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Comments on Criminal Issues
June 3, 2012
CASES OF BRADY VIOLATIONS AND PROSECUTORIAL MISCONDUCT
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
We have maintained a continuing interest in cases dealing with Brady violations and prosecutorial misconduct. We have compiled a comprehensive, although not exhaustive, review of federal and Texas cases dealing with these issues that are important to lawyers representing client in criminal cases.
It is important to occasionally review these cases to remember the egregious depths to which some rogue prosecutors will stoop to “convict at any cost.” This is not our soap box, it is a reality. Some prosecutors have forgotten, or never learned, that their primary duty is to do justice, not simply convict those unfortunate souls caught in the cross-hairs.
Prosecutorial misconduct, either through deliberate Brady violations or the knowing use of perjured testimony or inflammatory arguments before a jury, is designed to deprive a defendant of a fair and impartial trial, and this unethical behavior must be understood and ever guarded against.
For the criminal defense lawyer these cases make good fodder for creative “discovery letters” and motions for discovery.
U.S. SUPREME COURT
Brady v. Maryland (U.S. 1963) held that a prosecutor under the Fifth and Fourteenth amendments has a duty to disclose favorable evidence to defendants upon request, if the evidence is “material” to either guilt or punishment.
Giles v. Maryland (U.S. 1967): After having been convicted of rape in a Maryland state court, defendants brought a post-conviction proceeding, alleging that the prosecution denied them due process of law by suppressing evidence favorable to them and by the knowing use of perjured testimony against them. The presiding judge in the post-conviction proceeding ordered a new trial on the ground that the petitioners' evidence did not sustain the allegation of knowing use of perjured testimony by the prosecution, but did establish the suppression of evidence concerning the credibility of witnesses and the issue of consent, which constituted a denial of due process. This judgment was reversed by the Court of Appeals of Maryland on the ground that the evidence allegedly suppressed would not materially affect the determination of the petitioners' guilt or the punishment to be imposed, and that the prosecution's failure to disclose it was not so prejudicial as to warrant the granting of a new trial on the basis of the denial of due process. Supreme Court vacated the judgment of the Maryland Court of Appeals and remanded the case for further proceedings, even though the court did not agree on an opinion.
Giglio v. United States (U.S. 1972): Withheld promise of immunity to con-conspirator upon whose testimony the Government’s case depended required reversal of conviction because “evidence of any understanding or agreement as to a future prosecution would be relevant to [co-conspirator’s] credibility and the jury was entitled to know of it.”
United States v. Agurs (U.S. 1976): Prosecutor has a due process duty to disclose evidence about a victim’s criminal record, except (1) when the victim’s record was not requested by defense counsel and no inference of perjury by witness created; (2) if the trial court remains convinced of defendant’s guilt after the withheld evidence is reviewed in light of entire trial record; and (3) the trial judge’s firsthand appraisal of the record is thorough and reasonable.
United States v. Bagley (U.S. 1985): Refined Brady by holding that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request. The Court said “favorable evidence” is “material” if there is a reasonable probability that disclosure of the evidence would have produced a different outcome. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.”
Kyles v. Whitley (U.S. 1995): Accused entitled to a new trial because of the prosecution's failure to comply with the due process obligation to disclose material evidence favorable to the accused concerning his possible innocence of the crime because the net effect of the withheld raised a reasonable probability that the evidence's disclosure to competent counsel would have produced a different result.
Even if the prosecutor was not personally aware of the evidence, the State is not relieved of its duty to disclose because "the State" includes, in addition to the prosecutor, other lawyers and employees in his office and members of law
Strickler v. Greene (U.S. 1999): Held that a Brady violation occurs when: (1) evidence is favorable to exculpation or impeachment; (2) the evidence is either willfully or inadvertently withheld by the prosecution; and (3) the withholding of the evidence is prejudicial to the defendant.
Cone v. Bell (U.S. 2009): Observed, without specifically holding, that a prosecutor’s pre-trial obligations to disclose favorable or impeaching evidence, either to guilt or punishment, “may arise more broadly under a prosecutor’s ethical or statutory obligations” than required by the Brady/Bagley post-conviction “materiality” standard of review. The court distinguished the post-conviction setting where the reviewing court must make a constitutional determination of whether the withheld evidence is material to the prosecutor’s pre-trial broader ethical obligations to disclose, which requires a “prudent prosecutor [to] err on the side of transparency, resolving doubtful questions in favor of disclosure.”
FIRST CIRCUIT COURT OF APPEALS
Mastracchio v. Vose: Brady violation because knowledge of witness payments or favors made by the Witness Protection team is discoverable.
SECOND CIRCUIT COURT OF APPEALS
United States v. Matthews (2nd Cir. 1994): Rule 16 violation because the government attorney withheld a letter written by the defendant instead of disclosing it within a timely manner.
Leka v. Portuondo(2nd Cir. 2001): Brady violation because off-duty policeman’s undisclosed observations would have contradicted testimony of other witnesses.
Disimone v. Phillips (2nd Cir. 2006): Brady violation because exculpatory statement would have allowed the defense to investigate another party’s involvement.
THIRD CIRCUIT COURT OF APPEALS
United States v. Pelullo (3d Cir. 1997): Brady violation because an FBI agent’s undisclosed notes and FBI surveillance tapes could have been used to impeach government witness whose credibility was central to case.
Virgin Islands v. Fahie (3d Cir. 2005): Prosecutorial “bad faith” is “probative to materiality” as well as relevant to determining a remedy.
FOURTH CIRCUIT COURT OF APPEALS
Spicer v. Roxbury (4th Cir. 1999): Brady violation because prosecutors did not disclose witness’s prior inconsistent statement that he did not see the defendant.
Monroe v. Angelone (4th 2003): That while some Brady material which comes to light post-trial may not constitute a violation because of redundancy, this does not “excuse [pre-trial] discovery obligations.” While “materiality” may exist as a prosecutorial defense in the post-trial setting, it is not a license to make “materiality” determinations pre-trial.
FIFTH CIRCUIT COURT OF APPEALS
Guerra v. Johnson (5th Cir. 1996): Brady violation for failure to disclose police intimidation of key witnesses and information regarding suspect seen carrying murder weapon minutes after shooting.
United States v. Sipe (5th Cir. 2004): Brady violation because the cumulative effect of undisclosed statement, criminal history of witness, and benefit to testifying aliens undermined credibility of a key witness.
United States v. Miller (5th Cir. 2008): Brady violation because undisclosed referral letter could have been used to impeach witness at trial.
LaCaze v. Warden La. Corr. Inst. For Women (5th Cir. 2011): Brady violation because prosecution withheld material concerning promise made to co-defendant.
SIXTH CIRCUIT COURT OF APPEALS
Schledwitz v. United States (6th Cir. 1999): Brady violation because Government witness portrayed as neutral and disinterested expert had actually been investigating defendant for years.
Joseph v. Coyle (6th Cir. 2006): Brady violation because witnesses’ undisclosed testimony transcripts, notes on witness interviews, and immunity agreement would have impeached prosecution’s crucial witness.
O’Hara v. Brigano (6th Cir. 2007): Brady violation because undisclosed written statement by victim could have been used to impeach victim’s testimony.
SEVENTH CIRCUIT COURT OF APPEALS
United States v. Boyd(7th Cir. 1995): Brady violation for failure to disclose drug use and dealing by Government witness and “continuous stream of unlawful favors” including phone privileges, presents, and special visits.
Crivens v. Roth (7th Cir. 1999): Brady violation because failure to disclose crimes committed by Government witness is Brady even when witness used aliases.
EIGHTH CIRCUIT COURT OF APPEALS
The Eighth Circuit White v. Helling (8th Cir. 1999) found a Brady violation in a 27 year old murder case because the Government did not disclose that its chief eyewitness had originally identified someone else and identified the defendant only after several meetings with the police.
United States v. Barraza-Cazares (8th Cir. 2006): Held that a co-defendant’s statement is exculpatory evidence because it is relevant to co-defendant’s role in the offense.
NINTH CIRCUIT COURT OF APPEALS
United States v. Strifler (9th Cir. 1988): Brady violation when, after request by defendant, Government does not disclose information in probation file relevant to witness’s credibility on ground that it was privileged.
Singh v, Prunty (9th Cir. 1998): Brady violation because of “favorable deal” given to a star witness and not disclosed.
United States v. Santiago (9th Cir. 1995): Brady violation because prosecutor had knowledge of and access to inmate files, including the defendant’s files held by Bureau of Prisons.
TENTH CIRCUIT OF APPEALS
Banks v. Reynolds (10th Cir. 1995): Brady violation because prosecutors did not disclose another individual or individuals had been arrested for the same charge.
Gonzales v. McKune (10th Cir. 2001): Forensic evidence relative to low sperm count in semen recovered from victim exculpatory because defendant did not have low sperm count.
ELEVENTH CIRCUIT COURT OF APPEALS
Jacobs v. Singletary (11th Cir. 1992): Witness statements to a polygraph examiner which were contrary to witness’ trial testimony is exculpatory because the conflicting statements were relevant to defendant’s claim of innocence.
D.C. CIRCUIT OF APPEALS
United States v. Brooks (D.C. Cir. 1992): Brady violation if a specific request is made by defendant and Government does not search records of police officer/witnesses.
United States v. Cuffie (D.C. Cir. 1996): Brady violation because undisclosed evidence of witness’s prior perjury could have impeached witness, even though the witness had been impeached by a cocaine addiction, cooperation with prosecution, incentives to lie, and violation of oath as police officer.
TEXAS COURT OF CRIMINAL APPEALS
Ex parte Mowbray (Tex. Crim. App. 1996): Brady violation because prosecutors failed to disclose exculpatory expert report.
Leza v. State (Tex. Crim. App. 2011): Defendant attached two letters on direct appeal that his appellate counsel received from an assistant district attorney, apparently in relation to another case altogether. These letters informed appellate counsel that, since the defendant's trial, a certain Bexar County deputy sheriff, not a witness at either phase of the defendant's own trial, had been charged with aggravated perjury and abuse of official capacity. When the relevance of these charges to defendant’s circumstances was not immediately apparent to appellate counsel, she contacted the assistant district attorney for additional information, but none was provided. Appellate counsel now avers that she believes the letter was most likely sent to her by mistake, but in an abundance of caution she brings a claim that the State has violated the appellant's due-process rights under Brady by suppressing evidence favorable to him at the time of his trial. Obviously, the letters upon which the defendant now relies are not any part of the appellate record in this case, and we could not predicate any appellate relief upon them even if they did establish a Brady violation. We therefore overrule the defendant’s [Brady claim]—without prejudice, of course, to pursue any Brady claim that further investigation might turn up pursuant to his initial application for post-conviction writ of habeas corpus brought under Article 11.071 of the Code of Criminal Procedure.
Pena v. State (Tex. Crim. App. 2011): Brady violation because prosecution failed to disclose to defendant the audio portion of a videotape containing statements he made to the police.
U.S. SUPREME COURT
Mooney v. Holohan (U.S. 1935): Misconduct through “knowing use” of perjured testimony to convict a criminal defendant in violation of “due process” of law. Acts and omissions by a prosecutor can violate “the fundamental conceptions of justice which lie at the base of our civil and political institutions.”
Berger v. United States (U.S. 1935): Prosecutor engaged “misconduct” through his trial tactics by “misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said, and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous manner.”
Alcorta v. Texas (U.S. 1957): Due process violated by prosecution’s “passive” use of perjured testimony.
Napue v. Illinois (U.S. 1959): Held that “the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment.”
Banks v. Dretke (U.S. 2004): Misconduct in capital murder case because prosecution withheld information that would have discredited two prosecution witnesses, including one who was a paid I police informant and the other had coached by prosecution before testifying.
TEXAS COURT OF CRIMINAL APPEALS
Stein v. State (Tex. Crim. App. 1973): Misconduct warranting reversal of conviction when prosecution repeatedly violated trial court order not to make personal remarks about defendant or present arguments outside the evidence.
Boyde v. State (Tex. Crim. App. 1974): Misconduct when prosecution deliberately elicits testimony from witness about defendant’s guilt.
Dexter v. State (Tex. Crim. App. 1976): Misconduct when prosecution attempted to link defendant to “organized crime” by placing physical material not introduced into evidence marked “organized crime” before jury.
Ex Parte Adams (Tex. Crim. App. 1989): Misconduct warranting reversal of conviction because prosecution suppressed favorable evidence, knowingly used perjured testimony, and deceiving trial court during the defendant’s capital murder trial.
Duggan v. State (Tex. Crim. App. (1989): Misconduct and reversal of conviction required when prosecution fails to correct perjured testimony.
Ex parte Castellano (Tex. Crim. App. 1993): Misconduct and reversal of conviction required when perjured testimony by a police officer, although privately motivated, is utilized because such testimony is “imputable” to prosecution.
TEXAS COURTS OF APPEALS
Rogers v. State (Tex.App.—Houston [1st Dist.] 1987): Misconduct warranting reversal because prosecutor's cross-examination of both defendant and defendant’s character witnesses was characterized by misconduct, including the assumption of inflammatory facts not in evidence, prejudicial remarks that expressed the prosecutor's personal opinions, and improper bolstering. Even though defendant failed to preserve many of the errors by timely objection, the errors were so pervasive that appellant was denied a fundamentally fair and impartial trial. The prosecutor's questions and side-bar comments only served the purpose of inflaming and prejudicing the jurors, and the record supported a finding that the prosecutor was not acting in good faith. The prejudicial effect of the prosecutor's remarks would not have been removed by instructions to disregard. The prosecutor's misconduct was so serious and pervasive that it undermined appellant's right to due process of law.
Young v. State (Tex.App.—Dallas 1988): Misconduct because prosecutor in jury argument tried defendant for fictitious attempted offense against police officers, and, thus, prosecutor engaged in calculated misconduct to deprive the defendant of fair and impartial trial.
Ramirez v. State (Tex.App.—Austin 2002): Misconduct and reversal of conviction required because due process violated by prosecution’s knowing use of perjured testimony.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization