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Don Rehkopf posted this as a comment regarding the Leach case, but it's worthy of highlighting:
"Three things: 1) If the Court were at all interested in stopping/preventing Brady violations, they could have and respectfully should have taken corrective action and done what needs to be done - indicate that such on-going issues will not be tolerated, period; 2) Blaming the Defense Counsel for the Brady violation for not having the crystal ball of precisely knowing what the complainant told the government, is even more problematic, if not downright disingenuous. If indeed the Court wanted to remedy Brady violations, then here was proof-positive (by the Court's own findings), of IAC; and, 3) Once again, this Court gives a "pass" to outrageous, improper arguments by the TC [cf. Voorhees], which brings to mind the words of federal judge Jerome Frank: "If we continue to do nothing practical to prevent such [prosecutorial] conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of ‘disapproved’ remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court- recalling the bitter tear shed by the Walrus as he ate the oysters-breeds a deplorably cynical attitude towards the judiciary." United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2nd Cir. 1946) (Frank, J., dissenting)."
2 Comments
Assume you have submitted two discovery requests some time ago.
Don Rehkopf
7/24/2020 10:54:55 am
Brother Phil - your probing questions themselves tend to be enlightening! There are a number of responses: first, absent a privilege issue, Art. 46, seems to give the defense the right to ask for and receive "everything." Second, "relevancy" as defined by MRE 401, is not for the government to determine at the discovery stage; third, the above two reasons however, need to be tempered by the duty of the DC to make specific request, i.e., to establish the parameters of what one is seeking. Thus, while "Please provide all Brady material in the possession of the OSJA, CID, or any other governmental agency," is a valid request, it's hardly helpful as is. It should be immediately followed by something specific, e.g., "evidence of any misconduct by Special Agents Alpha and Bravo, who interrogated the Accused;" or "evidence that the Confidential Informant provided false or unreliable information, in any format, at any time prior to, during, or subsequent to this case." You then give a Kyles "reminder," that they now have a duty to look for this information, citing Ethical Rule 3.8. My bottom line is, the more specific you can be in your Requests, the less hassle you'll get down the road and if necessary to litigate, the MJ will soon see you tried to point them in the right direction. Your comment will be posted after it is approved.
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