The Appellate Division, First Department decided  People v. Garcia only two days after Christmas, which a more cynical person than me would surmise was planned to make sure that the decision would fly under the radar.  The reason is simple, it rips to shreds the office of Rob Johnson, the Bronx District Attorney.  While they may have been miffed enough to smack him hard, there’s still a degree of professional civility around.  No need to make it a front page story and embarrass Rob any more than necessary.

This story has already made the rounds, including a great post by Nicole Black at Sui Generis, for its strong language castigating the District Attorney’s deliberate concealment of Brady material from the defense, and for the language in their brief arguing that deliberate concealment of Brady constitutes “an arguable lapse of preferred practice.”

While I have nothing against jumping on the bandwagon, that’s not my purpose in this belated Garcia post.  Rather, it’s to bolster my essay (which Dirk Olin prefers to call a polemic) at Judicial Reports on the subject of Brady.  My point then, and now, is that Brady has been reduced to a shell game, dependent on the integrity of any given individual prosecutor to identify evidence as such and then turn it over.  Garcia is the result of this massive failure of law.

In the Garcia case, Bronx Supreme Court Justice Steven Lloyd Barrett tossed the convictions after a 440.10 (post-conviction) motion.  Thus, three intervening and fortunate events occurred.  First, the defense found out that Brady existed.  By definition, the Bronx ADA didn’t turn it over, thus shifting the burden to the defense to “discover” its existence on their own.  What are the chances?  Well, obviously the Bronx ADA didn’t think they were very good.

Second, Garcia’s lawyers, the Office of the Appellate Defender, didn’t close the file and run away.  While most civilians would be appalled at this notion, defendants receive indigent counsel for certain purposes, and counsel not infrequently will fulfill the prescribed function but go no further.  In other words, assigned appellate counsel went outside its zone by bringing the 440.10.  If they refused to do so, chances are strong that Garcia would have either been forced to find a private lawyer to take the post-conviction motion for a fee, or give it up.  He was lucky to have the Office of the Appellate Defender on his side.

And finally, Judge Barrett is a sharp, ballsy judge.  While the Bronx has its share of exceptional judges, it also has its share of duds.  Garcia was fortunate that his judge was one of the strong and smart ones, not afraid to toss a conviction under these circumstances.  And what if Garcia’s case went to a different judge?  We’ll never know. 

If we take away the confluence of the events that led to this decision, what would have happened.  In all likelihood, the ADA’s attempt to conceal Brady would have succeeded and Garcia would be doing his time.  The point is that we tend to feel that the system works great when we have an occasional success as happened in Garcia.  My point is that the success in Garcia represents the exception, and the rule remains that Brady remains a sorry farce.