There’s no such thing as Brady material: Part 1

The Supreme Court frowns on keeping certain kinds of secrets.  For example in Brady v. Maryland, a death penalty case, the prosecutor neglected to mention that the co-defendant had confessed to the murder.  The Court explained that prosecutors should play nicely and, if they have evidence favorable to the defense, fork it over.

Just like the fox should let the hens know in advance when he’s planning a visit.

To the prosecutor mind, “evidence favorable to the defense,” or Brady material, is a contradiction in terms. Obviously the defendant is guilty, or they wouldn’t be prosecuting him. If it’s favorable it’s not evidence.  And if it’s evidence it’s not favorable.

QED, there’s no such thing as Brady material. There’s only irrelevant information that would muddy the waters, confuse the jury and obstruct a conviction.  In the prosecutor’s view, a trial is like a plane flight where conviction is the destination.  The prosecutor is the pilot and the judge is the stewardess handing out blankets and chewing gum. Their job is to see that the flight goes smoothly and quickly to the destination.  The defense attorney is somewhere between the howling infant keeping everyone awake and the terrorist trying to hijack the plane to the Axis of Evil destination of acquittal.

Back in April there was a remarkable decision in a Bronx murder case called People v. Waters, where one ADA Jason Petri never got around to telling the defense lawyer that the star prosecution witness had changed his story.  Citizen Baker had initially said that he was minding his own business in the bedroom when he heard a thump, found the victim in the kitchen lying in a pool of blood and saw the defendant heading out the door.  That’s what he testified to in the grand jury.

But a few weeks before trial, Baker – who incidentally had a prior manslaughter conviction of his own – told ADA Petri that he was going to say that he had actually seen the defendant stab the victim. Petri’s response? He gave Baker immunity from prosecution for perjury in the grand jury and kept mum about the change in story.

After the trial started, there was a hearing outside the jury’s presence about the admissibility of the 911 tapes, where Petri called Baker as a witness. Baker, who hadn’t testified in front of the jury yet, revealed his new version. He explained that he had changed his account because he thought the defendant “should assume some type of responsibility” for what he’d done. No point testifying against somebody if you’re not going to really nail them.

The judge declared a mistrial.

ADA Petri wrote a motion vehemently asserting that there had been no Brady  or ethical violation because the information was inculpatory, not exculpatory.  He told the court – apparently with a straight face – that “the People’s decision not to disclose that Mr. Baker had changed his story was motivated by an intent to secure defendant’s conviction.”

As the court pointed out, if Petri was hiding Baker’s change of story for the purpose of securing a conviction, then he obviously knew it was favorable to the defense. To put it mildly, it was material evidence going to Baker’s credibility.  In a rare judicial act of calling a spade a spade, the court said, “The prosecutor’s conduct constitutes more than a mere failure to disclose; it amounts to an affirmative act of deceit.”

Naturally the Bronx DA’s Office immediately fired Petri or at least transferred him to their Appeals Bureau, where they put the “problem prosecutors“? Not a bit of it. They publicly endorsed Petri’s “more inculpatory” theory, while generously conceding the “office position” that the information should have been disclosed to “avoid surprising” the defense.

This debacle was the subject of Marvin Schechter’s  “Message from the Chair” in the Summer issue of the NY Criminal Justice Newsletter, the organ of the NY State Bar Association’s Criminal Justice Section that raised howls of indignant denial from nearly all the metropolitan and suburban DA’s Offices. Find out why in the next installment.

(To be continued)

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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