That Second Circuit.  What a bunch of cards, eh?

The government’s duty to disclose exculpatory information under Brady v. Maryland took a few more twists and turns in  U.S. v. Rodriguez, 05-CR-3069, according to the New York Law Journal.  The putative holding, by Judge Pierre Leval (who was a pretty decent judge in the Southern District) was that the Brady obligation applied to oral as well as written materials.  This came in response to the government having neglected to take notes when their snitch talked about being a pathological liar (my interpretation).  Go figure.

So far, pretty good decision, right?  Well, don’t jump the gun there, grasshopper.  Don’t you love mixing metaphors?  The trial was before Judge Robert Sweet, another one of the more decent people on the Southern District bench, and the existence of the Brady material came to light during the witnesses testimony. 

“Wait a sec,” you say.  What happened to disclosing the Brady in advance of trial?  “That’s for kids,” says Judge Sweet, who also adds that he’s aware of no mandate to disclose exculpatory information that is not preserved in writing.  That doesn’t sound like too big a hole in the Brady obligation, now does it?  While Judge Leval refused to approve the government’s argument that “disclosure on direct” is all the Constitution requires, he also failed to exactly disapprove.  He could, for example, have said that the government must turn over all Brady material at some point before the trial (like as soon as possible, for example).  But why should the defense be given half a chance to investigate it, or even know about it before the plea.

But, that’s hardly the worst to come out of this case.  While the government conceded that its “conscious avoidance” of the creation of Brady material might not have been the “better practice,” it went on to say in a letter to the Court:

[I]ts conduct at the trial would not have satisfied a subsequent U.S. Department of Justice rule that requires prosecutors to obtain supervisory approval not to disclose impeachment information before trial.

There’s a United States Department of Justice rule that requires approval before violating the Constitution!  Let this sink in a bit before we move on.  They’ve got a rule.  If you want to violate the Constitution, you must get supervisory approval.  Who do you ask if you want to torture someone?  Well, I guess that’s a silly question.

It’s clear to any trial lawyer how important Brady/Giglio material is to prepare for cross-examination, particularly of a snitch.  That the government views its disclosure duty as voluntary endeavor at best comes as no surprise, given how much latitude the courts allow the government and how little they care about the defense’s ability to prepare (or win) for trial.  Under these circumstances, Judge Leval’s decision is frankly pretty darn pro-defendant (or pro-Constitution, if you prefer).  Not that it really gets you anywhere, since the turnover at trial alone should have been enough to shoot down the conviction.  But the disclosure of the government’s rule, that they can only violate the Constitution with approval.  Now that’s priceless.