We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
PROSECUTOR DISCIPLINE WITH A WET NOODLE
Just last week, I had someone tell me he was going to file a 2255 motion just as soon as he filed a bar complaint against those lyin’ prosecutors.
Good luck with that. A report last week illustrates the futility of expecting any favorable result from bar complaints against prosecutors.
A decade ago, the District of Columbia Court of Appeals ruled that the U.S. Attorney’s Office violated Brady v. Maryland by not disclosing exculpatory information to the defense during Carl Morton’s and Alonzo Vaughn’s convictions for aggravated assault and assault on a law enforcement officer. It has only taken 10 years for the same court to decide that the two prosecutors responsible should each get a year of probation plus a stern warning not to commit any further misconduct, or they would be suspended from practicing law for six months.
Both Mary Chris Dobbie and Reagan Taylor are still DOJ prosecutors. In 2021, the D.C. Board On Professional Responsibility unanimously recommended that each receive a six-month suspension from law practice. However, the Board “ratcheted down the sanction to probation based on ‘one overriding mitigating circumstance’,” according to a report last week in The Intercept. That circumstance was the “deficient conduct” of their supervisors, Jeffrey Ragsdale and John Roth.
Neither Ragsdale nor Roth was subject to any ethics charges or misconduct findings. Roth was later promoted to be inspector general for the Department of Homeland Security. And Ragsdale? He’s now in charge of the DOJ Office of Professional Responsibility, which oversees investigations into alleged prosecutorial misconduct.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
HOBBLED BY TECHNOLOGY AND BUREAUCRATIC INCOMPETENCE
After seven years, over 1,400 posts and (this coming Sunday) our 400th weekly newsletter, our website crashed late last week. Our outstanding web host, which I won’t name but rhymes with “Bluehost,” only required five contacts and 96 hours to restore us.
Makes me proud to have sent the company all that money for so many years…
ALL IN THE FAMILY
Gilbert Bicknell and his son Junior ran a drug distribution business. Nothing wrong with that: Eli Lilly, Abbott Labs, and Pfizer do the same, earning substantial profits for their shareholders.
But Gil and Junior operated on a much smaller and less legal scale. They sold methamphetamines (and not from a licensed pharmacy, either). In July 2020, the police saw the pair passing around meth at a gas station. When the duo left in separate cars, the police gave chase to Junior (who was holding the bag). Gil swerved to cut off the pursuing cruisers to no avail, and both were arrested.
Gil pleaded guilty and, to avoid the 10-year mandatory minimum, gave the authorities a statement to qualify for the18 U.S.C. § 3553(f)safety valve, which lets a district court impose a sentence below the otherwise mandatory minimum to low-level drug defendants who “truthfully provide to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” Gil debriefed and then claimed at sentencing that he should receive relief from the 21 U.S.C. § 841(b)(1)(A) 10-year mandatory minimum.
But Gil didn’t reckon on Junior, who cut his own deal and told the government that his dad had been less than candid in his debrief, leaving out a lot of criminal mischief from his admission of wrongdoing. At Dad’s sentencing, Junior testified against his father. Gil got 151 months.
But the government wasn’t without blemish. It signed a written plea agreement with Junior which he agreed to cooperate with the government by providing information about his father’s criminal conduct. But “perhaps owing to a clerical oversight,” the appellate decision helpfully suggests, “the plea agreement itself was not entered into the district court’s docket.” The government never disclosed the agreement to Gil.
At Gil’s sentencing, Junior testified against his father. What’s more, the boy falsely and repeatedly claimed he had entered an “open” plea of guilty – a plea not made pursuant to a plea agreement. The Assistant U.S. Attorney – who was the same one who signed Junior’s plea agreement on behalf of the government – suborned the perjury.
The government also put the case agent who had conducted Gil’s safety-valve proffer on the stand. He testified that based on watching the interview, he thought Gil had “tried to minimize his own criminal conduct and that he generally came across as not credible.”
The district court smelled a rat. During a break in the proceedings following Junior’s testimony against his father, the Court managed to locate a copy of the written plea agreement. The judge told the parties what he discovered, but Gil’s lawyer inexplicably did not recall Junior to the stand to confront the boy about his lies.
On appeal, Gil argued that his Brady and Giglio rights had been violated. A couple of days ago, the 7th Circuit agreed, but said “so what?”
In the 1962 Brady v. Maryland decision, the Supreme Court ruled that the government violates a defendant’s 5th Amendment due process rights when it suppresses evidence favorable to the defendant. A decade later, in Giglio v. United States, the Court confirmed that Brady’s disclosure requirement applies to evidence that could be used to impeach a government witness. In order to make a showing that his or her Brady/Giglio rights were violated, “a defendant must show that undisclosed information was ‘material either to guilt or to punishment.’”
The Circuit said, “Brady’s materiality requirement explains the result here. Gilbert Bicknell was left completely in the dark about evidence that would have been useful to impeach a witness who testified against him at sentencing. That evidence would not have affected the outcome of his sentencing, though, so the government’s failure to disclose does not lead to relief under Brady or Giglio.”
The 7th said that Junior’s plea agreement would have been “useful impeachment evidence, as it would have definitively shown that he was co-operating with the government and, in the interest of receiving a reduced sentence, may have had an incentive to slant his testimony. But the fact that Junior testified as a government witness was itself enough to make plain to anyone at the hearing—including Gilbert, his lawyer, and the district court—that he was cooperating with the government. Remember too that Junior admitted his desire for a reduced sentence while on the witness stand.”
The boy’s stated hope for a lesser sentence gave Gil’s lawyer plenty of ammo to cross-examine Junior on his credibility even without the plea agreement. Gil’s lawyer, the Circuit said, “opted not to challenge Junior’s credibility based on the information he had available to him, but his decision not to use that evidence does not make the plea agreement any less cumulative.”
The case was not a slam-dunk. The 7th Circuit said at the outset: “But make no mistake: the government’s failure to adhere to its disclosure obligation deeply troubles us. It failed to inform a criminal defendant before sentencing that one of the government’s key witnesses—the defendant’s own son—would be testifying pursuant to a cooperation agreement. That agreement was a textbook example of Giglioinformation, and it is very unsettling that more care was not taken to ensure its disclosure before sentencing. Though we must affirm, we do so reluctantly.”
To be sure, Gil has ample basis to question his lawyer’s failure to pursue the blatantly false statements, and he can do so in a 28 USC § 2255 motion. But the Circuit’s ruling glosses over an important question: Junior lied, but so did the Assistant U.S. Attorney. Without penalizing the government for its attempted cheat, the 7th’s decision suggests that there is no downside to the prosecution for getting caught.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SOMETIMES THE DIFFERENT DRUM IS POUNDING OUT THE WRONG BEAT
Sandy Flores-Rivera was one of 46 people charged with a drug-trafficking conspiracy. At trial, most of the evidence against Sandy and her co-defendants came from three cooperating witnesses, all of whom fingered Sandy and helped the government present non-testimonial evidence.
After the jury returned guilty verdicts against Sandy and the other defendants, the government belatedly disclosed some pretrial documents created by a cooperating witness. One was a letter to the lead prosecutor, in which the witness described himself as the government’s “best cooperator: “I promised you to do everything you said and I have done it to the point that you know how this has gotten, we have more than we expected, more evidence and more strength for the case…” Another document consisted of notes that the cooperating witness kept of conversations he had with other cooperators while they were in prison together, in which he had encouraged them to testify. Finally, the government disclosed a note showing the FBI knew the cooperating witnesses were talking to each other in jail.
Of course, the government’s failure to disclose this evidence – which suggested the cooperating witnesses were singing a version of the “truth” they thought would be most pleasing to the authorities who controlled their fates – was a slam-dunk violation of the constitutional requirement of disclosure enshrined in Brady v. Maryland.
Sandy and the other defendants moved for a new trial under Rule 33(b) of the Federal Rules of Criminal Procedure due to the Bradyviolation, but the district court turned them down. On appeal, the other defendants again raised the Brady violation, and this time someone listened: the 1st Circuit granted those other defendants new trials because the court found it was “reasonably probable that the impeachment evidence would have caused the jury to acquit” them.
Sandy’s lawyer, however, marched to a different drummer: he didn’t bother raising the Brady issue in Sandy’s appellate brief, but rather argued a couple of loser claims that hadn’t even been preserved in the lower court record. Those issues ran into what the 1st Circuit called “a stone wall of controlling precedent.” In fact, the Circuit even pointed out in amazement that Sandy’s counsel had joined in the new trial motion at the district court but inexplicably “did not renew the argument despite his clear awareness of his ability to adopt a co-appellant’s arguments in a consolidated case… since he reserved his right to do so in Sandy’s opening brief.”
After losing her appeal while her co-defendants won theirs, Sandy filed a post-conviction motion under 28 USC § 2255 claiming her attorney rendered ineffective assistance on appeal. Last week, the 1st Circuit agreed.
The Circuit said the government’s case against Sandy “depended quite heavily on the largely uncorroborated testimony of the three cooperators. Hence, she would have prevailed on the Brady issue just like her co-defendants had she raised the issue. And for that reason, she establishes prejudice under Strickland.”
Appellate counsel performs deficiently, the Circuit said, when he or she “ignor[es] issues that are clearly stronger than those presented.” Forgoing an argument is not a reasonable strategic decision when there is no downside to objecting to an error or when the omitted argument would not “detract from” but would rather “build upon” another challenge.
“Here,” the 1st ruled, “any reasonable attorney handling Flores-Rivera’s appeal would have known of the Brady claim’s availability even after a cursory review of the district court docket and the arguments offered by Flores-Rivera’s co-defendants… Appellate counsel opted to forgo an obviously serious, preserved Brady claim in favor of two dubious plain-error challenges, one of which was foreclosed by binding precedent. That choice resembles rejecting a lifeboat in favor of two lily pads… Fecklessness is not a strategy.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
“DID I SAY FIVE YEARS? I MEANT FIVE DECADES…”
Four decisions of note last week:
Oops, My Bad: Dave Mayhew was charged with white-collar fraud. The government offered him a plea deal that promised a maximum sentence of five years.
“C’mon, man,” his lawyer said. “That’s no deal. If we go to trial, five years is the worst we can do.” Dave, who paid big bucks for this professional advice, followed his attorney’s guidance and went to trial.
You can guess what happened. Dave lost, and he was sentenced to 27 years.
After appeals were over, Dave filed a habeas corpus motion under 28 USC § 2255, arguing that his lawyer was ineffective for giving him such bad advice. The district court denied the petition, pointing out that Dave was told at his re-arraignment that he could get up to 55 years on all of the charges and the court – no one else – would decide the sentence. So Dave knew what he was getting into, the judge claimed, and that cured any prejudice he would have suffered from his lawyer’s idiocy.
Last week, the 4th Circuit reversed. The re-arraignment came only after Dave had rejected the plea deal. The Circuit admitted that in the usual lousy-advice-on-sentence-exposure case, the law is clear that if the defendant pleads guilty after a Rule 11 change-of-plea hearing, the court’s warning that only it would determine the sentence and that the maximum the defendant faces, “taken together, may well have been enough to cure… counsel’s misadvice. But there is a fundamental problem,” the 4th held, “with applying that principle here, and it has to do with timing: The court’s admonitions in this case came only after Dave already had rejected the government’s plea offer, and there is no indication — in the record or from the government on appeal — that the offer remained open at that point.”
Bait and Switch: Rebecca Stampe made a deal on her drug case, agreeing to a Rule 11(c)(1)(C) plea locking her sentence at 168 months. An 11(c)(1)(C) plea sets a particular sentence or sentence range, with the court’s role limited to honoring the sentence deal or rejecting the guilty plea.
Becky’s deal came with a government promise that if she testified against her co-defendant, she might get a substantial-cooperation sentence reduction under USSG § 5K1.1. But after she made the plea deal, the government dismissed the case against her co-defendant because of some unspecified misconduct by the informant (which presumedly made the informant’s testimony worthless).
Becky demanded information about the misconduct under Brady v Maryland, arguing that it was material to her guilt as well. She also moved to withdraw from her plea agreement (but not her guilty plea), figuring she’d do better with an open plea that let the court sentence her than she would with a Rule 11(c)(1)(C) plea.
Last week, the 6th Circuit shot her down. The Circuit ruled that the evidence could not possibly be material to Becky’s defense, because she had already pled guilty, so there was no defense left to make. As for the plea agreement, the Circuit said, “While we do not doubt that Stampe sincerely believed that she might avoid some prison time because of her putative cooperation in her co-defendant’s case, the plea agreement contemplated but did not require that possibility. So contrary to her assertion on appeal, it was not the ‘principal purpose’ of the agreement. The main purpose was the exchange of her plea for the government dropping the other charge against her and agreeing to a 168-month sentence.”
End Run: John Ham filed a 28 USC § 2241 habeas petition claiming that Mathis v United States – a Supreme court decision that dictated how a sentencing court should apply the “categorical approach” in deciding whether a prior crime was a “crime of violence” under the Armed Career Criminal Act – required that he be resentenced to a lot less time.
John figured that the 4th Circuit’s United States v. Wheeler decision authorized the district court to address his § 2241 petition on the merits. The district court disagreed, and Jim appealed.
Wheeler adopted a four-part test for using § 2241 petitions to attack a defective sentence where a § 2255 motion would be “inadequate or ineffective.” One of those tests is that a petitioner must show a retroactive change in substantive law that happened after the direct appeal and first § 2255 motion.
John claimed that Mathis satisfies that requirement, changing “well-settled substantive law” about how a sentencing court should apply the categorical approach. Last week, the 4th Circuit disagreed.
“Mathis itself made clear that it was not changing, but rather clarifying, the law,” the 4th held. “The categorical approach has always required a look at the elements of an offense, not the facts underlying it… Indeed, Mathis merely repeated the ‘simple point’ that served as ‘a mantra’ in its ACCA decisions: ‘a sentencing judge may look only to the elements of the offense, not to the facts of the defendant’s conduct’.”
See You Around, Chump: Finally, in the 8th Circuit, Charles Ahumada filed a § 2255 motion arguing his attorney abandoned him by failing to file a petition for rehearing on his direct appeal. Not so, the Circuit said. In order to make a 6th Amendment ineffective assistance, a defendant first has to have a constitutional right to counsel. There is no constitutional right to counsel on a discretionary appeal, and a petition for rehearing is exactly that.
Chuck admitted as much, but argued that the Circuit’s Criminal Justice Act plan requiring counsel to file non-frivolous appeals gave him a due process right to effective counsel. “Even assuming there was a breach of the statute, the CJA,” the 8th said, “it does not give rise to a claim for ineffective representation of counsel.”
United States v. Mayhew, Case No 19-6560, 2021 U.S.App. LEXIS 11248 (4th Cir., April 19, 2021)
United States v. Stampe, Case No 19-6293, 2021 U.S.App. LEXIS 11459 (6th Cir., April 20, 2021)
Ham v. Breckon, Case No 20-6972, 2021 U.S.App. LEXIS 11493 (4th Cir., April 20, 2021)
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
DOUBLE SECRET PROBATION
From the Second Circuit comes a remarkable decision, one that should cause any number of Second Circuit defendants to wonder whether as well might have been victims of a Star Chamber process that brings to mind Dean Wormer’s “double secret probation.”
Three defendants were convicted of murder-for-hire and related drug crimes in the Southern District of New York. Long after they filed their appeals, the Narcotic and Dangerous Drug Section (“NDDS”) of the US Dept of Justice filed a notice with the 2nd Circuit advising it that the District Court had entered a sealed protective order – based upon the NDDS’s secret request that it do so – which barred both the US Attorney’s Office and the defendants from reviewing documents containing some pretty juicy but super-secret stuff. Exactly what it was we don’t know, because it was (did I tell you this?) it was super-secret.
After the Court of Appeals panel learned of the sealed document, it ordered NDDS to demonstrate why at least the motion and memorandum of law, the exhibits that support the motion, and the protective order should not be disclosed to the US Attorney for his review. NDDS predictably told the Court the US Attorney should not be trusted to even know the legal basis for the sealing, let alone with what it was that was sealed. That did not go over well with the 2nd Circuit, which vacated the District Court’s protective order, not only telling the NDDS to turn everything over to the US Attorney, but ordering the US Attorney to justify not turning it over to the defense.
The US Attorney claimed for several reasons that the protected material and the sealed proceedings should not be disclosed to the defense. The Circuit nevertheless ordered the US Attorney to turn over any Brady material to the defense while the panel considered arguments on whether the rest should be disclosed as well.
In light of the materials disclosed pursuant to the Brady order, the Defendants raised an additional Brady challenge to their convictions, specifically, that the prosecution withheld exculpatory information in violation of Brady v. Maryland.
On Wednesday, the Circuit declined to consider the Brady argument, sending the whole mess back to the district court. First, the 2nd held, there was no record below on the Brady claims. True, the Circuit said, the defendants could not have raised it before because it was kept secret, but still, an appellate court is a court of review, and it needs a record to review.
There was a second, practical reason, the Court said. Under F.R.Crim.P. 33(b), a defendant has three years from the verdict to file a motion for a new trial. That deadline is only three months away. It makes more sense to send it back to the trial court, where the “Defendants’ allegations concerning the previously undisclosed material, if true, are relevant to the establishment of cause for a new trial.”
Ominously, the 2nd Circuit suggested in a footnote that this may not be NDDS’s first rodeo. “To the extent the NDDS or similar entities may have obtained similar ex parte sealed protective orders against all parties in other criminal cases in this Circuit, district courts may wish to consider whether such orders should be maintained in light of this decision. In order to permit effective review, any decision to enter or maintain such an ex parte sealed protective order against all parties should be supported by a clear statement of reasons, including specific reasons why disclosure cannot be permitted even as to the pertinent U.S. Attorney in the first instance.”
United States v. Stillwell, Case Nos. 18-3074-cr et al., 2021 U.S. App. LEXIS 2206 (2d Cir. Jan. 27, 2021)
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THE DILIGENCE THAT IS DUE
Anyone familiar with post-conviction motions knows that “due diligence” is demanded of prisoners who seek equitable tolling (forgiveness for late filing), make a showing to justify the filing of a second-or-successive motion, or even calculate a deadline for filing a motion under 28 USC § 2255(f)(4) (which permits filing a § 2255 addressing newly-discovered evidence).
The 3rd Circuit last week handed down a very detailed and thoughtful analysis of exactly what constitutes due diligence where a defendant is claiming a Brady violation in a post-conviction context (such as a § 2255 motion). Defendant Bill Bracey had been convicted by testimony from two cooperating witnesses. The prosecution disclosed the witnesses had gotten favorable plea agreements on certain charges in exchange for their testimony, but Bill found out a number of years later that the witnesses got breaks on other charges, too, that the prosecution has not disclosed. He could have found out about the other charges much earlier if he had checked the public record, but he instead trusted that the prosecutor had complied with Brady.
The Circuit held that a defendant had a right to presume the government had complied with its Brady obligations, and only when a person in the defendant’s position “would reasonably expect” that independent investigation would yield evidence of a Brady violation, was due diligence implicated. “Once Brady is understood to impose an affirmative disclosure obligation on the government, one in which criminal defendants are entitled to place their faith,” the 3rd held, “a defendant’s lack of independent investigation does not equate to a lack of due diligence, at least not without facts giving him a reasonable basis to suspect a Brady violation… We hold, therefore, that a habeas petitioner’s Brady claim is timely… so long as it is filed within one year of the date on which the petitioner has reason to believe that the prosecution may have violated its duty of disclosure.”
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GOVERNMENT ADMITS TO ‘SUBSTANTIAL’ BRADY FAILURES
In an October 30th letter, the United States Attorney’s Office for the Southern District of New York admitted to “substantial failures” in disclosing potentially exculpatory evidence, over a month after a Southern District of New York judge excoriated the prosecutors for multiple failures that led the court to dismiss a criminal case with prejudice after a jury had convicted the defendant.
In a September order in United States v. Nejed – a case in which the defendant was charged with export and money-laundering offenses arising from dealing with Iran – the government was found to have repeatedly misled the court and defense counsel as to facts relating to late production of evidence helpful to the defense. Ever since Brady v. Maryland, a 1963 Supreme Court decision, the prosecution has had a constitutionally-defined duty to turn over evidence that may help the defendant.
In Nejad, the government failed to do so. When prosecutors discovered during trial that a crucial piece of evidence had not been provided to the defense, email records showed that they schemed over how to bury the evidence in a massive “document dump” to defense attorneys, in hopes the defense would not notice it.
Ultimately, despite the fact that a jury convicted Defendant Nejad, the Court threw the case out after the Government was caught withholding evidence, and sheepishly agreed to the dismissal.
But that didn’t end things. District Judge Allison Nathan, understandably troubled by the Government’s conduct, issued an order subsequent to the dismissal, in which she observed
it is possible that the issues articulated above, as well as the precipitating factors the Court identifies, are not unique to this case. Indeed, in the last criminal case tried before the Undersigned, the Government also seriously breached its Brady obligation. Following that revelation, the Court was repeatedly assured by the leadership of the USAO that the matter was being taken seriously, would be systemically addressed through training, and would not reoccur. The record before the Court in this case belies those assurances.
It is impossible for the Undersigned alone to address and resolve these issues. Here too, it is thus the Court’s view that these errors should be investigated by DOJ’s Office of Professional Responsibility. Moreover, the manifold problems that have arisen throughout this prosecution — and that may well have gone undetected in countless others — cry out for a coordinated, systemic response from the highest levels of leadership within the United States Attorney’s Office for the Southern District of New York.
The US Attorney’s October 30 letter assured the judge that the mistakes were unintentional and would not happen again. The judge noted in her September order that she had heard that one before…
Memorandum Opinion and Order, United States v. Nejad, Case No 18cr224, 2020 US Dist LEXIS 169686 (September 16, 2020)
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A “VERY BRADY” EN BANC DECISION ISSUES FROM RICHMOND
The 4th Circuit last week released an en banc decision reversing denial of a federal habeas corpus filed by a North Carolina state prisoner who has spent 44 years in prison for a rape he in all likelihood had nothing to do with. The 93-page decision (with an additional 28-page dissent) is a virtual Brady primer, analyzing almost every element in a successful Brady undisclosed-evidence claim.
Pat Brady – Roy Rogers’ comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.
In 1976, Ronnie Long – a black man – was accused of raping a 56-year old white woman in her home. Her description of the assailant changed over time, and she identified Ronnie by sitting in a courtroom watching a parade of defendants appear in front of a judge. Not a shred of physical evidence connected Ronnie to the offense, and his alibi – he had been at a family function some distance away – seemed pretty solid.
Actually, saying that no physical evidence connected him to the scene is an understatement. The state had gathered all sorts of physical evidence at the scene, including 43 separate fingerprints and all sorts of fiber. The crime lab report found that not even one of 43 fingerprints matched the defendant’s prints, and none of the fiber connected Ronnie to the scene.
Sounds like a slam-dunk, right? Well, maybe on a level playing field. But in Ronnie’s case, the defense never saw the crime lab report, because the police falsely testified no such report existed and (needless to say) the prosecutor never produced it. Furthermore, detectives failed to disclose they had lost the only DNA sample taken from the victim. So Ronnie was convicted.
You remember Brady v. Maryland, right? Brady evidence is evidence in the hands of the prosecution that is favorable to the defendant. Such evidence must be disclosed. If you need a refresher, read this.
The 4th Circuit’s 9-6 decision rejects a state court holding that a prisoner must demonstrate “by a preponderance of the evidence,” that the withheld evidence would have changed the result at trial. The proper standard, the Court said, is a “reasonable probability of a different result,” a relaxed standard that makes much more sense, inasmuch as the defendant was wronged in the first place by having the evidence hidden from him.
The decision also rips the state court’s holding that Brady evidence must be “impeachment or exculpatory evidence” in order to be “favorable” to the accused. Evidence may not itself impeach a prosecution witness or exculpate a defendant, but may still lead to other yet-undiscovered evidence that is impeaching or exculpatory, or – as in Ronnie’s case – simply be one piece of a cumulative mosaic that makes his guilt questionable.
The State argued that undisclosed evidence that police testified falsely about the crime lab report was not Brady material, because the cops’ testimony might have been explained as merely a “mistake, misunderstanding, or the report itself could be incorrect.” But, as the Circuit said, that has nothing to do with whether the undisclosed evidence was Brady material. While the state’s hypothetical explanations for the false testimony “may have been useful arguments for the State to make to the jury at trial, the rule is not that only unassailable evidence must be disclosed to the defense. Rather, it is clearly established federal law that any favorable and material evidence must be disclosed.”
The State said the undisclosed crime lab report – which concluded that nothing tied Ronnie to the rape – was merely cumulative, because defense counsel argued to the jury in closing that no forensic evidence tied the defendant to the crime. So the fact the jury never heard about the report, the state argued, hardly mattered. The Circuit rejected this stinker of an argument, holding that (1) everyone knows that the attorneys’ arguments are not evidence; (2) a government report showing that none of a big pile of physical evidence tied a defendant to a crime is much more persuasive to a jury than anything a defendant’s lawyer says in an argument; (3) and the cumulative effect on the jury of negative test after negative test after negative test is undeniable.
Finally, the Court noted, the very existence of evidence the police denied having had in their possession would have badly undermined the credibility of the detective witnesses.
This decision should be read by anyone with a Brady issue.
Long v. Hooks, Case No 18-6980, 2020 U.S. App. LEXIS 27138 (4th Cir. Aug 24, 2020)
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A VERY BRADY WIN
The Supreme Court’s seminal 1963 Brady v. Maryland decision held simply that the government is obligated to provide the defense with all material information (not just evidence) that tends to be exculpatory for the accused. Regular readers of this blog are no stranger to it. See, for example, here, here and here.
But Brady in practice is a lot messier than Brady in theory. That’s why last week’s 7th Circuit Bradywin was so sweet.
Maher Obagi and Mohamed Saleh were convicted of mortgage fraud, in part because Jackie Burchell – a cooperating coconspirator – testified against them. The government argued at closing that the jury should believe Jackie (despite her involvement in the crime and the fact she had lied during a deposition in a civil case), because her testimony was corroborated by Holly Saad, described by the government as an “independent witness.”
But it turned out that Holly was not Polly, at least not sweet Polly Purebred. Rather, Holly had her own skeletons in the closet. During a break between Maher’s and Mo’s defense closings, a different AUSA from the U.S. Attorney’s Office – who just happened to be watching the closing arguments – recognized that the same Holly whose veracity the parties were arguing about had in fact received immunity in a separate mortgage fraud investigation. The AUSA alerted the trial prosecutors to the “enormous oversight,” and the trial prosecutors told defense counsel.
But it was too late to re-argue the closing, and Maher and Mo got convicted. Last week, the 9th Circuit reversed.
The Circuit noted that by the time the oversight was revealed, the government’s closing argument theme had been cast – the jury could trust witness Jackie Burchell because of Holly Saad’s corroboration. Mayer’s counsel had completed his argument, and – the 9th said – “one could not expect Mo at the last minute to reframe his defense to incorporate this impeachment.”
The Circuit said the failure to disclose was accidental but very material, because Holly’s impeachment substantially weakened the credibility of the government’s cooperating witnesses and the strength of its case. Given the difficulty the jury faced in reaching a verdict, the panel could not say with confidence that the undisclosed impeachment did not affect the jury’s judgment.
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TWO APPELLATE DECISIONS, ONE UP, THE OTHER DOWN, ON BRADY
Two different circuits ruled on Brady issue claims last week, with quite different results.
A primer: The idea that the prosecution in a criminal case ought to provide the defense with any evidence that tends to exonerate the accused seems pretty reasonable, indeed, a constitutional imperative. But until the 1960s, if the government had four witness statements that said that the victim was attacked by a 4-foot tall female bald albino, and only one statement accusing a 6’6″ black man with dreadlocks down to his waist, prosecutors were free to hide the short albino statements in its files, and just use the dreadlock witness at trial.
But in 1962, the Supreme Court held in Brady v. Maryland that in a criminal case, the prosecution must turn over all evidence that might exonerate the defendant (exculpatory evidence) to the defense. Since then, “Brady material” has become the legal shorthand for any evidence that, had it been disclosed to the defense, raises a ‘reasonable probability’ that the outcome of the case would have been different. A ‘reasonable probability,’ as any post-conviction remedy fan can recite, is “a probability sufficient to undermine confidence in the outcome.”
Now back to the live action: Last week, the 6th Circuit reversed the conviction of Dr. Richard Paulus, a cardiologist who had been convicted of healthcare fraud. The government claimed he had performed heart stent procedures that were unnecessary. Government experts who looked at his medical records concluded that up to 50% of his procedures were not called for by the patient’s condition.
This became the government’s business, of course, because most of those procedures were performed on “OK boomers” like the undersigned, and were paid for by Medicare.
Pat Brady – Roy Rogers’ comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.
When the government’s concerns about Dr. Paulus first came to light, the hospital where he worked brought in its own experts to determine whether it owed Medicare a refund. Its experts studied 1,049 heat stent procedures performed by Doc Paulus, and found that 75 operations were unnecessary. Because the hospital and Dr. Paulus were on the “outs” by then – with a full-blown investigation targeting the Doc – the hospital did not share its study with him.
As trial approached, the government told Dr. Paulus’s lawyers the hospital had offered to reimburse on 75 cases, but it did not tell them that a full 1,049 files had been examined. This was significant: at trial, the government’s expert, who had studied many fewer Paulus procedures, testified that up to half of the operations were unnecessary. The hospital’s expert found an “error rate” of less than 8%.
The irony is that the government wanted to give the study to the defense before trial, because the government believed it was Bradymaterial. But the hospital claimed the study was privileged, and the district judge held – after a hearing that excluded the defense – that the study was inadmissible and could not be given to the defense.
Dr. Paulus’s lawyers discovered the contents of the complete study after the trial. Last week, the 6th Circuit reversed, in a decision that sharply criticized the judge’s use of an ex parte proceeding that shut out the defense. On appeal, the government claimed the study was not Brady material after all, because the Doc could have discovered the full study on his own. After all, the government said, Dr. P knew about the 75 cases the hospital said were faulty, and he could have asked the hospital how big the sample was, or subpoenaed the hospital, or something.
The 6th disagreed. “Brady does not allow the State simply to turn over some evidence, on the assumption that defense counsel will find the cookie from a trail of crumbs,” the Court said. The evidence was material, because instead of a 50% error rate (which implied the Doc was intentionally doing needless operations), there might be a 7% rate, taken from a bigger sample. That “wasn’t an error rate,” The Wall Street Journal said last weekend, “but a ‘disagreement in medical judgment rate’.”
The 6th Circuit acted last Thursday, and Dr. Paulus was released from prison the next day.
Meanwhile, things did not go as well for Steve Mason. Being tried for a drug conspiracy, Steve faced one of his former conspirators, now testifying for the government. Before trial, the US Attorney obtained a letter it believed its witness, Ned James, had written, that claimed Ned was going to “lie on everybody” in order to get off. Ned denied writing the letter, but he failed a polygraph. While a government handwriting expert said the letter had not been written by Ned, Ned’s former cellmate, Jazz, said Ned had written it, But Jazz got released from jail and promptly died of a drug overdose. Willie Walker, another co-conspirator, said Jazz had written the letter, too, but Willie took the 5th Amendment and refused to testify at trial.
The government withheld the letter until the very start of the trial. The defense wanted to use it, but the judge said it could not bring up Ned’s failed polygraph.
On appeal, Steve claimed the government breached its Bradyobligations. Steve argued that if his lawyers had gotten the letter earlier, maybe they could have found proof Ned had written it.
The DC Circuit disagreed. By the time the government discovered the letter, Jazz had already died, so the defense could not have interviewed him. The Circuit wrote that “mere speculation is not sufficient to sustain a Brady claim… Hypothesizing that certain information, had it been disclosed to the defense, might have led defense counsel to conduct additional discovery that might have led to some additional evidence that could have been utilized is disfavored… The argument that an earlier disclosure might have led Mason to uncover other promising leads is simply too speculative to undermine our confidence in the outcome of the trial.”
Good luck with that. A report last week illustrates the futility of expecting any favorable result from bar complaints against prosecutors.
Neither Ragsdale nor Roth was subject to any ethics charges or misconduct findings. Roth was later promoted to be inspector general for the Department of Homeland Security. And Ragsdale? He’s now in charge of the DOJ Office of Professional Responsibility, which oversees investigations into alleged prosecutorial misconduct.
End Run: John Ham filed a 
