
Finkelstein still contends Satz favors the influential and the police over the average citizen when it comes to charging decisions. Satz calls that assertion “false and irresponsible.”
Still, important change has taken place – change that could someday spread out from the Broward courthouse and across the state.
“What’s happened is a tremendous step forward,” said Teresa Williams, an officer of the Broward Association of Criminal Defense Lawyers.
The change has to do with access to evidence, particularly evidence of possible police misconduct.
The issue is one of fair play. The courts decided long ago that prosecutors cannot withhold evidence that is favorable to a defendant because it violates due process of law. Such material, known as Brady information after a landmark 1963 Supreme Court decision in Brady v. Maryland, can sometimes be used by a defense lawyer to exonerate a client or impeach the testimony of a police officer.
The hitch is in who makes those disclosure decisions, and the standards that are used. State case law says Brady requires prosecutors to disclose “material information.”
Until recently, Satz let each assistant state attorney under his control make his or her own call as to what should or not should not be turned over to the defense.
“That’s the reason we didn’t get many Brady notices for 30 years,” Finkelstein says.
But in a letter to the public defender last month, Satz explained his “streamlined and improved” office policy regarding the delivery of information sought by the defense.
“The new process no longer leaves it up to the individual assistant state attorney to determine if the information is ‘material’ and therefore Brady,” wrote Satz.
In the past, the names of police officers who were under investigation would be fed into a computer that would then spit notices to individual prosecutors to decide whether there was Brady information to be passed on to the defense. Now, the notices are automatically sent directly to defense lawyers.
Satz says his new disclosure standard “far exceeds” his legal obligations under Brady.
The result has been a recent “onslaught” of state Brady notices sent to both public defenders that represent the indigent, and privately retained criminal defense attorneys, according to Finkelstein.
Why is this important?
Teresa Williams cites the case of a client who told her she’d been sexually assaulted by a local police officer. Williams later got a tip the officer was suspended for sexually assaulting women during traffic stops.
“There was no Brady information on it. We just happened to find out,” she said. “If I’m not told this happened in the past, it’s my client’s word against a police officer’s word.”
Satz has made other changes, too. He now discloses the existence of pending investigations on all police officers, “so long as no investigation is compromised.” He also advises the defense when pending investigations against police officers are closed, said spokesman Ron Ishoy.
Before, investigations that cleared police officers were not disclosed because they weren’t considered material under Brady, defense attorneys said.
Defense attorneys credit Satz’s action and Finkelstein’s outspokenness for the changes, along with an improving climate regarding Brady following a federal judge’s dismissal last year of the government’s corruption indictment against former Alaska Sen. Ted Stevens. Attorney General Eric Holder Jr. said prosecutors improperly withheld relevant information that would have aided Stevens’ defense.
“Satz is trying to do the right thing, and what he’s done is a great thing for justice,” said Jamie Benjamin, a Fort Lauderdale attorney and secretary of the Florida Association of Criminal Defense Lawyers.
Benjamin said Satz is now at the forefront of Brady reform statewide.
FACDL President-elect Brian Tannebaum, a Miami lawyer, says he expects his group will likely establish a committee soon to assess the situation elsewhere.
“This issue blasted out over the last 60 days. Now that it is exposed in Broward, we need to address the other 19 state attorneys and say ‘What’s your policy’?”