While the prosecutor’s duty to disclose Brady material is affirmative, there’s a backdoor in the case of failure where a defendant knew or should have known the existence of impeachment evidence.  It’s a foolish rule, relieving the prosecutor of the consequence of failure by subsequent speculation about what the defendant might have known.  But then, Brady has always been one of the cruelest jokes.

It had to be weird for Jeffrey Dean Ford to sit in the defendant’s chair and listen to the testimony of Constance Goins about his robbing banks.  After all, Goins was the sister of Ford’s wife, and his wife was living with her mother and Goins while Ford dined on the state’s dime.  He knew Goins was no angel, having a multitude of criminal problems of her own, yet somehow free to sleep in her own bed.  But there his lawyer was given no evidence to use at trial to show that Goins’ testimony was a quid pro quo.

Sure, there was speculation. There’s always speculation about a snitch getting a deal, testifying in exchange for lenient treatment. It’s the nature of the snitch.  But proving it, confronting the witness on the stand with the fact that a promise was made, a deal cut, is another matter. The hope of leniency for “truthful testimony” always emits an unpleasant odor.  Finding the rot that gives off the scent to show the jury is the key. 

Ford’s lawyer eventually obtained Goins’ files, well after Ford’s conviction, and went about the task of exhausting remedies before he made his way to federal court. After all, the smoking gun of Goins’ deal was not only true, but denied the defense at trial. Another Brady failure. Ho hum.  But as he approached the federal courthouse, the door slammed shut.  From the 9th Circuit’s opinion in Ford v. Gonzalez :

Petitioner-Appellant Jeffrey Dean Ford (Ford), a California state prisoner, appeals from the district court’s dismissal as untimely of three claims in his petition for a writ of habeas corpus, under 28 U.S.C. § 2254. Ford argues that his claims are timely because the prosecutor withheld evidence that Constance Goins (Goins), a witness for the prosecution at his trial, received lenient treatment in her own criminal cases in return for testifying against him. We hold that Ford is not entitled to delayed commencement of the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §§ 2241 et seq., because the factual predicate of his claims could have been discovered had he exercised due diligence at his trial.

Of course, in our nation’s zeal to stop terrorism, it was crucial to limit habeas relief to a year so the terrorists don’t win. 

The majority opinion by Judge Milan Smith doesn’t question whether the prosecution completely and totally failed in its affirmative obligation to turn over Brady as to Goins.  Rather, they ignore the prosecution’s burden and focus instead on Ford.

Based on the testimony offered at Ford’s trial, Ford had reason to suspect that Goins may have sought and received some benefits for assisting law enforcement. At the very least, Ford and his trial counsel were aware that, despite being found in possession of drugs by a police detective, Goins was not arrested. In fact, his trial counsel remarked at trial that he wanted to argue to the jury that Goins “did what she did because she was expecting a deal from the DA’s office,” but declined to press this argument. Thus, Ford’s trial counsel was clearly aware of the possibility of a deal. Regardless of whether this knowledge is attributed to Ford, it illustrates that the testimony at trial gave ample reason for a reasonable person in Ford’s position to investigate further whether Goins sought and received benefits in return for assisting law enforcement.

This is a really cool trick, since every time a witness with some sort of criminal issues testifies for the prosecution, everyone who isn’t on a jury knows they’ve got some personal benefit in mind. The problem is overcoming the pat arguments used to convince the jury that they’re telling the truth, and without actual proof of the deal, the defense is usually precluded from anything more than noting the unpleasant smell in the courtroom. It’s just business as usual.

But then Judge Smith throws a knife into Ford’s heart.

Beyond the testimony at trial, the unique living arrangements and active assistance of Beverly Ford, his wife, also gave Ford access to information about whether Goins had received a deal. Beverly Ford, Goins’s sister, lived in the same house as Goins and their mother. As the magistrate judge found, “it is more than arguable that Beverly Ford was present and aware of Goins’ various criminal cases and their dispositions” after Ford’s arrest. During and after the trial, Beverly Ford pressured Goins to help Ford, and took an active interest in Ford’s case. The magistrate judge did not speculate as to what specific information Beverly Ford was privy to or what information she relayed to Ford. Beverly Ford’s assistance was an additional resource a reasonable person in Ford’s circumstances could have used to discover the factual predicate of his claims at the time of his trial.

Prosecutor’s duty to turn over impeachment evidence? Pshaw. It’s all Beverly’s fault.  After all, she was living in the same house as Goins, and she should have certainly figured it out.  No doubt the trial judge would have found defense counsel’s argument overwhelming if he said, “but your Honor, the defendant’s wife says so, and what more proof would you need?”

Or as Judge John Noonan dissent notes in his opening paragraph: