JUNE 2021 | NEWSLETTER
Letter from CJRI Chair Erwin Chemerinsky and Executive Director Anne Bloom
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Dear Friends of the Civil Justice Research Initiative,
As this extraordinary academic year draws to a close, we are excited to be contemplating the possibility of returning to in-person operations sometime in the not too distant future. Berkeley Law is scheduled to reopen over the summer and we are optimistic that we may be able to resume in-person CJRI events by the spring semester. In the meantime, our extensive virtual programming will continue to be offered to our growing world-wide audience.
The latter half of the spring semester featured webinars on Debt Collection During Covid, Insurance Issues for Small Businesses During Covid, Access to Justice and Legal Services Regulatory Reform, and two live conversations with CJRI Board Member Rep. Katie Porter and Senator Sheldon Whitehouse. Future programming will focus on “Selection of Leadership in MDLs,” “Attacks on the Judiciary” and “Revisiting Qualified Immunity.” In addition, our fall short webinar series will tackle an array of new civil justice topics, including Gender and Civil Gideon, Section 230 Liability, Human Rights Litigation after Doe v. Nestle, and Rural Judging. A complete listing of past and future programming, including videos from past webinars, can be found on the CJRI website.
We are also delighted to report the publication of two new white papers – “Piercing Prosecutorial Immunity Through Brady Claims,” authored by Brian M. Murray, Jon B. Gould and Paul Heaton; and “Covid-19 and the Courts: Lessons from the Pandemic,” in collaboration with the RAND Corporation.
Thank you so much for your continued support and commitment to ensuring and expanding access to civil justice! We wish everyone a healthy and happy summer and look forward to seeing as many of you as possible in person when conditions permit.
Erwin and Anne
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CJRI Releases New White Paper on Prosecutorial Accountability for Brady Violations
by Sanjana Manjeshwar
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The Civil Justice Research Initiative recently published "Piercing Prosecutorial Immunity Through Brady Claims," a white paper written by professors Brian M. Murray, Jon B. Gould, and Paul Heaton. The white paper explores how the civil justice system can be used to hold prosecutors accountable and ensure access to justice for those who have been harmed by prosecutorial misconduct. The authors examine the current state of so-called Brady violations and offer a solution that could help regulate the behavior of prosecutors and prevent wrongful convictions.
In Brady v. Maryland (1963), the Supreme Court held that prosecutors are required to disclose evidence that could exonerate defendants. However, in the decades since then, some prosecutors have continued to withhold exculpatory evidence, in many instances intentionally. Under ordinary circumstances, these intentional violations of constitutional rights would lead to potential civil liability. But prosecutors typically do not face any consequences for violating Brady because of the doctrine of absolute immunity, which protects them from civil liability for any actions they take as a prosecutor, including suppressing evidence. While absolute immunity is intended to ensure that prosecutors can carry out their responsibilities without worrying about retaliatory litigation, in recent years, it has been extensively criticized for enabling prosecutorial misconduct.
According to the white paper authors, absolute immunity is especially problematic when it comes to Brady violations because it creates a "large class of injured victims" who have a "right without a remedy." Under the circumstances, the constitutional protections provided by Brady are essentially erased because absolute immunity insulates prosecutors from litigation that could hold them accountable. Moreover, absolute immunity deprives wrongfully convicted individuals of the opportunity to receive compensation for the injuries that they experienced.
When analyzing the details of 38 Brady cases from 2008 to 2012, the authors discovered that prosecutors were responsible for Brady violations 45% of the time, with police officers also playing a significant role in the suppression of exculpatory evidence. For the majority of cases, prosecutors withheld evidence intentionally (as opposed to recklessly or negligently), and did not misjudge the materiality of the evidence. In 41% of the cases, evidence was withheld because it might weaken the prosecution’s case, and prosecutors were most likely to suppress evidence related to favors they offered to witnesses. Notably, nearly half the time, the suppressed evidence had been specifically ordered by the court or requested by the defense. According to the authors' findings, one in eight Brady violations represents a situation where "there was a real chance that the results would exonerate an innocent suspect."
To address these troubling circumstances, the authors suggest a legislative solution that would create a tort cause of action against prosecutors who intentionally violate Brady. The proposed statute would permit claims for money damages against prosecutors who knowingly withhold exculpatory evidence. The authors write that the potential for liability created by the legislative change would deter prosecutorial misconduct, because prosecutors would now face consequences. Specifically, the threat of civil liability would incentivize prosecutors to avoid suppressing evidence in violation of Brady. By setting what the authors describe as a "high bar" for liability, the statute also recognizes that any remedy for Brady violations must take into account the unique role that prosecutors play in the criminal justice system.
In sum, the white paper provides a detailed empirical assessment of the crisis in intentional Brady violations and proposes a legislative change aimed at expanding access to justice for those who are currently unable to receive any financial compensation after being wrongfully convicted.
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AUGUST 27, 2021
SELECTION OF LEADERSHIP IN MDLS | VIA ZOOM | 1-3 PM PT
This two hour Zoom event will focus on issues related to adequacy of representation, court approval of potential settlements and equitable issues in the selection of the Plaintiffs Steering Committee. Featured speakers will include Andrew Bradt (Berkeley Law) and Nora Freeman Engstrom (Stanford Law). This event is supported by a generous gift from the Robert L. Habush Endowment. A registration link will be posted here shortly.
OCTOBER 5, 2021
ATTACKS ON THE JUDICIARY | VIA ZOOM | 1-3 PM PT
This two hour Zoom event will focus on some of the ethical issues raised by increased attacks on the independence and legitimacy of the judiciary. The program will feature practitioners, scholars and judges. Topics will include the effects of the attacks on the judiciary and the implications for legal practice. This event is supported by a generous gift from the Robert L. Habush Endowment, in collaboration with Berkeley Boosts. A registration link will be posted here shortly.
SUMMER 2021
REVISITING QUALIFIED IMMUNITY | VIA ZOOM
This two hour Zoom event will serve as a forum in which to present and discuss the state of qualified immunity and what changes are needed as an interim step in the production of a white paper on the issues. This event is supported by a generous gift from the Robert L. Habush Endowment, in collaboration with Berkeley Boosts. A date and registration link will be posted in mid-June here.
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Pictured (Left to Right)
Marc Galanter | Wisconsin Law
Nora Freeman Engstrom | Stanford Law
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CJRI CIVIL JUSTICE AWARDS CEREMONY, CSLS & JSP RECEPTION
VIA ZOOM | MAY 28, 2021
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Thanks to a generous gift from the Robert L. Habush Endowment, on May 28th the CJRI presented Marc Galanter (Wisconsin Law) with CJRI's first Historic Achievement in Civil Justice Research award and Nora Freeman Engstrom (Stanford Law) with CJRI's inaugural Best Article prize. |
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BERKELEY BOOSTS WEBINAR: DEBT COLLECTION DURING COVID
VIA ZOOM | APRIL 16, 2021
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As part of an ongoing 30-minute series, part of Berkeley Boosts, the CJRI is hosting a selection of webinars on civil legal issues during COVID-19. In this half-hour webinar, Erika Rickard of Pew Charitable Trusts and Miguel Soto of the East Bay Community Law Center discussed debt collection issues during COVID. This event was supported by a generous gift from the Robert L. Habush Endowment.
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Pictured (Left to Right)
Erika Rickard | Pew Charitable Trusts
Miguel Soto | East Bay Community Law Center
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Pictured
Senator Sheldon Whitehouse (R.I.)
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A CONVERSATION WITH SENATOR SHELDON WHITEHOUSE (R.I.)
VIA ZOOM | APRIL 14, 2021
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Presented by the CJRI, Professor Abbye Atkinson engaged in a discussion, including extended Q&A, with Senator Sheldon Whitehouse (R.I.). This event was co-sponsored with the Berkeley Law Consumer Advocacy and Protection Society, and the UC Berkeley Center for Consumer Law & Economic Justice.
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BRIAN M. MURRAY, JON B. GOULD & PAUL HEATON
May 2021
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