Government Enforcement Alert Brady

Government Enforcement Alert
January 2010
The Brady Bunch and Its Extended Family
Barry M. Hartman
Recent Prosecutorial Misconduct Cases in Federal Court, the
Department of Justice Response, and Observations on Defense
Brian W. Stolarz
Christopher R. Tate
Prosecutors have a constitutional obligation to produce exculpatory information
known as “Brady material.” When they fail to do so, and the defense or the court
discovers that failure (an unusual event), the typical response is a defense motion for
a new trial or a habeas corpus petition, both of which follow the defendant’s
conviction. This is not a victory that many defendants can afford to win.
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In several recent high profile cases, Brady violations or other forms of prosecutorial
misconduct have garnered increasing attention after several courts dismissed cases
and/or sanctioned prosecutors. Moreover, the tenor of these rulings suggests a
renewed focus not only on Brady, but the entirety of the government’s obligations
and responsibilities in criminal cases.
This article identifies some of the current decisional law governing prosecutorial
misconduct in federal court, briefly discusses the Department of Justice’s January 4,
2010 Guidance Memorandum that attempts to address these concerns, and offers
observations on strategies that might encourage more meaningful vindication of the
rights that the Brady doctrine is intended to protect.
Overview of The Brady Doctrine
Prosecutors have an affirmative duty under the Fifth Amendment to disclose
evidence favorable to an accused upon request, when such evidence is material to
guilt or punishment. This duty arises from Brady v. Maryland,1 and the evidence
required to be produced is commonly called Brady material. In Brady, the Supreme
Court overturned a defendant’s murder conviction because the prosecution
suppressed the statement of a codefendant in which he admitted to the actual
homicide. The Court reasoned that:
A prosecution that withholds evidence on demand of an accused which, if
made available, would tend to exculpate him or reduce the penalty helps shape
a trial that bears heavily on the defendant. That casts the prosecutor in the role
of an architect of a proceeding that does not comport with standards of justice,
even though, as in the present case, his action is not ‘the result of guile.’2
The Court held that suppression of material evidence favorable to the accused, when
the defendant requests it, violates defendant’s right to due process, whether or not the
prosecutor acted in good faith.3
After Brady, several decisions expanded the scope of the doctrine. For instance, the
government’s duty to produce exculpatory evidence under Brady arises even if the
defendant has not specifically requested that evidence.4 The Supreme Court also
held that information relevant to impeach the credibility of a government witness is
Brady material.5
Government Enforcement Alert
However, whether evidence is material is often a
major issue. For evidence to be “material” under
Brady, a defendant must show that it is the sort of
evidence that might have affected the outcome of the
trial;6 in other words, that there is a “reasonable
probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have
been different.”7 The defendant need not show,
however, that an acquittal would have resulted with
the disclosure of the withheld evidence.8
A defendant must also show that the material
evidence was in the prosecution’s “possession.”
That does not mean the information is literally in the
prosecutor’s hands. The government has an
affirmative duty to search for Brady material, an
obligation which extends not only to the
Department’s prosecutors, but also to persons and
agencies working on behalf of the government in the
case, colloquially known as the “prosecution team.”9
This standard has become increasingly important in
the era of white collar prosecutions, where there are
often parallel civil and criminal proceedings
involving multiple federal agencies in addition to the
Department of Justice and United States Attorneys
Office which may expand the members of the
prosecution team to include attorneys from the
agency handling the civil case.10
The Brady Bunch —Recent Notable
The fulfillment by the government of its Brady
obligations in modern criminal practice is often
mechanical, and sometimes perfunctory. Where
there are errors, they are often difficult to find and,
even when they are, the remedy for them may be
largely ineffective. Moreover, it is difficult to
determine how often Brady issues arise to affect the
outcome of a case. Given the relatively small
number of reported Brady decisions, it may be that
many cases in which Brady violations have occurred
have not been reported. It is not unreasonable to
imagine that the courts have presided over a number
of prosecutions where there has been an incomplete
disclosure of Brady material, which was not
discovered until after trial, at which point the trial
court ordered a new trial, but did so in an unreported
Establishing a Brady violation is often more the
product of fortuitous timing or events that bring the
undisclosed evidence to light rather than through the
traditional discovery process. But even then,
materiality is considered after the fact, not at the
time of the trial in question. More recently,
however, a number of widely reported cases
demonstrate that some courts have taken a far closer
look at Brady and ordering dismissals of cases
(which for double jeopardy purposes are often final)
and not new trials.
On July 29, 2008, a federal grand jury in
Washington, D.C. indicted then-Senator Ted
Stevens for alleged violations of the Ethics in
Government Act, based on allegedly false
statements on mandated financial disclosure forms.
After the District Court denied a motion for a
mistrial based on allegations that the prosecution
had withheld exculpatory evidence, the jury
returned a guilty verdict on all counts. Several
months later, an FBI agent filed a whistleblower
complaint with the Bureau, which the government
initially filed under seal but was later unsealed.11
Among other things, the agent reported that
prosecuting attorneys concealed and inappropriately
redacted notes from an FBI Form 302 report of
agents’ interviews with key prosecution witnesses.12
Most notable among these redactions was the
contradiction by a chief government witness of his
testimony at trial in which he had inculpated Mr.
Stevens. On February 13, 2009, the District Court
held that this was Brady information which the
government was required to produce to the defense,
and held the prosecution team in contempt of court
for their violation of Mr. Stevens’ Brady rights. On
April 1, 2009, the government filed a motion to set
aside the verdict and dismiss the charges against
Mr. Stevens. On April 7, 2009 the District Court
granted the motion and ordered an investigation into
the government’s handling of the case. In so doing,
the District Court stated that “I have never seen
anything approaching the mishandling and
misconduct that I have seen in this case.” 13
In another recent case a District Court found an
extensive pattern of misconduct by the prosecutor,
including suppression of multiple DEA
investigative notes containing exculpatory
information. It ordered the payment of attorneys’
fees for the defendant (who had been acquitted of
distributing controlled substances), a reprimand of
the prosecuting attorney, and an investigation by the
January 2010
Government Enforcement Alert
Department of Justice.14 The court’s opinion noted
that the prosecutor’s misconduct in that case was as
pervasive as it was disappointing, extending from
the multiple Brady violations to undisclosed tapings
of conversations between the defendant and his
counsel, as well as a “vindictive” Superseding
In another recent, high-profile case alleging criminal
violations of environmental laws, a District Court
held that where a prosecutor failed to turn over
documents regarding a government witness that
evidenced an extreme bias against defendants, such
failure constituted a violation of Brady and Giglio,
even where the government did not necessarily act
in bad faith.16 The District Court noted that “the
failure to disclose documents related to [the witness]
is merely the latest manifestation of a systemic
problem, i.e., that the Department of Justice charged
a case larger than the one it prepared to prosecute.”
Although the District Court denied motions to
dismiss the charges, it issued an unusual remedy - an
instruction to the jury that the government witness
was not to be relied upon at all for one defendant,
that the jury should view his testimony as to the
other defendants with “great skepticism and with
greater caution than that of other witnesses,” and
that “the Department of Justice and the United States
Attorney’s Office have violated their constitutional
obligations to the defendants, they have violated the
Federal Rules of Criminal Procedure, and they have
violated orders of the Court.”18 The jury acquitted
all defendants of all charges.
In addition to these high-profile cases, there are
other recent reported cases involving Brady
violations that demonstrate various forms of
prosecutorial misconduct.19
The Extended Brady Family: Other
Prosecutorial Misconduct
Although not a case of withholding Brady evidence,
a recent series of cases in the Central District of
California illustrates both serious prosecutorial
misconduct and the effort necessary from defense
counsel and courts to remedy it.20
Beginning in 2008, the government issued a series of
civil complaints and obtained criminal indictments
against former employees and founders of
Broadcom Corporation based on irregularities in
stock option compensation. The Court held that the
government intimidated and improperly influenced
the three witnesses critical to the defendants, and
violated the defendants’ right to compulsory process
for witnesses in their own defense. The court cited
the following examples:
After one former VP refused to cooperate with
the investigation, the lead prosecutor
telephoned the general counsel of her new
employer and “made inappropriate statements
to him that caused [her] to lose her job.” The
government interrogated the former VP on 26
separate occasions and threatened her with
additional sanctions if she was unable to
implicate another person. As a result, the
former VP entered into a plea agreement that
the court described as “containing a
questionable factual basis” and was a plea to a
felony because the government told her it
“looked more convincing to a jury.”
The government delayed its charging decision
against Broadcom’s former general counsel for
two years, leaving him “hanging in the wind.”
After the court granted the general counsel
immunity so that he could be a defense witness,
the prosecutor negotiated with him about the
content of his testimony, promising a “soft
cross,” or an easier time on the witness stand if
he implicated another person.
The lead prosecutor leaked to the media that
one person was being uncooperative after
submitting to 30 “grueling” interrogations with
the lead prosecutor. The lead prosecutor also
placed pressure on the Broadcom board to
terminate that person from the company he
founded. Finally, the prosecutor crafted an
“inflammatory” indictment that mentioned him
by name 72 times as an “unindicted
coconspirator” – which is improper under the
United States Attorney’s Manual, the
guidebook for federal prosecutors21 – after
which the individual pled guilty “to a crime he
did not commit” and agreed to pay a $12
million fine.
The court delivered a stinging opinion from the
bench, dismissing with prejudice the indictments
January 2010
Government Enforcement Alert
and the parallel civil complaints brought by the SEC
against two persons – an extremely unusual result.22
The court concluded his opinion dismissing the
criminal case with a hypothetical:
I have a solemn obligation to hold the
government to the constitution. I’m doing
nothing more and nothing less. And I ask my
critics to put themselves in the shoes of the
accused. You are charged with serious crimes
and, if convicted on them, you will spend the
rest of your life in prison. You only have three
witnesses to prove your innocence and [the]
government has intimidated and improperly
influenced each one of them. Is that fair? Is
that justice? I say absolutely not.23
Finally, several years ago the government was
embarrassed by its tactics of pressuring a company
not to pay for the legal defense costs of several
Response from the Department of
Attorney General Eric Holder recently promised
federal trial judges that Department of Justice
attorneys would receive additional training on their
discovery obligations, and that he would work on
streamlining the process through which the
Department’s Office of Professional Responsibility
would investigate complaints of misconduct against
prosecutors.25 Additionally, a working group was
formed to undertake a review of the department’s
policies, practices and training related to criminal
case management and discovery.
On January 4, 2010, the department issued a tenpage Guidance Memo for prosecutors regarding
criminal discovery.26 The Guidance Memo calls for
enhanced training, online resources, a new handbook
for prosecutors, and the evaluation of case
management software and cataloguing practices to
streamline discovery review. The Guidance Memo
also requires divisions handling criminal matters to
develop (or in divisions in which a policy exists, to
“re-visit”) a discovery policy to be followed in that
division for criminal discovery. Such standards
must comport with local rules and precedent, and
while they may allow for flexibility from the
standards in certain cases, such flexibility must be
standardized through a review process. This policy
must be completed by March 31, 2010.
The Guidance Memo also set forth specific steps for
prosecutors to take regarding discovery, most of
which were largely taken from the United States
Attorney’s Manual, which has existed for years.27
These include: (1) reviewing information from the
“prosecution team;” (2) ensuring that specific
categories of information is to be reviewed; (3)
establishing whether Giglio, or impeachment
evidence, exists by having a “candid conversation”
with federal agents who investigated the case; (4)
providing “material variances” in a witness’
statement to the defendant, and (5) establishing time
frames by which exculpatory information,
impeachment material, and Rule 16 material is to be
produced.28 The Guidance Memo is “prospective”
and like all Department of Justice policies, is not
intended to have the force of law or to create or
confer any rights, privileges or benefits on
defendants.29 Thus, although the goals of the
Guidance Memo are laudable, it remains to be seen
whether it will ensure real and sustainable change in
the criminal discovery process. New Rules of
Criminal Procedure or statutes that codify
protections for a criminal defendant rather than
discretionary policies created by the prosecutors
themselves may be needed.30
Responses by Defense Attorneys
Some defense attorneys have successfully obtained
greater Brady disclosure and other evidence when
they were able to build a record to convince the
court of real-time violations rather than litigating
the issue post-conviction. Examples of these
strategies include the following:
Be specific. Requests for Brady and Giglio
materials should be as specific as possible. For
example, interview notes of investigating agents,
scientific reports, settlement negotiations with other
relevant parties, documents generated by other
federal agencies that investigated the matter, and
other targeted requests of known or suspected Brady
material contained therein are far more powerful
than general requests for exculpatory information,
both in ensuring the original disclosure, and in
creating a favorable record should the disclosure be
nonexistent, insufficient, or a document is later
found to have been improperly withheld.
January 2010
Government Enforcement Alert
Reject Jencks as a shield to Brady. The government
often claims that a prior statement of a witness is
provided in a timely manner if provided pursuant to
the Jencks Act (18 U.S.C. §3500). Often this is only
disclosed a week or less before trial. But various
federal District and Circuit courts that have held that
Brady material within Jencks Act statements trumps
the statutory requirements of the Jencks Act may be
inefficiencies and bureaucratic disorganization in
the prosecutor’s office, rather than malice or
harassment. Gaps in discovery, particularly in areas
that already contained helpful information, should
be explored insistently and a proper record made of
any requests to the government.
Lawyers and interested parties on both sides of
counsel table are rightfully shocked when Brady
violations and other instances of prosecutorial
misconduct come to light. One of the defense
counsel in the Broadcom litigation, a former
prosecutor, noted that the “most enjoyable” part of
representing the government was “the presumption
of credibility…you are cloaked with it from the
moment that you walk into the courtroom. Usually,
from the judge’s perspective, frankly from the
clerk’s perspective, it’s your credibility to lose.”32
Append other discovery requests to the Brady
request. Specifically, Federal Rule of Criminal
Procedure 16(a)(1)(E)(i) states that the government
must permit inspection of a document if “the item is
material to preparing the defense.” Thus, if you are
unsure as to whether a sought document contains
Brady material or would traditionally qualify as such
material, you may consider asserting this right as
another potential basis for the government to provide
the document.
Brady violations are one instance among many
others in which a prosecutor can deservedly lose
some of that credibility. While a judge and the
public may give that benefit of the doubt to the
government, it is a defense counsel’s duty not only
to challenge the assumption that a prosecutor is
acting in good faith, but to proactively question the
government’s actions, particularly when it comes to
exculpatory evidence and the safeguards required
for a fair judicial process.
Document the government’s response through status
reports or detailed letters, depending on local
practice. In the Broadcom case, the court finally
took note after counsel exposed a large and
pervasive mode of prosecutorial misconduct.
You must review what you get. As the court noted
in the W.R. Grace prosecution, failure to provide
exculpatory information is often a function of
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United States v Bagley, 473 U.S. 667, 682 (1985).
Giglio v. United States, 405 U.S. 150, 154 (1972).
United States v. Agurs, 427 U.S. 97, 104 (1976)
Bagley, 473 U.S. at 682 (1985).
Brady v. Maryland, 373 U.S. 83, 84-85 (1963).
Id. at 87-88.
Id. at 87.
January 2010
Government Enforcement Alert
Kyles v. Whitney, 514 U.S. 419 (1995).
Kyles, 514 U.S. at 437.
In some cases Department of Justice lawyers take the
view that they must treat the civil agencies as a separate
entity and the defendant needs to ask the agency civil
lawyers to produce Brady material, even thought the
prosecution team includes that agency’s lawyers. See,
e.g., Gov’t Resp. to Def’s Mot. for Disc. at 1, United States
v. Radley, No. 08-CR-411 (S.D. Tex. Feb. 25, 2009) (“to
the extent defendants seek materials that ‘support[ed] the
CFTC’s civil complaint, that request should be directed to
the CFTC, not the Department of Justice.”).
Complaint of Chad Joy, United States v. Stevens, No. 08CR-231 (D.D.C. filed Jan. 14, 2009) (Doc. # 262).
Id. at 4-5.
Del Quentin Wilber, Judge Orders Probe of Attorneys In
Stevens Case, Washington Post, April 8, 2009, at A1.
United States v. Shaygan, No. 08-CR-20112, 2009 WL
980289 (S.D. Fla. April 14, 2009).
United States v. W.R. Grace, No. 05-CR-07, slip op. at 67 (D. Mont. Apr. 28, 2009).
Id. at 7.
Jury Instruction No. 4-28-09, United States v. W.R.
Grace, No. 05-CR-07 (D. Mont. Apr. 28, 2009) (Doc. #
1150) (emphasis added).
See, e.g., United States v. Blanco, 392 F.3d 382, 392
(9 Cir. 2004) (government suppressed information
regarding special INS treatment given to its confidential
informant – the Court stated that “[a]ny competent lawyer
would have known that Rivera’s special immigration
treatment by the INS and the DEA was highly relevant
impeachment material”); United States v. Sipe, 388 F.3d
471, 477 (5 Cir. 2004) (Brady violation existed when the
prosecutor provided an affirmative misrepresentation
concerning the scope of the benefits provided to testifying
witnesses and failing to divulge bias information regarding
the government’s main witness;); United States v. Rivas,
377 F.3d 195, 198 (2 Cir. 2004) (government improperly
withheld information from main witness that he, not the
defendant, brought narcotics onto a vessel; the
government’s “tactical reason” not to provide the
information was “totally unacceptable”); United States v.
Gil, 297 F.3d 93, 106-07 (2 Cir. 2002) (government failed
to timely produce a memorandum that went directly to the
defense of authorization in an alleged mail fraud).
United States v. Stein, 435 F.Supp.2d 330 (S.D.N.Y. 2006).
Of course, these are only federal cases. Instances of
prosecutorial misconduct at the state and local level also exist.
One of the most egregious recent cases involved the
suppression of DNA testing that exonerated defendants in the
Duke lacrosse case. See Robert P. Mosteller, Exculpatory
Evidence, Ethics, and the Road to the Disbarment of Mike
Nifong: The Critical Importance of Full Open-File Discovery, 15
Geo. Mason L. Rev. 257 (2008).
Joe Palazzolo, Holder Assures Judges Professional
Standards Will be Raised at the Department of Justice,
N.Y.L.J., May 5, 2009.
See David W. Ogden, Deputy Attorney General,
Memorandum for Department Prosecutors, Guidance for
Prosecutors Regarding Criminal Discovery, January 4, 2010
(“Guidance Memo”)
See USAM 9-5.001 – 9.5100
See Guidance Memo at p. 2-9.
See Guidance Memo at 1.
This Guidance will be discussed in more detail in a
forthcoming Alert.
See, e.g., United States v. Snell, 899 F.Supp. 17, 21
(D.Mass. 1995) (“[t]o be sure, when exculpatory evidence is in
the form of witness statements, the Brady obligation of pre-trial
disclosure appears to be inconsistent with the Jencks Act
obligation of disclosure after a witness has testified, hence, the
question of which law trumps which. It is inconceivable that a
statutory obligation should supersede a constitutional one,
especially where even the statutory obligation has a
constitutional Due Process basis”) (emphasis added); United
States v. Tarantino, 846 F.2d 1384, 1414 (D.C. Cir. 1998)
(stating that “[o]f course, under Brady v. Maryland, the
government has additional obligations deriving from the Fifth
Amendment to disclose exculpatory information, and the
limitations on discovery contained in the Jencks Act do not
lessen these obligations”) (internal citations omitted and
emphasis added); United States v. Shvarts, 90 F.Supp.2d 219,
229 (E.D.N.Y. 2000) (holding that “the constitutional obligations
imposed upon the prosecutor by Brady, Giglio, Agurs, and
Bagley must prevail over the Jencks Act where the two collide”)
(emphasis added).
Ruehle, Tr. at 5205.
United States v. Ruehle, No. 08-CR-00139, (C.D. Cal.
December 15, 2009).
United States Attorneys Manual (“USAM”) § 9-11.130.
(stating that “[o]rdinarily, there is no need to name a person
as an unindicted co-conspirator in an indictment in order to
fulfill any legitimate prosecutorial interest or duty”).
In a previous ruling, Judge Carney had stricken one
individual’s plea agreement.
United States v. Ruehle, No. 08-CR-00139, (C.D. Cal.
December 15, 2009), Tr. at 5201 (Carney, J.).
January 2010