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Henry Shuelke III’s 514-page report on the prosecution of the late U.S. Sen. Theodore Stevens reveals in fine detail the lengths prosecutors can go to “play [their] cards close to the vest.”¹ An advocate in an adversarial system is expected to be strategic and circumspect, but Brady v. Maryland — the 50-year-old rule that a prosecutor disclose favorable information to the accused that is material to guilt or punishment² — is an exception to this model, requiring the prosecutor to assist rather than counter the defense case.³ Brady invokes the prosecutor’s higher calling to do justice,⁴ and the criminal justice system’s central goal of protecting the innocent.⁵ As the Stevens prosecution illustrates, however, these principles fit uneasily into the partisan world of criminal litigation.

For D.C. District Judge Emmett Sullivan, who presided over the Stevens case, Shuelke’s report described prosecutorial misconduct “to a degree and extent” he had not seen in 25 years on the bench.⁶ But perhaps more striking than the prosecutors’ egregious Brady violations is the banality of the conduct that made them possible — and inevitable. Debriefings of key witnesses that “did not go well” were not memorialized in written reports.⁷ Handwritten notes of the same interviews were misfiled or lost.⁸ Interview write-ups and notes omitted information consistent with Stevens’ likely defenses.⁹ Nonlawyers were delegated to review files for Brady information.¹⁰ The prosecutors’ own notes were never reviewed.¹¹ Consultations with supervising prosecutors charged with guiding disclosure obligations were perfunctory.¹² At trial, the government took the position that agents’ reports of witness interviews were not prior statements of those interviewed, and therefore not subject to disclosure.¹³ These all-too-familiar practices did not themselves necessarily violate Brady (or even the law), but they created a fertile ground where Brady’s mandate could be marginalized and disregarded.

Guarding the Guardians

Data on the prevalence of Brady violations is scarce, in part because 95 percent of cases end in a guilty plea. One study, however, revealed that 16 percent of reversals of capital convictions in the United States from 1973 to 1995 were due to prosecutorial suppression of favorable evidence.¹⁴ In addition, a 2010 Innocence Project study concluded that 10 percent of the 255 DNA exonerations involved allegations on appeal or in civil suits of prosecutorial suppression of evidence.¹⁵ Brady violations can flourish in part because accountability mechanisms have proved ineffectual.¹⁶ In fact, in assigning Shuelke to investigate possible criminal contempt charges against the Stevens prosecutors, Judge Sullivan explained that “the events and allegations in th[e] case [we]re too serious and too numerous to be left to an internal investigation that ha[d] no outside accountability.”¹⁷  

While much has been written in the wake of the Stevens case on how to improve prosecutorial practices,¹⁸ this article focuses on some ways in which defense lawyers can give meaning to Brady’s promise of fundamental fairness.¹⁹ Indeed, Shuelke’s damning report is a story of defense vigilance as much as it is one of prosecutorial misconduct. In letter after letter, and motion upon motion, the Stevens defense team made Brady a central component of their advocacy, leading directly to the revelations that ultimately resulted in dismissal of the indictment.

The Targeted Demand

A prosecutor’s Brady obligations exist even without a defense demand,²⁰ but as a practical matter, the defense will improve the chances of obtaining Brady information by asking and litigating for it with some specificity. A prosecutor may be deliberately withholding favorable information to see how the case progresses, or (more likely) may not know the information exists or has not focused on its exculpatory or impeachment potential. A targeted request may therefore prompt an ethical prosecutor (or one who fears sanction) to search her files and those of her agents, and disclose responsive documents and information. It establishes the groundwork for later litigation. An early resolute stance on the issue may prompt a favorable plea bargain. And it may impact any materiality assessment on appeal.²¹  

The content of the Brady demand, needless to say, will depend on the facts and circumstances of the case, the defendant and potential witnesses, and the likely defenses. An available template of a comprehensive, customizable Brady demand — a useful project for defender organizations — would expedite its preparation in an individual case. A Brady demand, however, will be most effective if based on case-specific investigation, including extensive debriefing of the client and witnesses, and mining of social media and other Internet resources.²² In fact, Brady is not a substitute for investigation, and under the “due diligence” rule, there can be no Brady violation if the defendant or defense lawyer knew or should have known the undisclosed facts.²³ In addition, strategic considerations may take precedence over a specific request. For example, a defense lawyer might not want to tip her hand by alerting the prosecutor to a witness’s gambling problems, bankruptcy filings, or substance abuse issues.

Along with seeking substantive disclosures, the defense’s Brady strategy should also focus on the process by which the prosecutors have complied with Brady. Readily apparent from recent high-profile cases involving Brady violations is the critical role of the prosecution team’s practices in memorializing, collecting, and reviewing evidence. The DOJ’s post-Stevens process for preserving and disclosing Brady information, outlined in a Jan. 4, 2010, memo by David Ogden,²⁴ is a useful road map for defense counsel to relevant practices in this context. Important lines of inquiry include the membership of the prosecution team subject to Brady disclosure obligations (e.g., law enforcement agencies and regulators engaged in a joint investigation), the files reviewed for Brady evidence, the identities of those who conducted the review, the dates of a witness’s debriefings, and the names of note-takers. Defense lawyers can petition the trial court to require prosecutors to certify the efforts taken to identify and disclose Brady information.²⁵ 

Materiality and Timeliness

A key component of an effective defense Brady strategy is challenging the prosecutor’s pretrial reliance on the appellate materiality standard. This test — holding that information is “material” if there is a “reasonable probability” that disclosure would have altered the result of the proceeding²⁶ — is necessarily a retrospective one. It borders on sophistry to apply it before trial when so many matters are “unknown and unknowable,” such as the theory of defense, the identities of witnesses, the court’s rulings on in limine motions, the content of jury instructions, and the salient issues during jury deliberations.²⁷ Moreover, materiality is a manipulable standard that empowers the prosecutor to withhold information on the basis of self-serving speculation about outcomes. For these reasons, in United States v. Safavian, D.C. District Judge Paul Friedman held that the “only question before (and even during) trial is whether the evidence at issue may be ‘favorable to the accused.’”²⁸ Other courts²⁹ and legislatures³⁰ have reached similar conclusions.

Another battleground is the requirement that the prosecution disclose Brady information “in time for its effective use at trial.”³¹ Often narrowly interpreted by courts and prosecutors as simply guaranteeing an opportunity to cross-examine,³² timeliness from a defense lawyer’s perspective means access to Brady information sufficiently in advance of trial to seek additional favorable information, to shape trial theories, and to add meat to opening statements. Belated disclosures, as the Second Circuit acknowledged in Leka v. Portunondo, may “throw existing strategies and [trial] preparation into disarray … when a trial already has been prepared on the basis of the best opportunities and choices then available.”³³ A targeted demand and focused litigation may expedite disclosure, particularly as it puts all parties on notice that an adjournment will be sought if disclosure is made on the eve of trial. In United States v. Binday, for example, Southern District of New York Judge Colleen McMahon ruled on a Brady motion three months before trial in a complex, multi-defendant fraud case that “‘timeliness’ with respect to Brady disclosure means immediate disclosure upon discovery.”³⁴ 

Related to the timeliness issue is the canard that impeachment material is a species of Brady subject to less stringent disclosure requirements. Prosecutors will often announce that they will disclose Giglio material at the same time as their required disclosures under the Jencks Act or its state law equivalent. The law is clear, however, that Giglio is Brady.³⁵ As such, Brady and Giglio always trump the Jencks Act, and if information is both Jencks material and Brady, “it must be disclosed on the earlier Brady timeline.”³⁶ 

A Brady Order

Recent high-profile cases involving suppression of Brady information illustrate the importance of an order directing compliance with Brady, especially in cases where a Brady violation comes to light or where the prosecutor’s office has a history of flouting Brady’s mandate. The Shuelke report concluded that the contempt sanction against the Stevens prosecutors was unavailable because there had been no unambiguous order from the court directing the disclosure of all Brady material.³⁷ In fact, Judge Sullivan, relying on the prosecutor’s assurances, had intentionally not issued such an order: “I’m not going to write an order that says ‘follow the law.’ We all know what the law is.”³⁸  

Judge Sullivan now issues a standing Brady order in every criminal case³⁹ and has urged his judicial colleagues to follow suit.⁴⁰ His order sets forth textbook Brady principles, adding several clarifications that erase traditional excuses for withholding favorable information. Thus, it makes clear that Brady trumps any other discovery rules, doubts must be resolved in the defendant’s favor, and the material must be produced in its original form or, if that is not available, in a summary with enough specificity to make it meaningful.⁴¹ The use of summaries, as Judge Sullivan pointed out in court on the day he dismissed the Stevens indictment, “is an opportunity for mischief and mistake.”⁴² The Brady order is symbolically powerful in that it signals the seriousness with which the court views the issue, while also transforming any Brady violation into an act in contempt of court, for which additional civil and criminal remedies lie.

In Camera Inspection

In camera inspection is another avenue to Brady disclosure, particularly of information that raises privacy issues. While judges are loath to assume this burden, some have taken to heart the observation that in an adversarial system, entrusting prosecutors with identifying and disclosing Brady material is akin to “appoint[ing] the fox as henhouse guard.”⁴³ These courts have, therefore, upon a “plausible showing” by the defense,⁴⁴ appropriated the Brady gatekeeping role to themselves. For example, in United States v. Nogbou,⁴⁵ a case involving the assault of a courthouse officer at a security checkpoint, Southern District of New York Judge John Keenan granted a pretrial in camera review of the victim officer’s personnel file. This procedure was a matter of “sound case management” to avoid the possibility of a midtrial delay or a postconviction reversal because of a late Brady disclosure/discovery, and because “it [was] impossible to determine, in advance of trial, whether the evidence requested by Nogbou [would] be sufficiently material to fall within the ambit of Brady.”⁴⁶ Notably, “in an excess of caution,” the court would undertake its own review, adding that it was “debatable” that the government would make an accurate materiality prediction.⁴⁷ In camera review has been utilized in the context of, among other things, presentence reports,⁴⁸ probation files,⁴⁹ prison records,⁵⁰ investigating agents’ notes,⁵¹ prosecutors’ notes,⁵² and grand jury testimony.⁵³ Some courts have delegated the review to special masters.⁵⁴ 

Sanctions

Where a Brady violation has been discovered before or during trial, there is a gamut of creative sanctions defense lawyers have sought and district courts have employed, falling between a mere adjournment and the ultimate sanction of dismissal of the indictment. These include excluding evidence,⁵⁵ advising the trial jury of the government’s misconduct,⁵⁶ referring the prosecutors for internal or external disciplinary actions,⁵⁷ and enhancing discovery remedies, as in the notable case of People v. Waters,⁵⁸ in which Judge Edgar Walker granted a mistrial in a murder case in Bronx County, N.Y., because of the prosecutor’s deliberate failure to disclose a key witness’s changed recollection. The prosecutor candidly admitted that the decision to withhold the information “was motivated by an intent to secure defendant’s conviction.”⁵⁹ In a forceful decision — published in full as well as the subject of a news article in the widely read New York Law Journal — Judge Walker condemned the prosecutor’s conduct as “an affirmative act of deceit.”⁶⁰ Denying the defense request to dismiss the indictment, the judge ordered that prior to the retrial, the prosecutor provide extensive discovery, including not only all police reports and prosecutor write-ups, but an unprecedented pretrial deposition of the witness.⁶¹ 

Brady and Sentencing

Finally, the often-forgotten application of Brady to sentencing — the very posture of Brady itself — is least developed in case law but perhaps most meaningful in a system where most cases end in a guilty plea. As the Supreme Court reminds us in Cone v. Bell, Brady includes information that may not exculpate but that nonetheless mitigates punishment.⁶² As the Court put it, while “[e]vidence that is material to guilt will often be material for sentencing purposes as well, the converse is not always true.”⁶³ Cone’s sentence was vacated because although the suppressed witness statements, police teletypes and interview notes relating to Cone’s drug use fell short of sustaining his insanity defense, they “may well” have been material to the jury’s deliberations at the sentencing phase.⁶⁴  

A specific Brady sentencing request should therefore be made in cases where the judge decides the sentence. For example, does the prosecutor have information that casts doubt on the government’s calculations of drug quantity⁶⁵ or financial loss,⁶⁶ or is relevant to the defendant’s role, his acceptance of responsibility,⁶⁷ or unwarranted sentencing disparities?⁶⁸ Such information would include impeachment material. Thus, in United States v. Valenzuela,⁶⁹ the court held the government had an obligation at sentencing to supply defendants with impeachment information — including benefits sought and received — relating to the victims upon whom the Probation Department and government relied to determine the applicable guideline range.⁷⁰ Notably, the materiality threshold at sentencing is lower than the pretrial one. A guideline enhancement or mitigating factor typically need only be proved by a preponderance of the evidence, not beyond a reasonable doubt.⁷¹ Finally, while courts are upholding waivers of Brady rights in plea agreements,⁷² these may not necessarily apply to Brady information that is relevant to sentencing. For example, the defense can argue that the waiver may be trumped by a criminal defendant’s “due process right to be sentenced on the basis of reliable information”⁷³ and the prosecutor’s obligation of “good faith and fair dealing” in plea bargaining.⁷⁴ 

Conclusion

Last year, in two of its most notable rulings, the Supreme Court acknowledged that the system of criminal justice is one of pleas, not trials.⁷⁵ As such, it grants the prosecutor “awesome” plea bargaining power⁷⁶ and empowers an inquisitorial model of justice. Facts and rights are adjudicated in the courthouse corridors rather than the courtrooms. It is perhaps not coincidental that simultaneously, judges across the country are issuing vigilant and scathing Brady decisions.⁷⁷ Brady, with its focus on exculpatory and mitigating information, is a bright-line restraint on prosecutorial overreaching — prosecutors may be driven to win, but may not be permitted to win “by any means necessary.”⁷⁸ Judges’ capacity to use Brady to halt the conveyor belt to conviction, however, requires that Brady violations be discovered — a challenging task that demands aggressive and persistent defense lawyering.

Notes

1. See Henry F. Shuelke III, Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009 (“Shuelke Report”) at 99 (available at http://www.nacdl.org/discoveryreform).
2. See Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Giglio v. United States, 405 U.S. 150, 154 (1972) (expanding Brady to include impeachment evidence).
3. See United States v. Bagley, 473 U.S. 667, 675 n.6 (1985).
4. See Connick v. Thompson, 131 S. Ct. 1350, 1365 (2011).
5. See Herrera v. Collins, 506 U.S. 390, 399 (1993).
6. In re Special Proceedings, Misc. No. 09-0198 (D.D.C.) (EGS), Nov. 21, 2011 Order, at 2.
7. Shuelke Report at 21.
8. Id.
9. Id. at 4.
10. Id. at 64.
11. Id. at 21.
12. Id. at 23.
13. Id. at 98.
14. James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 Tex. L. Rev. 1839, 1846, 1850 (2000).
15. Emily M. West, Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases (Innocence Project 2010), at 4, available at http://www.innocenceproject.org/docs/Innocence_Project_Pros_Misconduct.pdf.
16. See David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thomson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203 (2011); see also Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies That Prove That Assumption Wrong, 80 Fordham L. Rev. 537 (2011).
17. See United States v. Stevens, 08-231 (D.D.C.), Transcript of Status Conference, April 7, 2009, at 46 (“4/7/09 Tr.”). The DOJ’s Office of Professional Responsibility concluded that two of the prosecutors had engaged in reckless misconduct, but this finding was overturned by an administrative judge on procedural grounds. See Charlie Savage, Judge Overturns Suspensions for Stevens Prosecutors, N.Y. Times, April 8, 2013.
18. See generally Symposium, Defining and Enforcing the Federal Prosecutor’s Duty to Disclose Exculpatory Evidence, 64 Mercer L. Rev. 635 (2013); Symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, 31 Cardozo L. Rev. 1943 (2010).
19. Brady, 373 U.S. at 87 (Brady rule based on principles of fairness).
20. See United States v. Agurs, 427 U.S. 97, 107 (1976).
21. In New York State, for example, a specific request will change the materiality standard from “probability” to “possibility” that timely disclosure would have changed the result of the proceeding. See People v. Vilardi, 76 N.Y.2d 67 (1990).
22. See, e.g., Thomas C. Frongillo & Daniel K. Gelb, It’s Time to Level the Playing Field — The Defense’s Use of Evidence From Social Networking Sites, The Champion, August 2011 at 14.
23. See generally Kate Weisburd, Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule, 60 U.C.L.A. L. Rev. 138 (2012).
24. See Guidance for Prosecutors Regarding Criminal Discovery, Jan. 4, 2010, available at http://www.justice.gov/dag/discovery-guidance.html.
25. See, e.g., United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005) (“the government shall also provide the defendant information as to what specific efforts were made to search for responsive documents, including the extent of the search for responsive documents within the possession, custody or control of [other government agencies]”).
26. Bagley, 473 U.S. at 676, 682.
27. Safavian, 233 F.R.D. at 16.
28. Id. 
29. See, e.g., United States v. Danielcyzk, 2013 WL 14260, *2 (E.D. Va. Jan. 10, 2013); United States v. Acosta, 357 F. Supp. 2d 1228, 1239-40 (D. Nev. 2005); United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999).
30. See, e.g., Cal. Penal Code § 1054.1(e) (requiring prosecutors to disclose “[a]ny exculpatory evidence” with no materiality limitation).
31. In re United States (Coppa), 267 F.3d 132, 135 (2d Cir. 2001).
32. See United States v. Moore, 867 F. Supp. 150, 152 (D.D.C. 2012) (listing cases).
33. 257 F.3d 89, 101 (2d Cir. 2001); see also United States v. Burke, 571 F.3d 1048, 1054 (10th Cir. 2009) (“it would eviscerate the purpose of the Brady rule and encourage gamesmanship were we to allow the government to postpone disclosures to the last minute, during trial”); United States v. Gil, 297 F.3d 93, 103, 106 (2d Cir. 2002) (exculpatory and impeaching document deemed suppressed within meaning of Brady where given to the defendant on the Friday before a Monday trial buried in reams of paper labeled “3500 material”).
34. United States v. Binday, 2012 WL 6135013 (S.D.N.Y. Dec. 10, 2012) (emphasis added). The author filed the Brady motion in that case.
35. Connick, 131 S. Ct. at 1381 (“[i]mpeachment evidence is Brady material prosecutors are obligated to disclose”).
36. Moore, 867 F. Supp. at 152; see also United States v. Rittweger, 524 F.3d 171, 181 n.4 (2d Cir. 2008) (Brady is “a constitutional requirement that trumps the statutory power of 18 U.S.C. § 3500”).
37. Shuelke Report at 29.
38. Id. at 31.
39. See Standing Brady Order (“Brady Order”), available at http://www.dcd.uscourts.gov/dcd/sites/dcd/files/StandingBradyOrder.pdf; see also Laura Hooper et al., A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases: Final Report to the Advisory Committee on Criminal Rules, Fed. Judicial Ctr. (Feb. 2011), available at http://www.fjc.gov/public/pdf.nsf/lookup/Rule16Rep.pdf/$file/Rule16Rep.pdf (38 federal districts have a standing Brady order or local rule addressing Brady).
40. 4/7/09 Tr., at 8.
41. Brady Order, at 2-3.
42. 4/7/09 Tr., at 9.
43. DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006).
44. Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987) (citation omitted).
45. 2007 WL 4165683 (S.D.N.Y. Nov. 19, 2007).
46. Id. at *3.
47. Id. at *4.
48. See, e.g., United States v. Devore, 839 F.2d 1330, 1332 (8th Cir. 1988).
49. See, e.g., United States v. Alvarez, 358 F.3d 1194, 1207-08 (9th Cir.2004).
50. See, e.g., United States v. Simpson, 457 Fed.Appx. 59, 61 (2d Cir. 2012).
51. See, e.g., United States v. Brown, 650 F.3d 581, 589-93 (5th Cir. 2011).
52. See, e.g., United States v. Dupuy, 760 F.2d 1492, 1502 (9th Cir. 1985).
53. See, e.g., United States v. King, 628 F.3d 693, 703 (4th Cir. 2011).
54. See, e.g., United States v. Armstrong, 2012 WL 712126, *16 (N.D. Cal. March 5, 2012).
55. See, e.g., United States v. Struckman, 611 F.3d 560, 570-71 (9th Cir. 2010).
56. See, e.g., Beth Brennan & Andrew King-Ries, A Fall From Grace: United States v. W.R. Grace and the Need for Criminal Discovery Reform, 20 Cornell J.L. & Pub. Pol’y 313, 353 (2010).
57. Id. 
58. 35 Misc.3d 855 (N.Y.Sup. 2012).
59. Id. at 858.
60. Id. 
61. Id. at 862.
62. 556 U.S. 449, 475 (2009) (remanding for resentencing so jury could consider suppressed evidence relating to defendant’s drug addiction incurred as a result of honorable military service).
63. Id. at 474.
64. Id. at 475.
65. See, e.g., United States v. Weintraub, 871 F.2d 1257 (5th Cir.1989).
66. See generally Andrew Weissmann & Katya Jestin, Brady and Sentencing, Nat’l L.J., 10/27/2008.
67. See, e.g., United States v. Severson, 3 F.3d 1005, 1013 (7th Cir. 1993).
68. See, e.g., United States v. Quinn, 537 F. Supp. 2d 99, 118 (D.D.C. 2008).
69. 2009 WL 2095995 (C.D. Cal. July 14, 2009).
70. Id. at 4-5.
71. Cf. Cone, 556 U.S. at 474 (“There is a critical difference between the high standard Cone was required to satisfy to establish insanity as a matter of Tennessee law and the far lesser standard that a defendant must satisfy to qualify evidence as mitigating in a penalty hearing in a capital case.”).
72. See United States v. Ruiz, 536 U.S. 622 (2002) (upholding waiver in plea agreement of defendant’s right to Brady information about affirmative defenses and the impeachment of witnesses); But see United States v. Ohiri, 133 F. App’x 555, 562 (10th Cir. 2005) (“[b]y holding in Ruiz that the government committed no due process violation by requiring a defendant to waive her right to impeachment evidence before indictment in order to accept a fast-track plea, the Supreme Court did not imply that the government may avoid the consequence of a Brady violation if the defendant accepts an eleventh-hour plea agreement while ignorant of withheld exculpatory evidence in the government’s possession”).
73. See United States v. Lee, 653 F.3d 170 (2d Cir. 2011) (quoting United States v. Eschman, 227 F.3d 886, 890 (7th Cir. 2000)).
74. See United States v. Khan, 920 F.2d 1100, 1105 (2d Cir.1990).
75. Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012); Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012).
76. United States v. Ready, 82 F.3d 551, 559 (2d Cir. 1996).
77. See Notes 6, 10, 44, 46, supra; see also In Re Hon. Kenneth Anderson, No. 12-0420-K26, Williamson Co., Texas, April 19, 2013, Probable Cause Order (available at https://docs.google.com/file/d/0B6HJLeMEu3hlal9tN21kRDVFelk/edit?pli=1).
78. 4/7/2009 Tr., at 6.

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