Tag Archives: brady

Unringing the Bell – Update for November 29, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


whitebear171129Everyone’s favorite author Leo Tolstoy recounted that as a boy, he was inducted into a childhood secret pact called the “Ant Brothers.One of the initiation rites was to stand in the corner and not think about a big white bear.

So how do you not think about the bear? In a decision handed down several weeks ago, the 4th Circuit provide no helpful pointers on how to do it, but nonetheless mandates that it must be done.

Next to claims of ineffective assistance of counsel, a Brady v. Maryland claim is probably the most common one raised in post-conviction motions. To make a successful Brady claim, a prisoner has to show that the evidence at issue favorable to him either because it is exculpatory or because it impeaches a government witness; that the evidence was suppressed by the government, either willfully or inadvertently; and the prisoner suffered prejudice because the evidence was material.

Evidence is material if a petitioner can show that there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.

guilty170417Tony Juniper asked a federal court to grant him a writ of habeas corpus because Virginia prosecutors withheld evidence that undercut the State’s timeline used to convict him of murder, as well as evidence that would have discredited one of the State’s key witnesses. The district court agreed that the evidence had been withheld, that it indeed gave Tony defenses he never had without the evidence and it undercut the trustworthiness of a star State witness. The problem, the district court said, was that other evidence that it thought proved Tony’s guilt was not affected by the Brady material.

In a surprising (and we think welcome) decision, the 4th Circuit reversed, holding that first, the district court failed to “apply the proper legal standard in determining whether Petitioner alleged or established sufficient facts regarding materiality to warrant an evidentiary hearing.” In assessing a Brady claim, a court must construe facts in a light most favorable to the petitioner, and “draw all reasonable inferences in his favor.”

slept171129Second, the district court failed to properly account for the impeachment value of the withheld evidence. In determining whether there is a “reasonable probability” that the result of the trial would have been different, a court must consider “the aggregate effect that the withheld evidence would have had if it had been disclosed,” by adding to the weight of the evidence on the defense side… all of the undisclosed exculpatory evidence” and subtracting from “the weight of the evidence on the prosecution’s side… the force and effect of all the undisclosed impeachment evidence.” This meant the court had to assume that what the witness who would have been discredited said would have been ignored by a skeptical jury.

Finally, the district court cannot make credibility determinations based on a written record alone. In Tony’s case, the judge refused to credit Brady evidence that someone who looked like the murder victim had been seen much later than when Tony could have possibly killed her. The district court reasoned that crediting these statements would require accepting them “over the word of people who claim to have seen the petitioner either at or leaving the crime scene” before 12:44 p.m.

The 4th Circuit complained that “in determining whether a petitioner is entitled to relief… based on undisclosed exculpatory evidence, credibility should be assessed on the basis of an in-court hearing where the judge can see and hear the witnesses.” The district court decided who the jury would have believed without hearing the witnesses on the stand.

This case is a fascinating and detailed instruction manual as to how a district court must analyze a Brady claim. Without thinking about the bear.

Juniper v. Zook, Case No. 13-7 (4th Cir. Nov. 16, 2017)

– Thomas L. Root


7th Circuit Reverses Drug Convictions for Brady Violations – Update for August 31, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


hide170831There is perhaps no more pernicious problem in federal criminal justice today (if not criminal justice in general) than the ubiquity of Brady violations.

“Brady,” of course, is derived from Brady v. Maryland, and is the rule that the government has the duty to turn over to the defendant all evidence known to it that may be exculpatory, including not just substantive evidence (like an interview with a busload of nuns who saw the defendant in church 20 miles from the scene of the crime at the time the offense was being committed) but also impeachment evidence (like a secret agreement with a government witness that he’ll be let out of jail if he testifies against the defendant). The nature of the Brady right may have never been explained better than by 7th Circuit Court of Appeals Judge Diane P. Wood, who opened today’s decision with this:

The Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), might seem a bit strange to someone who thought that the adversary system in criminal cases allows each side to adopt a “no holds barred” litigation stance. But that is not the way the Constitution structures criminal procedure. From the Fifth Amendment’s privilege against compulsory self-incrimination, to its double-jeopardy clause, to the rights conferred by the Sixth Amendment both to be informed of the nature and cause of the accusation and to be confronted with witnesses, to the due process right to be convicted only upon proof beyond a reasonable doubt, the system is replete with safeguards for an accused.

The obligation of the prosecution to turn over any favorable evidence to the defendant, first announced in Brady, is one aspect of the due process right.

Criticism of prosecutorial mischief when it comes to revealing exculpatory evidence has grown dramatically in the last few years. From the 3rd Circuit’s tome of Brady violations in Dennis v. Sec’y, DOC, to the 2nd Circuit upholding an $18 million award to a man convicted because of a Brady violation, to the Supreme Court’s wrestling with Brady in last June’s Turner v. United States decision, Brady violations have been hot.

In fact, a Brady issue from the State of Washington led to an unusual judicial squabble in the 9th Circuit when Judge Alex Kozinski blasted state officials for not disciplining errant prosecutors for what he saw as an egregious Brady violation, an aside that drew spirited disagreement from fellow jurists (and was later withdrawn by the Court).

The litany of Brady “hide and seek” abuses – where the government hides evidence and implicitly challenges the defense to find it – has been well chronicled elsewhere in popular media, professional publications and scholarly journals. The costs exacted by Brady violations on the integrity of the process, lives of wrongly-convicted defendants, and on wasted trials and retrials – all because of prosecutorial boneheads – are high. The latest judicial expense laid low by Brady is a long, expensive trial of two drug defendants in Chicago.

Antonio Walter and Kenneth Bell were tried for being heroin supplier kingpins managing an open-air drug mart at various street corners on Chicago’s west side. The case was far from airtight: It rested on evidence that Bell was inexplicably wealthy, on physical samples of heroin seized from organization members, and expert testimony by law enforcement about drug trafficking.

As described by Judge Wood, “conspicuously absent was any direct evidence tying either Walter or Bell to the alleged conspiracy. Because there were no controlled buys or recorded incriminating statements, the government’s case hinged on witness testimony. Seven witnesses identified Walter as a participant in the drug organization; five of them fingered Bell as the drug supplier. The problem was that these witnesses, unsurprisingly for this type of case, were hardly model citizens. Their knowledge of the defendants’ involvement in the organization stemmed from their own participation. All seven had been charged with or convicted of drug crimes, and six of them were testifying pursuant to agreements that held out the possibility of reduced sentences. As the defense was at pains to point out, personal involvement, lengthy criminal histories, and a desire to secure lenient treatment all raised major credibility concerns.”

snitch161004One of the witnesses, a guy named Forrest, testified pursuant to a deal that cut his 30-year sentence by two thirds. He initially offered only lukewarm support for the government’s case. He said that he had seen Walter in the room while heroin was being prepared for sale, but he did not remember Walter’s actively participating. Bell, he said, was rarely present, and he did not recall how often Bell supplied heroin. Unsurprisingly, Forrest’s memory improved markedly after he spoke with the prosecution during a lunch break. After a sandwich and a briefing, Forrest suddenly recalled that Bell dropped off heroin to Walter around three times a month, and that cash from the day’s sales was usually handed over to Walter.

Another witness, Nesbitt, came near the end of the case. He was reticent on the stand, but in the hallway, he told an FBI agent that Forrest was still packaging and selling heroin on the same street corner, this time for a new supplier named “K-Mart.” This directly contradicted Forrest’s testimony that he had given up drug sales while on bond. The agent told the prosecutor what Nesbitt had said, but the prosecutor said nothing to the defense about Nesbitt’s revelations until months after the trial.

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.
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.

To succeed on a Brady claim, a defendant has to show that some evidence was suppressed, that it was favorable to the defendant, and it was material to the defense. As is usually the case, everyone agreed the evidence was suppressed and it was favorable. The battle was over whether it was material.

Brady evidence is material if there is a reasonable probability that, had it been disclosed to the defense, the result of the proceeding would have been different. The government argued the evidence was not material because Forrest had already been pretty shown to be a scumbag, and anyway, the rest of its case was so strong that the new evidence would not have mattered.

The Circuit said that “the fact that Forrest is an admitted lifelong drug dealer with at least two controlled-substance convictions (to say nothing of his firearm convictions) does not undermine the incremental value of this impeachment evidence.” The evidence went to whether he was lying on the stand. The Court pointed out that Forrest’s claim that he had given up his drug-dealing ways “would enhance the witness’s credibility with the jury, if one thinks that jurors are more likely to trust a reformed criminal than an active one. Yet the implication is flipped if the redemption story turns out to be a lie.”

nonewfile170831What’s more, the evidence cut to the heart of the case. Nesbitt’s comment revealed that Forrest was selling on behalf of a new supplier named “KMart.” If the jury thought that KMart had taken over this area, and if it further believed that there was room for only one supplier, it might have found that Bell could not have been that person. Nesbitt and Forrest had been selling on those corners before Bell’s arrival, and they continued to sell after Bell’s arrest. While the Court admitted “that is far from conclusive evidence pointing to Bell’s non-involvement… it could have been one piece of a puzzle.

The Circuit warned against employing a “but for” analysis. “We do not need to find, however, that “but for” the failure to disclose Nesbitt’s impeachment evidence, the defendants would not have been convicted. The standard is only whether there is a reasonable probability of a different outcome. We conclude that the evidence meets this standard.”

prosmisconduct170831The Court observed that if the jury had learned of Forrest’s ongoing criminal conduct, “it might have doubted his testimony that he had ‘seen the light.’ Knowing that he was lying under oath about his using and dealing in drugs, the jury might reasonably have supposed that he was lying about the criminal activities of the defendants as well.” While the court conceded that the government still could have the defendants if the defense had been told of Nesbitt’s statement, it said “but the standard, once again, is only a ‘reasonable probability’ that disclosure would have changed the result of the proceeding.”

United States v. Walter, Case No. 16-1325 (7th Cir., Aug. 29, 2017)

– Thomas L. Root

Brady Takes a Hit (Maybe) – Update for June 23, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


The Supreme Court issued three opinions yesterday, all on criminal matters.

  • Brady Material Not Material

Turner v. United States, Case No. 15-1503:  The case concerns the murder of Catherine Fuller, a District of Columbia mother, nearly a quarter-century ago. The petitioners in the case were a group of Washington, D.C., men who were convicted of the crime, based primarily on testimony from alleged eyewitnesses. Years later, a reporter learned that the men’s lawyers had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had not turned over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts. However, last fall the justices agreed to review the case, focusing on whether the men’s convictions must be set aside under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant.

The Supreme Court affirmed, 6-2, holding that the government did not violate Brady. Justice Breyer wrote that the question before the court was whether the withheld evidence was material under Brady. In the case, a group attack was the very cornerstone of the Government’s case, and virtually every witness to the crime agreed that Fuller was killed by a large group of perpetrators.

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.
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.

The Court held that it was not reasonably probable that the withheld evidence could have led to a different result at trial. Petitioners’ problem, Justice Breyer wrote, is that their current alternative theory would have had to persuade the jury that two defendants had  falsely confessed to being active participants in a group attack that never occurred; that another person falsely implicated himself in that group attack and yet gave a highly similar account of how it occurred; that an otherwise disinterested witness wholly fabricated his story; that two other witnesses likewise testified to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave together to rob her.

The case is very fact-bound, meaning that it may not have a lot of relevance to other Brady cases.


Maslenjak v. United States, Case No. 16-309:

Divna Maslenjak was an ethnic Serb who came to the United States as a refugee from what is now Bosnia, fleeing the conflict in the former Yugoslavia.  She became a U.S. citizen but was later stripped of her U.S. citizenship and deported (along with her husband) to Serbia after the U.S. officials discovered that she had made false statements during the naturalization process. Divna told immigration officials (among other things) that her family feared persecution from Muslims, and that they might be abused because her husband had evaded service in the army.

That turned out to be false, Her husband actually had served in the army, and was part of a unit that participated in an infamous massacre of Muslims.

Divna admitted she lied to U.S. immigration officials, but she argued that she should still be able to remain a U.S. citizen because the false statements were not material – that is, they would not have been important to the officials deciding whether to grant her citizenship application. 

Well, we're calling you a liar, Ms. M... But was your lie material?
Well, we’re calling you a liar, Ms. Maslenjak… But was your lie material?

In an opinion by Justice Kagan, the Court vacated and remanded, by 9-0, with three concurrences. The Justices held that the government must establish an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means the government must demonstrate that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts that would justify denial.

The Court did not decide whether the lie Divna told was disqualifying. In all likelihood, it is. But that is for the district court to decide on remand.


Weaver v. Massachusetts, Case No. 16-240:

This case explored whether a criminal defendant who contends that his lawyer provided constitutionally inadequate representation that resulted in a “structural” error – that is, a fundamental error that affects the entire structure of a trial – must also show that he was harmed by that inadequate representation.

Kentel Weaver was arrested in 2003 at the age of 16 for the murder of a 15-year-old in Boston. He eventually confessed. However, Weaver’s case went to trial anyway, with a jury pool of approximately 90 potential jurors.

courthouseclosed170605When Weaver’s mother and other supporters arrived for the trial, they were told – on two separate days – that the courtroom was “closed for jury selection.” Weaver’s lawyer was aware that Weaver’s supporters had not been admitted to the courtroom, but he did not object. Several years later, Weaver sought a new trial, citing (among other things) his lawyer’s failure to object when the courtroom was closed during jury selection. The judge ruled that the courtroom had indeed been closed, in violation of Weaver’s Sixth Amendment right to a “public trial.” But he also ruled that Weaver would have to show that he was prejudiced by the courtroom closure, which he had failed to do.

In an opinion by Justice Kennedy, the Supreme Court held, 7-2, that although the right to a public trial is important, “in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant’s standpoint.”  Here, Weaver had not shown a “reasonable probability of a different outcome but for counsel’s failure to object, and he had not shown that counsel’s shortcomings led to a fundamentally unfair trial. He is not entitled to a new trial.”

The Court said the proper remedy for addressing violation of the right to a public trial depends on when the objection was raised. If an objection is made at trial and the issue is raised on direct appeal, the defendant generally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” If, however, the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance claim, the defendant generally bears the burden to show deficient performance and that the attorney’s error “prejudiced the defense.” To demonstrate prejudice in most cases, the defendant must show “a reasonable probability that . . . the result of the proceeding would have been different” but for attorney error.

In other words, if the defendant’s trial counsel is incompetent, and if his appellate counsel is incompetent, he is prejudiced by having to show prejudice at the post-conviction stage? Whew. We suspect we have not heard the last of this theory.

– Thomas L. Root


Brady Violation Costs Cops $18 Million – Update for January 24, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


From New York comes an interesting civil action with a happy ending for a couple of guys who did 18 years on a bum murder rap.

franz170124When a 16-year girl was found raped and murdered back in 1984, Nassau County Police were stumped. After a few months, some mutt shot his mouth off, and the police sweated him until he admitted he’d heard some disjointed but lurid details about the crime from John Restivo. John in turn was sweated by the cops, and he pointed the finger at Dennis Halstead without implicating himself. Nassau County detective Joe Volpe – who may as well have been the real-life model for NYPD Blue detective Andy Sipowicz – then subjected John Kogut, a co-worker of John and Dennis, to an overnight interrogation complete with screaming, threats and beatings.

Unsurprisingly, Kogut confessed (who wouldn’t have?). He implicated John and Dennis in the horrific crime in a statement containing lurid details provided largely by the helpful officers. The police then grabbed John Restivo’s van alleged to have been involved in the crime. They found no blood. However, Det. Volpe recovered some hairs later linked to Theresa.

The Kogut confession could not be used in John’s and Dennis’s trial, because Kogut refused to testify. The jury convicted them anyway, and they went away for 35-to-life.

Fast forward 20 years or so. With much better DNA tests available, the semen sample recovered from the deceased was tested again. Not only were John, Dennis and the weak-kneed Kogut ruled out, but as well a total of 82 friends, acquaintances (and the deceased’s boyfriend) were all excluded as well. In fact, no one in the national DNA database matched the sample from the victim.

          It’s unlikely Detective Volpe’s customer satisfaction surveys were very favorable.

All three defendants – John, Dennis and Mr. Kogut – won new trials. The State tried Kogut first, but even his coerced confession wasn’t enough to convict him, with the spectre of an unknown assailant looming in the case. After Kogut was acquitted, the State threw in the towel, and dismissed the case against John and Dennis.

Inmates who fight their cases in post-conviction motions often dream of winning acquittal, and then turning the victory into a big payday because of wrongful conviction. It’s harder than it sounds – statutes that permit recovery usually require that the former prisoner prove his innocence as a condition of payment. Still, Dennis and John were able to collect $2 million from the State of New York, not a lot for 36 combined years of prison.

Then, the two went after Det. Volpe and some other Nassau County police, suing under 42 U.S.C. 1983 and claiming their constitutional rights were violated. They won against the late Detective Volpe, netting an $18 million judgment.

Last week, the 2nd Circuit upheld the judgment.

Det. Volpe was held liable on the strength of two showings. First, a man named French had reported his car was stolen from the roller rink at which the victim worked on the very day of her disappearance. When the car was recovered a week later, investigators found a pair of jeans that matched the distinctive pattern worn by the victim and a piece of nylon rope the man said had been in his back seat when the car was stolen. The police held the jeans and rope, but both disappeared.

Sometimes the defendant really didn't do it...
Sometimes the defendant really didn’t do it…

The victim had been strangled with a rope, and the car – when it was found about a mile from the roller rink – had phony license tags. Yet Det. Volpe, who conceded at the time that the missing car and items in it were exculpatory evidence that should have been given to the defense under Brady v. Maryland, never told the district attorney about it. The Court of Appeals agreed that the detective’s failure to disclose the evidence – which he admitted was exculpatory – was a willful violation of John’s and Dennis’s constitutional rights. At trial, the plaintiffs’ expert on police procedures

testified that, based on the evidence he had, the French lead was clearly exculpatory, and should have been documented and sent to a prosecutor, based on minimally accepted police practices in the 1980s. In particular, he concluded that based on the time and location of the theft, the fact that the car’s license plates were removed, the fact that a rope was in the back seat at the time of the theft and a rope was used as a ligature to strangle Ms. Fusco, and the fact that a pair of women’s or girls’ striped jeans were found in the back seat of the vehicle, with at least one leg turned inside out, this lead was clearly exculpatory.

Fischer testified that under minimally accepted practices, exculpatory evidence does not need to definitively prove innocence in order for it to have to be documented and disclosed, and that the combination of all of these factors meant that the evidence should have been disclosed under minimally accepted police practices.”

The most troublesome piece of evidence for John and Dennis was the victim’s hair found in the van. The evidence on that clinched matters, the appellate panel implied.

Post-mortem root banding.
                       Post-mortem root banding.

It seems that when a body dies, after a period of 16 hours of so, a condition known as post-mortem root banding occurs, a distinctive series of striations around the root of hair. The coroner had taken hair from the victim’s body and stored it in a locker, a locker to which Det. Volpe had unfettered access. It now turns out that the hair Det. Volpe said had come from the van showed PMRB consistent with the hair taken from the corpse. The evidence, however, showed that it would have been impossible for hair with such PMRB to have been left in the van, because the state’s theory of the case was that she was still alive when in the van.

The Court of Appeals agreed that the evidence was easily sufficient for the civil jury to conclude that there was never any of the victim’s hair in the van, and that Det. Volpe had taken some of the autopsy hair and slipped it into a new envelope, claiming it had come from the van.

The 2nd disposed of a host of other arguments, including that $18 million for two innocent men spending 36 years in prison was too much. The judgment in favor of John and Dennis was upheld.

Pay the men, Shirley.

Restivo v. Volpe, Case No. 14-4662-cv (2nd Cir. Jan. 19, 2017)

– Thomas L. Root