NYS judges will now be required to issue an order to Prosecutors to meet their Brady obligations. At the very least, courts will be alerted that they have a role in ensuring timely disclosure. Presumably, a prosecutor who fails to comply can now be held in contempt.
Read the full article: Susan DeSantis, Judges Ordered to Direct Prosecutors to Turn Over Information Favorable to Defense, New York Law Journal (Nov. 7, 2017).
In a clear, well-reasoned decision, the DC Court of Appeals has held that a prosecutor’s ethical responsibility to disclose exculpatory evidence is significantly broader than the Brady standard and does not contain a “materiality” requirement. While the decision is binding only on attorneys who practice in DC it will cover many federal prosecutors.
The case came to the court based on a report and recommendation of the Board on Professional Responsibility that had recommended a 30-day suspension for a federal prosecutor who violated Rule 3.8(a) of the DC Rules of Professional Conduct. The charges arose in a felony assault case involving a drive-by shooting where the defendant filed an alibi notice. The issue was the reliability of the identification; significantly, what the prosecutor failed to disclose was that the victim had said after the shooting, at the hospital, was that he did not know who shot him. The first trial ended in a mistrial when the jury could not agree. Although after the first trial a subsequently assigned prosecutor revealed the statement, the second trial ended in a conviction.
Among his various arguments, Kline argued that his ethical obligation was co-extensive with his Brady obligation. The court soundly rejected this argument, and its explanation for why post-conviction materiality cannot be used to judge ethical conduct is notably clear and to the point. The court also surveyed the various conflicting decisions nationwide about whether the two standards are co-extensive. Meanwhile, because of a confusing sentence in the commentary to the DC rule, the court determined not to sanction the prosecutor.
Related Readings:
The prosecutor in the Michael Morton case in Texas, in which the defendant was exonerated, has pled guilty to criminal contempt for intentional non-disclosure of exculpatory evidence and will give up his law license, perform 500 hours of community service, and serve 10 days in jail. Among the withheld evidence was the account of an eyewitness, the defendant’s son, who said he was not the murderer.
No matter what one’s views are on this unprecedented event, it should raise consciousness about the risk of withholding substantial exculpatory evidence and risking the conviction of an innocent person.
Although the New York State Court of Appeals decision in People v. McCray, will likely not be a hot topic of conversation in many legal circles, it will definitely have a palpable impact on prosecutorial practices regarding the handling of Brady disclosures in New York.
In McCray, the defendant was accused of raping an 18-year-old female acquaintance. At trial, the prosecution alleged that the defendant and the complainant had gone on a date and that the defendant physically forced the complainant to engage in sexual intercourse while inside an abandoned building. The defense claimed that the sexual encounter was consensual, and an altercation arose when the complainant demanded money in exchange for having sex with the defendant. The defense also contended that a physical struggle occurred when the defendant attempted to stop the complainant from running off with his “pants.”
Unquestionably, the case presented a “classic he-said she-said credibility determination.” And “[t]he outcome of the case obviously depended on which witness the jury believed.”
Prior to trial, the prosecution requested that the court conduct an in-camera review of the complainant’s mental health records. The prosecution didn’t believe that all of the reports were discoverable, and sought the court’s guidance as to which documents were Brady-Giglio material. The trial court found that only 28 pages out of the thousand records it reviewed should be disclosed to the defense –although the undisclosed records referenced, among other things, the complainant’s tendency (1) to confuse dates of events or misunderstand events, (2) to have hallucinations or distorted perceptions, (3) to misrepresent the truth in an effort to please her mother, (4) to engage in wishful thinking about relationships with males with whom she is recently acquainted, and (5) to fabricate occurrences of sexual assault and attempted rape by her father –allegations which were ultimately deemed “unfounded.”
The Court of Appeals observed that “[t]his case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought.” Nevertheless, it concluded that the key inquiry remained whether there was a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”
The Court held that the undisclosed records were “either cumulative or of little if any relevance to the case.” The Court explained that they “contain other examples of what could be called hallucinations or distorted perceptions, but the other examples were no clearer or more dramatic than the ones the defense already had….” The Court also found that any prior fabrications would be immaterial because the “accusation [against] her father was far removed in time and quite different from the[se] accusation[s]…” The Court concluded that “[i]t is hard to imagine, however, a juror who could attribute the complainant’s testimony here — a claim of rape, made immediately after what defendant testified was consensual sex followed by a dispute over payment — to a failure of recollection or a misunderstanding, however susceptible to those failings the complainant may have been.”
Dissenters were critical of the Court’s failure to protect the defendant’s right to consider and explore all legitimate avenues of information relevant to his defense and to the victim’s testimony and potential cross-examination. (Dissenting Judges: Jenny Rivera, Jonathan Lippman, Eugene Pigott). They explained that “[w]ithout access to documents concerning reliability of the witness, the defendant cannot properly develop and pursue questioning favorable to the defense or address facts and related issues important to the truth finding process.”
Unfortunately, the long-standing importance of the Brady-Giglio rule has not been fully appreciated by all members of the Court and decisions like McCray reaffirm the need for legislative reform in order to address the stark imbalance in discovery practices. Likewise, the result-affecting test conducted by the Courts to determine Brady violations is simply a farfetched and imperfect process -as “[w]hat influences juries, courts seldom know.” (Chief Judge Jerome Frank). The imperfection of this process is further illustrated by the illogical fact that the majority in McCray found it “hard to imagine” that a juror might reach a different outcome–while members of its own bench implicitly found that they would have reached a different outcome in this case had they know of the undisclosed reports.
The McCray decision simply fails to recognize that the right to disclosure of exculpatory and impeachment evidence under the Brady-Giglio rule is the cornerstone to ensuring a defendant the right to a fair trial, and ensuring that the “goals of seeking the truth through the trial process” is legitimate. Without access to favorable evidence, a defendant is unable to either effectively prepare for trial, or present facts important to the “truth finding process.”
All the parties in McCray, except the defense, were permitted to decide how the complainant’s mental health records may be useful to the accused. In my opinion, such a vetting process is unsound, and should not be representative of how future Brady-Giglio materials should be handled by prosecuting offices. As an alternative, these Brady-Giglio materials, even if referencing “private matters” of the complainant, should have been turned over to the defense under a protective order, or subject to preclusion after the court heard arguments from both sides. Of course, such an alternative process would at least respect the fundamental principle that the right to favorable evidence is one of constitutional dimension -and the “privacy concern” of a witness is not.
To decide what may be favorable to a defendant, while keeping him blindfolded in his prison cell, does not comport to the notions of fairness and justice for all.
References
Former United States President Theodore Roosevelt Jr., once stated that “justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.” Recently, Bronx Criminal Court Judge John Wilson heeded Roosevelt’s command of justice when he took the courageous step in barring Assistant District Attorney Megan Teesdale from ever appearing in his courtroom as a result of her failure to provide exculpatory evidence to a defendant charged with rape. Judge Wilson, who formerly served as an Assistant District Attorney in Bronx County and graduated from Pace Law School in 1986, ruled that ADA Teesdale had taken part in one of the worst Brady violations that he had witnessed after serving more than nine years on the bench, bringing about great disgrace to both herself and her office.
During pre-trial proceedings, the defense had requested that the prosecution turn over all notes regarding the alleged victim’s initial statements to police. However, the prosecution rebuffed the defense’s request claiming that it did not possess any interview notes or exculpatory evidence that it was required to produce under its Brady obligations. Judge Wilson explained that the prosecution’s representation “turned out, unfortunately to be a lie,” as the prosecution’s file had contained memorialized statements of the victim initially telling police that the sexual encounter with the defendant was consensual.
Judge Wilson noted that the prosecution’s failure to honor its Brady obligation amounted to “gross negligence,” requiring that the case be dismissed in its entirety. He further informed ADA Teesdale that
You are going to leave this courtroom and you are never going to come back. You can’t appear before me anymore. I’ll tell you why, because I cannot trust anything you say or do. I can’t believe you. I can’t believe your credibility anymore. The only thing a lawyer ever has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this court.
Judge Wilson deserves great praise for his bravery to faithfully uphold the law. His actions are truly exemplary, and should be followed by all judges when dealing with prosecutors that play “fast and loose” with their Brady obligations. It has become all too common for prosecutors to go unpunished when failing to honor their duty to provide exculpatory evidence to the defense. Judge Wilson’s decision to bar ADA Teesdale from his courtroom was not only proper in this case, but was done in the best interest of the criminal justice system. Indeed, the only thing a court has to offer is its integrity and its credibility, and when it loses that, there is no reason to believe that there will ever be “justice and liberty for all.”
As a result of Judge Wilson’s decision, one must not wonder too far as to whether ADA Teesdale will be more likely to ever commit another Brady violation; or if she will take her Brady obligations more seriously. I would propose that there would be far less Brady violations if all judges took the approach that Judge Wilson did in barring the culpable ADA from ever appearing in his court. For that reason alone, he deserves this honorary salute.
Related Readings: