There’s no such thing as Brady material: Part 2

Story so far:

Back in April, ADA Jason Petri, a prosecutor in the Bronx District Attorney’s Office, decided not to tell the defense that his star witness in a murder case was planning to change his story at trial. That wasn’t cricket.  A slew of Supreme Court cases, going back to Brady v. Maryland (1963), require that when the case turns on the say-so of a witness, and the prosecutor finds out that the witness tends to fib about material facts, the done thing is to let the defense know.

The court’s response to the witness’s new, improved story was to grant the defense motion for a mistrial. Petri objected that he had done nothing wrong, explaining 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.”

Well, yes, that’s usually the reason for intentionally withholding Brady material, just like intentionally killing someone is usually motivated by an intent to secure their death.  But it’s not much of an excuse.  And while it’s certainly an efficient way to secure convictions, they’re often of the wrong people.

The trial judge wrote a blistering decision, saying that Petri’s conduct was “egregious” and “amounts to an affirmative act of deceit.” People v. Waters.

Now the judge probably gets his car towed every time he parks in the Bronx.

A recent article in the NY Criminal Law Newsletter by defense attorney Marvin Schechter described Waters as an example of the “steady, flowing stream of egregious cases where Brady violations have occurred with impunity” (pun probably unintended). The article cited a statement from the Bronx DA’s Office defending Petri on the ground that Brady “does not apply to evidence which is more inculpatory.”  This was so idiotic that Schechter questioned whether the statement had been correctly reported.

It’s true that Witness Baker’s revised story of actually seeing the defendant kill the victim was more inculpatory than the “hearing a thud in the next room” version he’d given the grand jury. But the fact that Baker not only changed his story, but admitted to doing so for the purpose of better nailing the defendant, calls his cred into question, to say the least. As Waters pointed out, it’s been the law for some time that when the prosecution case is based on a witness’s reliability, material evidence affecting the witness’s cred is Brady.  And as Waters further pointed out, ADA Petri knew this information was favorable to the defense, since he explained that his reason for withholding it was to secure a conviction. 

Schechter wrote that the Bronx DA’s Office’s defense of such an obvious Brady violation shows that the problem is systemic, not just individual. He wrote:

“Assistant district attorneys do not emerge from law school with a genetic disposition to hiding Brady material. Instead this is something which is learned and taught.”

Well! What a chorus of howling from the DA’s! The Manhattan and Westchester DA’s wrote to the President of the NY Sycophant Bar Association “condemn[ing] these sentiments in the strongest possible terms.” They enclosed a free copy of the official handbook,  “The Right Thing: Ethical Guidelines for Prosecutors,” issued to every new hire along with the bathroom code.  They snarled that there’d better be some “respect” for the “thousands of public prosecutors” in NY State.

The Prez, a luminary of a leading public defender outfit,  courageously responded, “The statement referred to in your letter was clearly an expression of the author’s own opinion. It was not offered and cannot reasonably be interpreted as an expression of the position of the State Bar Association.”

Appeasement didn’t stop WWII and it wasn’t going to stop the DA’s. The Manhattan DA bitterly complained that the Prez had missed a golden opportunity to praise the prosecutors’ “long and deep history” of “assuring absolute fairness in our courts.” The Brooklyn DA,  the Queens DA and the Nassau County DA  wrote letters to the NYLJ attacking Schechter’s comments as “unprofessional,”  “unsupported,” “reckless” and lies, damned lies. They assured the vast readership of the NYLJ “Letters to the Editor” that they care for nothing but Justice and Truth. They were “appalled” at Schechter’s breach of  “professional collegiality.” Naturally, none of them addressed his point that the Bronx DA’s Office had publicly condoned an egregious Brady violation.

Meanwhile, the Bronx DA, still not getting it, wrote the NYLJ, again arguing that the material wasn’t Brady because it was “inculpatory rather than exculpatory” and calling Schechter’s comments “below the belt.” Which is apparently where these DA’s keep their brains.

(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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One Response to There’s no such thing as Brady material: Part 2

  1. Jay says:

    So, if a judge knows about a witness changing their story in court, but hides it from the jury, is that also a Brady violation?

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