That certainly seems to be the opinion of a growing number of judges, and a few opinion writers have have followed their lead and registered complaint. The most prominent judicial critic thus far has been Chief Judge Kozinski of the Ninth Circuit Court. Writing a scathing dissent of the Court’s refusal to rehear United States v. Olsen last December, Kozinski characterized the panel opinion as a free pass for prosecutors to shirk their duties. He wrote, “the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway.”
Prosecutors have a constitutional duty in the United States to turn over evidence that could be favorable for the defendant. To fail to do so would be a due process violation and should be grounds for a new trial and sanctions against the prosecutor. You would not know it, however, by examining appellate court decisions. All too often, appellate judges shrug theirs shoulders and decide to do nothing.
It has been just over fifty years since the Supreme Court explicitly stated a prosecutor has a duty to turn over evidence to the defendant. In Brady v. Maryland the Court held, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” As United States v. Olsen shows, however, appellate courts find that a lot of evidence is not “material.” Taping unparalleled powers of mind-reading, appellate judges regularly express “confidence” that a jury would have convicted even if they had heard the evidence favorable to the defendant. Kozinski thinks this has lead to rampant unethical prosecutorial behavior. “Some prosecutors don’t care about Brady because courts don’t make them care,” he wrote in his dissent.
The bottom line is that there are plenty of incentives for prosecutors to shirk their duties, but few disincentives. Formal sanctions from state bar associations are rare. Appellate courts are reluctant to overturn convictions. In the rare instances where a conviction is overturned, a prosecutor is rarely personally punished. It is very difficult to bring civil suits against prosecutors for constitutional violations. They enjoy qualified immunity which means—without getting too technical—there is a threshold a person has to show before they are even allowed to get their day in court and sue for damages. And if someone happens to prevail in spite of those difficulties, taxpayers pay the settlement.