Liotti, Thomas F.

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St. John's University School of Law

St. John's Law Review Volume 77 Number 1 Volume 77, Winter 2003, Number 1 Article 3 February 2012 The Uneven Playing Field, Part III, or What's on the Discovery Channel Thomas F. Liotti Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Liotti, Thomas F. (2003) "The Uneven Playing Field, Part III, or What's on the Discovery Channel," St. John's Law Review: Vol. 77 : No. 1 , Article 3. Available at: https://scholarship.law.stjohns.edu/lawreview/vol77/iss1/3 This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. THE UNEVEN PLAYING FIELD,tPART III, OR WHAT'S ONTHE DISCOVERY CHANNELTHOMAS F. LIOTTIftThe last time the Supreme Court spoke on the issue ofdiscovery in criminal cases was in Kyles v. Whitley.' In Kyles,the Court expanded the duties of prosecutors by requiring themto act with due diligence to turn over all exculpatory or, as it ismore commonly referred to, "Brady"2 material. The Courtdetermined that the prosecutor's obligation to disclose is notcontingent on whether the material was under the actual controlof prosecutors. Rather, the due diligence requirementpronounced in Kyles pivots on whether prosecutors can, byexercising due diligence, obtain the exculpatory evidence,thereby mandating its turnover to the defense. 3New discovery requirements, even those from the SupremeCourt, are slow to trickle down to local prosecutors and stateauthorities. 4 Prosecutors resist implementing new measureswhich burden themselves. 5 Moreover, in state practice there is at Thomas F. Liotti and Christopher Zeh, The Uneven Playing Field: Part I,Ethical Disparities Affect Criminal Cases, THE ATTORNEY OF NASSAU COUNTY,March, 2000 at 5, 14, 15, and 16 and the New YORK STATE BAR ASSOCIATION,CRIMINAL JUSTICE SECTION JOURNAL, Winter, 1999, Vol. 7, No. 2 at 75; NEW YORKSTATE BAR ASSOCIATION ONE ON ONE (a publication of the General Practice Section)Summer 2000, Vol. 2, No. 2 at 21; 17 TouRo L. REV. 2 (2001); VERDICT (apublication of the National Coalition of Concerned Legal Professionals) April, 2002,Vol. 8, No. 2 at 3-23; The Uneven Playing Field: Part II, Ethical Disparities CloudCases, THE ATTORNEY OF NASSAU COUNTY, April, 2000 at 5.ft Thomas F. Liotti, Esq. is the Chair of the New York State Bar AssociationCriminal Justice Section.1 514 U.S. 419 (1995).2 Brady v. Maryland, 373 U.S. 83, 87 (1963).3 Kyles, 514 U.S. at 437-38.4 See, e.g., Commonwealth v. Smith, 615 A.2d 321, 323-24 (Pa. 1992) (notingdeliberate failure of the prosecution to turn over exculpatory evidence despite theholding in Brady).5 See Cynthia KY. Lee, From Gatekeeper to Concierge: Reigning in the FederalProsecutor's Expanding Power over Substantial Assistance Departures, 50 RUTGERSL. REV. 199, 246-47 (describing prosecutors resistance to overall constraints onST. JOHN'S LAW REVIEWtendency to skirt these requirements or to ignore simplyimportant federal decisions.6  Since courts rarely admonishprosecutors, dismiss cases, or make referrals to grievancecommittees for non-disclosure, the penalty for prosecutors fornondisclosure, aside from convicting the innocent, or at leastthose who might be found not guilty, is de minimis. Thus,prosecutors have little incentive to follow the holding of Kyles.It appears, however, that times are changing. For example,the Second Circuit has displayed a vigorous interest in discoveryissues and a willingness to reverse convictions based upondiscovery abuses. Most recently, in United States v. Gil,7 theSecond Circuit reversed the mail fraud conviction of a heatingand air-conditioning contractor because of the prosecution'sdiscovery abuses.8Gil allegedly committed mail fraud by over-billing the Off-Track Betting Corporation (OTB).9 Prior to trial, the defendantmade numerous demands for discovery, continually invokingKyles v. Whitley as the burden of the prosecution. Two daysbefore the start of trial, the prosecutor turned over threethousand pages of so-called "3500 material."10 None of theinformation was highlighted as Brady material. Amidst thevoluminous 3500 material was a memorandum from an OTBemployee that indicated that the manner in which the defendantbilled had been approved by OTBl1--thus Gil's defense ofentrapment by estoppel became more viable. Yet the defense didnot find the memo until five months after the trial ended.' 2 TheSecond Circuit criticized the prosecutors for not making thismemo available sooner and for not disclosing it pursuant to thenumerous discovery demands that had been made. 13 Becausetheir broad exercise of discretion).6 See George C. Harris, Testimony for Sale: The Law and Ethics of Snitches andExperts, 28 PEPP. L. REV. 1, 67 (2000) (highlighting constant prosecutorialresistance and attack on Brady obligations and the violations thereof).7 297 F.3d 93 (2d Cir. 2002).8 Id. at 95-96.9 Id. at 95.10 See 18 U.S.C. § 3500 (2002) (stating procedural rules applicable to demandsfor production of statements and reports of witnesses); see also Gil, 297 F.3d at 96.11 Gil, 297 F.3d at 95-96.12 Id. at 98.13 See id. at 107 ("The government has not otherwise undertaken to justify itsfailure to find and timely deliver the Bradford memo, and there is no obviousexplanation for this failure in light of the defendant's numerous requests for such[Vol.77:67WHATS ON THE DISCOVERY CHANNELthe memorandum was material to the defendant's conviction, theSecond Circuit remanded the case for a new trial. 14Seizing upon the Second Circuit's commitment to a criminaldefendant's right to exculpatory material as evidenced in Gil,this Article gives a brief overview of Supreme Court and SecondCircuit jurisprudence in the field of Brady material. Further,this Article briefly examines the import of Gil with particularreference to sanctions that are currently imposed and whatsanctions that should be imposed against prosecutors who fail todisclose Brady material.I. THE DEFENDANT'S RIGHT TO EXCULPATORY MATERIALBrady v. Maryland established the prosecution's obligationto turn over any exculpatory material to the defense. 15 The merefailure to turn over evidence, however, is not sufficient toestablish a Brady violation. Rather, a Brady violation in theSecond Circuit requires that (1) "[tlhe evidence at issue must befavorable to the accused, either because it is exculpatory, orbecause it is impeaching"; (2) "the evidence must have beensuppressed by the State, either willfully or inadvertently"; and(3) "prejudice must have ensued."16 These requirements arefirmly rooted in Supreme Court jurisprudence.In United States v. Bagley,17 the Court held that prejudiceensues where there is a "reasonable probability that, had theevidence been disclosed to the defense, the result... would havebeen different." 8 This standard, in effect, requires the trialcourt to make a determination of the skill and ability of trialcounsel. 19 Brady material is a lethal weapon in the hands of andocuments.").14 By the time of the reversal, the defendant had already served over sixmonths of a three year sentence, had expended considerable sums for legal fees, andhad forfeited a luxury yacht to the United States government. Moreover, thedefendant had been barred from doing business with municipalities including theCity of New York. These were a few of the consequences of non-disclosure whichprosecutors failed to recognize. Gil had made an application for bail pending appealthat was denied.15 373 U.S. 83, 87 (1963).16 Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001) (quoting Strickler v.Greene, 527 U.S. 236, 281-82 (1999)); see also United States v. Coppa, 267 F.3d 132,140 (2d Cir. 2001).17 473 U.S. 667 (1985).18 Id. at 682.19 See id. at 683.2003]ST. JOHN'S LAW REVIEWeffective advocate. 20 The Supreme Court suggests that Bradymaterial becomes less prejudicial if defense counsel is ineffectiveduring trial.21 Under the Sixth Amendment, the defendant has aconstitutional right to prudent and effective counsel. Denyingthe admission of Brady material based on an attorney'sineptitude further hampers the criminal defendant'sconstitutional right to effective assistance of counsel. No courtshould be permitted to deny a Brady violation because thedefense lawyer was ineffective; the Bagley Court stated asmuch.22In construing whether there is a "reasonable probability"that a different outcome would have occurred, the Court hasstated that if Brady material would enable the defense to attackthe "thoroughness and even the good faith of the investigation,"then a Brady violation may have occurred. 23 For example, in Gil,the Brady material might have assisted the defendant in anentrapment by estoppel defense. 24 While the Court in Gil did notpass upon the admissibility of that evidence, it concluded thatthere was a "reasonable probability" that it would have affectedthe outcome. 25Aside from articulating the materiality standards for aBrady violation, the Court has also addressed the nature of theprosecution's obligation to turn over Brady material. Kylescemented the affirmative nature of the prosecution's duty todisclose exculpatory material.26 In Kyles, the defendant wasconvicted by a Louisiana jury of first-degree murder andsentenced to death. Following the affirmance of his convictionon direct appeal, it was revealed that the prosecutor hadwithheld evidence favorable to the defendant, 27 includingeyewitness statements taken by the police, statements from aninformant who never testified, and a computer printout of license20 See id. at 682-83.21 See id.22 See id.23 Kyles v. Whitely, 514 U.S. 419, 445 (1994).24 See United States v. Gil, 297 F.3d 93, 106 (2d Cir. 2002) ("Although thegovernment discounts the significance of the memo, and reasonable minds can differabout that (the district judge, for one), the government runs a certain risk when itturns over so late documents sought by the defense for so long.").25 Id. at 105.26 See Kyles, 514 U.S. at 454.27 Id. at 421-22.[Vol.77:67WHAT'S ON THE DISCOVERY CHANNELnumbers of cars parked at the crime scene on the night of themurder. 28 In reversing Kyles' conviction, the Court expanded thedisclosure duties created in United States v. Agurs.29In Agurs, the Court determined that "a defendant's failure torequest favorable evidence did not leave the Government free ofall obligation" to disclose exculpatory material.30 In Kyles, theCourt went one step further. While the Court noted thatconstitutional requirements were less onerous than those of theABA Standards for Criminal Justice3' and the ABA Model Rulesof Professional Conduct,32 it still imposed a substantialresponsibility on prosecutors. Pursuant to Kyles, prosecutorshave "a duty to learn of any favorable evidence known to theothers acting on the government's behalf in the case, includingthe police."33Following the Court's lead, the Second Circuit has made itclear that the defendant's right to exculpatory evidence is a mostserious consideration. Specifically, in United States v. Payne,34the Second Circuit rejected the notion that the prosecution'sstate of mind has any bearing on the defendant's right to receiveexculpatory evidence. The court stated:Under Brady and its progeny, the government has anaffirmative duty to disclose favorable evidence known to it,even if no specific disclosure request is made by the defense.The individual prosecutor is presumed to have knowledge of allinformation gathered in connection with the government'sinvestigation. Where the government's suppression of evidenceamounts to a denial of due process, the prosecutor's good faithor lack of bad faith is irrelevant. 35Furthermore, the Second Circuit has also been attentive tothe defendant's right to receive exculpatory material promptly.In Leka v. Portuondo,36 the court reversed a murder convictionand held that delayed disclosure to the defense of key witnesses,identified nine days before opening arguments and twenty-three28 Id. at 453-54 (noting that Kyle's license plate number was not on the list).29 427 U.S. 97 (1976).30 Kyles, 514 U.S. at 433.31 STANDARDS FOR CRIMINAL JUSTICE § 3-3.11(a) (3d ed. 1993)32 MODEL RULES OF PROF'L CONDUCT R. 3.8(d) (1984).33 Kyles, 514 U.S. at 437.34 63 F.3d 1200 (2d Cir. 1995).35 Id. at 1208.36 257 F.3d 89 (2d Cir. 2001).2003]ST. JOHN'S LAW REVIEWdays before the defense began its case, constituted "suppression"of evidence by the Government under Brady.37 It should benoted, however, that the Second Circuit has set a rational limiton the defendant's right to receive timely exculpatory material.In United States v. Coppa,3 the court rejected the notion thatthe Government has a constitutional duty to disclose Brady andGiglio v. United States39 material immediately after theindictment has been delivered.40 Therefore, a failure to provideimmediate disclosure does not constitute suppression ofevidence.Coppa was only a mild retreat. In Gil, the Second Circuitre-emphasized the gravity of the prosecutor's obligation to maketimely disclosure. The court held that disclosure of Bradymaterial one to two days prior to trial is not sufficient time foradequate preparation by trial counsel.41 In light of Gil, Leka,and Coppa, the amount of time sufficient for adequatepreparation is unclear. It is important to recognize, however,that there is a link between the time for preparation and the"suppression" and prejudice findings necessary to establish aBrady violation.By finding a Brady violation in Gil, the court had toconclude that the prosecutors "suppressed" Brady material bywithholding it until two days prior to trial and that thesuppression of the exculpatory information was prejudicial to thedefendant. 42 In addressing the prejudice prong of the Brady test,the court referenced Leka:When... [an exculpatory] disclosure is first made on the eve oftrial, or when trial is under way, the opportunity to use it may37 Id. at 98-101.38 267 F.3d 132 (2d Cir. 2001).39 405 U.S. 150, 154 (1972) (noting that favorable evidence includes not onlyevidence that tends to exculpate the accused but also evidence that is useful toimpeach the credibility of a government witness).40 Coppa, 267 F.3d at 146. But see United States v. Shvarts, 90 F. Supp. 2d 219,224-29 (E.D.N.Y. 2000) (holding the Due Process clause of the Fifth Amendmentrequires the prosecution to disclose all exculpatory and impeachment materials assoon after an indictment as such materials are requested).41 See supra notes 7-14 and accompanying text. Cf. Coppa, 267 F.3d at 146. Itshould be noted that if the trial judge in Coppa simply issued a scheduling order ofimmediate disclosure rather than characterize the obligation as a constitutionalmandate, the circuit would likely have upheld the ruling as being within the judge'ssound discretion. Thus, trial judges have the power to help ensure a defendant'sright to Brady material is not compromised by prosecutorial suppression.42 United States v. Gil, 297 F.3d 93, 101-05 (2d Cir. 2002).[Vol.77:67WHATS ON THE DISCOVERY CHANNELbe impaired. The defense may be unable to divert resourcesfrom other initiatives and obligations that are or may seemmore pressing. And the defense may be unable to assimilatethe information into its case.43In other words, the defense's ability to employ theexculpatory disclosure as part of the trial strategy is pertinent tothe prejudice analysis. 44 It was clear that, in a case involvingdisclosure similar to Gil, no such opportunity existed. Thus, theSecond Circuit stated:Although the Bradford memo was produced before trial, thedefense was not in a position to read it, identify its usefulness,and use it. It was among five reams of paper labeled "3500material," delivered sometime on the Friday before Mondaytrial, at a time presumably when a conscientious defenselawyer would be preoccupied working on an opening statementand witness cross-examinations, and all else.Moreover, disclosure on the eve of trial "may be insufficientunless it is fuller and more thorough than may have beenrequired if the disclosure had been made at an earlier stage."The two-page memo was not easily identifiable as a documentof significance, located as it was among reams of documents,and indexed as Dorfinan 3500 material on page twelve of theexhibit list. Although the government discounts thesignificance of the memo, and reasonable minds can differabout that (the district judge, for one), the government runs acertain risk when it turns over so late documents sought by thedefense for so long.The prosecution contended on appeal that it received theBradford memo from OTB "only days before" the governmentproduced it to the defense. But... the government concedesthat an OTB investigator saw the Bradford memo at some pointduring the grand jury investigation .... The government isreasonably expected to have possession of evidence in the handsof investigators, who are part of the "prosecution team." Thegovernment thus constructively possessed the Bradford memolong before it was turned over to the defense.The government has not otherwise undertaken to justify itsfailure to find and timely deliver the Bradford memo, and there43 Id. at 106 (quoting Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001)).4 See id.20031ST. JOHN'S LAW REVIEWis no obvious explanation for this failure in light of thedefendant's numerous requests for such documents. 45Recognizing that the government suppressed material,exculpating evidence, the court reversed the conviction andremanded for a new trial.46 The holding of the Second Circuit inGil reaffirms a defendant's right to exculpatory material andprovides an impetus for prosecutors to avoid such abuses in thefuture.II. REMEDY FOR THE WRONGWith court rulings protecting a criminal defendant fromdiscovery abuses, one wonders why the prosecutors involved inBrady violation cases such as Kyles and Gil are not disciplined orsanctioned. The Jencks Act,47 which governs demands forproduction of statements and reports of witnesses, limits theremedy for failure to disclose to striking the testimony and, if theinterests of justice require, it permits a mistrial to be declared.48The Jencks Act does not provide for dismissal of charges, nordoes it provide for any monetary or disciplinary sanctionsagainst the prosecution. It should be amended to allow for suchpenalties. This would provide a necessary remedy, especially forcourts that have been characteristically weak in imposingsanctions against prosecutors. Limited remedies, such asstriking testimony or declaring a mistrial, do not reflect thestern opposition to discovery misconduct such as that espousedby the Second Circuit.Gil reminds us that, until prosecutors are seriouslypunished for their failure to disclose Brady and Kyles materialsin a timely manner, discovery abuses will continue. If the courtsare serious about providing meaningful discovery, then theymust provide real remedies with serious consequences forprosecutors who fail to comply with the requirements of Brady,Kyles, and Gil.45 Id. at 106-07 (internal citations omitted). The exculpatory memo in Gilbecame known as the "Bradford Memo," named after a deceased employee of OTB.See Gil, 297 F.3d at 96.46 See id. at 108.47 See 18 U.S.C. § 3500 (d) (2000).48 See id.; United States v. DeFranco, 30 F.3d 664, 667 (6th Cir. 1994).[Vol.77:67

The Uneven Playing Field, Part III, or What\u27s on the Discovery Channel

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The Uneven Playing Field, Part III, or What\u27s on the Discovery Channel

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