• Unduly Suggestive Photo Lineup Identifications
• Error Pursuant to Brady v. Maryland
• Pretrial Written Motions

Whether or not an in-court identification of a defendant by a witness is tainted by a suggestive pre-trial photo lineup identification depends upon the circumstances.  The suppression by the prosecution of evidence favorable to an accused, whether intentional or not, violates due process, at least where the evidence is material either to guilt or to punishment, and whether or not the defense has made a request for such evidence. 

Defendant David Bruce was a guard at the United States Penitentiary at Atwater, California.  Another Atwater prison guard—who soon became key to the issues in this case—was Paul Hayes.  On December 12, 2015, a local resident, Thomas Jones (and his wife), attempted to pay a visit with an Atwater inmate by the name of Devonne Randolph.  The Joneses had developed a scheme with Randolph whereby they would receive packages containing drugs and other contraband for him and bring them as far as the Atwater Prison’s parking lot where they would be delivered to an intermediary known to Jones only as “Officer Johnson.”  Officer Johnson would then smuggle the packages into the prison itself.  Although this scheme working successfully in October and November, 2015, a third attempt on December 12th did not go quite as expected.  Stopped and subjected to a random prison parking lot search, (the legality of which was not in issue; see Cates v. Stroud (9th Cir. 2020) 976 F.3rd 972, 983-984.), the officers found four vacuum-packed bags of marijuana, a package of heroin, and three marijuana cigarettes in Jones’ car.  Present and participating in this search was prison guard Paul Hayes. Faced with drug smuggling charges, and hoping to avoid becoming an inmate himself, Jones was very cooperative with the ensuing investigation.  First, Jones helped to identify the man who referred to himself as “Officer Johnson.”  In addition to providing a detailed physical description, Jones indicated that Officer Johnson commonly wore a Pittsburg Steelers hat.  Knowing that defendant wore a Steelers cap, the officers showed Jones a Facebook photo depicting defendant sporting such a cap.  Jones identified defendant without hesitation as the man he knew as Officer Johnson.  With this information, prison agents set up another parking lot meeting scheduled for several days later.  With Jones’ cooperation, agents went to the prison parking lot and sent out a text message as if from Jones, announcing the arrival of another delivery.  Within minutes, defendant responded to the parking lot driving his personal vehicle, circling the parking lot several times as if checking out the scene, and slowing each time as he passed Jones’ car.  Rather than wait until defendant made contact with Jones, the agents stopped him as he continued to drive around the parking lot.  Despite being caught red-handed, defendant denied that he was there to receive a drug shipment.  Defendant was indicted by a federal grand jury some fifteen months later—in March 2017—and charged with conspiracy, attempted possession with intent to distribute heroin or marijuana, and accepting a bribe as a public officer.  Although not clearly explained in the Ninth Circuit’s written decision, a possible defense available to defendant early on was what is sometimes referred to as a “Soddi” defense; i.e.: “Some other dude did it.”  In arguing such a defense, defendant claimed that his only transgression was participating in some illegal sports wagering.  With an issue as to the possible unconstitutional suggestiveness of Jones’ identification of defendant as the man he knew as “Officer Johnson,” having identified defendant from a Facebook photograph in which only two people were depicted and with only defendant wearing a Steelers cap, what was considered at that time to be a dearth of any other evidence connecting him with Officer Johnson’s illegal drug-smuggling activities was no doubt a concern to the prosecutors.  The government therefore filed a written pre-trial ex-parte motion for the court’s in camera review (excluding defense counsel), asking for a ruling to the effect that the government need not disclose to defendant certain information about two other Atwater prison guards; one of them being Paul Hayes.  In the motion, it was disclosed to the court that Hayes was present during the search of defendant’s vehicle, but explained that the government had no intention of calling him as a trial witness.  The government’s motion further disclosed to the court that Hayes’ personnel file contained potentially incriminating information, including seventy-plus inmate complaints (some of which, it later turned out, involved Hayes coercing inmates into testifying against defendant).  Significantly, it was disclosed to the court that, subsequent to the events described above, Hayes came under investigation for smuggling drugs at another federal prison in Victorville, California.  What the government’s motion did not include was anything to forewarn the court that defendant had an option of arguing a “Soddi defense,” and that Hayes—given his history of alleged abuses of inmates and drug-smuggling activities—was a good candidate to be that “other dude.” The trial court granted the government’s motion.  As it turned out, the case against defendant proved to be relatively strong.  At trial, Thomas Jones positively identified defendant as the guard to whom he delivered the contraband.  Also, an inmate by the name of Robert Rush testified to helping with the distribution of the smuggled drugs and the collection of the resulting proceeds from the inmates, which Rush split with defendant.  Money transfer and cellphone evidence linking the various parties to defendant was also introduced.  The jury convicted defendant on all counts.  Shortly after defendant’s conviction, however, Paul Hayes was indicted in federal court on charges of drug smuggling at the Victorville prison, to where he had since been transferred.  Although the investigation of Hayes’ alleged drug smuggling did not begin until some sixteen months after defendant was indicted, defendant’s trial wasn’t to begin for another seven months.  It was during this seven-month period that the government filed its pretrial ex parte motion in defendant’s case, as discussed above, to prevent this new information about Hayes from being released to the defense.  With all this new evidence coming to light, defendant filed a motion for a new trial, alleging “Brady error.” (Brady v. Maryland (1963) 373 U.S. 83.)  Bruce’s motion centered on the argument that he should have been informed that Hayes was the target in the very similar Victorville drug smuggling investigation.  He also should have been told that Hayes had been actively engaged in coercing Atwater prison inmates into testifying against defendant.  Defendant argued that Brady v. Maryland imposed a pretrial duty upon the prosecution to provide such evidence to the defense.  Despite being somewhat irritated that the government had misled him in its pretrial ex parte motion, the trial court judge denied defendant’s motion for a new trial, ruling that even with the potentially exonerating evidence that, under Brady, should have been revealed to the defense, the existing “overwhelming evidence that supported the jury’s verdict (against defendant) completely and totally” justified the denial of defendant’s new trial motion. The Ninth Circuit was thereafter called upon to review these findings.

The Ninth Circuit Court of Appeals affirmed.  There were two main issues on appeal; (1) the admissibility of Thomas Jones’ in-court identification of defendant as the man he knew as “Officer Johnson,” after an alleged unconstitutionally suggestive identification from a Facebook photograph, and (2) alleged Brady error: 

(1)  Jones’ Identification of Defendant:  In considering the value of Thomas Jones’ in-court testimony identifying defendant as the man he knew as Officer Johnson, and to whom he was delivering contraband, the Court found that his pretrial identification of defendant from a Facebook photograph was not, under these circumstances, tainted as being unduly suggestive.  Pre-trial identifications of a suspect which are unduly suggestive can, in theory, taint that witness’ later in-court trial identification; a potential Fifth Amendment due process violation. The issue in such a circumstance is “whether the procedure (used in the pretrial identification of a suspect) was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”  The Court ruled here that the mere fact that there were only two people in the Facebook photograph shown to Jones, and that defendant was the only one wearing a Steelers cap, was offset by the circumstances of this particular identification.  Despite the arguable suggestiveness of the procedure used in this case, the Court found Jones’ identification of defendant to be reliable based upon the fact that (1) Jones had met, and been face to face with defendant on at least two prior occasions, (2) Jones identified defendant from the photo without hesitation, (3) he was certain of the identification at the time he made it, and (4), when later testifying, he explained to the jury that before he was shown the photo, he accurately described details concerning defendant's beard, hair color, body type, clothing, and vehicle.  Under these circumstances, Jones’ in-court testimony identifying defendant as the man who he knew as Officer Johnson was properly admitted into evidence. 

(2)  Brady Error:  In response to defendant’s new trial motion, the government conceded it had intentionally avoided calling Hayes as a witness because it knew Hayes was subject to some serious impeachment evidence. The question became, therefore, whether the government’s efforts to make Hayes’ credibility a non-issue by minimizing his participation in defendant’s arrest and investigation eliminated its obligations under Brady.  Ultimately, the Ninth Circuit held that the Brady rules were still relevant, particularly when it was not just Hayes’ credibility in issue, but when the suppressed evidence also tended to indicate that he, rather than defendant, might have been the drug smuggler.  The trial court determined at defendant’s motion for a new trial that purposely hiding the circumstances surrounding Hayes alleged drug-smuggling activity at Victorville from the defense, as well as actively persuading Atwater inmates to testify against defendant through threats and intimidation, did in fact constitute Brady error, but that the over-whelming evidence of defendant’s guilt supported defendant’s conviction nonetheless. The Ninth Circuit agreed.  The rule of Brady, at least on its face, is simple:  “(T)he suppression by the prosecution of evidence favorable to an accused . . .  violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  (Brady v. Maryland, supra, at p. 87.)  A defendant’s request for such material is not required.  (United States v. Agurs (1976) 427 U.S. 97.)  Also, a prosecutor’s good or bad faith is irrelevant.  (Brady, supra; United States v. Shaffer (9th Cir. 1986) 789 F.2nd 682.)  Either way, failing to disclose material favorable evidence violates due process because it compromises the integrity of the defendant’s trial.  In this case, the government made a weak argument that by not using Hayes as a witness at defendant’s trial, and then getting the trial court’s blessings via a pretrial motion to have information about Hayes excluded from the trial, telling the trial court (but with defendant excluded) about Hayes’ shady background, that they’d met their obligations under Brady.  Neither the trial court nor the Ninth Circuit bought this argument.  In fact, the trial court judge indicated that he might have “thought a little harder” about the government’s motion (inferring that he would have been more likely to spot the potential Brady issues) had he been told about Hayes’ continuing involvement in the investigation of defendant’s illegal activities.  However, just because the dictates of Brady are violated does not mean that a defendant is entitled to a new trial.  The error in not providing relevant impeachment information to the defense only warrants a new trial when the suppressed evidence is also “material.” To be material, it must be shown that “the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. . . . A ‘reasonable probability’ is a probability sufficient to undermine (the court’s) confidence in the outcome.”  In this case, both the trial court and the Ninth Circuit found that the evidence against defendant was sufficiently strong to overcome the government’s failure to provide to the defendant the negative information they had on Hayes; i.e., that there is a “reasonable possibility” defendant would have been convicted anyway.  In other words, the suppressed information was immaterial.

The trial tactic of filing written pretrial motions in an effort to limit the admission of potentially damaging evidence (or, in other circumstances, to convince a trial court judge to admit important evidence against an opponent) remains an effective means of strengthening one’s case, available to both the prosecution and the defense.  Judges certainly appreciate it.  It gives them the opportunity—not necessarily available when ruling off-the-cuff from the bench—to properly consider the applicable rules of evidence, and to insure that both parties are accorded a fair trial.  Nothing in the Bruce case decision should be interpreted as intimating otherwise.  However, prosecutors, both state and federal, must recognize that the availability of such a trial tactic does not circumvent their discovery obligations under Brady v. Maryland.  In fact, under California state law, a prosecutor’s intentional suppression of relevant Brady material, whether by way of a pretrial motion or otherwise, is punishable as a felony offense. (See Pen. Code § 141(c).)  In this particular case, on its face, there did not initially appear to be anything wrong with the government’s efforts to prevent the admission of evidence of misconduct committed by someone whose connection to the circumstances of the case appeared, at least at the time, to be tenuous at best, and whose credibility was seemingly irrelevant.  But as the case proceeded, Paul Hayes’ strong connection to the case—as the “some other dude” who may in fact have been the real culprit—became apparent.  We cannot speculate whether or not the government’s attorneys were fully aware of this before filing its in camera ex parte motion to keep Hayes’ history from being used by the defense.  But at whatever point Hayes’ close connection to the issues in this case became apparent, the appropriate measures should have been taken to provide the defense with the information they needed to stage a proper defense.  Brady requires no less.  The bottom line is that prosecutors cannot use the tactic of a pretrial written motion to skirt their discovery obligations under Brady, attempting to hide potentially exonerating evidence from the defense as well as the court.