A Primer on Prosecutorial Ethics, Brady v. Maryland, and Beyond

 

Robert C. Phillips

DDA (Ret.)

April, 2021

           

“(A prosecutor) . . . is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case.  (The prosecutor’s) . . . chief business is not to achieve victory but to establish justice. . . . ‘(T)he Government wins its point when justice is done in its courts.’”[1]

Indeed, the United States Supreme Court pointedly held over eight decades ago that a prosecutor;

“. . . is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”[2]

            And then again, the Supreme Court has observed that the “government’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.”[3]  Being every prosecutor’s responsibility to provide the defense with evidence favorable to the accused, it has been held that when in doubt as to the relevance of any particular piece of evidence, the prosecutor should err on the side of caution.  The High Court has thus noted that “the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable” and for that reason, “a prosecutor anxious about tacking too close to the wind” is to err on the side of disclosure in order to “justify trust in the prosecutor: and to “preserve the criminal trial . . . as the chosen forum for ascertaining the truth about criminal accusations.”[4]

Over the years, the above principles have been repeated by the courts time and time again.  Most recently, in a case where federal prosecutors appear to have forgotten their duty and obligations as representatives of the government, the Ninth Circuit Court of Appeal felt it necessary to remind us once again that, “‘[t]he prosecution is trusted to turn over evidence to the defense because its interest ‘“is not that it shall win a case, but that justice shall be done.”’”[5]

Then, at least in California, a perhaps still untrusting Legislature has imposed criminal sanctions on prosecutors who forget (or ignore) their ethical obligations, when the prosecutor “intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry.”  Felony sanctions are imposed for violating this clear rule.[6]  Even greater sanctions are imposed on a police officer who similarly tampers with evidence.[7]

The importance of the above principles cannot be over emphasized. It’s an issue of prosecutorial ethics, the concept behind which all prosecutors have a duty to at least be familiar—and be prepared to live by—as he or she exercises the powers given to him or her by the state.[8] And in fact, “tradition and experience justify (the) belief that the great majority of prosecutors will be faithful to their duty.”[9]  “In the absence of clear evidence to the contrary, courts presume that (public officers) have properly discharged their official duties.”[10]

But as we discuss below, this has not always been—nor does it continue to always be—the case.  And in fact, violations of a prosecutor’s ethical standards continue to periodically rear its ugly head where it seems one’s subconscious (or maybe conscious) need to win overshadows his or her common sense and (hopefully) innate ethical standards, clouding the prosecutor’s trial decisions, resulting in his or her unethical hiding of relevant evidence, thus depriving a criminal defendant of his or her right to a fair trial. 

This concept of a fair trial necessarily includes access by all parties to all the relevant evidence that is available.  Reminding us of this, the United States Supreme Court decided in 1963 the landmark case of Brady v. Maryland;[11] a decision that has profoundly affected prosecutorial standards of fair play, ethics, and simple justice, ever since.

Pre-Brady Decisions:

The waters in this area of the law had been tested for some time even before the Brady decision, but with more of a whimper than a bang.  In 1935, for instance, the U.S. Supreme Court in Mooney v. Holohan[12] considered the issue of a state prosecutor’s alleged intentional use of perjured testimony while hiding the evidence that would have impeached that testimony, and the state’s failure to provide any corrective judicial process by which a conviction so obtained could be set aside. 

The High Court ruled in Mooney that while the unfair trial tactics of a prosecuting attorney could conceivably constitute state action under the Fourteenth Amendment’s due process clause—a novel concept at the time—thus violating the United States Constitution, the Court did not agree with the lower courts that the state failed to have available a corrective judicial process, noting instead that (1) the prerogative writ of habeas corpus could have been used and (2) no state supreme court decision was cited to the Court holding that the state court lacked the power to issue a writ should a criminal defendant be deprived of his liberty in violation of the Fourteenth Amendment.  Holding that the inmate in this particular case, however, had failed to exhaust his state remedies, not having applied to the state court for a writ of habeas corpus,[13] the Supreme Court never got to the issue of what is to be done with a prosecutor, or the prosecutor’s case, when there’s evidence of the state’s intentional use of perjured testimony.

While Moony was really not very helpful, it at least broke the ice.

Almost a decade later, the Supreme Court again had the opportunity to consider the issue of what to do with a case where the prosecutor was alleged to have knowingly used perjured testimony and then hid evidence favorable to the defense.  In Pyle v. State of Kansas,[14] a state prisoner alleged via a writ of habeas corpus that his imprisonment was the result of a deprivation of rights guaranteed to him by the Constitution of the United States, given the prosecutor’s alleged unethical trial tactics.  The prisoner’s allegations of prosecutorial misconduct were neither refuted nor denied, but rather supported by an affidavit executed by one of the witnesses who had testified for the prosecution as well as by a letter from a former prosecutor.

The U.S. Supreme Court concluded that Pyle’s allegations, if true, were sufficient to constitute a deprivation of rights guaranteed by the Constitution and, upon being proven, would entitle him to be released from custody.  However, the truth of his allegations had not yet been determined despite the supporting evidence that that been submitted, requiring the case be remanded for an evidentiary hearing.[15]  Again, what to do with a prosecutor who is alleged to have engaged in the unethical, if not illegal, practice of purposely using perjured testimony and hiding potentially exonerating evidence was not discussed.

The opportunity to address the issue was again before the U.S. Supreme Court in a 1959 case—Napue v. Illinois[16]—where the State of Illinois had ruled that a habeas corpus petitioner, serving prison time for a murder conviction, was not entitled to relief despite allegations that a witness against him testified falsely when asked if he had received any promises or consideration in exchange for his testimony.  More importantly for purposes of this article, the prosecutor was alleged to have been well aware that the witness had lied, failing to take steps to correct the false testimony.

Ruling that the defendant’s Fourteenth Amendment due process rights had in fact been violated, the U.S. Supreme Court reversed.  In doing so, the Court held that the fact that the false testimony was limited to the issue of the witness’s credibility did not affect the general principle that false evidence may not be used to obtain a conviction. Also, admission into evidence of other testimony regarding the witness’s credibility did not remove the taint of the false testimony. Thus, the judgment was reversed.[17]  Again, however, consistent with earlier cases, no effort was made to deal with any sanctions that might be imposed upon the prosecutor himself for his complicity in such a constitutional violation.

But then along came Brady v. Maryland.

The Brady Rule:

The Brady decision itself is short and to the point.  The facts reflect a murder case where John Brady and a co-conspirator—Brady’s friend and companion, Charles Boblit—committed a robbery during which the victim was shot and killed.  With Brady being tried separately, his attorney—hoping to avoid Maryland’s death penalty (unsuccessfully, as it turned out)—attempted to convince the jury that although Brady was in fact present during the alleged robbery-homicide, it was co-defendant (and yet to be tried) Boblit who was the actual shooter with Brady being no more than a mere aider and abettor. 

Prior to trial, Brady’s attorney had requested that the prosecution allow him to examine Boblit’s extrajudicial statements. Although the prosecutor provided defense counsel with several of those statements, another statement in which Boblit admitted to being the shooter was withheld, not coming to defense counsel’s attention until after Brady had been tried, convicted, sentenced to death, and his conviction upheld on appeal.

In affirming an intermediate Maryland state court’s decision,[18] the Supreme Court had no problem in ruling “that suppression of this confession (by the prosecutor) was a violation of the Due Process Clause of the Fourteenth Amendment.”[19]

While the issues were a little more complicated than the ruling reflects (i.e., with extensive debate concerning whether only the penalty decision was subject to reversal, or the guilt verdict as well), the bottom line is that the case of Brady v. Maryland has forever imprinted on the law one basic rule:  “(T)he suppression by the prosecution of evidence favorable to an accused upon request (but see below) 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.”[20]

In reaching its decision, and while pulling some very telling language directly from the lower Maryland Appellate Court’s decision in this case, the United States Supreme Court announced the reasons for, and the concept behind, this rule:

“‘The United States wins its point whenever justice is done its citizens in the courts.’ (Fn. omitted[21]) A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile,’ to use the words of the (Maryland) Court of Appeals.”[22]  

            From here, as is generally the case anytime the U.S. Supreme Court establishes an important new legal principle, a myriad of seemingly never-ending new cases followed, fine-tuning and expanding what quickly became known as the “Brady rule.”  

The Need for a Request and the Broadening of the Brady Rule:

            It is noted that the Supreme Court limited Brady to evidence that the defense had previously requested. On its face, this appears to exclude evidence that although “favorable to the accused,” had not been expressly requested by the defense, and even if the existence of such evidence was known to the prosecutor.  It wasn’t long, however, before the Supreme Court began having second thoughts about this limitation, recognizing that the concepts of “due process” (as interpreted under both the Fifth—as applicable to federal prosecutions—and Fourteenth—as applicable to state prosecutions—Amendments) may be broader.

            In United States v. Agurs,[23] for instance, the Supreme Court first began to question the necessity of a prior request, recognizing, in effect, that the ultimate question is simply whether the defendant had received a fair trial.[24] The Supreme Court, two decades later in Kyles v. Whitley,[25] interpreted Agurs to mean that a defendant’s failure to request potentially favorable evidence “did not leave the Government free of all obligation.”[26] 

The Court in Kyles gleaned from Agurs three situations where a Brady claim might arise: 

1. “(W)here previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured . . . ;[27]” (fn. omitted) 

2. “where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence . . . ;”[28] or

3. “where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way, . . .” but “only when suppression of the evidence would be of ‘sufficient significance to result in the denial of the defendant’s right to a fair trial.’”[29]

Perhaps broadening the Brady rule a little more, in the Supreme Court’s subsequent decision of United States v. Bagley,[30] the Court determined that for Brady purposes, there is no difference between “exculpatory” (tending to indicate that the defendant is innocent[31]) and “impeachment” (challenging the credibility of a witness) evidence.  Both are included in the category of “Brady material.”        

The Supreme Court Bagley also abandoned the distinction between the second and third Agurs circumstances, i.e., a “specific-request” verses a “general” or “no-request” situation, holding that regardless of whether an actual request is made, evidence favorable to the defense is potentially material, resulting in constitutional error when suppressed by the government.[32] 

The Issue of Materiality:

            If the disputed evidence is not “material” to the issues, then the prosecution’s failure to reveal its existence to the defense is not a Brady violation.  Per the U.S. Supreme Court in the Bagley decision; “(I)f there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” then the evidence is “material.” A “reasonable probability” was defined by the Court as “a probability sufficient to undermine confidence in the outcome.”[33]

            The definition of “materiality” has been elaborated on by the California Supreme Court as well: “Evidence is material if there is a reasonable probability its disclosure would have altered the trial result.”[34] Put another way, the defendant must show that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”[35] “‘In determining whether there is a reasonable probability that disclosure of such evidence would have yielded a different outcome under Brady, ‘“‘the court must consider the nondisclosure dynamically, taking into account the range of predictable impacts on trial strategy.”’”[36]

“Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that (the) Brady (rule) was not satisfied is reversible without need for further harmless-error review.”[37]

It is the defense attorney’s burden, however, to make the “reasonable probability” connection between the missing evidence and the likelihood that its availability would have brought about a different result.  Failing to meet this burden, and if there is no evidence in the record to support such a conclusion, an appellate court must inevitably conclude that there was no Brady error.[38]

Continuing on with the issue of materiality, and subsequent to the decision in Brady, the Supreme Court had the opportunity in Giglio v. United States[39] to again review the effect of a prosecutor’s deliberate deception of the trial court and the jurors, as previously discussed by the Court in Pyle v. State of Kansas and Napue v. Illinois, above.  In Giglio, the defendant appealed a judgment from the United States Court of Appeals for the Second Circuit which had affirmed the district court’s denial of defendant’s motion for a new trial following a conviction for passing forged money orders.

During defendant’s trial, defense counsel asked a witness on cross-examination if any promises of leniency had been made to him, and the witness falsely answered “no;” no such promises had been made. The prosecution also represented that no such promises had been made to the witness. Upon learning that a promise not to prosecute the witness had in fact been made (albeit by a different prosecutor than the one who ultimately tried the case, and who may have been unaware of the offer), defendant moved for a new trial based upon this newly discovered evidence. The appellate court affirmed the trial court's denial of the motion. On certiorari, however, the High Court reversed and remanded, ruling that the prosecution’s failure to disclose the promise of leniency to the witness was an issue affecting the witness’ credibility, which was therefore material under the Brady decision. The suppression of material evidence violated due process and warranted a new trial whether it resulted from the prosecution’s negligence or deliberate deception.  The Supreme Court reversed the appellate court’s judgment and the trial court’s conviction of defendant, remanding the case back for a new trial.[40]

In another Supreme Court case discussing the issue of materiality—United States v. Agurs[41]—but coming to the opposite conclusion, the defendant—up until then the victim’s apparent girlfriend—had been convicted in a Washington D.C. federal case of murdering her boyfriend by repeatedly stabbing him with the boyfriend’s own knife.  The defendant claimed self-defense, arguing that the victim—with whom she had just completed an act of consensual sexual intercourse before killing him—had attacked her first, and that stabbing him was necessary in order to protect herself. 

Prior to trial, defense counsel failed to make any discovery request of the prosecutor and the prosecutor did not volunteer anything.  Had such discovery been made, defense counsel would have been aware of the very relevant fact that the victim had a significant criminal history which included convictions for assault and carrying a deadly weapon.  The jury—unaware of the victim’s character for violence—did not buy the defendant’s claim of self-defense, convicting her after deliberations of only 25 minutes.[42]

Upon discovering some three months later that the victim had a character for violence with a history of knife-related criminal offenses, defendant’s counsel filed a motion for a new trial.  The trial court rejected the government’s argument that the prosecutor did not have a duty to reveal relevant evidence absent a request by the defense.  However, after chastising the prosecution for coming up short in his Brady obligations, the judge denied defendant’s motion nonetheless, noting that the victim’s criminal history did not add much, if anything, to what the jury already knew about him.  The federal appellate court, disagreeing with the trial court as to the materiality of the victim’s character evidence, reversed the trial court’s ruling, holding that the evidence the prosecutor withheld was in fact material to the issues in the case, and that its nondisclosure required a new trial for the simple reason that the jury “might” have returned a different verdict had it been aware of that evidence.[43] 

On certiorari, the United States Supreme Court reversed the appellate court, agreeing with the trial court’s ruling that the prosecutor’s failure to reveal to defense counsel the victim’s prior criminal history, at least under the facts of this case, was not a material omission and thus did not constitute a due process violation.  In so ruling, the High Court set out the following standards for when a prosecutor is constitutionally required, or not required, to volunteer to the defense potentially exonerating evidence:

(a) A prosecutor does not violate the constitutional duty of disclosure unless his omission is sufficiently significant to result in the denial of the defendant’s right to a fair trial.[44]

(b) Whether or not procedural rules authorizing discovery of everything that might influence a jury might be desirable, the Constitution does not demand such broad discovery; and the mere possibility that an item of undisclosed information might have aided the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.[45]

(c) Nor is the prosecutor’s constitutional duty of disclosure measured by his moral culpability or willfulness; if the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.[46]

(d) The proper standard of materiality of undisclosed evidence, and the standard applied by the trial judge in this case, is that if the omitted evidence creates a reasonable doubt of guilt that did not otherwise exist, constitutional error has been committed.[47]

            Per Agurs and the other cases discussed above, it therefore comes down to an issue of “materiality.”  And for a particular piece of evidence to be found to be material, it must be shown that the evidence in question was of “sufficient significance to result in the denial of the defendant’s right to a fair trial.”[48]

The United States Supreme Court’s 2012 decision in Smith v. Cain[49] further illustrates the concept of materiality of withheld, potentially exonerating, evidence.

The defendant, Juan Smith, was implicated in a robbery/homicide case (with five dead victims) through the testimony of a single witness.  Although there were no other witnesses nor any physical evidence identifying Smith as the killer, he was readily convicted and sentenced to death.  Post-trial, Smith’s attorney was able to obtain for the first time the notes from a New Orleans detective involved in the case that contained statements by the lone eyewitness directly contradicting his in-court testimony.  Noting that evidence is “material” within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding might have been different, the Supreme Court found the detective’s notes to fit the bill.[50] 

Per the Smith Court, a “reasonable probability” does not mean that the defendant would more likely than not have received a different verdict had the evidence been disclosed, but only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.  The witness’s undisclosed statements as contained in the detective’s notes, all by themselves, was held to be sufficient to undermine confidence in the defendant’s guilt.  Failure to provide those notes to defense counsel prior to trial was therefore held to be Brady error, requiring reversal and a new trial.[51]

Most recently, the United States Supreme Court decided the Louisiana case of Wearry v. Cain,[52] where defendant was put on death row principally through the testimony of two witnesses.  The veracity of both witnesses, however, was seriously questioned by other evidence of inconsistencies and the contrary statements from others; all of which the prosecution failed to reveal to the defense.  The Supreme Court, on certiorari, reversed the Louisiana court’s findings as to the materiality of the unrevealed evidence and granted defendant a new trial.  In so ruling, the Court stated the rule about as succinctly as is can be, while summarizing the above described authority:

“‘[T]he 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, irrespective of the good faith or bad faith of the prosecution.’ Brady, supra, at 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215. See also Giglio v. United States, 405 U.S. 150, 153-154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (clarifying that the rule stated in Brady applies to evidence undermining witness credibility). Evidence qualifies as material when there is “‘“any reasonable likelihood”’” it could have “‘“affected the judgment of the jury.”’” Giglio, supra, at 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)). To prevail on his Brady claim, Wearry need not show that he “‘more likely than not’” would have been acquitted had the new evidence been admitted. Smith v. Cain, 565 U.S. 73, (75-76), 132 S. Ct. 627, 630, 181 L. Ed. 2d 571, 574 (2012) (internal quotation marks and brackets omitted). He must show only that the new evidence is sufficient to “‘undermine confidence’” in the verdict. Ibid.’”[53]

Material evidence favorable to the accused “includes evidence that would help the defendant impeach a witness.”  In so noting, the Ninth Circuit Court of Appeal, in its July, 2020, decision of United States v. Obagi,[54] held that while a trial court’s instructions to a jury to the effect that certain evidence is to be disregarded, is generally sufficient to undo the taint of the jury having been misled as to a witness’ credibility, there are instances when the “genie (is already) out of the bottle,” and, given the strength of the questioned testimony with the prosecution’s reliance upon it in closing arguments, telling the jury to disregard that particular witness’ testimony cannot be expected to be effective.[55]

In Obagi, during closing arguments, in a break between defendant Obagi and the co-defendant’s closings, a prosecutor from the U.S. Attorney's Office, otherwise not involved in this prosecution but who just happened to be there to watch the proceedings, recognized that a prosecution’s star witness had in fact received immunity in a separate mortgage fraud investigation, contrary to what was testified to during trial.  The trial prosecutors were alerted to this enormous oversight. The prosecution then notified the court and defense counsel about this witness’ prior immunity agreement, immediately disclosing both the agreement and the related investigative reports.  The trial court gave what it hoped to be curative instructions to the jury and allowed that case proceed onto verdict.

Convicted on all counts, it was held by the Ninth Circuit (in a split two-to-one decision) that because there was a reasonable likelihood that the previously undisclosed evidence impeaching a witness—although not intentionally withheld by the prosecution but belatedly provided nonetheless—could have affected the judgment of the jury, the defendants’ convictions for federal mortgage fraud had to be overturned.  The district court’s instruction to the jury to disregard the witness’s testimony did not fully cure the prejudice that resulted from the government’s admittedly unintentional Brady violation.  While the instruction informed the jury that the government had erred and that the jurors should disregard the witness’s testimony and subsequent argument by the prosecutor in support of her credibility, it did not tell the jury that the government’s powerful closing argument was premised on a false narrative; i.e., the witness’ reliability.  Nor did it explain why defense counsel had presented the case one way, only to learn afterwards that the truth was something else.[56]

The California courts are in accord on the overall issue of “materiality.”  In a First District Court of Appeals case—People v. Lewis[57]—where it was alleged that defendant had committed the crimes of evading[58] and auto theft,[59] the Court failed to find a Brady violation despite the prosecution having neglected to disclose pre-trial that the arresting officer had—subsequent to defendant’s arrest but before trial—been convicted of charges of burglary, elder abuse, and obtaining a controlled substance.  The offending officer was not used at trial; other witnessing officers testifying in his stead. 

In viewing the record on appeal, the Court concluded that it did not see a Brady violation in that the evidence of the arresting officer’s criminal misconduct, although egregious, was immaterial to defendant’s guilt; failing to undermine the Court’s confidence in the verdict.  Per the Court:  “It is simply not reasonably probable that the jury would have acquitted Lewis of either charge had it been presented with this evidence.”[60]

The Prosecutor’s Prior Knowledge and Breadth of Responsibility:

            State and federal prosecutors, naturally being concerned with what their legal and ethical obligations might be relative to providing defense counsel with a complete discovery package as required by Brady and its progeny, should certainly want to know how far that obligation extends, and when it is triggered.  Additional case law provides some guidance on this issue.

In Kyles v. Whitley, defendant was tried and convicted of murder in a car-jacking case where the 60-year-old female victim was shot and killed and her car stolen.  Defendant Curtis Lee Kyles became the primary suspect based upon information from an informant of questionable veracity, given his ever-changing story and apparent motivation for fabricating a false account of what had happened.  In fact, at trial, the defense centered on the theory that the informant was the actual killer and that his plan was to falsely accuse Kyles.[61] 

Prior to trial, Kyles’ defense counsel filed a lengthy discovery motion, asking for any   exculpatory or impeachment evidence. The prosecution responded that there was “no exculpatory evidence of any nature.” Contrary to this claim, the New Orleans Police Department did in fact have in its possession the following evidentiary items: (1) Six contemporaneous eyewitness statements taken by police following the murder, some of whom could not identify defendant as the killer; (2) records of the informant’s initial call to the police containing various inconsistencies; (3) a tape recording of the informant’s conversation with the investigating officers which also contained inconsistencies; (4) a typed and signed statement provided by the informant, yet again with inconsistencies; (5) a computer printout of license numbers of cars parked at the murder scene which did not include the license number for Kyles’s car; (6) an internal police memorandum calling for the seizure of Kyle’s rubbish after the informant had suggested that the victim’s purse might be found there, the defense being that the informant had planted that (and other) evidence; and (7) evidence linking the informant to other unrelated crimes at the murder scene and to the unrelated murder of a separate, earlier victim.[62]

On certiorari to the United States Supreme Court, Kyles’ conviction was reversed, remanding the case back for a new trial.  The substance of the Court’s decision was based upon the “cumulative effect” of all the potentially exonerating evidence suppressed by the government.  It was also held that the prosecutor remained responsible for gauging that effect, whether or not the evidence in issue had been provided to him by the police.  “(T)he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith . . .), the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.”[63]

How far the relevant breadth of a prosecutor’s responsibility extends can also be an issue.  In discussing what other agencies or individuals from whom the prosecutor is responsible for collecting relevant Brady material, references have been made to the “prosecution team,” referring to different agencies often (but not necessarily) within the same government entity, held to include both investigative and prosecutorial personnel.[64]

As an example, it was held in the California Supreme Court case of People v. Whalen[65] that a Department of Justice criminalist who participated in the investigation of a homicide conducted by the Stanislaus County Sheriff's Department and prosecuted by the Stanislaus District Attorney’s Office—the criminalist making sketches, taking photographs, collecting ballistics evidence, and reconstructing the trajectory of the shot that killed the victim—was a part of the prosecution team. The notes he made and photographs he had taken, therefore, were conceded to be discoverable under Brady even though the prosecutor himself was unaware of their existence.[66] 

However, a line has been drawn when the relevant information, previously unknown to the prosecutor, is possessed by either a witness or even another governmental agency that has no connection to the investigation or prosecution of the criminal charges against the defendant;[67] in other words, not a part of the “prosecution team.”

For instance, it is not a totally uncommon situation for a witness to volunteer testimony concerning something that may be potentially harmful to the defense or, perhaps, the defendant’s character, where the prosecutor was previously unaware that the witness would so testify and/or otherwise did not have any prior knowledge of the occurrence about which was testified.  As an example, and again looking at the case of People v. Whalen, a civilian witness testified at trial to having been raped by defendant on some prior date. Unaware of the rape, or that the witness would so testify, the prosecutor was held not to be responsible for a Brady violation for failing to provide the defense with any pre-trial discovery concerning that crime.[68] The witness, clearly, was not a part of the prosecution team.

 In another California Supreme Court decision—People v. Zambrano;[69] a capital murder case—the Court limited a prosecutor’s responsibility for finding and making available potentially exonerating evidence to when that evidence is possessed by “others acting on the government’s behalf.”[70]

In Zambrano, the potential evidence at issue was a letter from the defendant’s sister in which she questioned her brother’s mental stability, and which was mailed to a deputy sheriff at the jail where defendant was housed pending trial.  The prosecution (although having received similar letters from the sister) had no personal knowledge of the deputy sheriff’s letter.  The California Supreme Court ruled that the jailer—not being involved in the investigation or prosecution of defendant’s capital case—was not part of an agency subject to either the statutory (Evid. Code §§ 1054 et seq.) or constitutional (Brady v. Maryland) duty of disclosure.[71]  Per the Court: “‘(T)he prosecution cannot reasonably be held responsible for evidence in the possession of all government agencies, including those not involved in the investigation or prosecution of the case. . . .’” (Italics in original)[72]  Again, another law enforcement agency, under these circumstances, is not a part of the prosecution team.

Similarly, it was held by California’s Fourth District Court of Appeal in People v. Aguilera,[73] a robbery-carjacking case, that the defendants’ constitutional rights to due process, confrontation, and compulsory process did not require dismissal of the defendants’ state prosecution based upon the federal Drug Enforcement Administration’s (DEA’s) refusal to produce potentially exculpatory evidence in the possession of a federal agency.  This is because, aside from being held to be immaterial, the prosecution did not actually or constructively possess the evidence possessed by the DEA.

Consistent with the case authority as cited above, it was held in Aguilar that under Brady and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potentially impeaching evidence. But that duty extends only to evidence known to others acting on the prosecution’s behalf, including the police. Thus, the prosecution is responsible not only for evidence in its own files but also for information possessed by others acting on the government’s behalf (i.e., the prosecution team) that was gathered in connection with the investigation.

Thus, the prosecution cannot reasonably be held responsible for evidence in the possession of all governmental agencies where those other agencies were not involved in the investigation or prosecution of the case.  A prosecutor does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. Thus, information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team. The prosecutor does not have the duty to search for or to disclose such material.  In Aguilar, as a result, it was held that the DEA’s refusal to produce potentially exculpatory evidence did not deprive defendants of a fair trial because the DEA was not working on behalf of the prosecution and was not part of the investigation team.[74]

 The Ninth Circuit Court of Appeal has chimed in on this issue as well.  In United States v. Cano,[75] defendant argued that the government violated his rights under both Brady and Federal Rule of Criminal Procedure 16 (requiring the prosecution to make available to the defendant potentially exonerating evidence within its “possession, custody, or control;” see below) when it failed to turn over certain information that he had requested from the FBI and DEA.  The Ninth Circuit disagreed. 

Although conceding that the Court has occasionally presumed that a prosecutor had access to an agency’s files where the prosecutor actually knows of and obtains exculpatory information from that agency, even if the agency was not involved in the investigation or prosecution, generally, the prosecutor’s obligation to provide exculpatory evidence does not extend so far.  The prosecution’s responsibility for providing such evidence is limited to information possessed by other federal agencies that actually participated in the same investigation of the defendant.  In this case, neither the FBI nor the DEA was involved in defendant’s case.[76]

Modern Concept of What Constitutes “Brady Error:”

            As a result of the above, as the theory has developed over the years, it is now recognized that “(t)here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”[77]  (Not mentioned is the restriction that the information must be possessed by someone, or some entity, who is a part of the so-called “prosecution team,” as discussed above.) 

            The California Supreme Court, bound by Brady and its progeny as dictated by the U.S. Supreme Court, while citing the above cases and more, has summarized the rules as follows:

“The federal due process clause prohibits the prosecution from suppressing evidence materially favorable to the accused. The duty of disclosure exists regardless of good or bad faith, and regardless of whether the defense has requested the materials. (Citations omitted.) The obligation is not limited to evidence the prosecutor’s office itself actually knows of or possesses, but includes ‘evidence known to the others acting on the government’s behalf in the case, including the police.’ (Citation omitted.)”

“For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. (Citations omitted.) Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. (Citation omitted.) Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. (Citations omitted.) Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. (Citation.)”[78]

There is a “duty on the part of the prosecution, even in the absence of a request, therefore, to disclose all substantial material evidence favorable to an accused, whether such evidence relates directly to the question of guilt, to matters relevant to punishment, or to the credibility of a material witness.”[79]

Summarizing the above, it can be concluded that there are at the very least six separate categories of “favorable” evidence under Brady, and subject to disclosure:

• Evidence mitigating punishment.[80]
• Evidence directly opposing guilt. E.g.: A witness belatedly (during jury deliberations, for instance) coming forward saying that he saw someone else commit the crime.[81]
• Evidence indirectly opposing guilt. E.g.: Evidence of other similar crimes committed by another person, circumstantially proving that this other person, and not the defendant, committed the present offense.[82]
• Evidence supporting defense testimony. E.g.: Information that tends to reestablish the credibility of defense witnesses.[83]
• Evidence supporting a defense motion that would weaken the prosecution’s case. E.g.: Evidence relevant to a defense motion to suppress.[84]
• Evidence impeaching a prosecution witness’s credibility, such as:

 

1. Contrary, conflicting statements.
2. False Reports.
3. Inaccurate statements and reports.
4. Other evidence contradicting prosecution witness statements and/or reports.
5. Promises or offers of leniency, or other inducements, express or implied.
6. Felony convictions.
7. Misconduct involving moral turpitude.
8. Misdemeanor convictions involving moral turpitude.
9. Pending criminal charges.
10. Parole or Probation status.
11. Reputation for untruthfulness.
12. Alcohol and/or drug use.
13. Gang membership.
14. Bias toward the defendant.

There are also certain categories of evidence that we can confidently conclude are not considered to be subject to disclosure under Brady even though a prosecutor may be required to provide in discovery anyway as a prerequisite to using it in evidence.  Such evidence would include:

• “Rumor” and “speculation” is not evidence that must be revealed pursuant to Brady.[85]

• The Brady rule does not apply to “inculpatory” evidence; i.e., evidence against a defendant, or evidence tending to convict.[86]
• Nor does it include “neutral” evidence; i.e., evidence that tends neither to convict nor exonerate the defendant.[87]
• Brady does not include “immaterial” evidence; i.e., evidence not reasonably probable to produce a different result.[88]

Brady’s Relationship to California’s Statutory Requirements and the Pitchess Motion Procedure:

California further supplements the Brady rules with various statutory discovery requirements as contained in the Evidence Code.[89] As noted by the California Supreme Court in People v. Zambrano:

“(California’s) reciprocal discovery statute independently requires the prosecution to disclose to the defense, in advance of trial or as soon as discovered, certain categories of evidence ‘in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies.’ ([Evid. Code] § 1054.1.) Evidence subject to disclosure includes ‘[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged’ (id., subd. (c)) and ‘[a]ny exculpatory evidence’ (id., subd. (e)). Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. ([Evid. Code] § 1054.7.)”[90]

However, the prosecutor’s duties of disclosure under the due process clause are wholly independent of any statutory scheme of reciprocal discovery. “The due process requirements are self-executing and need no statutory support to be effective. . . . (I)f a statutory discovery scheme exists, these due process requirements operate outside such a scheme. The prosecutor is obligated to disclose such evidence voluntarily, whether or not the defendant makes a request for discovery.”[91]

            It is not uncommon for evidence alleged to be material to a defendant’s guilt or innocence—potentially discoverable under Brady—to be information related to citizens’ complaints or other negative information concerning specific law enforcement officers and, as such, secreted away in the officers’ confidential personnel files (as defined in Pen. Code § 832.8(a)), generally protected from disclosure under Penal Code § 832.7(a).[92]  California’s procedure for obtaining access to such information, irrespective of its confidentiality, is pursuant to what has become known as a “Pitchess motion,” as decided in the California Supreme Court decision of Pitchess v. Superior Court. [93]  “Traditionally, Pitchess motions seek information about past complaints by third parties related to accusations of the use of excessive force, violence, dishonesty, or the filing of false police reports, as contained in the officer’s personnel file.”[94] The procedures for filing a Pitchess motion and gaining access to an officer’s confidential personnel files are contained in Evidence Code sections 1043 through 1047.

            For some time, prosecutors were unsure how to satisfy their Brady obligations while also complying with the statutory confidentiality restrictions contained in Penal Code §§ 832.7 and 832.8, and the procedural requirements under the Evidence Code, as mandated under Pitchess.  The California Supreme Court finally solved (or at least discussed) this dilemma in 2015 in the case of People v. Superior Court (Johnson).[95]

The major procedural difference between Brady and Pitchess is that under Brady, the prosecution must produce any “material evidence favorable to the defense” even though no request for such information has been made.  Under Pitchess, it is the defense’s obligation to affirmatively seek discovery of “potentially exculpatory information” in an officer’s personnel records which a court will grant only after the defense makes a “threshold showing” of the existence of such information and its relevance to the instant case, following the procedures as set out in Evidence Code §§ 1043 et seq.[96]  “The relatively relaxed standards for a showing of good cause under [Evidence Code] section 1043, subdivision (b)—‘materiality’ to the subject matter of the pending litigation and a ‘reasonable belief’ that the agency has the type of information sought—insure the production for inspection of all potentially relevant documents.”[97] 

The issue presented in People v. Superior Court (Johnson) was who—the prosecution or the trial court—has the responsibility for examining an officer’s confidential personnel file for Brady material. 

The California Supreme Court in Johnson overruled the trial court’s finding that P.C. § 832.7(a) was unconstitutional to the extent that it prevented the prosecution from examining a police department’s confidential personnel files.  To the contrary: “(T)he prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases.” If the prosecution wishes to obtain information from such files, “it must follow the same procedures that apply to criminal defendants, i.e., file a Pitchess motion, in order to seek information in those records.” [98]   

Whenever the prosecution is put on notice, as it was in the Johnson case, that there is information that is potentially favorable to the defendant in an officer’s personnel file, it fulfills its Brady obligations not by rummaging through such files itself, nor by filing a motion with the trial court to review the files (as was done in Johnson), but rather by merely informing the defense of what the police department informed the prosecutor; i.e., that the specified records might contain exculpatory information.  This way, a defendant may then decide for himself whether to seek discovery, following the Pitchess (Evid. Code §§ 1043, 1045) procedures if he does.  The information the police department has provided to the prosecution, as it is relayed to the defense, together with some explanation of how the officers’ credibility might be relevant to the case, satisfies the threshold showing a defendant must make in order to trigger judicial review of the records under Pitchess.  When such a showing is made, the trial court is then obligated to sit down with the law enforcement custodian of such records, reviewing those records itself for any relevant, discoverable information, which it may then provide to the defense subject to any protective orders necessary to protect the officer’s privacy interests to the extent possible.[99]

This, of course, puts the onus on law enforcement to notify the prosecution when a police officer witness in a pending criminal litigation has potential Brady material in his or her confidential personnel file.  The California Supreme Court, in the case of Association for Los Angeles Deputy Sheriffs v. Superior Court,[100] has authorized law enforcement to make such a notification, holding that while a police department’s list of officers with Brady information in their respective personnel file is confidential, a law enforcement agency does not violate that confidentiality by sharing with prosecutors the identity of an officer on its so-called “Brady list” who is a potential witness in a specific pending case. 

Therefore, a law enforcement agency may (and under Brady, must) disclose to the prosecution the name and identifying number of an officer who is a potential witness in any pending criminal litigation, along with the fact that that officer may have relevant exonerating or impeaching material in his or her confidential personnel file, without the prosecution first having had to comply with the statutory procedures (Evid. Code §§ 1043-1047; a “Pitchess motion”) for the release of such information.[101]

A similar problem occurs when the potential Brady material is contained in Juvenile Court records; an issue that was recently addressed by California’s First District Court of Appeal (Div. 2) in People v. Stewart.[102]

Citing U.S. Supreme Court authority,[103] the Stewart Court noted that a state’s interest in the confidentiality of certain records does not take precedence over a criminal defendant’s Sixth and Fourteenth Amendment rights to discover favorable evidence.  An in camera review of such records by the court is sufficient to protect the interests of both the defendant with a pending criminal case and who is seeking access to such records, as well as the person who’s confidential records are being sought.[104] 

As noted in Stewart, when it is determined that Brady information is contained in a witness’ juvenile court records, for instance, Pitchess does not apply.  Rather, the Welfare and Institutions Code, section 827, puts the onus for protecting from disclosure, and authorizing exceptions, on the Juvenile Court as opposed to an adult trial court.[105] 

And although Pitchess does not apply to the juvenile records situation, the procedures for a criminal defendant to obtain Brady information from those records are similar.  When a criminal defendant files a section 827 petition with the Juvenile Court requesting that the court review a confidential juvenile file—the petition to include information establishing a reasonable basis to support the defendant’s claim that the file contains Brady exculpatory or impeachment material—the Juvenile Court must then conduct an in camera review, releasing only those records the court finds to be relevant to the Brady issue.[106]

As for the prosecutor’s Brady obligations, it is noted that although section 827 authorizes a prosecutor to inspect juvenile files without a court order, neither he nor any other person who is entitled to inspect such records without a court order is permitted to disseminate confidential information contained in juvenile files to a person not so authorized.[107]  Instead, others (such as the defense counsel in Stewart) are required, as noted above, to take the initiative and file a petition with the Juvenile Court, asking for permission to obtain access to the records in issue.[108]

Upon learning that relevant Brady material is held in a witness’ juvenile court records, the prosecutor meets his Brady obligations merely by informing the defense of this fact.  “(T)the government’s Brady obligations with respect to juvenile records are satisfied if the prosecutor informs the defendant that there is Brady material in the relevant files and the defense can then avail itself of juvenile court review of the relevant files under section 827 to identify and turn over to the defense any exculpatory or impeachment material.”[109]

Federal law enforcement officers and federal prosecutors do not have to be concerned with California’s statutory requirements, but rather have their own statutes with which to contend; specifically, Federal Rule of Criminal Procedure 16.  Under Rule 16, the government, upon request, has an obligation to turn over any documents within its “possession, custody, or control” that are “material to preparing the defense.”[110] Similar to the procedures as set out under Pitchess and the California Evidence Code, in order to trigger this requirement, the defendant “must make a threshold showing of materiality, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the defense.”[111]  It has also been held that because “[i]nformation that is not exculpatory or impeaching may still be relevant to developing a possible defense,” Rule 16 is “broader than Brady.”[112] 

The Issue of the Defense Counsel’s Responsibilities:

It is a general rule that a criminal defendant cannot complain on appeal—after conviction—that the prosecution failed to provide him with all the potentially relevant Brady material if he or she was aware of the factual basis for such a claim at a time when the missing material could have been used—e.g., before or during trial—and failed to seek it out.[113] Such a “procedural default” will generally preclude a belated due process violation claim, thus preventing an unscrupulous defense attorney from purposely manufacturing an appealable issue.

This was the issue in Strickler v. Greene;[114] a capital murder case.  Information relevant to the credibility of an important government witness was contained in the files of the Harrisonburg, Virginia, Police Department, where the witness had been interviewed several times. This information never made it to the defense counsel who failed to file a discovery motion. 

The lack of a formal discovery motion, however, was not because defense counsel wasn’t diligent in his duties as defendant’s attorney.  In this particular jurisdiction, the prosecutor maintained an “open file” policy, allowing defense counsel access to everything the prosecutor had, negating any reason to file for discovery.  But as it turned out, some of the information in the Harrisonburg P.D.’s file, reflecting several interviews with this witness which contained some important impeachment-worthy inconsistencies, never made it to the prosecutor’s file.

After several trips up and down the appellate ladder between the trial court, the Virginia Supreme Court, and the federal Fourth Circuit Court of Appeal, in both direct and collateral appeals, and during which the existence of the witness’ previously undisclosed interviews was finally discovered, the U.S. Supreme Court eventually concluded that the defendant/petitioner was successful in establishing a valid justification for failing to raise a Brady claim prior to filing for federal habeas relief.  Defendant thus avoided a “procedural default” ruling—which otherwise would have prevented him from receiving any appellate relief—by proof of all the following elements: (a) The prosecution did in fact withhold exculpatory evidence (being responsible for what was in the police files whether the prosecutor was aware of it or not); (b) petitioner reasonably relied on the prosecution’s open file policy as fulfilling the prosecution’s duty to disclose such evidence; and (c) the Commonwealth confirmed petitioner’s reliance on the open file policy by asserting during state habeas proceedings that petitioner had already received “everything known to the government,” such assertion later found to be false.”[115]

The Court in Strickler also noted that had it been shown that defendant’s counsel failed to seek the Brady material at issue here for “tactical reasons” (presumably meaning that he did so for the purpose of manufacturing an appellate issue), he might not have been allowed to later avoid a procedural default finding.[116] There being no evidence that such a tactical motivation existed in this case, defendant was entitled to raise the Brady issue on appeal.  Also, the Court held that it might not even be necessary for defendant to prove all three of the above listed factors, but declined to decide this issue since he had in fact done so.[117]

Sanctions for A Brady Violation:

A quick review of all the above cases shows that typically, a Brady violation results in the reversal of the affected defendant’s conviction with the matter then returned to the trial court for retrial.  Should a Brady violation be discovered before conviction, however, the error may often be cured by providing the defense with the missing information, delaying the continuation of the trial while the defense is given the opportunity to review such information, and/or curative instructions are given to the jury[118] in order to undo the prejudice caused to the defense by the violation.[119]

However, in extreme situations, the prosecution may find its case dismissed out from underneath itself, possibly with prejudice.  The recent Ninth Circuit Court of Appeal’s case of United States v. Bundy[120] illustrates a situation where the trial judge felt it necessary to grant the defendants’ mistrial motion and then, despite untold hours of investigative and prosecutorial effort, determined that the government was not to be given a do-over after repeated Brady violations.  Given the importance of the Bundy decision, a detailed description of the facts and circumstances of this case is necessary.

In Bundy, a Nevada rancher named Cliven Bundy, who raised and marketed cattle, along with two of his sons and sixteen other persons, were charged by indictment in federal court with obstructing federal law enforcement officials in their attempt to carrying out lawful court orders.  With the case being highly publicized at the time, the whole unfortunate situation was precipitated by Bundy’s twenty-year refusal to pay federal grazing fees for using what was alleged by the government to be federal land (a contested issue).  The Bureau of Land Management (BLM), assisted by the Federal Bureau of Investigation (FBI) and the National Park Service, attempted in April, 2014, to impound Cliven Bundy’s cattle in lieu of paying what the government contended he owed, resulting in an armed, highly volatile, confrontation. 

BLM’s plan, with court orders in hand, was to escort private contractors tasked with taking possession of Bundy’s cows in and out of the area each day as the cows were rounded up and impounded pending their sale.  In preparation for this massive effort, BLM established a number of observation posts, strategically placed at elevated positions around the Bundy ranch, where the occupying agents were outfitted with rifles, binoculars, spotting scopes, night-vision goggles, thermal-imaging devices, and, apparently, video recording devices.  BLM also established a “Tactical Operations Center,” a “Forward Operating Base,” a media site, and even a “free speech area.”  The Bundys responded to the government’s presence around their house by inviting a number of anti-government militia groups, eventually numbering up to 400 people—all armed with various types of firearms—to assist in the defense of the Bundy’s cows and property.

It ultimately came down to a very tense situation where armed conflict was imminent.  Heavily outnumbered and interested in avoiding bloodshed, the federal officials finally called off the operation, leaving the already impounded cows for Bundy and his followers to retake possession.[121] 

As a result, the U.S. Attorney’s Office charged Bundy and others in federal court with obstructing federal law enforcement officials in their attempt to carry out lawful court orders.  The prosecution alleged, as a part of its case, that the defendants recruited armed followers by intentionally deceiving those followers into believing that the Bundys feared for their lives, falsely claiming that armed government snipers had surrounded their ranch.  The government denied the use of any so-called “snipers.” 

In preparation for trial, the defendants filed a discovery motion asking for any potentially exculpatory evidence under Brady v. Maryland, including evidence that might tend to negate the government’s scienter (i.e., guilty knowledge) theory.  To combat the government’s allegation that Bundy had lied about being in fear of being surrounded by snipers, the defendants sought materials showing the presence of armed officers in tactical gear taking positions around the Bundy Ranch. The defense also asked for any evidence that supported their claim that the impoundment operation was “over-militarized.”

Denying the use of snipers, or that the BLM was “over-militarized” in its actions at the scene, the government obtained a favorable ruling on a motion in limine limiting the defendants’ ability to introduce evidence regarding the affirmative defense of self-defense against government actors.  And then when the trial began, the government prosecutors’ opening statements emphasized the argument that the Bundys and their co-conspirators had intentionally spread misinformation about the BLM being a “large Army that was coming to attack them” and to being surrounded by snipers, such misinformation being manufactured for the purpose of inflaming supporters.[122]

Once the trial itself got underway, it quickly became apparent that the government had been withholding important relevant evidence.  In a series of mid-trial evidentiary hearings, it was discovered for the first time that the BLM had set up video surveillance (previously denied to exist) of the Bundy property and that FBI and BLM tactical units, armed with AR-15 rifles, were used, admitting for the first time that “heavily armed patrols” surrounded the Bundy property.  FBI written reports, previously undisclosed, were provided as a result of these hearings, indicating that the government’s response at the Bundy Ranch did in fact include SWAT-type tactics and armed snipers.[123]

As trial continued, testimony revealed that even more documents had been withheld by the government.  During the pretrial discovery phase, the defense had requested copies of “all the threat assessments prepared in this case.”[124] In response, the government provided one threat assessment which had been prepared in 2014.  During testimony, however, a prosecution witness revealed for the first time that a 2012 threat assessment existed.  It then came to light that other threat assessments had also been withheld from the defense—several of which had been prepared for a possible impoundment action in 2012, and which the prosecution admitted to having all along. These assessments rated Bundy as having a low-to-moderate risk of violence; an admission that Bundy might have been able to use at trial.[125]

The government also produced new evidence in the form of Nevada Joint Terrorism Task Force reports, describing the surveillance of Bundy’s home and the presence of armed officers. One such report noted the presence of SWAT personnel and the use of a camera with supporting technicians, previously denied by prosecutors to have existed.  The report also detailed events leading to the FBI’s placement of the camera.[126]

By this time, the frustrated federal district court trial judge had had enough.  A hearing was finally held before the completion of the trial at which the court declared a mistrial.  Upon making a very thorough record, the trial court judge later dismissed the indictment, such dismissal being with prejudice, thus precluding any government attempts to retry the defendants.  The court’s reasoning centered on the fact that the government had failed to timely disclose most of the evidence at issue, that the government’s failure was “willful,” and that the government’s Brady violations, being “so egregious and prejudicial” that the defendants could no longer receive a fair trial.  For these reasons, the indictment needed to be dismissed with prejudice.[127]

In deciding that the dismissal was to be “with prejudice,” the trial court “found ‘that retrying the case would only advantage the government by allowing [it] to strengthen [its] witnesses’ testimony based on the knowledge gained from the information provided by the defense and revealed thus far.’ The court also highlighted ‘the prosecution's failure to look beyond the FBI file that was provided’ for additional relevant information constituted a ‘reckless disregard for its [constitutional] obligations to learn and seek out favorable evidence.’ The court characterized the government’s ‘representations about whether individuals were technically “snipers” or not “snipers” [as] disingenuous’ given that the FBI’s own documents referred to government ‘snipers' in the operation. It concluded that the FBI’s failure to produce these documents was ‘flagrant prosecutorial misconduct in this case even if the documents themselves were not intentionally withheld [by the U.S. Attorney’s Office] from the defense.’ Thus, it decided that no lesser sanction was available because the government’s ‘conduct has caused the integrity of a future trial and any resulting conviction to be even more questionable.’ Retrial ‘would only advantage the government.’ The court dismissed the indictment with prejudice as a remedy for a due process violation and under its supervisory powers.”[128]

On the government’s appeal to the Ninth Circuit Court of Appeal, it was held that the district court judge’s decision to dismiss the indictment was within his discretion to do so.  In so ruling, the Court noted that a district court may dismiss an indictment for government misconduct for one of two reasons, each with its own standard; (1) because it finds a serious due-process violation or (2) because it concludes that dismissal is warranted under its supervisory powers.

“Dismissal for a due-process violation requires the government’s conduct to ‘be so grossly shocking and outrageous as to violate the universal sense of justice.’”[129] The Court declined to decide whether this rule applied here, however, finding it enough to rule that the court’s supervisory powers justified the court’s decision.

As for this second justification for a dismissal—a judge’s supervisory powers—dismissal is appropriate if necessary “(1) to implement a remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and (3) to deter future illegal conduct.”[130] More important to the issue here, “dismissal with prejudice” under a court’s supervisory powers is warranted when the prosecution’s misconduct (1) constitutes “flagrant misbehavior and (2) substantial prejudice” is found.  The instant case, per the court, fits all of these necessary elements, reviewing the significance of each piece of evidence belatedly provided by the government,[131] a review of which we need not belabor here.

The bottom line as illustrated by the Bundy case is that Brady error does not require that the prosecution act with premeditation and forethought.  It can be completely unintentional, and still result in a reversal of a defendant’s conviction or other sanctions.  But when a Brady violation is intentional, and significantly egregious, the prosecution is risking the complete dismissal of its case; possibly—as in the Bundy case—with prejudice.

Aside from the potential of a dismissal with prejudice, the California Legislature has also added insult to injury by enacting penal sanctions, applicable where a Brady violation is found to be intentional,.  Perhaps not satisfied that the ethical principles reflected in the above case law provide sufficient motivation for prosecutors to appreciate the importance of their legal discovery obligations, as well as the constitutional standards under the twin due process clauses contained in the Fifth and Fourteenth Amendments, the California Legislature amended Penal Code section 141, becoming effective almost five years ago on January 1, 2016, adding a new subdivision (c) which, as amended, reads as follows:

“A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years.”[132]

This legislation assumes prosecutors have to be reminded of their professional duties relevant to insuring that criminal defendants have, at the very least, pre-trial access to any and all evidence relevant to the prosecution at hand, both pro and con—whether the at-issue evidence relates to a defendant’s guilt or to his ultimate punishment—in a prosecutor’s possession as well as the possession of any law enforcement agencies and/or personnel working with the prosecution, attaching penal sanctions to a violation.  Whether or not this new legislation is over-kill may be subject to some debate.  But the fact is that it is there, and cannot be ignored.

Prejudice:

            Finding a Brady violation does not necessarily require that sanctions be imposed.  The violation must first be found to have been “prejudicial;” i.e., that the “admission of the suppressed evidence would have created a reasonable probability of a different result.”[133] 

“In considering whether the failure to disclose exculpatory evidence undermines confidence in the outcome, judges must undertake a careful, balanced evaluation of the nature and strength of both the evidence the defense was prevented from presenting and the evidence each side presented at trial.”[134]

In cases where the evidence of the defendant’s guilt is substantial, and the probability of a jury reaching a different result had the missing evidence been heard is unlikely (or “reasonable”), then reversal of the defendant’s conviction is not necessary, despite the Brady violation.[135]

Conclusion:

            It is not subject to debate that Brady v. Maryland is one of the most significant United States Supreme Court decisions ever to be decided, at least in the area of criminal law.  Helping to enforce a criminal defendant’s constitutional right to a fair trial, it imposes significant legal and ethical standards on prosecutors at all levels that cannot be ignored.  Prosecutors must be at the very least familiar with, if not completely conversant in, the legal standards imposed by Brady and its progeny, as discussed above.  Failure to do so can obviously have significant consequences for both the case being litigated as well as the prosecutor’s professional future. 

It is suggested that despite the above general rules, it is perhaps wise for a prosecutor, when in doubt, to leave the ultimate decision to the trial court of what is, and what is not, discoverable Brady material.  When a particular fact or piece of evidence is known, but of questionable value from a Brady standpoint, it is always better to err on the side of caution and provide discovery to the defense and the trial court anyway, later challenging its admissibility on the record before the court if it is an issue, and letting the trial judge made the ultimate decision.  To attempt to make this important decision by oneself, purposely withholding it from the prosecution’s discovery package provided to the defense, risks being later adjudged to have violated Brady and being subjected to all the sanctions associated with such a violation.

Similarly, it is equally important for prosecutors to impress upon all law enforcement agencies and any their officers who may be determined to be a part of the so-called “prosecution team” that they are absolutely not authorized to be making the decision as to what the defense is entitled to, or not entitled to, under Brady.  Law enforcement investigators are neither trained, nor sufficiently competent from a legal standpoint, to be making this decision despite what they themselves may believe.  The assigned prosecutor, therefore, must be given full access to law enforcement’s investigative files (in that he or she will be held to the knowledge of what is in there) so that an educated decision can be made as to what the defense is entitled to in discovery.  And even then, as noted above, in all but the most obvious cases, the prosecutor should allow the trial court to make the decision as to what is discoverable under Brady.

Following these rules should virtually eliminate any possibility that the People’s case might be compromised under Brady, and that the prosecutor him- or herself will be subject to some very uncomfortable civil or criminal sanctions. 

 

[1]               Brady v. Maryland (1963) 373 U.S. 83, 87, fn. 2 [10 L.Ed.2nd 215; 83 S.Ct. 1194], referencing Judge Simon E. Sobeloff’s comments, made when he was Solicitor General (i.e., the lawyer responsible for arguing cases for the Government before the Supreme Court), in addressing the duties of a solicitor general before the Judicial Conference of the Fourth Circuit Court of Appeal on June 29, 1954, and quoting his predecessor, Solicitor General Frederick William Lehmann.  “Prosecutor” has been substituted for “solicitor general;” the two being substantially the same from an ethical standpoint.

[2]               Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314; 55 S.Ct. 629]. 

[3]               Turner v. United States (2017) __ U.S. __ [137 S.Ct. 1885, 1893; 198 L. Ed.2nd 443].

[4]               Kyles v. Whitley (1995) 514 U.S. 419, 437-440 [131 L.Ed.2nd 490; 115 S.Ct. 1555]. 

              See also United States v. Bruce (9th Cir. 2021) 984 F.3rd 884, 896.

 

[5]             United States v. Bundy (9th Cir. 2020) 968 F.3rd 1019, 1023; citing Amado v. Gonzalez (9th Cir. 2014 758 F.3rd 1119, 1133-1134; which in turn quotes Strickler v. Greene (1999) 527 U.S. 263, 281 [119 S.Ct. 1936; 144 L.Ed.2nd 286].

[6]               Cal. Pen. Code § 141(c).

[7]               Cal. Pen. Code § 141(b).

[8]               See Gov’t. Code §§ 26500 et seq.

[9]               United States v. Mezzanatto (1995) 513 U.S. 196, 210 [130 L.Ed.2nd 697; 115 S. Ct. 797]; quoting

              Newton v. Rumery (1987) 480 U.S. 386, 397 [94 L.Ed.2nd 405; 107 S.Ct. 1187].

[10]             United States v. Chemical Foundation, Inc. (1926) 272 U.S. 1, 14-15 [71 L.Ed. 131; 47 S.Ct. 1].

[11]             Brady v. Maryland, supra.

[12]             (1935) 294 U.S. 103 [79 L.Ed. 791; 55 S.Ct. 340].

[13]             Id., at pp. 112-113.

[14]             (1942) 317 U.S. 213 [87 L.Ed. 214; 63 S.Ct. 177].

[15]             Id., at p. 216.

[16]             (1959) 360 U.S. 264 [3 L.Ed.2nd 1217; 79 S.Ct. 1173].

[17]             Id., at p. 269.

[18]             See Brady v. State (1961) 225 Md. 422, 174 A.2nd 167.

[19]             Brady v. Maryland, supra, at p. 86.

[20]             Id., at p. 87.

See also United States v. Shaffer (9th Cir. 1986) 789 F.2nd 682, 687; and United States v. Bruce, supra, at 894.

[21]             See footnote 1, above.

[22]             Brady v. Maryland, supra, at pp. 87-88; referencing Brady v. State, supra, 226 Md., at 427; 174 A. 2nd, at 169.

[23]             (1976) 427 U.S. 97 [49 L.Ed.2nd 342; 96 S. Ct. 2392].

[24]             Id., at p. 108.

[25]             (1995) 514 U.S. 419 [131 L.Ed.2nd 490; 115 S.Ct. 1555].

[26]             Id., at p. 433.

[27]             Ibid, citing Agurs at pp. 103-104.

[28]             Kyles v. Whitley, supra, citing Agurs at pp. 104-107.

[29]             Kyles v. Whitley, supra, citing Agurs at 108.

[30]             (1985) 473 U.S. 667 [87 L.Ed.2nd 481; 105 S. Ct. 3375].

[31]             United States v. Bruce, supra, at 895.

[32]             Ibid., at p. 682.

              See also Kyles v. Whitley, supra, at p. 433;

People v. Salazar (2005) 35 Cal.4th 1031, 1042; and

Benson v. Chappell (9th Cir. 2020) 958 F.3rd 801, 837.

[33]             United States v. Bagley, supra, at p. 682, citing Strickland v. Washington (1984) 466 U.S. 668; a “competence of counsel” case.

United States v. Bruce, supra, at pp. 894-895.

[34]             People v. Zambrano (2007) 41 Cal.4th 1082, 1132; see also

              People v. Lucas (2014) 60 Cal.4th 153, 273–274; and

City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-8.

[35]             Kyles v. Whitley, supra, at p. 435.

              People v. Stewart (2020) 55 Cal.App.5th 755, 769.

quoting In re Miranda (2008) 43 Cal.4th 541, 575.

[36]             People v. Stewart, supra, quoting People v. Gaines (2009) 46 Cal.4th 172, 184.

[37]             People v. Zambrano, supra, at pp. 1132–1133; see also

[38]             People v. Whalen (2013) 56 Cal.4th 1, 64-65; and

              Denham v. Superior Court (1970) 2 Cal.3rd 557, 564.

[39]             (1972) 405 U.S. 150, 154–155 [31 L.Ed.2nd 104; 92 S.Ct. 763].

[40]             Id., at pp. 153-154.

[41]             United States v. Agurs, supra.

[42]             Id., at pp. 98-101.

[43]             Id., at pp. 101-102.

[44]             Id., at pp. 107-109.

[45]             Id., at pp. 109-110.

[46]             Id., at p. 110.

[47]             Id., at pp. 112-114.

[48]             Id., at p. 108.

[49]             (2012) 565 U.S. 73 [181 L.Ed.2nd 571; 132 S.Ct. 627].

[50]             Id., at pp. 75-76.

[51]             Ibid.

[52]             (2016) __ U.S. __ [136 S. Ct. 1002; 194 L.Ed.2nd 78].

[53]             Id., 136 S.Ct. at p. 1006.

[54]             (2020) 965 F.3rd 993, at p. 997.

[55]             Id., at p. 998.

[56]             Id., at pp. 998-999.

[57]             (2015) 240 Cal.App.4th 257.

[58]             Veh. Code § 2800.2.

[59]             Veh. Code § 10851.

[60]             People v. Lewis, supra, at p. 263.

[61]             Kyles v. Whitley, supra.

[62]             Id., at pp. 428-429.

[63]             Id., at pp. 437-438, citing Maryland v. Brady, supra, at p. 87.

              See also People v. Uribe (2008) 162 Cal.App.4th 1457, 1475.

[64]             In re Brown (1998) 17 Cal.4th 873, 879, & fn. 3; citing United States v. Auten (5th Cir. 1980) 632 F.2nd 478, 481.

[65]             People v. Whalen, supra.

[66]             Ibid, at p. 64.

[67]             People v. Zambrano (2007) 41 Cal.4th 1082, 1133; citing In re Steele (2004) 32 Cal.4th 682, 697.

[68]             People v. Whalen, supra, at pp. 66-67.

[69]             (2007) 41 Cal.4th 1082.

[70]             Id., at p. 1133; citing Kyles v. Whitley, supra, at p. 437.

[71]             People v. Zambrano, supra, at pp. 1133-1134.

[72]             Id., at p. 1133 (Italics in original); quoting In re Steele (2004) 32 Cal.4th 682, 697.

[73]             (2020) 50 Cal.App.5th 894.

[74]             Id., at pp. 910-919.

[75]             (9th Cir. 2019) 934 F.3rd 1002.

[76]             Id., at pp. 1022-1026.

[77]             Strickler v. Greene (1999) 527 U.S. 263, 281-282 [119 S.Ct. 1963; 144 L.Ed.2nd 286];

              People v. Lewis (2015) 240 Cal.App.4th 257, 263;

              Benson v. Chappell (9th Cir. 2020) 958 F.3rd 801, 837.

              People v. Stewart (2020) 55 Cal.App.5th 755, 769.

              People v. Wilson (2020) 56 Cal.App.5th 128, 160.

              United States v. Bruce, supra, at pp. 894-895; citing Shelton v. Marshall (9th Cir. 2015) 796 F.3rd 1075, 1083.

[78]             People v. Zambrano, supra, at pp. 1132-1133.

              See also People v. Whalen, supra, at p. 64.

[79]             People v. Ruthford (1975) 14 Cal.3rd 399, 406.

[80]             Brady v. Maryland, supra.

[81]             People v. Jackson (1991) 235 Cal.App.3rd 1670, 1676.

[82]             People v. Clark (1992) 3 Cal.4th 41, 133-134;

People v. Kaurish (1990) 52 Cal.3rd 648, 684-687.

[83]             People v. Collie (1981) 30 Cal.3rd = 43, 54.

[84]             United States v. Gamez-Orduno (9th Cir. 2000) 235 F.3rd 453, 461.

[85]             Sledge v. Superior Court (1974) 11 Cal.3rd 70, 75;

People v. Breaux (1991) 1 Cal.4th 281, 298-299;

United States v. Agurs, supra, at p. 109, fn. 16.

[86]             People v. Hill (1998) 17 Cal.4th 800, 849.

[87]             United States v. Rhodes (2nd Cir. 1978) 569 F.2nd 384;

United States v. Bryan (9th Cir. 1989) 868 F.2nd 1032, 1037.

[88]             People v. Earp (1999) 20 Cal.4th 826 870.

[89]             Calif. Evid. Code §§ 1054 et seq.

[90]             People v. Zambrano, supra, at p. 1133.

[91]             Izazaga v. Superior Court (1991) 54 Cal.3rd 356, 378.

[92]             See, however, amended subdivision (b) of § 832.7, effective January 1, 2019, pursuant to Stats 2018 ch 988 § 2 (SB 1421), making specified personnel records of peace officers and custodial officers, and specified records maintained by the agency, available for public inspection pursuant to the California Public Records Act. 

[93]             (1974) 11 Cal.3rd 531.

See also People v. Mooc (2001) 26 Cal.4th 1216, 1219–1220. 

[94]             Rezek v. Superior Court (2012) 206 Cal.App.4th 633, 640.

[95]             (2015) 61 Cal.4th 696.

[96]             But see United States v. Henthorn (9th Cir. 1991) 931 F.2nd 29; ruling that “the obligation to examine (a police officer’s) files arises by virtue of the making of a demand for their production;” (pg. 31.) a questionable ruling given subsequent authority.

[97]             City of Santa Cruz v. Municipal Court (1989) 49 Cal.3rd 74, 84;

              See also People v. Mackreth (2020) 58 Cal.App.5th 317, 339-342.

[98]             Id., at p. 705.

[99]             Id., at pp. 715-722.

[100]            (2019) 8 Cal.5th 28.

[101]            Id., at pp. 43-56.

[102]            (Oct. 9, 2020) 55 Cal.App.5th 755.

[103]           See Pennsylvania v. Ritchie (1987) 480 U.S. 39 [94 L.Ed.2nd 40; 107 S.Ct. 989].

[104]           People v. Stewart, supra, at pp. 771-772.

[105]            Id., at p. 773.

[106]            See J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, 1333.

[107]            § 827, subd. (a)(1)(B).

[108]            § 827, subd. (a)(3)(A); see also § 827, subd. (a)(1)(Q).

[109]            People v. Stewart, supra, at p. 774.

[110]            Fed. R. Crim. Pro. 16(a)(1)(E)(i)

[111]            United States v. Muniz-Jaquez (9th Cir. 2013) 718 F.3rd 1180, 1183-1184;

quoting United States v. Stever (9th Cir. 2010) 603 F.3rd 747, 752.

[112]            United States v. Muniz-Jaquez, supra, at 1183. 

              See also United States v. Cano (9th Cir. 2019) 934 F.3rd 1002, 1022-1026.

[113]            See Gray v. Netherland (1996) 518 U.S. 152 [135 L.Ed.2nd 457; 116 S.Ct. 2074];

McCleskey v. Zant (1991) 499 U.S. 467 [113 L.Ed.2nd 517; 111 S.Ct. 1454]; and

Murray v. Carrier (19860 477 U.S. 478, 488 [91 L.Ed.2nd 397; 106 S. Ct. 2639].

[114]            Strickler v. Greene, Ibid.

[115]            Id., at p. 289.

[116]            Id., at p. 288.

[117]            Id., at p. 289.

[118]            E.g., see United States v. Obagi, supra.

[119]            E.g., see the discussion re: United States v. Obagi, above.

[120]            (9th Cir. Aug. 6, 2020) 968 F.3rd 1019.

[121]            Id., at pp. 1023-1024.

[122]           Id., at pp. 1024-1026.

[123]           Id., at pp. 1026-1027.

[124]            Id., at p. 1027.

[125]            Id., at pp. 1027-1028.

[126]            Ibid.

[127]            Id., at pp. 1028-1030.

[128]            Id., at pp. 1029-1030.

[129]            Id., at p. 130, citing United States v. Kearns (9th Cir. 1993) 5 F.3rd 1251, 1253.

[130]            Ibid., quoting United States v. Struckman (9th Cir. 2010) 611 F.3rd 560, 574.

[131]            Id., at pp. 1032-1036; citing United States v. Kearns, supra, and

              Id., a pp. 1038-1042.

[132]            Stats 2016, Ch 879 § 1 (AB 1909).

[133]            United States v. Bruce, supra, at p. 898, quoting United States v. Price (9th Cir. 2009) 566 F.3rd 900, 911.

[134]            United States v. Bruce, supra, quoting United States v. Jernigan (9th Cir. 2007 492 F.3rd 1050, 1054.

[135]            E.g., see United States v. Bruce, supra.