Brady War Breaks Out In New York

The Criminal Justice Section of the New York State Bar Association has a long and honored tradition of equivocation so that no one’s feelings are hurt.  Unlike specialized bar groups, the section includes defense lawyers, prosecutors and judges, where disagreements are tempered by civility and the assurance that all will be shown “respect,” meaning that it’s better to compromise on the evisceration of constitutional rights than call anyone out so that they can share a glass of sherry afterward in camaraderie.

Then came Marvin.  Marvin Schechter is a past president of the New York State Association of Criminal Defense Lawyers, and the  only defense attorney member of the commission formed by the National Academy of Sciences that produced the report, “Strengthening Forensic Science in the United States: A Path Forward.”  And now (at least as of this writing, as it might change by the time you read this), Marvin is the chair of the CJS.

In the NYSBA Criminal Justice Section Newsletter, there’s a “message from the chair” column. As Marvin’s the chair, it’s his message.  And following a decision out of the Bronx by Judge Edgar Walker in People v. Waters, where the court held that the prosecutor engaged in an “affirmative act of deceit” by withholding Brady material. 

The Bronx District Attorney, Rob Johnson,  argued that the judge was wrong as the withheld material, that a key witness changed his story, wasn’t Brady:


True, the decision was written by a judge. But both the decision and Schechter seem to ignore the fact that the material in question was inculpatory rather than exculpatory, which was fully explained in our motion to reargue the case, which the judge denied without detailed analysis. That’s right, the versions of the witness’ testimony which were more favorable to the defendant had been fully disclosed and were already in their possession for use as impeachment material.

In his “message,” Marvin pulled no punches:


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.

The joint went nuts.  Manhattan DA Cy Vance, wearing his president of the District Attorneys Association hat and joined by former president and Westchester DA, Janet DiFiore,  wrote to the president of the NYSBA, Seymour James (who is also the president of The Legal Aid Society) demanding a “clarification” that Marvin’s slur, which he “condemned in the strongest possible terms,” was not the position of the NYSBA. 

James  responded that it was clearly Marvin’s opinion, and went on to remind them that withholding Brady was the “most common cause of wrongful convictions.” 

In a  letter to the editor in the New York Law Journal, Richard Willstatter, president of the New York State Association of Criminal Defense Lawyers, in a clean break from his penultimate predecessor who preferred to curry favor with the district attorney, fully supported Marvin, adding:


The reliance of the district attorneys association on a recent handbook it prepared is telling. The handbook asserts that prosecutors need only disclose “material, exculpatory information.” But Vance certainly knows that is simply not the standard set forth by our courts and guaranteed by our Constitution.

This prompted Brooklyn DA, Joe Hynes, to write a letter of his own, castigating Willstatter for not being sufficiently respectful of prosecutors and, bizarrely, not reciting at length Marvin’s slur.


While it does not serve the best interest of our profession for Willstatter to commend Marvin Schechter, chair of the Criminal Justice Section of the New York State Bar Association for his baseless and reckless claim that “state and federal prosecutors frequently withhold evidence favorable to a defendant,” it’s unfortunate that he omits Schechter’s shocking and calumnious charge in a recent column he authored as chair of the section that the district attorneys of this state teach young prosecutors to violate the Brady rule as a matter of policy.”

Internally, prosecutors in the Criminal Justice Section went ballistic, with an email to members by Queens Chief Executive Assistant District Attorney Jack Ryan, joined by the others, stating:


The current Chair of this section did not accuse District Attorneys of not training or poorly training Assistant District Attorneys on Brady. He accused us of actually teaching Brady violations.  I can express my outrage, but I cannot feign surprise that these are the opinions of our current Chair.  His opinions would be just that, his opinions, and of little note except that he expressed them as the chair of our Criminal Justice Section.  I seek no apology from our current chair – his beliefs are his own and I can*t imagine that he would sincerely apologize for his outrageous statements.  I do, however, seek a clear statement from this committee, not just that the current chair*s statement is not the view of the committee, but specifically disavowing his statement that District Attorneys intentionally teach Brady violations.

Word is that there are more letters to the editor coming, including this stinger from former NYSACDL president Dan Arshack.  This Pandora’s box being opened, it’s too late now to slam it shut.

The problem isn’t that Marvin is figuratively correct, but that he is precisely right.  Prosecutors aren’t forced to listen to some guy who looks like  Snidely Whiplash teaching them tricks to violate the Constitution.  They are, however, taught that their duty is to disclose only “material, exculpatory” information, leaving it to the prosecutors themselves to decide what’s material and what’s exculpatory, even though Brady requires disclosure of anything favorable to the defense, without condition that the prosecutor gets to decide its materiality.

Even so, it’s not nearly enough, as the duty isn’t limited to material that tends to prove innocence, but also to information that can be used to impeach prosecution witnesses.  It’s worth adding that failure to reduce “the bad stuff” to writing doesn’t obviate the duty either, as it’s the information, not the written evidence, that’s required to be disclose.

Ironically, the protestations of outrage, unprofessionalism and disrespect by the district attorneys have proven Marvin’s point.  They have confirmed in writing that they are teaching their baby prosecutors to withhold Brady.  And frankly, as these are some pretty smart people, and it’s not all that hard to read Brady, Giglio, Bagley and the rest of Brady’s progeny, it’s inconceivable that they don’t know what their constitutional obligations entail.

In an interview with Joel Stashenko at the NYLJ, Marvin relinquished all hope of winning the Nobel Peace Prize by sticking to his guns:
“There is nothing new in what I said. There is nothing outrageous in what I said,” Schechter said. “D.A.s are responsible for the training of the assistant D.A.s when they come to their offices and we have yet to see from the D.A.s any explanation of why these Brady violations are occurring in the record numbers they are occurring and in the seriousness in which they are occurring.”

The real shame is that the district attorneys demonstrate far more concern with salvaging their dignity after this well-deserved smack than they do about  Brady failures and wrongful convictions, which they persist in sloughing off as if they can’t possibly imagine how such isolated incidents continue to occur. 

The prosecutors want to be treated respectfully. So do defense lawyers and defendants. If they want to have a civil and respectful discussion about why things go wrong, then it starts with some harsh truth, one of which is that they are not teaching their people the full scope and depth of Brady.  Show us you deserve the respect you crave by conceding that there is a huge problem. Then work together to fix it.  Afterward, we can sip sherry.




 










8 comments on “Brady War Breaks Out In New York

  1. Alex Bunin

    Marvin is a hero on many fronts. We have the same problem in Texas. even when you point out the many times that Brady violations have put innocent persons in prison or on death row, they claim these are just a few bad apples.

  2. SHG

    If anything, Marvin could learn a bit from me in handling issues with a more diplomatic touch.

  3. Zachary

    Amen. I, in my lack of knowledge about the legal system, had sort of assumed that the defense and prosecution were more or less required to tell each other everything; after all, the resolution of the case should be dependent on the strength of the legal arguments, and the ability of the prosecution/defense to persuade the jury, not on evidence one side or the other didn’t know about.

    It was kind of shocking to me, to see that not only do prosecutors withhold this sort of stuff regularly, but that they’re more or less instructed to do it as a matter of course.

    Schecter doesn’t pull any punches- nor should he. Honesty shocks everyone in the political and legal fields, which are more or less built around massive structures of niceties, politesse, and BS.

    We had a (vaguely similar) case here in South Carolina, where the Supreme Court essentially dope-slapped the SC Republican Party, when it refused to comply with a court order to make sure all its candidates were in compliance with the law. It was thoroughly satisfying, even though I am a republican, to see a party get slapped down when they’re that far in the wrong.

    Similarly, I can only hope that the smack-down will come to the DA’s and AG’s across the country that try to knowingly and willingly break the law by withholding evidence.

  4. SHG

    As a friend noted, they aren’t outraged that this happens under their control, but that someone said it out loud. Marvin is nothing if not honest.

  5. Former ADA

    I have enjoyed this blog, and never felt the need to comment. But this post begs for a response, and as a former NY ADA and current AUSA, I have to correct the record.

    You have stated, “Brady requires disclosure of anything favorable to the defense, without condition that the prosecutor gets to decide its materiality.” I understand that, as a criminal defense attorney, you would like this to be the case. But you must surely know that SCOTUS has made crystal clear, in Strickler v. Greene, that, in fact, Brady only requires the disclosure of material exculpatory evidence (its been a while since I practiced in NY, but my recollection is the NY CAAP hasn’t adopted a different rule). To tell your readers the Constitution requires otherwise is deliberately misleading.

    Now, should a prosecutor, as a practical matter, refuse to disclose exculpatory evidence because he/she believes it is not material? Probably not (although the burden of disclosing any evidence that could possibly be impeaching (as opposed to truly exculpatory) may counsel in favor of a different approach). Materiality can’t be judged until the trial is complete, so the prosecutor is taking a risk in making such a determination before all the evidence is in. But if the prosecutor gets the balance right, refusing to disclose non-material exculpatory evidence is perfectly lawful. I have a hard time believing you don’t know this.

    That being so, for you to accuse DAs of acting improperly in training their ADAs that their disclosure obligations only extend to material exculpatory evidence is, to be frank, outrageous. You must know better. If you or someone use can convince SCOTUS or the NY CAAP to adopt a different rule, we can talk. But until then, you, just like NY’s prosecutors, are required to acknowledge the state of the law as it currently exists, whether you personally like it or not.

  6. SHG

    Glad you enjoy the blawg, even though I imagine some of my posts don’t quite reflect your views.  As for Strickler v. Greene, it is indeed clear:


    There are three essential components of a true Brady violation: the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued

    It does not state that Brady is limited to exculpatory, but “favorable.” Impeachment (Giglio), which had previously been argued as a separate Brady-type issue, was a subset of Brady. Impeachment is a very broad category of information, ranging from differing stories (whether more or less inculpatory, either of which shows that a witness has changed his story) to bad acts, improper motivation, etc. It may not be exculpatory at all, but it is more assuredly favorable to the accused.

    As to materiality, the prosecutor is rarely in a position to judge the materiality of information. As you correctly note, materiality is really an appellate issue, where the value of Brady can be determined in light of the evidence. A prosecutor doesn’t know what the defense plans to do, the aspects of the case at issue, the strategy or tactics to be used by the defense. A prosecutor may know what his case is, and where he thinks the holes are, but he can’t know what evidence the defense possesses or what direction the defense plans to take.

    Moreover, Brady material may lead a defense in an entirely new direction, providing information that will open up a direction that was previously unknown. One piece can lead the defense to investigate something they knew nothing about, or previously thought a dead end, which results in a completely new strategy.

    The prosecutor can’t assess this. Of all the players in the case, the prosecutor is in the worst position to appreciate the materiality of information and evidence for the defense.

    When prosecutors are trained to limit Brady disclosure to that which is exculpatory and, in their mind, material, they are being trained to violate Brady.  When they are trained to take a narrow view of Brady, limited to anything they believe they can successfully argue was not sufficiently material, they may end up getting away with it (as in Strickler, an awful decision on materiality where they held concealed impeachment material about a key witness wasn’t enough to result in a different verdict), they are being trained to violate Brady

    Note (and this is critical) that in Strickler, the Court held that the material was Brady, should have been disclosed, was suppressed, and yet refused to reverse because, in the Court’s view, it wasn’t significant enough to have a reasonable probability that its disclosure would have resulted in an acquittal. In other words, there was a violation, and the prosecution got a free pass on it after the fact on the “not enough harm, no foul” rule.  Teaching Strickler as the bar for disclosure is teaching prosecutors to violate Brady.

    Sorry, but that’s the law.

  7. LTMC

    The California Supreme Court said it best:

    “It is not the role of the prosecutor to decide that facially exculpatory evidence need not be turned over because the prosecutor thinks the information is false. It is ‘the criminal trial, as distinct from the prosecutor’s private deliberations’ that is the ‘chosen forum for ascertaining the truth about criminal accusations.”

    — In re Miranda, 43 Cal. 4th. 541, 577 (2008)

    Prosecutors are in an institutionally incompetent position to judge materiality, meaning they should, as a rule of thumb, err on the side of disclosure. The problem is that the adversarial nature of the American system incentivizes prosecutors to withhold whatever they can get away with from the defense, on account of a well-documented culture in prosecutors’ offices across the nation that places conviction rates above everything else.

    What I’ve never understood is why a prosecutor would *ever* want to withhold evidence from the defense under any circumstances. It is mind-boggling to me, given the well-known mantra that the duty of a prosecutor is not to seek convictions, but to “see that justice is done.” How could full disclosure of all available facts ever possibly run counter to that duty? If the evidence conclusively demonstrates guilt, no amount of disclosure will undermine your case. The fact that there is even a debate over this question tends to demonstrate the existence of the problem.

    Oddly enough, I have an interview with a NYC DA’s office in a couple weeks. Everybody’s been telling me not to mention that I think prosecutors should err on the side of disclosure in my interview. I’ll be sad if there’s no room in prosecutors’ offices downstate for somebody who would rather see a person acquitted than withhold evidence and justify the same by arguing that it’s not “material.” If evidence is genuinely not material, then disclosure is not going to hurt your case anyway.

  8. SHG


     If evidence is genuinely not material, then disclosure is not going to hurt your case anyway.

    All other argument aside, this should be doctrinally sufficient to require disclosure.  The problem is reversal for non-discolsure depends on materiality, which makes some sense since you wouldn’t want to reverse a murder conviction for the inadvertant failure to disclose a bit of non-material information.

    The problem is that prosecutors should be taught to disclose everything even remotely favorable to the defense, good, bad or in between. If it’s material, they’re require to disclose. If it’s not, no harm. Problem solved and Constitution protected.

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