Sunday, February 17, 2013
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Point/Counterpoint: Fair trials arise when evidence is available to both sides

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In our weekly Point/Counterpoint feature, we invite knowledgeable people (usually two) to express their views on a current topic. After reading each other's columns, our guests then write rebuttals on the RoundTable blog, where readers can join in the conversation.

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Fair trials arise when evidence is available to both sides

Imagine a system wherein you or your loved one is charged with a crime, an offense for which you can be imprisoned (which is often simply based upon one person's word). A system in which the government sends officers to take statements from the accuser and any witnesses, and to seize any other evidence. A system in which you or your loved one is denied access to that evidence unless the prosecutor decides to give it to you.

That system, unfortunately, is the current state of affairs in Virginia. Yes, there are rules and laws that require the prosecutor to give certain information to the accused; however, too often, the system breaks down.

The reasons for failure are many. Sometimes, frankly, the prosecutor inadvertently fails to disclose evidence to which the accused is entitled because of a failure to recognize it as such. For example, prosecutors are mandated to divulge any exculpatory/favorable evidence. They are simply unable to perform this task. As one prosecutor recently acknowledged, "Many times, I believe that specific information is extremely unfavorable to a defendant but the defense attorney spins that same information" to look favorable to the accused.

Sometimes the failure is intentional. In a recent case, a capital murder conviction was overturned because the prosecutor had coached a witness to lie, to give perjured testimony (evidence that only came to light after trial when the entire prosecutor's file had been ordered disclosed).

Sometimes it is simply the failure of the prosecutor to do his job. One prosecutor's explanation to the judge for failure to turn over exculpatory tapes was that he didn't think there was anything exculpatory on them because he had fast forwarded.

Sometimes prosecutors simply fail to understand and appreciate their duty. In support of the current system, a prosecutor recently proclaimed, "The prosecutor may and often does root through the files of the government in order to ensure the defendant has the information that he is entitled to have for his defense." "May" and "often does" fall short of the prosecutor's duty.

The only fair way to assure a fair trial, when one's life and liberty are at stake, is to make the evidence available to both sides to challenge and argue as they deem fit. Many fair-minded prosecutors in Virginia already voluntarily provide open files and copies and let the chips fall where they may. They continue to secure convictions for those who should be convicted and agree justice is served when the innocent go free.

The current system is broken. It results in too many wrongful convictions, the imprisonment of innocent citizens and exorbitant costs to taxpayers. Due process, justice and fair play demand fair trials with all the evidence made available to both sides.

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