Tyrone Power, Jr. in Witness for The Prosecution (1957)
From Lawrence S. Goldman and our friends at White Collar Crime Prof blog, a summary of a Second Circuit decision addressing (1) the extent to which prosecutors can “bolster” cooperating witnesses’ testimony by relying on their cooperation agreements and (2) whether or not the tardy production of Brady and Jencks material matters. (Answer: it doesn’t). In particular:
The opinion also excuses, but does not condone, the improper failure of the government to turn over handwritten notes by a testifying agent which were discovered in the later examination of another agent and belatedly revealed to the defense. The notes should have been revealed earlier, says the Court, not only since they included evidence favorable to the defense, but also pursuant to Fed. R. Crim. Pro. 16(a)(1)(B)(ii), a discovery rule, and 18 U.S.C. 3500, the Jencks Act. However, since the notes were, however belatedly, turned over and the defense had an opportunity to review them, examine the later-testifying agent about their content, and recall the earlier witness if it chose, and since their timely disclosure would not have changed the verdict, in any case there was no Brady violation. The opinion thus demonstrates that late provision of Brady (or Rule 16 or Jencks) by the government during trial will virtually never be grounds for reversal, at least not in the Second Circuit.
The well-dressed Government witness.
We have written before about cooperation agreements before here and here, and Brady non-disclosure abuse here. And here is the trailer for Billy Wilder’s 1957 film Witness For The Prosecution (starring Tyrone Power, Jr. and Charles Laughton).
As noted by the White Collar Law Prof blog, here — Fourth Circuit Rebukes United States Attorney’s Office — this criticism of a United States Attorney’s Office for repeated Brady-disclosure problems is unusual. If nothing else, the Fourth Circuit is generally a law-and-order bench, which lends the criticism greater force. Here are some highlights:
A cursory review of this Court’s opinions reveals recent consideration of at least three cases involving discovery abuse by government counsel in this district.
Mistakes happen. Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional.
Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices “harmless” as to a specific defendant’s verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. “No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” United States v. Lee, 106 U.S. 196, 220 (1882). The law of this country promises defendants due process, U.S. Const. amend. V, and the professional code to which attorneys are subject mandates candor to the court, see Model Rules of Prof’l Conduct R. 3.3., and fairness to opposing parties, see id. R. 3.4. Yet the United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable. Something must be done.
To underscore our seriousness about this matter, and to ensure that the problems are addressed, we direct the Clerk of Court to serve a copy of this opinion upon the Attorney General of the United States and the Office of Professional Responsibility for the Department of Justice. The transmittal letter should call attention to this section of the opinion.
Brady requires the Government to disclose to the defendant materially exculpatory evidence in the Government’s possession. For a refresher on the Brady rule, look here: The Brady Rule
More commentary on the AUSA Kline ethics case in Washington: White Collar Crime Law Prof on Brady.
Although it’s interesting that DC Bar Counsel is finding an ethics violation for a prosecutor’s failure to turn over Brady/Giglio material, one wonders how many states’ bar counsel would do so.