Guest Blogger:  Peter D. Hardy, Post & Schell, P.C. (Philadelphia, PA)

Moderator:  Gerald B. Lefcourt

Panelists:  Robert Cary, Hon. Nancy Gertner, Prof. Bruce Green, Paul Shechtman, Larry Thompson 

Gerald Lefcourt noted that it has been over 46 years since the Brady decision was issued, yet we still have no firm definition of Brady that most federal prosecutors can follow.  There are varying and conflicting practices amongst prosecutors in regards to definitions and the proper time frame for disclosures.  Moreover, incidents of Brady violations or potential violations are not uncommon.

Robert Cary represented Senator Ted Stevens.  The heart of the defense was a note that Senator Stevens had sent to Bill Allen, the key government witness and the builder making improvements on the Senator’s chalet, which stated in part that the Senator wanted to make sure that Allen got fully paid, and that “friendship is one thing, but compliance with these ethics rules is another[.]”  The government responded to this note by eliciting testimony from Allen that the note was just the Senator trying to concoct a cover story.  After the guilty verdict, the second FBI agent on the case filed a self-described whistleblower complaint regarding conduct by the prosecution team.  The Court ordered the government to provide discovery regarding the complaint, and a new prosecution team was put in place.  New discovery contradicted directly the government’s theory and evidence at trial that Allen regarded the note as a mere cover story.  Carey described the Attorney General as a hero for moving to dismiss the case.  All of this happened only after a long trial and post-trial process (as well as Senator Stevens losing his re-election bid).  Judge Sullivan, who oversaw the case, is to be commended for being careful and not simply taking the government’s word.

So, what should be done?  Judge Gertner explained that the solution needs to involve the rules (ethical, court, and criminal procedure).  The case law has slid into an outcome-determinative approach, which makes it very hard for the prosecutor to predict.  The materiality standard is colliding with the harmless error doctrine.  Brady had more to do with a failure to turn over evidence impugning the system, rather than predictions regarding potential outcomes.  The definition of Brady should be re-assessed, and there also should be deadlines set for when information should be turned over:  for example, 28 days before.

Professor Green described how the ABA code of ethics set forth in the 1970s a discovery rule for prosecutors:  you must turn over information that would tend to negate the guilt of the accused.  Everyone had assumed that this rule overlapped with Brady.  But, the rule is not co-extensive with Brady – for example, it does not have a materiality standard.  Rather, it categorically requires the disclosure of favorable information, or information which might lead to favorable evidence.  A materiality test is really directed at post-conviction review, and is not well suited to govern the conduct of prosecutors at the time they are making their discovery decisions.  Defense attorneys also need to know about exculpatory information in order to assess a case and decide whether or not to proceed to trial.

Paul Shechtman described federal plea agreements in New York which require waivers by the defendant of either impeachment and/or all exculpatory information.  These plea waivers apparently run afoul of the rules just described by Professor Green.  Current cases strongly suggest that prosecutors need more education regarding their obligations under Brady, in order to be better able to appreciate the exculpatory value of evidence.  We need to reassess Brady, which has been hijacked by the materiality doctrine.  The burden now is on the defendant to show materiality.  In Brady, Justice Marshall wrote in dissent that the test instead should be harmless error, in which the government has the burden to show that the conviction should not be reversed.  The materiality requirement invites courts to preserve convictions, despite poor decisions and poor decision-making processes by prosecutors.

Larry Thompson described a case in Detroit in which the prosecutor made false statements to the Court, and actually was prosecuted himself.  Judge Gertner noted that part of the problem here is lack of meaningful remedies.  There is professional discipline, but discipline is unlikely.

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