Lawyer won the ‘Brady rule’ for crim­i­nal cases

The Washington Post Sunday - - OBITUARIES - E. CLIN­TON BAM­BERGER JR., 90 BY EMILY LANGER emily.langer@wash­post.com

E. Clin­ton Bam­berger Jr., who as the lawyer for a death row in­mate con­vinced the Supreme Court that pros­e­cu­tors may not deny ex­cul­pa­tory ev­i­dence to a defendant, a sem­i­nal rul­ing in crim­i­nal law, died Feb. 12 in Baltimore. He was 90.

He had Alzheimer’s dis­ease and pneu­mo­nia, said his son, Ed­ward C. Bam­berger III.

Mr. Bam­berger be­gan his le­gal work at Piper & Mar­bury, one of the most dis­tin­guished law firms in Baltimore, where he made part­ner. He also made “more money than I could spend,” he once quipped, be­fore un­der­go­ing what he de­scribed as “some kind of midlife cri­sis.”

He ded­i­cated much of the rest of his ca­reer to lev­el­ing what is of­ten re­garded as the un­even play­ing field of the law, where only the wealthy have ac­cess to the high­est-cal­iber, and most highly paid, lawyers. In 1965, he be­came the first di­rec­tor of le­gal ser­vices in the Of­fice of Eco­nomic Op­por­tu­nity, led by R. Sar­gent Shriver. The of­fice was a cor­ner­stone of Pres­i­dent Lyn­don B. John­son’s War on Poverty.

Mr. Bam­berger later served as dean of Catholic Univer­sity’s law school, as an ex­ec­u­tive at Le­gal Ser­vices Corp. — a ma­jor fun­der of civil le­gal as­sis­tance for low­in­come clients — and as a pro­fes­sor at Har­vard Univer­sity and the Univer­sity of Mary­land, where he coached stu­dents in pro­vid­ing le­gal coun­sel to the poor. For years, he fought to pro­tect renters from the health dan­gers of lead-based paint.

But he made per­haps his most en­dur­ing con­tri­bu­tion to the law as the at­tor­ney for John Leo Brady, a Mary­land man who was 25 when he was con­victed in 1958 and sen­tenced to death for the mur­der of a 53-year-old ac­quain­tance, Wil­liam Brooks, in the course of steal­ing the vic­tim’s car. An ac­com­plice, Charles D. Boblit, 24, was con­victed of mur­der in a sep­a­rate trial.

Mr. Bam­berger was re­ferred to Brady by a friend, a Je­suit chap­lain at the Mary­land pen­i­ten­tiary where Brady awaited ex­e­cu­tion. The chap­lain “never met a guilty man,” Mr. Bam­berger re­called in an oral his­tory for the Na­tional Equal Jus­tice Li­brary at the Ge­orge­town Univer­sity Law Li­brary.

Brady claimed that he and Boblit had stolen the vic­tim’s ve­hi­cle for an aborted bank rob­bery but that they had not planned to kill him. Brady fur­ther in­sisted that it was Boblit, not he, who had stran­gled Brooks. Re­search­ing the case, Mr. Bam­berger found that Boblit had given five state­ments to law en­force­ment of­fi­cials — but that only four of them had been ad­mit­ted into ev­i­dence in Brady’s trial.

“I was cu­ri­ous about that,” Mr. Bam­berger said in the oral his­tory, “be­cause in ev­ery one of these state­ments the other guy claimed that Brady did it, ac­tu­ally killed the man. But there were lit­tle weak­nesses and in­con­sis­ten­cies in them . . . . Any­way, I got ahold of the fifth state­ment, and in the fifth state­ment the other man ad­mit­ted that he was the man who was the one who ac­tu­ally gar­roted Mr. Brooks.”

Mr. Bam­berger ap­pealed Brady’s con­vic­tion to a higher court, which de­nied him a new trial but granted a new hear­ing on whether he should be sen­tenced to ex­e­cu­tion or life im­pris­on­ment. Mr. Bam­berger, hop­ing for a new trial, ap­pealed to the Supreme Court.

In 1963, the Supreme Court handed down a 7-to-2 rul­ing agree­ing with the lower court that Brady should re­ceive a new sen­tenc­ing hear­ing but not a new trial. But in its de­ci­sion, the jus­tices for­mu­lated what be­came known as the Brady rule.

“We now hold that 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 . . . . So­ci­ety wins not only when the guilty are con­victed, but when crim­i­nal tri­als are fair,” Jus­tice Wil­liam O. Dou­glas wrote.

The Supreme Court granted Brady a new hear­ing on his sen­tence, which was ul­ti­mately com­muted to life im­pris­on­ment. He did not re­ceive a new trial.

“Every­body thinks I won it,” Mr. Bam­berger told the Texas Tri­bune in 2013. “They did not re­verse the court, but in the course of writ­ing the opin­ion, they wrote the Brady rule.”

Ed­ward Clin­ton Bam­berger Jr. was born in Baltimore on July 2, 1926. His fa­ther was a fi­nan­cial ad­viser, and his mother was a home­maker.

Mr. Bam­berger re­ceived a bach­e­lor’s de­gree in 1949 from what is now Loy­ola Univer­sity Mary­land in Baltimore and a law de­gree from Ge­orge­town Univer­sity in 1951.

His wife of 65 years, the for­mer Katharine Kele­har, died in De­cem­ber. Their daugh­ter, Chris­tine Bam­berger, died in 1998. Be­sides their son, of Ti­mo­nium, Md., sur­vivors in­clude three grand­chil­dren.

Brady was ul­ti­mately paroled. Tes­ti­fy­ing be­fore the Se­nate Ju­di­ciary Com­mit­tee in 2012 on the sig­nif­i­cance of the Brady rule, Carol Brook, a fed­eral de­fender, re­called what be­came of the defendant whose name was en­shrined in Amer­i­can ju­rispru­dence.

“John Leo Brady . . . moved to Florida and be­came a truck driver. He started a fam­ily and was never in trou­ble again,” she said. “When his son was old enough to un­der­stand, he ex­plained to him what he had done and what hap­pened in his case. Shortly af­ter that, his son sought out the tele­phone num­ber of his fa­ther’s lawyer, Clin­ton Bam­berger, and called him. What he said to Mr. Bam­berger was, ‘Thank you for sav­ing my fa­ther’s life.’ ”

CLIN­TON BAM­BERGER PA­PERS/NA­TIONAL EQUAL JUS­TICE LI­BRARY, GE­ORGE­TOWN LAW LI­BRARY

E. Clin­ton Bam­berger Jr., right, and R. Sar­gent Shriver with a poster for the Of­fice of Eco­nomic Op­por­tu­nity le­gal ser­vices pro­gram in 1966. The OEO was part of the fed­eral War on Poverty.

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