Results: Brady Epidemic Poll

8/6/2020

8/6/2020 08:55:04 am

Unfortunately the small number of responses make the "answer" unhelpful.
There are too many variables unaccounted for-- such as "why do you think this?"
Rather, we are back where we started--about half think there is and half think there isn't a problem.

The U.S. Attorney Manual sec. 9-5.000 sets out the DoJ policy on disclosure of "exculpatory and impeachment information."

[https://www.justice.gov/archives/usam/archives/usam-9-5000-issues-related-trials-and-other-court-proceedings]

Take a look. The USAM covers most of the "Brady-plus" cases, but doesn't address the more recent "Brady-plus" case of Smith v. Cain, 132 S. Ct. 627, 181 L.Ed. 2d 571 (2012).

And here is the USAG current policy memo.

[https://www.justice.gov/archives/jm/criminal-resource-manual-165-guidance-prosecutors-regarding-criminal-discovery]

I am not convinced that all prosecutors deliberately fail to provide required discovery. I'm willing to accept in many cases that it's a problem of knowledge and training when prosecutors fail to provide required discovery.

Brenner M. Fissell

8/6/2020 08:59:11 am

Excellent points Phil.

Philip D. Cave link

8/6/2020 09:33:34 am

Let's take a teaching moment.

A discovery request should include something like this.

"j. Any known evidence tending to diminish credibility of witnesses, both Government and Defense, including, but not limited to, prior convictions under Mil. R. Evid. 609 and evidence of other character traits, conduct, or bias under Mil. R. Evid. 608. United States v. Agurs, 427 U.S. 97 (1976); Giglio v. United States, 405 U.S. 150 (1972); United States v. Jenkins, 18 M.J. 583 (A.C.M.R. 1984); United States v. Green, 37 M.J. 88 (C.M.A. 1993); United States v. Webster, 1 M.J. 216 (C.M.A. 1975). The government is specifically requested to make a local and national records check for arrests, prosecutions, and convictions in any state, local, or federal court. Further, any adverse action in connection with a security clearance application, review, or decision, should be disclosed. This includes also a review of any law enforcement accreditation files.

k. Records of pending or completed adverse administrative actions against any prosecution witness, including but not limited to: discharge action prior to expiration of a term of service for any reason, relief for cause actions, letters of reprimand or admonition, and negative counselings related to a negligence or disciplinary matter. United States v. Green, 37 M.J. 88 (C.M.A. 1993).

l. Records or disclosure of any ongoing or completed investigations into allegations of misconduct by a government witness. United States v. Stone, 40 M.J. 420 (C.M.A. 1994).

m. Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes, but is not limited to: Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue. In fact some years ago I had a case where the NCIS gave a Henthorn disclosure to the prosecutor which turned out to be substantially and materially false.

n. Any psychiatric, psychological, or other mental health related reports or statements concerning any government witness. References (b), (q), U.S. v. Brakefield, 43 C.M.R. 828 (A.C.M.R. 1971), and U.S. v. Mougenel, 6 M.J. 589 (A.F.C.M.R. 1978); United States v. Cano, 61 M.J. 74 (C.A.A.F. 2005).

Compare to the USAM and USAG policy and you'll see where I and my colleagues are coming from.

So who cares--an anecdote if I may.

"In fact some years ago I had a case where the NCIS gave a Henthorn disclosure to the prosecutor which turned out to be substantially and materially false." Some years ago, before video-recorded interrogations an important factual dispute arose in trial about what the client said in his interrogation.

In response to my standard discovery request the TC gave me a standard NCIS letter along the lines of "we have no exculpatory information" about NCIS agent x.

So, that trial counsel walked into trial with bad information. A few days before trial we had discovered something. We made a decision not to ping the trial counsel for more information and spring it on the witness and trial counsel during cross-examination (don't worry, no IAC there, reasoned tactical decision). Here's a quick summary.

Q: Special Agent x, on x you lied to a federal judge when testifying in the case of United States v. X, didn't you?

A: No.

Q: Special Agent x, can you explain why the federal judge's written published decision said that you lied to him?

A: I didn't lie.

Q: You did testify in that case?

A: Yes.

[https://www.youtube.com/watch?v=iSd6-EvBgN4&list=PLB6D8AE17BA9FE107&index=4&t=0s]

It got better or worse after that depending on which side you were on.

So the real issue here started with the MCIO and their crimped interpretation of Brady-plus and a TC who didn't do good enough preparation.

The USAM says,

"Many situations of this type can be avoided by ensuring that prosecutors and agency employee witnesses have candid conversations and that prosecutors submit formal Giglio requests sufficiently in advance of any proceedings."

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