There is no requirement that a judge instruct the prosecutor to turn over the evidence. A simple request by the accused is all it takes to trigger Brady. The accused doesn't even need to know the specifics of any of the evidence - once he requests it, the state is under a continuing duty to provide any evidence that might conceivably be exculpatory.
Of course, unless you know exactly what you're looking for, you'll never know if you received it. You can speculate all you want, but if no one ever mentions the existence of the evidence, there's not a damn thing you can do about it.
When los federales decided to prosecute then-Senator Ted Stevens of Alaska, they made the conscious decision not to turn over evidence that was favorable to the late senator. No one outside the Justice Department knew about the withheld evidence until Attorney General Eric Holder asked that the conviction be set aside in 2009.
Mr. Stevens never knew about how he had been railroaded because he died in a plane crash in 2010, before the results of an investigation ordered by Judge Emmet Sullivan were released. Mr. Stevens' reputation was ruined as a result of the prosecution. The report, authored by attorney Henry Schuelke III outlined the systematic method by which prosecutors denied Mr. Stevens his right to a fair trial.
Despite the evidence of the scope of the misconduct, Mr. Schuelke did not recommend that the prosecutors face criminal charges for their actions because Judge Sullivan hadn't given prosecutors a "clear and unequivocal" order to follow the law.
“Does it concern you that the only reason these prosecutors escaped criminal charges is that the judge in the Stevens case didn’t file an order specifically telling the prosecutors that they should follow the law?” Sen. Kay Bailey Hutchison (R-Texas) asked Holder today.That's funny, I never knew that our obligation to follow the law depended upon a "clear and unequivocal" court order to do so. Brady is quite clear when it comes to the duty of a prosecutor to hand over exculpatory evidence to the accused. There was no need for a judge to lean over the bench and inform the prosecutors that they needed to follow the law.
This week the Justice Department is set to release an investigative report that details the ways in which the prosecutors handling the case disregarded their ethical duties and knowingly withheld evidence in order to obtain a conviction. The report is expected to call for sanctions against the prosecutors.
But what sanction is appropriate for the people that smeared Mr. Stevens' reputation? The only appropriate sanction is disbarment. Until prosecutors who violate Brady are punished, the practice will only continue. As it stands, the only sanction is that a conviction may be overturned should a court find the violation wasn't just harmless error.
It remains to be seen whether anyone has the backbone to hold the state to its duties under the law.