NY “Closes” The Brady Gap With A Sucker’s Bet

When Wild Bill Douglas wrote the majority opinion in Brady v. Maryland,* he played a cruel trick on the defense. One little detail was omitted from the decision. Just a small thing. Barely worth mentioning, except for the fact that it was the key to any meaningful use of Brady material: When the duty to disclose arose.

That was 1963.

New York’s Chief Judge Janet DiFiore announced via a memo from the Chief Administrative Judge that she will issue a new rule requiring Brady disclosure by the prosecution 30 days before trial.

Judges would be required to issue the order at the first court date where both the prosecutor and defense counsel are present. Judges could choose to issue a model order included in the memo or write their own.

Disclosures are to be made at least 30 days before trial in a felony and 15 days before trial in a misdemeanor case. The model order requires prosecutors to look through files to find information favorable to the defense.

This is huge, a paradigm shift in that this is the first time a state will establish a fixed mandate to disclose Brady (which includes Giglio material as well). In the past, the defense would get Brady if and when the prosecution felt like disclosing it.

“This is a very big deal,” said Barry Scheck, a co-founder of the Innocence Project. ”They should be doing it before trial.”

Well, yeah, sure, they should. And as the Innocence Project has amply demonstrated, concealment and withholding of Brady is regularly implicated in wrongful convictions. Note Barry’s second sentence, “before trial.” If the prosecution acknowledges the existence of Brady material at all, it’s often turned over too late to make use of it. The day before trial. During trial. A week after the verdict. That’s if you’re lucky, since failure to turn it over means the worst that can happen is a new trial, and that’s a long shot as the burden falls to the defense to prove the Brady would have been likely to produce a different verdict.

But 30 days before trial?

Though Brady material is supposed to be given to the defense as soon as prosecutors obtain it, a report by the New York State Bar Association found that withholding it — willfully or not — was among the leading causes of wrongful convictions. Judge DiFiore’s new rule not only puts the onus on the prosecutors to comb their records for Brady material, but also places them on notice that they could face punishment for not disclosing it.

This isn’t quite right, as there is no “supposed to be given” time frame to Brady. There is no law, no rule, no decision that requires any particular time for turnover. If it’s turned over six months after the prosecutor learned it existed, so what?

And not to belabor the flip side of the point, but since 97% of cases end in guilty pleas, long before trial is a twinkle in a defense lawyer’s eye, 30 days before trial is a million years after the decision to go to trial has to be made. Guess what critical information remains unknown as the defendant decides his fate? Brady delayed is Brady you never knew existed.

Nor does this alter the scope of the prosecutor’s duty to search for Brady. Prosecutors have always been responsible for whatever is in the file, theirs and the cops, and charged with constructive knowledge of the existence of Brady material. The new rule explicitly says so? That’s nice.

Moreover, the measure gives defense lawyers a novel form of leverage, allowing them to proactively request that judges make sure that evidence is released in a timely fashion, instead of having to complain after the fact that the prosecution was slow to show its hand.

This too isn’t quite right. Lawyers always demanded Brady in their discovery motions as a matter of course, and judges routinely granted it “to the extent it exists.” And prosecutors routinely responded that they were aware of their Brady obligations and would certainly turn it over should it exist. This was boilerplate, and amounted to nothing.

So is Brady fixed now? Well, at least there is now an actual time frame, even if it’s not quite what it looks like from the outside. Brady material isn’t always the end game, but usually the starting point of investigation. Once the defense learns of Brady, it then has to chase down witnesses or evidence, find out what it all means, get cooperation and figure out how to put it to use. All of this has to be done during the 30 days before trial, while you’re simultaneously trying to prepare for trial.

And while the rule requires prosecutors to search their files, this is a red herring. They already know what’s in their files, and whether they decide it’s Brady remains entirely in their discretion. Sometimes it’s obvious, like another guy’s DNA or prints, but often the value of Brady requires a knowledge of the defense. The prosecutor doesn’t know the use to which evidence might be put by the defendant, so he’s not in a position to recognize Brady if it smacked him in the face.

None of this, however, changes New York’s nightmarishly limited discovery laws.

[Legal Aid Society’s Attorney-In-Charge Seymour] James, who welcomed Judge DiFiore’s order, noted that it would not directly affect New York’s antiquated discovery law, which heavily favors prosecutors. Unlike a handful of other states, which have passed legislation forcing prosecutors to hand over all discovery material as fast as possible, New York currently permits district attorneys and their assistants to delay giving defense lawyers some forms of evidence until a jury is sworn in. That makes it harder for the defense to prepare for trials and effectively cross-examine witnesses, providing prosecutors with what critics have called an unfair tactical advantage.

It’s far worse than this suggests. We get almost no discovery, as it’s limited only to a statutory list of items, most of which are ignored or get a boilerplate response. To the extent there is any “good stuff,” it’s in the Rosario material handed over a day or two before trial (if the prosecutor is a nice person) or right before cross (if the prosecutor isn’t).

So providing a 30-day advance requirement for Brady disclosure is a positive change. For those prosecutors who choose to play by the rules, they now have rules to follow. It won’t change the problem with identifying Brady. It won’t fix discovery otherwise. And 30 days before trial might be better than 30 hours, but in a case that has taken more than a year to reach trial, it’s still far too late to make the best use of the information.

And what happens to prosecutors who fail to comply with the rule?

Under federal law, prosecutors are immune from being sued for most actions taken while performing their official duties and are rarely held accountable, even for egregious courtroom errors. In keeping with that trend, Judge DiFiore’s order was specifically tailored to permit sanctions only against prosecutors who commit “willful and deliberate” misconduct, sparing those who merely make mistakes.

This is where trial lawyers smirk and shake their head. We’re incredibly lucky to find out that concealed Brady existed at all. Even if we’re lucky enough to stumble onto it, the chances we could show “willful and deliberate” misconduct are infinitesimal. It could happen, just like prosecutors could take this rule seriously and not shrug it off with a chuckle, but our clients are betting their lives on it. It’s a sucker’s bet.

*For the non-lawyers, Brady and its progeny refer to information or evidence which tends to be exculpatory to the defendant or can be used to impeach the prosecution’s witnesses.

15 thoughts on “NY “Closes” The Brady Gap With A Sucker’s Bet

  1. Nick Lidakis

    “All of this has to be done during the 30 days before trial, while you’re simultaneously trying to prepare for trial.”

    Sounds incredibly difficult even for a CDL who can get paid in pallets of bacon and bourbon. Double woe be to him the young public defender in an ill fitting suit?

    1. Billy Bob

      “Ill-fitting suit,”,,, Hey, you got that from me! Right here, a couple of times? Add to that: “graduated from the bottom of his law school class.” You won’t find too many top-tier law grads or valedictorians seeking employment at the nearby public pretender’s office. It just is not done. This Brady stuff is trickier than I imagined. However, we’ll take whatever improvements we can get. Prosecutors and DAs are a sick bunch.
      Finally, both the judiciary and the legislatures like 30 days. It’s a nice round number. Thirty days has September, April, June and November?!?

        1. Billy Bob

          Oh really now! And look where that gets em? (They get to transfer to the prosecution side, which leads to an eventual judgeship. Who do you think you’re kidding?)
          Guess I was a day late and a dollar short [at the defense table]. Where were they when I kneeded them? Huh? This is totally crazy! Yous guys keep moving the goalposts,…

  2. B. McLeod

    While this isn’t perfect, it is leaps and bounds ahead of the approach (5th Circuit school) that precludes the defendant from raising a Brady violation if the defense did not take the case to trial (i.e., if the defendant entered a plea because the Brady evidence was undisclosed). With this 30-day rule, at least the prosecutor has to violate a court obligation in order to delay disclosures to the trial setting. How much of a practical difference that ends up making may depend on what your courts are willing to do in cases where the rule is not honored.

    1. SHG Post author

      Cop a plea within the 30 days of trial period and the problem would seem eliminated (with, of course, the other caveats). But most pleas happen earlier. And, I note, it’s hard to prove 30-days before trial unless you start picking.

  3. Richard

    And yet I can ask for, and enforce my client’s right to, any possibly relevant information at any time during the pendency of a low value civil case.

    1. SHG Post author

      Civil lawyers can’t believe how little discovery is available in crim cases. By “can’t believe,” I mean they think we’re lying to them because of their experience in civil discovery. It makes CDLs chuckle.

      1. Lee

        I believe you, Scott. Of course, I’ve been reading your blog for years so I am probably better educated than most of my colleagues of the Civil bar. 🙂

  4. LegallySpeaking

    I wonder if the remedy of “automatic reversal” will be universally applied if the rule is violated. In my opinion, that is the only way to ensure prosecutorial compliance. If not—if the Court of Appeals goes by the prejudicial error-type standard, then we can expect compliance still won’t occur.

    I’ve found that hard and fast rules requiring reversal if prosecutors do X means that prosecutors immediately stop doing X. Anything less and they’ll continue the same policies as before.

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